of nations, provided it was a part of the original intention to inquire as to the continuance of the blockade at some port of the blockading country; and in this case inquiry might have been made at Monte Video, or of any of the Brazilian ships met with in the river Plata, and does not indicate any intention to violate the blockade. It is unnecessary to deliver any opinion respecting the rescue, or of the return to Liverpool. The late cases show, that a mere loss of the adventure by retardation of the voyage, without loss of the thing insured, either by its being actually taken from the ship or spoiled, does not constitute a total loss under a policy of insurance, unless by the aid and effect of abandonment" (a).

The Court also held, in the above case of Conway v. Gray (b), that, where a policy is made on behalf of the consignor, and the conduct of the consignor, or of the state to which he belongs, has taken away from him the right of enforcing it directly and effectually for his own benefit, the consignee is not at liberty to apply it to his interest, and enforce payment, as though it had been made on his account. The Court did not mean to say that a consignee may not insure they only meant, as Lord Ellenborough declared, that he was so far identified in interest and right with his consignor as not to be able to apply with effect to his own interest, which is derived from the consignor, an insurance which was made in order to cover the interest of the consignor, but which, upon the principle already stated, cannot be available for that purpose (c).

However, in the case of Usparicha v. Noble (d), it was held that an alien enemy, in respect of his birth, domiciled in this country, might protect by insurance a shipment licensed by the Crown, to the enemy's country.

The facts of the case, in which this point was held, were, that a native Spaniard, domiciled in England in time of war between the countries, had been licensed by the king to ship

Where a consignor has made a policy,

and his conduct or that of

his nation has deprived him of the right of enforcing it for

his own benefit, the consignee

cannot sue on

such his

interest.

An alien enemy with

respect to the

place of his

birth, domiciled in this country, may,

in the time of war, protect by

insurance,

either for his

own or his cor- goods in a neutral vessel from Poole to Bilboa or Santander. respondent's benefit, a ship- The vessel, in the course of her voyage, was captured by a by the Crown French privateer (France being a co-belligerent with Spain, to the enemy's and both nations having issued similar decrees against British

ment licensed

country.

A plaintiff, an alien in respect

if domiciled

only the plain

tiff, the person licensed, may sue, but that the commerce itself is to be regarded as legalized for all purposes of its

commerce), and condemned by a French consular court, then sitting in a port of Spain. The Court of King's Bench held that they could, consistently with their decision in Conway v. Gray, determine this case in favour of the assured, whether for his own benefit or of his correspondent's, though residing in the enemy's country; for the domiciled Spaniard was especially licensed by his Majesty, for the purpose of the very commerce which it was the object of the policy declared upon to insure.

Lord Ellenborough said, "The case of Wells v. Wilof the place of liams (a) establishes that a plaintiff, an alien enemy in respect his birth, may, of the place of his birth, may, under similar circumstances of here, sue in our domicile, be allowed to sue in our Courts. The legal result Courts. The legal result of the license granted in this case is, that not only the plainbeing that not tiff, the person licensed, may sue in respect of such licensed commerce in our Courts of law, but that the commerce itself is to be regarded as legalized for all purposes of its due and effectual prosecution. To hold otherwise would be to maintain a proposition repugnant to national good faith and the honour of the Crown. The Crown may exempt any persons and any branch of commerce, in its discretion, from the disabilities and forfeitures arising out of a state of war; and its license for such purpose ought to receive the most liberal construction. To say that the plaintiff might export the goods specified in the license from Great Britain to an enemy's country for the benefit of himself or others (and the license contains no restriction in this particular), and yet to hold, that where he has done so he could not insure, or having insured, could not recover his loss, either on account of his original character of a native Spaniard, or on account of the places to which, or of the persons to whom the goods

due and effectual prosecution.

