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6. "Assecuratio est conventio seu contractus quo quis in se suscipit incertum periculum cui alter est obnoxius que e contrario eo nomine illi premium retribuere tenetur." Grotius; cited by Lawrence, J., in Lucena v. Crauford (1806), 2 B. & P. at p. 300, H. L., and see other ancient definitions cited at p. 295.

7. "A policy of marine insurance is a contract of indemnity against all losses accruing to the subject-matter of the policy from certain perils during the adventure." Lloyd v. Fleming (1872), L. R. 7 Q. B. at p. 302, per Lord Blackburn.

Most of these definitions assume that the premium is an essential part of the contract. Generally it is so, but there are exceptions, so that it does not necessarily enter into the definition. In the case of mutual insurance the policy is silent as to premium, and the contributions of members are provided for by the rules of the association. Besides a policy may be under seal, and a contract under seal imports consideration.1

Comparing marine with life insurance, the former is a contract of indemnity, the latter is not.2 Death is a certainty, the occasion of it only is uncertain. Moreover, human life is incapable of money valuation.

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Comparing marine insurance with fire insurance, both of them are contracts of indemnity,3 but the measure of indemnity is assessed on wholly different principles. In a fire insurance (unless the policy otherwise provides) if goods valued at £20,000 be insured for £1000, and a loss of £1000 occurs, the insurer is liable for that amount; but with regard to marine insurance, if goods to the value of £20,000 are insured for £1000, and a loss occurs, it is necessary to show what proportion the goods lost bear to the whole value, for the owner of the goods is his own insurer for £19,000.

For a comparison between a contract of insurance and a contract of guarantee, see Seaton v. Heath (1899), 1 Q. B. at p. 792, and Rowlatt's Principal and Surety, p. 9.

NOTE B.-DEFINITIONS OF BARRATRY.

Barratry, in the maritime sense of the term, is derived from the Italian word "barrateria,” which is supposed to be of Arabic origin. and which signifies "cheating." The following definitions may be referred to:

1 Roberts v. Security Co. Ltd. (1897), 1 Q. B. 111, C. A.

2 Dalby v. Ind. Life Ass, Co., 15 C. B. 355; Burnand v. Rodocanachi

(1882), 12 App. Cas. at p. 340.

3 Castellain v. Preston (

• See Joyce V.

Kennard

(1883), 11 Q. B. D. 380, C. A.
(1871), L. R. 7 Q. B. at p. 81.

1. "Barratry, in English law, may be said to comprehend not only every species of fraud and knavery covinously committed by the master with the intention of benefiting himself at the expense of his owners, but every wilful act on his part of known illegality, gross malversation, or criminal negligence, by whatever motive induced, whereby the owners or charterers of the ship (in cases where the latter are considered owners pro tempore) are in fact damnified." Arnould, Ed. 6, p. 775.

2. "Any act, with criminal intent, committed by the master or crew of a vessel, in violation of their duty to the shipowner, and without his connivance, is barratry." McArthur, Ed. 2, p. 130.

3. "Barratry or barratry of the master or mariners means any wilful act of spoliation, or violence to the ship or goods, or any fraudulent or consciously illegal act which exposes the ship or goods to danger of damage, destruction, or confiscation, done by the master or crew without the consent of the shipowner." Carver's Carriage by Sea, Ed. 3, § 99.

4. "Barratry is an unlawful, fraudulent, or dishonest act of the master mariners or other carriers, or of gross misconduct, or very gross and culpable negligence, contrary in either case to their duty to the owner, and that might be prejudicial to him or to others interested in the voyage or adventure." Phillips on Insurance, § 1062 (U.S.).

5. "Barratry is every species of fraud or knavery in the master of a ship by which the freighters or owners are injured; and in this light a criminal deviation is barratry, if the deviation be without their consent." Lockyer v. Ofley (1786), 1 T. R. 259; 1 R. R. 197, per Willes, J.

6. "Barratry is considered as being precisely tantamount to fraud, in the particular relation which subsists between master, mariners, and owners being such by which a loss may happen to the subjectmatter insured." Earle v. Rowcroft (1806), 8 East, 134; 9 R. R. 385, 392; approved Cory v. Burr (1883), 8 App. Cas. 399. All the definitions and cases up to 1870 are reviewed in an American case, Atkinson v. Great Western Ins. Co. (1872), 1 Asp. Mar. Cas. (N. S.) 382. 7. "Les termes baratteries du patron comprennent toutes les espèces, tant de dol que de simple imprudence, défaut de soin et impéritie, tant du patron que des gens de l'équipage." Pothier, Traité d'Assurance, § 65.

Comparing the French with the English definition it appears that the French definition includes losses caused by unskilful and improper navigation, which in England would be attributed to losses by perils of the seas. In England the essence of barratry is a criminal or quasicriminal breach of duty to the owners for the time being. As Lord

Ellenborough says, "In order to constitute barratry, which is a crime, the captain must be proved to have acted against his better judgment.” 1

If the master commits a criminal act with the privity of his owners it is not barratry; but if the master be a part owner his barratrous act is none the less barratry as against innocent co-owners and shippers.2

The general opinion is that barratry can only be committed against the owner, or a charterer who pro hac vice is in the position of an owner (Arnould, Ed. 6, p. 785); but Hannen, J., in one case ruled that if a ship was scuttled with the consent of the owners it would be barratry as regards an innocent shipper of goods.3

The following acts are instances of barratry:-Engaging in smuggling, deviation in order to smuggle, fraudulent sale of ship and cargo, scuttling the ship.

NOTE C.-DEFINITION OF Average.

Much learning and ingenuity have been spent on the endeavour to define the true meaning of the term "average." See McArthur, Ed. 2, p. 386; Arnould, Ed. 6, p. 828. The fact is that the term is used in different senses, and its meaning in each case must be sought in its context.

