A loss is well happened by barratry though it be proved to have taken sidered at law, whether what the master has done, whether he be owner or not, did not amount to a breach of contract as master, and so to a barratry: it may likewise be so considered in this Court. But at law a defendant cannot read part of a plaintiff's answer to a bill filed against him here: the whole answer must be read, which has often been a reason for this Court to interpose by injunction upon a plaint at law; and considering the mixed nature of this case, I think an injunction ought to be granted." And it was decided in the case of Havelock v. Hancill (a), that even if the parties insert in the policy that the insurance shall be upon the ship in any lawful trade, if the captain commit barratry by smuggling, the underwriters are answerable. For otherwise the word barratry should be struck out of the policy; and most clearly the stipulation in the policy respecting the employment of the ship in a lawful trade, must mean, as was said by Lord Kenyon in delivering the unanimous opinion of the Court, the trade on which she is sent by the owners. A loss by barratry is well alleged, though it be proved to alleged to have have happened by the joint act of an enemy, aided by some of the crew. Indeed, it should seem, it would be good also if laid the other way; at least Lord Ellenborough allowed a plaintiff under similar circumstances to recover, where the loss was laid to have been by capture (b). place by the joint act of the enemy aided by the crew. So if a loss be alleged to have happened by the perils of the sea, it is supported by proof of the ship being wrecked, although this may have been occasioned by the barratry of the master and mariners (c). Hitherto we have considered barratry, only as it affects the rights of the insurer and insured, which is certainly the material point of view in our present inquiry: but before we come to the conclusion of this section, it will be proper to (a) 3 T. R. 277. (b) Toulmin v. Anderson, 1 Taunt. 227. Hucks v. Thornton, 1 Holt, 38. Archangelo v. Thomp son, 2 Camp. 620. (c) Heyman v. Parish, 2 Camp. 148, and see ante, p. 285. take notice of those positive regulations, which exist in this and other countries, for the punishment of those who are guilty of some of the more heinous acts of barratry. 1. By the ordinances of Middleburgh, Rotterdam, and Hamburgh, if any act of barratry be committed by the master, various degrees of punishment, sometimes amounting even to death, are inflicted upon him, proportioned to the enormity of his guilt (a). 2. Various enactments have at different periods, from the reign of Charles the Second, been made in this country for the punishment of masters and mariners in charge of ships, and other persons wilfully casting away, burning, or otherwise destroying such ship (b). The laws punishment of persons wilfully destroying, casting away, or setting fire to ships: relating to the otherwise than And now by the 7 & 8 Geo. 4, c. 30, s. 10, it is enacted, 1. Damaging, "that if any person shall unlawfully and maliciously damage, by fire; otherwise than by fire, any ship or vessel, whether in a complete or unfinished state, with intent to destroy the same, or to render the same useless, every such offender 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 seven years, or to be imprisoned for any term not exceeding two years; and if a male, to be once, twice, or thrice publicly or privately whipped, (if the Court shall so think fit) in addition to such punishment. Other provisions on this subject, in this statute, were repealed by 7 Wm. 4, and 1 Vict. c. 89, by which 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 shall suffer death" (c). "That whosoever shall unlawfully exhibit any false light 3. Exhibiting false lights. (a) 2 Mag. 77, 112, 215. (b) 22 & 23 Car. 2, c. 11, s. 12; 1 Anne, stat 2, c. 9, s. 4; 4 Geo. 1, c. 12, s. 3; 43 Geo. 3, c. 113, &c. 2. Setting fire to, casting away, or otherwise destroying any ship, with intent to murder, &c. 4. Setting fire to, casting away, or other wise destroying any ship, with intent to prejudice any owner, or underwriter, &c. 5. Impeding any person endeavouring to save his life from a ship in distress, &c. 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 (a). "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 such ship or vessel, or of any goods on board the same, or any person that hath underwritten, or who 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" (b). "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." (c) "That whosoever shall unlawfully and maliciously destroy any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast ashore, 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" (a). 3. By the 11 & 12 Wm. 3, c. 7, s. 9, (made perpetual by 6 Geo. 1, c. 19) it is enacted, Running away with the ship or cargo, or making a revolt in the ship. "That if any commander or master of any ship, or any Piracy. 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, 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." And now by the 7 Wm. 4, and 1 Vict. c. 88, s. 3, it is enacted, "That persons convicted of any offence, which by the acts referred to in that section amount 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" (b). (a) Sect. 8. (b) And see the provisions of 16 Car. 2, c. 6, and 22 & 23 Car. 2, c. 11, as to the offence of not re- SECTION XIV. The effect of the general words" all other perils, &c." "AND OF ALL OTHER PERILS, LOSSES, AND MISFORTUNES, The insertion in the policy of the general words by which the underwriters undertake upon themselves "all other perils, losses, and misfortunes, that shall come to the hurt, detriment, or damage, of the ship or goods in the voyage," has the effect of providing for any doubts which might arise as to cases which come nearly, but not precisely, under the specified causes of loss. In Cullen v. Butler (a), Lord Ellenborough says, "The extent and meaning of the general words have not yet been the immediate subject of any judicial construction in our Courts of law. As they must, however, be considered as introduced into the policy in furtherance of the objects of marine insurances, and may have the effect of extending a reasonable indemnity to many cases not distinctly covered by the special words, they are entitled to be considered as material and operative words, and to have due effect assigned to them in the construction of this instrument; and which will be done by allowing them to comprehend and cover other cases of marine damage of the like kind with those which are specially enumerated and occasioned by similar causes." Emerigon, (b) in discussing the general rule, that assurers answer for all loss and damages that happen on the sea, says, that it is to prevent doubts and vain disputes, that in the printed policies the following words have been inserted; and then he instances the general words to be found in the policies of most of the principal ports on the continent: "All inconveniences, perils, and cas forfuits, (which may be translated as misfortunes, accidents, &c.) (a) 5 M. & S. 465. (b) In c. 12, s. 1, p. 300, of his Traité d'Assurances. |