On this charge the jury brought in a verdict for a total NEW-YORK, loss, voluntarily assigning the following reasons for their thus finding: May, 1804. D. Williams V. 1. That they considered the port of Cadiz as partially P. N. Smith blockaded, and that the going into that place was therefore justifiable, especially as the blockade was well known in New-York, before the Prosper left that port. 2. That they considered the crew as competent, the vessel having arrived in safety; but they did not say, nor did the judge understand them to mean that they founded their verdict on this point upon that reason alone. 3. That the cargo was damaged, exceeding a moiety of its value, at the time of its abandonment. 4. That the seizure of the vessel having taken place subsequent to the abandonment, they did not consider it as affecting the plaintiff's right. To the case of the defendant, containing the antecedent circumstances, were subjoined by the plaintiff the following amendments: 1. That the jury, in assigning the reason for their verdict, expressed themselves on the question, whether the port of Cadiz was blockaded or not, at the time the Prosper entered; for they found the fact that it was not blockaded so as to affect the insurance. 2. That they further declared their finding to be, that it was, after the resolution to put into port to repair, as advisable to make for Cadiz as for any other port. Bogert for the defendant. The verdict is against law and evidence. Entering a blockaded port after due notice, is a violation of neutrality, and discharges the insurer. The plaintiff, in the present case, insists: first, that there was not any existing blockade at the time when the Prosper entered Cadiz, and that if there was, still she was compelled to do it from necessity. The probability is, the English fleet was before the port, as the plaintiff himself declared he was warned by the British fleet not to enter. Besides this, there is strong ground for presuming the blockading squadron was at Gibraltar; and that, from its contiguity, must be considered as before Cadiz. But, the evidence is direct to shew, that the part of the fleet left to continue the en. & Maria. The Vrow Judith. NEW-YORK, blockade, was sufficient to render all access dangerous to May, 1804. merchantmen: if so, it is enough. Marsh. 327. 1 Rob. The Flad Oy- Ad. Rep. 80. the case of the Mercurius. Ibid 82. 137.* 8,9. +The Henrick 144, 6.† 150. The quantum of force is immaterial; it is not an object of neutral discusion. But the evidence does not prove it incompetent. The 20 or 30 sail of the line within the harbour, might have been in a disabled state, with masts and yards struck, and every way unfit for sea; a circumstance by no means improbable, as the case shews they had been shut up for nearly 4 years. Had even the whole fleet left its station, it would not have been, from that circumstance, lawful to enter Cadiz. An occasional departure never raises a blockade. 1 Rob. Ad. Rep. 156, 9. 2 +The Hurtige Rob. ad. Rep. 124.|| 128.** 131. It is clear, then, notThe Welvaart withstanding the finding of the jury, who, could not determine, on this point, that the blockade existed; and it is equally clear there was not any necessity to break it. From the 15th of June, to the 5th of July, the Prosper had been enabled to continue her voyage; in that interval no new accident had occurred. Allowing, the head wind, which prevented keeping the course for Algiers, still St. Lucar's and St. Mary's were to leeward, and for either of those places, that very wind was fair. The Columbia. Hane. an Pillaw. The Jonge Peironella. Livingston, J. I think those ports must, from their situation, have been blockaded, if Cadiz was. Harison. They not being ports of naval equipment, like Cadiz, were not included in the blockade. Lewis. C. J. Was there not a permission to touch at Cadiz? Bogert. Yes. But as the blockade was known here when the policy was underwritten, the liberty to touch was given under the idea, that it might from our distance, have, in fact, been raised, though the news had not reached us. It was therefore accorded, that the assured might avail himself of this circumstance, not that he might jeopardize the property. Having, therefore, entered the port, it was a complete violation of neutrality, and though the loss happened afterwards, the underwriter was discharged, because it was impossible during the voyage insured, ever to place the vessel out of danger; breach of blockade being an offence that is May, 1804. D. Williams P. N. Smith. v. * The Hurtige never purged. 2 Rob. Ad. Rep. 124.* Admitting, how- NEW-YORK, ever, this to be against us, still the loss was from a peril, not within the policy. It was the consequence of a delay arising from a pestilential fever; and though the instrument after enumerating the particular risks insured against, adds, "all other perils," &c. still according to the known rule of law, Hane. they refer to those only of the same kind. The detention and inability to re-load, on account of the epidemic, is not to be likened to a quarantine, for that is an act of Government, a restraint within the hazards mentioned. Even a seizure by a mob, is not covered by the word "People." The injury arose from an event not contemplated by either party, and therefore, though felt by one, does not furnish a claim against the other. The loss too, is found to be 50 per cent, on the tar only; this rendered it a partial loss, for the tar constituted but a part of the cargo, and the deterioration, to warrant a demand for a total loss, must be on the whole, not on a part. Hamilton and Riggs contra. The finding of the jury on the point of blockade was voluntary on their part; it is not relied on by the plaintiff as settling what shall, and what shall not, be deemed a blockade. The amendment confines the verdict to what it absolutely was; finding that the port of Cadiz was not so blockaded as to affect the insurance. The meaning of these words is, that the