McCargo v. New Orleans Insurance

10 Rob. 202

Opinion

Bullakd, J.

This case, together with six others, growing out of the loss of the slaves on board the brig Creole, which was carried by the mutineers into the harbor of Nassau, in November, 1841, and which has been the subject of so much diplomatic, as well as forensic discussion, was elaborately argued last, summer, before the adjournment of the court, both by brief, and viva voce. They are actions upon several policies of insurance, underwritten by different insurance companies in this city, upon slaves shipped on board that vessel for this port. As all the cases relate to the same voyage, and all the slaves insured were lost at the same time and by the same disaster, they have all been considered together ; and it is supposed that the opinion which we are about to pronounce in one of the cases, will be decisive of all.

The first question is, what risks did the insurers assume 1 In the present case, and in three others, the terms of the policy are: “ Warranted free from elopement, insurrection, and natural death.” In one of them, to wit, Lockett v. The Firemen's Insurance Company, it is stipulated that the “insurers are not liable for suicide, mutiny, natural death, or desertion.” In the re maining two cases, it is declared that the company shall not be liable for “ suicide, desertion, or natural death.”

In common parlance, there is little or no difference between mutiny and insurrection. In this very case, in the briefs of counsel, in the statements of witnesses, and -in the official correspondence, the rising of the slaves on board is called, indis, criminately, mutiny and insurrection. The parties are supposed to have had in view, the conduct of the slaves, who formed the subject of the insurance, rather than the obedience and subordination of the crew, whose forcible resistance of the authority of the master, would be mutiny, technically speaking. The only difference, therefore, in our opinion, between that case in which the word mutiny is used, and those in which the policy contains the word insurrection, is, that in the first the mutiny is clearly an excepted risk, and in the others is presented the question, much discussed at the bar, whether the expressions amount to a technical warranty, or were only intended to exempt the insurers from the risk of insurrection. On the one hand it has been contended, that it amounts to a warranty, and that the occurring of the insurrection, whether it was the cause of the loss or not, was a breach of warranty, and put an end to the policy; while, on the other hand, it is said, that the only effect of the clause was to throw the risk of loss by insurrection upon the owners, or shippers, leaving all other sea risks to be supported by the underwriters, notwithstanding the happening of the insurrection.

The word warranted is used; but there is often a warranty in form, where there is none in fact; as in the familiar instances of warranted free from average — free from detention and capture, which mean nothingmore, than that those shall not be among the perils and-losses insured against, and for which the underwriter is to be liable. Although these forms of expression (says Phillips) are sometimes spoken of as warranties, it would be absurd to consider them such in their character and construction, since in an insurance free from average, for instance, it would be adopting the doctrine, that the occurrence of the average loss would render the policy void, and consequently the happening of a loss, which is not insured against, deprive the assured of the right to recover for one-that is insured against. 1 Phillips, 127.

We, therefore, view the terms of the policy as not creating a warranty, but only as exempting the insurers from any liability on account of losses which might be sustained in consequence of a mutiny, or insurrection on board; they assuming all other risks, and particularly restraints, arrests, and detentions by foreign powers, or the emancipation of the slaves by foreign interference. All the cases then, which have been argued, may be classed in two categories. 1st, those in which the underwriters assume the risk of loss from insurrection; and 2nd, those in which they are exempted from that loss, by the terms of the policy. The case now under our immediate consideration, belongs to the latter class, the defendants not being liable for insurrection, elopement, and natural death.

The great question,-therefore, upon the merits, which this case, and the others of the same class present, is, whether the loss of the slaves was caused by the insurrection, or by illegal and unauthorised interference on the part of the authorities of Nassau.