The word is derived from the French "avarie " or Italian "avaria," which themselves are of uncertain derivation. The final syllable follows the form of such words as "towage" and "poundage." Originally the term "average" signified a toll or duty. In ordinary shipping law it denotes an extra charge, as in the expression " primage and average as accustomed."

In insurance law the use of the word "average" is very puzzling. The fact is, the law has been developed piecemeal by decisions, and no uniform theory has been worked out. A partial loss, as distinguished from a total loss, may be either a general average loss or a particular average loss, that is to say, it may be a loss which gives rise to a right of contribution, or a loss which does not do so. But here a complication comes in. The term “ particular average loss" applies only to damage to the subject-matter insured. Expenses incurred for the purpose of preserving the subject-matter from peril are known

10 Exch. 28, 37; Westport Coal Co. v Small v. U. K. Mar. Assn. (1897), 2 Q. B.

1 Todd v. Ritchie (1815), 1 Stark. 240. 2 Jones v. Nicholson McPhail (1898), 2 Q. B. (1854), 311, C. A. (innocent mogee). 132; • Ionides v. Pender (1872),

1 Asp. Mar. Cas. (N. S.) 432, 435.

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as particular charges, and are recoverable under the sue and labour clause, and not under the body of the policy (see §§ 65 and 79); but the expression "general average " includes a general average expenditure as well as a general average sacrifice, and also a general average contribution. Therefore, the scope of the word "average" in the two classes of cases is different.

The expression "average unless general," as used in the memorandum to Lloyd's policy, is a good illustration of the confused use of the word. It appears to mean "a partial loss of the subject-matter insured, which is not a general average loss." See ante, p. 128.

But the case of a general average sacrifice gives rise to a further complication. If, for example, insured goods be jettisoned so as to constitute a general average loss, the insurer who has insured against jettison is liable under the express terms of the policy. As between insurer and assured, the loss is to this extent a particular average loss, though for other purposes the loss is a general average loss (see ante, pp. 85, 87). But even this rule is not carried to its logical conclusion, because it has been held that for the purpose of making up the three per cent. franchise a general average loss cannot be added to a particular average loss. (See McArthur, Ed. 2, p. 386, and ante, p. 98.)

According to French law, "le mot avarie désigne un dommage matérial et aussi une dépense extraordinaire faite pour le navire et pour les merchandises, conjointement ou separément." Code de Commerce, Art. 397. "Les avaries se divisent en deux classes. Elles sont (1) simples ou particulières; (2) grosses ou communes." BravardDemangeat, Ed. 7, p. 475.

French law, therefore, differs from English law by including expenses which, under our law, would be classed as "particular charges." See Kidston v. Empire Ins. Co. (1866), L. R. 1 C. P. at 550, per Willes, J. See particular charges distinguished from general average, McArthur, Ed. 2, p. 173.

NOTE D.-DEFINITION OF ABANDONMENT.

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ABANDONMENT (from the French "abandonner, but the corresponding term in insurance is "délaissement").—In ordinary language the term "abandonment" is used as the equivalent of relinquishment."

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But in marine insurance law the term has a highly special though indefinite meaning. It is used to denote (1) the voluntary cession by the assured to the insurer of whatever remains of the subject-matter insured, in case of constructive total loss; (2) the notice by which the assured signifies to the insurer his election to abandon; and (3) the

cession which takes place, by operation of law, of whatever remains of the subject-matter insured when the insurer pays for a total loss.

I. In marine insurance, where there is a constructive total loss, the assured may elect either to treat the loss as a partial loss or, within a reasonable time, to cede to the insurer, as from the date of the casualty causing the loss, whatever may remain of the subjectmatter insured, together with all rights and remedies incident thereto, and claim for a total loss. This cession is called abandonment.

"Abandonment is the act of cession, by which in cases where the loss or destruction of the property, though not absolute, is highly imminent, or its recovery is too expensive to be worth the attempt, the assured, on condition of receiving at once the whole amount of the insurance, relinquishes to the underwriters all his property and interest in the thing insured, as far as it is covered by the policy, with all the claims that may ensue from its ownership, and all the profits that may arise from its recovery." Arnould, Marine Insurance, Ed. 6, p. 953, citing in notes 2 Pardessus 400 "Le délaissement equipolle à un transport."

“Abandonment is a relinquishment to the underwriter, in case of loss constructively total, of all right, title and claim to what may be saved, leaving it to him to make the most of it for his own benefit. It operates as an assignation." Bell's Principles of the Laws of Scotland, § 484.

"L'acte par lequel l'assuré quitte et délaisse aux assureurs les droits, noms, raisons et actions de propriété qu'il a en la chose assurée.” Emérigon, Traité des Assurances, c. 17, citing Guidon de la Mer, Ch. 7, Art. 1. As to the modern French definition, see Sacré, Dictionnaire de Droit Commercial, Tit. Avarie, No. 5.

"In reference to constructive total loss, it is defined to be a cession or transfer of the ship from the owner to the underwriter, and of all his property and interest in it, with all the claims that may arise from its ownership, and all the profits that may arise from it, including the freight then being earned. Its operation is as effectually to transfer the property in the ship to the underwriter as a sale for valuable consideration." Per Martin, B., Rankin v. Potter (1873), L. R. 6 H. L. at p. 144.

II. The notice by which the assured signifies to the insurer his election to abandon and claim for a total loss is frequently confused with the abandonment or cession itself. Thus the Draft New York Civil Code, § 1486, to define abandonment as "the act by which after a I total loss the person insured declares to the to him his interest in the thing insured." ment," says Blackburn, J., " is a very different

proposes

constructive relinquishes

insurer that he

“The cession or abando

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