
    J. Radcliff and others against The United Insurance Company. Same against Same.
    NEW YORK,
    Oct. 1812.
    A policy of insurance contained a clause, that the insurers took no adejpor'tj was a biockWhether the tha^acmunt was kgMand came within offtTrisksci sentence tion is directly a breach'of de jacto, it isprima jade evifaot’ofmch* that thejury have doubts as to the existence of the blockade at the time of the capture, to authorize them to find a. verdict for the-plaintiff. St. Lucar was, in fact, blockaded on the 27th January, 1808.
    THESE were actions on two policies of insurance on the brig William Tell, and her cargo, dated .6th December, 1807, “ at and from Nerv-York to St. Lucar.” On a former trial of this cause, a verdict was found for the plaintiffs, which was set aside, and a new trial granted, chiefly for the misdirection of the judge. (See 7 Johns. Rep. 38—57.)
    The cause was again tried, at the sittings in Nem-York, on the 21st December, 1811, before Mr. Justice Van Ness. The evidence, on the second trial, was nearly the same as that given on the first. The additional evidence consisted of an explanatory deposition by Thomas Holden, the master of the brig; and by Jobes Lovett, master of the Connecticut. Two other witnesses were examined; Joseph P. Manny, on the part of the plaintiffs, and Samuel Lyle, on the part of the defendants.
    
      Holden stated that by the words “ the fleet off Cadis, or tie-fore Cadis,” or similar words, used in his former deposition, he did not mean to describe the actual position of the fleet alluded to, but merely to designate the fleet itself, about which lie was speaking. That when the lugger and the prizes joined the fleet, which was about 48 hours after the capture of the William Tell, the fleet * lay off Cape Spartel, but the reason of its being there'he did not know. The weather, previous thereto, had been moderate and pleasant, and the wind very light. The lugger having placed the prize under the charge of the fleet, did not continue with it more than an hour and a half, but proceeded for Gibraltar. About 30 hours after leaving the fleet, the lugger encountered a considerable storm, which drove her on the Barbary coast, and obliged her to put into a port there, to repair. He never heard of the blockade of St. Lucar. When the lugger, after the capture, joined the fleet, the witness could not see land, nor could he tell how far it was distant from Cape Spartel, nor how Cadis bore from the fleet.
    
      Jobes Lovett, master of the ship Connecticut, deposed, that shortly after he. passed Cape St. Mary’s, he was chased by two frigates ; that they could not know, from the course he was steering, whether he was going to Cadis or St. Lucar. After he altered his course, to run into St. Lucar, the.frigates endeavoured to cut him off, and chased him, until he came to anchor, under the guns of the fort at St. Lucar ; that when he arrived there, on the 4th of February, 1808, he understood St. Lucar, as well as Cadis, was blockaded, and had been so for some time before; that he continued there two months, during which time, and when lie left it, it was universally understood to be blockaded. The blockading squadron might be seen daily, and he saw it twice; that when he came out of St. Lucar, he saw 24 sail of the squadron ; he escaped them in the night. The distance from St. Lac-ear to Cadis is 25 miles by water, and 15 miles by land. Cargoes landed at St. Lucar may be easily transported to Cadis in boats along the shore. The squadron blockading Cadis, would necessarily blockade St. Lucar, if it was intended to be blockaded. He undertook the voyage to St. Lucar on the information of his brother, James Lovett, at St. Lucar. Before he left New-York, he heard that Cadis was blockaded, but not St. Lucar.
    
    The letter of Mr. Canning, dated 8th January, 1808, which was read in evidence, stated, “ that his majesty had adjudged it expedient to establish the most rigorous blockade at the entrances of the ports of Carthagena, Cadis and St. Lucar, and all the intermediate ports between Carthagena and St. Lucar.”
    
