On this day the Judges delivered their opinions.
Tilghman C. J.
On this case two questions are subr milted to the Court:
1. Whether the plaintiffs are intitled to recover for a total loss.
2. Whether if not for. a total, they may not recover for a partial loss, and on what principles such loss is to be es- ■ timated.
There is nc doubt but the voyage has been broken up by events beyond the plaintiffs’ fcontroul. But the defendants contend that they are not responsible, because it was not broken up by any peril which they insured against; not by perils of the sea, capture or restraint or arrest of princes, but solely by decrees of the French emperor, which under the circumstances of this case prohibited an entry into the port of Antwerp. The defendants rely on the principles established by the late English decisions, cited in the argument, viz. 3 Bos. and Pull. 388, Hadkinson v. Robinson; 11 East 21, Parkin v. Tunno; 11 East 205, Foster v. Christie; 12 East 288, Brown et al. v. Vigne, which appear to have been adopted by the Supreme Court of 'Massachusetts, in Richardson v. The Maine Fire and Insurance Company, 6 Mass. Rep. 102.; Amory and Co. v. Jones, 6 Mass. Rep. 318, and Lee v. Gray, 7 Mass. Rep. 349. On these principles the insured is not at liberty to abandon, where the ship has reached the port of destination, and is refused an entry by the government of the place, or where the voyage is relinquished in consequence of intelligence that the port is blockaded or in the hands of an enemy, or that a hostile embargo has been laid. The decisions alluded to are bottomed on this reason, that the loss is not occasioned by a peril insured against, because a fear of capture or detention is very different from the'fact of capture or detention. To permit the assured to abandon in every instance where capture is apprehended, would place the assurer upon a very uncertain and unjust footing, because there might bé an [412]*412affected or even a real fear, where there was very little acr'Ual clanger, and it is truly said that the risque of capture is one of the immediate objects of the insurance, and therefore the assurer has a right to insist on the chance of escape, of which he is deprived by the relinquishment of the voyage. On the other hand the assured may be placed in a very hard situation as the law has been held. If he attempts to enter a blockaded port after notice, he forfeits the right of a neutral; if he attempts to trade in a port into which an entry has been prohibited, even after the commencement of the voyage, his property is liable to confiscation; and if being refused an entry, he steers for a different port, the underwriters are discharged, because it is not the same voyage which was insured. Thus without any default of the assured, his property is left uncovered. From the opinion delivered by Chief Justice Kent in Craig v. The United Ins. Co. 6 Johns. 226, it appears that the Supreme Court of New York have doubts whether the law has not been carried too far. in favour of the insurers, in the cases which I have mentioned. It is unnecessary to express an opinion on that subject, as the case before us is distinguishable from all those which have been cited in favour of the defendants. It has never been decided that the assured may not abandon and claim for a total loss, where a voyage is broken up by a peril insured against. On the contrary, in Barker v. Blakes, 9 East 283, on an insurance front New York to Havre de Grace, where the ship was captured and carried into England, and during her detention there, the port of Havre was declared by the British government to be in a state of blockade, it was held that the assured had a right to abandon, the voyage being broken up in consequence of the capture and detention. Now in the present instance, the capture and carrying into England were the causes that the ship would not have been permitted to enter the port of Antwerp. For the decree of Berlin would have been no impediment to an entry, if there had been neither capture nor going to England. But it is said, that although this carrying into England might have been cause of abandonment, yet it was waived by the resumption of the voyage. Supposing this answer to be sufficient, yet another peril within the policy, soon afterwards occurred at Flushing. As soon as the ship came to an anchor and the master re[413]*413ported that he came last from England, a guard was put on board of her, and continued till she left the port. So that the voyage was stopped by the actual force of the governingpowerat Flushing. But it is contended for the defendants, that dropping anchor at Flushing was a deviation. I cannot think so; it was necessary to come to an anchor, and make report, because the fort at Flushing commands the passage of the Scheldt* Again it is said by the defendants*, that if the entry into Antxverp was unlawful, they are not responsible for it, because the plaintiffs have agreed not to look to them for any loss by seizure for illicit trade. But the trade was no otherwise unlawful than in consequence of an accident, against which the defendants had insured, viz. the capture and carrying into England. They must not be permitted therefore to avail themselves of an illegality springing from this source. The voyage then having been stopt by actual force of the government at Flushing, the plaintiffs might have abandoned to the defendants and claimed for a total loss. But did they exercise that right in due time? The breaking up of a voyage where the goods remain safe, is not a loss total in its nature. It is in the option of the assured to consider it so or not as he pleases. But he must decide in a reasonable time, and make known his determination to the insurers, otherwise they will be liable for no more than the actual loss. In this case, the plaintiffs had notice of what had happened at Flushing, probably about the middle, but certainly before the last of February. Now allowing what they contend for, that they had no right to abandon in less than sixty days from the time of notice, still I am of opinion that their abandonment was too long delayed, especially when the motive of the delay is considered. They did not abandon sooner, because they had it in view to proceed to Rotterdam; and it was not until this scheme was frustrated by the unlading of the cargo in England, that an abandonment was finally resolved on. They have no right after all this to throw the cargo on the defendants. But they have sustained damage, and shall they not be indemnified?
