If a ship be not heard of for a reason able time, she shall be presumed to have foundered at sea, and the insured has a right to recover, as such, from the un derwriter. A loss by fire, which is merely accidental, and not , imputable to the master or mariners, is undoubtedly within the policy. If a ship be burnt by order of the state where she happens to be, to prevent infection, this also has been held a loss within the policy.
If a ship be attacked by an enemy, and the captain, unable to defend her, leave and set fire to her, to prevent her from falling into the enemy's bands, the insurer is said to be liable.
Capture is where a ship is taken by an enemy in war, or by way of reprisals, or by a pirate. Capture may be with an in tent to possess the ship and cargo, or only to seize the goods on board as con traband; the former is a capture, the latter only an arrest or detention. Every capture, whether lawful or unlawful, is within the policy ; provided the words of the policy be sufficiently comprehensive. Where the ship is re-captured before abandonment, it is a partial loss ; and the insurer is bound to pay the salvage, and other necessary expenses the insured may have incurred to recover his property. In general, wherever a ship is taken by the enemy, the insured may abandon, and demand as for a total loss ; but be is not bound to abandon; if he do, the insurer, in case of re-capture, will stand in his place, and is liable for all fair charges oc casioned by the capture.
Loss by detention of princes, &c. There is an obvious difference between this and capture ; the object of the one is prize, that of the other detention, with a design to restore the ship or goods detained, or pay the value to the owner : and though neither of these should be done, still it must be considered as the arrest of princes, the character of any action de pending on the original design with which it was done. Au 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.
Loss by barratry. Barratry isany species of fraud committed by the master 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 cargo, smuggling, or any other offence, whereby the ship or cargo may be sub jected to arrest, detention, loss, or for feiture. No fault of the master or mari ners amounts to barratry, unless it pro ceed from an intention to defraud the owners; therefore a deviation, if made through ignorance, unskilfulness, or any motive which is not fraudulent, although it will avoid the policy, does not amount to barratry.
Loss by average contributions. The goods onboard are, in proportion to their respective interests, liable to contribute towards any particular loss or expense in curred for the general safety of the ship or cargo, so that the particular loser may not be a greater sufferer than the other owners 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 ; in these, and similar cases, the loss is the proper sub.
ject 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. 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 heavy and bulky goods. But the persons on board, their wearing apparel, and the jewels belonging to it, shall not contri bute; neither are seamen's wages liable to contribute.
Loss by 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 the statutes 12 Anne, c. 18, 26. Geo. II. c. 19, 33. Geo. ILL c. 66. The insured need not in his action declare for salvage, but may recover un der a declaration for the loss which oc casioned it, and the damage which the goods have sustained. In case of neutral ships captured by the enemy, and re taken by British men-of-war, or priva the Court of Admiralty has a dis Cretionary power of adjusting the sal vage. Before an action will lie for a loss by payment of salvage, the amount must be ascertained by decision of the Court of Admiralty.
Abandonment. The insured may aban don in every case, where, 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 be of little or no value to the owner, where the sah age is immoderate, where what is saved is of less value than the freight, or where further expense is ne cessary, and the insurer will not under take to pay that expense, &c.
Shipwreck is generally a total loss, What may be saved of the ship or cargo is so uncertain, that the law cannot dis tinguish this from the loss of the whole. But a 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.
Return of premium. The premium is to be returned in all cases where the con tract is void for want of interest; which may be either total, as where the insured has nothing on board the ship ; or partial, where he has some interest, but not to the amount in the policy ; and it is a ge neral rule, that, wherever insurance is made through mistake, misinformation, or other innocent cause, without interest, or for more than the real interest, there shall be a return of premium.
On a wager policy, the insured cannot recover back the premium, at least after the risk is run. This policy is void, as being without interest, but both parties being guilty of a breach of the statute 19 Geo. B. c. 37, the rule, that where both parties are equally criminal, the possessor has the advantage, applies, and the in sured cannot recover back the premium.