    
      Richard Bayley, a witness for the defendants, testified, th.it he was at Cadis from the last of October, 1807, to March, 1808; that he understood, from the general report and understanding, when he arrived there, that Cadis and St. Lucar were blockaded. The same fleet could blockade both ports, if that was intended. Vessels not having provisions were sometimes permitted to enter Cadisbut vessels with provisions were turned away. Provisions were carried along shore from St. Lucar to Cadis. He kept his cargo for a rising market, in consequence of daily hearing that both ports were blockaded. The cruising ground of the squadron, as he was informed, was from Cape Spartel to Cape St. Mary’s. The blockade began to be more rigorous some time in January. Some new orders arrived at Cadis, from England, in January, after which the blockade was more rigorously enforced. The usual passage for ,a despatch vessel from Portsmouth to Gibraltar was from 8 to 12 days. He understood, at Cadis, that it was the practice of the blockading squadron to keep small vessels off Cape St. Mary’s ; he saw only a gun brig when he entered, but was not hailed by her, though within a sufficient distance for that purpose.
    
      Joseph P. Manny testified, that he arrived at Cadis about the 22d of September, and left it about the 22d of November, 1807, at which time Si. Lucar was not considered in a state of blockade. He was warned by an English cruiser not to go to Cadis, and was told he might go to any other port in Spain. He went to Algésicas, and transported his cargo, coastwise, to Cadis. The distance between the two places is about 120 miles. A good passage from England to Cadis is 15 days ; it has been made in 8 days; though it usually takes a longer time. The usual passage would be 20 days. The same squadron would blockade both Cadis and ■St. Lucar, if both were intended to be blockaded.
    
      Samuel Lyle testified, that in a voyage from Nem-York to Cadis and Algésicas, he was boarded, about the 20th November, 1807, between Cape St. Vincent and Cape St. Mary’s, by an English gun brig, and warned not to go into Cadis or St. Lucar, as they were blockaded; and, in consequence of this warning, he went to Algésicas, where he understood that both Cadis and St. Lucar were blockaded. He went by land from Algésicas to Cadis, where he arrived between the 1st and the 10th of February, 1808, and where he also understood that Cadis and St. Lucar were blockaded, and that the blockade was more rigorous in consequence of some new orders from England.
    
    
      A witness testified, that an ordinary passage from Falmouth to 
      Cadis, for a government packet, was from 8 to 12 days. Twenty days would be a long passage in winter ; 15 days, at that season, would be a fair allowance.
    Several witnesses testified, that when the William Tell left Ncru-YorJc, it was not known, or supposed, that St. Lucar was blockaded. The William Tell was captured in the regular track to St. Lucar.
    
    The judge charged the jury, that if St. Lucar was blockaded in fact, and the William Tell had approached within the cruising ground of the blockading squadron, at the time of her capture, they ought to find for the defendants, whether the capturing vessel be- ' longed to the squadron or not; but that if St. Jjucar was not blockaded, and if the blockade, at the time of the capture, had been voluntarily raised, or suspended, or if the William Tell had not reached the cruising ground, they ought to find for the plaintiffs; that the mere blowing off of the blockading squadron, if they resumed their station with due diligence, would not be a raising or suspension of the blockade, in the mean time ; that the defendants , must bring themselves within the exception in the policy; and that if the proof was not satisfactory that St. Lucar was blockaded, on the 27th of January, 1808, or if the jury had doubts on that point, they ought to find for the plaintiffs.
    The jury found a verdict for the plaintiffs; and being asked by the counsel of both parties, if they found for the plaintiffs on the ground that St. Lucar was not blockaded, they answered in the affirmative.
    A motion was made, by the defendants, for a new trial; 1. Because the verdict was against evidence; 2. For the misdirection of the judge.
    The cause was argued by
    
      Hoffman and Wells, for the defendants.
    P. W. Radcliff and Van Vechten, for the plaintiffs.
   Kent, Ch. J. delivered the opinion of the court.

The motion for a new trial is made upon two grounds; 1. That the verdict is against evidence ; and, 2. That the judge misdirected the jury.

1. The first point is'open for a free consideration, notwithstanding a new trial has been once granted in this cause. The verdict was formerly set aside for misdirection. That was the main ground of the opinion of the court, and the jury gave the first verdiet in pursuance of the direction of the court on a point of law, and without giving themselves any time to deliberate upon the question of fact of the existence of the blockade. That question was, in this last trial, for the first time, submitted to the jury, and deliberately passed upon by them.