The cargo of the Creole consisted of one hundred and thirty-five slaves, besides some tobacco. She left Richmond on the 25th of October, and after remaining in Hampton Roads one day, went to sea on the 31st. Nothing occurred on board even to create suspicion, until the evening of the 7th of November, when they hove-to off the Island of Abaco. During the first watch, about half past nine, the mate, who was on deck with three seamen, was informed that one ol the negro men was in that part of the hold where the women were, contrary to the regulations on board. Merritt, one of the agents on board, who was asleep in the cabin, was called up. He lit a lamp, which enabled them to see one of the slaves, by the name of Madison, in the hold where the women were. Merritt asked him, if he knew the consequences of his conduct. He replied that he did, and sprang for the hatchway to get on deck ; as he got on the steps to come up, Merritt seized him by the legs and the mate by the shoulders, but he got away from them, and pushed the mate back. At that instant, a pistol was shot, which grazed the back of the mate’s head. He flew to the cabin to call all hands, and as they came out from the cabin, whither he was followed by four or five of the slaves, the fight commenced with pistols, a musket, and bowie knives. Hewell, a passenger, was killed ; Captain Ensor, badly wounded, sought safety in the main-top, whither the mate had already fled. In a few minutes the mutineers were completely-masters of the brig, having subdued the officers and crew. Nineteen of them took charge, and compelled the mate and crew, by constant vigilance and threats, to navigate the brig to the port of Nassau, in New Providence. From the Hole-in-the-Wall, which theymade the next morning, they compelled the crew to change the direction of the vessel from her. direct course to the mouth of the Mississippi, and to steer for Nassau. The compass was watched to prevent the course being changed, and they were compelled, by threats of instant death, to take the brig into Nassau, where they arrived on the 9th of November, in the morning. It is beyond all question, that the insurrection was completely successful; all resistance was vain, and no attempt was made by the whites to regain their ascendency. The brig was taken into Nassau by the slaves, in this state of successful revolt. It is quite/unnecessary to dwell upon the particulars of the contest, which took place in the darkness of the night, but was brought about so suddenly, and yet with such evident readiness of preparation at the first signal, as to leave no doubt that the arms used were already loaded, and the plot formed so as to explode on reaching the vicinity of the Bahama Islands. The leaders of the revolt appear to have known that they were not far from those islarids, and said they wished to go to Abaco. All the arms they had, except one pistol, were thrown overboard at the mouth of the harbor; to prevent their being seen. A black pilot came on board to take them in, and the mate went ashore in the boat of the health officer. This officer was requested to put the mate on shore, and to watch the vessel, and to let them have no communication with the shore until he returned. The officer watched the^ vessel, and the mate went with the American Consul to see the Governor; saw him at his house, and stated the case to him. In the meantime, it appears that the pilot, a free black, was on board, in free intercourse with the slaves.

Thus it appears, and in this all the witnesses concur, that no hopes were entertained of recovering control of the brig and the slaves on board, without assistance from abroad. The insurrection had been entirely successful, the master badly wounded, one passenger killed, and the mate and crew compelled to deviate from the course of the voyage. This was the condition of things on board up to the moment the brig was moored in the port of Nassau. The mutineers appeared to have felt so secure that they they threw their arms overboard, relying for their future safety upon their physical superiority, and upon the sympathies of the people of the Bahamas, or the direct interference of the local authorities.

Here it is proper to pause, and enquire what effect has been produced, what change operated by the entrance of the Creole into the waters of a foreign, but friendly power ? What new duties and relations have sprung up, as it relates to the officers and crew of the brig, to regulate their intercourse with the public authorities or the people of the island ? What treatment had they a right to expect under the law of nations, when thus driven, by an overwhelming calamity, into a British port? The judge of the Commercial Court, very properly instructed the jury, that the letter of the late Secretary of State of the United States, addressed to Lord Ashburton, on the 1st of August, 1842, and the resolutions of the Senate, unanimously adopted by that body in reference to the case of the Enterprise, contains a true exposition of the law of nations on this subject. Those principles are, in substance, as follows :

• That a ship, or vessel, on the high seas, in time of peace, engaged in a lawful voyage, is under the exclusive jurisdiction of the State to which her flag belongs ; as much'so, as if constituting a part of its own domain. If such ship or vessel should be forced by stress of weather, or other unavoidable cause, into the port of a friendly power, she would, under the same laws, lose none of the rights appertaining to her on the high seas ; but, on the contrary, she and her cargo, and the persons on board, with their property, and all the rights belonging to their personal relations as established by the laws of the State to which they belong, would be placed under the protection which the laws of nations extend to the unfortunate under such circumstances. Although the jurisdiction of a nation over a vessel belonging to it, while lying in the port of another, is not wholly exclusive, and although for any unlawful acts, committed while thus situated, by her master, crew or owners, - she and they may be answerable to the laws of the place, yet the local law does not supersede the laws of the.country to which the vessel belongs, so far as it relates to the rights, duties, and obligations of those on board. Whatever may have been the state of the British law in relation to slavery, it did not operate on board the Creole, while lying in the port of Nassau, and before a voluntary landing of the slaves, to dissolve the relation of master and slave. That relation remained unimpaired. It is only when such slaves come under the exclusive jurisdiction of the British law, within its territorial operation, that the slave becomes free, because such relation is forbidden. To resume, in the language of Mr. Webster, in the letter above referred to: “ Vessels of the United States driven by necessity into British ports, and staying there no longer than such necessity exists, violating no law. nor having intent to violate any law, will claim, and there will be claimed for them, protection and security, freedom from molestation, and from all interference with the character or condition of persons or things on board. Such vessels, so driven and so detained by necessity in a friendly port, ought to be regarded as still pursuing their original voyage, and turned out of their direct course only by disaster, or wrongful violence; they ought to receive all assistance necessary to enable them to resume that direct course; and that interference and molestation by the local authorities, where the whole voyage is lawful, both in act and intent, is ground for just and grave complaint.”

