Majority
p. 277Corp and others against The United Insurance Company. Same against The Same. Same against The Phoenix Insurance Company.
Headnote
Insurance iron, New-York to Leghorn. The from Mi-ahrotl «émfier, °fi807. 9tJ1soSt within the Siraii.% and about GO or 70 leagues front Leghorn, the vessel was boarded by a British vessel e>i* war, the commander of which endorsed her register, -warning her not to proceed to Leghorn, nor to any port of France or Spain, Portugal, Holland, Pehmark, Tuscany, Naples, Ra■juso, the republic of IbaSeven Islands, or to any other country ac war with Great Britain, or from which the British flag was excluded, under pain of being confiscated, such ports being declared to be in a state of blockade, by the British orders in council of the 11th of November, 1W/9 and the essel was warned not to proceed to any such ports, without first stopping at a British port.The vessel put. into Gibraltar, where the captain was informed of the French and Spanish decrees; and was relured a clearance to any but a British port. Under these circumstances, and leaving a capture» in ease he proceeded to any port in the Mediterranean, the captain took a clearance for Falmouth, and sailed for that place under British convoy, where he arrived on the 23d of March, 180S. The insured abandoned for a total loss; and it was held that neither the fear of capture and condemnation, nor the circumstances in which the vessel was placed, afforded a justifiable cause for abandoning the voyage, and that the insurers were discharged.
The endorsement on the register, and warning by the British cruiser, was not an act of search, or a visit, within the true construction of the" Milan and riranjuez decrees, or the law nf nations; nor was the vessel under the restraint of princes at Gibraltar, a clearance not be an*? asentía!» and the threat of British capture did not amount to such a restraint,
THESE were actions on three separate policies of in-r r surance* The first was dated the 31st of October, 180/, upon certain articles, (8,750 pieces of nankeens,) speeified in the policy, as part of the cargo of the ship Hero, Barnard, master, valued at the sum insured, at '
p. 278
and from New-York to Leghorn, at a premium of 5 per cent.
From the deposition of the master, the following facts appeared: The ship sailed about the 1st of November, 1807, on the voyage insured. On the 9th of January, 1808, the Hero was boarded by a British vessel of war, the commander of which obliged the master to exhibit the ship’s papers, and endorsed her register, as follows : “ His B. M. sloop Grasshopper, 9th of January, 1808. Pursuant to his Britannic majesty’s orders in council, you are hereby warned to discontinue your voyage to the port of Leghorn, upon pain of confiscation of ship and cargo, if found disobeying the above-mentioned order. And you are, pursuant to further orders from his said majesty, hereby informed, that if you are found proceeding, to any port or place of France or Spain, Portugal, Holland, Denmark, Tuscany, Naples, Ragusa, or the islands lately composing the republic of the Seven Islands, or any other country at war with his Britannic majesty, or from which, though not at war with his said majesty, the British flag is excluded, your ship and cargo will be confiscated as lawful prize to the captors, the above-mentioned ports being declared in a state of blockade.” The commander of the British ship, at the same time, informed the master of the Hero, that in consequence of the orders in council, she would not be permitted to proceed to Leghorn, or any of the ports mentioned in the endorsement on the register, without first stopping at some British port, and that if she attempted to proceed to any of the said ports, both ship and cargo would be liable to be captured by any British vessel of war, and condemned as good prize. The master of the Hero, under these circumstances, deemed it his duty, and for the interest of all concerned, to touch at Gibraltar, that being the nearest English port, and accordingly arrived at Gibraltar, with the ship and cargo, en the 11th
p. 279
of January, 1808, where she was subjected, to quarantine, until the 24th of January. He found at Gibraltar 20 or 30 sail of American vessels, bound up the Medi terranean., many of whom had stopped there, in consequence of having their registers endorsed, and being warned by British cruisers. That about the 12th of January, the master received intelligence of certain decrees (Milan and Aranjuez) of the French and Spanish governments, declaring that any neutral vessel which should suffer herself to be stopped or visited by an English ship or vessel, or should have submitted to put into an English port, or should pay any imposition to the English government or its officers, should thereby lose its national character, be no longer protected by her flag, and be considered as British property; and that if any such vessel, after having thus lost her national character, should