Fadcliff, J.
This was the case of a policy on goods on board of the American brig, the Columbia, from New York to Amsterdam, with liberty to touch and trade at Hamburgh. The property was warranted to be American, or neutral. The vessel sailed from New York, and arrived at Cruxhaven, on her way to Hamburgh, and soon after sailed from thence for Amsterdam. She was captured, the day she sail-' ed, from Cruxhaven, by a British • sloop of war, carried to Yarmouth, and libelled in the English court of admiralty, and, with her cargo, was condemned for attempting to enter-a blockaded port. '
On the 21st of June, 1798, the date of the policy, neither party knew of the investment of Amsterdam; and this excludes the idea, that by any special agreement or understanding, the insurance could have been meant to extend to any peril, for breach of the particular blockade in question, if any existed.
1. It is a settled rule, that the insured, in order to comply [185]*185with his warranty, must not only maintain the property to be neutral, but so conduct himself, towards the belligerent parties, as not to forfeit his neutrality. He must pursue the conduct, and preserve the character, of a neutral. This being the import of the warranty, and the condemnation being founded on a breach of neutrality, it operates to preclude the plaintiffs, on the principles adopted with regard to the effect of foreign sentences, in the case of Vandenheuvel v. The United Insurance Company, from any recovery on the policy.(
2. In the present case, the plaintiffs, before the vessel sailed from New York, to wit, on the 27th of June, in consideration of law, had notice of the blockade. This appears by their letter to the defendant of that date. *A1 though the information was not then certain, it was sufficient to excite serious apprehensions, and to put them on their guard, which, in judgment of law, is deemed competent notice. (1 Atk. 490; 2 Fonb. 155.) The captain, however, before he sailed from Cruxhaven, had actual notice of the blockade; and there can be no doubt but the plaintiffs are liable for his acts. He sailed with the professed intent to evade it, if an opportunity should offer, but under an idea that, by the treaty of 1794, he was entitled to notice to desist, and to be sent back on the first attempt. The provision in the treaty, on this subject, it is obvious, cannot apply to a case, where the party already possesses the requisite information. This is the rule in all cases where the party is to be affected by notice.
But it is objected, that the captain was not in the act of breaking the blockade; that it existed merely in intention, and he was, therefore, not liable to seizure. If this idea be correct, then no such capture can be lawful, until the line of blockade be actually invaded. The resolution may be formed and acted upon ; and no progress in the execution of it can be stopped, or prevented, till the breach be made. A [186]*186construction so forcéd and limited, appears to me inconsistent with an effectual exercise of the right. It may be difficult to define its precise extent, but it is more reasonable to adopt the rule, that the besiegers are entitled to take preventive measures, and that when the resolution to break a blockade is formed and begun to be executed, within a reasonable distance, so as to render it practicable, the offence is incurred and the party liable to seizure. Such was the case in the present instance.
From the testimony of the mate, as well as from the sentence, it appears, that an actual blockade was understood, at the time, to exist. As a fact, it seems not to have been questioned. But the particular situation of *the blockading force does not appear, nor do I think it material. Although the party may have intended to avail himself of an accidental interruption, occasioned by winds or tempests, this intent will not excuse him ; for such interruption cannot be considered as destroying the existence- of the blockade. At least, if he attempts to enter, under such circumstances, it is at his peril, and he subjects himself to the hazard of seizure and confiscation. I think the reasoning of Sir William Scott, whose opinion is contained in the sentence, annexed to the case, is satisfactory, and that the sentence on tile merits was right; and, of course, that the plaintiffs, having forfeited their neutrality, ought not to recover, admitting the sentence to be open to investigation.
It may be proper to add, that the plaintiff here is not entitled to the premium, because the risk had actually commenced, and the warranty was forfeited by a subsequent breach of neutrality.
Kent, J.
On the facts in this case, two questions arise :
1. Will a voluntary attempt by the captain to break a blockade be sufficient to destroy the right of recovery on the policy ?
2. If it will, is there the requisite evidence in this case of that attempt 1
In answer to the first question, I am of opinion, that such [187]*187an attempt takes away from the assured his right to recover ; for he can never be allowed to indemnify himself upon an innocent party, from the consequences of his own want of skill, or from his negligence or folly. The act of the master must be referred.to his principal, who appoints him; and whenever a loss happens through the master’s fault, unless that fault amounts to barratry, the owner, and not the insurer, must bear it. It is a fault in the master, to occasion a loss of property, from *his carelessness or want of competent skill; and much more is it the case, if he wilfully occasion that loss, as by resisting search, breaking a blockade, &e. He is charged with a discreet and faithful execution of his trust, and it is against his duty to expose the property unnecessarily to risk, either from natural perils, or from perils arising from the violation of his neutrality. It is a point not to be disputed, that an attempt knowingly to break a blockade, is a violation of neutral duty, and occasions a forfeiture of the property ; and it cannot be supposed, unless it be so expressed, that the insurer takes upon himself such risk. The risk of fault in the master (barratry excepted) is not a risk enumerated in the policy; and it would be very unreasonable, that the insurer should be holden beyond his express undertaking, for the fault or folly of the master, whom the insured selects and controls. (Millar, 136-144, 179-188. 2 Valin, 77, 79, 161, 650,)
In answer to the second question, I have no doubt in concluding, that there is sufficient evidence in the case, of a wilful attempt by the captain to break the blockade of Amsterdam. This evidence results from the condemnation in the British court of admiralty; and for the conclusive effect of that sentence, 1 refer to my opinion in the cases of Vandenheuvel v. The United Insurance Company, and Vandenheuvel v. Church.(a) There is also sufficient evidence, without resorting to the sentence. When the captain left Oruxhaven, he sailed with the understanding that Amster[188]*188dam was a blockaded port; and'he sailed also under the idea, that if he should meet with a British cruiser in his at: tempt to enter Amsterdam, he would, for the first attempt, be sent back, and not seized.
