Majority
p. 282Duval against The Commercial Insurance Company ALBANY, August, 1813.
Headnote
a policy mmLarfrom°n to S^Éfased the°foiio'n" ing clause; ni^to ^abane^or ‘cap"1' tm-ed, if the icarecMn8 six ™otSee'St(>afinsurers, no risk ■in port taken but seaThe vessel when about 2 leagues from land and about Vfs^b^p'n1 was boarded’ launch, Tuda prize master and 8 men put on board, who sennuTiví wheresh’e was compelled to ranti™forUi8 hatcíms w^ere" sealed by the and the mas-cargo ordered and*s" some time after a French pilot and crew hoard and the vessel sent to Jsayonne, where the questered and fanded'by ordev of -the French government and put in the public stores. was held to be a total by capture3 not by zure in port.
THIS was an action on a policy of insurance on the cargo of the ship Eagle, from Philadelphia to St. Sebastians. The Py contained the following clause: “Warranted American P'ty> and not to proceed or abandon, if warned that the port is blockaded, but may proceed to a permitted port. If detained or captured, not to abandon, if the property insured is released in ths after advice is received by the company; no risk in port taken. but sea risk.” The declaration averred a loss by capture, on the high seas, by a French privateer. The cause was at the Nen-York sittings, in November, 1812, before Mr. Justice Spencer, when a verdict was taken for the plaintiff, by . subject to the opinion of the court on a case containing ,1 c ii • c . the following facts :
The Eagle sailed from Philadelphia the 10th December, 1809, the 11th January, 1810, being about half way between Cape Machicaco and St. Sebastians, and about four leagues from the land, and about twelve leagues from that port, she was boarded by a launch from the shore, with thirty men, three of whom ca m e . on board the Eagle and said they were pilots, and inquired the destination of the ship, and on being told that she was bound to St. Sebastians, they directed her sails to be loosened; but being three or four leagues from land they said the ship could not reach St. Sebastians that night, but must be kept under easy sail. The launch returned to the shore; and after sunset, being about two ieag-ues from shore and about four leagues from St. Sebastians, another launch, which was a privateer under French colours, made towards the ship, fired two guns, and ordered the master of the Eagle to lower the main-topsail. The launch carried between forty and fifty men, and was armed with two swivels and a nu m ^ her of muskets. She boarded the Eagle, and on being informed that she was from Philadelphia, bound to St. Sebastians, they ^ok possession of the ship, numbered the letters and papers of t a la the ship, put them into a bag which they sealed and delivered to the prize master, who, with eight men, remained on board the Eagle, saying they belonged to a French privateer called the
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Marshall Monsell, Magnue commander. The prize master took the clearance of the ship and ordered her to Port Passage, and on the morning of the 13th January, she arrived at the mouth of the river, where she was compelled to perform quarantine for eight days, during which time the prize master and his crew, and two or three soldiers from the shore, remained on board. On the 21st January she was moved higher up the harbour; on the 22d January the master of the Eagle, supercargo, and crew, were separately examined, and the master and supercargo ordered to St. Sebastians. On the 23d the prize agent and French consul came on board and sealed the hatches, and the prize master and agent of the privateer went to St. Sebastians and delivered the ship’s papers and logbook to the French consul, who opened them. The master of the Eagle demanded the restoration of the papers, which the consul refused, saying, the papers must be sent to the minister at Paris. On the 3d June, 1810, a pilot and French crew were put on board the Eagle, who carried her to Bayonne,where the cargo was placed under sequestration, and about two months after, was landed by order of the French government, and put in the public stores, and was not released when the master left Bayonne, in April, 1811, to return to the United States.
Several vessels brought to in the same manner as the Eagle was, and others who voluntarily arrived at Port Passage, as well as at St. Sebastians, were detained by order of the French government, and sent to Bayonne.
