the amount of forfeitures for desertion in the case of contracts for wages by the voyage, run, or share (o); and for their application to the reimbursement of the expenses occasioned by such desertion to the master or owner of the ship from which the desertion has taken place (p).

It provides also that any question concerning the forfeiture of, or deductions from, the wages of any seaman or apprentice, may be determined in any proceeding lawfully instituted with respect to such wages, notwithstanding that the offence, though punishable by imprisonment as well as forfeiture, has not been made the subject of any criminal proceeding (q).

A seaman may leave his ship for the purpose of forthwith entering into the naval service of Her Majesty, and such leaving his ship is not to be deemed a desertion therefrom, or render him liable to any punishment or forfeiture whatever; stipulations introduced into any agreement for the purpose of defeating this provision are void, and subject the master or owner who causes them to be so introduced to a penalty of 201. (r).

Upon sections 19 and 257, it has been held that to convict under the second of those sections of the offence of knowingly harbouring a seaman who has deserted, the ship must be shown to be British (s).

With respect to the other offences before-mentioned, the reader may be referred to the judgment of the Court of Admiralty in the case of Robinett v. the Ship Exeter (t), a suit for wages, brought by the mate, who had been hired by the captain at Bombay, and discharged, in the course of the ship's voyage to Europe, at Colombo, on a charge of incapacity, drunkenness, neglect, and disobedience of orders. "Upon the matter of drunkenness," said Lord Stowell, "the court will be no apologist for that; it is an offence peculiarly noxious on board a ship, where the sober and vigilant attention of every man, and particularly of officers, is required. At the same time, the court cannot entirely forget that, in a mode of life peculiarly exposed to severe peril and exertion, and therefore admitting in seasons of repose something of indulgence and refreshment, indulgence and refreshment are naturally enough sought by such persons in grosser pleasures of that kind; and therefore that the proof of a single act of intemperance committed in port is no conclusive proof of disability for general maritime employment. Another rule would, I fear, disable many very useful men for the maritime service of their country.

"As to disobedience to lawful command, it is an offence of the highest kind; the court would be particularly attentive to preserve that subordination and discipline on board of ship which is so indispensably necessary for the preservation of the whole service, and of every person concerned in it. A peremptory or harsh tone, or an overcharged manner, in the exercise of authority, will never be held

(0) Sect. 252. (p) Sect. 253. (g) Sect. 254.

(r) Sect. 214.

(*) Leary v. Lloyd, 29 L. J. M. C. 194. (t) 2 Rob. Adm. Rep. 261.

by this court to justify resistance. It will not be sufficient that there has been a want of that personal attention and civility which usually take place on other occasions, and might be wished generally to attend the exercise of authority. The nature of the service requires that those persons who engage in it should accommodate themselves to the circumstances attending it, and those circumstances are not unfrequently urgent, and create strong sensations, which naturally find their way in strong expressions and violent demeanour. The persons subject to this species of authority are not to be captious, or to take exception to a neglect of formal ceremonious observances of behaviour; and on these grounds the court would hold that the charges of this defence are of a nature sufficient to justify dismissal if they are properly substantiated in evidence, although it might at the same time be proved that less personal civility had been used than would excuse something of an hesitation of obedience in other modes of life."

By the 17 & 18 Vict. c. 104, any master of, or any seaman or apprentice belonging to any British ship, who by wilful breach of duty, or by neglect of duty, or drunkenness, does any act tending to the immediate loss, destruction, or serious damage of the ship, or immediately to endanger the life or limb of any person belonging to the ship or on board, or who by wilful breach or neglect of duty, or by reason of drunkenness, refuses or omits to do any lawful act proper and requisite to be done by him for preventing loss, destruction, damage, or danger of this description, is guilty of a misdemeanor (u).

