
    * James Shapley versus Edward Tappan.
    A ship was insured from Boston to Tonningen. Being driven by stress of weather into the River Elbe, and proceeding to Gluckstadt, the ship and cargo were seized by the Danish government, the cargo being unladen by order of that government The ship and cargo being afterwards liberated, and permission for her to pass the French battery at the mouth of the Elbe being refused, the consignee of the cargo agreed to receive the same at Gluckstadt, and paid the stipulated freight. The ship was afterwards cleared for JVew Orleans, and proceeded about eight leagues down the Elbe, but, being still forbidden to pass the French battery, returned to Gluckstadt, where she was afterwards sold by order of the Danish government, for the payment of the seamen’s wages. — After the above attempt to leave the Elbe, and before the sale of the ship, the insured offered an abandonment, which was refused by the underwriters. — It was holden that the underwriters were not liable, the whole purpose of the voyage insured having been answered by the delivery of the cargo and receipt of the freight at Gluckstadt.
    
    Assumpsit on a policy of insurance, dated December 5, 1809, whereby the plaintiff caused himself to be insured the sum of 2000 dollars “ on the brig Joseph from Boston to Tonningen; ” the vessel being valued at 4500 dollars. Premium fifteen per cent. The policy was against the usual risks, and the defendant subscribed 300 dollars.
    The declaration contained several counts. In the first, the loss is thus stated: —
    “ And the said Shapley further avers that, before the date of said policy, viz., on the second day of December in the year of our Lord 1809, the said brigantine departed from the port of Boston aforesaid, on her voyage aforesaid, to Tonningen aforesaid; and that afterwards, while proceeding on her said voyage, and before her arrival at Tonningen aforesaid, viz., on the 5th of January, 1810, she arrived at or near the Island of Heligoland, in the course of her said voyage; the said island being the usual and customary place of taking on board a pilot, to conduct vessels into the port of Tonningen; and the said ship or vessel remained and waited at oi near the said island for the space of five days, for the sole purpose of obtaining such pilot as aforesaid; and not being able to procure a pilot, or to enter the river and port of Tonningen without a pilot, the said ship or vessel, by tempestuous weather, and the force and violence of the winds and waves, was necessarily obliged, for the preservation of the ship and crew, to sail into the River Elbe, and proceed to the port of Gluckstadt, in the dominion of the king of Denmark; and, immediately on the arrival of said ship in the said port of Gluckstadt, by force and violence, and in an unlawful manner, she was * arrested, restrained, and detained, by persons acting under the authority of the king of Denmark, and continued under such arrest, restraint, and detention, until the 2d day of April, 1810, when she was released by the Danish government; and thereupon, immediately, and before she could depart from the River Elbe, and go to Tonningen, she was unlawfully arrested, restrained, and detained, in the said River Elbe by persons acting under the authority of the emperor of the French, whereby she was hindered and wholly prevented from prosecuting her said intended voyage, and became and was totally lost to the plaintiff, and never did arrive at Tonningen aforesaid. Of all which the said Tappan afterwards, viz., on the 15th of November, 1810, had notice.”
    The second count is like the first, except that the vessel is stated to have been arrested and detained by persons acting under.the authority of the king of Denmark, and the emperor of the French, without setting out two several arrests and detentions.
    There are also the usual money counts.
    The action was submitted to the decision of the Court, upon the following statement of facts, agreed by the parties, viz.: —
    “ The parties, in this case, agree that the policy was made and subscribed by the defendant, as stated in the declaration; that the plaintiff had an insurable interest in the vessel insured, to more than the amount insured by him ; that the vessel sailed from Boston December 2, 1809, with a lawful cargo belonging to merchants in Boston, consigned to Tonningen, and arrived at the Island of Heligoland, in the due course of her voyage, on the 5th of January, 1810, where the master attempted to obtain a pilot for Tonningen, but could not procure one, nor could he proceed on the voyage without a pilot; that a storm came on, and that the master, of necessity, for the preservation of vessel and crew, entered the River Elbe, being the only place or port into which he could conduct said vessel. The said vessel * then proceeded to the port of Gluckstadt, in the dominions of the king of Denmark, where she arrived on the 14th of January. Upon her arrival at Gluckstadt, the vessel and cargo were immediately seized by the Danish government, and forcibly kept and detained from the master and crew until the 13th of March, at which time, after divers examinations of the master, and crew, and papers, the vessel and cargo were released upon payment of charges and expenses by the master. The cargo was landed by order of the government soon after the seizure.”
    “ After the release of the vessel andz cargo, as aforesaid, on the 2d of April, the consignee of the cargo, finding it impossible for the vessel to get round to Tonningen, on account of the French 
      batteries at Cuxhaven, at the mouth of the Elbe, consented to receive, and did receive, the said cargo at Gluckstadt, and discharged the bills of lading, and paid the stipulated freight.”
    “ The master, while at Gluckstadt, procured leave from the Danish government to go to Tonningen, but could not obtain per mission of the French at Cuxhaven to pass out of the Elbe, and so did not attempt to sail to Tonningen. In May, 1810, he cleared out his vessel for New Orleans, and thereupon proceeded down the river about eight leagues towards Cuxhaven, but was not allowed to pass the fort at that place, and returned back to Gluckstadt in three or four days from the time of his departure. — At the time when said vessel went into the Elbe, the port and batteries of Cuxhaven, at the mouth of said river, and commanding the entrance and navigation thereof, were in possession of the French, and so continued until after the 24th of December, 1810; and on that account, it was not in the power of the master and mariners, at any time after said vessel went into the Elbe, to get her out of said river.”
    “ It is also agreed that, from the termination of the voyage insured, the said brig was intended to be a seeking vessel; and that, at Gluckstadt, the master believed that he should be able to find employment at Tonningen for said * vessel. The master and crew continued with said vessel, using all reasonable efforts to get her away, until the 24th of September, before which time the master made sundry journeys to Hamburgh, and several applications to the American consul there, and to the Charge des Affaires of the United States at Paris, to obtain a license from the French government for the vessel to leave the Elbe, but none could be obtained.”
    
