portion as the facts as ascertained may indicate. In Green v. Elmslie (i), a vessel insured "against total loss only" was driven ashore, sustaining no hurt, but being captured by the enemy. This was held to be a loss by capture and not by perils of the sea, Lord Kenyon remarking that if the vessel had been driven on any other coast but that of an enemy she would have been in perfect safety. And in Hahn v. Cobbett (k), where goods insured free of capture were placed in imminent risk of total loss owing to the vessel having been driven on a sandbank, and were saved from such loss only by being salved by the enemy, by whom they were confiscated, the Court held that the loss was due to perils of the sea. Again, in Livie v. Janson (1), where a ship warranted free from American condemnation was driven on the American shore, and there seized and condemned, it was held that the total loss by capture discharged the underwriters from any claim in respect of the antecedent stranding, any damage caused thereby not having prejudiced the assured. But the recent decision in Ionides v. Universal Insurance Co. (m) very plainly sets forth the law governing cases of loss arising jointly from capture and from perils of the seas. This was an insurance on some 6,000 bags of coffee shipped during the American Civil War from Rio de Janeiro to New York, and the policy was warranted "free from all consequences of hostilities." The Confederates having extinguished the Cape Hatteras Light, the vessel went ashore, and ultimately broke up. Before this latter event, however, about 120 bags of coffee were saved by local fishermen, and other 1,000 bags could have been also saved but for a dispute which occurred between the Confederate soldiers and the fishermen. The Court held that the 120 bags salved and confiscated were lost owing to the hostilities, and that the 1,000 bags which ought to have been salved must also be deemed to have been lost owing to the same cause. That as to the remainder, which could not have been salved, its loss had to be attributed to perils of the sea. Erle, C. J., illustrated his

(i) Peake, 212.

(k) 2 Bing. 205.

(4) 12 East, 648.

(m) 14 C. B. N. S. 259; 32 L. J. (C. P.) 170.

judgment in words to the following effect (n):-Suppose a shipmaster, chased by a cruiser, to avoid capture runs ashore, or runs into a bay where there is neither harbour nor anchorage, and being unable to beat out is driven ashore, the loss or damage by such grounding is a consequence of hostilities, and within the exception : not so if, in the second case supposed, she does come out of the bay and pursue her voyage, but is afterwards lost in a storm which she would have escaped had she not been pursued and changed her course. Suppose, again, the ship is going to a port where there are two channels, in one of which a torpedo has been laid by the enemy. If the master, not knowing this, goes into the channel where the torpedo is, and is blown up, this is within the exception: not so if, knowing of the torpedo, he takes the other channel to avoid it, and by unskilful navigation runs aground there.

The "consequences" intended were, it was held, such as constantly follow the operation of the same cause; and it could not be maintained on behalf of the underwriters that a vessel could not pass the Cape in the ordinary course of a coasting voyage in the absence of the light.

In effect, as regards the 5,000 bags lost by perils of the seas, their loss was to be ascribed to the stranding on the reef as the proximate cause; the extinction of the light, the consequence of the hostilities, being the remote cause. For this loss could not be predicated as the constant effect of the light being out, and the going ashore could, therefore, not be regarded as such a "consequence of hostilities" as was contemplated under the clause in the policy. Judgment accordingly for the assured in respect of the (about) 5,000 bags lost by perils of the seas; for the underwriters in respect of the 1,120 bags lost by hostile capture.

If a ship be lost by being barratrously delivered into the hand of the enemy, the loss can be claimed for as being due either to capture or to barratry (o). But if, as in the case of Stamma v. Brown (p), a vessel be destroyed by the enemy owing to the captain having put into a port where he was exposed to this contingency, barratry cannot be alleged against him if in so doing he was acting with the privity of his owners.

(n) Lowndes's Law of Marine Insce., p. 113. (0) Arcangelo v. Thompson, 2 Camp. 620. (p) 2 Str. 1173.

But see the judgment at length.
But cf. Cory v. Burr, infra.

In Powell v. Hyde (1854) (q), a ship had been insured "warranted free from capture and seizure, and the consequences of any attempt thereof." Her crew, on a demonstration by a Russian battery, dropped anchor and fled from the vessel, which was thereupon fired upon and sunk. The Court held that this was a capture within the meaning of the warranty. The vessel was as much "seized" as if the Russians had sunk her by means of a boat's crew from the shore. They could have brought her to the shore, but they preferred to send her to the bottom. The warranty, said the Court, extends "to any capture or seizure whereby the ship is destroyed or lost or damnified. . . . any capture or seizure whereby the ship is lost to the assured."

In Cory v. Burr (r) a vessel similarly insured was seized by the Spanish authorities for smuggling, and for the consequent expenses the owners claimed under the policy, notwithstanding the warranty, on the plea of barratry. It was, however, decided that the warranty against capture extended to capture however caused, and that it therefore practically overrode the agreement to indemnify in respect of barratry so far as concerned barratry resulting in capture.