Lord Ashburton, to whom that letter was addressed, in reference to this very case of the Creole, does -not pretend to combat the general principles thus expressed, but proceeds to give that pledge which the treaty making power deemed equivalent to a treaty stipulation. “ In the meantime,” says he, “ I can engage that instructions shall be given to the Governors of Her Majesty’s colonies on the southern borders of the United States, to execute their own laws with careful attention, to the wish of their government to maintain good neighborhood, and that there shall be no officious interference with American vessels driven by accident, or by violence into those ports. Thelaws and duties of hospitality shall be executed, and these seem neither to require, nor to justify any further inquisition into the state of persons or things on board of vessels so situated, than may be indispensable to enforce the observance of the municipal law of the colony, and the proper regulation of its harbors or waters.”

With this view of the laws and comity of nations, we proceed to enquire into the occurrences in the harbor of Nassau, and the conduct of the local authorities in reference to the Creole, premising that we cannot yield our assent to the reasoning of the counsel for the defendants, who endeavored to convince us that the slaves on board the Creole became free, de facto, by their successful mutiny, and, de jure, by sailing into a British port. We regard them still as slaves while on board, though in a state of insurrection. They had not ceased to be the property of their masters, although that right of property could not have been asserted in a British court, nor enjoyed within the exclusive influence of the British law.

Let us first look at the written correspondence which' took place immediately after the arrival of the Creole, between the American Consul and the Governor of the Bahamas. The official documents, letters, or correspondence which attend most transactions of any public importance, forming a part, indeed, of the res gestee, afford much more satisfactory evidence of the time character of such transactions, than the statements even of the actors themselves, made afterwards from memory.

As soon as the Consul was informed of the disaster on board the Creole, he waited on the Governor, with the'mate, who related the disaster on board, and then addressed him the following note:

“ Sir: Having had detailed to your Excellency the particulars of the mutiny and murder on board the American brig Creole, by slaves on board said brig, I have now to request that your Excellency will be pleased not to suffer any of the slaves on board to land, until further investigation can be made.”

The Colonial Secretary immediately replied: “That he was instructed by the Governor, to acquaint the Consul, that,for the fulfilment of the object of his letter, his Excellency had ordered a military party on board the brig ; adding, however, that there would be no impediment to any of the white persons on board, landing there.”

On the same day the Colonial Secretary addresses a second note to the Consul of the United States, in which he says, that, in compliance with his (the.Consul’s) request, he forwards to him, by direction of the Governor, a copy of the statement, communicated to him person ally,, in the morning, by the Governor and Council, in reference to the case of the American brig Creole, on board of which vessel a murder and certain other offences are alleged to have been committed. The statement enclosed is in the following terms :

“ To John F. Bacon, Esq.,

Consul of the United States of North America:

“ We wish to state to you, as the representative of the American government, that the circumstances detailed to the Governor this morning,in your presence, respecting the events which took place on board of the American brig Creole, on the night, and subsequently to the 7th of November, have been given all-possible consideration to by the Governor and Council, by whom the following decisions have been come to:

“ 1st.-That the courts of law here have no jurisdiction over the alleged offences.