      “ On the 15th of November, the plaintiff offered to abandon to the underwriters, and made regular proof of the facts mentioned, but the underwriters refused to accept the abandonment After the cargo was taken out, as aforesaid, the master expended, out of the funds of the owners, the sum of 2237 dollars 58 cents, in maintaining the crew, and in journeying and laboring for the vessel, with a view to procure her departure from the Elbe, including sundry sums disbursed to agents and others for the same purpose, exclusive of seamen’s wages. — On or about the 24th of December the wages of the seamen being in arrear, they obtained legal pro cess in rem against the vessel, according to the laws o'" the kingdom of Denmark; and thereupon said vessel was regularly sold for the payment of the said wages; and the proceeds of said sale, amounting to between 700 and 800 dollars were distributed among the crew in part payment of their wages. The monthly amount of the wages of the crew was 161 dollars. — In going from Heligoland to Gluckstadt, the vessel sustained a general average loss, and the defendant has paid into Court his proportion of said loss.
    “ The parties agree that if, on the foregoing facts, the Court shall be of opinion that the plaintiff is entitled to recover as for a total loss, and nothing more, then judgment shall be entered against the defendant for the amount of his subscription and interest; or if the Court should be of opinion that in addition to a total loss, the plaintiff may also recover all or any portion of the expenses incurred about the vessel, and the attempts to liberate her, after the delivery of the cargo as aforesaid, *and for the wages of the crew during said detention, or any part thereof, then the amount of said expenses and wages are to be adjusted by assessors to be appointed by the Court, and judgment to be entered accordingly; — or if the Court should be of opinion that the plaintiff cannot recover for a total loss, but may recover for a partial loss, in addition to the general average loss aforementioned, then such partial loss is to be adjusted by assessors, under the direction of the Court, as to the propriety of including the said expenses and wages in such adjustment, and judgment to be entered accordingly. — But if the Court should be of opinion that the plaintiff cannot recover either for a total or partial loss, except the general average loss above mentioned, then the plaintiff is to become nonsuit, and the defendant recover his costs.”
    
