M'CALL

2.

Again, in the case of Barker v. Blakes, the blockade of Havre was not considered as the cause of the desMARINE truction of the voyage; the detention in Bristol, was INS .Co. the only ground of loss. Here, on the contrary, the blockade is the sole ground of abandonment.

The abandonment itself, in the case now before the Court, is liable to objection. An abandonment, to be valid, ought to be made during the impediment that causes the loss. But in this case, the abandonment was not made till long after the impediment had ceased.

PINKNEY, same side.

It was contended by the Defendants in the Court below, that they were not liable for the loss in this case,

1st. Because, under the words of the policy, that loss did not arise from any peril insured against.

2d. Because the Plaintiffs had violated their warranty of neutrality.

3d. Because at the time when the abandonment was made, the property was not under the restraint of prin

ces.

The same grounds of defence are now relied upon.

And, first, as to the words of the policy. This instrument insures against "unlawful arrests, restraints and detainments of all kings, &c. The word "unlawful" is that which the Defendants consider as taking the present case out of the policy. This word is not inserted in the English policies, but has been introduced into those of the Marine Insurance Company and some other American offices. Some meaning must be given to the term, and that can be no other than the most usual meaning; so that unless it can be made to appear that the detainment in this case was unlawful, the Defendants cannot be considered as liable. But, as has been said before, the blockade, which was the cause of the detainment, was lawful; the detainment itself was therefore lawful, under the acknowledged law of nations.

M'CALL

v.

2d. As to the warranty of neutrality.

When the voyage was undertaken, and the policy un- MARINE derwritten, neither party knew that the port of destina- INS. co. tion was blockaded; but the underwriters protected themselves by a warranty of neutrality, and the assurRed consented to give it.

Has

The import of the warranty is that the voyage shall be performed in a neutral manner; and, consequently, that if the vessel should find the port blockaded, she will discontinue the voyage. She does find it blockaded; and not only physical force, but the law of nations and the warranty oblige her to forbear the completion of the voyage. She nevertheless attempts to enter the port, and that, too, after being warned off by the admiral commanding the blockading squadron. the assured in such a case, a right to set up the compliance with his own warranty as the foundation of a total loss, or of any loss? With such a warranty in the policy, can the underwriter be considered as engaging that, if the port of destination should be found blockaded, the voyage shall be completed? If such is his engagement, then he stipulates that the vessel shall violate the warranty; because without a violation of it, she cannot reach her port of destination, if she finds it blockaded. It is plain that his undertaking is only for a neutral voyage; and, therefore, that, the moment it becomes unneutral, the policy is discharged by force of the warranty acting upon the whole contract.

Cases upon the British orders in council are far less strong than this; for they made no blockade acknowledged by the law of nations. Physical force was there every thing; and neutral duties were not affected by them. But here, the neutral obligations of the vessel turn her back, and intercept her path, and extract the case out of the policy.

3d. Here was no restraint of princes. Restraint must be physical; and an abandonment, to be of any avail, must be made during such restraint. In the present case the physical restraint continued but one day; all afterwards was mere moral restraint, arising from the threat of capture and confiscation as prize of war. But

บ.

MCCALL an apprehension, though just and reasonable, is not suf ficient to justify an abandonment. 3, Bos. and Pul. MARINE 392, Hadkinson v. Robinson. 5, Esp. Ca. 50. 1, CampINS. Co. bell, Black v. Hagen. See, also, the case of

6, Mass. T. R. 118, where the Court decided that apprehension alone would not justify an abandonment; and, also, that if the master, after being once warned off, had made another attempt to enter the blockaded port, it would have been barratry.

HARPER, in reply.

1st. With regard to the wording of the policy. It is unnecessary to examine what effect the term, "unlawful," may have upon the subsequent words, inasmuch as the declaration states the loss to have been occasioned by men of war, with which the word "unlawful” had no connexion. But if such examination be made, it will appear that this term applies only to the word "arrests," which, in the original printed form of the policy, was separated from the following part of the sentence by a comma, and was therefore the only word qualified by the preceding term " unlawful." The pointing of the sentence was the act of the parties, and, as such, material, and as much a part of the contract as the words themselves.

