Tilghman C. J.
In this case the defendants demurred to the plaintiffs’ evidence. The consequence is, that every fact which might have been fairly inferred by the jury, is to be inferred by the court.
The defendants’ counsel make two points. 1st, That the underwriters are discharged by a deviation from the voyage insured. 2d, That the warranty of American property was broken by sailing under convoy.
1. A deviation is a voluntary and unnecessary departure from the course of the voyage insured. Here was certainly a departure, but was it unnecessary? We must consider the case under several points of view. 1. As to the going into' Falmouth. 2. As to the sailing from Falmouth to the Downs. 1. There is much to be said in justification of going to Falmouth. The danger of proceeding to Amsterdam after the indorsementon the papers, was imminent. Itmatters not whether the British orders in council were legal'or illegal. I will take it for granted they were illegal, still the danger of proceeding in defiance of them was not the less. The British had a force at sea sufficient to carry their orders into effect. What would have been the effect on the policy, had the captain proceeded towards Amsterdam after the indorsement of his • papers and been captured, is another question. There is enough to shew that the departure from the voyage was not voluntary, .but for the purpose of avoiding great danger. It was contended, that inasmuch as the policy provides for the case of being turned off‘from Amsterdam, and gives permission in such case, to proceed to some neighbouring port of discharge, the captain had no right to go to Falmouth, but should have proceeded immediately to London, But the case which happened is not exactly the case provided for; there was not only a turning off'from Amsterdam, but a prohibition to go to any other than a British port. This was an event not in the contemplation of the parties, and" produced by the British orders in council made after the commencement of the voyage. In the unexpected situation, then, in which the [467] captain was placed, after the indorsement of his papers by the British captain, there was nothing improper in bis put- , r , , . , , . ting into the nearest port, where he might procure good m-formation of the state of public affairs, and regulate his conduct as circumstances should require. I do not say that the policy wouldnot have covered him, if he had proceeded immediately to Londons but he was not obliged to do so-. Objection# have been made to the conduct of the captain in remaining so long at Falmouth. But if he is to be believed, and the jury would have been justified in believing him, his stay is accounted for by adverse winds, before the French decree was heard of, and afterwards by the danger of proceeding without convoy. It is said that the Downs are out of the course from Falmouth to Amsterdam. I doubt whether the proof of that was quite satisfactory; but suppose it to have been so, the captain swears, that the gale came on before he entered the Dozens, and that the going in was for a harbour, in pursuance of a signal from the convoying ship.If that was the case, there was only an intended deviation at most, for the actual going in to such a harbour in a storm was not voluntary, and therefore not a deviation. An intention to deviate will not make a policy void.
2. The second point is new, and not without difficulty. Was the warranty broken by sailing under conyoy? No case has been cited, which is at all applicable. The case of the Maria, the Swedish convoy, 1 Rob. 287., is very different. There the merchant ships were sailing under convoy, for the express purpose of resisting a search; in other words, of violating a right vested in belligerents by the law of nations. But the present is not simply the case of a neutral sailing under convoy, nor will I give any opinion on such a case,. because the convoy which is the subject of our inquiry was resorted to under very particular circumstances. Long after the commencement of the voyage, the captain heard for the first time, of a very extraordinary decree made by the emperor of France at Milan. By this decree, the Hamlet was subject to confiscation, because she had been visited by a British ship of war. This visitation was an act of force, not of consent; an act which the captain of the Hamlet was unable to resist. Yet by the French decree, the ship was stript [468] of her neutral character, or, as it is said, denationalized. It was not the captain then who threw off his neutral character by any voluntary act, it was torn from him by violence. If pe had proceeded without convoy and been captured by the j?renc]l^ |le would have been subject to condemnation. The taking of convoy therefore was in all human probability, for the benefit of all concerned. General rules must give way in cases of extreme necessity. Granting it to be unlawful for a neutral to sail under convoy in general, yet it is not so, when during the voyage, the belligerent against whom convoy is taken, puts- the neutral in a state of outlawry without just cause. If the law of nations forbids a neutral to put himself under the protection of a belligerent, the same law affords him protection while he is pursuing his voyage in a peaceable manner, after being visited by a belligerent whom he had no power to resist. Indeed I might add that he had no right to resist the visit and search of either of the belligerents, and, if he did, he incurred the penalty of confiscation. Here then is a new and singular case. The captain of a neutral vessel having committed no fault, finds himself involved in the penalty of confiscation. In such a dilemma, the common rules of action appear to me to be dispensed with. The neutral is justified in acting so as to meet the emergency of the occasion. The warranty which bound him to conduct himself in all respects as a neutral, is not broken, when compelled by the violence of a belligerent, he seeks refuge from a danger to which as a neutral he ought not to have been exposed. If authority were wanted for what seems sufficiently evident, the case of Talbot v. Seeman, 1 Cranch. 1., justifies me in saying, that in new and extraordinary cases, new principles must be adopted. By the general law of nations, if a neutral is captured by a belligerent and recaptured, no salvage is due, because no service is performed, it being presumed that the courts of the captor would have done justice to the neutral. But salvage is allowed on a recapture, where it is evident that the neutral was not in safety in the hands of the captor, because, if earned into port, the courts would have condemned him. Suppose France had declared war against the United States after the commencement of the voyage, might not the captain have put himself [469] under British convoy without breach of the warranty? Surely he might, and why? Because, without his consent or default he had been forced out of a state of neutrality before he went under convoy. Now for the purpose of the present argument, I see no difference between a declaration of war and the decree of Milan. That decree subjected the neutral ship to condemnation for no fault committed, either by the nation or the individual, and a declaration of war could have done no more. Upon the whole, it appears to me that the act which is complained of as a breach of neutrality, was not resorted to, until the decree of Milan had rendered it impossible to support a neutral character. The vessel was proscribed and subjected to confiscation. In that situation the warranty was not broken, by departing from the line of conduct prescribed to neutrals in general, and taking the step which seemed best calculated to avoid the impending danger.
