
    Court of appeals, june term, 1822;
    Patterson vs. The Marine Insurance Company. The Same vs. The Baltimore Insurance Company
    0rUi’n'IunmcPe>,iiI SaaeUduri.,g>™l aliuB/ualnal3 Vie ™’sulf™rea aí ml biSdenSof the Chesapeake bay, and sent back to port—Held not to be an nrreatnnd detention by princes,£cc« nor a capture by enemies within the policy#
    Appeals from Baltimore county court. They were both of them actions of covenant on policies of insurance, brought by the appellant against the appellees. One of the policies was on the ship Edward, and the other on her cargo. By each of the policies, which was on a voyage from Baltimore to Lisbon, it was stipulated, touching adventures and perils which the assurers were content to x 
      bear and take upon themselves in the voyage; “are of the seas, man of war, fires, enemies; pirates; rovers; thieves? ^e^erS °f mal't and counter mart, surprisals? takings at sea; unlawful 
      
       arrests, restraints and detainments of all kings; princes or people, of what nation? condition or quality soever, barratry;” &e.
    The declaration in each case contained two counts? each setting out the policy of insurance. The first count assigned as a breach of the covenant, “that while' in the lawful and regular prosecution of her voyage, and before her arrival at Lisbon aforesaid? the said ship was, on the high seas, by force ¿nd arms arrested, restrained and detained, by certain ships of war, acting under the authority of the King of Great Britain; by reason whereof the said ship became wholly lost to the plaintiff, of all which the defendant afterwards, &c: had notices” &c.
    The second count assigned as a breach of the covenant? “that while in the lawful and regular prosecution of the said voyage, and before her arrival at Lisbon aforesaid? the said ship was by force and arms? on the high seas? and in a hostile' manner? attacked, conquered, taken and carried away, a prize, by certain enemies of the United States of America,? subjects of the King of Great Britain? then at war with the Unitéd States of America. Of all which the defendants afterwards, &c. had notice,” &c. The defendants pleaded non infregit conventionem, and issue was joined.
    The plaintiff, at each of th'e trials, read in evidence the policy of insurance mentioned in the declaration in each case, sealed with the common seal of the defendants, and Signed by their secretary? ón the 9'th of January 1813.’ By the evidence offered by the plaintiff it appears, that he was, when he caused the insurances to be made, an American citizen, residing in Baltimore, carrying on trade and commerce, and was the sole owner of the ship and cargo insured, and that both ship and cargo were American property? and regularly documented as such, and lying ik the port of Bedtimore. The ship sailed from Baltimore on or about the 9th of January 1813, and proceeded on her voyage until the' 15th of February 1813, when' in- the Chesapeake Bay, near to Cape Henry, she-was boarded by several boats from a British squadron of ships of war, then lying: at anchor in Lyhhaven Bay, near the mouth of the Chesapeaks. The master of the ship was ordered, by an officer of the squadron on board of the. boats, to come to with the ship, and go with his papers on board of the commodore of the squadron, which order ’ he obeyed. He and the ship w,ere forcibly detained by the squadron till the day following, when he received from the commander of the squadron, then supporting the blockade of the Chesapeake, the following order: “In pursuance of orders front the right honourable Sir. Jghii Borlase Warren, K. B. &c. to place the ports pi the Chesapeake in a state of strict and rigorous blockade., you. are therefore here.by directed to quit this anchorage immediately, and proceed to. the, port from, whence yp.u came- Should you be found violating this or-, der, you will be. seized and sent in for .adjudication.” On the receipt of this, order, the master immediately returned with ship and. cargo to Baltimore, where he arrived with them in good order and condition, on the 26th of February 1813.' On the same day the. plaintiff,-having received information of the above facts, abandoned» both, ship and pargo to the defendant? in due.and reasonable.time, which, they refused to accept. In the course, of, ten days, after, giving notice to the defendants of his intention to do so, and asking their direction as to the disposition of the vessel and cargo, (which they declined giving,) the plaintiff broke up the voyage, ajufsold both vessel and,cargo to the best advantage, for the benefit of those concerned. To this, sale the defendants consented, without prejudice to their., right of contesting the plaintiff’s, right .to abandon, &c. At the time of making the policies, of the sailing of the, ship, of her detention and return to, port, and of the.abandonment, open war existed between the. United States and. the King of the United Kingdom of Great Britain and.Ireland; and that the said squadron, at. all said, times, was a part of the naval force of said King, employed in carrying on the -war; and tor the purpose of prosecuting the war, arrived and took its station at the mouth of the Chesa~. peahe on the 4th ofFebruary 1813, and remained there, orin, the waters of said bay, for said purpose, until and after the abandonment above mentioned. Before the 4th of February 1813, there was no enemy force regularly stationed at or in the .mouth of the Chesapeake, or in its waters; but the ships of war, and squadrons of the enemy, did during the whole time from making the policies and for some weeks before, until tlie 4th of February 1813, cruise along the. coa^ United States, and. pass and repass the mouth of the Chesapeake, and from time to time enter the same. The ship Edward was of the burthen of 300 tons; and although, while said squadron remained in the Chesapeake, gome small American vessels got to sea, no American ship of the size of the Edward could do so without extremé danger of capture; and none of that size did, during that time, proceed to. sea from the Chesapeake, except two, one. of which got out on the 4th of February 1813, and the, other on the day following. Many other' such ships were captured by the squadron during the period last mentioned in the attempt to get to sea from the Chesapeake, sómet of which, having British licenses, were released by -the^ British admiralty courts. On these facts the plaintiffprayed the opinion of the court, and their direction to the jury, that if they believed said facts, he was entitled to recover.' The court, ['Dorsey, Ch. J. Hanson and Ward, A. 3.] refused to give the direction, and the plaintiff excepted; and. the verdict and judgment in each action being against him, he appealed to this court.
    The causes were argue,dbefore Ciiase, Ch. J. Buchanan, Ea.rle, Martin, and Stephen, J. ...... '
    
