Barratry.

ing and discharging the cargo was " strikes of work. men." 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

In Atkinson v. Great Western Insurance Co.,2 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.

27 L. T. 103.

vessel, or of the cargo, or to the insurers; and does 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.*

3

2

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.

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

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

* Stamma v. Brown, 2 Str. 1174.

owner of the ship,1 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

2

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."

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

8

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

Pipon v. Cope, 1 Camp. 434,

3 Havelock v. 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.

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

duct of the master.1 Also if the master acts contrary to instructions, though for the benefit of the owner, in consequence of which the vessel is lost.? So also will an intentional breach of blockade without owner's authority be an act of barratry.3

As the shipowner is exempted from liability by the present exception from all losses arising from the barratry of the master or mariners, the owner of the goods looks to the underwriter in such cases, and the instances are very rare in which the question under the charter-party or bill of lading, has been judicially determined: and in those cases where the insurer has successfully defended an action on the policy on the ground that the loss did not arise from the barratry of the master or mariners, the same has been covered by other exceptions in the bill of lading.1

It has been ruled that an act of the master, not amounting to a fraudulent violation or wilful abandonment of his duty to his owner is not barratry,5 nor is the stowage of goods on deck in contravention of the shipper's orders a barratrous act.

6

Where the master has acted with the assent of

the owners, his acts are not barratrous.

But the

mere fact of his being a part-owner will not pre

1

Arcangelo v. Thompson, 2 Camp. 620.

2 Moss v. Byrom, 6 T. R. 379.

3 Goldschmidt v. Whitmore, 3 Taunt. 508.

* Cossman v. The British America Assurance Co., 57 L. J. P. C. 17. Williams v. Suffolk Sea Ins. Co., 3 Summers 514.

Atkinson v. G. W. Ins. Co., 27 L. T. 103.

Nutt v. Bourdieu, 1 T.R. 323; Hobbs v. Hannam, 3 Camp. 93; Stamma v. Brown, 2 Str. 1174.

Fire.

vent the possibility of his committing barratry as against the other part-owners. And if the ship has been chartered, so as to give the charterer possession and control of her for the time being, acts may be committed against him which will be barratrous, although the shipowner may have ordered or assented to them; a loss by scuttling would, under a policy on goods, be barratry, although the scuttling were done with the knowledge of the shipowner, if it was without the knowledge of the freighter.3

The exception of "fire" is important in relation to the liability of the common carrier for goods destroyed by that means, though accidentally; and, as it is no protection where there is actual fault or privity on the part of the owner, it coincides in effect with the statutory limitation contained in the Merchant Shipping Act of 1854,5 which provides : "That no owner of any sea-going ship, or share therein, shall be liable to make good any loss or damage that may happen without his actual fault or privity, (that is to say) 1. Of or to any goods, merchandize, or other things whatsoever, taken in or put on board any such ship, by reason of any fire happening on board such ship," and the exception will extend beyond this to every owner of a ship,

1 Jones v. Nicholson, 10 Ex. 28.

2 Soares v. Thornton, 7 Taunt. 627.

3 Ionides v. Pender, 27 L. T. 244; The Chasca, L. R. 4 A. & E. 446. Forward v. Pittard, 1 T. R. 27; Trent Navigation Co. v. Wood, 4 Doug. 287.

17 & 18 Vict. c. 104, s. 503.