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Fadcliff, J.
This was the case of a policy on goods on board of the American brig, the Columbia, from New York to Amsterdam, with liberty to touch and trade at Hamburgh. The property was warranted to be American, or neutral. The vessel sailed from New York, and arrived at Cruxhaven, on her way to Hamburgh, and soon after sailed from thence for Amsterdam. She was captured, the day she sail-' ed, from Cruxhaven, by a British • sloop of war, carried to Yarmouth, and libelled in the English court of admiralty, and, with her cargo, was condemned for attempting to enter-a blockaded port. '
On the 21st of June, 1798, the date of the policy, neither party knew of the investment of Amsterdam; and this excludes the idea, that by any special agreement or understanding, the insurance could have been meant to extend to any peril, for breach of the particular blockade in question, if any existed.
1. It is a settled rule, that the insured, in order to comply [185]*185with his warranty, must not only maintain the property to be neutral, but so conduct himself, towards the belligerent parties, as not to forfeit his neutrality. He must pursue the conduct, and preserve the character, of a neutral. This being the import of the warranty, and the condemnation being founded on a breach of neutrality, it operates to preclude the plaintiffs, on the principles adopted with regard to the effect of foreign sentences, in the case of Vandenheuvel v. The United Insurance Company, from any recovery on the policy.(
2. In the present case, the plaintiffs, before the vessel sailed from New York, to wit, on the 27th of June, in consideration of law, had notice of the blockade. This appears by their letter to the defendant of that date. *A1 though the information was not then certain, it was sufficient to excite serious apprehensions, and to put them on their guard, which, in judgment of law, is deemed competent notice. (1 Atk. 490; 2 Fonb. 155.) The captain, however, before he sailed from Cruxhaven, had actual notice of the blockade; and there can be no doubt but the plaintiffs are liable for his acts. He sailed with the professed intent to evade it, if an opportunity should offer, but under an idea that, by the treaty of 1794, he was entitled to notice to desist, and to be sent back on the first attempt. The provision in the treaty, on this subject, it is obvious, cannot apply to a case, where the party already possesses the requisite information. This is the rule in all cases where the party is to be affected by notice.
But it is objected, that the captain was not in the act of breaking the blockade; that it existed merely in intention, and he was, therefore, not liable to seizure. If this idea be correct, then no such capture can be lawful, until the line of blockade be actually invaded. The resolution may be formed and acted upon ; and no progress in the execution of it can be stopped, or prevented, till the breach be made. A [186]*186construction so forcéd and limited, appears to me inconsistent with an effectual exercise of the right. It may be difficult to define its precise extent, but it is more reasonable to adopt the rule, that the besiegers are entitled to take preventive measures, and that when the resolution to break a blockade is formed and begun to be executed, within a reasonable distance, so as to render it practicable, the offence is incurred and the party liable to seizure. Such was the case in the present instance.
From the testimony of the mate, as well as from the sentence, it appears, that an actual blockade was understood, at the time, to exist. As a fact, it seems not to have been questioned. But the particular situation of *the blockading force does not appear, nor do I think it material. Although the party may have intended to avail himself of an accidental interruption, occasioned by winds or tempests, this intent will not excuse him ; for such interruption cannot be considered as destroying the existence- of the blockade. At least, if he attempts to enter, under such circumstances, it is at his peril, and he subjects himself to the hazard of seizure and confiscation. I think the reasoning of Sir William Scott, whose opinion is contained in the sentence, annexed to the case, is satisfactory, and that the sentence on tile merits was right; and, of course, that the plaintiffs, having forfeited their neutrality, ought not to recover, admitting the sentence to be open to investigation.
It may be proper to add, that the plaintiff here is not entitled to the premium, because the risk had actually commenced, and the warranty was forfeited by a subsequent breach of neutrality.
Kent, J.
On the facts in this case, two questions arise :
1. Will a voluntary attempt by the captain to break a blockade be sufficient to destroy the right of recovery on the policy ?
