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barratry of the master and crew, includes larcenies and embezzlements of the goods insured, by either the master or any of the crew, excepting only petty thefts and the like.1
In a case where it was alleged that the captain barratrously returned to port, procured the condemnation of the ship, and sold her and afterwards delivered her up to the purchasers, and the condemnation was more than six years before the commencement of the action, but the sale and delivery were within the six years, Lord Ellenborough was of the opinion, that the cause of action did not accrue till the master had divested him. self of the possession of the ship, by delivering her up to the purchasers.
OF LOSS BY CAPTURE, ARREST, DETENTION, OR RESTRAINT.
The usual phrase is, “ against all captures at sea, or arrests, restraints or detentions, of all kings, princes, and people." This covers captures, detentions, or arrests by public enemies, by belligerents,4 or by the government of which the assured is himself
barratry, the underwriters are not liable for a deviation caused by barratry. So that, whether the policy were special or not, we think, can make no difference.
In Toulmin v. Anderson, 1 Taunt. 227, the crew, aided by some prisoners of war on board, rose, seized the ship and run her ashore. It was held, that the plaintiff would have been entitled to recover on these facts, on the ground of barratry, but the voyage being illegal, the plaintiffs were nonsuited. See Toulmin v. Inglis, 1 Camp. 421; Brown v. Smith, 1 Dow, 349.
1 Am. Ins. Co. v. Bryan, 26 Wend. 563 ; Stone v. National Ins. Co., 19 Pick. 34. 2 Hibbert v. Martin, 1 Camp. 538.
3 In Levy v. Merrill, 4 Greenl. 180, insurance was effected against the “risks contained in all regular policies of insurance," and the policy further declared, that in case of difficulty arising concerning the adjustment of a loss, it should be settled according to the rules established at Lloyd's in London, or at the regular insurance offices in the United States. It was held, that loss by capture was a peril insured against.
4 Lec v. Boardman, 3 Mass. 238; Rhinelander v. Ins. Co. of Penn., 4 Cranch, 29; Powell v. Hyde, 5 Ellis & B. 607, 34 Eng. L. & Eq. 44; Olivera v. Union Ins. Co., 3 Wheat. 183; Rotch v. Edie, 6 T. R. 413.
a subject, if not for a breach of law. The word “people” has been defined to mean “the supreme power; the power of the country," whatever that may be.? “ Capture," or its equivalent " seizure," means a taking with intent to keep;3 “arrest," or “detention,” a taking with intent to return the thing taken ;4 as where a ship is arrested by an embargo, or stopped for search ; 6 or detained in a port by an actúal blockade thereof, or, perhaps,
1 As an embargo. Odlin v. Ins. Co. of Penn., 2 Wash. C. C. 312; Lorent v. S. Car. Ins. Co., 1 Nott & McC. 505 ; M’Bride v. Mar. Ins. Co., 5 Johns. 299; Walden v. Phenix Ins. Co., id. 310; Ogden v. N. Y. Fire Ins. Co., 10 Johns. 177, 12 id. 25; Page v. Thompson, Park, Ins. 109, n. See also, Flindt v. Scott, 5 Taunt. 674 ; Anthony v. Moline, id. 711; Schnakoneg v. Andrews, id. 716; Bazett v. Meyer, id. 824.
? See Simpson v. Charleston F. & M. Ins. Co., Dudley, S. C. 239. It does not cover, therefore, damage done to the cargo by an armed mob. Nesbitt v. Lushington, 4 T. R. 783.
8 Emerigon, c. 12, § 30, Meredith's Ed. 420, says : "In capture, the object is to appropriate to oneself the prey: Si commette depredatione con appropriarsi il depredeto. In an arrest of princes, there is a design to liberate subsequently the property arrested, or to pay the value of it.” See also, Powell v. Hyde, 5 Ellis & B. 607, 34 Eng. L. & Eq. 44; Black v. Marine Ins. Co., 11 Johns. 287.
* See Emerigon as cited in note supra. But the court, in Mumford v. Phænix Ins. Co., 7 Johns. 449, speak of an illegal condemnation as a loss under the general peril of arrests and detentions of princes. Lord Ellenborough, in Carruthers v. Gray, 3 Camp. 142, held that an averment that the ship and goods were arrested by persons exercising the powers of government at a certain place, and the goods were there detained and confiscated, was supported by proof that the goods were forcibly taken possession of by the officers of government. In Olivera v. Union Ins. Co., 3 Wheat. 183, Marshall, C. J., speaking of arrest and detainment, said : “Each of these terms implies possession of the thing, by the power which arrests or detains.” The seizing of a vessel and turning it into a fire-ship, has been considered a restraint. Green v. Young, 2 Salk. 444, 2 Ld. Raym. 840, per Holt, C. J.
5 Rotch v. Edie, 6 T. R. 413. The vessel in this case was detained in a foreign port by an embargo. See also, notes infra.
