Schmidt v. United Insurance

1 Johns. 249

Opinion

Spencer, J.

Without repeating the facts, I shall proceed to the consideration of the important question in the cause, whether the cargo has been lost, (even if Hamburgh was blockaded, and in a state that the vessel could not legally enter,) by any of the perils insured against in the policy. The words in the policy, under which the plaintiff ¡claims for a total loss, are arrests, restraints, and detainments of all kingsy&c, The terms do not I think, embrace a case like the present; for the master of the Orozimbo never attempted to enter the port of Hamburgh, nor was there any actual or immediate restraint, to hinder him from doling so.

I do not profess to consider, whether he was, or was not justified in going to Embden'; but I rest on the fact that there has been no force or vis major to interrupt his voyage. The case of Pole v. Fitzgerald,

Footnotes

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* is of high authority; and it is decided by that case, that the insurance is not on the V o voyage, but on the ship for the voyage. That principle appears to me to be applicable to this case ; for here the ship and cargo remain in safety j but the assured has lost the chance of going to so good a market. The assurer has nothing to do with the speculation, nor state of the market: and nothing has intervened, affecting the ship or cargo, within the terms of the policy. The principle I advance, appears to he sanctioned by a decision in 3 Bos. & Pul. 392.† Though that case be not an authority, yet the reasoning urged by Ld. Ahanley is so just and conclusive, that I adopt it. The question, there, was, whether on an insurance from Mounts-Bay to Naples, when, subsequently, Britsih vessels were excluded from the Neapolitan dominions, in consequence of which the cargo insured, from its perishable nature, was obliged to be sold at an intervening port, there was a loss within the policy. The question did not turn on the consideration of the articles being perishable, a circumstance that afforded a just ground for selling them ; but on this, -whether the shutting the port of Naples, so that the vessel could not enter with the goods insured, afforded a ground of action on the policy.

To shew that this was the real point, the learned Judge says, “here without entering into the question how far the cargo was totally lost, the claim made by the assured arises from the ship’s not proceeding to that port to which she was destinedand this, he says, “ cannot create a total loss within the meaning of the policy, because, it does not arise from a peril insured against; such peril must act directly, and not collaterally, upon the thing insured.” It is not requisite to pursue this subject further. To what lengths might not the claims of the assured extend, if this was sanctioned ? The parties have stipulated mutual things ; the underwriters, against the perils of the sea, and any positive, actual injury from restraints, arrests, and detainments, &c. as inatters of facts and not of imagination.

The plaintiff’s counsel have said,, that an embargo is within the policy, and have asked why is not a blockade ? The answer is obvious, an embargo operates directly on the subject insured, and this does not.

becomes unnecessary to examine the question as to the want of preliminary proof of the average loss ; on the first ground, I am fully of opinion that the defendants are entitled to a new trial, and that the costs should abide the event of the suit.

Tompkins, J. was of the same opinion.

Thompson J.

The first question, presented by this case, is, whether a loss of the voyage, by reason that the port of destination was blockaded, be a peril within the policy ; and if so, whether the evidence of Hamburgh's being blockaded was sufficient ?

The insurance was on 35 bales of cotton on board the ship Orozimbo, at and from New-Tork to Hamburgh.—

This was not an illicit trade, and the assured, according to the general laws of trade, had a right to make his calculations for a sale of the shipment at the port of destination, and, for this purpose, insures the arrival of his goods at that port. Our policies are extremely broad and comprehensive, and would seem to embrace every species of risk to which ships and goods are exposed, from the perils of sea voyages. The underwriter, by his contract, stipulates, that the goods shall not be prevented from arriving at their place of destination, by any of the perils insured against. One of those perils is the restraint of princes. In the present case there was, I think, a total failure and loss of the voyage, by a peril coming within the meaning of the policy, under the term, restraint of princes. By the blockade, the vessel was prevented from going to her port of destinaton, and if she had proceeded she would have rendered herself liable to capture and condemnation ; for the master to have proceeded to Hamburgh, when it was in fact blockaded, would have been a violation of his duty. The evidence offered, with respect to Hamburgh's being blockaded was, I think, competent, and proper to be uubmitted. to the jury. So far as the protest of the mas- , , , , , ter went, it was the best possible evidence, and tended directly to show an actual existing blockade ; and the general understanding in New-Tork on the subject, was certainly a corroborating circumstance. These were submitted to the jury as the testimony from which they were to determine whether Hamburgh was in fact blockaded. If a blockade be a risk within the policy, and Hamburgh was in fact blockaded, the assured was not bound to accept the cargo at any other place ; and unless there has been some acts on his part that will amount to an acceptance, he is intitledto recover from the underwriters for a total loss. The voyage being thus broken up, it was the duty of the master to do what, under the circumstances of the case, was best and most advantageous for the interest of the concerned. His object in going to Spithead was to obtain advice from the agent of his owners. And, it was by his advice that he went to Embden, as being the safest and nearest port to Hamburgh. The cargo, it is true, was accepted by the consignee at Embden % but this I'consider not within the scope of their authority, so as to be binding upon the assured. The consignee in this transaction must be considered as a mere volunteer, and acting for the benefit of whomsoever it might concern. Perhaps, however, the acceptance ought not to be deemed a voluntary act on his part, for he urged, that the goods mightbe sent to Lubeck, which was absolutely refused, by the master and owner of the ship. Nothing appears to show that the proceeds of the cargo have come into the hands of the assured, or that he has done any act whatever, ratifying the conduct of the consignees. I, therefore, see nothing to preclude him from a recovery as for a total loss—the sum allowed as a general averagé must be rejected.