“ 2d. But, as an information has been lodged before his Excellency the Governor, charging the crime of murder to have been committed on board of the said' vessel, while on the high seas, it was expedient that thp parties implicated in so grave a charge, should not be allowed to go at large; and that an investigation ought, therefore, to be made into the charges, and examinations taken on oath ; when, if it should appear that the original information was correct, and that a murder had actu ally been committed, that all the parties implicated in such crime, or in any other act of violence, should be detained here until reference could be made to the Secretary of State, to ascertain whether the parties detained should be delivered over to the American government, or not; and if not, how otherwise to be disposed of.

“ 3d. That as soon as such examination should be taken, all the persons on board the Creole, not implicated in any of the offences alleged to have been committed on board of that vessel, must be released from further restraint.

“ 4th. That a detailed acconnt of what has taken place, should be transmitted to the British minister, at Washington.

A true copy. . C. R. Nesbitt, Colonial Secretary.

“Council Chamber,Bahamas, Nov. 9, 1841.”

The military party was sent on board, and the investigation commenced in pursuance of this explicit declaration on the part of the Governor and Council, and no further correspondence took place until the 12th. The Consul and all concerned, acquiesced in the course proposed to be pursued by the local authorities. They could not have understood the expression used in the statement, that all persons not found to be implicated, must be released from further restraint, to mean, as has been argued, that they must be released, from the authority and control of the master of the vessel, or the owners of the slaves, or their agents; but only that the guard would be withdrawn, which had been placed on board, at the solicitation of the Consul, for the purpose of preventing the slaves from leaving the vessel. If the Consul had not so understood it, he would certainly not have consented to the terms proposed. We see in this, no disposition on the part of the Governor and Council, officiously to interfere. On the contrary, they interfered, at the request of the Consul, merely for the purpose of singling out and confining the guilty, with the explicit declaration, that, after that, they would impose no further restraint upon the other persons onboard.

The investigation proceeded until the 12th, at noon, when the Consul again writes to the Governor, that in- proceeding on board the brig Creole, with the magistrates, that morning, he saw a large collection of jftrsons on the shore nearest the vessel. and many in boats, and was at the same time informed» that the moment the troops should be withdrawn from the brig, an attempt would be made to board her by force; that he was farther informed, an attempt had already been made. He, therefore, requests the Governor to take such measures as he may deem proper, for the protection of the said vessel and'cargo. He adds, that he believes those statements to be true, and that he did not accompany the magistrates, that he might communicate, the same to his Excellency. An immediate answer was returned by the Governor, in the following words: “ Sir, In answer to your letter this moment received, I beg to state, that I cannot think it possible that any of Her Majesty’s subjects would act so improperly as to board, by force, the American brig Creole, and should such an unauthorized attempt be made, I shall be quite ready to use every authorized means for preventing it.” Thus the Consul did not witness the last scene on board, when the Attorney General and the magistrates who had conducted the examination, returned with the guard, carrying away the nineteen slaves, who had been identified as the guilty ones; and when all the rest of the slaves, except four or five, went on shore, and never returned. Before we notice the discordant and contradictory statements of the witnesses relative to that occurrence, it is proper to give the rest of the correspondence, consisting of the remonstrance of the Consul at the liberation of the slaves, the answer of the Governor, and the official statement or report of the Attorney General.

On the 14th of November, two or three days after the occurrence above alluded to, the Consul Writes to the Governor, that he had not been enabled, fro ip. various causes, until.late on Saturday evening, to obtain a detailed statement from those on board the brig, of the proceedings of the Attorney General and those accompanjdng him, by which all the slaves on board the said' brig, with the exception of four, were put on shore and liberated. Against the manner of their liberation, and all the proceedings which ultimately attended it on the part of Her Majesty’s officers and subjects, he deemed it his duty to enter his solemn protest; and also, on the part of the chief mate, then in command, to protest. He goes on to Say, that he regards those slaves while they were under the American flag, and regularly cleared from one slave-holding State to another, within the United States, as much a portion of the cargo of the brig as the tobacco and other articles on board, and whether on the high seas or in an English port, does not change their character; and that Her Majesty’s government had not the right to interfere with or control the officers of an American vessel thus circumstanced, in such a course as might be necessary and proper to secure such property from being lost to the owners. He concludes by asking, that those who had been identified as the guilty slaves, might be forwarded to the United States by the Creole, which he expects to forward in a few days.

