barratry of the master? He would have lost his assurance by the fraud of the master; for, it was clearly a deviation, and the assured cannot come upon the underwriters for a loss in consequence of a deviation. Therefore, I am clearly of opinion, that this smuggling voyage was barratry of the master."-Vallejo and another v. Wheder,

C. R. 143.

Breach of an embargo is an act of barratry in the master. This was holden by Mr. Justice Buller in the case of Robertson v. Ewer, before mentioned.

Barratry implies something done er maleficio, contrary to the duty of masters and mariners in the relation in which they stand to the owners of the ship; and, although they may make themselves liable to the owners of goods, for misconduct, yet they cannot for barratry, which can be committed against the owners of the ship, and them only. By Lord Ellenborough, 5 E. R. 126. An action was brought by the assignees of a bankrupt, on a policy of assurance on goods, laden in the ship Rachette, for a voyage from London to Rochelle. The cause was tried before Mr. Justice Buller, when a verdict was found for the plaintiff, subject to the opinion of the Court upon the following case: That the bankrupt shipped on board the vessel in question goods to the amount of £1800 for Rochelle.-That the captain, by the insti gation and direction of Messrs. Le Grand, the owners of the ship, went with the ship and cargo to Bordeaux, instead of Rochelle, where the cargo was sold by the agent of Le Grands. That a petition was presented by the plaintiffs to the lieutenant-general of the admiralty of Guienne, stating the whole of the transaction between the bankrupt and the owners and captain; that, in order to procure a landing at Bordeaux, their original destination being to Rochelle, false bills of lading were made out by the captain, at the instigation of Le Grand; the petition concluded with a prayer for relief. In consequence of this petition, a decree was passed, declaring René Guiné (captain) guilty of the crime of barratry of the master, for having signed false bills of lading, &c. For reparation whereof, it sentenced him to perpetual service in the galleys. It also declared Dominique Le Grand guilty, and convicted of having been an instigator and accomplice of the said barratry of the master, and adjudged him to five years' service in the galleys; and also decreed that the said René Guiné and Le Grand should pay to the plaintiffs the amount of their loss and all charges and cost. The question on this case is, whether the plaintiff's were entitled to recover against the assurer ?

Lord Mansfield delivered the opinion of the Court." The general question here is on the construction of the word barratry in a policy of assurance. It is somewhat extraordinary that it should have crept into assurances, and still more, that it should have continued in them so long; for, the underwriter assures the conduct of the captain, whom he does not appoint, and cannot dismiss, to the owner, who can do either. The point to be considered is, whether barratry, in the sense in which it is used in our policies of assurance, can be committed against any but the owners of the ship. It is clear beyond contradiction that it cannot; for, barratry is something contrary to the duty of master and mariners, the very terms of which imply, that it must he in the relation in which they stand to the owners of the ship. The words used are the masters and mariners, which are very particular, An owner cannot commit barratry. He may make himself liable by bis fraudulent conduct to the owners of the goods, but not as for

barratry. And, besides, barratry cannot be committed against the owner, with his consent; for, though the owner may become liable for a civil loss by the misbehaviour of the captain, if he consents, yet this is not barratry. Barratry must partake of something criminal, and must be committed against the owner by the master or mariners. In the case of Vallejo v. Wheeler, the Court took it for granted, that barratry could only be committed against the owner of the ship. The point is too clear to require farther discussion."-Nutt and others, assignees of Hague v. Bourdieu, 1 T. R. 323.

If the owner be also the master of the ship, any act, which, in another master, would be construed barratry, cannot be so in him; but, where the person, who acts as master, is proved to have carried her out of her course for fraudulent purposes of his own, this is primá facie evidence of barratry; and it is incumbent on the underwriter, if he can, to prove that such person was owner as well as master.— Ross v. Hunter, 4 T. R. 33.

If the parties insert in the policy that the assurance shall be upon the ship, in any lawful trade, and the captain commit barratry by smuggling, the underwriters are answerable. For, otherwise, the word barratry would be struck out of the policy; and most clearly the stipulation in the policy, respecting the employment of the ship in a lawful trade, must mean, as was said by Lord Kenyon, in delivering the unanimous opinion of the Court, the trade on which she is sent by the owners.-Havelock v. Hancil, 3 T. R. 277.

A very accurate definition of one species of barratry has been laid down in the case of Ross v. Hunter. This was an assurance on goods on board the Live Oak, at and from Jamaica to New Orleans. She sailed on the voyage assured in May, 1783; and arrived in June following, at the mouth of the river Mississippi. When the captain had got thus far, he dropped anchor; and went in his boat up the river to New Orleans; and, on his return, without carrying the ship to her port of destination, stood away for the Havanna; after his departure whence, he was never afterwards heard of. A verdict was found for the plaintiff against the underwriter. Mr. Justice Buller said, in one sense of the word, barratry is a deviation by the captain for fraudulent purposes of his own. Then the question in this case is, whether the captain did deviate with a fraudulent view? The jury have thought that he had a fraudulent intention, and therefore the verdict is right.-4 T. R. 33.