blockade was known in New-York; both parties acquainted with it, and the liberty to touch given unqualifiedly, that the 'party might go there if he pleased, and for this fifteen per cent was paid. There is no adjudication in the books exactly analogous, but from a newspaper report of a case before Lord Ellenborough, the point was ruled in our favor. An insurance was made for Gibraltar, at the time the Spanish Court had declared it to be in a state of blockade. Though this was by gun-boats only, still, if according to the principles of the defendant, the quantum of force is immaterial, it is a decision in point. The defence was as here, violation of neutrality by breach of blockade; but, said his lordship, if you will insure for a blockaded port, and take your premium for it, you shall not set up the pursuing your own contract in order to defeat it. The court is aware that with us, till a very Nesbit v. Lus. E. 783. hington, 4 D. & V. P. N. Smith. Stitty. Wardell, Sittings at G. H. a ter Mich. 1797. trine on this NEW-YORK, late decision of *Lord Kenyon's, touching was by every man May, 1804. held to include a permission to trade. The continuance of D. Williams the voyage till off Cadiz with a fair wind is no reason, that a disabled ship as she was, could have proceeded with one that was a head, when some of her main shrouds on both sides were gone, and two of her crew, since the gale of the 13th June, had become incapable of duty. Every thing said against the necessity of putting into port, is mere assertion from the inferences drawn by counsel, against the express testimony of the mate, and every other eye-witness, and, that her entry into Cadiz was the effect of necessity, and bona fide, the entry of the cargo for exportation is a proof. The fever abstractly considered, was not a risk within the See the doc policy, but it was the immediate consequence of a peril point in Jones v. Within the instrument; for it arose from a putting into port Schmole, 1D & occasioned by perils of the sea; and generally, whenever a E, 130. n (a) voyage is defeated by major or casus fortuitus, it is within the policy, if there be no mala fides, or it be not the result of the assured's fault. The voyage was in its course, and the pestilence in this case, had the same effect, as if it had broken out in the ship, and rendered her incapable of proceeding. In the case of M'Grath and Higgins v. J. B Ante, 1 vol. Church, the fever in Philadelphia, was allowed as an excuse for staying at Wilmington, and if for staying, so for not sailing. The declaration from the captain of the Kent, will not establish the blockade, when it is in evidence, that the British fleet had quitted their station before Cadiz, and relinquished their former object, in pursuit of another, the French. If the position be abandoned by stress of weather, or any such event, during which there is a continual endea vour to return and occupy the place that has been left, this animus revertendi will preserve in full force the effect of blockade. But in the present case, the views of the hostile and besieging armament were turned in a new and opposite direction. The adoption of a fresh, was a dereliction of the former purpose. It is, however, to be remarked, that on the subject of blockade, Sir William Scott has introduced as the law of nations, a new system not warranted by that code. He has extended the principles of blockade, in a manner before unknown, and not consonant to more ancient doc、 196. May, 1804. D. Williams V. P. N. Smith. trines. According to them, a blockade was of no longer NEW-YORK, duration than while the obsidiary force was before the very spot. And this was so determined by the court of errors in the case of Vos and Greaves. At all events, as the loss did not ensue from the breach, it does not avoid the policy. According to Sir William Scott, a blockade is said to exist, if the ingress be dangerous. With such a latitude, a few frigates at the mouth of the straights would blockade the whole Mediterranean. This would be like the procla mation blockade of the West-India Islands. The deci sions of the English admiralty under its now judge, have also gone the unwarrantable length of ruling, that a vessel sailing for a blockaded port, violated her neutrality in the very inception of her voyage. But the blockade in question was a mere farcé; 20 or 30 sail of the line confined by four frigates! The supposition of the interior fleet being unfit for service, is not to be entertained, because it does not appear. Whether the loss was partial, or total, was a matter submitted to the jury, and they have determined it was the lat ter. In calculating the deterioration to give a right of abandonment; the amount of expenses, outfits, charges, &c. are to be estimated, and if these make the aggregate of loss, more than a full moiety, the assured may relinquish the subject of the policy to the underwriter, though one individual article alone, was damnified. The voyage was absolutely broken up, for it could not be prosecuted but at an expense beyond what the whole cargo would produce, and money on bottomry could not be obtained. The freight however due, could not have been availed of because it was payable in New-York. Under circumstances like these, every writer, French as well as English, allows of the right to abandon, which could not be affected by a subsequent seizure on the bond, by which she had been bottomed. The plaintiff ought : to have brought the premium into court, if he intended to rely on the blockade. Bogert and Harison in reply. Though by the law of nations, sailing for a blockaded port is a breach of neutrality, punishable with confiscation, yet by the decisions of Sir Wm. Scott, that great and learned civilian so much complained of, the strict letter of the law, has in consequence of our remote situation been relaxed. In one of his decisions* he thus ex- 1 Rob. Ad. Rep. presses himself, concerning the citizens of this country: B • The Betsy, 334. |