(a) 1 Lord Raym. 282.

were destined, would be to convert the license itself into an instrument of fraud and deception. The Crown, in licensing the end, impliedly licenses all the ordinary legitimate means of attaining that end. For adequate purposes of state policy and public advantage, the Crown, it must be presumed, has been induced, in this instance, to license a description of trading with an enemy's country, which would otherwise unquestionably be illegal. Whatever commerce of this sort the Crown has thought fit to permit (which, in respect of its prerogatives of peace and war, the Crown is by its sole authority competent to prohibit or permit), must be regarded by all the subjects of the realm, and by the Courts of Law, when any question relative to it comes before them, as legal, with all the consequences of its being legal: one of which consequences is, a right to contract with other subjects of the country for the indemnity and protection of such property in the course of its conveyance to its licensed place of destination, though an enemy's country, and for the purpose (as it probably will be in most cases) of being there delivered to any alien enemy, as consignee or purchaser." His Lordship then applied these very satisfactory principles to the case at the Bar, and then proceeded:-" For the purpose of this licensed act of trading (but to that extent only), the person licensed is to be regarded as virtually an adopted subject of the Crown of Great Britain: his trading, as far as the disabilities arising out of a state of war are concerned is British trading: and of course any argument to be drawn from a virtual participation in, and supposed privity to, the acts of his own native country, then at war with the Crown of Great Britain, is excluded or superseded in point of effect by an express privity to, and immediate participation in the adverse acts of the British government. As far as the plaintiff and the Spanish purchasers of this cargo are concerned, they are actually privy to the objects of the British Government, and acting in furtherance thereof, if in direct opposition to the laws and policy of their own country. And it will not be contended to be illegal to insure a trade carried

Y

on in contravention of the laws of a state at war with us, and in furtherance of the policy of our country and its trade; and which this trade in question, sanctioned as it is by his Majesty's license, must be deemed to have been" (a).

SECTION XIII.

BARRATRY OF THE MASTER OR MARINERS.

Definition of it according to Postle

This "risk," which the underwriters likewise take upon themselves, is thus defined by Postlethwaite, in his Dict. thwaite's Dict. Tr. and Com. vol. 1, p. 214, where he says, "Barratry is when the master of a ship or the mariners cheat the owners or assurers, whether by running away with the ship, sinking her, deserting her, or embezzling the cargo." The owners are as much cheated and defrauded, if the vessel is run away with by the sailors, as if it is run away with by the master. But Postlethwaite, in vol. 1, p. 136, title " Assurance," gives a definition of barratry, which applies more immediately to the present subject. He says, "One species of barratry in a marine sense is, when the master of a ship defrauds the owners or assurers of her, by carrying her a different course to their orders."

In the case of Vallejo v. Wheeler (b), it was said on the argument, that the only two cases in the common law books on barratry that are worth mentioning, are Knight v. Cambridge (c), and Stamma v. Brown (d). In the first of these cases it is holden, that barratry extends to every fraud of the master; and what is said at the conclusion of that case, is the best doctrine that can prevail in insurances. "The end of insuring is to be safe, at all events; and it would be very prejudicial if the Court were to be making loop-holes to get out of policies.

(a) This subject is discussed in part ii. sect. ii. on "Illegal Voyages," see post.

(b) Cowp. 153.

(c) Strange, 581; 1 Lord Raym. 1349, S. C.

(d) Strange, 1173.

The assurer knows the master, and whether he can trust him; and he that insures against his running away with the ship, never imagined he might or would be guilty of any other fraud."

"The principles of the second case apply very strongly to the present, for here there was a formed design to deceive the assured; the captain did not go to Guernsey for the benefit of his owners, but for his own benefit only, and in going there he acted inconsistent with his duty to his owners." Lord Mansfield, after the argument for a new trial in the above mentioned case of Vallejo v. Wheeler (a), and after stating the case at large, delivered his opinion as follows:"The ground of the motion for a new trial in this case is, that under the circumstances of the case as they were given in evidence to the jury, the carrying the ship to Guernsey was merely a deviation (6), but not barratry; and much more stress was laid at the trial than in either of the arguments, upon this particular fact, namely, that the deviation being with the knowledge of the owner (though not owner pro hác vice) of the ship, it could never be barratry; the jury were, therefore, pressed to say whether it was with the consent of Willes or not and they said it was. To be sure nothing is so clear, as that if the owner of a ship insures and brings an action on the policy, he can never set up as a crime a thing done by his own direction or consent. It was a material fact to proceed upon, if Willes had had anything to do in the case, but he had not.

"It appeared to me that the nature of barratry had not been judicially considered or defined in England with accuracy. In all mercantile transactions the great object should be certainty and, therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other, because speculators in trade then know what ground to go upon. But it is not easy to collect with certainty from a general verdict, or from notes taken at nisi