IV. ported in 6 This queftion came on lately for confideration in the CHA P. court of King's Bench; and was unanimoufly decided in favour of the affured, after two arguments at the bar. But Rotch v. Edie, the learned judges defired not to be confidered as deciding very fully reupon the effect of an embargo laid on by our own fovereign Term Rep-413upon ships loading in this country. The queftion came before the court upon a fpecial cafe referved for its opinion, upon the trial of an action on a policy of infurance on three fhips, the Adelaide, Adele, and Victor, their stores, boats, and fishing materials, &c. upon two of them at and from L'Orient, and upon the third, at and from and after her arrival at L'Orient, and on all of them, " to all ports, feas, "and places whatfoever, beyond and on this fide the Capes "of Good Hope and Horn, on the fouthern whale and feat "fishery and trade, and until the fhip's arrival back at "L'Orient." The lofs is ftated by the declaration to have happened by the ships and their stores and provifions being, by authority of certain perfons exercising the powers of government in France, at Port Louis with refpect to one, and at L'Orient with respect to the two others, arrested and restrained from further profecuting their voyages, and that they had thence hitherto been prevented and restrained therefrom under and by virtue of fuch reftraint. The cafe stated that the ship Adelaide failed from the port of L'Orient on the voyage infured, but was obliged to put back by ftrefs of weather into Port Louis; and whilft the lay there, and the ships Adele and Victor were preparing for the voyages in the policies mentioned, and before the neceffary paffports and clearances could be obtained, on the 5th Feburary 1793, an embargo was laid on all veffels in thofe ports. That the Adelaide was brought back to L'Orient, and the perishable ftores of all the three fhips fold; and the faid three veffels with the rest of the stores now remain at L'Orient, under the embargo, which has continued ever fince on all ships destined on long voyages; and none have fince been permitted to fail, except those in government fervice or upon fhort coafting voyages. The Adele and Victor had entered outthe voyages infured, when the embargo came; wards upon and IV. CHAP. and that alone prevented the fhips from failing. That notice of abandonment was given to the underwriters on 27th Feb. 1793, and a total loss claimed; and the like notice and claim were repeated in August 1793 (a). Lord Kenyon." I have looked into all the cafes which have been cited, and I have alfo confidered the paffages collected from foreign writers, and the moft refpectable of them feem to me to coincide with the conftruction, which an English court of justice would put upon fuch an instru ment as the present. This plaintiff is under no difability to fue, and the defendant has entered into an engagement to indemnify him against arrefts, reftraints, and detainments of all kings, princes, and people, of what nation, condition, or quality foever. By this peril, the fhip has been detained rear three years, and the voyage is defeated: but the plaintiff is to be told this is not a lofs within the policy. No common man reading the words of the policy could doubt upon the queftion: and it is by artificial reasoning only collected by great reading from foreign authors that his claim can be repelled. But in truth, when examined, the research turns out to be all one way, and that is in favour of the plaintiff. Roccus, Le Guidon, Green v. Young, from Lord Raymond, are all one way: and although Lord Holt is faid not to have given an abfolute opinion, every thing that fell in judgment from that great man is deferving of the highest attention. Lord Mansfield too has given an opinion upon the very point (2 Burr. 696, and ante, p. 78;) and when to this current of authorities we add the words of the policy itself, it is perfectly clear. Suppofe war had been declared, and the fhip had been detained in port as a prize, could there have been a doubt? and I can see no difference between the cafes." The (a) Some other facts were stated; but as the effect of them was to fhew that the plaintiff was either an alien enemy, or in partnership with an alien enemy; and as the facts did not support the argument which was to be raised upon them, and did not form an ingredient in the judgment of the court, I forbear to state them. IV. The other judges delivered their opinions feriatim, concur- CHA P. ring unanimously with his Lordship; and there was judgment for the plaintiff. By what has been faid it appears, that before the infured can recover against the