Radcliff v. United Insurance

7 Johns. 38

• Court: New York Supreme Court
• Decided: November 15, 1810
• Status: Published

Opinion

Keht, Ch. J.

delivered the opinion qf the court. These causes were argued by the counsel upon paper, and as the questions which they involve are interesting, I have given the subject a very particular consideration.

The two principal questions are, 1. Was the capture, under the circumstances that attended it, a risk within the policy, admitting St. Lucar to have been a blockaded port ? 2. Was St. Lucar at the time of the capture, a blockaded port ?

I have stated the points in this order; for if the first question be determined in favour of the plaintiffs, the examination of the second becomes unnecessary.

1. The policy, contains the following clause, viz. u the insurers take no risk of a blockaded port, but if turned away, the assured to be at liberty to proceed to a port not blockaded.” This is a new provision in the contract, which has never, with us, received a judicial construction.

The judge, at the trial, told the jury, that admitting St. Lucar was blockaded, yet, inasmuch as the vessel ought to have been turned away, the capture was illegal, and the underwriters were answerable. This appears to me to be too confined a construction of the clause. If it applied only to lawful captures, founded upon an actual breach, or an attempt to break the blockade, it would be a provision in a great degree useless j for by thé law, as it exists without the clause, the insurer is not responsible for a loss, incurred by an actual breach of neutral duty, when the property is warranted neutral, unless the breach be such as to amount to barratry in the master. The words ought to be taken in a more enlarged sense. If the loss happens on account of the blockade of the port, no matter by what means, it was one of the risks which the insurers did not intend to assume, for they take “ no risk of a blockaded port.” The words are broad enough to include this case; and there seems to be no good reason why we should not give them their ordinary and popular meaning, especially, when that meaning coincides with the grammatical sense. The vessel was taken and condemned, as and for a breach of blockade. Of this fact there can be no dispute. The sentence of condemnation is explicit, and the only question which can be made is, that the facts in the case did not warrant the sentence. But I think it is sufficient for the defendants to show, that the loss arose by reason of the blockade, in order to bring the case within the exception; and that under this special stipulation, we are not to inquire, whether the belligerent was strictly justifiable, in condemning the property for a violation of the blockade. It is sufficient, as between these parties, that the loss was incurred upon that account. If the insurer is to take “no risk,” he must be discharged from every risk, arising from a blockaded port. Those risks may be numerous and difficult to define, of which the risk of being chargeable with a constructive notice of the blockade, and an intent to evade it, is perhaps not the least material. The risk may arise from illegal, as well as legal captures, founded on the fact of the blockade. Another risk is the interruption of the voyage, by being turned away from the port; and the policy makes special provision against the contingency of this risk; and for that reason only was this particular risk mentioned; it does not, therefore, control the generality of the preceding words. General words are to be understood in a general sense, if there be nothing in the contract which shows a clear intent to limit their meaning.

