840. 2 Salk.444. In evidence upon the trial in an action upon a Green v. policy of infurance, the cafe appeared to be, that Young. the infurers agreed to infure the fhip from her 2 Ld. Raym. arrival at in Jamaica during her voyage to London; and an embargo was laid upon the fhip by the government; who afterwards feized the fhip, converted her into a firefhip, and offered to pay the owners. The queftion was, if this would excufe the infurers? Holt, Chief Juftice, feemed to incline, that it would not, and that this was within the words, detention of princes, &c. but he gave no abfolute opinion, the caufe having been referred to three of the jury. 61. The very general words made ufe of in policies. go to fupport the idea entertained by Lord Holt, and although I have found no cafe where this point was exprefsly confidered, yet it seems to have been taken as fettled in many cafes, which have come before the court. One inftance im- Vide ante p. mediately occurs, in the cafe of Robertfon v. Ewer, which was cited in a former chapter. There an embargo had been laid by Lord Hood on all fhipping at Barbadoes; and it never was doubted that the infurer was liable for any lofs which might have been sustained by fuch detention, provided the lofs had happened to any of the property fpecifically infured. It is true, that it is declared 2 Magens by the ordinances of France, " that if any fhip 176. "be stopped by our orders in any of the ports of "our kingdom before the voyage be begun, the in"fured fhall not, on account of this detention, "abandon or cede their effects to the infu"rers." A fimilar regulation is to be found in 2 Magens Bilboa, by which it is ordained," that if 417. fhip or fhips infured, with or without goods, any " shall be detained by his majesty's order, in the ports of thefe kingdoms of Spain, before the "commencement of the voyage fhe is bound on, it "fhall be judged that no ceffion can be made "of them, but rather the infurance in fuch cafe ought to be held null." If these ordinances, when * Magens 175.416. when they use the words, " commencement of "the voyage," mean commencement of the risk infured, they are certainly right; because the underwriter can never be anfwerable for any thing happening before that period: but furely when the risk insured is "at and from," if the fhip be detained by the order of the fovereign before her departure for the voyage, but after the risk commenced, the infurer is liable for the damage occafioned by fuch detention, as the words in the policy do in themselves import no reftriction to restraints and embargoes by foreign potentates only. 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 months, if the lofs has happened in any part of Europe; and within a year, if in a more diftant 2 Magens 23. country. A fimilar regulation as to time is eftablifhed by the ordinances of Middleburg 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 should seem, that in order to prevent the underwriters from being harraffed, the infured ought to make his election, whether he will abandon or not, within a reasonable time; and what that fhall be, muft in general depend upon the circumftances of the cafe. CHAP 93 CHAPTER THE FIFTH. Of Loffes by the Barratry of the Mafter or T does not feem to have been any where precisely ascertained, from what fource the term barratry has been derived. Indeed the derivations of barratry have rather tended to confound, than to throw any light upon the subject 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, most 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 Cowp. 154feems to have been originally introduced into commercial affairs by the Italians, who were the firft great traders of the modern world. In the Italian dictionary, the word barratrare means to cheat; and whatsoever is done by the mafter amounting to a cheat, a fraud, a cozening, or a trick, is barratry in him. Poftlethwaite, in his dictionary of trade and commerce, defines bar ratry thus: " barratry is committed when the 1 vol. p. 214. "master of the fhip, or the mariners, cheat the се owners, or infurers, whether it be by running away with the ship, finking her, deferting her, " or embezzling the cargo." In another place, the fame author obferves," one fpecies of bar-1 vol. 136. ratry in a marine fenfe is, when the master of "a fhip defrauds the owners or infurers, by car"rying a fhip a courfe different from their or"ders." These definitions are fo very compre henfive, that they seem to take in every cafe of barratry, known to the law of England, as far as WC I Stra. 581. 2 Stra. 1173. Cowp. 143. Term Rep. 323. Cowp. 155. Lockyer v. for Fafter, 26 Geo, 3. we can collect the principles from the feveral cafes that have been decided. From a review of thofe cafes, and they are but few, it appears, that any act of the mafter, or of the mariners, which is of a criminal nature, or which is grofly negligent, tending to their own benefit, to the prejudice of the owners of the fhip, without their confent or privity, is barratry. It is not neceffary, in order to entitle the infurer to recover for barratry, that the lofs fhould, happen in the act of barratry; that is, it is immaterial, whether it take place during the fraudulent voyage, or after the hip has returned to the regular courfe; for the moment the fhip is carried from its right track with an evil intent, barratry is committed. But the lofs, in confequence of the act of barratry, muft happen during the voyage infured, and Term Rep. within the time limited by the policy, otherwife the underwriters are difcharged. Thus, if the captain be guilty of barratry by fmuggling, and the fhip afterwards arrive at the port of deftinach. 2. p. 34, tion, and be there moored at anchor twenty-four bours in good fafety; the underwriters are not liable, if, after this, fhe fhould be feized for that act of fmuggling. p. 252. Vide ante 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 definiCowper 154. tion. It has been argued, that if A. be the owner of a fhip, and let it out to B. as freighter, who infures it for the voyage; and if the deviation be with the knowledge of A. though un known known to B. the infurer is difcharged. But the court over ruled that argument, and said, that, in order to discharge 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. These principles being advanced, it will now be fufficient to fhew that they are fupported and eftablished by the cafes which have been decided. But before they are quoted, it will be proper to obferve, that by the pofitive regulations of Middle- 2 Magens 73 burg, Amfterdam, Hamburgh, and other countries 130. 215. in Europe, the underwriters are univerfally held to be answerable for loffes arifing by the barratry of the mafter or mariners. By the ordinances of 2 Magens 89. 2 Ld. Rayın. 1349 In an action upon the cafe on a policy of infu- Knight v. rance, on the fhip Riga Merchant," at and from Cambridge. "Port Mahon to London, against the barratry of "the mafter (among other things), and all other Stra. 581. dangers, damages and misfortunes which "fhould happen to the prejudice and damage of the |