months, if for a greater distance. If, under this usage, the assurer should pay the money, supposing the ship lost, when it really is not, he may, as we shall see hereafter, recover it back by action.

4. CAPTURE AND DETENTION BY PRINCES,
OR FOREIGN POWERS.

A ship is to be considered as lost by capture, though she be never condemned at all, nor carried into any port or fleet of the enemy, and the assurer must pay the value. If, after a condemnation, the owner recover or retake her, the assurer can be in no other condition, than if she had been retaken or recovered before condemnation. The assurer runs the risk of the assured, and undertakes to indemnify; he must therefore bear the loss actually sustained. So that, if, after condemnation, the owner recover the ship in her complete condition, but has paid for salvage, or been at any expense in getting her back, the assurer must pay the loss so actually sustained. No capture by the enemy can be so total a loss as to leave no possibility of recovery. If the owner himself should retake, at any time, he will be entitled; and, by the acts of 29 Geo. II. c. 34, § 24, and 33 Geo. III. c. 66, § 42, if an English ship retake the vessel captured, either before or after condemnation, the owner is entitled to restitution upon stated salvage. The chance does not, however, suspend the demand for a total loss upon the assurer: but, in case of a recapture, justice is done, by putting him in the place of the assured.-Goss v. Whithers, 2 Burr. 694.

Where a capture has been made, whether it be legal or not, the assurers are liable for the charges of a compromise made, bona fide, to prevent the ship from being condemned as a prize, or to avoid the greater expense of prosecuting an appeal. - Berens v. Rucker, 1 Blackst. 313.

But as, by 22 Geo. III. c. 25, and 33 Geo. III. c. 66, all ransoms of British ships captured are declared illegal, no sums paid on such account can be recovered from the underwriters.

Upon this principle the following case was decided: The ship Themis was assured for twelve months: during which period she was captured, carried into Bergen, in Norway, and there condemned by the French consul. After sentence, she was put up to sale there, and repurchased by the agent of the plaintiff; and this repurchase money the plaintiff insisted he had a right to recover. The court, after two arguments, were unanimously of opinion, "that, as the sentence of a French consul in a neutral country was contrary to the law of nations, and void, the property was never divested out of the original owner; and therefore the money paid for the repurchase was in the nature of a ransom. The ransom acts are remedial laws; and, in the construction of such acts, it is a rule to extend the remedy so as to meet the mischief. The legislature meant to prevent such a transaction as the present, because it would take away the chance of a recapture. This transaction being done by an agent, at an auction, and on land, was immaterial, as the acts of parliament had not described in what places, or in what form, a ransom is prohibited.”—Havelock v. Rockwood, 8 T. R. 268.

In cases of capture the underwriter is immediately responsible to the assured. But, if the ship be recovered before a demand for indemnity, the assurer is only liable for the amount of the loss actually sustained at the time of the demand; or, if the ship be restored at any

time subsequent to the payment by the underwriter, he shall then stand in the place of the assured, and receive all the benefits and advantages resulting from such restitution. All these regulations have their foundation in this great principle, that a policy of assurance is nothing more than a contract of indemnity.

If an assurer underwrite property belonging to another country, between which and our own hostilities break out, subsequent to the policy being effected, which said property is captured, lost, or destroyed, during the war, the underwriter is not liable.-Gamba and another v. Le Mesurier, T. R. Mich. 44 Geo. III.; and Brandon v. Curling, 4 East. 410.

The underwriter is likewise answerable for all loss or damage arising to the assured, "by the arrests, restraints, and detainments of all kinge, princes, and people, of what nation, condition, or quality, soever.”

The only question then is, what shall be considered as such detention? Lord Mansfield has said, that the assured may abandon in case merely of an arrest or embargo by a prince, not an enemy; and, consequently, such an arrest is also within the meaning of the word detention.-2 Burr. 696.

An embargo is an arrest laid on ships or merchandise by public authority, or a prohibition of state commonly used to prevent foreign ships from putting to sea in dime of war, and sometimes also to exclude them from entering our ports. Ships are frequently detained to serve a prince in an expedition, and for this end have their loading taken out, without any regard to the colours they bear, or the princes to whose subjects they belong: and this is an arrest within the meaning of the policy.

In case of a detention by a foreign power, which in time of war may have seized a neutral vessel at sea, and carried it into port to be searched for enemy's property, all the charges consequent thereon must be borne by the underwriter; and whatever costs may arise from an improper detention, must always fall upon them.-Saloucci v. Johnson, Hil. 25 Geo. III.

The trustees of the crown, if a ship that is captured be lost before condemnation, are entitled to recover against the assurers.-Craufurd

v. Hunter, S T. R. 25.

