owner was master, he must prove it; and it is not necessary for the insured to prove negatively that he was not the owner.1 If the master has an equitable title to the vessel, he cannot commit barratry.2 But a fraudulent title will not prevent his acts from being barratrous. Nor can the master commit barratry, except as master, and no acts of his as supercargo, consignee, or factor would be barratrous.4 But, if the owner of the ship be insured, the consent or request of the charterer to the act committed by the master will not prevent it from being barratrous; 5 and, on the other hand, if a charterer of a ship sails her and becomes a quasi owner, the master being appointed by the owner, an act by the master which would otherwise be barratrous against the charterer is not prevented from being so by the assent or request of the owner.6 As the master is, for many purposes, the agent of the owner, 1 Ross v. Hunter, 4 T. R. 33; Steinbach v. Ogden, 3 Caines, 1; Barry v. La. Ins. Co., 11 Mart. La. 202. 4 Emerigon, ch. 12, § 3 (Meredith's ed.), 296. But if the act is done by the master in his capacity of master, although he may fill other offices, it will be barratry. Kendrick v. Delafield, 2 Caines, 67. In Cook v. Comm. Ins. Co., 11 Johns. 40, the ship and cargo were owned by the same person. The master was also supercargo and consignee, and the barratrous act complained of was the conversion of part of the cargo to his own use, after the vessel had arrived at her port of destination. The underwriters were held liable, it being considered that the breach of duty was imputable to him as master. See also, on this point, Earle v. Rowcroft, 8 East, 126, 140. Boutflower v. Wilmer, 2 Selw. N. P. 969; M'Intire v. Bowne, 1 Johns. 229. 6 Vallejo v. Wheeler, Cowp. 143, Lofft, 631, 1 Johns. 235, note; Soares v. Thornton, 7 Taunt. 627. It is a question of much interest in what cases the captain will be considered the agent of the general owners, and when of the special. In a case before Lord Ellenborough, Hobbs v. Hannam, 3 Campb. 93, it was held, that, where a ship was chartered and the general owner insured his interest, the underwriters were not liable to him for a barratrous act of the master appointed by the charterer. It has also been decided, that if the charterer sails the vessel as captain, he cannot commit an act of barratry against a shipper of goods. Hallet v. Col. Ins. Co., 8 Johns. 272; Taggard v. Loring, 16 Mass. 336. and is appointed by him, many policies provide that they do not insure against barratry, if the insured be owner of the ship.1 Such a provision, of course, generally limits the insurance against barratry to a loss or damage to the cargo, and to such cargo only as is shipped by a party who is not an owner of the ship.2 And the intention is, not to insure an owner against the misconduct of a person selected and appointed by himself. But if one who hired by charter the whole burden of the ship put on board his own goods, and received goods on board of other persons, and insured his interest in the freight, this provision or exclusion would not prevent his recovering from the insurers indemnity for a loss caused by the barratry of the master appointed by the owner. The owner and his master are always required to guard, with all diligence, against the misconduct of the crew; and for their misdeeds, if such diligence be wanting, the insurers are not liable; but, where all proper care and diligence are used, the insurers are responsible for losses caused by the barratrous acts of any of the officers or crew. 3 It And insurance against the barratry 1 In Paradise v. Sun Mut. Ins. Co., 6 La. Ann. 596, there was insurance against barratry of the master, unless the insured were owner of the vessel. The plaintiffs effected an insurance on the freight, which the owner of the vessel had assigned to them as security for advances in their own names, for the benefit of whom it might concern. was alleged, that the insurance was effected for their benefit to the amount of their claim, and for the owner for the surplus. The court held, that, admitting this to be true, yet the policy being indivisible, and the barratry of the master being a good defence against one of the parties interested, it was good against all. And they were also of the opinion, that all the evidence construed together justified the conclusion that the policy was intended to cover the owner's interest, and to be held by the assured as security under an assignment, and that the owner was therefore to be regarded as the assured, and the nominal assured as assignees merely, taking only the rights which the owner possessed, and liable for the barratrous acts of the master. 