CHAPTER V. OF BARRATRY. (Ss.) 1. Definition of Barratry. 2. Acts of Barratry punishable by Statute. 1. THE term Barratry, which is often used as well by foreign writers as those of our own nation, is generally understood in this and in most other countries to denote a fraudulent act of the master or mariners committed to the prejudice of the owners of the ship (a). In France, it is often used in a more enlarged sense, and comprehends acts of mere ignorance or unskilfulness not accompanied with a fraudulent design. *To our definition of barratry, it is not essential that the act should be done by the master for his own benefit, or with the intent of injuring his owners. Thus, if he sail out of port without paying port duties, whereby the goods are forfeited, lost, or spoiled (b); or if he cruise in quest of prizes without proper authority, and contrary to the orders of his owners (c); or if he disregard an embargo (d); or attempt a breach of a blockade (e); or be concerned in smuggling; or connive at smuggling by his mariners (f); or wilfully delay, or deviate, or run away with the ship (g), and sell her or part of her cargo (h), he is guilty of barratry. And where a master had general instructions to make the best purchases with despatch, it was considered that such instructions must mean legal purchases and legal despatch, and that going into an enemy's settlement to trade, although his cargo could be more speedily and cheaply completed there (the ship being seized and confiscated on account of it), was barratry (i). Nor was it thought to make any difference that he intended thereby to promote his owners' interest. It is not for him to judge in cases not entrusted to his discretion, or to suppose that he is not breaking the trust reposed in him, but acting meritoriously, when he endeavours to advance the interests of his owners by means which the law forbids, and which his owners must be taken to have forbidden, not only from what ought to be, and therefore must be presumed to have been, their own sense of public duty, but also from a consideration of the risk and loss likely to follow (a) Emerigon, tom. 1, 366. See the cases, Marshall's Law of Insurance, 518. (b) In Knight v. Cambridge, 1 Stra. 581; 2 Lord Raym. 1349. Stamma v. Brown, 2 Strange, 1174. Elton v. Brogden, ibid. 1264. Phyn v. Roy. Exchange Ass. Co., 7 T. R. 505. (c) Moss v. Byrom, 6 T. R. 379. (e) Goldschmidt v. Whitmore, 3 Taunt. 508. Everth v. Hannam, 6 Taunt. 375. (f) Lockyer v. Offley, 1 T. R. 252. Pipon v. Cope, 1 Campb. 434. (g) Vallejo v. Wheeler, Cowp. 143. Roscow v. Corson, 8 Taunt. 684. (h) Dixon v. Reed, 5 B. & A. 597. Toul min v. Anderson, 1 Taunt. 227. (i) Earl v. Rowcroft, 8 East, 126. * from the use of such means. But an error of judgment in matters entrusted to his discretion, and not contrary to law, admits of a different consideration; and accordingly, when in an action on a policy of insurance, the loss being alleged by barratry of the master, it appeared that his ship having sprung a leak, he took her into port, and before any survey made, broke up her ceiling and end-bows with crowbars, thereby injuring and weakening her, Lord Ellenborough, addressing the counsel for the plaintiff, said, "To constitute barratry, which is a crime, the captain must be proved to have acted against his better judgment; as the case stands, there is a whole ocean between you and barratry" (k). Barratry may be committed with the privity of the freighters against the owner, or by the owners or master against the general freighter (7). One part-owner, being master, may commit barratry against another (m), but if the master be sole owner, he cannot commit barratry * against himself (n). 2. But though this word, taken even in the more limited sense in which it is used in this country, does not denominate any crime punishable by law, yet several offences committed by the master and mariners, in violation of their trust and duty, and which fall within the definition of barratry, are punishable by different statutes, which I shall now proceed to mention. First, as to the offence of wilfully destroying the ship. This is still, under circumstances of aggravation, punishable with death, and it is enacted: * "That whosoever shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, either with intent to murder any person, or whereby the life of any person shall be endangered, shall be guilty of felony, and being convicted thereof shall suffer death (o). "That whosoever shall unlawfully exhibit any false light or signal, with intent to bring any ship or vessel into danger, or shall unlawfully and maliciously do anything tending to the immediate loss or destruction of any ship or vessel in distress, shall be guilty of felony, and, being convicted thereof, shall suffer death (p). "That whosoever shall unlawfully and maliciously set fire to, or in anywise destroy any ship or vessel, whether the same be complete or in an unfinished state, or shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner or part-owner of any such ship or vessel, or of any goods on board the same, or any person that hath underwritten. * (k) Todd v. Ritchie, 1 Stark. Rep. 240, (1) Vallejo v. Wheeler, Cowp. 143. Soares v. Thornton, 7 Taunt. 