5 1 Magens, 67.
7 In Olivera v. Union Ins. Co., 3 Wheat. 183, this was held to be a restraint, and in Wilson v. United Ins. Co., .14 Johns. 227, a detention. In Richardson v. Maine F. & M. Ins. Co., 6 Mass. 102, 109, Parsons, C. J., said: “In this instrument, I know of no difference between the import of restraint and detention. They are respectively, the effect of superior force, operating directly on the vessel. So long as a ship is under restraint, so long she is detained, and whenever she is detained she is under restraint.” Marshall, C. J., on the other hand, in Olivera v. Union Ins. Co., supra, held that a detainment implied possession, while a restraint did not, and that a blockade was, therefore, a restraint. It is, however, a matter of little consequence, since the words are always used together. Saltus v. United Ins. Co., 15 Johns. 523, was a very similar case to that last cited, and it was decided the same way. But in Brewer v. Union Ins.
by being lawfully restrained from entering her port of destination by a blockading force. But it does not seem to be positively settled, whether the master has a right to abandon the voyage and claim for a total loss, on receiving intelligence that his port of destination is blockaded. In a case where insurance
Co., 12 Mass. 170, where the vessel was blockaded at an intermediate port, the underwriters were held not liable. It is impossible to distinguish this case from those above cited, and we are inclined to the opinion, that the former are more correctly decided.
1 The decisions upon this subject are conflicting. It has been held that if, while a vessel is on its voyage, the master hears that her port of destination is closed by an embargo and abandons the adventure, this is not a loss by a peril insured against. Hadkinson v. Robinson, 3 B. & P. 388 ; Blackenhagen v. London Ass. Co., 1 Camp. 454; Forster v. Christie, 11 East, 205; Amory v. Jones, 6 Mass. 318. And, so, if on arrival at the port of destination, it is found to be in the possession of the enemy. Lubbock v. Rowcroft, 5 Esp. 50; Smith v. Universal Ins. Co., 6 Wheat. 176. The vessel in this case, was chased off the coast, and after making several fruitless attempts to return, gave up the voyage and sailed for home. Mr. Justice Story said : “In cases of this sort, where a technical total loss is asserted as a ground of recovery, it is not sufficient that the voyage has been entirely frustrated and lost; but the loss must be occasioned by some peril actually insured against. The peril must act directly, and not circuitously, upon the subject of the insurance. It must be an immediate peril, and the loss the proper consequence of it; and it is not sufficient, that the voyage be abandoned for fear of the operation of the peril.” It is to be observed, however, that in this case, the underwriters were expressly exempted from loss by illicit trade, as in Suydam r. Mar. Ins. Co., 1 Johns. 181. The case, therefore, does not support the English and Massachu. setts decisions to their full extent. See Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 21. In Barker v. Blakes, 9 East, 283, it was held, that where a neutral vessel was captured and her port of destination blockaded, pending the proceedings in admiralty, an abandonment might be made after her release, on the ground that the impossibility of prosecuting the voyage to the port of destination, was in consequence of the prolonged detention of the ship and cargo, and so might be considered a loss of the voyage. In Parkin v. Tunno, 2 Camp. 59, 11 East, 22, insurance was effected on goods from Bristol to Monte Video, and any other port or ports in the River Plata in the possession of the English. When the vessel arrived in the River Plata, every port except Maldonado, was in the possession of the enemy. She therefore sailed for that port, but, on her arrival was ordered away by the English commander there. She then sailed for Rio Janeiro, that being the nearest friendly port of safety, and on the way the cargo was damaged by a peril of the sea. The underwriters were held not to be liable.
The above cases proceed upon the ground, that the fear of a peril insured against, is not a good ground for an abandonment. That this principle is generally correct, cannot be denied. The only question is, when is it to be applied. See Craig v. United Ins. Co., 6 Johns. 226. In Richardson r. Maine F. & M. Ins. Co., 6 Mass. 102, it was held, that if a neutral vessel sails for a port, and is met on the way by a belligerent vessel and informed that the port is blockaded, and a warning not to proceed thither indorsed on the register, the underwriters are not liable for a loss owing to the voyage being
was effected on slaves, and the vessel was driven into a port of distress and the slaves liberated on habeas corpus, it was held, that this loss came within the terms “arrest, restraints, and detainments," etc.)