Though a seizure be only of a temporary nature, it must none the less be regarded as a seizure within the meaning of the warranty "free from capture and seizure." Thus, in Johnston v. Hogg (s), where a vessel aground in a river was boarded by natives and abandoned, leaving her in such a condition that she was not worth repairing, it was held that the underwriters were discharged by the words of the above warranty (t).

The marine policy expressly mentions "enemies," "takings at sea," and "arrests, restraints, and detainments as risks covered by the underwriters; and other perils ejusdem generis are comprehensively referred to in the general agreement to bear "all other perils, losses, and misfortunes" happening to the subject-matter of the insurance. This agreement becomes operative when property issued is lost or damaged as the immediate consequence of hostilities provided against by the insurance. Thus, in Cullen v. Butler (u), it was decided that the

(q) 25 L. J. Q. B. 65. Vide also p. 54, supra.

(r) L. R. 9 Q. B. D. 463; 8 App. Cas. 404.

(s) 10 Q. B. D. 432.

(t) Vide sub Piracy, p. 438, infra. (u) 5 M. & S. 461.

sinking of the British vessel Industry by another British vessel The Midas, the latter thinking that the other was an enemy and about to attack her, was claimable under the above general words. The plaintiffs had pleaded "perils of the seas" in their first count; and the general words in the second; but the Court, being strongly of opinion that the loss was recoverable under the second count, considered it less material to discuss the first. The inclination of the Court, however, seemed to be against the first plea. On this count it should be noticed that Lord Herschell, in a recent case (x), observed that the opinion of the Court in Cullen V. Butler that the loss was not a loss by perils of the sea stood, he believed, alone, and had not been sanctioned by subsequent cases. In his opinion, every loss by incursion of the sea, due to a vessel coming accidentally (using this word in its popular sense) into contact with a foreign body which penetrates it and causes a leak, is a loss by perils of the sea.

Again, in Butler v. Wildman (y), the loss of a bag of dollars thrown overboard at the moment of capture by an enemy was held to be recoverable under the head of jettison. If, said Abbott, C. J., the loss was not by jettison in its technical sense, it was something ejusdem generis, and therefore within the general words "all other losses and misfortunes." The jettison was of an extraordinary species, but was not in principle distinguishable from the case where the master sets fire to his ship in order to prevent her falling into the hands of the enemy, for which, according to Emerigon and Pothier, the underwriters are liable. Bayley, J., expressed the opinion that the facts would have supported the claim whether set forth as a loss by jettison, by enemies, or by the "other losses and misfortunes" mentioned in the policy.

In Hagedorn v. Whitmore (≈), damage caused to cargo by the vessel shipping seas when in tow of a British man-of-war which had wrongfully arrested her, was held to come within the meaning of the "perils of the seas" specially mentioned in the policy; though, as Arnould points out (a), such a loss may also be attributed to seizure.

(x) Wilson v. Owners of Cargo per Xantho, 12 App. Cas. 503.
(y) 2 B. & Ald. 398.

(z) 1 Stark. 157.

(a) Arnould's Insce., 5th ed. 1131.

If a shipmaster finds his port of destination blocked, he can presumably, as was suggested by Lord Ellenborough in Blanckenhagen v. London Assurance Corporation (b), make the nearest practicable port, there to remain until his destination is again open, the underwriters' risk continuing. But if through fear of capture he definitely abandons the voyage, such abandonment of the adventure terminates the underwriters' liability, "fear of capture" not being a risk contemplated under the policy (c).

In 1815, many of the Baltic ports being under French influence, and the risk of confiscation of British shipping on arrival at such ports being consequently considerable, underwriters frequently provided against this contingency by some such special clause as the following:-"Free of capture and seizure in the ship's port of discharge;" "Free from confiscation by the government in the ship's port or ports of discharge;" "Free from capture in the ship's port of destination" (d). If to avoid such capture or confiscation the ship should put to sea and proceed to a port out of the course of the voyage insured, the underwriters will not, for the reason stated below, be liable for a subsequent loss. Without such a clause they are liable. Thus in O'Reilly v. Gonne (e), where freight was insured inter alia against capture in the port of loading, and the ship put to sea in order to avoid capture when only half loaded and not prepared to sail, and subsequently put into a port out of the course of her voyage in order to repair damage consequent on her hasty and unprepared departure, it was held that the deviation was justifiable, and therefore that the underwriters were liable for the loss. But in an insurance by the same vessel, warranted free from capture and seizure and the consequences thereof in the port of loading, the underwriters were held not to be liable (f). The latter case is but briefly reported, but the Court appears to have found that the cause of leaving La Guayra-the loading port-was to avoid capture; and that, as the underwriters were not liable for the risk of capture, they were not to be held responsible for a loss consequent on her

(b) 1 Camp. 453.

(c) Vide sub Embargo, p. 39, supra.

(d) Vide cases in Park's Marine Insce.

(e) 4 Camp. 249.

(ƒ) O'Reilly v. Royal Exch. Assce. Co., 4 Camp. 246.