enter the harbours of France or Spain, or their allies, or fall into the hands of the French or Spanish, she should be good and lawful prize. These decrees were published in the gazette at Gibraltar. The master believing that in consequence of these decrees, and the number of French and Spanish cruisers in the Mediterranean, the Hero, if she proceeded on her voyage, would certainly be captured and condemned, determined, after taking the best advice, to abandon the voyage to Leghorn, and return with the ship and cargo to New-York. He accordingly applied to the officers of the government at Gibraltar, for a clearance to the United States, which was refused ; and he was informed by the officers of the government, that no American vessel would be permitted to clear or depart from Gibraltar for any but a British port. Not being able, with the intercession of the American consul, to obtain a clearance for the United States, the master determined to take a clearance for Falmouth, in England; hoping, after he had obtained his clearance for Falmouth, in England, and departed from Gibraltar, he should not be intercepted by any British cruiser, but
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be allowed to proceed to the United. States. In order, however, to ascertain whether he should be interrupted, if found proceeding to the United States, with the clearance for Falmouth, the master, on the 28th of February, 1808, applied to the commander of a British man of war, the Windsor Castlelying in Gibraltar, and stated that he had obtained a clearance for Falmouth, and desired to know if he would be interrupted by British cruisers, if he attempted, after leaving Gibraltar, to proceed to the United States. He was informed by the British comriiander, that if he attempted to proceed from Gibraltar, for any but a British port, he would be liable to be captured by any British cruiser; and condemned. The master, under these circumstances, and with the advice of the American consul, set-sail on the 29th February, 1808, from Gibraltar, under convoy of a British vessel of war, for England. During the voyage, the vessels under convoy were chased, on the 17th of March, by two French frigates, when the convoy made a signal for the vessels, under her charge, to'part, and make the best of their way to the port of destination. The Hero accordingly parted from the convoy, and arrived at Falmouth, in England, on the 23d of March.
' The master further deposed, that it was solely the fear of capture and condemnation, in proceeding to the port of Leghorn, or to any other port' in the Mediterranean, which induced him to break up the voyage, and not attempt to proceed to any port in the Mediterranean, and that in every thing relative to the ship and cargo, and the intended voyage, he acted with the best advice, ancl solely for the interest of all concerned.
On his .cross examination, the master stated that when, he was boarded by the Grasshopper, he was within the Straits, and about 60 or 70 leagues from Leghorn, and after his register was endorsed, he was verbally directed by the commander to touch at Gibraltar before he pursued his voyage; that at the time he ivas boarded, he had
p. 281Most of the points arising in this case, were decided in the case of Craig v. The United
been beating for several days against a Levanter, an easterly wind prevailing in that sea, which continued several days after his arrival at Gibraltar; and that had he been left to pursue his voyage, it would have taken 10 or 12 days to reach Leghorn, during which time he could not have failed to have fallen in with French and Spanish> as well as British cruisers.
It was admitted, that the plaintiff had made due proof of interest, and had duly abandoned. The British orders in council of the 11th of November, 1807, the Milan decree of the 25th of December, 1807, and the Aranjuez decree of the 3d of January, 1808, were read in evidence.
The policies in the first two causes contained the following written clauses: “ Warranted American property; proof whereof, if required, to be made here only. In case of capture or detention, not to abandon in less than six months after advice thereof at this office, or until after condemnation. If turned away for attempting a blockaded port, the assured to be at liberty to proceed to a port not blockaded.”
In the third cause, the policy contained the following written clause: “Warranted American property; proof to be required here only. Also warranted not to abandon, if detained or captured, until after a detention of six months, unless previously condemned, nor if refused admittance, or turned away, but may proceed to another near open port.”
A verdict was taken for the plaintiff for a total lose, with liberty to either party to turn the case into a special verdict. The other two causes being similar, it was agreed that they should abide the event of the first.
A motion was made to set aside the verdict, and for a new trial.