      Taney, for the appellant
    1. The contract of insurance is a contract of indemnity, and. stipulates in substance thatthe thing-insured shall not be prevented, by any of the perils insured against, from proceeding on and performing, the voyage insured.
    2. “The detention of princes,” &c. being one of the perils insured against, the act of the British squadron supporting the blockade of the Chesapeake, was sucha dotenlion, and constituted a total loss under the first count in the declaration.
    3. As one of the perils insured against was the acts of. enemies, the acts of the British squadron constituted a total loss under the second count in the declaration.
    4. The first count in the declaration is good as a count for a loss by ‘.‘enemies,” one of. the perils insured against-in the policy; inasmuch as that count alleges a restraint by an enemy, and a loss by such restraint. The restraint is alleged to have been by a British force; and the court must tyke notice, that the British were then enemies, because the war was declared by an act of congress, and could not bo terminated except by a treaty; of both which the court is bound to take notice.
    The declaration assigns two breaches, 1st. Arrest, restraint and detention of princes, &c. 2d. A capture by enemies. On the first breach he insisted that the restraint broke up the voyage; that it was one of the perils insured against in the policy, which was general against the restraints of all powers, and was not confined to the enemy; that such restraint continued after the return of the vessel into port, so as to justify the abandonment, and that the plaintitPs right to recover was on the loss sustained. He cited Olivera vs. The Union Insurance Company, 3 Wheat. 183. OtUin vs. The Insurance Company of Pennsylvania, 2 Hall’s L. J. 203. MiBride vs. Marine Insurance Company, 5 Johns. Pep. SO7. King vs. The Delaware Insurance ’Company, 6 Crunch, 71. And M\Callvs. The Maxine Insurance Company, 8 Crunch, 59.
    ' On the second breach he insisted, that the capture vyas by the enemy, and that the voyage was broken up by the capture, one of the perils enumerated in the policy. The operation of the capture continued at the time of the abandonment. He cited Olivera vs. The Union Insurance Company, 3 Wheat. 183. 2 Marsh. 567, 568. Goss vs. Withers, 2 Burr, 696, Phinelander vs. The Insurance Company of Pennsylvania. 4 Crunch, 29. The stoppage and detention of the vessel for a day amounted to capture,Ni and was a technical total loss.
    