The South Carolina, an American ship, of Charlestown, bound for London, was assured by the defendant. On her return, she was captured by a French privateer, and carried into L'Orient. Being afterwards condemned on account of her not being provided with a list of the crew, according to the French ordinances and regulations, the defendant refused to pay the loss. But, as she was furnished with all the papers an American ship ought to have, the plaintiffs obtained a verdict.—Price and another v. Bell, T. R. Trinity, 41 Geo. III.

In the following case the plaintiff obtained a verdict on the principle that the condemnation of any vessel by a foreign court of admiralty is * conclusive only here as to the express ground of the sentence."-The policy of the American ship Mercury was subscribed by the defendant as an underwriter for £200. On her passage from Virginia to Bremen, see was captured by a French privateer, and carried into Nantes, where she was condemned by a French court of admiralty, "as belonging to the evenes of the French Republic." But, as the ship was provided wh all the proper and usual documents, it was held that the underesters were responsible. Christie v. Secretan, 3 T. R. 192.

But, though an underwriter is liable for all damages arising to the

owner of the ship or goods from the restraint or detention of princes, yet that rule is not extended to cases where the assured navigates against the laws of those countries, in the ports of which he may chance to be detained, or to cases where there shall be a seizure for non-payment of customs.-2 Vern. 176.

If indeed any of those acts were committed by the master of the ship, without the knowledge of the assured, the underwriter would be liable, not for losses by detention, but for a loss by the barratry of the

master.

Since the case of Robertson v. Ewer, mentioned before, there seems to be very little doubt that an underwriter is liable to pay damage arising by the detention or seizure of ships by the government of the country to which they belong; for, an embargo had been laid by Lord Hood on all shipping in Barbadoes; and it was never doubted that the assurer was liable for any loss which might have been sustained by such detention, provided the loss had happened to any of the property specifically assured. If the ship be detained by the order of the state before her departure for the voyage, but after the risk commenced, the assurer, by our law, is liable for the damage occasioned by such detention, as the words of the policy do in themselves import no restrictions to restraints and embargoes by foreign potentates only. Rotch v. Edie, 6 T. R. 413.

The clause respecting detention, however, extends only to actual embargoes, and will not excuse the master for the performance of an absolute covenant, where the cause of non-performance was only a reasonable apprehension that an embargo was about to be imposed. See 10 E. R. 530.-11 E. R. 205.

Although the words of this part of the policy are, arrests, restraints, and detainments, of all kings, princes, and people, of what nation, condition, or quality soever;" yet the word people must be understood as applying to those people who are the ruling power of the country, and not to any assemblage or people who arrest the ship in a violent and riotous manner.—Nesbit v. Lushington, 4 T. R. 783.

Before the assured can recover against the underwriter in cases of detention, he must first abandon to the assurers his right, and whatever claims he may have to the goods assured. See title ABANDONMENT.

5. BARRATRY OF THE MASTER OR MARINERS.

Barratry is committed, when the master of a ship or the mariners cheat the owners or assurers, whether it be by running away with the ship, sinking her, deserting her, embezzling the cargo, or by carrying a ship a different course from their orders.-Postlethwaite's Dict. I vol. p. 136. 214. These definitions are so very comprehensive, that they seem to take in every case of barratry, known to the law of England. From a review of the decisions on this subject, it appears, that any act of the master, or of the mariners, which is of a criminal nature, or which is grossly negligent, tending to their own benefit, to the prejudice of the owners of the ship, without their consent or privity, is barratry.

In an action on a policy of insurance on a ship, by which, among other risks, the underwriters insured against fire, and barratry of the master and mariners, it was holden that they were liable for a loss by fire, occasioned by the negligence of the master and mariners. also holden in the same case, that where the assured had once provided

It was

a sufficient crew, the negligent absence of all that crew at the time of the loss, was no breach of the implied warrantry "that the ship should be properly manned.”—Bush v. R. Exc. Ass. Co.; 2 Barn. & Ald. 13.

It is not necessary, in order to entitle the assured to recover for barratry, that the loss should happen in the act of barratry; that is, immaterial whether it take place during the fraudulent voyage, or after the ship has returned to the regular course; for the moment the ship is carried from its right track, with an evil intent, barratry is committed.-Crown Rep. 155.

But the loss in consequence of the act of barratry, must happen during the voyage assured, and within the time limited by the policy; for, if the captain be guilty of barratry by smuggling, and the ship afterwards arrive at the port of destination, and be there moored at anchor twenty-four hours in good safety, the underwriters are not liable, if, after this, she should be seized for that act of smuggling.— Lockyer v. Offley, 1 Term Rep. p. 252.

The sailing out of port, without paying duties, whereby the ship is subjected to forfeiture, is barratrous.-Cowp. 153.

