D. Williams V. NEW-YORK, "It is not unfair to say, that lying at such a distance, where May, 1804. "they cannot have constant information of the state of the "blockade, whether it continues or is relaxed, it is not unP. N. Smith, “natural that they should send their ships conjecturally, "upon the expectation of finding the blockade broken up, "after it has existed for a considerable time. A very great "disadvantage indeed would be imposed upon them, if they 66 were bound rigidly by the rule which justly obtains in "Europe, that the blockade must be conceived to exist till "the revocation of it is actually notified. For if this rule "is rigidly applied, the effect of the blockade would last "two months longer upon them, than on the trading nations "of Europe, by whom intelligence is received almost as soon as it is issued. That the Americans should there"fore send their ships upon a fair conjecture that the block"ade has, after a long continuance determined, and for the purpose of making fair inquiry whether it had so deter"mined or not, is I think not exceptionable. Though I certainly agree that this inquiry should not be made in "the mouth of the river, or æstuary from the blockading "vessels, but in the ports that lie in the way, and which "can furnish information without opportunities of fraud." 66 A knowledge of this departure from the rigour of the law, induced this policy to be underwritten for Cadiz. The underwriters knew sailing for the port, though blockaded, was not a breach of neutrality, and it was left to the captain to enter or not, according to the fact of the blockade having been raised or continued. When warned by the Kent, he knew the condition on which the liberty to touch had been granted, was at an end. The entering afterwards was a discharge of the policy, for allowing the necessity, which ought however to be clearly made out, St. Lucar's and St. Mary's were unprohibited places, and both open to him had he stopped for a pilot. By not doing so he broke his warranty of neutrality. The reason why this, from the period of breach destroys the policy, is, because it alters the situation of the property. On the same principle rests the inhibition from transferring. In these events, however, the policy is annulled only from the time of the illegal act done, and as the risk had previously attached on the whole sum insured, there can be no return of premium. D. Williams P. N. Smith. This distinguishes the present case, and those of deviations NEW-YORK, May, 1804. from others where the risk never was incurred; in these latter the underwritten is entitled to a return of premium, only because the hazard of the underwriter never had an inception. For when it has, a return into the track after the policy is vacated by deviation, neither gives a claim to a return nor restores the contract. So here, if the port was blockaded, the insurer is discharged, though the detention from the fever be a loss within the policy. But if it be not, and the putting into Cadiz was the effect of necessity, we allow it was an excuse for remaining there, which might occasion an average loss. As to the decision of Vos and Greaves, the court of errors founded its judgment on there having been no blockade. On the part of the plaintiff, blockades by notification are confounded with those de facto, The former commencing by notification are ended in the same manner, and therefore an occasional departure does not raise the blockade. The latter depending on the fact, terminate when that fact ceases. That a vessel having violated a blockade by ingress, is, during the whole of that voyage in delicto, is not the new law of Sir William Scott, but the old law of nations, as recognized by Bynker, shoek, Vattel, and all foreign jurists.* That the blockade was, if ever intermitted, only occasionally so, is evident from the testimony. Its existence was known in America previous to effecting the policy, The Prosper was, after entering Cadiz ordered higher up the harbour for fear of an attack from the British ships. This shows a blockade at two different periods, in the interval between which the Prosper entered; and, if a belligerent cannot or dare not dispute the power of blockading, a neuter can never do it. To attempt to conclude us in any respect by the finding of the jury, is making the very thing we complain of a reason for refusing us redress, the Per curiam delivered by Kent, J. A motion is made on 1. Because Cadiz was blockaded, and the ship went in without necessity. 2. Because the fever is not a peril within the policy. 3. Because, at any rate, the plaintiffs are only entitled to recover, as for a partial loss. * See his Q J. P. lib. 1 ch. 11. accord. NEW YORK, D. Williams V. P. N. Smith, 1. On this first point, I am of opinion, that on the fifth of July, when the ship entered the port of Cadiz, that port was not blockaded. There was no naval investment of the port; there were no ships there, so as to render it hazardous to enter. The blockade had, in fact, been raised a few days before, in consequence of a naval expedition, and it is suffiçient for a neutral, when he arrives off a port, to find it clear of any blockading force. He can only judge from what ap pears, and if he finds no blockade existing de facto, 'it is suffi cient. He is not bound to enquire, or wait for events, and see whether the blockade, that once existed, is finally raised; or, whether the blockading squadron still retains the animus revertendi. The neutral has no means of knowing when a blockade exists in contemplation of law, as contra-distin guished from a blockade in fact, and to impose that know ledge upon him at his peril, would be most unreasonable The only practicable rule is, that there must be an actual existing blockade, to render it unlawful for the neuter to enter. The notice that the plaintiff received from a British frigate, or a British ship of the line at sea, several leagues from the port and some days before the