The words "men-of-war" and "enemies" obviously refer to those who, authorized by a prince or sovereign state, make war in the mode sanctioned by the law of nations as distinguished from "pirates," "rovers," and "thieves," who are unauthorized depredators.

"Letters of mart" are commissions granted by the sovereign power to those persons whose property has been seized by subjects of other states, authorizing the former to indemnify themselves for the loss sustained by making reprisals. "Letters

of countermart" are letters issued in favor of those threatened by such reprisals, authorizing them to resist the privateers furnished with letters of mart.

Captured property is not considered to have been divested from its original owner until it has undergone sentence of condemnation in a legally constituted court of the enemy. But the assured may abandon to the underwriter, and claim for a total loss, on first hearing of the capture. If the abandonment is accepted by the underwriter, the matter is settled. If it is declined, the assured may take legal proceedings, and will recover, provided the property is not restored before action is brought.

Necessary expenses incurred in the redemption or recovery of captured property are, in general, recoverable under the policy.

The word "thieves," as used in the English policy, has been held to be applicable only to persons proceeding from outside of the ship, not to the crew or passengers. The robbery contemplated, according to that rule, is that which is committed. with violence, and does not extend to mere theft which it is considered might be prevented by the exercise of ordinary vigilance on the part of those in charge of the vessel. Consequently the master or owner is alone responsible for this species of loss, which is not attributable to accident, but to the negligence of those who were bound to take proper care of the property. The same interpretation has been given by the English court to the word "thieves" in the bill of lading as in the policy of insurance.1

A different rule, however, has been followed in America, and the word "thieves" as used in the marine policy here is 1 1 Taylor v. Liverpool & G. W. Steam Co., 2 Asp. Mar. L. C. 277.

not confined to assailing thieves, but extends to thefts by mariners, passengers, or others.1

§ 216. Arrests, Restraints, etc.-This clause refers only to acts of state, or acts authorized by the sovereign authority in the country. An unauthorized seizure or detention, as by a mob in a meal riot, does not come within the clause, though the underwriter would be liable for it as a loss by pirates or thieves.2 Capture is taking possession with intent to change the property; arrest is taking with intent ultimately to restore to the owner; restraint is a prevention of the goods from going.

The species of arrest to which shipping has been most frequently subject is an embargo, which is a decree issued by the government of a state to prohibit the departure of vessels. lying within its jurisdiction. An embargo laid upon any vessel entitles the assured to give notice of abandonment, and, if the embargo continues to the time action is brought, to recover as for a total loss; unless, in the first place, the arrest is only temporary, without occasioning any permanent loss of control over the ship, or unless the assured is a foreigner and the embargo is imposed by his own government in contemplation of hostilities with this country.

The acts and restraints of princes and rulers mentioned in the policy and bill of lading have reference to a forcible interference, and do not extend to legal proceedings conducted in a constitutional manner. A blockade operates as a restraint of princes with respect to property detained within its compass; but, according to an English decision, exclusion from a port is not restraint, and, accordingly, a loss resulting from the abandonment of the voyage owing to the blockade of the port of destination was not recoverable under the policy, such a loss being excluded by the rule causa proxima non remota spectatur.1 The term "people" is to be understood not in the sense of

1 Am. Ins. Co. v. Bryan, 1 Hill, 25. Spinetti v. Atlas Steamship Co., 80 N. Y. 71.

W. Steamship Co., 23 L. T. N. S. 251.

4

• Rodocanochi v. Elliott, 28 L. T.

"Nesbitt v. Lushington, 4 T. R. N. S. 845. See Richardson v. Maine F. & M. Ins. Co., 6 Mass. 102; s. c.,

783.

'Finlay v. The Liverpool & G. 4 Am. Dec. 92.

a mob or multitude, but as the ruling power, however it may be composed.1

Sometimes vessels are seized and detained, and even confiscated, by the authorities under whose jurisdiction they are lying in consequence of some violation of the law having been committed by the persons connected with them. This, however, is not an arrest, restraint, or detainment of princes, though it may amount to barratry of the master or mariners.

§ 217. Barratry of the Masters and Mariners.This term signifies any wilful misconduct, either fraudulent or in violation of the law, which is committed by the captain or crew without the connivance of the ship-owner, and which tends to the ship-owner's prejudice, either as injuring or expos ing to risk of injury his property or the property intrusted to his care, or as exposing it to the risk of forfeiture or seizure for penalties on account of the breach of law.

