Majority
p. 1Williams against Smith.
Headnote
To constitute a blockade, so as to affect a policy of insurance by a violation of it, there must be an actual existing force before the port, at the time it is entered. The animus revertendi of an obsidiary fleet does not continue the blockade, nor is the entry of a neuter, after being -warned, a breach of his neutrality, if the blockading force be not before the port.[3] If a vessel be driven into a port of necessity, and a pestilential disorder break out, which renders it impossible for her to pursue her voyage, it is a loss within the perils of a policy.This was an action on a valued policy, on the cargo of the American ship Prosper, from New York to Algiers, with liberty to touch at Cadiz. Premium 15 per cent, with the usual clause against contraband, but in the margin was written “ on naval stores.” The cause came before the court on a motion for a new trial.
The case read, at the argument, occupied the court for an hour; but it is conceived the important facts which it presented are only these: The plaintiff was owner and master of the vessel, and part owner and consignee of the cargo. Tor this he had signed a bill of lading to deliver it at Algiers to his associate, Sullivan, or his assigns, &c* The vessel sailed on the voyage insured, on the 20th of May, 1800 with a cargo, principally of naval stores. On the 18th of July she experienced severe weather, that continued until the 16th. In this time she labored so much as to work all the oakum out of the quick work on her starboard side, and her bulwark being stove in, cutwater started, and plank shears split fore and aft, she made so much water as to be under the necessity of pumping every quarter of an hour, bringing up great quantities of *'tar, which occasionally choked the pumps to such a degree, as to require taking out and clearing the boxes. In addition to this, one pair of the main shrouds were carried away, and although the leak was in some degree stopped with swabs, still they were obliged to keep the pumps agoing. Having, however, moderate and fair winds, they were enabled to proceed, notwithstanding two men were, from sickness, rendered unfit for duty. On the 3d of July the Prosper was boarded, off Cadiz, (according to the testimony of the mate,) by a British 74; but according to that of two others, by a frigate, who endorsed her papers, and forbade her entering Cadiz, as it was blockaded. This notice was, in the cross examination of me M’Cann, a witness in Spain, said to have been mentioned to him by Captain Williams as a warning from the English fleet. On the fifth, the wind coming ahead, and the captain then discovering a pair of the larboard main .shrouds carried away, determined, after consultation with the mate, to bear away for Cadiz, for the preservation of
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vessel and crew, being unable to beat against contrary-winds. In consequence of this resolution, they put about, and arrived the same day at Cadiz, though the same wind was fair for St. Lucar’s and St. Mary’s, which are both seaports, at which repairs may be made, and only a few miles distant from Cadiz, but bar-harbors requiring a pilot, though less difficult of entrance than Cadiz. At the time of passing these ports, no pilot came off, the vessel not laying too for the purpose of taking one on board ; nor was it clear that the blockading fleet, which during the years 1797, 1798, and 1799, had remained at anchor off Cadiz, was at this period actually before that place, having sailed in pursuit of a French fleet, leaving however, three or four frigates to continue the blockade; a force sufficient to render the entrance dangerous to merchant vessels; though the Spanish armament, then in Cadiz, consisted of 20 or 80 sail of the line. Notwithstanding this, from the evidence of a Mr. Mumford, who had, about the middle of July, been warned by one of those frigates not to enter Cadiz, there was a presumption, that even then the British squadron was at Gibraltar, about 14 leagues distant; and, on an appearance of an attack from the British ships, the Prosper was herself, while at Cadiz, ^ordered further up the harbor. Her leaks continuing, the captain, on the 16th of July, applied to the consul of the United States to direct a survey on his vessel and cargo. This accordingly took place, under the inspection of three American captains, who certified that the ship, from her leaky state, wanted repairs, for which purpose it would be necessary that she should be sent to a proper place to unload her cargo, much of that part consisting of tar being pumped up. In consequence of this, more than half of her lading was taken out, and the vessel herself moved up to Putnall, the usual place for repairing, as the bay of Cadiz was too rough for what she required. Whilst there, a species of epidemic fever broke out, which prevented all business, and caused even the custom-house to be shut up,