3 Brown v. Union Ins. Co., 5 Day, 1. The case of Elton v. Brogden, 2 Stra. 1264, is an important one on this point, and has been the subject of much criticism. The vessel was insured from Bristol to Newfoundland with a letter of marque. On the way she took a prize, and returned to England. Another policy was then made out, and the ship sailed with express orders from the owners, that if another prize was taken it should be sent back, but that the vessel should proceed on her voyage. Another prize was taken, and the captain gave orders to some of his crew to carry it to Bristol, intending to proceed to Newfoundland in his own vessel, but the crew compelled him to submit and of the master and crew includes larcenies and embezzlements of the goods insured, by either the master or any of the crew, excepting only petty thefts and the like.1 It is said that if the barratrous acts are committed while the person committing them is insane, the underwriters would not be liable, although the insanity was brought on by the excessive use of intoxicating liquors; but, if these acts were the result of intoxication caused in the ordinary way by voluntary and excessive indulgence in ardent spirits, the existence of such intoxication would not excuse or qualify them, and they would be considered as barratrous.2 return, and on the way his vessel was captured. The defence was that the insurers were discharged, on the ground of a deviation; but the court held, that this was excused by the force upon the master, and therefore was justified on the ground of necessity. The report then goes on to say: "The plaintiff's counsel would have made barratry of it, but the chief justice thought it did not amount to that, as the ship was not run away with in order to defraud the owners." In an appeal from the East Indies, heard before the Lords of the Privy Council, at the Cockpit, Sir R. P. Arden, Master of the Rolls, in observing upon the above case, said he thought it must be ill reported in Strange, for, upon the facts stated, there could be no doubt but that the mariners had committed barratry, and he was inclined to think that the policy must have been special, and did not include barratry of the mariners. De Frise v. Stephens, 2 Marsh. Ins. 521, note, Park, Ins. 116, note. Such seems also to have been the opinion of Lord Mansfield in Vallejo v. Wheeler, Cowp. 143. In Scott v. Thompson, 4 B. & P. 181, 186, Sir James Mansfield, C. J., was of the opinion that the act of the crew did not amount to barratry. Mr. Park says that the policy could hardly have been a special one, as it would then have been absurd for the plaintiff's counsel to argue that it was barratrous. And, we may further remark, that if the policy was special, not insuring against barratry, and "defendant's counsel" be inserted in the place of "plaintiff's counsel," the decision then would be, that the act of the crew was not barratrous, being done for the benefit of the owners, as is stated in the report; for we take the law to be, that, if there is no insurance against barratry, the underwriters are not liable for a deviation caused by barratry. So that, whether the policy were special or not, we think, can make no difference. In Toulmin v. Anderson, 1 Taunt. 227, the crew, aided by some prisoners of war on board, rose, seized the ship, and run her ashore. It was held, that the plaintiff would have been entitled to recover on these facts, on the ground of barratry, but, the voyage being illegal, the plaintiffs were non-suited. See Toulmin v. Inglis, 1 Campb. 421; Brown v. Smith, 1 Dow, 349. 1 Am. Ins. Co. v. Bryan, 26 Wend. 563; Stone v. National Ins. Co., 19 Pick. 34. 2 Lawton v. Sun Mutual Ins. Co., 2 Cush. 500. In a case where it was alleged that the captain barratrously returned to port, procured the condemnation of the ship, and sold her and afterwards delivered her up to the purchasers, and the condemnation was more than six years before the commencement of the action, but the sale and delivery were within the six years, Lord Ellenborough was of the opinion that the cause of action did not accrue till the master had divested himself of the possession of the ship by delivering her up to the purchasers.1 SECTION VII.