The case of Goix v. Knox, (1 Johns. Cas. 337.) is somewhat analogous. The policy there contained a special clause, that the insurance was to be “ against all risks;” and the court gave it a construction as broad as the terms, and extended the policy to all losses, except such only, as might arise from the fraud of the insured. Words of similar import ought to receive the same construction, when they are inserted to restrain the policy for the benefit of the insurer, as when they are inserted to enlarge it for the benefit of the insured, provided they be not carried so far in the former case as to become repugnant to any valid insurance. An insurance is often made against particular risks, by name, to the exclusion of all others. We have an instance of this, in Robinson v. The Mc. Ins. Co. (2 Johns. Rep. 89.) and why should a policy, excluding all risks arising from a blockaded port, be deemed extraordinary ? We must collect the sense of the parties, from the language they have thought proper to use. We cannot go beyond the instrument to conjecture their motive and meaning. There may, how-ever, be very substantial reasons given for the comprehensive extent of the clause, and why the insurer would not take upon himself the arduous task of showing, in every instance, a sufficient cause for the capture. The breach of blockade is often a complicated fact, and it involves an inquiry into the knowledge and intent of the offending party, which may depend upon multifarious proof, and a critical examination of all the circumstances attending the captured vessel. From what appears in this case, the offence does not seem to have been made out ; for notice to the party of the existence of the blockade, by means of a previous notification to his country, or by notice to the individual, either actual or constructive, seems requisite, before the neuter can be deemed in delicto. This principle is obviously just, and it is constantly recognised in the English high court of admiralty. (3 Rob. Adm. 328. 4 Rob. Adm. 80. 6 Rob. Adm. 66.) No such notice is shown in this case, and therefore, judging from what appears before us, I should deem the capture unlawful. I am aware, however, that we are not prepared to judge of its legality, for we have not the evidence before us, upon which the prize court proceeded ; and it would be unjust to arraign the sentence without being possessed of the testimony. If the knowledge of the blockade was brought home to the party, the condemnation was, undoubtedly, correct; and whether it was or not, could only be determined by the evidence at the trial, which consisted of “ sundry examinations, taken in preparatory, in the cause, as also the several papers and documents found on board the brig, at the time of the capture, and delivered into the registry upon oath.” The very fact of being caught, as this vessel was, close in to the Portuguese shore, and avowedly bound to St. Lucar, was ground, if not duty explained, from which to infer the intent; especially, if the vessel was studious to avoid attention, instead of going up to the cruizer, to inquire as to the condition of the port. The destruction of papers has been held to be, of itself, “ evidence for condemnation,” by the ordinances both of France, and of the United States. This shows, from what delicate circumstances an inference of guilt may be drawn; and if the captain knew of the blockade, and meant to evade it, he had approximated sufficiently towards the scene of action, to render himself responsible. Si in confiniis hostium deprehendantur, prcesumuntur hostibus advehi. Spurn eñim próxima locis obsessis deprehenduntur, non alia ratione publicantur, quam quod ex facto tacite ad hostem commeandi proposttum colligatur. (Bynk. Quest. J. Pub. b. 1. c. 11.)

On the first point, then, I am of opinion, that the charge to the jury was incorrect.

The counsel for the defendants seem to admit, that the actual existence of the blockade must be made out affirmatively by them. They are correct in this opinion; but the interest of the parties to the policy requires, that the clause in question should be liberally construed, as to the existence of a blockade, so long as the blockade was not a mere pretext, and the loss actually arose by reason of it. If the vessel had been turned away from the port by a cruizer, on the allegation of an existing blockade, and had been obliged to go to another port, the assured would not have deemed it just, to have been held to very great strictness of proof, in making out the existence of a lawful blockade. The parties to such contracts have in view plain matters of fact, which address themselves to the senses, and affect the voyage, rather than difficult inquiries into the lawfulness of the causes which produce the exercise of power. What combination of facts will amount to a naval blockade has been a subject of much dispute- It was a point in issue between England and the Baltic confederacy. The parties to the policy did not, probably, mean to involve themselves deeply in this inquiry. A blockade upon the most enlarged definition which has been allowed by any of the authorities upon public law, and with adequate means to carry it into execution, would produce, as to the contract in question, all the effects and all the mischief of the most legitimate blockade. But whatever definition we may adopt, as being within the meaning of the policy, is not a point máterial in this case ; for the testimony proves the existence of a blockade in its strictest form. I shall now proceed to examine the facts with this view,

2. The jury appear to have concurred instantly, and without leaving the bar, in the opinion of the judge, that the blockade of St. Lucar was not shown. But it appears to me, that the weight of evidence was decidedly the other way; and that it preponderates so strongly, that the verdict, for that cause alone, ought to be set aside.

The sentence of condemnation by the court of vice-admiralty contains the express allegation, that St. Lucar was blockaded, not nominally, but de facto; and the vessel and cargo were condemned for an attempt to violate it. This sentence will be acknowledged to be presumptive, or prima facie evidence of the fact, and it stands as good proof until that presumption be destroyed. The testimony delivered at the trial, appears to me to confirm it.

