make the insurers liable for a loss by larceny may not be certain; but by the weight of American authority they would be liable. (x) But they would not be liable for loss by theft or robbery without violence from others than the crew, if the phrase assailing thieves" is used, and that is now not uncommon. (y)

As to the meaning of this word, or of what constitutes this offence, the cases are in conflict. On the whole, however, we are satisfied that three essentials are necessary to constitute barratry. It must be a wrongful act wrongfully intended; (2) it must be done by the master or officers or crew; and it must be done against the owner. (a)

If done by the command or connivance of the owner, (b) or even quasi owner, who has the vessel for the time under his control and government, (c) or by a master who is sole owner of the ship, (d) or has an equitable title to her, it is not barratry. (e) Nor is it so, if done by the master in any other capacity, as that of supercargo, consignee, or factor. (f) But an *379 illegal act done for the intended benefit of the master, without his desire or assent, may be barratry, because they who do it have no right to presume his assent to a violation of law. (g)

(x) Atlantic Ins. Co. v. Storrow, 5 Paige, 285; Am. Ins. Co. v. Bryan, 1 Hill, 25, 26 Wend. 563. See also De Rothschild v. Royal Mail S. P. Co. 7 Exch. 734. Kent, 3 Comm. 303, states the law to be, that an insurer is not liable for a theft by a person on board the vessel and belonging to it; and he has been followed by Marshall v. Nashville Ins. Co. 1 Humph. 99.

(y) The tortious conversion and sale of insured property by a United States consul at a foreign port, under color of legal proceedings and claim of right, are not a loss within this phrase. Paddock v. Commercial Ins. Co. 2 Allen, 93.

(z) See post, n. (b).

(a) In many cases barratry is defined to be a fraud, cheat, or trick on the part of the captain against the interest of the owners. See Knight v. Cambridge, 1 Stra. 581; Phyn v. Royal Exch. Ass. Co. 7 T. R. 505; Lockyer v. Offley, 1 T. R. 252; Wilcocks v. Union Ins. Co. 2 Binn. 574; Stone v. National Ins. Co. 19 Pick. 34. In Patapsco Ins. Co. v. Coulter, 3 Pet. 222, many of these cases were examined by Mr. Justice Johnson, and the points on which they turned were shown

(b) Nutt v. Bourdieu, 1 T. R. 323; Thurston v. Col. Ins. Co. 3 Caines, 89; Ward v. Wood, 13 Mass. 539; Everth v. Hannum, 6 Taunt. 375.

(c) Pipon v. Cope, 1 Camp. 434.

(d) Taggard v. Loring, 16 Mass. 336; Barry v. La. Ins. Co. 11 Mart. La. 630; Marcardier v. Chesapeake Ins. Co., 8 Cranch, 39. But it seems, that a captain who is a part-owner may commit barratry against his other part-owners, and also against a charterer. Jones v. Nicholson, 10 Exch. 28; Strong v. Martin, 1 Dunl. Bell & M. 1245. But see contra, Wilson v. Gen. Ins. Co. 12 Cush. 360.

630.

(e) Barry v. La. Ins. Co. 11 Mart. La.

(f) Emerigon, c. 12, s. 3, Meredith ed. 296. But if the act is done in his capacity of master, it is barratrous, although he may fill other offices. Kendrick v. Delafield, 2 Caines, 67; Cook v. Comm. Ins. Co. 11 Johns. 40; Earle v. Rowcroft, 8 East, 140.

(g) Earle v. Rowcroft, 8 East, 126.

Policies frequently provide that the insurers do not insure against barratry, if the insured be owner of the ship. (h) The reason of the provision is this. The master is appointed and employed by the owner and is his agent; and the crew are appointed by him and are his servants. An insurance against barratry, therefore, where the insured is owner of the ship, would insure him against the acts of his own agent or servants. Such a provision, therefore, limits the insurance against barratry to a loss or injury of a cargo which is not owned by the owner of the ship. (2)

The policy of the law and obvious justice demand that the owner and his master shall use care and diligence to prevent any misconduct of the crew; and if due care was wanting and might have prevented that misconduct, insurers are not liable for a loss caused by it. (j)

The usual phrase is "against all captures at sea, or arrests, restraints or detentions of all kings, princes, and people. "(k)2 The word "illegal" or unlawful" is sometimes inserted before captures. "Capture" is distinguished from " arrest" or "detention;" capture being a seizure with intent to keep, () while

arrest or detention is a taking with intent to return what *380 is taken, (m) as by an embargo, (n) or blockade, (0) or a stopping for search. (p) 3 "People" means the supreme power of a country, whatever that may be. (q)

596.