      Mellen,
    
    for the plaintiff, contended that the facts showed the plaintiff entitled to recover for a total loss, and that the expenses incurred in the attempts to save the vessel, &c., also constituted a partial loss, in addition to the total loss, which the plaintiff was alike entitled to recover.
    Here was a loss of the thing insured, total in its nature. The ship, in the due course of the voyage insured, had been forcibly taken from the master, and, in consequence of that taking, had been sold from him. By the restraint and detention, the voyage was totally lost, the ship never having been able to arrive at her destined port.  The force used in this case sufficiently distinguishes it from the cases, decided in this Court, of Richardson & Al. vs. The Maine F. and M. Insurance Company. 
      
      Amory & Al. vs. Jones, 
       and Lee vs. Boardman. 
       The capture and detention continued until the time of abandonment, and justified it.  Besides the total loss, to which the plaintiff is thus entitled, he has also a legal claim for the expenses incurred in the attempts to procure the liberation of the ship, wages of the seamen, &c. 
    
    
      Livermore,
    
    for the defendant, contended that, although the vessel was protected by the policy in going into the *Elbe, that the proceeding to Gluckstadt- was a deviation. - If not, still the voyage terminated there, the cargo being there delivered to the consignee with his assent. The final appropriation of the ship to the payment of the w'ages due the mariners, was in no sense a loss, since it went to pay the debts of the assured, for which he was personally liable. As to the other expenses, for which a partial loss is claimed, it is sufficient to observe that they arose after the voyage insured was ended.
    
      
       7 Johns. Rep. 57.-7 East. 24.
    
    
      
       1 Johns. Rep. 249. Schmidt vs. The United Insurance Company.
      
    
    
      
       6 Mass. Rep. 102.
    
    
      
      
        Ibid. 318.
    
    
      
       3 Mass. Rep. 238.
    
    
      
      
        Marsh. 483, 488.
    
   The action stood continued nisi for the opinion of the Court, which was delivered at an adjournment of the March term in Suffolk, by

Parker, J.

The insurance in this case is upon the brig Joseph from Boston to Tonningen.” The plaintiff claims as for a total loss, and also for a partial loss occasioned by expenses in endeavoring to get the vessel from Gluckstadt, on the River Elbe, and for the maintenance of the vessel and crew, after the unlading and delivery of her cargo to the consignee of the freighters at Gluckstadt.

The ground upon which the plaintiff insists upon his right to recover is, that, being driven into the Elbe by stress of weather, and being obliged by an order of the Danish government to unlade the cargo at Gluckstadt, and afterwards being prevented by the French power at Cuxhaven from going out of the Elbe, in order to get to Tonningen, the place of the vessel’s original destination, the voyage was lost, so as to authorize an abandonment to the underwriters.

In order to ascertain the justice and legality of the plaintiff’s claim, it is necessary to recur to the facts relating to the voyage, as agreed between the parties. It is stated that the vessel arrived off Heligoland on the 5th of January, 1810, and that, while waiting there for a pilot, to conduct * her to Tonningen, a storm arose, which obliged the vessel to put into the River Elbe. She then proceeded to Gluckstadt, on that river, where she was seized by order of the sovereign power of Denmark, on the 14th of January, and kept possession of until the 3d of March following, at which time, the vessel and cargo were released and restored to the master, on payment of certain charges, which, by agreement, have been considered as an average loss, and the proportion thereof falling upon the defendant, according to his sub scription, has been paid into Court.

Soon after the seizure, the cargo was unladen by order of the government; and, after the release of the vessel and cargo, permission was obtained by the master to go to Tonningen from the Danish government; but, there being a French battery at Cuxhaven, which is at the mouth of the River Elbe, and the commander thereof having refused permission for the vessel to pass out of the river, the consignee of the cargo consented to receive, and did receive, the cargo at Gluckstadt, and paid the stipulated freight for the same to the master ; after which attempts were made to get round to Tonningen for the purpose of looking for freight, which is stated to have been the principal object of the voyage. But at Gluckstadt the vessel was cleared for New Orleans, and the master began his voyage down the river; but was not permitted to pass by the battery, and was prevented therefrom by fear of destruction to the vessel; and so the vessel was brought back to Gluckstadt, where she continued until December, 1810 ; when, in consequence of a process instituted by the seamen against her for their wages, she was sold, and the proceeds of the sale were distributed among the crew.