This brings us to the second point of inquiry.
There is no doubt but that the defendants are liable for an average loss on the first capture and detention in England that is not disputed. The objects of dispute are, 1st, an ave[414]*414rage loss in consequence of the second capture, and of storm? ’ and accidents on the coast of England after leaving Flushing. 2d, The loss arising from the difference between the invoice value of the goods, and the proceeds of the sales in England. 3d, Freight.
The insurers are not liable for any partial loss not happening in the course of the voyage insured. When the ship was stopped at Flushing and afterwards released, if she had proceeded to one of the neighbouring ports with a view of prosecuting her original voyage as soon as the danger should be over, she would have been covered by the policy. But it appears she sailed from Flushing with a view of proceeding to Rotterdam for a market. This was not the voyage insured, and therefore the insurers are not answerable for losses sustained in the course of it. They are not answerable then for the losses by the second capture, and the storms and accidents on the coast of England, nor for the difference between the first cost of the goods and the sales in England. Indeed I see no principle upon which that difference could be reckoned as a partial loss, as the goods themselves received no damage. As to freight, it was not earned, and therefore the insurers are not chargeable with any loss on that account.
Upon the whole, I am of opinion that the plaintiffs are not intitled to recover for a total loss, but that they are in-titled to recover for a partial loss which arose on the first capture and detention in England, and for no more.
Yeates J.
It seems an insuperable bar to the recovery of the plaintiffs for a total loss in the present instance, that the state of the fact did not justify the abandonment at the time it was made. The sugars and indigo insured, appear by the protest of captain Jacobs on the 28th of April 1808, to have been safely landed in London, and deposited with the rest of the cargo in the hands of Bainbridges and Brown, as a security for money advanced by them for the necessary repairs of the ship Union. They were not then under the restraint or detention of any foreign .prince. Besides, the loss of the voyage was no total loss in itself, but a cause of abandonment only, according to the doctrine laid down in Anderson v. Royal Exchange Assurance Company, 7 East [415]*41542. The capture of the ship and sending her into Plymouth on the 19th of October 1807, and the subsequent capture and” sending her to the Downs on the 17th of November following* were at most but the grounds of a technical total loss. Of the first capture the plaintiffs had information previous to their letter to Messrs. Baring and Co. of the 1st of December 1807; and by another letter addressed to the same gentlemen on the 29th of February 1808, it appears that they knew of her second capture and of her having been at Ramsgate on the 22d of December preceding. The plaintiffs should have made their cession in a reasonable time after knowledge of these captures; and a delay of nearly two and a half months must be considered as fatal to their claim for a total loss. The books are filled with cases upon this point. Among others, the case of Anderson v. Royal Exchange Assurance Company before cited, Barker v. Blakes, 9 East 294, and Livermore v. Newburyport Insurance Company, 1 Mass. Rep. 264, maybe referred to. Moreover if the abandonment was valid to charge the defendants as for a total loss, it was utterly.inconsistent therewith, that the plaintiffs should ássume a power over the goods insured, bj7 directing their correspondents in London to sell them, subsequently to the cession of their interest therein to the underwriters; when in fact they could only exercise a dominion over such proportion of the goods as were short insured.
The important inquiry will then be, whether under all the occurrences which have happened, the defendants are responsible for a partial loss, and to what extent?
It cannot be denied that when the Union was pursuing her voyage to Rotterdam, she departed from the track of her voyage to Antwerp. How far she had proceeded, we are not informed by the captain; but this we know, that the two ports lie in opposite directions.
It has been strenuously contended, that the British capture justified the deviation upon the ground of necessity, and that the loss of the voyage insured necessarily flowed therefrom, which was one of the risks contained in the policy. These observations merit our serious consideration.