If the act of the captain be done with a view to the benefit of the owners, and not to advance his own private interest, no barratry is committed. To constitute barratry, it must be without the knowledge or consent of the owners.

In the following case all the doctrine on this head was fully considered. It was an action on a policy of assurance upon goods on board the Thomas-and-Matthew, from London to Seville. The policy was made in the common form, with liberty to touch at any ports or places, &c. The loss was assigned different ways in the declaration: first by storms and perils of the sea, in consequence of which the ship was obliged to go to Dartmouth to be repaired; and that afterwards a farther loss happened by storm, &c.: secondly, that it happened by storms and perils of the seas in the voyage generally; and thirdly, by the barratry of the master.

On the trial it was proved, that this ship was put up as a general ship from London to Seville; and was let to freight to one Darwin, to whom she was chartered by Brown, the captain; that it is the course of vessels going on this voyage, to stop at some port in the west of Cornwall, to take in provisions; that this ship having taken her cargo on board, sailed from London to the Downs; that, while she lay there, all the other ships bound to the westward bore away, but she staid till the night after, and then sailed to Guernsey, which was out of the course of the voyage; that the captain went there for his own convenience, to take in brandy and wine on his own account, after which he intended to proceed to Cornwall; that the night after the ship quitted Guernsey she sprung a leak, which obliged her to put into Dartmouth. When she was refitted, she set sail again, and proceeded for Helford, in Cornwall, where it was always intended she should stop to take in provisions; but, in her way, she received farther damage; and, on her arrival there, was totally incapable of proceeding on the voyage, and the goods were much damaged. It was attempted, on the part of the defendant, to prove that one Willes was the owner o the ship; that the voyage to Guernsey was on his account; and that the goods taken on board there, were his property; but this evidence went little farther than information and belief, except that it was proved that, when the ship arrived at Helford, the wine was delivered to him in his cellar. The learned judge directed the jury, that, if the

going to Guernsey was without the knowledge of Darwin, it was barratry, and they ought to find for the plaintiff'; but, if done with his knowledge, then it was not barratry; that, if they should be of opinion that it was without the knowledge of Darwin, he desired them to say, whether they thought it was with the knowledge of Willes or not. The jury found a verdict for the plaintiff, and said, they thought the going to Guernsey was without the knowledge of Darwin, whom they looked upon to be the true owner; but they were of opinion, it was with the knowledge of Willes.

A motion was afterwards made for a new trial: and the case being a question of great consequence to the mercantile world, was twice argued at the bar; after which the judges were unanimously of opinion that the plaintiff was entitled to recover, and the following are their opinions delivered in giving judgment.

Lord Mansfield." The ground of the motion for a new trial in this case is, that, under the circumstances, as they were given in evidence to the jury, the carrying the ship to Guernsey was merely a deviation, but not barratry. Much more stress was laid at the trial, than in either of the arguments upon this fact; namely, that the deviation being with the knowledge of Willes, the owner (though not pro hac vice) of the ship, it could never be barratry; and, therefore, the jury were pressed to say, whether it was with the consent of Willes or not; and they said, It was. Nothing is so clear, as that, if the owner of a ship assures and brings an action on the policy, he can never set up as a crime a thing done by his own direction or consent. It was therefore a material fact to proceed upon, if Willes had any thing to do in the case; but he had not. It appeared to me, that the nature of barratry had not been judiciously considered or defined, in England, with accuracy. In all mercantile transactions, the great object should be certainty; and, therefore, it is of more consequence that the rule should be certain, than whether the rule is established one way or the other: because speculators in trade then know upon what ground to proceed." His lordship then, after giving a definition of the word barratry, proceeded thus: "In this case, the underwriter has assured against all barratry of the master; and we are not now in a case where the owner or freighter is privy to it; if we were, it is evident, that no man can complain of an act to which he is himself a party. In this case, all relative to Willes may be laid out of it: he is originally the owner, but not the assurer here. Darwin was the freighter of the ship, and the goods that were on board were his; if any fraud be committed on the owner, it is committed on Darwin. The question then is, what is the ground of complaint against the master? He had agreed to go on a voyage from London to Seville; Darwin trusts he will set out immediately instead of which the master goes on an iniquitous scheme, totally distinct from the purpose of the voyage to Seville; that is a cheat and fraud on Darwin, who thought he would set out directly; and whether the loss happened in the act of bar ratry, that is, during the fraudulent voyage, or after, is immaterial, because the voyage is equally altered, even though there is no other iniquitous intent. But, in the present case, there is a great deal of reason to say, that the loss sustained was in consequence of the alteration of the voyage. The moment the ship was carried from its right course, it was barratry; and here the loss happened immediately upon the alteration. Suppose the ship had been lost afterwards, what would have been the case of the assured, if he were not secured against the