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so that it was impossible to obtain permits for taking tha cargo from where it had been landed and entered for exportation. Hoping for a speedy removal of these impediments to her departure, the captain of the Prosper, after completing his repairs, and paying for them by a sale of part of his cargo, dropped down to Cadiz, but was, on the 14th of October, iu a tremendous levanter, obliged to cut his cables and drive to sea. The second day of the tempest, which continued for three in the utmost violence, they discovered three feet water in the hold; and though the storm then abated, they could not return to Cadiz until the 24th. The injury they sustained was increased, by having knocked a hole in the side of the vessel on some rocks; and from the part of the pitch, which they had on hoard, having been floated by the water in the vessel, so as, according to the mate, to dash to pieces many of the barrels, the contents of which was necessarily lost. On regaining Cadiz, another survey was held, by the return of which, it appeared, that the cargo both on shore and on board, from the heat of the climate and violence of the gale, was deteriorated more than one half, of its original value. It also was in evidence, that the whole would not have produced enough to outñt and repair the ship for the completion of her voyage, her provisions and stores having been expended in maintenance of the crew, who had been retained to take care of her cargo. To obtain money on bottomry was impossible. *On the 15th of November, Williams formally abandoned the vessel and cargo to the underwriters, and made a regular entry of it in the office of the Consul for the United States. On the 29th, the Prosper was attached by an order from the Royal Consulado of the city of Cadiz, for money due on a bottomry bond given to a Mr. Masaclc, of Amsterdam, by one Lewis Ournier, on the procuration of Cassimir Delavigne & Co. of New York, from whom the ship was fairly bought by the plaintiff. Under this attachment, the vessel was sold for 1,925 dollars — her
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price, by the bill of sale, was 3,500 dollars; for what amount she was bottomed did not appear.[3] The crew consisted of the master, mate, 4 hands, a cook, and a boy, which appeared was such a crew as Americans, who generally sail with fewer hands than other nations, might go to sea with; though, for a vessel of the same tonnage as the Prosper, the witness who testified on this point, said he would not choose to do it, notwithstanding one had, with a similar number, come from Europe to the United States. Upon these facts, the learned judge before whom the cause was tried, charged, with respect to the blockade, that if the jury were of opinion Cadiz was blockaded, by a competent force, and the ship in question not forced by necessity to enter that port, and nevertheless did enter it after notice, their verdict must be for the defendant.
2. That if they were of opinion the crew was not competent for the voyage, they would find in the same manner.
3. That if the seizure under the bottomry bond was made before the abandonment at Cadiz, the defendant would also be entitled to a Verdict; but if the abandonment was previous to the seizure, the plainti.fi" would have a right to recover for a total loss.
4. That if the cargo was injured exceeding a moiety of its value at the time of abandonment, the right of the plaintiff would be the ^ame.
5. That any damages which arose in consequence of the fever at Cadiz, were within the perils of the policy.
' 6. That if the jury should find in favor of the defendant, on either of the two first points, it would be sufficient, and in that case it would be unnecessary to examine the other points submitted to them.
*On this charge the jury brought in a verdict'for a total- loss, voluntarily assigning the following reasons for their thus finding:
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1. That they considered the port of Cadiz as partially blockaded, and that the going into that place was therefore justifiable, especially as the blockade was well known in New York before the Prosper left that port.
2. That they considered the crew as competent, the ves sel having arrived in safety; but they did not say, nor did the judge understand them to mean, that they founded their verdict on this point upon that reason alone.
3. That the cargo was damaged, exceeding a moiety of its value, at the time of its abandonment.
4. That the seizure of the vessel having taken place subsequent to the abandonment, they did not consider it as affecting the plaintiff’s right.
To the case of the defendant, containing the antecedent circumstances, were subjoined by the plaintiff the following amendments:
1. That the jury, in assigning the reason for their verdict, expressed themselves on the question, whether the port of Cadiz was blockaded or not, at the time the Prosper entered; for they found the fact that it was not blockaded so as to affect the insurance.
2. That they further declared their finding to be, that it was, after the resolution to put into port to repair, as advisable to make for Cadiz as for any other port.
Bogert, for the defendant.