Jabez Lovett entered St. Lucar, on the 4th of February, 1808, which was only seven or eight days after the capture ; and a fact attending his getting in, furnishes some light on the subject. He kept close in shore off Cape St. Mary; and after he had passed it he continued so, when he saw two frigates in the same direction with himself, and he then altered his course. When he arrived at St. Lucar, he found that both that port and Cadiz were considered to be blockaded j and so continued to be considered for the two months that he stayed there ; and he was told that the blockading squadron might be seen almost every day. When he came out, he saw the fleet of 29 sail to the southward, and he escaped in the night unnoticed. No proof can be stronger than this of a blockade, in fact, during the months of February and March, 1808, and it is carried back, in point of time, to within a few days of the capture. Who can know more certainly of the truth of the blockade, than the inha- ' bitants of the port, who are the victims of it ? Richard Bailey was at Cadiz, during the month of January, 1808, and only 15 miles from St. Lucar, and he says, it was then universally understood that both Cadiz and St. Lucar were blockaded, and that the same ships which blockaded Cadiz would be employed to blockade St. Lucar, if intended to be blockaded; that small vessels were stationed off St. Mary's, more effectually to enforce the blockade, and the cruizing of small vessels occasionally extended there. That the blockade was more strictly enforced in the months of January, February, and March, 1808, and that the reason of including St. Lucar in the blockade was, that cargoes landed there were conveyed in boats, along shore, to Cadiz.

These two witnesses being upon the spot, spoke from what they saw, and from- what was known at the places invested. Their testimony, therefore, is much stronger, and will weigh more in the scale of evidence, than that of many witnesses not present, and who testify only to . a distant hearsay.

The letter of Mr. Canning to Mr. Pinkney, of the 8th of January, 1808, would have still further corroborated the proof of the blockade, as it was decisive evidence of the intention of the English government to include St. Lucar in the blockade of Cadiz, and to carry .the blockade, gt the entrances of those ports, into “ the most rivorous” effect. This letter, I think, ought to have been admitted in evidence. It appears to have been printed at the city of Washington, by persons whom the defendants offered to show were printers to congress, and to-have composed part of a set of public documents transmitted to congress, by the president of the Ünited States. A greater strictness of proof, m respect to such public c , , , • i j n-matters or state, and when they are introduced collate rally, and not as matter of fact in issue, would be inconvenient, and is not now, in practice, required. Thus in the case of The King v. Holt, (5 Term Rep. 436.) the K. B. held that the London Gazette was prima facie evidence of matters of state; and in Talbot v. Seaman, (1 Cranch, 38.) a French decree was allowed by the supreme court of the United States to be read, upon no higher proof than that which, attended, the letter in question.

To prove the non-existence of the blockade, the plain™ tiffs relied on the depositions of the captain and mate of the captured vessel. The captain states, that when he was taken off Cape'St. Mary, and within two leagues of the shore, the English fleet, intended for the blockade of Cadiz, was blown off, and was upon the coast of Bar-bar y, at the distance of 90 or 100 miles from Cape St. Mary. How he discovered that fact does not appear, otherwise, than by the assertion, that when he joined the fleet in his captured brig, he found it there ; but he does not tell us of the precise time at which he joined it, nor of the date of the storm which blew off the squadron, nor whether the whole fleet was carried off, so as to leave no cruisers behind. The fact of the dispersion of the fleet could not have been known to the Imogene, at the time of the capture; for he says that the prize was directed to the fleet “ off Cadiz” If this momentary dispersion of the fleet, by a storm, is to be relied upon, as a suspension of the blockade, the captain ought not to have reposed on a general assertion, but he ought to have set forth dates, and all the .circumstances, with the utmost precision. The deposition, as it stands, is to be read with jealous eyes; for, as was observed on another occasion, “ masters have a direct interest to raise a blockade as soon as possible; therefore, their affidavits .come with a dead weight about them, that very much s inks their credit.” The deposition of the mate directly contradicts the fact of the dispersion of the fleet, for he says, that he went in the lugger, in company with the William Tell, until they came up with the fleet, “before Cadiz;” and that the Wiltiam Tell was then put in charge of some other vessel, and he “ proceeded with the lugger for Gibraltar; and that soon thereafter they were overtaken by a violent storm, which drove them upon the coast of Morocco, in Africa.” Both he and the captain say, that they did not know or hear of the blockade of Si. Lucar. But as this is mere negative proof, and founded on hearsay abroad, it cannot be entitled to any consideration, in opposition' to positive evidence of the blockade furnished by witnesses on- the spot. And to show what little weight is due to such loose reports, the mate has incautiously mentioned, as an instance of the freedom of the port of St. Lucar from blockade, the very case of the Connecticut, which captain Lovett commanded, and which, as we have seen, got in by chance, and at imminent' hazard, on the 4th of February, 1808, and afterwards-escaped from the port in the night, when a fleet of 29 sail were to be seen from the harbour.