Yeates J.
The defence in this suit rests on two grounds. i. That John Jackson captain of the ship Hamlet has been guilty of a deviation. 2. That by his conduct the plaintiffs had forfeited their neutral rights.
1. The voyage insured was at and from Philadelphia to Amsterdam, with liberty in case she should be turned off from Amsterdam, to proceed to some neighbouring port of discharge.
The evidence is altogether written; and by the defendants demurring thereto they admit not only the facts stated therein, but also every conclusion which the jury might fairly and reasonably infer therefrom. [His honour then stated the material facts, and proceeded as follows.}
So far am I from concurring with the defendants’ counsel, that a deviation appears upon the evidence, that I am fully1 persuaded there was no intention to deviate from the usual course of the voyage insured. The two great belligerent Firropean powers, Great Britain and France, had made certain naval regulations, unknown to the ancient code of maritime law, and highly injurious to neutrals. The indorsement of the Hamlet’s papers, that she should not proceed to any port at war with Great Britain, or that might be shut against British ships, justified her putting into Falmouth. The ne[470] cessity on the captain was equally imperious, as if she had forced thither by storms and tempests. I think the captain acted bonafide, with sound discretion, for the benefit of all parties concerned, by going into that port, and deterrnirririg- to prosecute his voyage when 'it might be done with reasonable safety. If he had attempted to proceed immediately to Amsterdam, and had been captured, the underwriters would readily have found out a defence in his obstinacy and temerity. The Hamlet’s cargo consisted chiefly of East India goods, and it appears by the evidence they could only be discharged in the port of London. How matter's might eventuate between the two conflicting kingdoms was wholly uncertain. The British orders in councilor the French decrees might receive relaxation. It was prudent to wait for further information, in the actual state of the political horizon, The captain might well meditate London as a port of discharge provisionally, in case no rational prospect was opened to him of reaching Amsterdam; and the Downs was a safe and convenient harbour between the two ports. In fact it appears, that the day succeeding the expiration of the Hamlet’s quarantine at Falmouth, he obtained his clearance for Amsterdam. His object was to obtain information of the probable measures of the two adverse nations, and he actually went into that harbour in a strong gale of wind, under a signal from the convoying schooner. I cannot impute blame to him for his conduct. He had never abandoned his original voyage. If a ship with goods on board insured to a foreign port, learns on her voyage that an embargo is there laid on all goods of her nation, and waits at some place as near thereto as she safely can till the embargó is removed, the. goods will in the mean time be protected by the policy, while the voyage remains legal. Blackenhagen v. The London Assurance Company, 1 Campb. 454.
2. As to the Hamlet’s being guilty of a breach of neutrality, by being put under the convoy of the British armed schooner at Falmouth, I agree that a neutral vessel sailing under convoy of an armed ship of one of the belligerent nations for the purpose of resisting visitation and search, is liable to condemnation by the laws of war. It would in general cases be an adoption of the character of the cqnvoying [471] nation. To form however a correct idea of this point in the present instance, we must consider the pretensions of France in this state of warfare with Great Britain. Her decrees profess to confiscate neutral vessels which have been visited on the high seas by British cruisers, and thereby directly invade and violate the rights of America. The just claims of the United States cannot be concluded by such arbitrary ordinances. The captain of the Hamlet could not prevent his vessel being visited by the commander of the Plover, nor the indorsement of his papers. It cannot reasonably be said that in his passage from Falmouth to the Downs he should proceed with folded arms, wholly insensible to danger from the French picaroon privateers, which infested the British Channel, in the prosecution of a voyage strictly legal. The private as well as public duties of captain Jackson forbade such a line of conduct, and he was justifiable under existing circumstances in sailing under the protection of convoy. The Milan decree of .the 17th December 1807, puts the United Stales and France in a kind of partial war. It is the settled doctrine of the law of nations, that a neutral vessel captured by a belligerent is to be discharged without paying salvage, for being in no danger, she receives no benefit from recapture, and ought not therefore to pay salvage; yet in Talbot v. Seeman, 1 Crunch. 1., salvage was allowed to an United States’ ship of war, for the recapture of ft Hamburgh vessel out of the hands of the French, though neutral towards each other, on the ground that she was in danger of condemnation under th.e French decree of 18th January 1798.