    
      Wirt, (Attorney General U. S.) for the appellees,
    contended, that as the vessel was stopped by the enemy’s blockading squadron, and sent back in good order, there was no more right to abandon than there would have been liad she never sailed. ' Under the first count in the, declaration, which charged the loss by restraint of princes, lie insisted that the blockade was not such a restraint within, the meaning of the policy. The enemy did not arrest, restrain and detain, but captured as, prize. When a sovereign, not at war with the. country to which a ship belongs, from motives of necessity arrests her ship,’ that was a de-’ tention of princes. Arrests are the acts of a friend, not those of an enemy. 2 Marsh, 506, 507, 514. Capture, is always made with a view to prize, but arrest with a view to restoration. He cited Hadkinson vs. Robinson, 8 Bos. §■ Pull. 388. Lubbock vs. Rowcroft, 5 Esp. Rep. 50, Blackehagenvs. The. London Assurance Company, 1 Campb. 454. 6 Rob. jldm. Rep. 17 f. Abbott, (Storey's Ed.) 406. Parkin vs. Tunno, 11 East, 22. Park, 618, and Parkin vs. Tunno, 2 Campb. 59. The restraint was not an' unlawful restraint within the words of the policy on the ship. A blockade is not an unlawful restraint. Brewer-vs. The Union Insurance Company, 12 Mass. Rep. 170, MiCall vs. The Marine Insurance Company, 8 Crunch, 59. And Olivera vs. The Union Insurance,Company, 3 Wheat, 183. Restraints are of two kinds, one actual and the other potential. Actual restraintisan actual-possession and hold* ing—in other words, capture. Potential restraint is through fear, &c. An embargo restrains, but does not take pos* session. A blockade,' which keeps a neutral in port, is a, potential restraint. No instance can be cited in which a potential restraint has been held to giee.a,right, to abandon and to claim for a totancss. If the vessel, raight.be. considered as restrained within the meaning of the policy, the owner had no right to abandon when he did, as the, cargo had not been injured. In this case the restraintis'to be considered as a temporary restraint. Hadley vs. Clarke, 8 71 M. 259. Abbott, 4,09. Blackehagen vs. The London Assu? mnce Company, 1 Camp. 454. Park, 226. Pqrldn vs, Tunno, 2 Campb. 59. and Smith vs. The Universal Insurance Company, 6 Wheat. 184. . The declaration must bring the case within one of the perils insured against in the policy. Park, 538. The peril insured was against Unlawful arrests, &c. and the averment in the declaration does not say the arrest, fyc. was unlawful.
    On the second count, he contended, that the allegata and probata did not agreej the proof was not that the vessel was “attacked, conquered, taken, and-carried away a prize,” by the enemy, as averred in this count, but it was that shq was stopped' as violating the blockade, arid ordered to return to port. To constitute it a capture, it was essential that the'arrest should have been made with an intention o)f making the vessel a prize. 2 Marsh, 506. The assured could not abandon after the risk was over. Hamilton vs, Mendes, 2 Burr. 1198. 1 W, Blk. Rep. 276, S. C, Parity 
      2(55. ’Lite loss must be by some one of the perils mentioned in the policy, and that peril must be the one staled in the declaration, or the assured cannot recover. Two distinct breaches of the policy cannot be connected in one count. Hadkin&on vs. Robinson3 Aos; <$• Pull. 388. Park, 225, 548. And Kuleh Kemp vs; Vigne, 1 T. R. 304. The exercise of force by a blockading squadron is no where termed a capture, M- Call vs. The Marine Insurance Company, 8 Crunch, 59.
    
      Harper argued for the appellant in reply;
    
      
      
         The word unlawful was omitted in the policy on the good?,
    
   JUDGMENTS AFFIRMED.;  