I take it to be fully established that the master of a ship insured* finding that gome change has. beet}, effected in the [416]*416commercial relations of his port of destination, may proceed ' to a neighbouring port to obtain information; that he may if he thinks it prudent, continue there until the impediment obstructing his voyage is removed, and that while he lies by for these fair and honest purposes, the property insured is protected by the policy. But if after notice of a blockade, the captain continues his voyage to the blockaded port, the cargo insured becomes contraband of war, and a loss by capture and condemnation on that account is not insured against, although it is competent to the insurers to take that risk oh themselves. 6 Mass. Rep. 120. Thus in Blackenhagen v. London Assurance Company, 1 Camp. 455, if the captain of a ship learns in.the course of his voyage to a foreign port, that an embargo is there laid on all the ships of his nation, it was held that he might wait at some place as near thereto as he safely could, until the embargo should be removed; and the goods insured would be protected by the policy, while the voyage remained legal. But if she sailed back forherportof outfit, and was lost, the voyage insured would be considered as abandoned, and the assurers be discharged. When the master discontinues his voyage, (by which is understood an abandonment of it, with an intention in him no further to pursue it) and sails for his original port, from that time the policy is discharged. 6 Mass. Rep. 121. So in Lee et al. v. Gray, 7 Mass. Rep. 352, where a captain heard on his voyage of the British orders in council of the 11th of November 1807, and that he could not proceed to his destined port in Holland,, it was resolved that he might depart from the course of his voyage, and proceed to Plymouth to procure intelligence and advice, and not with the intention of discontinuing the voyage; and such'proceeding would be no deviation. But should he sail from Plymouth to London, the original voyage would be abandoned, and the insurers be no longer liable. Though the loss of the voyage insured is good cause of abandonment, if it arise from any of the perils insured against, yet the detention of a cargo at a neutral port, in consequence of the danger of entering the destined port, is not such a peril. Hadkinson v. Robinson, 3 Boss. and Pull. 388, Richardson et al. v. Maine Insurance Co. 6 Mass. Rep. 119. The restraint of princes which will excuse the master of a vessel for not delivering his cargo at the port of destination, means an actual and operative re[417]*417strain!, and not a merely expected one. Atkinson v. Ritchie, 10 East 530. The risk insured against must be the direct, and immediate cause of the loss. 3 Bos. and Pull. 392, before cited. In illustration of this doctrine, Lord Ellenborough in Forster v. Christie, 11 East 209, puts this case; “ suppose “ there had been fair weather to a certain point of the voy- “ age, and then bad weather and adverse winds, which had. “ prevented the vessel from entering her port of destination, “till she had received advice of the embargo^which obliged “ her to put back, could that have been declared on as a loss “ by the perils of the sea? And yet that might as well be said “ to be the causa remota of the loss of the voyage, as a de- “ tention by a king’s ship in the particular case. But that “ will not do; the risk insured against must be the effective “ cause of the loss, in order to charge the underwriters.
I readily admit that these decisions operate with severity on the insured, and seem in some degree to counteract the principle of indemnity, which is the sound basis of all insurances; because a loss has in fact arisen from the capture under the British order in council of the 11th of November 1807, issued after the commencement of the voyage, which could not be foreseen nor guarded against by human prudence. Without any fault or negligence on the part of the insured, or their agents, the ship was prevented from reaching her port of destination, and left wholly without protection, although an adequate premium had been paid for the ordinary risks of the voyage. But it is of the utmost moment to the interests of commerce, that the determinations of the tribunals of justice in similar cases should be adhered to; and it will be recollected that the losses here did' not occur in the course of the voyage insured, and that the assured had given an express warranty against seizure for prohibited or illicit trade. After an actual deviation, the underwriters are no longer liable. My opinion therefore is, that the defendants are not responsible for any losses which accrued after the 16th of November 1807, the time at which the ship left the roads of Flushing; though- they are liable for those which previously accrued.
Brackenridge J.
Notwithstanding the minute report of the Chief Justice in this case, and the lucid exposition [418]*418of facts by the counsel on both sides, yet it is not so easy a thing to catch by the ear. as to see by the eye.
Segnius irritant ánimos demissaper aures,
§>uam quo: sunt ociáis subject» jidelibus.