underwriter in cafes of detention, he must first abandon to the infurers his right, and whatever claims he may have to the goods infured. This point will be fully treated of in the chapter of abandonment. It will be fufficient here to remark, that in moft of the countries on the continent, the time for abandonment in fuch cafes is fixed to a limited period after the event has happened. In Bilboa and France the ceffion must be made within fix 2 Magens 175: 416. months, if the lofs has happened in any part of Europe; and within a year, if in a more distant country. A fimilar 2 Magens 23. regulation as to time is established by the ordinances of Middleburgh in Zealand. By the law of England, there is no pofitive rule on this fubject, confequently an infured has a right to abandon immediately upon hearing of the detention. But it fhould feem, that in order to prevent the under- See the cafe of writers from being haraffed, the infured ought to make his Mitchell v. election, whether he will abandon or not, within a reafon- p. 172. where able time; and what that shall be, must in general depend been confiderupon the circumftances of the cafe. Edie, poft, ch. 9: this point has ed and fettled N СНАР. V. Cowp. 154. Of Loffes by the Barratry of the Mafter or Mariners. IT does not feem to have been any where precifely afcer tained, from what fource the term barratry has been de rived. Indeed the derivations of barratry have rather tended to confound, than to throw any light upon the fubject: for its root has been fo frequently altered, according to the caprice of the particular writer, that it is impoffible to decide which is the true one. The English however, moft probably have taken it from the French, barrateur, which is to be traced to the Italians: but where the latter found this word is a thing by no means clear. Whatever the derivation may be, the word feems to have been originally introduced into commercial affairs by the Italians, who were the first great traders of the modern world. In the Italian dictionary, the word barratrare means to cheat; and whatsoever is done by the master, amounting to a cheat, a fraud, a cozening, or a trick, is barratry in him. Poftle thwaite, in his dictionary of trade and commerce, defines bar 1 vol. p. 214. ratry thus: barratry is committed when the master of the. ship, or the mariners, cheat the owners, or infurers, wheth"er it be by running away with the fhip, finking her, de"ferting her, or embezzling the cargo." In another place, the fame author obferves, "one fpecies of barratry in a "marine fenfe is, when the master of a fhip defrauds the owners or infurers, by carrying a fhip a course different " from their orders." These definitions are so very comprehenfive, that they feem to take in every cafe of barratry, known to the law of England, as far as we can collect the principles from the several cafes that have been decided. From a review of those cases, and they are but few, I vol. 136. I Stra. 581. V. 84 it appears that any act of the mafter, or of the mariners, CHA P. It is not neceffary, in order to entitle the infured to recov- Cowp. 155. I But the loss, in confequence of the act of barratry, muft Lockyer v. happen during the voyage infured, and within the time limited Offley, I Term Rep. p. 252. by the policy, otherwife the underwriters are difcharged. Vide ante, ch. Thus, if the captain be guilty of barratry by fmuggling, and 2. P. 31. the ship afterwards arrive at the port of destination, and be there moored at anchor twenty-four hours in good fafety; the underwriters are not liable, if, after this, fhe fhould be seized for that act of smuggling. From the above defcriptions of barratry, it will appear, that if the act of the captain be done with a view to the benefit of his owners, and not to advance his own private intereft, no barratry has been committed. I have faid, that to conftitute barratry, it must be without the knowledge or confent of the owners; because nothing can be fo clear as this, that no man can complain of an act done, to which he himself is a party. But it is material to confider, in what fenfe the word owner is to be understood, in this definition. It has been argued, that if A. be the owner of a fhip, and Cowper 154. let it out to B. as freighter, who infures it for the voyage; and if the deviation be with the knowledge of A. though unknown to B. the infurer is difcharged. But the court over-ruled that argument, and faid, that in order to difcharge the infurer from the lofs by barratry, it must appear, that the act done was by the confent, or with the privity of the owner, pro hac vice, that is, the freighter, the perfon infured. |