To this the Governor replied, as follows: “ Sir, I have the honor to acknowledge the receipt of your letter of this date, and cannot withhold from you that I feel somewhat disappointed at its contents, as it has been the wish and object of myself and Council to meet your views and wishes as we were authorized, in all that has taken place respecting the American brig Creole; and as our intentions were throughout made known to you previously to being acted upon, without calling forth any objections on your part, we could not but consider that you acquiesced in them. As the statement contained in your letter, respecting what occurred while the Attorney General was on board the Creole, does not accord with the official report thereof made to me by that officer, I transmit a copy of the same for your information ; and by which it distinctly appears, that neither he, nor any of the authorities here, had any thing to do, either with the negroes quitting the vessel, or their landing here.”

■ In conclusion, the Governor declines giving up the nineteen culprits, because it had been agreed that they should remain until the will of the ministry should be known.

The official report of the Attorney General, dated on the 13th, the day after the slaves landed, states, that on the day before, he had, in accordance with the wishes of the Governor, proceeded on board the brig, in company with the police magistrate, and the Inspector General of Police, for the purpose of visiting her. That on nearing her, he found in her immediate vicinity, several boats filled with colored and black people of the island; that presuming them to be the persons alluded to in the communication of the American Consul to the Governor, (of the 12th,) he visited each of the boats, and addressing the persons in them, informed them of the report which had been made by the Consul; explained to them the liability which would attach to them, if they acted in the way it was alleged they^ intended to do; and strenuously urged them to abstain even from using words or gestures, which might be considered as having a tendency to violate the peace. That, in answer, they all assured him, it was not their intention to resort to any acts of violence, and that they had assembled merely for the purpose of peaceably carrying on shore* such of the persons on board the Creole as might be permitted to quit her, and should desire their assistance.' That the persons in the boats were without arms, except ten or a dozen stout cudgels, which he observed in one of the boats, and which, at his request, were immediately thrown overboard. He then proceeded on board, and the police magistrate pointed out to him eighteen persons, who were charged with the crimes committed on board; that one other was afterwards identified by two witnesses. That he then enquired of the chief mate whether he had any further' witnesses to produce, and was answered in the negative. That he then requested Lieut. Hill, the officer in command of the military guard,. to take charge of the accused, and he, at the same time, informed them, that they would shortly be conveyed on shore, and imprisoned until representations of their case could be made to the British government, &c. That he then informed the chief mate that, as far as the authorities of the island were concerned, all restrictions upon the movements of the other persons on board were removed; and requested him to cause all persons on board to appear on deck. That he cheerfully complied, informing him (the Attorney General), at the same time, that it was not his desire to detain on board any one of the persons (shipped as slaves) who did not wish to remain, and that they had his free permission to quit her, if they thought proper to do so; but that he apprehended that, as soon as the guard should be withdrawn, the people in the surrounding boats would board his vessel, and commit acts of robbery and other violence. To this the Attorney General states that he re plied, that, with respect to the first point, he had no instructions to interfere between himself and the persons alluded to; but as to his fear of an attack, that-precautions had been taken to guard against that; and that he might rely upon being protected against .any violation of law. All the persons on board being then assembled on deck, he says he told them, that, on the arrival of the Creole, information had been laid before the Governor, charging .a murder, and certain attempts at murder, to have been committed on board, and that the protection of the authorities had been claimed by the American Consul; and that a guard of soldiers had been placed on board for the purpose of preventing any person from quitting the vessel, until an examination could take place. That such examination had now terminated, and no criminating evidence had been adduced against the persons he was then addressing. That such being the case, he had to inform them that, as far as the authorities of the island were concerned, all restrictions on their movements were removed. He states that he had no sooner concluded, than a white man, who he was informed was a passenger by the name of Merritt, addressed the people who had been shipped as slaves, and told them that they were at perfect liberty to go on shore if they pleased .■ — information which they appeared to receive with great pleasure, and a general intimation of their intention to avail themselves of it. That this took place in presence of the mate, who signified his acquiescence, and refused to forbid the approach of the boats, though urged to do so by the master of another American vessel, who happened to be on board. -That he and the police magistrate quitted the brig before any of the slaves had left her, but he was not many yards off when he saw them crowding over the sides and getting into the boats. In conclusion, he states,' that the departure of the negroes from the Creole, was their own free and voluntary act, sanctioned by the express consent of the mate; and that neither himself, nor any other of the colony then on board, interfered in the slightest manner to induce them to take that step. In corroboration of those statements, he refers to the police magistrate, the Inspect- or General of Police, Mr. Justice Burnsides, Lieut. Hill, the Receiver General and Treasurer, and Mr. Hamilton, the pilot' of the bar, who were all present during the whole transaction.