It is for this reason that, no report of a judge, or exposition by the counsel, of the facts in the case, can be equal to a special verdict or a case stated. For though the ear hears, yet the hand occupied in noting what always too rapidly occurs, the attention is divided between the hearing and the writing, the combining clerkship with the thinking faculty. I make this apology, because under this disadvantage I am not perfectly sure that with all the pains in my power, I h ive all the material facts of the case perfectly in mv mind; and where this is not the case, the application of the law to the facts must be incorrect.
As I understand the case, — -in the English channel off Plymouth, the vesáel and cargo in question vrere captured; for I call it a capture, where, by compulsion she was forced from the direct course of her voyage. What would have , been a deviation, when compelled to make, must amount to a capture. Eo instanti the insured would have had a right to abandon, had it not been for a clause in the policy precluding an abandonment until sixty days after the perils insured against, had attached. This in the case of capture. The lapse of sixty days must have been provided, with a view to give the chance of recapture or liberation, as the state of the fact under the late decisions might avoid the abandonment; it being understood to be the law now, that the state of the fact, not the date of the intelligence, fixes the right of abandonment. But before it was physically possible to give intelligence of the fact of capture, by a communication to the assured himself, the vessel and cargo were released. She was at liberty to prosecute her voyage. But in the mean time, she had been not only taken out of the direct course, but she had been carried into British anchorage, the contaminating touch of which, in the contemplation of the government within whose jurisdiction the port of destination was, disqualified her from an entry at that place. Being now at liberty to prosecute her voyage to the port of destination, the right of abandonment which before had an inception, [419]*419maybe considered as suspended;but suspended only because though it was possible, nay probable that an entry would be prohibited at the port of destination, yet’it was not certain. The being compelled to cast anchor in a foul port, was compulsory; and this shewn at the port of destination, might form an exception to the prohibition of an entry. It behoved therefore to go to the port of entry, in order to represent the fact of the duress, and await the pleasure of the government. This experiment was made, and an entrj7 was prohibited. The right of abandonment then attached, unless within an exception in the policy. This is seizure or detention, “ for or on account of any illicit or prohibited trade.’* But the capture or carrying into a British port, was the cause thatan entry to the port of destination became prohibited; and the capture and carrying were a peril insured against. The decision of the Court in the case of Forster v. Christie, 11 East 205, does not appear to have the substratum of good sense, and is carried beyond that of Hadkinson v. Robinson, 3 Bos. and Pull. 338. In this last case it was merely that of the port of destination being embargoed, that was alleged as the cause of the loss of the voyage. In the former there was a restraint and detention of a prince. The vessel was boarded by the crew of a boat, with orders to put them under the protection of the king’s ships, and the boat’s crew remained on board to enforce obedience to the orders. It was this restraint and delay that occasioned her not arriving until after an embargo had been laid in her port of destination. I find myself supported in not implicitly submitting to the ideas of Lord Ellenborourgh in that case, by the language of Chief Justice Kent, 6 Johns. 253. “ I am aware,” says he, “ that some late cases go a great way towards denying “ this right to the assured. But in this case I cannot at “ present concur, and when the case arises, I shall chuse to “ give it further consideration.” But we have the case 8 Johns. 217, that notwithstanding the endorsement of papers, it might not be certain that the French and Spanish decrees would be enforced, as the vessel had not submitted to the making such endorsement. It was compulsory; she ought to have proceeded until the decrees had been actually brought to bear upon her. There was not a moral certainty of being seized on her way to the port of destination, or at [420]*420the port. But I am disposed to attribute a greater conse- ' quence to the endorsing papers; it alters the character of the vessel, and makes it sub modo a different property. The British themselves speak of such marking or endorsing on sea letter 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 endorsing papers. There is a great difference in the case. 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 afterwards. It is a brand upon the flank or rather back, endorsed, if I may play upon a word. It is a charm or spell from which the vessel cannot escape; she is liable tobe taken, and is uniformly taken, if she attempts to proceed or to return. She must obey the directions and proceed to a British port. Why is it that large premiums in case of neutral insurance are given, ten per cent., as in this case? Sea risk? It must be more. Capture of war? Neutrals can run no risk of this; as to them there is no war. It must be restraint and detention of princes, questioning the neutral character of ship or goods, or such arbitrary regulations as they may chuse to assume. What, but orders in council or Berlin and Milan decrees, is there to increase the premium in such cases? The violation of a prohibition of trade is excepted in this case; and therefore an entry at ports prohibited cannot be attempted, or at least persisted in. The prohibition must