
    Black and Burke against The Marine Insurance Company.
    NEW YORK,
    August, 1814.
    5Í”’ 01" '^ar&'pari, ^ di?^sc¿ pr Baltic, “againsi captmeonty”^ “ free from se"river,'"porí or 3>ii^¿nrt ol 1 >cn7 or the .jct™di£o£“r°„B. der bfccontrol, wilh The vessel srctending to put iuto Jinstey■> dam, arrived buoy.^wfthiLgüe “m ‘oasf aíd at abouuiBm!ieg from lhe ™- Ttfd hroadSg raptured6 Ty vatefref^and Zu&Ln™™ and^tb^EhipS transmitirá^ the F(endi consul to the l!«periai court fi prizes at where the captors , , „ proceeded against the vessel, as prize of war, and the court condemned her as good prize 0f war.
    The cause of condemnation was a violation of the Berlin and Milan decree*, in not having a certificate of origin. Ifc was held to be a seizure within tiie warranty.
    after condemnation, and not to abandon in consequence of THIS was an action upon a policy of insurance, on the brig Resort, dated 1st September, 1809, on a voyage from New-York to Bremen, or a port of discharge In the North Sea or Baltic. At the foot of the policy there was the following written clause ; 1 J ° 6< This insurance is against capture only; warranted by the assured American property, (proof whereof to be required here only,) and not to abandon in case of capture or detention, until six months after advice thereof is received at this office, or until blockade, but the assured to have permission to proceed to another port not blockaded. Also free from seizure in any river, port, or place, under the jurisdiction of Napoleon, or under the K . ,. J ’ , , . , . junsdiction of any power under his control, or in alliance with , . ,, ‘ aim.
    The vessel sailed on the voyage insured, on the 24th of June, 1809, and on the 2d of August following arrived off the coast of Holland, with intent to put into Amsterdam, which port was open; and having arrived within the first buoy, and within a marine league from the Dutch coast, and at the distance of about eleven miles from the entrance into the Texel roads, she was, while sailing along the coast, towards the Texel, captured by two French privateers, the Hebe and the Tilsit, and carried into the port of Amsterdam, as a prize of war. The captors carried the ship’s papers to the French consul at Amsterdam, who transmitted them, together with certain proceedings had before him, in relation to the capture, to the imperial council of prizes at
    
      Fans, where the captors proceeded against the vessel as prize /. , , . . . , ,, . . r oí war. A claim was put m by the captain, among other things, , . . , ,T , „ denying the jurisdiction of the court, which, however, was rejected, and the court proceeded to entertain jurisdiction ; and on the 28th of February', 1810, condemned the vessel, as good P™ze °f war to the captors: The vessel was taken within the first buoy, and between that and the second buoy, and in the track usually pursued by vessels entering the Texel.
    
    It was agreed, that the jury should find, whether Holland, at that time, was in alliance with, or under the jurisdiction or control of, Napoleon, and whether the capture was within the jurisdiction of Holland; and that if.they should find for the defendants, the question, whether the capture was a seizure within the meaning of the written clause of the policy, was reserved for the opinion of the supreme court. The jury found for the defendants on the points submitted to them; and if the court, on the point reserved, should be of opinion for the plaintiffs, then the verdict to be entered in their favour for such sum as shall be ascertained to.be due to them, on a reference for that purpose to persons named, to whom the adjustment of the amount was, in such case, agreed to be referred; and if the court should be of opinion for the defendants, then the present verdict was to stand.
    
      Slosson, for the plaintiffs.
    The question is whether there was a capture of the vessel, or a seizure within the meaning of the clause in the policy. e She was captured in the open sea, about 11 miles from the Texel roads, but within the maritime jurisdiction of Holland, according to the law of nations. The place of capture was not a port or river, though a place within the jurisdiction or under the control of Napoleon.
    
    
      Capture and seizure are not always convertible terms, but one has a different meaning "from the .other. Capture is a word of known technical signification, and is understood to be a taking of property jure belli, by an enemy in open war, or by way rePisa^ with intent to deprive the owner of it. It is an act done with a hostile intention. A seizure, arrest, or detention, is not a hostile act; it is not done with any view to de prive the owner of his property. It is not an act of war.
      
       In Matilde and Potts,
      
       this distinction is adopted and made the ground of decision by the court.
    It may, perhaps, be said that by the word seizure, the insurers meant capture.
    