If the seizure is caused by the unlawful act of the master, it
broken up. See also, Cook v. Essex F. & M. Ins. Co., 6 Mass. 122; Wheatland v. Gray, 6 Mass. 124 ; Lee v. Gray, 7 Mass. 349 ; Tucker v. United M. & F. Ins. Co., 12 Mass. 288. In some of the States the decisions are the other way. Schmidt v. Union Ins. Co., 1 Johns. 249; Vigers v. Ocean Ins. Co., 12 La. 367; Symonds v. Union Ins. Co., 4 Dall. 417, 1 Wash. C. C. 382; Thompson v. Read, 12 S. & R. 440; Sav. age v. Pleasants, 5 Binn. 403. Mr. Justice Brackenridge, in this case, attached great importance to the fact, that the warning not to proceed had been indorsed on the register. He said: “It alters the character of the vessel, and makes it sub modo, a different property. The British themselves speak of such marking or indorsing on sealetter and register, as giving them a qualified property in the vessel and cargo, and they act upon it accordingly, and seize and capture outright, if an attempt is made to go to another than a British port as ordered to proceed. The hailing and warning a vessel at sea, are not the same with entering on board and indorsing papers. The sound of the warning carries no impression with it, it is a monition to the warned; but who shall know that a vessel has been warned? But the writing on the sea-letter and register carries with it its own evidence, and will be seen by those who visit it afterwards. It is a charm or spell from which the vessel cannot escape ; she is liable to be taken, and is uniformly taken if she attempts to proceed or to return."
In King v. Del. Ins. Co., 2 Wash. C. C. 300, a blockade of the port of destination, was considered as a restraint, but it was held, that where a vessel was stopped in the first part of her voyage, and warned not to proceed by an indorsement on her papers, and verbally informed that her port of destination was blockaded, and she returned homo and abandoned the voyage, the underwriters on freight were not liable, the port of des. tination not being actually blockaded. Washington, J., said: “If the underwriter is to answer for a technical total loss, where none has really been sustained, it is the duty of the insured to do all he may to prevent such loss, and he should proceed upon his voyage until the danger of an actual loss is rendered manifest.” This case was affirmed on appcal, 6 Cranch, 71, on the ground, that the voyage was not prohibited by the British orders in council, and the port of destination was not actually blockaded.
There is a dictum of Mr. Justice Story, on this subject, which is worthy of attention. He says: “Whether the turning away of a ship from the port of destination, in consequence of a blockade, be in any case a good cause for abandonment, so as to entitle the assured to recover it from the underwriter as for a total loss, by the breaking up of the voyage; and if so, whether the doctrine could apply to a policy with a warranty of neutrality, the legal effect of such warranty being to compel the party to abandon the voyage, if it cannot be pursued consistent with neutrality, are questions of great importance, upon which the court do not think it necessary to express any opinion.” M'Call 0. Mar. Ins. Co., 8 Cranch, 59. See also, Emerigon, c. 12, s. 31, Meredith's Ed. 425.
1 Simpson v. Charleston F. & M. Ins. Co., Dudley, S. C. 239.
would seem that the underwriters are not liable, but in determining this point, the parties stand on their strict rights, and if the master had the right to do the act which led to the seizure, the underwriters are liable, provided he acted bonâ fide, although, by adopting another course, the seizure might have been avoided. And where the lawfulness of the act of the master, and consequently, the legality of the seizure, depend upon the fact, whether the power which seized the vessel, had the right to exercise jurisdiction over the place where the offence was committed, the question must be determined by the fact, whether the government of the country to which the vessel belongs, recognizes the right of jurisdiction on the part of the seizing power. If a suit is commenced against a captain by the government in a foreign port, and the voyage is consequently delayed, the underwriters are not liable for the detention, the proceedings being against the captain personally, and not against the ship.
Policies are sometimes made containing a stipulation authorizing the vessel to proceed to another port, in case the port of original destination is blockaded. And insurance is
1 Sewell v. Royal Exch. Ass. Co., 4 Taunt. 856 ; Williams v. Suffolk Ins. Co., 3 Sumner, 270, 13 Pet. 415.
2 Williams v. Suffolk Ins. Co., 3 Sumner, 270, 13 Pet. 415. The question in this case was, whether the government of Buenos Ayres had jurisdiction over the Falkland Islands, and the court held that it was bound by the acts of the government of the United States, and could not examine the question de novo. 8 Bradford v. Levy, 2 Car. & P. 137.
Naylor v. Taylor, 9 B. & C. 718; Ferguson v. Phænis Ins. Co., 5 Binn. 544. In this latter case, the insurance was on sugars from New York to Amsterdam, "with liberty, in case of being turned off on account of blockade, to proceed to a neighboring port.” On the voyage, the vessel was boarded by a British privateer and her papers indorsed, “warned not to enter, or attempt to enter, an enemy's port.” In consequence of this, she proceeded to Cowes, remained there about a month and a half, paid duties, obtained a license for Amsterdam, and was about to depart, when she was seized by a British vessel and sent into Portsmouth. The vessel was libelled and restored. The captain then sailed again for Amsterdam, but was captured by the British, the vessel was a second time libelled and again restored. By this time her license had expired, and information having been received that the decrees of the French and Dutch governments, prohibiting the entry into their ports of any vessels coming from England, were rigorously enforced in Holland, the captain took the ship to London and landed her cargo. On the receipt of this intelligence, the plaintiff's abandoned. A majority of the court, consisting of two judges, held that London was