627. (m) Jones v. Nicholson, 10 Exch. 28. Boutflower v. Wilmer, 2. Selw. 976. Bell's Principles of the Law of Scotland, p. 188. (n) Ross v. Hunter, 3 Term R. 33. Nutt v. Bourdeaux, 1 T. R. 323. Stamma v. Brown, 2 Strange, 1173. was a vessel within the meaning of the Act.R. v. Bowyer, 4 C. & P. 559. Upon an indictment for firing a barge, Alderson, J., said, "that if the prisoner was convicted, he would take the opinion of the Judges, whether a barge was within the meaning of the statute."-R. v. Smith, 4 C. & P. 569; Rex v. Philp, 1 Moo. C. C. 263; and Rex v. Neville, ib. 458. The offence may be committed by one of the part-owners.-Reg. v. Wallace, Car, and Marsh, 200. (p) 7 Wm. 4, and 1 Vict. c. 89, s. 5. * or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years (7). "That whosoever shall by force prevent or impede any person endeavouring to save his life from any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore (whether he shall be on board, or shall have quitted the same), shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years (r). "That whosoever shall unlawfully and maliciously destroy any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandise, or articles of any kind, belonging to such ship or vessel, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding * three years" (8). 3. Secondly, as to the offences of running away with the ship or cargo, and of making a revolt in the ship. By a statute passed in the reign of King William the Third (t), it is enacted, "That if any commander or master of any ship, or any seaman or mariner, shall in any place where the admiral hath jurisdiction betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his or their ship or ships, or any barge, boat, ordnance, ammunition, goods or merchandises; or yield them up voluntarily to any pirate; or shall bring any seducing messages from any pirate, enemy, or rebel; or consult, combine, or confederate with; or attempt or endeavour to corrupt any commander, master, officer, or mariner to yield up or run away with any ship, goods, or merchandises; or turn pirate, or go over to pirates; or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defence of his ship and goods committed to his trust; or shall confine his master, or make or endeavour to make a revolt in the ship— he shall be adjudged, deemed, and taken to be a pirate, felon, and robber, and being convicted thereof according to the directions of this Act, shall have and suffer pains of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon the seas, ought to have and suffer" (u). By the 18 Geo. 2, c. 30, it was enacted, "That (g) Sec. 6. (r) 7 Wm. 4, and 1 Vict. c. 89, s. 7. (s) Sect. 8. (t) 11 & 12 Wm. 3, c. 7, s. 9, made perpetual by 6 Geo. 1, c. 19. *(u) By stat. 28 Hen. 8, c. 25, "For pirates," it is enacted, "that treasons, felo nies, robberies, murders, manslaughters, and other offences committed on the sea, shall be punished in the same manner as if committed on land." Provided that this Act extend not to be prejudicial or hurtful to any persons for taking any victual, cables, ropes, anchors, or * subjects or denizens committing hostilities at sea against his Majesty's subjects, or giving aid to his enemies at sea, should be tried and punished as pirates;" and now, by 7 Wm. 4, and 1 Vict. c. 88, s. 3, That persons convicted of any offence which by the acts referred to in this section amounts to piracy, shall be liable to be transported for life, or for any term not less than fifteen years, or to be imprisoned for *any term not exceeding three years." 