upon, barratry may be set up as the cause of loss, whether the loss occurred actually during the fraudulent voyage or afterwards, if barratry be, indeed, the proximate cause of loss.1 § 208. It is no defence to the charge of barratry, to set up the fact of the master's drunkenness, but it is otherwise with respect to insanity, even if brought on by excessive drinking. The master of a whaling vessel, instead of cruising for whales, put into the port of Taheti and there performed various barratrous acts. It was endeavored to be shown by the defence that these acts were done by the captain while under the influence of liquor, but the court held that this was no defence, unless it could be made clear that at the very time of the commission of the barratrous acts, the master was in a fit of delirium tremens or laboring under some other form of insanity.2 The Barratry is the act of master or crew. It would seem that this does not include the act of the purser of the vessel. fact that others not standing in any direct relation to the owner combined in the commission of the barratrous act, with the master or crew, does not affect its character. In Toumlin v. Anderson a ship had on board a large number of prisoners of war. These combined with five of the mariners and captured the ship. This was a loss by barratry. The privity of the freighter to the barratrous act does not affect its character;" nor does the fact of the subsequent condemnation of the cargo by an enemy's prize court create a presumption that the loss was in reality by capture and not through barratry. Barratry may be committed by the master in respect to the cargo, though the owner of the cargo is at the same time owner of the ship try; if for the owners' exclusive advantage this is clearly not barratry. In the case at bar the advantage of both was sought. This cannot be held to be barratry. 1 Vallego v. Wheeler, 1 Cowper, 143. Hun (N. Y.), 100; but see S. C., 80- 4 1 Taunt. 227. 5 Also Toumlin v. Inglis, 1 Camp. 421. Unless, of course, the privity of the ship-owner can be also shown. Lawton v. Sun Mutual Ins. Co., 2 Boutflower v. Wilmer, 2 Selwyn's Cush. (56 Mass.) 500. Spinetti v. Atlas S. S. Co., 14 Nisi Prius, 96 (21 Geo. II.). 7 Goldschmidt v. Whitmore, 3 Taunt. 508. and though the master is also the supercargo or consignee for the voyage.1 § 209. The barratrous act must be prejudicial to and without the knowledge of the owner. It is not essential that the barratry should be to the interest of the masters and, on the other hand, in Earle v. Rowcroft the doctrine is laid down that an intention to injure the owner, or to gain at his expense, need not be shown. It is enough if the act prove to be a breach of the trust reposed and to the owner's injury." § 210. It follows as a corollary from what has been said, that a master who is an owner cannot commit barratry. A master who has control of the vessel under a charter-party cannot commit barratry. The same rule holds as to a master who is a part owner, or who hires a vessel for a stated period, rendering to the owner a portion of the profits. Where, however, M. chartered a vessel to A. and B. for a particular voyage, reserving 1 Cook v. Commercial Ins. Co., 11 Johns. (N. Y.) 40. 2 Nutt v. Bourdieu, 1 T. R. 323; Croussillat v. Ball, 4 Dall. 294; Ward v. Wood, 13 Mass. 539. The privity of the owner will not, however, be disaffirmed by the mere fact that the master has sworn that a vessel, condemned for a breach of blockade, was really bound for another destination. Everth v. Hannam, 6 Taunt. 375. 3 Dederer v. Delaware Ins. Co., 2 Wash. C. C. 61. The presumption is that a fraudulent act was for the benefit of the master. The insured need not affirmatively show it to have been Kendrick v. Delafield, 2 Caines So. (N. Y.), 67. 4 8 East, 126. 5 This case is apparently opposed to the principle (stated above) that a wrongful intent is necessary to constitute barratry. Perhaps the two principles are to be reconciled by stating that in case of injury, where the intent to injure has been wanting, the wilful ness is to be implied, from the fact 8 Wilson v. General Mutual Ins. Co., 12 Cush. (66 Mass.) 360; Jones v. Nicholson, 10 Exch. 28; 1 Phillips on Ins., § 1082; Ross v. Hunter, 4 T. R. 33. 9 Hallet v. Columbian Ins. Co., 8 Johns. (N. Y.) 272; Taggard v. Loring, 16 Mass. 336. It is not incumbent on the insured to prove that the master was not the owner. That must be shown by the insurer. A fraudulent sale and purchase by the owner will not make him the owner, so as to afford a defence to a claim for a loss by his barratry. Steinbach v. Ogden, 3 Caines, 1. certain privileges and half the cabin for the master and mate and covenanting to hire and pay the master and crew and furnish them with all provisions, etc., and, at the request of B. who was on board, the master deviated from his course and was captured by a Spanish privateer, this was held to be barratry, in that M. was still the owner of the ship.' Barratry cannot be committed by a master who has the equitable title to the vessel.2 § 211. The act of the owner himself may sometimes be barratry. If a vessel is owned by two persons and one as part owner commit the barratrous act, this will not defeat the right of the other to recover his portion on the grounds under consideration. Where, too, the owner places the vessel under the sole control of the freighter, any act of the owner in defraud of the freighter, as wilfully running the ship ashore, is barratry. Negligence on the part of the insured is a good defence to the allegation of barratry, but it is incumbent on the insurer to prove such negligence. The insured does not have to prove the negative. The negligence may be constructive, as where the plaintiff was presumed to have negligently permitted smuggling, from the fact that he had ample opportunity to know that it was being carried on. 212. Loss by "collision" is said to be included in the exception perils of the seas. By this is meant loss by unavoidable collision to which the negligence of the carrier has in no way contributed." There are four possible conditions respecting negligence 1 McIntyre v. Bowne, 1 Johns. (N. Y.) 229. 