2. If it will, is there the requisite evidence in this case of that attempt 1
In answer to the first question, I am of opinion, that such [187]*187an attempt takes away from the assured his right to recover ; for he can never be allowed to indemnify himself upon an innocent party, from the consequences of his own want of skill, or from his negligence or folly. The act of the master must be referred.to his principal, who appoints him; and whenever a loss happens through the master’s fault, unless that fault amounts to barratry, the owner, and not the insurer, must bear it. It is a fault in the master, to occasion a loss of property, from *his carelessness or want of competent skill; and much more is it the case, if he wilfully occasion that loss, as by resisting search, breaking a blockade, &e. He is charged with a discreet and faithful execution of his trust, and it is against his duty to expose the property unnecessarily to risk, either from natural perils, or from perils arising from the violation of his neutrality. It is a point not to be disputed, that an attempt knowingly to break a blockade, is a violation of neutral duty, and occasions a forfeiture of the property ; and it cannot be supposed, unless it be so expressed, that the insurer takes upon himself such risk. The risk of fault in the master (barratry excepted) is not a risk enumerated in the policy; and it would be very unreasonable, that the insurer should be holden beyond his express undertaking, for the fault or folly of the master, whom the insured selects and controls. (Millar, 136-144, 179-188. 2 Valin, 77, 79, 161, 650,)
In answer to the second question, I have no doubt in concluding, that there is sufficient evidence in the case, of a wilful attempt by the captain to break the blockade of Amsterdam. This evidence results from the condemnation in the British court of admiralty; and for the conclusive effect of that sentence, 1 refer to my opinion in the cases of Vandenheuvel v. The United Insurance Company, and Vandenheuvel v. Church.(a) There is also sufficient evidence, without resorting to the sentence. When the captain left Oruxhaven, he sailed with the understanding that Amster[188]*188dam was a blockaded port; and'he sailed also under the idea, that if he should meet with a British cruiser in his at: tempt to enter Amsterdam, he would, for the first attempt, be sent back, and not seized. This appears by the testimony of the mate, and it is sulficient to establish the fact of the blockade, as against the plaintiffs, it being the admission of their agent, until they repel it by direct proof to the contrary. But there is no such contrary ^testimony in the case. It would seem, indeed, to be implied, from some of the observations of Sir William Scott, which are thrown into the case, that winds had occasionally blown of or kept at a distance, the blockading squadron: but at what precise time, or to what precise distance, does not appear. We do not know, except by necessary deduction from the testimony of the mate, what was the actual state of the blockade, or how far the British cruisers were at the time in a situation to preserve it. Nor do we know the situation the vessel was in, or her proximity to Amsterdam, when she was captured. The mate inform us only, that the master understood, when he sailed from Cruxhaven, that Amsterdam was blockaded ; that he sailed with an intent to attempt to enter it, and with the understanding that for his first attempt he would only be sent back, and that he was captured the day he sailed. How near he had approached the coast of the Ylie and Texel, we do not know. He might have reached the coast, for it is within the reach of a day’s sale. Every reasonable conclusion that the admissions of the mate will warrant, is, however, ,to be drawn against the plaintifis, so long as they furnish no other proof to repel those admissions. _
My opinion accordingly is, that the existence of the blockade, the wilful attempt of the master to break it, his capture while executing that attempt, and at no great distance from,' if not in the neighborhood of the blockading port, are all necessarily to be inferred from the case, and that judgment ought, therefore, to be given for the defendants.
Benson, J, was of the same opinion.
[189]*189Lewis, J. was.absent.
*Lansing, Ch. J.
I must differ in opinion from the rest of the court. The view in which I have considered this subject has led me to conclude, that the blockade, from the circumstances stated in the case, constituted one of those risks intended to be insured against by the policy, it not being in contemplation of the parties, at the time the insurance was made, to break the blockade; hence the blockade may well be taken as an event calculated to defeat the voyage, occurring since its commencement, and which would not justify the captain to divert his vessel from the port of destination, on the information that a blockade existed.
The British treaty provides, that a vessel which sails for a blockaded port, without knowing of the blockade, shall be turned away from such fort; but she shall not be detained, &c. unless, after notice, she shall again attempt to enter.
The expression appears to me only to apply to the inceftion of the voyage. The knowledge of blockade must exist before her leaving her port of departure. If acquired, in any stage of the voyage, after its commencement, the captain is not, in my opinion, obliged to take notice of it, before an attempt to enter.
The vessel’s touching at Cruxhaven was merely in the continuation of the voyage ; and hence she was entitled to prosecute her voyage, as if continued without touching at Cruxhaven; and if the British courts have considered the beginning of the voyage as from .Cruxhaven, so far as it respects the question between the parties, the ship was entitled to be turned away without seizure, and only subject to condemnation, in case of a second attempt, whatever might be the construction of the admiralty, on general principles, as applied to it.
The question is, was the voyage in its commencement, contrary to the law of nations 1 Was this an illegal * voyage ? The touching at Cruxhaven was provided for by the policy. It was a risk the insurer had [191]*191undertaken, and he must submit to the loss ; as in a case of a war breaking out in the course of a voyage.
Judgment for the defendants.(a)(b)
(a) See notes (b) to Vandenheuvel v. The United Ins. Co, supra, 144, 168 ; see also S. C. infra, 451.