A master endowed with a discretionary power of making the best purchases with despatch, will not be warranted in trading with an enemy's settlement (although with their permission) unauthorized by his owners, in consequence of which the ship was seized and confiscated. Nor does it make any difference that the benefit of his owners was intended; but the act is barratry.-Earle v. Rowcroft, 8 E. R.

127.

So also, if the master of a ship, contrary to the instructions of his owner, cruise for and take a prize, and the vessel is afterwards lost, he is guilty of barratry, even though he prosecute the prize in the court of admiralty in the name of himself and his owner, and though the owner had procured a letter of marque solely with a view to encourage seamen to enter, and without any intention of using it for the pur poses of cruising; for, whatever is done by the captain to defeat or delay the performance of the voyage, is barratry in him, it being to the prejudice of the owners; and, though the captain might conceive what

he did was for their benefit, yet, if he acted contrary to his duty to them, it is barratry.-Moss v. Byron, 6 T. R. 379.

It has been, however, contended, that if a vessel deviated from the voyage assured, through the ignorance of the captain, it amounted to barratry. But the court of King's Bench, after considerable argument, were unanimously of opinion, that there must be fraud to constitute barratry. Plyn v. R. Erch. Ass. Co. 7 T. R. 505.

If the owner of a ship let to freight takes the command of her, and wilfully runs her ashore, this is barratry against the freighter.-Soares v. Thornton, 7 Taunt. 627.

6. PARTIAL LOSSES AND ADJUSTMENT.

A total loss is a technical term, which does not always mean that the property assured is irrecoverably lost or gone; but that, by some of the perils mentioned in the policy, it is lost for the particular voyage ensured, or that it is so much injured as to justify him in abandoning it to the assurer, and in calling upon him to pay the whole amount of his assurance, as if a total loss had actually happened. But a total loss is so intimately blended with the doctrine of abandonment, that we shall refer what may be said on the subject till we come to the head of ABANDONMENT. Here it will be sufficient to remark, that, in case of a total loss, literally so called, the prime cost of the property assured, or the value mentioned in the policy, must be paid by the underwriter, at least as far as his proportion of assurance extends. The assurer has nothing to do with the market: he has no concern in any profit or loss which may arise to the merchant from the sale of the goods. If they be totally lost, he must pay the value of the thing he assured at the outset ; he has no concern in any subsequent value. So, if part of the cargo, capable of a several and distinct valuation at the outset, be totally lost, as, if there be one hundred hogsheads of sugar, and ten happen to be lost, the assurer must pay the prime cost of those ten hogsheads, without any regard to the price for which the other ninety may be sold.

66

The word average, in policies, has two significations; it means “a contribution to a general loss:" and it is also used to signify “a particular partial loss." That which means "a contribution to a general

loss," will be treated of in the next division.

Partial loss (the subject of our present inquiry) implies a damage which the ship may have sustained, in the course of her voyage, from any of the perils mentioned in the policy; or, when applied to the cargo, it means the damage which the goods may have received, without any fault of the master, by storm, capture, stranding, or shipwreck; although the whole, or the greater part thereof, may arrive in port. These partial losses fall upon the owners of the property so damaged, who, if insured, must be indemnified by the underwriter; for, as it was expressed by Sir William Scott in one case, “damage incurred by, or for, one particular part of the concern, be it ship or cargo, that part must bear alone." 1 Rob. 293. In cases when the average arises from repairs done to the ship, the expenses to be placed to the account of general contribution, must be strictly confined to the repairs absolutely neces sary for enabling the ship to prosecute her voyage, and to the unloading, if that were necessary, in order to make such repairs. Plummer v. Wildman, 4 M. & S. 482. The underwriters of London expressly declare, as appears from a memorandum at the foot of the policy, that they will not answer for partial losses, not amounting to £3 per cent.

This clause was intended to prevent the underwriters from being continually harassed by trifling demands. But, at the same time that they provide against trifling claims for partial losses, they undertake to indemnify against losses, however inconsiderable, that arise from a general average.

When we speak of the underwriters being liable to pay, whether for total, or partial, losses, it must always be understood, that they are liable only in proportion to the sums which they have underwritten. Thus if a man underwrites £100 upon property valued at £500, and a total loss happen, he shall be answerable for £100, and no more: that being the amount of his subscription; if only a partial loss, amounting to £60 or £70 per cent. upon the whole value, he shall pay £60 or £70, being his proportion of the loss.

As to the question of how the proportion of damage is to be ascertained, the great leading case is that of Lewis and another v. Rucker, 2 Burr. 1167, from which we give copious extracts.