The question is, whether St. Lucar was, at the time of the capture, a blockaded port, within the exception in the policy. This is a matter of fact, depending on a contract between our own citizens. It has nothing to do with any conflict between belligerent and neutral pretensions. It does not necessarily involve any examination into the just extent of these pretensions. It is a plain inquiry into the existence of a fact, viz. was here a loss chargeable to the existence of a blockade ? A blockade may exist in fact, and yet a capture and condemnation for the breach of it be unjust, from the want of knowledge in the neutral of the existence of the blockade. This case, then, need not, and ought not, to awaken any prejudice, or bias, one way or the other, as respects the object of the present suit; and there are no considerations which ought to have induced a jury to require more strict evidence of this, than of any other ordinary question of fact.

The court have already decided that the legality of the capture was not the question in the case. Admitting the capture and condemnation to have been illegal, from the want of due proof of notice, yet, if the loss arose by reason of the port of St. Lucar being blockaded, it falls within the exception.

There may be a blockade of a port in fact, unaccompanied with a previous notification to neutral nations; and, therefore, a vessel arriving within the cruising ground of the blockading squadron, and bound to the blockaded port, in ignorance of the blockade, would, in the first instance, be entitled, of right, to a notice to depart,"and not subject to capture and condemnation; yet, if the latter alternative should be adopted by the belligerent, either from a disregard ioright, or from an overstrained application of the doctrine of constructive notice, the loss would still be on account of the blockade. It would be to be classed among those risks of a blockaded port which the insurer did not, in the present instance, assume. And in cases of blockade, attended with a general notification to neutrals, it does not necessarily follow that the blockade did not exist in fact, at or before the promulgation of the notice. It may exist defacto, at the date of the notice. There is nothing inconsistent or unusual in this. The notice to the neutral governments is given to put their subjects and citizens upon their guard, and to fix, after» warr]g) with more facility and certainty, the delictum upon the neutral who is seized in the act of violating, or attempting to vio» late, the blockade. Thus, for instance, the notification of the blockade of Genoa was announced by the British government on the 20th of February, 1801, as then existing, and that it had existed from the 5th of January preceding. (3 Rob. Adm. App. p. 44.) So in the case before us, it is to be inferred, from the letter of Mr. Canning, of the 8th of January, that the blockade of St, Lucar, and of the other ports referred to, was then actually existing. If the letter was to be considered as establishing the fact that St. Lucar was not then in a state of blockade, it would equally go to prove that Cadis was not also, at that time, blockaded» though, from the plaintiffs’ testimony, in this case, it appears that Cadis was in a state of blockade for months before. The notice given by Mr. Canning referred to an extended line of the Spanish coast, embracing many ports besides St. Lucar; and it is by no means to be inferred from that notification, that no single port„ within that line, was previously in a state of blockade.

The evidence of a blockade of St. Lucar existing de facto, at the time of the capture, consisted of the following items:

1. The sentence of condemnation, which proceeded directly on the ground of that fact; and this sentence is prima facie, though not conclusive, evidence of the fact of the blockade. This effect of the foreign sentence was conceded by the counsel, and the court, upon the final decision, in the court of errors, of the greatly litigated question touching the conclusiveness of foreign sentences. (2 Johns. Cas. 451.)

2. The affidavit of Captain Jabez Lovett, who was chased into St. Lucar, on the 4th of February, 1808, by two British frigates. When he arrived, he understood that St. Lucar, as well as Cadis, xvas blockaded, " and had been so for some time before.” And while he continued at St. Lucar, xvhich was two months, it was universally understood to be blockaded, and the blockading squadron xvas to be seen almost daily.

