prius, what was the true ground of decision; therefore in this, as in all doubtful cases, I wished a case to be made for the opinion of the Court. It appeared on the former argument and now, that there are but three common law cases relative to barratry. The first is Knight v. Cambridge, 1 Strange, 581; the next, Stamma v. Brown, 2 Strange, 1173; the last common law case is Elton v. Brogden, 2 Strange, 1264. In that case neither the terms of the first or second policy are stated, and yet they must have been special. The only question seems to have been, whether the capture of a second prize justified the second return of the ship to Bristol. The Court held that it did: if so, there could be no barratry, because the captain and mariners acted to the best of their judgment, for the benefit of the owners. Whatever excused the deviation, proved that the deviation could not be barratry.

"But these cases do not afford any precise definition of what barratry is, therefore I wished the cause to stand over to be argued by one counsel on a side. I have in the meantime considered it, and consulted with men conversant with mercantile affairs, and I am now very clear.

"The first thing to be considered is, what is meant by barratry of the master? I take the word to have been originally introduced by the Italians, who were the first great traders of the modern world. In the Italian Dictionary the word "barratrare" means to cheat, and whatsoever is by the master a cheat, a fraud, a cozening, or a trick, is barratry in him: nothing can be so general. Here the underwriter has insured against all barratry of the master, and we are not now in the case of an owner or freighter being privy to it: if we were, nothing is so clear as that no man can complain of an act done to which he himself is a party. In the present case, all relative to Willes may be laid out of it; he is originally the owner, but not the assured here. Darwin freighted the ship, and the goods that were on board were his; if any fraud is committed on the owner, it is committed on Darwin. The question then is, what is the ground of complaint against

Whether the loss happened during the

fraudulent

voyage or after because the

the master? He had agreed to go on a voyage from London to Seville; Darwin trusts he will set out immediately: instead of which the master goes on an iniquitous scheme, totally distinct from the purpose of the voyage to Seville: that is a cheat, and a fraud on Darwin, who thought he would set out directly; and whether the loss happened in the act of barratry, that is during the fraudulent voyage or after, is immaterial, because the voyage is equally altered, even though there is no other iniquitous intent; but in the present is immaterial, case, there is a great deal of reason to say, that the loss voyage is equally alsustained was in consequence of the alteration of the voyage. The moment the ship was carried from its right course it was barratry, and the loss was immediately upon it. Suppose the ship had been lost afterwards, what would have been the case of the assured, if not secured against the barratry of the master? He would have lost his insurance 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 this smuggling voyage was barratry in the master."

Aston, J., "I wonder that there should remain a doubt at this time of day, what is meant by barratry of the master. In different ordinances different terms are used, but they all have the same meaning. In one of the ordinances of Stockholm it is called "knavery of the master or mariners :" and the facts stated in the present case clearly fall within that description. The ship having been freighted to Darwin, the jury, therefore, did right to consider Darwin as owner "pro hac vice." Having considered him in that light, the conduct of the master was clearly barratry. For he was acting for his own benefit, and without the consent, or privity, or any intended good to his owner. Nobody knew when the first,commencement of the injury happened; but most probably, on the return of the ship to Dartmouth from Guernsey, where he had been for the purpose of smuggling. Therefore, I am clearly of opinion, that this change of the voyage for an iniquitous purpose was barratry;

tered.

Where a ship and cargo were barratrously taken out of

her course and the ship and part of her

cargo sold, and

which is not confined to the running away with the ship, but comprehends every species of fraud, knavery, or criminal conduct in the master, by which the owners or freighters are injured."

Willes, J. concurred. "The only doubt in this case was, when the loss accrued. And I think it may reasonably be said to have happened in consequence of the smuggling voyage for if the ship had proceeded on her first intended voyage she would have escaped the storm. Though this was a deviation, yet it is a just and fair rebutter to say, it was barratry in the master, which is insured against in the policy."

Ashhurst, J.-"I continue of the same opinion, which I did at the trial and I think that the plaintiff's have a right to recover on either count in the declaration, First, for the loss at sea. For it does not lie in the mouth of the assurer to object on the ground of its being a deviation, and so prevent the plaintiffs' recovering on that count: because the act of the master is a fraudulent act, and if the loss is consequential upon such fraudulent act, it is barratry against which the party is insured: and, therefore, the insurers shall not object upon a fact which is itself a forfeiture of the policy."

