still it must be considered as the arrest of princes, the character of any action depending on the original design with which it was done. An arrest of princes may be at sea, as well as in port, if it be done from public necessity, and not with a view to plunder.

If a neutral vessel be taken at sea, on pretence that she is an enemy, this is a capture because it is done as an act of hostility; but if she be unlawfully arrested, under pretence that she committed some offence against the law of nations, this is an arrest of princes.

In the case of a ship seized for navigating against the laws of a foreign state, not paying customs, &c., this shall not be deemed a loss by detention of princes; though perhaps it may amount to barratry of the master.

The most frequent cause of detention is an embargo: which is an order of state, usually issued in time of war, or threatened hostilities, prohibiting the departure of ships or goods from some or all of the ports of such state until farther orders. This, whether legal or not, is a detention within the policy. By the word people, in the policy, is meant the force of the nation, not a mob or lawless rabble ; a ship seized by them, is a loss by pirates, not by the detention of a people. Nesbit v. Lushington, 4 T. R. 783.

A neutral ship and stores, being insured at and from an enemy's port, and an embargo being there laid on by the enemy, this is an arrest of princes; and, if the embargo continues, the insured may abandon, and recover as for a total loss. Rotch v. Edie, 6 T. R. 425.

Loss by Barratry. Barratry is any species of fraud committed by the masters or mariners, whereby the owners sustain an injury; as by running away with the ship, wilfully carrying her out of her course, sinking or deserting her, embezzling the cargo, smuggling, or any offence, whereby the ship or cargo may be subjected to arrest, detention, loss, or failure. No fault of the master or mariners amounts to barratry, unless it proceeds from an intention to defraud the owners; therefore a deviation, if made through ignorance, unskilfulness, or any other motive which is not fraudulent, although it will avoid the policy, does not amount to barratry. Phyn v. Roy, Ex. Ass. Co. 7 T. R. 505.

A deviation occasioned by the disobedience of the seamen, and their compulsion of the captain, has also been holden not to be barratry, where not done to defraud the owners. Elton v. Brogden, 2 Str. 1264. And yet where a captain cruised in quest of prize contrary to his orders, this was deemed barratry, though done for the benefit of the owners. Moss v. Byrome, 6 T. R. 379.

Barratry can only be committed by the master and mariners by

some act contrary to their duty, in the relation they stand to the owners of the ship; therefore an owner cannot himself commit barratry, nor can it be committed by his consent. Thus, if a ship be engaged to carry goods straight to Marseilles, but in the stead of going direct she goes to Genoa and Leghorn; this being done by the authority of the owner, and for his benefit, it is not barratry. Stamma v. Brown, 2 Str. 1113.

Where a ship is let out to freight generally, the freighter being considered the owner for that voyage, a deviation of an illegal purpose, without the knowledge or consent of the freighter, will be barratry, though with the consent of the original owners. Vallejio v. Wheeler, Cowp.

143.

Though barratry must be strictly proved, yet proof of this is prima facie evidence without showing negatively that he was not the owner. Ross v. Hunter, 4 Term. Rep. 33.

Loss by average contributions. The goods on board are in proportion to their respective interests, towards any particular loss or expense incurred for the general safety of the ship or cargo, so that the particular loser may not be a greater sufferer than the other owner of the goods. Thus where the goods of a particular merchant are thrown overboard to lighten the ship; where the masts, cables, anchors, or other furniture of the ship are cut away or destroyed for the safety of the whole; where money or goods is given as a composition to pirates; where damage is sustained in defending a ship against an enemy or pirate; where expense is incurred for physic and attendance in curing the seamen wounded in defence of the ship, or in a law suit before a foreign court of admiralty for her defence or recovery; in these and similar cases the loss is the proper object of a general contribution, and ought to be rateably borne by the owners of the ship, freight, and cargo, so that the loss may fall proportionably on all.

This is termed general or gross average, to be distinguished from what is often but improperly termed particular average, but which in truth means a particular, and not a general average, and has no affinity to average properly so called. There are also small charges called petty or accustomed averages, such as pilotage, towage, light money, river charges, digging the ship out of the ice, &c. These charges when incurred in the ordinary course of the voyage, are not considered a loss within the meaning of the policy, but are borne one third by the ship, and two thirds by the cargo; but if incurred for any extraordinary purpose in the voyage, as to provide against any impend

ing danger, or in consequence of the ship being driven out of her course by stress of weather, then they will be deemed general average.

General average can only be claimed where the sacrifice was absolutely necessary, and where it appears to have conduced to the safety of the ship. Thus, if a pirate having made himself master of the ship, take only the goods of a particular person, or if some particular goods be damaged in a storm, the rest shall not be contributory. So, if on the apprehension of an attack of an enemy some goods are landed, and the rest taken, the owner of the goods taken shall not have average of the goods saved; for if the salvage of this is not the cause of the taking of the rest, neither was the taking of those the cause of the salvage of the goods saved.

It is also necessary to constitute average, that the rest of the cargo were actually saved; for should goods be thrown overboard in a storm, and the ship afterwards perish in the same storm, there shall be no contribution of the goods saved, if any, the object of throwing the goods overboard not having been obtained; but if in continuing the course, the ship should afterwards be lost, then any of the goods saved must contribute to the loss sustained by the jettison. On the same principle, if goods put into lighters, to enable a ship to get up a river, be lost, the rest shall contribute; but if the ship be lost, then the goods in the lighter shall not contribute.