The verdict is against law and evidence. Entering a blockaded port after due notice, is a violation of neutrality, and discharges the insurer. The plaintiff, in the present case, 'insists, first, that there was not any existing blockade at the time when the Prosper entered Cadiz, and that if there was, still she was compelled to do it from necessity. The probability is, the English fleet was before the port, as the plaintiff himself declared he was warned by the British fleet not to enter. Besides this, there is strong ground for presuming the blockading squadron was at Gibraltar ; and that, from its contiguity, must be considered as before Cadiz. But, the evidence is direct tc Bhow that the part of the fleet left to continue the ^blockade, was sufficient to render all access dangerous to merchantmen ; if so, it is enough. Marsh. 827. The case of the Mercurius, 1 Rob. Ad. Rep. 80, 82, 137, 138, 139. The Fiad Oyen, lb. 144, 146. The Hen-rick & Maria, lb. 150. The Vrow Judith, lb. The quantum of force is immaterial; it is not an object of neutral discussion.' But the evidence does not prove it incompetent. The 20 or 30 sail of the line within the harbor, might have been in a disabled state, with masts and yards struck, and every way unfit for sea; a circumstance by no means improbable, as the case shows they had been shut up for nearly 4 years. Had even the whole fleet left its station, it would not have been, from that circumstance, lawful to enter Cadiz. An occasional departure never raises a blockade. The Columbia, 1 Rob. Ad. Rep. 156 — 159. The Hu,tige Hane, 2 Rob. Ad. Rep. 124. The Welvaart Van Pillaw, lb. 128. The Jonge Petronella, lb. 131. It is clear, then, notwithstanding the finding of the jury, who could not determine, on this point, that the blockade existed; and it is equally clear there was not any necessity to break it. From the 15th of June to the 5 th of July, the Prosper had been enabled to continue her voyage; in that interval no new accident had occurred. Allowing the head wind, which prevented keeping the course for Algiers, still St. Lucar’s and St. Mary’s were to leeward, and for either of those places that very wind was fair.
Livingston, J. I think those ports must, from their situation, have been blockaded, if Cadiz was.
Hanson. They not being ports of naval equipment, like Cadiz, were not included in the blockade.
Lewis, Ch. J. Was there not a permission to touch at Cadiz ?
Bogert. Yes. But as the blockade was known here
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when the policy was underwritten, the liberty to touch was given under the idea that it might, from our distance, have, in fact, been raised, though the news had not reached us. It was therefore accorded, that the assured might avail himself of this circumstance, not that he might jeopardize the property. Having, therefore, entered the port, it was a complete violation of neutrality, and though the loss happened afterwards, the underwriter was discharged, because it was impossible, during the voyage insured, ever to place the vessel out of danger; breach of blockade being an offence that is *never purged. The JTur-tige Sana, 2 Rob. Ad. Rep. 124. Admitting, however, this to be against us, still the loss was from a peril not within the policy. It was the consequence of a delay arising from a pestilential fever; and though the instrument, after enumerating the particular risks insured against, adds, “ all other perils,” &c. still, according to the known rule of law, they refer to thosQ only of the same kind. The detention and inability to reload, on account of the epidemic, is not to be likened to a quarantine, for that is an act of government, a restraint within the hazards mentioned. Even a seizure by a mob is not covered by the word “people.” Nesbitt v. Zushington, 4 D. & E. 783. The injury arose from an event not contemplated by either party, and, therefore, though felt by one, does not furnish a claim against the other. The loss, too, is found to be 50 per cent, on the tar only; this rendered it a partial loss, for the tar constituted but a part of the cargo, and the deterioration, to warrant- a demand for a total loss, must be on the whole, not on a pari.
Hamilton and Biggs, contra.
The finding of the jury on the point of blockade was voluntary on their part; it is not relied on by the plaintiff as settling what shall, and what shall not, be deemed a blockade. The amendment confines the verdict to what it absolutely was; finding that the port of Cadiz was not so blockaded as to affect the in
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surance. The meaning of these words is, that the blockade was known in ISTewYork; both parties acquainted with it, and the liberty to touch given unqualifiedly, that the party might go there if he pleased, and for this fifteen per cent, was paid. There is no adjudication in the books exactly analogous, but from a newspaper report of a case before Lord Ellenborough, the point was ruled in our favor. An insurance was made for Gibralter, at the time the Spanish court had declared it to be in a state of blockade. Though this was by gun-boats only, still if, according to the principles of the defendant, the quantum of force is immaterial, it is a decision in point. The defence was, as here, violation of neutrality by breach of blockade; but, said his lordship, if you. will insure for a blockaded port, and take your premium for it, you shall not set up the pursuing your own contract in order to defeat it. The court is' aware that with us, till a very "'late decision of Lord Kenyon’s, {Stitt v. Wardell, sittings at G. H. after Mich. 1797,) touching was by every man held to include a permission to trade. The continuance of the voyage till off Cadiz with a fair wind is no reason, that a disabled ship as she was, could have proceeded with one that was ahead, when some of her main shrouds on both sides were gone, and two of her crew, since the gale of the 18th of June, had become incapable of duty. Every thing said against the necessity of putting into port, is mere assertion from the inferences drawn by counsel, against the express testimony of the mate, and every other eye-witness, and that her entry into Cadiz was the effect of necessity, and bona fide,,the entry of the cargo for exportation is a proof. The fever, abstractly considered, was not a risk within the policy, but it was the immediate consequence[3] of a peril within the instrument; for it arose from a putting into port occasioned by perils of the sea; and, generally, whenever a voyage is defeated by vis major, or casus fortuitas, it is-within