7 Smith v. Scott, 4 Taunt. 125; The Kathleen, 43 L. J. Adm. 39; 2 Barry v. Louisiana Ins. Co., 11 Lloyd v. General Iron Screw Collier Mait. La. 630. 3 Strong v. Martin, 1 Dunl. Bell and Mur. Sess. Cas. 1245. But see cases before cited. Soares v. Thornton, 7 Taunt. 627. 5 American Ins. Co. v. Bryan, 26 Wend. (N. Y.) 563; Stone v. National Ins. Co., 19 Pick. (36 Mass.) 34. Pipon v. Cope, 1 Camp. 434. Co., 10 L. T., N. S. 586; S. C., 12 W. R. 882; 10 Jur., N. S. 661; 33 L. J. Exch. 269; 3 H. & C. 284; Plaisted v. Boston, etc., S. Nav. Co., 27 Me. 132; Hays v. Kennedy, 41 Pa. St. 378; S. C., 3 Grant (Pa.), 351; Van Horn v. Taylor, 7 Rob. La. 201; The New Jersey, Olcott, 444; Peters v. Warren Ins. Co., 14 Pet. 99; Marsh v. Blythe, 1 McCord, 360. under which collision may occur. First, when the master or crew of each of the colliding boats has been guilty of negligence. Second, where the accident is due to the negligence of the master or crew of the boat on board which are the goods. Third, where the accident is due to the negligence of the master or crew of the other vessel. Fourth, where there is no negligence on either side and the loss is strictly unavoidable.' Clearly the carrier cannot take refuge under the exception under consideration or under the exception "Perils of the sea" to escape his liability for a loss coming under either the first or the second3 head. It is equally clear, on the other hand, that these exceptions will exonerate the carrier from liability for losses of the fourth class.“ 213. As to the third class, however, there has been some question. The American cases are all to the effect that an innocent carrier will in such case of loss be exonerated under the exception "perils of the sea," no matter what negligence may be imputed to the other carrier. Mr. Lawson in his work on Contracts of Carriers while admitting the law to be as stated in these cases, criticises its soundness on the ground that the injured carrier has himself a remedy over against the vessel inflicting the injury and he cites an opinion by Lord KENYON, in Buller v. Fisher" (1800), in which the phrase "perils of the sea" is made to include only" misfortune happening during the voyage, which human prudence could not guard against. accidents happening without fault in either party," and hence, by implication, perhaps, to exclude the class of accents under consideration. This case is not supported by the other English decisions,' nor is the reason given for its soundness, convincing. Whatever may be the interpretation of the phrase, "perils of the sea," with respect to accidents of this sort, there can be but little doubt that the exception "collision" when included in a bill of lading, embraces all accidents of that nature not attributable to the negligence of the carrier. In The Sun Mutual Insurance Company v. The Mississippi Trans. Company, the carrier was the owner of a line of barges, in one of which the goods of the plaintiff were to be conveyed. Through carelessness in the manoeuvering of the defendant's tug boats in getting the barges together preparatory to starting, a collision ensued by which the plaintiff's goods were damaged. Collision was among the excepted perils. The court held that the loss was not covered by this exception. § 214. The obligation to protect the goods after damage by collision rests on the carrier, as in the cases of loss falling within the other exceptions. In Notara v. Henderson,3 the plaintiffs shipped beans from Alexandria for Glasgow. While in the intermediate port of Liverpool, the carrier's ship met with damage by collision. The beans were wetted by sea-water and the ship remaining only a few days at Liverpool, it was impossible to dry them. The plaintiff's objected to the beans being taken on to Glasgow in their then condition and offered to receive the goods and pay freight pro rata to Liverpool. Defendants insisted on full freight and carried the beans to Glasgow, where they arrived in a damaged condition. It was held that the plaintiffs were entitled to recover. § 215. The mere proof of the happening of a collision is not, however, evidence of negligence. It is necessary for the party suing a carrier protected by the exception to give evidence of the absence of reasonable care or maritime skill on the carrier's part. Where doubt exists as to the cause of the accident, the 1 Smith v. Scott, 4 Taunt. 125; Wilson v. Xantho, L. R., 12 App. Cas. 503; Peakes, C. 183; 2 Arnould on Insurance, 804; Abbot on Shipping, Pt. III., ch. iv., § 5, 5th ed. See Story on Bailments, §§ 512, 514. 24 McCrary, 636. See also Wilson v. Xantho, L. R., 12 App. Cas. 503. 3 L. R., 52 B. 346; S. C., 41 L. J., 2 B. 158. |