A rule having been obtained by the plaintiffs, who were assured, for the defendant, (the assurer,) to show cause why a verdict, obtained by him, should not be set aside, and a new trial had :

The Court, after hearing the matter duly debated, took time to advise, and their unanimous opinion was delivered, to the following effect, by

Lord Mansfield." This was an action brought upon a policy, by the plaintiffs, for Mr. James Bourdieu, upon the goods on board a ship, called the Vrow Martha, at and from St. Thomas's Island to Hamburgh, from the loading at St. Thomas's Island till the ship should arrive and land the goods at Hamburgh. The goods, which consisted of sugars, coffee, and indigo, were valued; the clayed sugar at £30 per hogshead; the Muscovado sugars at £20 per hogshead; and the coffee and indigo were likewise respectively valued. The sugars were warranted free from average, (that is, partial loss,) under £5 per cent., and all other goods free from average under £3 per cent., unless general, or the ship be stranded.

In the course of the voyage, the sea-water got in; and when the ship arrived at Hamburgh, it appeared that every hogshead of sugar was damaged. The damage the sugars had sustained made it necessary to sell them immediately; and they were accordingly sold; but the difference between the price which they brought, on account of the damage, and that which they might then have been sold for at Hamburgh, if they had been sound, was as £20. 0s. Sd. per hogshead is to £23. 78. 3d. per hogshead: that is, if sound, they would have been £23. 78. 8d. per hogshead: as damaged, they were only worth £20. Os. 8d. per hogshead.

The defendant paid money into court, by the following rule of estimating the damages: he paid the like proportion of the sum, at which the sugars were valued in the policy, as the price of the damaged sugars bore to sound sugars at Hamburgh, the port of delivery. And the only question was, by what measure or rule the damage, upon all the circumstances of the case, ought to be estimated?

The special jury found the defendant's rule of estimation to be right, and gave their verdict for him.

And it is now the duty of the court to say, whether the jury have estimated the damage by a proper measure. This is the rule by which it was estimated.

"The defendant takes the proportion of the difference between sound and damaged, at the port of delivery, and pays that proportion upon

the value of the goods specified in the policy; and has no regard to the price in money, which either the sound, or the damaged, goods, bore in the port of delivery. He says, the proportion of the difference is equally the rule, whether the goods come to a rising, or a falling market. For instance, suppose the value in the policy to be £30; the goods are damaged, but sell for £40,-if they had been sound they would have sold for £50; the difference then between the sound, and damaged, is a fifth, consequently the assurer must pay a fifth of the prime cost, or value in the policy, that is £6,-e converso, if they come to a losing market, and sell for £10, being damaged, but would have sold for £20, if sound, the difference is one half: the assurer must pay half the prime cost, or of the value of the policy, that is £15.

"To this rule an objection has been made: that it is going by a different measure in case of a partial loss, from that which governs in case of a total: for, upon a total loss, the prime cost or value in the policy must be paid. The answer of such objection is, that the distinction is founded on the nature of the thing. Assurance is a contract of indemnity, against the perils of the voyage, to the amount of the value in the policy; and, therefore, if the thing be totally lost, the assurer must pay the whole value which he assured at the outset. But where a part of the commodity is spoiled, no measure can be taken from the prime cost to ascertain the quantity of the damage sustained. The only way is, to fix whether the thing be a third, or a fourth, worse than the sound commodity; and then you pay a third, or a fourth, of the prime cost, or value of the goods so damaged.

"We are of opinion that, the rule by which the jury have gone is the right measure."

Wherever there is a specific description of casks or goods, the rule of estimating the average is as above stated; but, in a subsequent case, the property, which consisted in various goods taken from an enemy, was valued at the sum assured, and part was lost by perils of the sea; consequently the same rule could not be adopted, on account of the nature of the thing assured. The only mode was, to go into an account of the whole value of the goods, and to take a proportion of that sum to the amount of the goods lost.-Le Cras v. Hughes, Easter Term, 22 Geo. III.

Since the 10th Geo. II. the constant usage has been to let the valuation fixed in the policy remain, in case of a total loss; unless the defendant can show that the plaintiff had a colourable interest only, or that he has greatly overvalued the goods; but a partial loss opens the policy, so that the value of the goods must be proved.

Some goods are in their nature perishable; and therefore the underwriters have, by express words inserted in their policy, declared, that they will not be answerable for any partial loss happening to corn, fish, salt, flour, and seed, unless it arise by way of a general average, or unless the ship be stranded. Upon this clause it is necessary to observe, that corn is a general term, and includes many particulars; peas and beans have been held to come within the meaning of the word.-Mason v. Skurray, Sittings after Hilary, 1780.

But in a trial, at Guildhall, in the Common Pleas, Mr. Justice Wilson was of opinion, that the term salt did not include saltpetre.— Journu v. Bourdieu, Sitt. after Easter Term, 27 Geo. III.

There cannot be a total loss of corn, fish, salt, fruit, flour, or seed, but by the absolute destruction of the thing assured; for, while it specifically remains, though wholly unfit for use, and though the loss of it