And any seaman lawfully engaged, or any apprentice to the sea service, who is guilty of desertion or neglect, or of refusing to join or to proceed to sea; of absence within twenty-four hours before sailing; of absence without leave; of quitting without leave before the ship is secured; of wilful disobedience; of continued wilful disobedience or neglect of duty, assault on officers, combining to disobey, wilful damage or embezzlement, or of acts of smuggling, causing loss to the owners, shall be liable to be punished summarily in the mode specially authorized in respect of each of such offences by the Act of Parliament (v).

Upon the commission of any of these offences, an entry thereof is to be made in the official log-book, and signed by the master and the mate, or one of the crew; and the offender is to be furnished with a copy of such entry, or to have the same read to him, and may make such reply as he thinks fit; and the fact of such copy being so furnished, or of the entry being so read, and of his reply, shall likewise be entered and signed as aforesaid. And in any subsequent legal proceeding, the entries shall, if practicable, be produced, or proved, and in default thereof, the court by which the case is heard may, at its discretion, refuse to receive evidence of the offence (w).

(u) Sect. 239. (v) Sect. 243.

(20) Sect. 245.

CHAPTER V.

OF BARRATRY.

SECT. 1. Definition of Barratry, p. 159.

2. Acts of Barratry punishable by Statute, p. 160.
3. Barratrous Disposal of Ship and Cargo, p. 161.
4. Not resisting Pirates, p. 162.

1. Definition of Barratry.

THE term Barratry, which is often used as well by foreign writers as those of our own nation, is generally understood in this and in most other countries, to denote a fraudulent act of the master or mariners committed to the prejudice of the owners of the ship (a). In France, it is often used in a more enlarged sense, and comprehends acts of mere ignorance or unskilfulness not accompanied with a fraudulent design.

To our definition of barratry, it is not essential that the act should be done by the master for his own benefit, or with the intent of injuring his owners. Thus, if he sail out of port without paying port duties, whereby the goods are forfeited, lost, or spoiled (b); or if he cruise in quest of prizes without proper authority, and contrary to the orders of his owners (c); or if he disregard an embargo (d); or attempt a breach of a blockade (e); or be concerned in smuggling; or connive at smuggling by his mariners (f); or wilfully delay, or deviate, or run away with the ship (g), and sell her or her cargo, or part of it (h), or run the ship ashore without any justifiable cause (i), he is guilty of barratry. And where a master had general instructions to make the best purchases with despatch, it was considered that such instructions must mean legal purchases and legal despatch, and that going into an enemy's settlement to trade, although his cargo could be more speedily and cheaply completed there (the ship being seized and confiscated on account of it), was barratry (j). Nor was

(a) Emerigon, tom. 1,366. See the cases, Marshall's Law of Insurance, 5th ed., by Shee, 409.

(b) In Knight v. Cambridge, 1 Stra. 581; 2 Lord Raym. 1349. Stamma v. Brown, 2 Strange, 1174. Elton v. Brogden, ibid. 1264. Phyn v. Royal Exchange Assurance Company, 7 T. R. 505.

(c) Moss v. Byrom, 6 T. R. 379.
(d) Robinson v. Ewer, 1 T. R. 127.

508.

(e) Goldschmidt v. Whitmore, 3 Taunt. Everth v. Hannam, 6 Taunt. 375. (f) Lockyer v. Offley, 1 T. R. 252. Pipon v. Cope, 1 Campb. 434.

(g) Vallejo v. Wheeler, Cowp. 143. Roscow v. Corson, 8 Taunt. 684.

(h) Dixon v. Reed, 5 B. & A. 597. Toulmin v. Anderson, 1 Taunt. 227.