entry, amounted to nothing, if in fact there was no blockade of Cadiz when he arrived there. It is absurd to suppose that that ship or frigate in the situation it was; constituted a blockade of Cadiz, nor is it to be undeṣtood, that the commander of the ship made any such pretension. The plaintiff therefore committed no violation of his neutrality in entering Cadiz, and he had liberty to touch there by the terms of the policy. On the second point I am satisfied that the damage resulting from the pestilence at Cadiz is covered by the policy. It is not requisite to decide absolutely, whether a pestilence is a peril direct within the policy. It formed however a sound excuse for delay at Cadiz, and if the consequence of that delay was a deterioration of the subject insured, the insurer must be answerable for the loss. And with respect to the amount of the damage, I see no reason to complain of the finding of the jury, that it a mounted to above one half, and justified the abandonment May, 180 4. D. Williams V. of the voyage. The weight of evidence on this point, is in NEW-YORK, favor of the verdict, and there is no fault or neglect imput. able to the plaintiff. There was a series of misfortunes, which the captain appears to have made constant and sincere, but unavailing efforts to surmount, and I am perfectly satisfied that the verdict is just, and consequently that the defendants take nothing by their motion. Daniel Williams against Paschal N. Smith. The same V. The same. The purchaser of a vessel bottomed, not knowing her to be so, has an in surable interest THESE were two actions on separate policies of insur. ance, on the body and freight of the American ship Prosper, from New-York to Algiers, with liberty to touch at Cadiz. The vessel valued at $5000. The facts were exactly the same, as in the former suit, rance of such upon the policy on her cargo. in her, and the policy underwritten in igro fact,isnot thereby vacated. If It was admitted, that the amount of the bottomry was under such cir20,000 marks banco. cumstances, the vessel be in the course of her voyage sold un der the bottomry, after an abandonment for the underwriter The judge before whom the causes were tried, charged the jury, that if they believed the port of Cadiz was blockaded at the time the Prosper entered that harbour, this being a breach of neutrality, would vacate the policy. That the damages want of funds and repairs of the vessel having happened, and been made, to carry it on, at distant periods; (the first, between the arrival of the ves- will be liable on sel and the 14th of October, when she was blown to sea, and his policy deducting the athe second, between that day and the 15th of November,) mountfor which the vessel sold, were to be considered separately, in determining whether the from the sum at loss was total, or partial; and that to constitute a total loss, which she was the subject must be injured or impaired in value to the amount of one half. That the plaintiff appeared to consider the several injuries as merely partial, because he repaired the vessel both before she was forced to sea, and af. the cargo, his selling it at a ter her return to Cadiz, and previous to her abandonment port of necessithere. That the wages and provisions during the detention where the in Cadiz were to be deemed general averages; and lastly, ken up, will be that a pro rata freight was earned as far as Cadiz. valued. When the insured is master and consignee, and joint owner of voyage was bro ' deemed a reception of the him as owner, The jury brought in their verdict in the following words: goods there by "The jury find for the plaintiff an average loss on the and a pro rata ship Prosper and freight, allowing four fifths of her freight, freight earned, or $2400 dollars to have been earned on her arrival "Cadiz. The jury are of opinion, that in making up at is therefore lia the ble only for the balance. NEW-YORK," amount of the general average, the seamens' wages, and May, 1804. "provisions, should be charged during the detention, on D. Williams "the principle that the detention was unusual, and presents "an extraordinary case within the hazard insured against "by the policy." V. P. N. Smith. The same V. The same. Upon this finding, a case having been made, on the part of the plaintiff, the following points were relied on: 1. That the captain's want of funds to repair the injuries of the ship, and get her to sea, was a just cause of abandonment. 2. That if the plaintiff's claim is to be affected at all by the bottomry bond, it only renders him liable to account to the defendant for the value of the ship at the time she was seized and sold at Cadiz, the amount of which sale shews her value. 3. That the plaintiff has a right to be reimbursed the monies expended in repairing the ship, whatever may be his right to recover with respect to the ship herself. 4. That the freight was totally lost by the voyage to Algiers, &c. being defeated, as no part of it became payable until the cargo was delivered there. 5. That if the ship earned a pro rata freight, the plaintiff has a right to apply the proceeds of the cargo which he received, or so much as will be necessary for that purpose. On the part of the defendant, the points insisted upon, were, 1. That Cadiz was a blockaded port. 2. That the plaintiff had not an insurable interest in the ship, except for the surplus value, beyond the sum mentioned in the bottomry bond. 3. That if the vessel was insurable by the plaintiff, still, that as the defendant was deprived of the property abandon ed, by the seizure under the bottomry bond, the plaintiff cannot recover. 4. That if the loss is to be ascribed to the fever, it is not a peril within the policy. 5. That one third is to be allowed in the repairs, new for old. Riggs, for the plaintiff. The subject of blockade has been sufficiently argued in the preceding cause. On the first point it is admitted, that if there was a want of funds to |