Golden, for the plaintiff.
p. 282Insurance Company.[1] There are some facts, however, which distinguish the present from that case. The terms of the endorsement on the register of the Hero, are much stronger, and more comprehensive, than those used in the case of the Amiable Matilda. The going into Gibraltar was justifiable. This was not questioned in Craig v. The United Insurance Company. After the arrival of the Hero in that port, she was under continual restraint by the British government. She was refused a clearance to any but a British port, and, after obtaining a clearance, the master was informed that he would be captured and condemned, if he attempted to return to the United States. The ground of abandonment is a restraint of princes, not the fear of capture. Again, there was a justifiable cause for abandoning the voyage, on the ground of the port of destination being shut. It is admitted that the plaintiffs have duly abandoned for a total loss; that is, for whatever was ajustiffiable cause. Every point that can arise in this cause has already been decided in the cases of Craig v. The United Insurance Company, and Tenet v. The Phoenix Insurance Company.[2] There is no substantial difference between this case and that of Craig v. The United Insurance Company. The clause in the policy had reference to the turning away from a blockaded port, not to the new practice of turning away under orders of council. The clause provides, that in case the port of destination is blockaded, the insured may be at liberty to go to a port not blockaded. There is no evidence that Leghorn was, in fact, blockaded. If not, the master ought to have proceeded. If Leghorn was blockaded, then he ought to have gone to a port not blockaded. But the master elected to go into Gibraltar. He was not compelled to go in there; he had passed that port, and tie returned. The neutral is
Hoffman and T. A. Emmet.
p. 283not bound to obey the orders of a belligerent, unless the belligerent has a right, by the law of nations, to order, There was no prohibition as to the ports in the Ecclemastical States, in Italy ; the British flag was not excluded from any places within the papal territories, The Hero might, then, have proceeded to Civita Vecchia. A head wind or Levanter was no excuse for not proceeding there, or to the nearest open port to Leghorn. She might have gone to Messina; the French have never occupied the island of Sicily. Why not go to Malta P If she had gone to Malta, she might have left it before hearing of the French and Spanish decrees. We say, then, on the, principle of the decision in the case of Tenet v. The Phœnix Insurance Company, the going into Gibraltar was a deviation. The vessel lay in that port a month, after the expiration of her quarantine, without any cause assigned for the delay. If she rightfully went into Gibraltar, then the policy by the United Insurance Company was at an end; for the clause does not protect her in going to more than ope port not blockaded. If the words “ near open port,” mean the nearest port geographically, and all the ports in the MediterraneaJi, except Gibraltar, Were shut, then that was the nearest open port, and the policy by the Phoenix Insurance Company ended there. It is said that after the Hero arrived at Gibraltar, she was under restraint; but there was no restraint, except the refusal of a clearance to any other than a British port. A clearance is matter of form. It is the common practice to take a clearance for one port and go to another. After clearing for England, she might, when at sea, have gone where she pleased. Then why not go to Leghorn or the United States P The master states the reason; a fear of capture by the English. The case then comes precisely to that of Craig v. The United Insurance Company.
p. 284Again, we may say, if all the ports were shut, except Falmouth, or a port, in England, then Falmouth became the nearest open port, and the voyage ended there. We do not mean to controvert the case of Craig v. The United Insurance Company, but we contend that this case is distinguishable from it. The clauses in these policies were not inserted with a , view to the circumstances which actually took place. If, then, as has been said, they did not refer to the orders in council, the case must be decided as if no such clauses had been inserted. Admitting that the endorsement on the register, and all the acts of the British officers, were against the law of nations, and unauthorized, still the master is to be considered under the restraint and coercion of princes or powers. It is true, the master of the Hero was not bound to obey; but as he was unable to resist British capture, he was under coercion and restraint. Had he attempted to have gone to C'voita Vecchia, he would have been liable to seizure by the British. Under the new and unforeseen circumstances which took place, the going into Gibraltar was an act of necessity and prudence, and perfectly justifiable. The Hero could not go to leghorn without being seized. Had she attempted to sail from Gibraltar without a clearance, she would have been liable to seizure; and if, after her departure, with a clearance, she had steered a different course than that which was. in the rout to the port in her clearance, - she would have been seized. Falmouth was a port of necessity, not of choice. Being under convoy for that port, she was compelled to proceed to Falmouth. The voyage was not abandoned quia timet merely; but there was an actual interposition of power and force, which amounts to a restraint of princes, within the terms of the policy.