66

2d. As to the violation of the warranty of neutrality. The loss was complete before the second attempt to enter the blockaded port; and therefore could not have happened by reason of that attempt; consequently, the right of the Plaintiffs to recover, could not be affected by that or any other act of the master, subsequent to the original loss, however inconsistent with neutrality that act might be.

3d. With regard to the time of abandoning: the Plaintiffs abandoned immediately after the arrival of the Cordelia at Philadelphia, which gave them the first information of the loss. To have expected them to abandon before they knew any thing of the loss would have been absolutely inconsistent with reason.

The cases cited from Bos. and Pul. and the Mass. T Rare essentially different from the present, inasmuch

as in those cases, there was no physical force to prevent M'CALL the prosecution of the voyage. Park. 226, (6th Ed.) Blacketshager v. the London Assurance Company..

Monday, February 21st....Present all the Judges.

STORY, J. after stating the facts of the case, delivered the opinion of the Court as follows:

The Court below, at the trial, held that the Plaintiff, under the circumstances, was not entitled to abandon as for a total loss; and the correctness of that opinion remains for the decision of this Court.

Whether the turning away of a ship from the port of destination in consequence of a blockade, be, in any case, a good cause for abandonment, so as to entitle the assured to recover from the underwriter as for a total loss by the breaking up of the voyage; and, if so, whether the doctrine could apply to a policy with a warranty of neutrality, the legal effect of such warranty being to compel the party to abandon the voyage, if it cannot be pursued consistent with neutrality, are ques-, tions of great importance, upon which the Court do not think it necessary to express any opinion, because this cause may well be decided upon an independent ground.

The loss of the voyage, in the case at bar, was occasioned (if at all) by the arrest and restraint of the British blockading squadron. The right to blockade an enemy's port with a competent force, is a right secured to every belligerent by the law of nations. No neutral can, after knowledge of such blockade, lawfully enter, or attempt to enter, the blockaded port. It would be a violation of neutral character, which, according to established usages, would subject the property engaged therein to the penalty of confiscation. In such a case, therefore, the arrest and restraint of neutral ships attempting to enter the port is a lawful arrest and restraint by the blockading squadron. It would follow, therefore, from this consideration, that the arrest and restraint, on account of which a recovery is now sought, is not a risk within the policy against which the under writer has engaged to indemnify the Plaintiff,

"

VOL. VIIL

9

r. MARINE INS. CO.

M'CALL

ช.

But it is contended by the counsel for the Plaintiff, in order to escape from this conclusion, that the word unlawful," in the policy, is confined in its operation INS. co. to arrests, and does not extend to restraints and detainments." To this construction the Court cannot assent. The grammatical order of the words and the coherence of the sentence require a different construction. It is not against every "unlawful arrest" that the underwriter undertakes to indemnify, but against "unlawful arrests, &c. of all kings, princes, and people," which have always been held to mean the arrests of : kings, princes, or people, in their sovereign and national capacity, and not as individuals. The necessary connexion of the sentence, therefore, requires that "arrests, restraints and detainments," should be coupled together; and, if so, the qualification of unlawful must be annexed to them all. The intent of the parties, also, urges to the same conclusion; for every arrest is a restraint and detainment; and it would be strange if the party could, under the allegation of a restraint, recover a loss from which the underwriter is expressly exempted by an unambiguous exception in the policy.

On the whole, the Court are of opinion that the judgment of the Circuit Court must be affirmed.

1814.

Feb.

9th.

SMITH AND OTHERS v. EDRINGTON.

Under the sta

tute of Vir

Present....All the Judges.

THIS was an appeal from the Circuit Court for

ginia respect- the district of Virginia, sitting in chancery.

ing wills, it is

necessary (in

order that

The bill sought to charge the lands of Christopher. lands acquired Edrington in the bands of his son and heir at law, W. after the date P. Edrington, with a debt due by his father, Christopass by the pher Edrington, to the Complainants, by simple contract. will) that the

of the will may

intention of the

testator should

*

It was contended that the lands passed, by the will clearly appear of Christopher Edrington, to his son, W. P. Edrington, charged with the payment of the debts of the testator,

upon the face of the will.