be submitted to, and it is the consequence that is insured against. If not this, there is nothing to insure against as an object of increased premium. It is not an insurance that a vessel shall be received in a prohibited port, but an insurance against what is a cause of not being received. The British marking is the real cause; and it is admitted by both Chief Justices Kent and Parsons, that the lawfulness of Berlin and Milan decrees or orders in council must be laid out of the case. It is the effect, the fact of the restraint, that can alone be taken into view. I would add my eulogy to that [421]*421©f the counsel in the argument, upon the distinguished legal talents of Chief Justice Parsons, were it not lignum in sylvas,' and totally unnecessary. I premise this that I may take the liberty to say with deference, that I do not think his reasoning, 6 Mass. 102, is in every particular without, fallacy. I agree with him that information at sea to the master of a neutral vessel, and a warning not to proceed, is not of itself a restraint or detention of the vessel; but he omits noticing the most material circumstance, and which distinguishes It from a bare warning not to proceed, and that is the writing on the sea Ittter and register. This makes all the difference in the world in the case. He considers the vessel after warning, for he still keeps out of view the endorsing papers, as being restored to the condition in which she was before; that is, free to proceed. Was that the case? If so, how came it that after proceeding not as she was ordered to do, to a British port, but discontinuing her intended voyage and proceeding on her course to the port from whence she had set out, she was boarded by a British letter of marque, captured as a prize, and ordered to St. Nevis? Why was she captured, but, as after having had a mark set upon her, she was endeavouring to escape? The Chief Justice thinks that because the warning was not a capture eo nomine, it did not amount to a capture. It would seem to me that the neutral country of the vessel had a right to consider it so, and to demand ■ reparation, when the loss of the voyage is occasioned by such an act. Our case was not that of endorsing papers, but within the same reason, the being carried into an English port, which, as to a reception in the port of destination, wrought the same effect. And the vessel here . did not rest upon the the moral certainty of not being'received, but actually made the experiment. There was no quia timet in the case, or apprehension of being excluded. She proceeded to the port of destination, and after all representations as to the compulsory circumstance of her being carried into a British port, she was excluded. The casting anchor at Flushing was no deviation, but iii the direct course to Antwerp, the place of destination. It was the casting anchor short of Antwerp, and waiting there to make the representations and to obtain advice what to do, for the benefit of those •scoqcerned. The sailing in consequence of advice to go to [422]*422Rotterdam, was with a view to do the best for those concern- ' ed, and comes under the head of labouring and travelling, as by the clause in the policy the assured was bound to do. I resolve' the whole into the first capture and being carried into a contaminated port. All that took place after, was a struggle to escape from the effect of it.
The vessel having sailed, for Rotterdam, was captured a second time and carried to the Downs. It is at this point of the case that I have not the facts so fully in my mind as I could wish. But as I understand it, she was again liberated, and so no right of abandonment existed for the second capture. But in the Downs she suffered from a storm, and she could go no where for the benefit of those concerned, without being repaired. At London, the nearest port, or port where there might be a prospect of getting the means of repairing, endeavours %vere used to raise funds for the purpose of repairing. The captain found he could not hypothecate; no agent, no consignee here, he could not otherwise than by a sale of some part of the cargo, raise the money necessary to repair. He did sell, and raised the money and had the vessel repaired. So far all seems fair enough. It seemed to be the best that could be done; but here comes the rub, if I understand the matter right. The captain claimed freight. Had he a right to freight? It was not earned. The vessel had not arrived at her port of destination, but returned to the port from whence she was at an intermediate point of her voyage, and freight not due. But the captain sells to pay himself, or insisting on freight, a part of the cargo is sold to pay. The captain was the agent of the assured in all this transaction. At least he must be considered so; and in that case, it is the same thing as if the assured had disposed of a part of the cargo and paid the captain. They had not therefore the cargo to abandon, and it would seem that they must be considered as waiving the idea of abandoning and claiming for a total loss. I am not able to get over this difficulty. Here I must stop, I can pursue the matter no further. If the assured must be considered as paying freight in their own wrong, they must take it on themselves, and it is said to be the matter of freight only that makes the difference as to a total or a partial loss. From this conception of the facts as I have them in my mind, it would seem to me that the assured must look to the captain to recover back [423]*423freight which ought not to have been paid, and it does not lie with the assurer to look after him, having the loss thrown upon them in the first instance. My idea therefore would be, that he cannot oblige the assurer to take the place of the assured, and call this a technical total loss.
Judgment for a partial loss arising from the first capture, and detention in England.