Upon the whole, I am of opinion that captain Jackson has not been guilty of a deviation, and that the Hamlet did not forfeit her neutral character by sailing under convoy from' Falmouth; and that judgment be rendered for the plaintiff.
Brackenridge J.
The insurance was at and from Philadelphia to Amsterdam, with liberty, in case of being turned off from Amsterdam, to proceed to some neighbouring port of discharge. The vessel in this case was turned off from Amsterdam, but she did not proceed to a port of discharge; for it appears from the evidence, that such was the nature [472] of the cargo, that it could not be discharged at Falmouth, to which Port she did proceed, on being turned off from any port shut against British ships. It is clear therefore that the proceeding to this port was not within the terms of the pol]Cy; more especially as it subjected to the delay of quarantine, and for a great length of time, nine days. The harbour of Falmouth off the castle of Pendennis, might not be out of the direct course of the voyage, and as it did not subject to quarantine to lie off here, it might not be a deviation; but I am clear that the entering the port oí Falmouth, with the quarantine to which it subjected, was a deviation, and, other things out of the way, would discharge the underwriter.
But having entered the port of Falmouth, a clearance from it became necessary; and “ it is a known and established rule “ with respect to a vessel, that if she is navigated under a pass “ to a foreign country, she is considered as bearing the charac- “ ter of that nation under whose pass she sails. She makes a 41 part of its navigation, and is in every respect, liable to be “ considered as a vessel of that country.” 1 Rob. 11. The .right of search seems to follow from the necessity of ascertaining by search the neutrality of the vessel and cargo, or of any part. A neutral taking convoy obstructs the exercise of this right in a belligerent, and is considered as putting off her neutral character. It is amongst the standing interrogatories to be put to’ any one examined as a witness in case of capture, “ did the ship sail under convoy, and for “ what purpose, and to whom did such convoying ship be- “ long?” 1 Rob. 325. Independent of authority, the act of taking convoy from one belligerent, would seem on every principle of reason to be a forfeiture of neutrality. It cannot be a consideration whether the belligerent, to protect against whom the convoy is taken, has made regulations contrary to the law of nations. The insured must not undertake to judge of that in taking convoy from another belligerent. For admit^ the right to judge of this in one case, and you must in all. It is deciding upon the illegality, and calling on one belligerent to protect against it, on the invasion of the other. It is in fact allying with one against the other for defence at least. For these and other reasons, it would seem to be the [473] law, that the taking convoy is a forfeiture of the neutral character, and discharges the underwriter. The taking convoy in this case therefore, which appears from the evidence to have been done, other circumstances out of the case, would seem to discharge the underwriter.
But what occasioned the entering the port of Falmouth, and the taking convoy?
It was the preceding visitation of the British ship Plover, Philip Brown commander, and the indorsement of the papers of the said ship Hamlet, the ship insured. The visitation and indorsement were not a turning away merely from Amsterdam, or other port, but an order to proceed to any port of Great Britain or Ireland for further directions. Is it possible to consider the boarding by the British ship of war, and the indorsement of the ship’s papers, as less than a captureP A prize-master was not put on board, nor with the Milan decree ahead, was it necessary. The indorsement of the papers carried the vessel as certainly to a port of the British empire, as if a prize-master had been put on board. An iron collar put on the neck of a slave, could not more effectually secure against his running away, than this indorsement secured to a British port the vessel in question. Whether this capture, as it may be called, was with a view to condemnation, or but to a qualified appropriation of the property, the securing the trade or duties to themselves, must be immaterial; for to a certain extent, even in that case, it must be considered as a taking. Was not this arrest, or restraint of the belligerent, a risk within the policy? It would seem to me that it must be considered as a peril insured against, and which intitles to abandon. It is on this ground, and on this only, that I think the insured intitled to recover. The legality of the Milan decree cannot come into view; it is the actual force only, as in the case of piracy, or a hurricane, that can be considered. It was the visitation of the British ship, and the indorsement of the papers that subjected to this; and in fact I am not able to see that the indorsement or marking the property in this manner, did not make it British, so as to subject it to a right to abandon.
After this capture or detention by which the voyage may be considered as broken up, the assured would seem by their [474] agents, to have laboured in and about the subject of the insurance, with all reasonable judgment, for the use of those concerned; and under the circumstances to have done the best advisable, so as not to devest the right of abandonment which had accrued. It would seem to have been doing the best that under the circumstances of the case could- have been done, to enter the port of Falmouth, to wait for intelligence, to take convoy and proceed as was done. The loss that happened was not owing to misconduct, but to accident; and not of that nature as to be a departure from the engagement express or implied of doing the best for the interest of those concerned. I am therefore of opinion, that the insured axe intitled to recover.
Judgment for plaintiffs.