In the case of Dixon v. Reid (a), which was an action on a policy of insurance on "ship" and "cargo, "at and from Sierra Leone to a port of discharge in Great Britain: the facts were, that after the vessel set sail with her cargo of timber on board, from Sierra Leone on her voyage to Europe, she was barratrously taken out of her course by the crew, and the ship and part of the cargo sold and the remainder sent home was a total loss by another vessel, and the assured abandoned to the underfrom the time writers it was held that this was a total loss of the cargo, when the act of from the time of the committing the act of barratry. Abbott, barratry was

the remainder sent home by another vessel: held, that this

of the cargo

committed.

C. J., observing, on the motion for a new trial, "I am of opinion that is a case of a total loss, with benefit of salvage. The case is plainly distinguishable from all the cases referred to in the argument, where the ships have been driven out of

(a) 5 B. & A. 597.

their course by the perils of the sea, and the voyage thereby retarded. In these cases the cargo was during the whole time in the possession of the assured. Here by the fraud and barratry of the master and mariners the cargo was taken out of the possession of the assured. From that time it became to them a total loss."

66

In another case of Roscow v. Corson (a), which was an action upon a policy of insurance, whereby the cargo on board the ship" Newry was insured "at and from St. Petersburg to Liverpool." The cause was tried before C. J. Dallas at the London Sittings after Easter Term, 1818. The facts were these: the vessel set sail on her voyage, and having met with bad weather, was compelled to put into Yarmouth for the purpose of repair: while the repairs were proceeding the captain went to Ireland to visit his family and continued absent for a much longer time than was necessary to finish the repairs; and during his absence, procured forged papers. He afterwards returned to the vessel, and instead of proceeding on the voyage insured, he carried her into a foreign port. On the trial of the cause, Dallas, C. J. left it to the jury to consider at what time the barratry had commenced and they having found that the barratry was in prosecution at Yarmouth, found a verdict for the plaintiff. Upon a motion for a new trial, Dallas, Chief Justice, said, "This case was tried upon facts admitted by the parties. The jury found that the barratry not only had its beginning in conception at Yarmouth, but also in prosecution. The cargo might have been discharged and taken on board again within a much shorter space of time. The vessel might have been ready about the 4th or 5th of January, but remained till the middle of March. The captain staid in Ireland until 15th February; the original papers were destroyed; the name of the vessel altered; her destination changed in the prosecution of the voyage; and there is no account of the loss of the time from 25th December, to the middle of March,

(a) 8 Taunt. 684.

But the loss must take place during the voyage and limited by the policy.

within the time

Definition of

during which time the captain was in Ireland. It has been said there is merely presumption and conjecture; but that must always be the case in matters of fraud, which are hatched in secret. I told the jury, that they had to consider, not only whether the intention was conceived at Yarmouth, but they should also consider the circumstance of the delay in Ireland, where alone the captain could have provided himself with the forged papers. The jury agreed that they could not account for this delay in any other manner than that of its arising from an act of barratry. In my opinion there is no ground for disturbing the verdict." Park, J., Burrough, J. and Richardson, J. concurred, and the rule was refused.

But it was held in the case of Lockyer v. Offley (a), that where the master, in the course of the voyage, committed barratry by hovering and running brandy ashore in casks under sixty gallons: and that the ship then arrived in safety at her moorings in the Thames: and remained there in safety for twenty-seven days, when she was seized by the revenue officers for the smuggling mentioned: that about a fortnight after the seizure the assured informed the underwriters thereof, and that they would hold them liable, on the policy, it was held that the assured could not recover for the loss which had been occasioned by the act of barratry committed during the voyage, but, for which, the ship was not seized till she had anchored safely more than 'twenty-four hours' in her port of discharge. Willes, J. delivered the unanimous opinion of the Court after stating the case.

"The question for the consideration of the Court is, whether the plaintiffs can recover under these circumstances against the defendants: and there is no doubt in this but that the master was guilty of barratry by smuggling on his own account without the privity of his owners.

"Many definitions of 'barratry' are to be found in the what is termed books; but perhaps this general one may comprehend almost barratry by

Willes, J.

(a) 1 T. R. 252, ante, p. 153.