Livingston, J.

The effect of an interruption by blockade, that is, whether it be a peril insured against, is the first point in this cause.

Without having recourse to the sweeping clause of “ all other perils, losses, and misfortunes,” (which by Molloy and some others, is supposed to u insure against Heaven án& , , ’ rr . . , 6 , earth, .and to embrace every detriment that can possibly happen to the thing insured-,”)' it appears to fall within the risk of restraints of princes, or of u men of war.” It is by the latter tj,at a blockade js formed, and if they prevent the safe arrival of the vessel, or turn her away, how can if be said that the vofage has not been defeated by a hazard insured against ? It is not like a denial of entry, for that happens after,arrival, and if accompanied with no restraint' or detention, .cannot amount to a loss ; unless the assurer be considez-ed, in all cases, as warranting a right to sell - the cargo, whatever may. be the laws of the country to which the property is sent. . - ■

, But it is insisted that the Orozimbo had a right to proceed, .and should have gone on, until she met xvith the investing squadron, and had been turned axvay. That American vessels, under the treaty of London, have the right of proceeding, until turned axvay in this manner, I never dqubted,- and such has been the decision of the court for the corz-ection of errors, but this is not the only" inquiry here. Properly to estimate the risk of proceeding, after the indorsement which was made on her z-egister, xve must look at the construction which the high court of admiralty of Great-Briiain has put on this part of the treaty.

The Columbia,* case well known in this court, xvas cap? tured xvithout any previous warning,' and condemned by Sir William Scott, because, the blockade of Amsterdam -xvas knoxvn in New-Tork at the time of her sailing. , On ground, then, somexvhat resembling this, if. not stronger, might the Orozimbo have been condemned, if. she had gone on, after l-eceiving advice of the blockade from tiro ships of war, both at no gx-eat distance from Hamburgh, thoughnot of theblockading squadron. It is suEcient to justify the master’s conduct, eases of this kind, if he have good reason to apprehend that in capture will be the consequence of going on. “ A just fear,” says Targa,† “ is a kind of violence, so that abandonment “ of a vessel from a doubt of not being able to resist, and especially of being made a slave, is a loss xvithin the policy.” And Casaregis,§ after observing that in such case, 44 a cap-44 tain should not rashly iorsake his ship, adds, that it is 46 otherwise, if the circumstances are such, as may excuse 44 fear, credulity, or even an error of the captain.”— 44 Secus si talibus circumstantiis, qua timorem, credulitatem, 14 aut errorem capitanei excusare possent.” Emerigon,ǁ also, mentions several instances in which fear of a shipwreck, an enemy, pirates, or the like, which appeared just at the time, though not in fact well founded, have justified a dereliction of the property. These principles, which appear reasonable, apply to the Orozhnbo, if we once admit that capture is a peril insured against. If the master, from the notification he received, and the advice given him, were really afraid of condemnation, if he attempted to enter the ElbetJ (and such' were certainly his apprehensions, nor were they without foundation,) he was not bound to proceed. If he had proceeded, and a loss had ensued, he would have been censured, and have furnished a better ground of defence than is now taken. I am presuming the port of destination to be actually blockaded, which sufficiently appears to have been the case with Hamburgh ; for all the parties, on or near the spot, act on that supposition.