(h) Paradise v. Sun Ins. Co. 6 La. An.

(i) Brown v. Union Ins. Co. 5 Day, 1. (j) Pipon v. Cope, 1 Camp. 434. See Elton v. Brogden, Stra. 1264. Also ante, p. *374.

(k) Levy v. Merrill, 4 Greenl. 180, Lee . Boardman, 3 Mass. 238; Rhinelander v. Ins. Co. of Penn. 4 Cranch, 29; Powell v. Hyde, 5 Ellis & B. 607; Olivera ". Union Ins. Co. 3 Wheat. 183; Rotch v. Edie, 6 T. R. 413; Odlin v. Ins. Co. of Penn. 2 Wash. C. C. 312; Ogden v. N. Y. Ins. Co. 10 Johns. 177.

(1) Emerigon, Meredith ed. 420; Pow

ell v. Hide, 5 Ellis & B. 607; Black v. Marine Ins. Co. 11 Johns. 287.

(m) See Olivera v. Union Ins. Co. 3 Wheat. 183, Green v. Young, 2 Salk. 444; Mumford v. Phoenix Ins. Co. 7 Johns. 449.

(n) Rotch v. Edie, 6 T. R. 413.

(0) Olivera v. Union Ins. Co. 3 Wheat. 183; Wilson v. United Ins. Co. 14 Johns. 227; Richardson v. Maine Ins. Co. 6 Mass. 102.

1 That the offence of barratry may properly be insured against, see Atkinson v. Great Western Ins. Co. 65 N. Y. 533, in which the authorities upon the question as to what constitutes barratry are collated and discussed. K.

2 If a policy excepts capture and seizure, and the vessel is seized in smuggling goods into a foreign port because of the master's barratry, the loss is due to the seizure, and not to the barratry, and the insurer is not liable for expenses incurred in recovering the vessel. Cory v. Burr, 8 Q. B. D. 313; 9 Q. B. D. 463.-K.

3 Or a siege. Rodocanachi v. Elliott, L. R. 8 C. P. 649; 9 C. P. 518. — K.

If the legality of the seizure determines the liability of the insurers, this legality must be determined by the government of the country to which the vessel belongs, because it may recognize or not recognize the right of the seizing power to make the seizure. (r)

What constitutes a claim of general average has been fully considered in the chapter on contracts of shipping. But this claim may be placed among the risks against which insurance is made, because if the property insured be itself uninjured, but owes its safety to the sacrifice of other property for which it makes contribution by way of general average, this contribution is unquestionably a loss within the policy.

So if insurers pay for a loss on the sacrificed property, they acquire by this payment all the right which the owner of the property sacrificed has to claim contribution. Usually, in prac

tice, the insured whose property is sacrificed claims and receives the contribution to which he is entitled, and then claims of the insurers only the balance. But it seems now to be settled, that the insured may claim of the insurers his whole loss by sacrifice, and transfer to them his claim for contribution; and the right to do this might be important to the insured, if the contributors were insolvent or inaccessible. (s)

Insurers are liable for a general average, when they insure against that peril or loss to avert which the sacrifice was made; for a loss by contribution is regarded as a loss by that very * peril. Thus, if a cargo be insured with the excep- * 381 tion of war risks, and the ship and cargo are captured and liberated by expense or payment, the cargo pays its share; but the insurers are not liable, because the loss thus sustained is a loss by the excepted war risk. So it would be if the contribution were for a loss caused by fire, or any other risk, and this were an excepted risk.

In the section upon total loss, we shall see, that in this country a loss of more than fifty per cent. of value makes a constructive total loss. If the insured loses by a sacrifice more than fifty per cent., and has a claim for contribution which would reduce his loss below fifty per cent., he may still make this a construc

(r) Williams v. Suffolk Ins. Co. 3 Sumner, 270, 13 Pet. 415.