The master, on his cross examination, stated that during the first three weeks after his arrival at Port Passage, he supposed the vessel and cargo were detained by the privateer, when he was informed she was detained by order of the French government; yet he still expected to make a compromise with the owners of the privateer.
Colden, for the plaintiff,
contended, that the evidence clearly proved a capture on the high seas, and not a seizure in port; but admitting there was seizure afterwards, in port, it was not for any cause that would affect the plaintiff’s right of abandonment, on the ground of the previous capture. The vessel was never restored after the capture. The subsequent seizure was not a seizure by government, in the usual acceptance of the term. It is well known that the government of France takes possession of all prizes brought into their ports. The Eagle was not
p. 284seized for a breach of any of the laws of trade, but was taken possession of as a prize made by French subjects. To give a right to recover on this policy on the ground of capture, the capture must continue six months after notice to the company; for if, in the mean time, the detention under the capture should cease, no right of abandonment would accrue to the plaintiff. We contend, that on the arrival of the vessel at Port Passage, she was seized by order of the French government, and there was an end to the capture. If so, the loss was not in consequence of the capture, but of the seizure. As soon as the Eagle arrived at the mouth of the harbour, soldiers were put on board, and continued on board during the quarantine, the prize master only going on board occasionally. The hatches were sealed by the French consul. On the 3d of June she was sent, by order of the French government, with a French crew and pilot, not with any persons belonging to the privateer, to Bayonne; and there the cargo was taken and a part sold by order of the government, and the residue kept in the public stores. Other vessels which arrived voluntarily at Port Passage, as well as at St. Sebastians, were detained, and their cargoes seized in the same manner. Three weeks after the first capture, or detention, the vessel was seized by the officers of the government, and a new cause of detention arose, and the original capture ceased. This seizure in port was not the consequence of the first capture, for if the Eagle had voluntarily entered the port, the seizure would equally have existed. The capture here was neither the proximate nor remote cause of the loss; since, if there had been no capture, there would have been a seizure. If there is a proximate and efficient cause of loss, that absorbs all inquiry as to any previous loss, unless it be total, and authorizes an abandonment.[1] The word port is not to be confined, in this case, to the port of detention.[2]
Wells, contra.
The only question in this case is, whether the loss was by capture, or by seizure in port. If by the former, the underwriters are liable; if by the latter, they are not, as they assume no risk in port, but sea risk. In whatever point of light the first boarding of the Eagle is to be viewed, there can be little doubt but the same must be deemed a capture. This will appear manifest from a brief statement of facts. She was about two leagues from land when boarded by a launch from the shore, with
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forty or fifty men on board, armed with two swivels, and a number of muskets; after having fired two guns, and ordered the master to bring to his vessel, they took possession of the ship, put a prize master on board, and sent her into Port Passage, where she was compelled to perform a quarantine of eight days, after which a prize agent and French consul went on board, and sealed her hatches. The master and supercargo were sent to St. Sebastians. Some time after, a pilot and French crew were put on board the ship, and she was sent to Bayonne. The cargo was placed under sequestration, and remained on board the vessel for about two months, when it was landed by order of the French government, and placed in the public stores. If the taking possession of the vessel in this manner is to be deemed a capture, and of which there can be no doubt, the subsequent proceedings against her or the cargo are totally immaterial, if she was never released from the capture. Admitting that the proceedings after her being carried into Pori Passage are to be deemed a seizure in port, it will not discharge the underwriters. The capture was so far a total loss as to justify an abandonment; and unless released or restored before such abandonment, the rights of the parties were fixed, and it is immaterial what further perils awaited the property. These inquiries belong to the underwriters in whom the residuary interest is vested. This was the doctrine of this court in the case of Schieffelin v. New-York Ins. Co. ( 9 Johns. Rep. 27 .) That the vessel never was discharged from the capture, nor restored to the master, before she was taken into possession by the officers of the French government, is very evident from the case. It is, therefore, a clear case of a total loss by capture, and the plaintiff is entitled to judgment accordingly.
Judgment for the plaintiff,