But if it were proper in the master to change his route, he ought, it is said, to have gone to the next nearest port, the voyage not being thereby lost, and the insurance would have protected him thus far. This is not so ; the moment a voyage is interrupted by a blockade, a right to abandon exists, and if it be seasonably followed up, every thing that is afterwards done, in good faith, by the master, must be on account of the underwriters. The assured are not obliged to receive their goods at the next nearest port, or at any other port than the one to which the vessel was bound. They have calculated on a particular market, and if impeded in getting thither, a loss of the voyage has happened, and the property may be cast on the insurers. As to the captain, he acted for the best j nor ought a receipt of the cargo by the consignees to prejudice any one. This was an act, in which the ultimate owner, whoever he might be, had an interest, and it should , ’ , , , c not be turned to the disadvantage ot parties at a distance, who could not give any new orders respecting it. The only point determined in Hadkinson v. Robinson† is, that if a perishable cargo be sold at a loss, at an interinedíate port, in consequence of .advice received during the Voyage, of the port of destination being shut by the government of the country, it is not a total loss within the policy. This decision must have proceeded on the ground, that an insurance does not guaranty a right of entry, or to trade ; but if Naples had been blockaded, the court of common pleas, without violating any principle it adopted in this case, might have come to a different conclusion.

My opinion is, that the verdict is right, except as to the sum included in it, for the average loss, settled at Hamburgh. As this must already have been paid by the consignee out of the proceeds of the goods, that is, out of a fund belonging to the defendants, it ought not to be recovered in this suit; the plaintiff, therefore, must deduct 57 dollars and 60 cents from his verdict, and enter judgment for the balance.

Kent, C. J.

The first question that arises in this case, is as to the sufficiency of the evidence of the actual blockade of Hamburgh, in August and September 1803, This testimony consisted, 1. In the notice of the fact given to the captain, by an officer of one of the British ships of war, after the vessel had arrived on soundings near the English channel, with- a prohibition to proceed there; 2. In the like notice and prohibition given him, by an officer of another ship of war off the isle of Wight ; 3.- In a letter written to him from-London, on the 23d of August 1803, by Thomas Wilson, agent of the owner of the ship', who stated to him. the fact, and advised him to go to Embden; 4. In-a letter from William Boyd, the owner of the ship, dated afi Hamburgh, the 3d September 1803, and addressed to the captain at Embden, in which the fact seems to be necessarily implied; 5. In the testimony of a witness at New-York, who stated that he received information from Bremen, that Hamburgh was blockaded m the fall of 1803, and he supposed it was so generally understood and known at New-York.

This evidence was, in the first instance, sufficient for the jury to infer the existence of- the blockade at the period in question, and as the defendants did not attempt to meet or destroy it by counter testimony,'the verdict ought not now to be questioned, on account of the insufficiency of that evidence.

The next, and more important question, is, whether a blockade of the port of destination, be a peril within the policy. The only case in the English books that appears to have a bearing on the question, is that of Hadkinson v. Robinson.* The court there considered that the port of destination being shut, was a peril acting collaterally only, and not directly upon the subject. But that case arose upon the special memorandum in the policy, which requires a peril operating to the total destruction of the article insured. It is not an authority beyond a question arising upon that memorandum, for with respect to the loss of the voyage, by reason of a blockade of the' port of discharge, the peril operates as directly as any other restraint or detention. The interdiction of commerce with the port of destination, is stated by Emerigon, (Vol. 1. 542.) to be a peril of the sea, and if it happens after the risk commences, (as we are to intend it did in the present case,) the insurer is responsible for the consequences of it; but if it existed before the commencement of the voyage, the contract is dissolved. In a question upon which the English books and decisions are silent, and when the opinion of Emerigon is founded, not upon local ordinances, but upon general principles of insurance, I cannot but consider him as a great authority. Nor do I see why a blockade should not be deemed equivalent to any other restraint or detention. It answers the description of a peril as understood in a policy, and which ¡includes every peril arising from 2. vis major, which could not be resisted, or from a cas fortuit, which human prudence could not foresee. It equally interrupts and destroys the voyage. Liberty to go to another port is changing ^he mercantile adventure, and is nothing less than the compulsory institution of a new voyage ; for if the termini of the voyage are changed, the identity of the voyage' is lost.

I do not consider the act of the consignee in receiving the goods at Embden as binding upon the plain tiff; for as he received them there in consequence of the peril, it was an act of necessity, and he received them as agent for the party in whom the interest should vest, according to the course of events.

It appears, then, to me, that the blockade in fact being established, the captain was forced out of his voyage by the peril; that his conduct in going to England, and from thence to Embden, arose from necessity, and was guided by the best advice, and the best discretion, that the circumstances of his case afforded ; and the abandonment having been duly made, the plaintiff is entitled to recover ^s for a total loss.

As to the further sum, found by the verdict, for the gross average, it cannot be admitted. We have allowed, after a recovery for a total loss, a further sum for expenditures in labouring to save the property, under the special agreement in the policy, but we have gone no further.—That sum must be deducted from the verdict.

Judgment for the plaintiff.

Willes, 644.

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Hadkinson v. Robinson.

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1 Rob. Adm. Rep. 154.

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Cap. 59, 291.

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Disc. 23, N. 84.

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1 Vol. 509.

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3 Bos. & Pull. 389.

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3 Bos. & Puller, 389.