Harison, in reply.
This case cannot be materially distinguished from that of Craig v. The United Insurance Company. ( 6 Johns. Rep. 226 .) The voyage was voluntarily abandoned at Gibraltar, from fear of capture by French and Spanish cruisers, if the ship proceeded on her voyage to Leghorn. This is stated by the captain to have been the cause of breaking up the voyage ; and it is a clear and well settled principle in the law of insurance, that the fear of loss is not the loss itself, and is no justifiable cause for abandonment. Nor was the apprehension of seizure and confiscation at Leghorn, under the Milan decree, (if any such apprehension existed,) sufficient to create a loss of the voyage. There is no evidence in the case that Leghorn was blockaded, or that neutral trade with that port was interdicted ; and it was, at least, very doubtful, notwithstanding the decree, whether the ship in question could not have safely entered and discharged her cargo at Leghorn. She had not “ submitted to be searched,” within any just and equitable construction of the Milan decree ; for the object in boarding her, by the British cruiser, appears in this case, as it did in the case of the Amiable Matilda., (Craig v. The United Insurance Company,) to have been only to warn the vessel not to enter any port in France, or of her allies. The British cruisers were directed by the orders in council of the 11th November, 1807, to give such warning. If the belligerent right of search had been exercised in this case, the fact would undoubtedly have appeared in a more explicit and decided manner. The warning or notice according to the endorsement on the register, is the only evidence we have of the object of the visit, and that object the British vessels of war were at that time bound to pursue, in all cases, though no search might have been intended or required. If being boarded and warned brought the ship within the Milan decree, it might with equal propriety have been deemed so, if the ship had only been hailed at a distance, and interrogated and warned not to proceed.
p. 286
f°r the papers appears to have been only foithe purpose of making the endorsement, so as to leave fixed and conclusive proof of the fact of notice. No other motive appears, or is left to be inferred. The captain states no fact of any interrogation or inquiry in relation to search, nor what papers in particular were produced. The words of the Milan decree, in order to check its severity as much as possible, are to be taken in the strictest sense, as referring to an actual and perfect exercise of the right of search into the character and quality of the neutral vessel, and her cargo ; and we are to presume that all maritime tribunals would have given them that construction. The plaintiffs, then, had no right to break up the voyage, and throw the loss of it upon the insurers, if the peril of loss at Leghorn rested (as most clearly it did) in mere apprehension and uncertainty.
Nor can the vessel be considered as under the “ restraint of princes” while at Gibraltar. She was at liberty to depart when she pleased. No clearance was requisite. The captain was only threatened with danger of capture from British cruisers, if he proceeded to an.y other than a British port. This was a mere threat, without any legal authority to support it. There was nothing to hinder the ship from returning to America.
There was no present or existing restraint. The captain ' was only menaced with danger in transitu. The voyage to Leg horn was, therefore, voluntarily abandoned at Gibraltar, and the voyage to England voluntarily undertaken, from mere prudential considerations, witZi which the insurer had no concern. When the voyage to Leghorn was broken up, without any justifiable cause of abandonment, the defendants were discharged, and the sailing to England was the commencement of a new voyage.
The plaintiffs have not, therefore, shown a right tore-cover; and it has become unnecessary to decide another point raised upon the argument, which was, whether the return of the ship from the Mediterranean to Gibraltar
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was, or was not, a justifiable deviation under the circumstances in which the ship was placed. It was, at least, a very extraordinary cause of deviation, and it would be difficult to maintain that the cause assigned for it was sufficient. I am, therefore, of opinion, that the defendants are entitled to judgment.
Kent, Ch. J. Thompson, J. Spencer, J. and Yates, J. were also of the same opinion.
Judgment for the defendants.