This closes.the written correspondence, and brings us to consider the parol evidence touching'what occurred on the 12th of November, when the guard was withdrawn and the slaves left the vessel. Our attention has been most particularly directed to what was said, by the Attorney General at the time in his address to the slaves, and what was said at the same time by Merritt, Gifford the mate, and Capt. Woodside.

The statement made by the Attorney General in his official report, is confirmed by his testimony on oath, -and by that of all the other English witnesses who were present, They all testify that he did not tell the slaves they were free and might go where they pleased, but only, in substance, that, so far as it concerned the authorities of the island, all restraint was now removed. They all swear that Merritt, at the same time, told them, in substance, that they might either go, or stay, as they pleased. This is flatly contradicted by the American witnesses, who swear that the Attorney General stated to the slaves that they were free, and might go where they pleased. ' Merritt, however, admits that he requested the Attorney General to tell them, that those who were so disposed might continue the voyage, which he refused, and that thereupon he (Merritt) said to them: “ Men and women, all of you who think proper to proceed on the voyage to New Orleans, have the privilege of doing so on board the Creole.” That something was said or done of that kind, either by Gifford or Merritt, or both, to incur the censure of Captain Woodside, is not denied. Its precise import is not clearly shown, but it is shown, without contradiction, by the testimony of the Attorney General, that Woodside said to Gifford, that he ought to protest against what was taking place ; and he swears that Gifford expressed to him his entire willingness that the people should go on shore. Anderson, the Re» ceiver General, swears, that Merritt told them they might go on shore, or wherever they pleased. That he is positive as to this, because Merritt had been standing on the larboard side of . the deck with him, and had asked him to tell the people there was newish to detain them, provided they desired to go on shore; but not having gone on board in any official capacity, he told Merritt that interference on his part might be injudicious, and advised him to make known his wishes to the Attorney General and magistrates, then standing on the starboard side of the poop or quarter deck, and that Mr. Merritt immediately passed over to them.

It is to be lamented that the testimony of Captain Woodside has not been taken upon this point; but notwithstanding the positive and irreconcilable contradictions in the statements of the witnesses, there are some facts clearly shown: 1st. That no violence was used on the occasion, and that not a single person from on shore, or the surrounding boats, boarded or attempted to board the Creole. 2d. That the four who voluntarily remained, were not disturbed, nor interfered with. 3d. That neither the mate Gifford, nor Merritt, gave any orders to the slaves to go below, or to remain on board'when the guard should be withdrawn, nor exerted any authority to prevent the slaves from going on shore when the guard was withdrawn. 4th. That only nineteen were taken on shore by the British guard, with the consent of all concerned.

The declaration, which Merritt admits in his testimony he made to the slaves, that all of them who thought proper to proceed on the voyage to New Orleans, had the privilege to do so - on hoard the Creole, may have been understood by the remaining slaves as leaving it to their option whether to go or to stay, and they • were confirmed in that impression when they discovered that neither Merritt, nor the mate endeavored to prevent their going on shore, they not wishing to avail themselves of the privilege ofcoming to New Orleans.

There is another fact equally clear and well established, in our judgment, to wit, that the mutiny -or. insurrection, which had been successful in turning the Creole from her course and bringing her into the port of Nassau, had not been quelled and subdued until the British guard went on board, and confined the leaders. Until then, the mutineers were in the control of the brig, and of every body on board. It is true the arms which had been used to subdue the officers, passengers', and crew, had been thrown overboard; but the physical superiority of the mutineers remained, and up to the moment when the pilot came on board, they alone exercised authority.

Upon this statement of the material facts of the case, the question arises, what was the cause of the loss, according to the law of insurance? Was it the insurrection or mutiny, or was it the interference of the authorities of Nassau ? or, as it is expressed in the policy, foreign interference, or the arrests, restraints and detainments of kings, princes, or people. It is not for us to decide, whether the conduct oí the local authorities of Nassau in relation to the Creole, was such a violation of international comity, as to give just cause of complaint in the diplomatic relations of the United States with Great Britain. With the case, in that respect, we have nothing to do. Whether the loss shall fall upon the owners or the underwriters, the question of redress between the two governments remains the same. Our only inquiry is, whether that interference, such as it is shown by the evidence before us, was the proximate, efficient cause of the loss, according to the settled principles of the law of insurance. It is a question between owner and insurer, all citizens of the United States, and equally entitled to the interposition of the government.