This is all the material testimony on the question of the blockade; and, in my judgment, it establishes the fact beyond controversy;

That the naval force employed was competent, both from its amount and situation, to create the blockade of St. Lucar, cannot well be doubted, even if we resort to the most favourable definitions of a. blockaded port.There was at one time twenty-nine sail counted. The squadron was in daily sight of the port. It had no other fleet within its enclosure to contend with, but the feeble ■ remains of the action of Trafalgar. It had frigates and smaller vessels cruising quite up to the Cape of St. Mary; and every witness who speaks on the subject, proves, by the facts vzhich he details, that it must have been at all times hazardous to enter, against the consent of the blockading squadron. The only thing required by the convention of the Baltic powers, in the year 1780, to constitute a blockaded port, was, that there should actually be a number of enemy’s ships stationed near enough to make an entry evidently dangerous ; and the definition in the ordinance of congress, in the year 1781, is to the same effect. And it is worthy of observation, that this ordinance makes it lawful to take and condemn all vessels of all nations “ destined to any such port,” without saying any thing of notice or proximity. (Journals, vol. 7. 186.) in the subsequent convention of the Baltic powers, in the year 1800, and which was signed by Russia and Sweden, in December of that year, the definition is to the same purpose. It is “ where the disposition and number of the ships shall be such as to ren-. der it apparently hazardous to enter.” When this is the case, they admit (art. 4.) an entry without notice, to be equal, in point of violation of neutrality, to an attempt to enter by force or artifice, after notice. (N. A. Register for 1801, tit. Public Papers, 126.) I have the more readily alluded to these descriptions of a naval blockade, because the same definition was incorporated into the convention between Great Britain and Russia in 1801, and the principle of that treaty has been declared by the court of errors, in the case of Vos ξ Graves v. The United Ins. Company, (2 Johns. Cas. 475.) to merit “ high respect from all neutral powers.” I ought, however, to observe, that the doctrine of blockade, as uniformly laid down by Sir William Scott, though accompanied, as- it ought to be, with extreme sharpsightedness as to cases of fraud, is much more just and liberal than the precedents which I have cited. Not one of those efforts to define or to check the abuse of the right of blockade1, speak of the necessity of any previous1 notice. They seem to charge the. neutral with constructive knowledge of his duty and of his fault, arising out of the very existence of the blockade; and upon their principles, the William Tell must have been rightfully condemned.

But if the fact of the dispersion of the fleet by a storfti had even been made out, (and this is the main circumstance on which the plaintiffs rely,) it would not have altered the case. Such an accidental removal of the fleet does not suspend the blockade, provided the fleet uses all due diligence to reassume its station. That such was the case here cannot be doubted; for on the 4th of February, when Captain Lovett entered St. Lucar, he found two frigates on his track, and the port was then considered as blockaded, and the fleet was to be seen daily. If the neutral arrives before the port, when the blockading squadron is driven off, and he is ignorant of the cause of the removal of the force, he is not answerable for a breach of the blockade. I have no doubt of the solidity and justness of this principle. But if he knows, or is fairly chargeable with notice of the cause of the absence of the fleet, and that cause be an accidental dispersion by winds or storms, an attempt to take this opportunity to enter and to carry provisions to the besieged, would be a fraud upon belligerent rights, and a breach of blockade. It would be. taking an unjustifiable part in the contest, which no candid neutral, bound to good faith, would advise, and which no belligerent power would tolerate. Though ignorance of the cause of the removal of the investing force will excuse the neutral, yet the blockade is still recognised by the law of nations as existing. This is said to be so laid down by all the writers who treat on the subject. Hubner, who carried as far as any writer the extension of neutral claims, admits, that the belligerent may use the most rigorous rights of war towards those who act with ill faith relative to besieged places; he says, that this ill faith must always exist in the ease of neutral vessels approaching a blockaded port; and he mentions, with apparent approbation, the case cited by Grotius from Plutarch, of the execution of the master of a vessel, who was taken carrying provisions to Athens, which was at that time besieged. (De la saisie des bátimens neutres, tom. 1. p. 87. 115, 116.) If a storm drives a neutral, in spite of himself, within the confines of a blockaded port, he is excusable, and would not be subject to forfeiture; and is it not just that the same physical necessity which would excuse the. one, should not operate to the prejudice of the other ? Here the belligerent might say, Hanc veniam damus petimusque visissim.