The expenses while lying at Gluckstadt, and of several journeys made by the master to Hamburgh, to obtain liberty to depart, form the claim for a partial loss, in addition to the expenses which accrued before the delivery of the cargo to the consignee, *Upon these facts, we are all of opinion that the plaintiff is not entitled to recover, upon the ground that the voyage was completed by the consent of the master, and of the consignee, to deliver and receive the cargo at Gluckstadt, this being a substitution of that place for Tonningen, and it appearing to be voluntary, since no necessity existed at the time, and at most there was but an apprehension that the vessel would be obstructed in her voyage from Gluckstadt to Tonningen, had it been attempted, At the time that transaction took place, no attempt appears to have been made to pass the battery at Cuxhaven, or even to obtain permission therefor; nor does it appear that the cargo was reladen. after permission was obtained from the Danish government to pursue the voyage to Tonningen.

The policy does not express that the vessel was to go to Tonningen to procure freight, but she is insured from Boston to Tonningen, the object of the voyage, as understood by the parties, being to carry the cargo then on board to the latter place; and it was competent to the parties to put an end to the contract between them, by adopting Gluckstadt as the place of delivery. And this it became their mutual interest to do, after the vessel was driven into the Elbe, and when there were difficulties in the further prosecution of the voyage. The mere fear of being obstructed by the French battery at Cuvhaven could not justify an abandonment of the voyage to the prejudice of the underwriter; and such fear was the only existing cause for substituting Gluckstadt for Tonningen.

It is true that afterwards—indeed, a month after the cargo was delivered to the consignee and the freight paid — the vessel proceeded down the river with a clearance for New Orleans, and returned on account of the danger of attempting to pass the French battery. Whether this was such an actual restraint as would have justified an abandonment, had the vessel, with her cargo on board, then been destined for Tonningen, we need not decide; since it is very clear that the * whole purpose of the voyage understood to he insured had been answered by the delivery and acceptance of the cargo at Gluckstadt.

The expenses previous to that transaction have been, by agreement, considered as an average loss, and by this underwriter have been paid. All the subsequent expenses were at the proper risk and loss of the assured. The plaintiff must, therefore, become nonsuit.

Plaintiff nonsuit. 
      
      
         [From the report of the facts agreed upon, it appears that, on account of the French forces at Cuxhaven, 41 it was not in the power of the master and mariners, at any time after the vessel went into the River Elbe, to get her out of said river." Was not this a restraint within the terms of the policy ? Was it essential that no force was actually applied to the vessel, or exercised over her by persons in the actual possession of her? Was it not enough that external and irresistible force was always existing to prevent the possibility of her escape ? Oliver vs. The Union Insurance Company, 3 Wheat. 183. Saltus vs. United States Insurance Company, 15 Johns. Rep. 526. The case seems to differ from a declining to go into the port of destination for fear oi seizure. Smith vs. The Universal Insurance Company, 6 Wheat. 186 Sed vide Brewer vs. Union Insurance Company, 12 Mass. Rep. 170. And how could the delivery and acceptance of the cargo at an intermediate port affect the insurance upon the vessel, especially when one object of the voyage was to obtain freight at the port of destination ? — Ed.]
     
      
      
         [Vide Richardson & Al. vs. The Maine Fire and Marine Ins. Co., 6 Mass. Rep. 102. — Cooke vs. The Essex Fire and Murine Ins. Co., 6 Mass. Rep. 124. — Amory vs. Jones, 6 Mass. Rep. 318. — Brewer vs. The Union Ins. Co., 12 Mass. Rep. 170. — Tucker vs. The United F. and M. Ins. Co., 12 Mass. Rep. 209. — Lee vs. Gray, 7 Mass. Rep. 349. — Messonier vs. Un. Ins. Co., 1 Nott & M'Cord, 155. — King vs. Delaware Ins. Co., 2 Wash. C. C. Rep. 300. — Schmidt vs. United States Ins. Co., 1 Johns. 249. — Neilson vs. Col. Ins. Co., 1 Johns. 301.—Savage vs. Pleasants, 5 Binn. 503.—King vs. Del. Ins. Co., 6 Cranch, 71.— Ed.]
     
      
      
         [The case finds that the vessel was intended, at her port of destination, to be a seeking vessel. — Ed.
     