-Of Loss by Capture, Arrest, Detention, or Re straint. THE usual phrase is, "against all captures at sea, or arrests, restraints, or detentions, of all kings, princes, and people." This covers captures, detentions, or arrests by public enemies,2 by belligerents, or by the government of which the assured is himself a subject, if not for a breach of law. In all these cases the word "capture" seems to be limited in its meaning to the taking of ships or vessels, as belligerent, and engaged in lawful war, or else to their forcible seizure by the acts of governments. Text-writers on the subject of insurance, American or foreign, often intimate that the word "capture," which literally means a taking, signifies in insurance law a taking or seizure by any persons whomsoever, and in any way whatsoever. If this be so, a vessel is lost by capture if taken and destroyed by pirates. We think this has not been the prevailing, and certainly 1 Hibbert v. Martin, 1 Campb. 538. In Levy v. Merrill, 4 Greenl. 180, insurance was effected against the "risks contained in all regular policies of insurance," and the policy further declared, that, in case of difficulty arising concerning the adjustment of a loss, it should be settled according to the rules established at Lloyd's in London, or at the regular insurance offices in the United States. It was held, that loss by capture was a peril insured against. Lee v. Boardman, 3 Mass. 238; Rhinelander v. Ins. Co. of Penn., 4 Cranch, 29; Powell v. Hyde, 5 Ellis & B. 607, 34 Eng. L. & Eq. 44; Olivera v. Union Ins. Co., 3 Wheat. 183; Rotch v. Edie, 6 T. R. 413. As an embargo. Odlin v. Ins. Co. of Penn., 2 Wash. C. C. 312; Lorent v. S. Car. Ins. Co., 1 Nott & McC. 505; M'Bride v. Mar. Ins. Co., 5 Johns. 299; Walden v. Phoenix Ins. Co., Ib. 310; Ogden v. N. Y. Fire Ins. Co., 10 Johns. 177, 12 Ib. 25; Page v. Thompson, Park, Ins. 109, n. See also Flindt v. Scott, 5 Taunt. 674; Anthony v. Moline, Ib. 711; Schnakoneg v. Andrews, Ib. 716; Bazett v. Meyer, Ib. 824. not the commonly understood, meaning of the word. The word capture," now in use by us, was formerly in English policies, and indeed is quite frequently now, replaced by "taking." A common form of insurance in England is against "takings at sea, arrests, restraints, and detainments of all kings, princes, and people of what nation, condition, or quality whatsoever." It is impossible to give to the word "people" a wider meaning than is given to it by these words. If a seizure (which becomes a capture, if it be intended to take from the owner the property seized) is made by any persons in any way, they must be people of some condition or quality. Nevertheless "people" in this clause has been judicially defined as meaning "the supreme power, the power of the country whatever it may be."2 And the word "pirates 1 In Black v. Mar. Ins. Co., 11 Johns. 287, there was a policy of insurance upon a ship from New York to Bremen, or a port of discharge in the North Sea or Baltic, against capture only. The policy contained, among others, the following warrantry: "Also free from seizure in any port or place under the jurisdiction of Napoleon, or under the jurisdiction of any power under his control or in alliance with him." The ship was taken on the coast of Holland by two French privateers, and carried into the port of Amsterdam, and was afterwards condemned by the imperial council of prizes at Paris as prize of war. The jury found that the capture was within the jurisdiction of Holland, and that Holland was, at the time, in alliance with, or under the control or jurisdiction of, Napoleon. It was held to be a seizure within the warranty. The court said: "Seizure may, in general, be applicable to a taking or detention, for the violation of some municipal regulation; but where such meaning cannot be given to it, consistent with the obvious sense and understanding of the parties, it is no violation of any settled rule or principle of law to give it some other interpretation, better comporting with the fair intention of the parties. The underwriters did not mean to assume any risk except that of capture, and not even that, if made in any river, port, or place under the jurisdiction of Napoleon, or under the jurisdiction of any power under his control, or in alliance with him. It is no strained interpretation of the term 'seizure' to consider it as synonymous with 'capture'; and then the underwriters, although they assume the risk of capture generally, exempt themselves even from that risk, if the capture is made under any of the circumstances mentioned in the warranty. In no other way can any rational interpretation be given to the clause; and the jury having found that the seizure or capture was, in fact, within the exception as to place, the underwriters cannot be made responsible for the loss." Nesbitt v. Lushington, 4 T. R. 783. In this case a ship was forced by stress of weather into Elly Harbor in Ireland. There being a great scarcity of corn there at that time, the people came on board and took the control of the ship from the captain and crew by force, |