3. The testimony of Richard Bayley, who was at Cadiz from October, 1807, to March, 1808. He says, that when he arrived., and xvhile he continued there, he understood, from general report and understanding, that Cadiz and St. Lucar were both blockaded. St. Lucar is only 15 miles from Cadiz, and he had no doubt of the fact from daily observation ; and the same squadron would blockade both ports, if both were intended to be blockaded. The cruising ground of the squadron was from Cape Spartel to Cape St. Mary’s,

4. The testimony of Samuel Lyle states, that he was boarded by a British gun brig, between Cape St. Vincent’s and Cape St. Mary’s, between the 15th and 20th of November, 1808, and warned not to go to Cadiz, or St. Lucar, as both were blockaded; that he went to Algesiras, and there distinctly understood that both Cadiz and St. Lucar were blockaded; that he arrived by land at Cadiz, between the 1st and 10th of February, 1808,. and there understood the same thing, and that the blockade was lately more rigorous, in consequence of new orders.

It is difficult to resist the force of this mass of direct and positive testimony, arising not only from the sentence of the viceadmirally court, but from persons who acquired their information at the time, either by the act of warning of the belligerent cruiser, or from their own observation, and the testimony of the Spaniards themselves, at the very places blockaded.

The testimony on the other side, to prove the non-existence of the blockade, consists of the following items:

1. The testimony of Captain James Lovett, who left Cadiz the last of October, 1807. He says that St. Lucar was not then considered as blockaded.

2. The testimony of Joseph P. Manning, who left it the 22tl of November, and he says that St. Lucar was not then considered' as blockaded.

3. and 4. The affidavits of the captain and mate of the William Tell, in which they state the capture on the 27th or 28th of January, 1808, off Cape St. Mary’s ; that they were sent to Gibraltar, and that, at the time of the capture, St. Lucar was not, as they understood, considered to be blockaded.

There were some contradictions and explanations in the affidavits of the captain and mate, as to the position of the blockading squadron, and the state of the weather, which need not now be examined ; for, assuming that they have been sufficiently explained, they do not relate to the point now under consideration. There is no pretence that the blonde, if it had previously existed, had been voluntarily raised at that time, by the departure of the fleet.

This testimony, offered in denial of the blockade, does not contradict, or deny, any material facts alleged by the witnesses on the part of the defendants. It is of a negative nature, and cannoti countervail the positive testimony of witnesses, who spoke from what they saw and heard at the places invested. Taking the testimouy together, and making a just analysis and comparison of it, the existence of the blockade appears to be conclusively establish-

The verdict is, therefore, decidedly against evidence.

Nor do I apprehend that the charge of the learned judge was altogether correct, when he told the jury that if they had doubts whether St. Lucar was blockaded on the 27th of January, they ought to find for the plaintiffs. If the plaintiffs had, in the first instance, made out their demand with certainty, and the matter set up in avoidance had been uncertain, then, undoubtedly, the plaintiffs ought to have prevailed; as, if.a suit be on a bond, which is proved or admitted, and the defence of payment, or a release, is not made out clearly, the certainty of the demand ought to prevail over the uncertainty of the defence. But this principle is not applicable to the case. The plaintiffs did not make out their demand, in the first instance, with any certainty. If they had stated, and shown, a clear loss by sea perils, it would then have lain with the defendants to have brought themselves within the exception. But here, their very testimony involved the question whether there was not a loss by blockade, and especially as the sentence of con-damnation was part of the plaintiffs’ case, and introduced as annexed to, and forming part of, the affidavit of the captain of the William Tell. This is not a case, then, of a defendant setting up matter in avoidance of a demand which, of itself, is clear and certain. In making their demand, the plaintiffs raise the discussion of the very gist of the controversy, as much as if they had brought an action of trespass for an assault; and then the other rule of evidence applies, that if the right of recovery be uncertain tmd doubtful, the jury ought to lean against the plaintiff. But the true question here is, on which side did the weight of testimony materially preponderate, and not whether there were no doubts on the case. That rule would be too severe and rigorous, and would, in most cases depending on matters of fact much litigated, leave a defendant in hopeless despair. It can never apply (if it ever is to be applied) but to cases in which the»plaintiff’s right of action is, per se, absolutely certain, and is only to be defeated by other special matter set up in avoidance, or justification.

The verdicts, therefore, in these two causes ought to be set aside, and new trials awarded, with costs to abide the event .of the suits.

New trial granted.  