    It is true that the intent and meaning of the parties to the in•bument Is to be looked to; and the written clause is to control the printed words. But there is nothing in the written clause here which can control or vary the printed words. The language shows that the insurers understood the distinction for which we contend. The insurance is against capture only: warranted not to abandon in case of capture or detention, until after six months, nor in consequence of blockade. Then what is the meaning of the latter part of the clause, “ free from seizure in any river, port or place,” &c. ? It is, no doubt, meant 'o exempt the insurers from land-risks; it was intended to guard against a seizure by land, or by the governing power of the country to xvhich the vessel was bound. The seizure intended is an act by a poxver set in motion from the land, or by the ruling power of the country.
    In Jarman v. Coape,
      
       the insurance was “ free of capture or seizure in the port or ports of dischargeand the court held the clear intention to be, to exempt the insurers from land-risks.
    
    In Baring v. Vaux, a ship was warranted free from capture in port, and it ivas held that it did not protect the underwriters from any loss happening by capture in a place not within the limits of a port. So in Brown v. Tierney,
      
       where the ship was warranted free of capture in port, a capture while lying in an open road, outside of a harbour, xvas held not to b'e within the warranty.
    Should it be said that the capture was not legal, because within the jurisdiction of a neutral power, it may be ansxvered, that the insurance is against illegal as well as legal captures. Besides, the capture, as it respects the party taken within the neutral jurisdiction, is legal, unless the neutral government complains. The objection as to the legality of the capture, is to be made by the neutral only whose jurisdiction has been violated.
    
    
      Golden, contra.
    The capture in this case was clearly within the maritime jurisdiction of Holland.
      
       It is' found, by the verdict of the jury, that the capture was within the'jurisdiction of Holland, and that Holland was under the control of Bonaparte. We admit the distinction laid down between capture and seizure or arrest; and we insist that this was not a capture jure belli, or because it xvas enemy’s property, or because it belonged to a neutral violating the law of nations. The cause of seizure, as stated in the proceedings of the French court, is that the vessel was sailing to a French port, without having a certificate °f ort5'lw) in violation of the Berlin and Milan decrees. Those decrees were municipal regulations. They form no part of the law of nations.
    The seizure was within the jurisdiction of the country, and by virtue of municipal regulations enforced in the country. That it was made by a vessel of war can make no difference; for vessels of war are authorized to seize for a violation of the revenue laws;
    In Jerman v. Coape and Baring v. Vaux, the insurers were held not to be liable for seizures in a port or ports. Here the words are far more extensive. The intention ivas to exempt from capture in certain places or situations. It is an exception of a part of the risk before assumed, or from the general words, “ capture only.” It has reference to place; that is, the insurance is against capture only, except in any river, port, or place, Sec.
    
    There is no occasion to resort to any distinction as to the rules of construction between printed and written clauses; for here the general clause and the exception are both written, and the rule of construction must be precisely the same as that of any written contract.
    
      T. A. Emmett, in reply,
    said the two clauses were distinct. The exception is put in for the benefit of the insurers, and if. there is any inconsistency, they must take the consequences of it. In construing such occasional clauses, it is usual to inquire by whom they were introduced; and if the party introducing them might have explained himself clearly and explicitly, his not doing so ought not to afford him an occasion to'impose restrictions upon the other party, which he has not distinctly expressed.
    
    * Marsh, on Ins. 305. B. 1. c. 8. s. 3.
    We insist that this is a capture jure belli, as prize of war. The proceedings were in the imperial council of prizes at, Paris. The condemnation in that court was as prize of war. The captors were French privateers; the court was a prize court; the cause of condemnation was a violation of the Berlin and 
      Milan decrees, which declare a vessel, in such a situation, denationalized, as having lost her original national character, and as being British or enemy’s property. It was not a condemnation for a violation of a mere municipal regulation, otherwise the proceedings and condemnation would have been in Holland. If any municipal law or ordinance was violated, it was that of Holland, and there would be the place of condemnation.
    It was, emphatically, against illegal captures that this insurance was made. At that time, in 1809, no power on earth could legally capture American property; and it was to protect themselves against illegal captures and seizures, not warranted by the law of nations, that the plaintiffs caused this policy to be effected.
    The clause being introduced for the benefit of the insurers, they cannot take advantage of any inconsistency or contradiction between it and the other parts of the policy, so as to vary the meaning of the words used. They cannot make it a trap or drag-net for the insured.
    The last written clause has no more reference to the first written clause, than it has to any of the printed parts of the policy.
    Though the jury may have found the capture to have been within the jurisdiction of the country, in one sense, it is for this court to decide whether the place of capture was within the jurisdiction of Holland, in the sense and meaning of the policy.
    Though the supreme court of the United States may have adopted a marine league from the shore, as the extent of territorial jurisdiction, yet no court, in any country in Europe, has adopted the same rule.
    
