In the case of Budgett v. Binnington,' the plaintiffs being the consignees under a bill of lading, incorporating a clause in the charter-party, fixing the number of lay-days for unloading, and allowing other days for demurrage, sought to recover from the defendants, who were the shipowners, a sum of money paid to them under protest in respect of a claim for demurrage. Neither the bill of lading nor the charter-party said anything about dock strikes. By the custom of the port of Bristol, cargoes were discharged by the joint act of the shipowner and consignees. There being a strike among the labourers employed by the ship, as well as by the consignees during the lay-days, the unloading was prevented and could not be continued until after the expiration of the lay-days. It was held, that the contract by the freighter to pay demurrage to the shipowner, if the ship is not unloaded at the expiration of a fixed number of lay-days, is an absolute one, subject to the shipowner doing nothing to prevent the unloading; and, consequently, where the ship is being unloaded by the joint act of the shipowners and freighters, and under a contract between the shipowners and stevedores, the latter employ the necessary dock labourers, and delay in unloading is caused by a strike of the labourers employed on behalf of the shipowners and freighter, the freighter is not relieved from his liability to pay demurrage, as the shipowners have no control over the labourers.

1 L. R. 25 Q. B. D. 320; L. R. (1891) 1 Q. B. 35.

Where a strike is a circumstance arising from the application of the custom of the port, and delay is consequently occasioned by reason of that custom, the charterers are not liable under the charter-party, for the delay in the discharge of the cargo. Thus, where by a charter-party, the plaintiff's ship was to proceed to a port named with the cargo, and there "be discharged with all despatch as customary, and ten days on demurrage over and above said lying days at 6d. per net register ton per day." The discharge of the cargo was delayed for four days owing to a strike of dock labourers employed by the dock company, who, by the custom of the port, did the work of discharge both for the shipowners and the charterers-It was held, that the charterers, were not liable for the delay, the words "to be discharged with all despatch as customary," meaning that the cargo was to be discharged with all reasonable despatch, having regard to the actual circumstances and manner of discharging cargo customary at the port of discharge, and that no definite time was fixed by the charter-party within which the cargo was to be discharged.1

The defendants chartered the plaintiffs' ship for carriage of a cargo of coal from the Tyne to London to the Pool, Regent's Canal, Victoria Dock, the Derricks, or Beckton, as ordered, and deliver the cargo to the order of the charterer. Amongst the exceptions in the clause as to the lay-days for load

1 Castlegate Steamship Co. v. Dempsey, L.R. (1892) 1 Q.B. 854; Hick v. Raymond, L. R. (1893) A. C. 22.

Barratry.

ing and discharging the cargo was " strikes of workmen." The defendants ordered the ship to the Regent's Canal. Before the arrival of the ship, a strike of the coal-porters there commenced, but although the defendants might have stopped the ship at Gravesend and ordered her to some other berth to discharge, they did not do so. The ship accordingly arrived at the Regent's Canal, but could not be discharged in consequence of the strike. In an action to recover damages for demurrage and detention of the ship at the port of discharge:-Held, that the defendants were entitled under the charter-party to order the ship to the Regent's Canal, and to adhere to that order, notwithstanding the strike, and that the delay in discharging the ship having been caused by the strike, they were protected from liability for demurrage or detention by the exception in the charter-party. Lord Esher, M. R., saying:-The mere fact of a strike at the port of discharge would not of itself exonerate the charterers from liability for delay, if by any reasonable efforts on their part they could have taken delivery.1

2

In Atkinson v. Great Western Insurance Co., in the New York Court of Common Pleas, after an elaborate discussion of the history and meaning of the word, Daly, C. J., said:-That barratry "as a marine term means an intentional injury to the vessel, or to the cargo, or some unlawful, fraudulent, or criminal act, whereby, or in the prosecution of which, loss or injury arises to the owners of the

1 Bulman v. Fenwick, 63 L. J. Q. B. 123.

227 L. T. 103.

vessel, or of the cargo, or to the insurers; and docs not embrace, what in the law is denominated negligence."

Barratry may be termed any fraudulent or criminal conduct against the owner of the ship or goods by the master or mariners, in breach of the trust which is either expressly or impliedly reposed in them, and to the injury of the owners; although it may not be done with intent to injure them, or to benefit at their expense, the master or mariners, and therefore a master is not warranted in going into an enemy's settlement to trade, even where permitted, though his cargo could be more speedily and cheaply completed there: and if the ship is seized and confiscated in consequence of such act, the same is barratrous, for, trading with an enemy is an illegal act, except in this and similar cases, fraud is a necessary ingredient in barratry. It has been held that fraud and barratry were in effect words of coextensive import; that is, that barratry included every species of fraud in relation of the master to his owners, by which the subject matter insured might be endangered. Thus, if the master sail out of port without paying port dues, whereby the goods are forfeited, lost or spoiled, that is barratry.1

1

3

Barratry is an act of fraud which in the sense used in policies can be committed only against the

1 Earle v. Rowcroft, 8 East. 126.

2 Phyn v. Royal Ex. Ass. Co., 7 T. R. 505.

Knight v. Cambridge, 1 Str. 581; Robertson v. Ewer, 1 T. R. 127,

Stamma v. Brown, 2 Str. 1174.

owner of the ship,' and is not directed against the owner of the goods which are lost; and however innocent may be the owner of the goods who seeks to recover against the underwriter, yet if the owner of the ship concurs in the act which caused the loss, it takes from it the character of barratry; neither will it be so where, owing to the negligence of the owner, the mariners take smuggled goods on board, in consequence of which she is seized and confiscated, but otherwise where the master smuggled goods on board without the owner's knowledge.3

Where the owner of a ship, by his contract, places the entire vessel for a time under the sole control of the freighter, during that time any act of the owner of the vessel, done in fraud of the freighter is an act of barratry. It equally amounts to barratry if the master, being a part-owner, fraudulently sells the ship and cargo, and applies the proceeds to his own use.5

6

A deviation if for a fraudulent purpose, is barratry; and not otherwise. If the master is compelled by the mutinous violence of the crew, to deviate from his course, this will be barratry of the mariners, but not of the master. It will be barratry if the vessel is lost by the fraudulent miscon

1 Nutt v. Bourdieu, 1 T. R. 323.

2 Pipon v. Cope, 1 Camp. 434.

3 Havelock 2. Hancill, 3 T. R. 277; Cory v. Burr, L. R. 8 App. Cas. 393.

* Soares v. Thornton, 7 Taunt. 627.

Jones v. Nicholson, 23 L. J. Ex. 330.

Dixon v. Reid, 5 B. & A. 597; Ross v. Hunter, 4 T. R. 33.