When several successive perils have been encountered, and a loss ensues, it is often difficult to determine which is, legally speaking, the true cause. The rule, causa próxima, non remota spect'atur, is well established ; but the last, is not necessarily the proximate cause. The books are full of cases illustrating this distinction. Where, for exaiqple, there had been a restraint and detainment of government within the terms of the policy, and injury to the vessel by the long delay and exposure to the climate consequent upon such detainment, it was held that that was the true cause. “All the consequences,” says the court, “ naturally flowing from the peril insured against, or incident thereto, are properly attributable to the peril itself. If there be a capture, and before the vessel is delivered from that peril, she is afterwards lost by fire, or,accident, or negligence of the captors, I take it to be clear that the whole loss is properly attributable to the capture.” 1 Story’s Rep. 164.

So in the case of Potter v. The Ocean Insurance Company, it is said “ if a vessel is insured against fire only, and is burnt to the water’s edge, and fills with water, and sinks, it would be difficult, in common sense, to attribute the loss to any other proximate cause than the fire, and yet the water was the principal cause of the submersion.” So the barratry of the master and crew would be the proximate cause of the sinking of a vessel, in which they had bored holes fraudulently to sink her. 3 Sumner’s Rep. 41.

In the case of Schieffelin v. The New York Insurance Company, as stated in 1 Phillips, C99, it was said by Ch. Just. Kent: “Suppose the policy against capture only, and the vessel was captured, and then shipwrecked while in the hands of the captors, I should think the assured might maintain, that his right to recover for a total loss attached upon the capture, and that the subsequent casualty was one with which he had no concern.” . The converse of this last case would be analogous to the one now before us. Suppose the underwriters exempt from the risk of capture, and, after capture, the vessel wrecked by one of the perils assumed, in the policy, the assured could not recover. “ Prima facie’’ says Hughes, in his treatise, “ a capture amounts to a total loss; and if the possession of the captors continues, or even, though a re-capture take place, if the ship be under a disability to complete her voyage, and the adventure be not only retarded, but in effect destroyed, the underwriters will be liable for a total loss, if notice of abandonment be given when necessary. Hughes, 170, *224. 1 Phillips; 419.

. In principle it is not easy to distinguish between a successful insurrection of slaves, which form themselves the subject matter of the insurance, and capture by an enemy. If, while the slaves on board the Creole were its undisputed masters, and after the route of the original voyage had been abandoned, she had been wrecked upon one of the numerous British islands in that sea, either by the force of a tempest, or stranded intentionally by the mutineers, and they had dispersed themselves'on shore, within the exclusive operation of the British law* we cannot doubt that the efficient operative cause of the loss would be the insurrection, which had been successful and unsubdued up to the moment of the stranding or the shipwreck. The escape into a British island, and' the immunity promised by the foreign law, formed a part of the original plan of the mutineers, and apparently their only motive. The emancipation of the slaves, at least so long as they remained within the dominion of Great Britain, was the immediate and natural consequence of the insurrection, and of the running of the vessel upon the British shores by the mutineers.

But it has been argued that, with the aid of Captain Wood-side and others on the island, the officers and crew of the Creole might have succeeded in recovering the mastery of the vessel and slaves, and continuing the voyage to New Orleans, had it not been prevented by the interference of the local authorities.