      
      
         Marshall on Ins. 495. B. 1. c. 12. s. 4. 2 Azuni's Mar. Law, 221. p. 2. c. 4. a. 1. 1 Emerig. sur Assu. 440. c. 12. s. 18.
    
    
      
       2 Valin, 120, 121. Consult, de M. Emerig.
      
    
    
      
      
         3 B.& P. 23.
      
    
    
      
       13 East, 394,
    
    
      
       2 Campb. N. P. Cases, 541.
    
    
      
      1 Taunt. Rep, 517.
    
    
      
       3 Rob. Adm. Rep. 162. Twe. Gebroeders.
      
    
    
      
      
         2 Crsnh's Rep. 187-220. Church v. Harbard.
      
    
   Thompson; Ch. J.

delivered the opinion of the court. This is an insurance on the brig Resort, on a voyage from Ncw-York to Bremen, or a port of discharge in the North Sea or Baltic, against capture only. The policy, among other warranties, contained the following: “ Also free from seizure in any port . or place under the jurisdiction of Napoleon, or under the jurisdiction of any power under his control or in alliance with him.” The brig was taken on the coast of Holland, by two French privateers, and carried into the port of Amsterdam, and Was afterwards condemned by the imperial council of prizes g's Paris, as prize of war. The jury found that the" capture was Within the jurisdiction of Holland, and that Holland was, at the t™6) i*1 alliance with, or under the control or jurisdiction of? Napoleon, and the question for the court is, as to the meaning of the exception “free from seizure,” &c.

The exception was intended for the benefit of the underwriters, and in order to give it any effect, must be so construed as to restrict the risk assumed by the general words of thé policy.. The insurance being against capture only", any exception out of that risk must have been intended to extend to some peril which, would have fallen under the denomination of capture; otherwise, the exception is senseless. The underwriters did not assume the risk of seizure for breach of any municipal regulations. It would, therefore, be giving" no effect to the exception to limit it to such risk. It is, ño doubt, a sound rule of construction, that terms made use of in contracts are to be understood in their plain, ordinary, and popular sense," unless the context evidently requires, in order to effectuate the intention of the parties, that they should be understood in some other special and peculiar sense. Seizure may, in general, be applicable to a taking or detention, for the violation of some municipal regulation; but where such meaning cannot be given to it, consistent with the obvious sense and understanding of the parties, it is no violation of any settled rule or principle of law, to give it some other interpretation, better comporting with the fair intention of the parties. The underwriters did not mean to assume any risk except that of capture, and not even that, if made in any river, port, or place under the jurisdiction of Napoleon, or under the jurisdiction of any power under his control, or in alliance with him.

It is no strained interpretation of- the term seizure to consider it as synonymous with capture; and then the underwriters, although they assume the risk of capture generally, exempt themselves even from that risk, if the capture is made under any of the circumstances mentioned in the warranty. In no other way can any rational interpretation be given to the clause; and the jury having found that the seizure or capture was, in fact, within the exception as to place, the underwriters cannot be made responsible for the loss, defendants. Judgment must, accordingly, be for the

Judgment for the defendants. 
      
       In Dagleish and others v. Brooke, (15 East's Rep. 294.) the goods were warranted 61 free from capture or seisure in the ship’s port or ports of discharge.” The ship arrived in the outer road of Pillm, which is a bar harbour, where large ships, like the one mentioned in the policy, are obliged to discharge part of tbeir cargoes into lighters, in order to go over the bar into the inner harbour, where the remainder is discharged ; and the captain having anchored two miles and a quarter further out than ships usually lie for that purpose, which difference was decided by the jury to be immaterial, he went on shore to obtain permission to discharge his cargo, and returned in five or six days, in company with some Prussian soldiers and a pilot, who took possession of the ship and cargo, which was afterward confiscated; this was held to he an arrival at the elected port of discharge, and a seisure there within the meaning of the warranty, so as to discharge the insurers from the loss.
     