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the policy, if there be do mala fides, or it be not the result of the assured’s fault. The voyage was in its course, and the pestilence in this case had the same effect as if it had broken out in the ship, and rendered her incapable of proceeding. In the case of Maggrath and Higgins v. Ohurch, (Ante, vol. 1, p. 196,) the fever in Philadelphia was allowed as an excuse for staying at Wilmington, and if for staying, so for not sailing. The declaration from the captain of the Kent will not establish the blockade, when it is in evidence, that the British fleet had quitted their station before Cadiz, and relinquished their former object, in pursuit of another,, the French. If the position be abandoned bjr stress of weather, or any such event, during which there is a continual endeavor to return and occupy the place that has been left, this animus revertendi will preserve in full force the effect of blockade. But in the present case, the views ®f the hostile and besieging armament were turned in a new and opposite direction. The adoption of a fresh, was a dereliction of the former purpose. It is, however, to be remarked, that on the subject of blockade, Sir William Scott has introduced, as the law of nations, a new system not warranted by that code. He has extended the principles of blockade, in a manner before unknown, and not consonant to more ancient doctrines. * According to them, a blockade was of no longer duration than while the obsidiary force was before the very spot. And this was so determined by the court of errors in the case of Vos and Graves. At all events, as the loss did not ensue from the breach, it does not avoid the policy. According to Sir William Scott, a blockade is said to exist, il the ingress be dangerous. With such a latitude, a few frigates at the mouth of the straits would blockade the Mediterranean. This would be like the proclamation blockade ol the West-India Islands. The decisions of the English Admiralty under its now judge, have also gone the unwarrantable length of ruling, that a vessel sailing for a blockaded port, violated her neutrality in the very inception of her
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voyage. But the blockade in question was a mere farce 20 or 30 sail of the line confined by four frigates I The supposition of the interior fleet being unfit for service, is not to be entertained, because it does-'not appear. Whether the loss was partial or total, was a matter submitted to the jury, and they have determined it was the latter. In calculating the deterioration to give a right of abandonment, the amount of expenses, outfits, charges, &c. are to be estimated; and if these make the aggregate of loss more than a full moiety, the assured may relinquish the subject of the policy to the underwriter, though one individual article alone was damnified. The voyage was absolutely broken up, for it could not be prosecuted but at an expense beyond what the whole cargo would produce, and money on bottomry could not be obtained. The freight, however, due, could not have been availed of because it was payable in Hew York. Under circumstances like these, every writer, French as well as English, allows of the right to abandon, which could not be affected by a subsequent seizure on the bond, by which she had been bottomed. The plaintiff ought to have brought the premium into court, if he intended to rely on the blockade.
Bogert and Harison, in reply.
Though by the law of nations, sailing for a blockaded port is a breach of neutrality, punishable with confiscation, yet by the decisions of Sir William Scott, that great and learned civilian so much complained of, the strict letter of the law has, in consequence of our remote situation, been relaxed. In one of his decisions (The Betsy, 1 Rob. Ad. Rep. 334,) he thus expresses himself, concerning the citizens of this country: *“ It is not unfair to say,, that lying at such a distance, where they cannot have constant information of the state of the blockade, whether it continues or is relaxed, it is not unnatural that they should send their ships conjecturally, upon the expectation of find ing the blockade broken up, after it has existed fer a con
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siderable time. A very great disadvantage indeed would be imposed upon them, if they were bound rigidly by the rule which justly obtains in Europe, that the blockade must be conceived to exist till the revocation of it is actually notified. For 'if this rule is rigidly applied, the effect of the blockade would last two months longer upon them than on the trading nations of Europe, by whom intelligence is received almost as soon as it is issued. That the Americans should therefore send their ships upon a fair conjecture that the blockade has, after a long continuance, determined, and for the purpose of making fair inquiry whether it had so determined or not, is, I think, not exceptionable. Though I certainly agree that this inquiry should not be made in the mouth of the river, or aestuary from the hV-ckading vessels, but in the ports that lie in the way, and which can furnish' information without opportunities of fraud.”