On a policy on the ship, the wages of the ship's company while she was under repair, not occasioned by any extraordinary accident, cannot be recovered from the insurers. Park. 125.

If a ship be obliged to put into a port to repair, the expense of unloading and reloading the cargo, and the expenses of the repair are the subject of a general average.

But no injury occasioned by mere sea damage, can properly give a right to general average; as if the ship be damaged in her hull or rigging. And if a ship spring a leak in a storm, by which the goods on board are spoiled, there is a simple or particular average, or particular loss, and not subject to an average contribution.

As to the articles liable to contribute, the rule is, that the ship, freight, and every thing remaining of the cargo, is subject to this charge; therefore money, plate, and jewels, are as much liable as more bulky goods. But the persons on board, their wearing apparel, and the jewels belonging to it, shall not contribute; neither are seamens' wages liable to contribute.

If the ship escape the danger which made the sacrifice necessary, and arrive at her port of destination, the captain should regularly enter and extend his protest, and he, and some of the crew, make affidavit of the facts. The average should then be settled, and be paid before the cargo is landed, or a bond be taken from the freighters for the purpose. The owners having a lien on the goods on board for the freight, and to answer all necessary averages and contributions, otherwise the sufferers have a remedy against the captain or owners, for neglecting to adjust or collect the average. See Average.

Loss by the expense of Salvage. At common law the party has a lien on every thing saved, till payment of salvage, but the regulations now principally in force are ascertained by acts of Congress. See Salvage.

In case of neutral ships captured by the enemy, and retaken by united ships of war, or privateers, the court of admiralty has a discretionary power of adjusting the salvage. Before an action will lie for a loss for payment of salvage, the amount must be ascertained by decision of the court of admirality.

Abandonment. The insurer may abandon in every case when in consequence of any of the perils insured against, the voyage is lost, or not worth pursuing: where the thing insured is so damaged as to by little or no value to the owner, where the salvage is immoderate, where what is saved is of less value than the freight, or where further expense is necessary, and the insurer will not undertake to pay that expense, &c.

Capture by an enemy or a pirate, an arrest of princes, or even an embargo, is prima facie a total loss, and the insurer may immediately elect to abandon, and give notice to the insurer of his intention so to do, which entitles him to claim as a total loss. But as the insured cannot abandon till he receives advice of the loss; if at the time of receiving such advice, or before he has elected to abandon, he receives advice that the ship or goods are recovered, or in safety, then he cannot abandon. If a captured ship be retaken, and permitted to proceed on her voyage, so that she suffers but a small temporary inconvenience, this would be a partial, not a total loss; on the other hand, a title to retribution on recapture, does not always or necessarily deprive the insured of the right to abandon; for if from the capture the voyage be lost, or not worth pursuing, and the salvage very high, or the insurer will not undertake to pay the future expense, the insured may

abandon. If the thing insured be recovered before the loss is paid, it will be total or partial according to the final event; that is according to the state of the case when the claim is made.

But if after a total loss has been paid, the thing insured be recovered, the insured shall not be obliged to refund. The insured may abandon if the voyage be defeated, or not worth pursuing, but he cannot, merely by abandoning, term a partial to a total loss. And though there may have been at one time a total loss, yet the insured cannot abandon after the final event has determined it to be only a partial loss,at the time the action brought, as the insured is in no case obliged to abandon, so no right to a total loss can be vested in him till he has made his election. The plaintiff on a policy can only receive indemnity according to the nature of his case, at the time the action is brought, or at most,at the time of his offer to abandon. If on a recapture, the captain sell the ship and cargo, as being the best to be done for all concerned, the insured may abandon. Mills v. Fletcher, Doug. 219.

On the other hand, if the captain purchase the ship from the captors, on account of the owners, the money paid being in the nature of a salvage, is only a partial. McMasters v. Shoolbred, Esp. Rep. 237.

Shipwreck, is generally a total loss-what may be saved of the ship or cargo is so uncertain, that the law cannot distinguish this from the loss of the whole. The wreck of the ship may remain, but the ship be lost. A thing is said to be destroyed when it is so broken, disjointed, or otherwise so injured that it no longer exists in its original nature and essence. So goods may remain; but if no ship can be procured in a reasonable time, to carry them to the place of their destination, the voyage is lost. But the mere stranding of the ship is not of itself a total loss; it is only where the stranding is followed by shipwreck, or the ship is otherwise incapable of prosecuting her voyage. No partial loss, however great, can be turned into a total loss. Thus a ship performed her voyage, and arrived at her place of destination, but so damaged that she was not worth repairing; but as the damage was only estimated at 48 per cent. this was held not to be a total loss, which entitled the plaintiff to abandon. Cazalet v. St. Barbe, 1 T. R. 187.

A ship insured for 6 months, receives great injury within the time, and the captain being unable to get her repaired, sells after the time, this is not a total but a partial loss. Fowmeaux v. Bradley, B. R.

East, 20 Geo. III. Park. 166.

In like manner a privateer insured for 4 months, free from average,