Barratry is a crime, and therefore no mere error of judg ment can amount to it; but a willfully improper stowage of cargo on deck, instead of under deck as instructed, will constitute barratry by a master. The act of barratry need not be intended for the private benefit of the master or mariners, for any unauthorized breach of law exposing the owner to penalties is barratry, though it were intended for the advantage of the owner; but negligence is not barratry.

Examples of fraudulent barratry are scuttling, burning, or stranding, or selling or disposing of a ship, or running away with her, embezzling the cargo and unlawfully selling it, or making away with the proceeds, or any mischief done to ship or cargo by mutineers. Examples of barratry through mere illegality are smuggling,7 illegal trading, breach of port regula

1 Simpson v. Charleston F. & M. Ins. Dederer v. Delaware Ins. Co., 2 Wash. Co., Dudley (S. C.), 239. C. C. 61.

tions, exposing the ship to seizure or penalties,1 and the like. But it should be clearly understood that complicity of the owner in any of these misdemeanors will exclude them from the category of barratry and discharge the underwriter from all responsibility for the consequences.

Complicity may be inferred from a want of reasonable vigilance, as where a captain had gone on smuggling for three successive voyages without interference on the part of the owner.2 By the owner must here be understood that owner who has the immediate control over the master and crew; that is to say, the power of dismissing them. A ship-owner who is also part owner can commit barratry as against his co-owners and their underwriters, though, of course, not against the underwriters of his own share. If the policy contains a warranty against capture and seizure, and the barratry is smuggling, and the loss claimed is a penalty inflicted as the price of releasing a ship after seizure, this is not recoverable, being a loss by seizure and therefore barred by the warranty.

The liability of underwriters for the consequences of the barratrous acts of the master and crew may be limited by express agreement.

§ 218. Jettison.-This is the intentional throwing overboard of a part of the cargo, or any article on board of a ship, or the cutting or casting away of masts, spars, rigging, sails, or other furniture, for the purpose of lightening or relieving the ship in case of necessity or emergency. For such losses, the underwriter of the goods jettisoned is in the first instance directly liable; the loss, though by the hands of man, being necessitated or justified by the accidents of navigation.

5

When goods or effects are jettisoned for the common safety, all who have derived benefit, that is to say, the owners of the ship and the entire cargo, are bound to join in replacing the loss by the contribution called general average. If the underwriter of the article thus sacrificed has paid his assured the

1 Knight v. Cambridge, referred to Wilson v. General Mut. Ins. Co., 12 in 8 East, 136. Cush. 360; s. c., 59 Am. Dec. 188.

loss, he is entitled to stand in the place of the assured, and to receive his share of the indemnity furnished by the general contribution. When goods are jettisoned, the freight is, so to speak, jettisoned with them, and is likewise recoverable in general average. Loss, which is the necessary and immediate consequence of a jettison, is reimbursed in the same way as the jettison itself. Such, for example, is damage caused by the entrance of water into the ship's hold while a jettison is being effected; or by holes being cut in the deck for the same purpose.

By general mercantile usage, the loss by jettison of goods stowed on deck is not allowed in general average. To this usage there is, however, the well-recognized exception, that, in case the carriage of a deck load is customary in the particular trade, contribution is made for the value of goods jettisoned from the deck in the absence of any agreement to the contrary.

A jettison may be induced by motives other than the common safety, as, for instance, where the ship, being in imminent danger of capture, the master dropped a bag of specie into the sea lest it should fall into the hands of the enemy, for which the underwriter was held liable under the head of jettison;1 but when goods are thrown overboard on account of their inherent vice, the underwriters are not liable.2

§ 219. All Other Perils, Losses, or Misfortunes.The terms of this clause are so comprehensive as at first sight to convey the impression that they embrace every kind of mishap, not already enumerated, to which property at sea can be subjected. Such, however, is not the case; for here the rule of construction applies that general terms following particular ones apply only to matters which are of the same kind with those specified. Accordingly, the effect of the general undertaking, expressed as above, is to bring within the scope of the contract all casualties which, though not identical with, are similar to, the risks enumerated. Thus, the expression of all other perils, losses, and misfortunes" has been held to include damage to a ship which had been heeled over by the 1 Butler v. Wildman, 3 B. & Ald. "Taylor v. Dunbar, L. R., 4 C. P. 398.

206.