A knowledge of this departure from the rigor of the law, induced this policy to be underwritten for Cadiz. The underwriters knew sailing for the port, though blockaded, was not a breach of neutrality, and it was. left to the captain to enter or not, according to the fact of the blockade having been raised or continued. When warned by the Kent, he knew the condition on which the liberty to touch had been granted was at an end. The entering afterwards was a discharge of the policy, for allowing the necessity, which ought, however, to be clearly madó out, St. Lucar’s and St. Mary’s-were -unprohibited places, and both open to him had he stopped for a pilot. By not doing so he broke his warranty of neutrality. The reason why this, from the period of breach, destroys the policy is, because it alters the situation of the property. Cn the same principle rests the inhibition from transferring. In these events, however the policy is annulled only from the time of the illegal act ¿one, and as the risk had previously attached on the whole sum insured, there can be no return of premium. *This distinguishes the present case, and those oí
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deviations, from others where the risk never was incur* red. In these latter the underwritten is entitled to a re* '.urn' of premium, only because the Hazard of the underwriter never had an inception. For when it has, a return Into the track after the policy is vacated -by deviation, neither gives a claim to a return, nor restores the contract. So here, if the port was blockaded, the insurer is discharged, though the detention from the fever be a loss within the policy. But if it be not, and the putting into Cadiz was the effect of necessity, we allow it was an excuse for remaining there, which might occasion an average loss. As to the decision of Vos and Graves, the court of errors founded its judgment on there having been no blockade. On the part of the plaintiff, blockades by notification are confounded with those de facto. The former commencing by notification are ended in the same manner, and therefore an occasional departure does not raise the blockade. The latter depending on the fact, terminate when the fact ceases. That a vessel having violated a blockade by ingress is, during the whole of that voyage, in delicto, is not the new law of Sir William Scott, bnt the old law of nations, as recognized by Bynkershoek Yattel, and all foreign jurists. See his Q. J. P. lib. 1, c. 11. accord. That the blockade was, if ever intermitted, only occasionally so, is evident from the testimony. Its existence was known in America previous to effecting the policy. The Prosper was, after entering Cadiz, ordered higher up the harbor for fear of an attack from the British ships. This shows a blockade at two different periods, in the interval between which the Prosper entered; and if a belligerant cannot, or dare not, dispute the power of blockading, a neuter can never do it. To attempt to conclude us in any respect by the finding of the jury, is making the very thing we complain of a reason for refusing us redress.
delivered the opinion of the court. A motion is made on the part of the defendants for a new trial:
1 Because Cadiz was blockaded, and the ship went in without necessity.
2. Because the fever is not a peril within the policy.
3. Because, at any rate, the plaintiffs are only entitled
to recover, as for a partial loss.
*1. On this first point, we are of opinion, that, on the fifth of July, when the ship entered the port of Cadiz, that port was not blockaded. There was no naval investment of the port; there were no ships there, so as to render it hazardous to enter. ■ The blockade had, in fact, been raised a few days before, in consequence of a naval expedition; and it is sufficient for a neutral, when he arrives off a port, to find it clear of any blockading force. He can only judge from what appears, and if he finds ho blocade existing de facto, it is sufficient. He is not bound to inquire, or wait for events, and see whether the blockade, that once existed, is finally raised; or whether the blockading squadron still retains the animus revertendi. The neutral has no means of knowing when a blockade exists in contemplation of law, as contradistinguished from a blockade in fact; and to impose that knowledge upon him at his peril, would be most unreasonable. The only practicable rule is, that there must be an actual existing blockade, to render it unlawful for the neuter to enter.
The notice that the plaintiff received from a British frigate, or a British ship of the line at sea, several leagues from the port, and some days before the entry, amounted to nothing, if in fact there was no blockade of Cadiz when he arrived there. It is absurd to suppose that that ship or frigate, in the situation it was, constituted a blockade of Cadiz, nor is it to be understood that the commander, of the ship made any such pretension. The plaintiff, therefore, committed no violation of his neutrality in entering Cadiz, and he had liberty to touch there by the terms of the policy.
On the second point, we are satisfied that the damage resulting from the pestilence at Cadiz is covered by the
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policy. It is not requisite to decide absolutely, whether a pestilence is a peril direct within the policy.
It formed, however, a sound excuse for delay at Cadiz, and if the consequence of that delay was a- deterioration of the subject insured, the insurer must be answerable for the loss.
And with respect to the amount of the damage, we see no reason to complain of the finding of the jury, that it amounted to above one half, and justified the abandonment *of the voyage. The weight of evidence on this point is in favor of the verdict, and there is no fault or neglect imputable to the plaintiff. There was a series of misfortunes, which the captain appears to have made constant and sincere, but unavailing efforts to surmount, and we are perfectly satisfied that the verdict is just, and, consequently that the defendants take nothing by their motion.
Hew trial refused