(8) Maggrath v. Church, 1 Caines,

196; Watson v. Marine Ins. Co. 7 Johns. 62; Lord v Neptune Ins. Co. 10 Gray, 126; Amory v. Jones, 6 Mass 318.

tive total loss, transferring to the insurers by abandonment his claim for contribution. (t)

These rules would not apply to an insured who owned the property lost, and also other property, which, because saved, must contribute to himself for the loss, for he must first allow for this contribution from himself, and claim of the insured only for the balance. (u)

H.Of Salvage.

Of the general law of maritime salvage we have fully treated in the Law of Shipping. It does not seem necessary to add more in this place, than that salvage claims are among the risks which insurers cover by insurance. For if property which is wholly uninjured was liable to destruction by a maritime peril, and was saved by salvors who are paid for their service out of the proceeds, the insurers are liable to the owners for such payment.

* 382

* SECTION IX.

OF TOTAL LOSS.

A.

Of Actual Total Loss.

This hap

The property insured may be totally lost, in fact. pens only when a ship is never heard from, or is wholly destroyed by fire, or submerged beneath the water. Even in these cases, it is not uncommon for parts which may have an actual value, to be cast on shore or found floating. Such a case, however, would be called a case of actual total loss, with salvage. (v)

If a vessel be abandoned by her officers and crew on the ocean, without sufficient cause, which in such case the assured must prove, it might be a total loss to him, but the insurers would not

(t) Moses v. Col. Ins. Co. 6 Johns. 219; Forbes v. Manuf. Ins. Co. 1 Gray, 371. See contra, Lapsley v. Pleasants, 4 Binn.

502.

(u) Potter v. Providence Ins. Co. 4 Mason, 298, Jumel v. Marine Ins. Co. 7 Johns. 412.

() See Roux v. Salvador, 3 Bing N. C. 266; Hugg v. Augusta Ins. Co. 7 How. 605; Murray v. Hatch, 6 Mass. 465; Tudor

v. New England Ins. Co. 12 Cush. 554. The word salvage has been defined to mean “a part or remnant of the subject insured which survives a total loss." The insurers are not, therefore, entitled to property as salvage, which was severed from the voyage by their consent, before the loss took place. Mutual Ins. Co. v. Munro, 7 Gray, 246.

be responsible for it. But if a vessel was so wrecked or injured that it could not have been brought into port, the insurers are liable as for a total loss, although she continued to float, and the master and crew abandoned her without any immediate danger or necessity. (w)

B. Of Constructive Total Loss, and of Abandonment.

Where the vessel or cargo is lost, but a valuable part remains in the owner's hands, or comes to him afterwards, either by salvors, or by a restoration of seized property, this cannot be called an actual total loss. Formerly, it was the practice to adjust it as a partial loss, the insured giving the insurers credit for whatever thus came into their possession. It was found, however,

383

to be more convenient, and on the whole more just to * treat it as a total loss; and to consider all the property recovered as belonging to the insurers. (x) This is now the usual practice. Such a loss is called constructive total loss, or a technical total loss.

The property saved does not, however, belong to the insurers, unless they pay for a total loss, or unless the owner transferred it to them. (y) This transfer the owner makes, by what is called in insurance law an Abandonment. And when he has a right to make this abandonment, and makes it at the right time and in the right way, he thereby changes an actual partial loss into a constructive total loss.

No one topic of the law of insurance has been more fertile of difficult questions, than the law of abandonment. These ques

tions are, in general, When has the insured the right of abandonment? In what way must he exercise this right? What is the effect of abandonment? and What is the effect of withholding abandonment?

The policy sometimes provides that there shall be no abandonment. This would be intended, undoubtedly, to prevent a partial loss from being made a constructive total loss, and would proba

(w) Walker v. Protection Ins. Co. 29 Me. 317.

(r) There is a difference of opinion as to the expediency of extending the right of abandonment. Some authorities are in favor of restraining the right. See Mitchell v. Edie, 1 T. R. 615; Deblois v. Ocean Ins. Co. 16 Pick. 303; Bainbridge

v. Neilson, 10 East, 343. But see the remarks of Story, J., in Peele v. Merchants Ins. Co. 3 Mason, 38.

(y) The insured may always withhold an abandonment if he chooses, and have his loss adjusted as a partial loss merely. Smith v. Manuf. Ins. Co. 7 Met. 451, Hamilton v. Mendes, 2 Burr. 1211.