The facts in relation to this part of the case, as stated in the New Orleans protest, signed, by the two mates and six seamen, are as follows: “ That about two or three hours after the brig reached Nassau, Captain Woodside of the bark Louisa came on board with the American Consul, and it was agreed that he, with as many of his crew as could be spared, and the second mate and four sailors of the brig Congress, should come on board with arms, and, with the officers and crew of the Creole, rescue the brig from the British officers then in command, and conduct her to Indian Key, where there was a United States vessel of war. The Louisa and the Congress were American vessels, and the arrangement was made under the control of the American Consul. The Captain was to come on board the Creole with a part of the crews of the Louisa and the Congress, as soon as the Creole was ready to leave Nassau. Frequent interviews were had every day with Captain Woodside, the American Consul, and the officers of the Congress on the subject, and the whole plan was arranged. Accordingly, on the morning of the, 12th of November, Captain Woodside,. with the men in a boat, rowed to to the Creole. The muskets and cutlasses were obtained from the brig Congress. Every effort had been made, in concert with the American Consul, to purchase arms of the dealers at Nassau, but they all refused to sell. The arms were wrapped in the American flag, and'concealed in the bottom of the boat. As said boat approached the Creole, a negro in a boat, who had watched the loading of the boat, followed her, and gave the alarm to the British officer in command on board the Creole ; and as the boat .came up to the Creole, the officer called out to them, ‘keep/off, or "I will fire.’ His company of twenty-four men, were drawn up in a line fronting Captain Woodside’s boat, and were ready, with loaded muskets and fixed bayonets, for an engagement. Captain Woodside was thus forced to withdraw from the Creole, and thus the plan was prevented from being executed, the'said British officer still remaining in command of the Creole.”

According'to thisi statement, if the officer in command on board the^Creole knew that the intention of Captain Woodside and his party was forcibly to rescue the Creole from the British guard, before the object for which it had been put on board at the solicitation of the Consul, had been accomplished, by identifying and removing the guilty, it might well be questioned whether he had not a right to ^prevent it, by forbidding their boarding the brig. Up to that moment no complaint had been made of improper interference on the part of the local authorities. That interference, such as it was, had been sought by the Con- . sul, and the mate of the brig. The guard had remained on board, and even prevented the colored people of the island from coming-on board, as soon as it was requested to do so. It would hardly have comported with the good faith to have made an attempt at that time, by force of arms, to rescue the brig from the guard. The officer in command that day, swears positively that he was not notified by a negro of the approach of the American boat with arms on board, and that he ordered off all boats, whether American or English, except those which visited the Creole on duty. Be this as it may, neither the failure to purchase arms on shore, in consequence of popular prejudice, nor to rescue the Creole from the guard before the examination had been terminated, can be imputed to the authorities of the island as a cause of the loss of the slaves.

If we consider this abortive attempt to rescue the brig, in connection with the public prejudice of the place, and with the persuasive influence which was employed to induce a great majority of the slaves on board,, who had remained apparently passive during the mutiny, to avail themselves of that opportunity of be coming free, and that open demonstration which was made by the colored population, who hovered round the Creole in order to facilitate at least, as well as encourage their escape, if not forcibly to bring about that result, and which evidently intimidated and overawed the officers and crew of the brig; and if we suppose that, under the influence of such intimidation, the slaves were suffered to leave the vessel, the question arises, was that a, peril against which the plaintiff was insured, and the cause of the loss ?

The policy contains the usual clause of insurance against “ arrests, restraints, and detainments of all kings, princes or people, of what nation, condition, or quality soever.” “ This clause,” says Phillips, “ is more generally understood to apply to captures, seizures, and detentions by the commissioned officers and agents of some lawful and acknowledged government. Accordingly, Mr. Justice Buller said, the word people in this clause means the supreme power, the power of the country, whatever it may be. Thus the court considered the loss of a cargo of corn by a mob at Elly Harbour, as coming under the clause relating to piracy.” 1 Phillips, 259. Hughes on Ins., 179.

But not only no force was used, as we have already remarked, but the Governor expressed to the Consul his entire willingness to use all proper means to prevent it; and it is shown that the Attorney General was sent on board the boats, which were assembled near the Creole, and filled with the colored people of the island, and cautioned them against any resort to violence, and caused them to throw overboard a number of clubs with which they had provided themselves. How far the people of the island may have been encouraged, or instigated by persons in authority to aid in the escape of the slaves, does- not very clearly appear ; that they met with general sympathy, is abundantly shown; but our enquiry is not so much whether the conduct of the local authorities, or people was such as comity and good neighborhood would dictate ; but whether their acts and interference were, according to the law of insurance, the cause which prevented the property insured from arriving at the port of destination. Whatever act or event produced that result, is to be considered as the cause of the loss, and that is our only enquiry,; and from the best consideration we have been able to give the whole ease, we conclude that the insurrection of the slaves was the cause of breaking up the voyage, and prevented that part of the cargo, which consisted of slaves, from reaching the port of New Orleans ; and, consequently, that the defendants are not liable on the policy in this case.

It is, therefore, ordered and decreed that the judgment of the Commercial Court be reversed, and ours is for the defendants, with costs in both courts.