The case of Williams v. Smithr (2 Caines, 1.) does in no respect deny or contradict this principle. The general language there used was applicable only, and so intended, to the fact before the court, of a blockade raised u in consequence of a naval expedition.” Nothing was said by the court of the suspension of a blockade by a storm. The facts did not call for an opinion, or direct the attention of the court to that point; and the distinguished counsel

(a) who took the lead for the plaintiff in that cause, admitted., upon the argument, that if the position was abandoned by stress of weather, and there tras a continual endeavour to return, the blockade was to be considered as existing in full force. This opinion I am free to cite as a great authority, for the author of it was a profound j urist, and as honest and able a statesman as any country ever produced; and I well recollect that he contended, on that occasion, for the value of neutral rights, and for just limits to the pretensions of blockade, with such solidity of argument, such comprehension of principle, and such persuasive eloquence, as to command the tribute of admiration which was so uniformly due to his exalted endowments. In the case of. Vos ξ Graves v. The United Ins. Company, already men- . . . . tione, the same point was incidentally noticed m the court for the correction of errors: but the court observed, “ that it was unnecessary to give an opinion on the case of an actual attempt to enter a port during the interruption of the blockade, by reason of the blockading squadron being blown oír.” This express reservation in the opinion of the court, shows, at least, that the point was not deemed clear in favour of the neutral pretension, if any such pretension was ever seriously assented. And I am persuaded, that that high court of judicature, (had its opinion been required,) would not have laid down so lax a rule of moral conduct, as to justify a neutral in knowingly availing himself of the accidental dispersion of a blockading squadron by a tempest, to carry succours to a besieged port.(a)

The blockade behig established, the ~ietdict in ~ch dause is, in every point ~f view, against law and evi~ dence, and ought to be set aside and a new trial award-' ed, with c~t~ to abide the event of the suite

New trial grantedi

The Late General Hamilton.

The following extract of a letter from Mr. Marshall, secretary of state, (row chief justice of the supreme court of the United States,) to Mr. King, the American minister at London, dated September 20, 1799, shows the opinion of our government on this subject.

“ The right to confiscate vessels bound to a blockaded port, has baen unreasonably extended to cases not coming within the rule, as heretofore adopted.

“ On principle it might well be questioned, whether this rule can he applied to a place not completely invested by land as well as by sea. If we examine the principle on which is founded the right to intercept and confiscate supplies designed for a blockaded town, it will be difficult to resist the conviction, that its extension to towns invested by sea only, is an unjustifiable encroachment on the rights of neutrals. But it is not of this departure, which has received sanction from practice, that we mean to complain. H is, that ports, not effectually blockaded by a force capable of completely investing them, have yet been declared in a state of blockade, and vessels attempting to enter therein have been seized, and on that account confiscated.

“ This is a relaxation proceeding directly from the government, and which may he carried, if not resisted, to a very injurious extent Our merchants have greatly complained of it, with respect to Cadiz and the ports of Holland.

“ If (he effectiveness of the blockade be dispensed with, then every port of ail the belligerent powers may, at all times, be declared in that stale, and the commerce of neutrals be thereby subjected to universal capture. But if this principle be strictly adhered to, the capacity to blockade will bo limited by the naval force of the belligerent, and of consequence, th? n'-.-.hicf to ncafcrnl commerce cannot be very extensive. It is, therefore, of the last importance to netitrals, that this principle be maintained unimpaired.

t( I observe that you have pressed this reasoning on the British minister, Who replies, that an occasional absence of h fleet from a blockaded, port, ought not to change the state of the place.

u Whatever force this observation may be entitled to, -where that occasional absence has been produced by accident, as a storm, -which for a moment blows off the fleet, and forces it from its station, which, station it immediately resumes; I am peryuaded, that where a part.of the fleet is applied, though only foi* a time, to other objects, or comes into port* the very principle requiring an effective blockade, which is that the mischief can then only be coextensive with the naval force of the belligerent, requires, that during such temporary absence, Ike commerce of uevtvals to the place should, be l* ee.”