4. Thirdly, as to the offence of not resisting pirates and enemies (~). It appears formerly to have been a practice with the Turkish pirates to restore a ship, and the goods of the master and mariners, and sometimes even to pay the whole or a part of the freight, if the ship yielded to them, and they were suffered to take out the cargo without resistance. To prevent this practice, a statute was passed so long ago as the reign of King Charles the Second, in the preamble whereof this practice is recited, and by which the master of any vessel of a burden not less than two hundred tons, and furnished with sixteen guns, is forbidden to yield his cargo to pirates of any force without resistance, on pain of being rendered incapable to take charge of any English vessel afterwards; and if the ship be released, and anything given by the pirates to the master, such gift and his share of the ship are to go to the owners of the goods. And any ship of less burden or force than beforementioned is forbidden to yield to a Turkish pirate, not having double her number of guns, without fighting (y); an extraordinary instance of the courage and skill which the Legislature of those times attributed to English seamen, and which the exploits of succeeding generations have so often and so gloriously exemplified! * By the same statute it is enacted, "That if the mariners or inferior officers of any English ship, laden with goods and merchandises as aforesaid, shall decline or refuse to fight and defend the ship, when they shall be thereunto commanded by the master or commander thereof, or shall utter any words to discourage the other mariners from defending the ship, every mariner who shall be found guilty of declining or refusing as aforesaid, shall lose all his wages due to him, together with such goods as he hath in his ship, and suffer imprisonment, not exceeding the space of six months, and shall during such time be kept to hard labour for his or their maintenance" (2). sails, which any such persons (compelled by necessity) take of or in any ship which may conveniently spare the same; so the same persons pay out of hand money or money's worth to the value of the things so taken, or deliver for the same a sufficient bill obligatory to be paid in form following; that is to say, "If the taking of the same things be on this side of the straits of Marroke, then to be paid within four months, and if beyond the straits of Marroke, then to be paid within twelve months." (a) See Hanseatic Ordinance, art. 35-37 and Roccus, Not. 70. (y) 16 Car. 2, c.6; and 22 & 23 Car. 2, c. 11. (z) 22 & 23 Car. 2, c. 11, s. 7. CHAPTER VI. OF THE LAWS FOR THE ENCOURAGEMENT AND PROTECTION OF (Ss.) 1. Legal Provision for Seamen disabled in Fight with Pirates and Enemies. 2. Corporation erected for the Relief of maimed and disabled Seamen, and of the Widows and Children of Seamen killed, slain, or drowned in the Merchant Service, or who have contributed to the Fund raised for that purpose. 3. Provisions for preserving the Health of Seamen, and for their Relief when falling sick at Sea, or hurt in the performance of their Duty. 4. Regulations for the Protection of Seamen from Imposition. 5. Offence of Master improperly discharging Mariners abroad, forcing them on Shore, or wrongfully leaving them behind; and Provisions for the Relief of Seamen abandoned, shipwrecked, captured, or cast away. 6. Regulations for the Registration of Merchant Seamen. 1. THE Legislature has not been less studious to reward and provide for deserving mariners, than to punish the fraudulent or the fearful. To this purpose it has been enacted (a), "That when any English ship shall have been defended against any pirates, enemies, or sea-rovers by fight, and brought to her destined port, in which fight any of the officers or seamen shall have been killed or wounded, it shall and may be lawful to and for the Judge of his Majesty's High Court of Admiralty, or his surrogate in the port of London, or the mayor, bailiff, or chief officer in the several outports of this kingdom, upon the petition of the master or seamen of such ship, so defended as aforesaid, to call unto him four or more good and substantial merchants, and such as are no adventurers or owners of the ship or goods so defended, and have no manner of interest therein, and by advice with them to raise and levy upon the respective adventurers and owners of the ship and goods so defended, by process out of the said Court, such sum or sums of money as himself and the said merchants, by plurality of voices, shall determine and judge reasonable, not exceeding two pounds per centum of the freight, and of the ship and goods so defended, according to the first cost of the goods; which sum or sums of money so raised shall be distributed among the captain, master, officers, and, seamen of the said ship, or widows and children of the slain, according to the direction of the Judge of the said Court, or his surrogate in the port of London, or the mayor, bailiff, or chief officer in the several outports of this kingdom, (a) 11 & 12 Wm. 3, c. 7, s. 11. See also 22 & 23 Car. 2, c. 11, s. 10. By the Hanseatic Ordinance, art. 53, a seaman disabled in defending a ship against rovers is to be maintained during his life at L the common charge of the concerned, in a general average; and the Hanseatic Ordinance of the year 1614 is to the same effect, tit. 14, art 3. |