(i) Soares v. Thornton, 3 T. R. 227. (j) Earl v. Rowcroft, 8 East, 126.

it thought to make any difference that he intended thereby to promote his owners' interest. It is not for him to judge in cases not entrusted to his discretion, or to suppose that he is not breaking the trust reposed in him, but acting meritoriously, when he endeavours. to advance the interests of his owners by means which the law forbids, and which his owners must be taken to have forbidden, not only from what ought to be, and therefore must be presumed to have been, their own sense of public duty, but also from a consideration of the risk and loss likely to follow from the use of such means. But an error of judgment in matters entrusted to his discretion, and not contrary to law, admits of a different consideration; and accordingly, when in an action on a policy of insurance, the loss being alleged by barratry of the master, it appeared that his ship having sprung a leak, he took her into port, and before any survey made, broke up her ceiling and end-bows with crowbars, thereby injuring and weakening her, Lord Ellenborough, addressing the counsel for the plaintiff, said, "To constitute barratry, which is a crime, the captain must be proved to have acted against his better judgment; as the case stands, there is a whole ocean between you and barratry" (k).

Barratry may be committed with the privity of the freighters against the owner, or by the owners or master against the general freighter (7). One part-owner, being master, may commit barratry against another (m), but if the master be sole owner, he cannot commit barratry against himself (n).

2. Acts of Barratry punishable by Statute.

But though this word, taken even in the more limited sense in which it is used in this country, does not denominate any crime punishable by law, yet several offences committed by the master and mariners, in violation of their trust and duty, and which fall within the definition of barratry, are punishable by different statutes, which I shall now proceed to mention.

First, as to the offence of wilfully destroying the ship. This is still, under circumstances of aggravation, punishable with death, and it is enacted :

"That whosoever shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, either with intent to murder any person, or whereby the life of any person shall be endangered, shall be guilty of felony, and being convicted thereof shall suffer death (0).

(k) Todd v. Ritchie, 1 Stark. Rep. 240. (1) Vallejov. Wheeler, Cowp. 143. Soares v. Thornton, 7 Taunt. 627.

(m) Jones v. Nicholson, 10 Exch. 28. Boutflower v. Wilmer, 2 Selw. 976. Bell's Principles of the Law of Scotland, p. 188.

(n) Ross v. Hunter, 3 Term R. 33. Nutt

v. Bourdeaux, 1 T. R. 323. Stamma v. Brown, 2 Strange, 1173.

(0) 7 Will. 4 & 1 Vict. c. 89, s. 4. A pleasure boat, eighteen feet long, was set fire to, and Patteson, J., inclined to think it was a vessel within the meaning of the Act. R. v. Bowyer, 4 C. & P. 559. Upon an in

"That whosoever shall unlawfully exhibit any false light or signal, with intent to bring any ship or vessel into danger, or shall unlawfully and maliciously do anything tending to the immediate loss or destruction of any ship or vessel in distress, shall be guilty of felony, and, being convicted thereof, shall suffer death (p).

"That whosoever shall unlawfully and maliciously set fire to, or in anywise destroy any ship or vessel, whether the same be complete or in an unfinished state, or shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner or part-owner of any such ship or vessel, or of any goods on board the same, or any person that hath underwritten or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years (q).

"That whosoever shall by force prevent or impede any person endeavouring to save his life from any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore (whether he shall be on board, or shall have quitted the same), shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years (r).

"That whosoever shall unlawfully and maliciously destroy any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandise, or articles of any kind, belonging to such ship or vessel, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years" (s).

3. Barratrous Disposal of Ship and Cargo.

Secondly, as to the offences of running away with the ship or cargo, and of making a revolt in the ship.

By a statute passed in the reign of King William the Third (t), it is enacted, "That if any commander or master of any ship, or

dictment for firing a barge. Alderson, J., said, "that if the prisoner was convicted, he would take the opinion of the judges, whether a barge was within the meaning of the statute." R. v. Smith, 4 C. & P. 569; Rex v. Philp, 1 Moo. C. C. 263; and Rex v. Neville, ibid. 458. The offence may be com

M

mitted by one of the part-owners. Reg. v.
Wallace, Car. and Marsh. 200.
(p) 7 Will. 4 & 1 Vict. c. 89, s. 5.
(q) Sect. 6.
(r) Sect. 7.

(*) Sect. 8.

(t) 11 & 12 Will. 3, c. 7, s. 9, made perpetual by 6 Geo. 1, c. 19.