
    Craig and others against The United Insurance Company. The same against The New-York Insurance Company. The same against The Commercial Insurance Company.
    ALBANY,
    August, 1810;
    íred3SfromaS New-York to was boarded during the voyage, off St. Mifc^eruiser^he wh?ch,anonV the ¿er 1807 doí" sed her register warning her not ¡to enter any of Francc^iioi-Bemnarkjiaiy, ny''other “port from, which the British flag was excluded, ac-British orders fn council of the 31th of B'ovemper, 1807. The master fearing Jllgerine pirates, and believing he should be liable to British capture if he proceeded to Barcelona, without first touching at a British port, put into Gibraltar, for advice; and there obtained permission to proceed on his voyage, but hearing of the Milan decree of the 25th of JDecember, 1807, and the Spanish decree of the 3d of Januai'y, 1808, and being informed that Barcelona was occupied by French troops, he abandoned the voyage, and returned to New-York; and the insured thereupon abandoned, as for a total loss. It was held, that the the and abandonment were not
    ¡Neither the fear of intermediate capture in proceeding to Barcelona, nor of seizure there,,* was a sufficient cause of abandonment.
    Tiie insured cannQl abandon guia, timet, in cases where the danger is remote or contingent; but if there be an absolute interdiction of commerce with the port of destination, so that the completion of the voyage is impracticable, or attended with a moral certainty of seizure and loss ; or if the port of destination be in possession of an enemy, or actually blockaded, it seems that the insured is not bound to proceed, but may abandon the voyage, and recover for % total loss.
    THESE actions were commenced on three separate policies of insurance. The policy in the first cause, was dated the 19th of December, 1807, on the American ship, * J called the Amiable Matilda, Hilliard, master, “ at and ^rom New-Tork to Barcelona and Salon /’ valued at 5,500 dollars. At the foot of the policy were the following wr‘lt;t;en clauses : “ Warranted American property, propf whereof, is required to be made here only. In case of . . . capture or detention, not to abandon m less than six months after advice thereof, at this office; or until after condemnation. If turned away for attempting a blockaded port, the assured to be at liberty to proceed to a port not blockaded, but not to be liable to loss, for seizure 1 _ r or detention., at the port of destination) m consequence of having touched, by choice or force, at a British ? port*
    
      The policies, in the second and third causes, were on goods laden on board the same ship, “ at and from New-York to Barcelona/’ with a written clause, as follows : . « 61 warranted not to abandon, if captured, until condemned, or until after a detention of six months, after advice is received here of the capture.”
    The causes viere tried at the New-York Sittings, in June, í 809, before Mr. Justice Spencer.
    
    At the trial of the first cause, the plaintiffs produced as preliminary proofs, a letter of abandonment, dated the 12th of March, 1S08, addressed to the defendants, as follows : “ the papers herewith submitted to you will show the situation of the subject insured, which authorizes us, as we are advised, to make an abandonment. We do, therefore, hereby abandon to your company the ship, &c. and claim from you a payment of a total loss.” The papers referred to and delivered to the defendants were an affidavit of the plaintiffs, that no other insurance had been made by them on the ship, and three letters from the master. The first letter, dated on board the Amiable Matilda, Gibraltar Roads, 5th of January, 1808, was as follows : “ It is with extreme regret that I have to acquaint you of my coming into this place, 25 days from New-York ; the cause of which was my having my papers endorsed by a British cruiser, forbidding me to enter any "port in France, Holland, Denmark, Portugal, Spain, Italy, or any ocher port from which the British flag was exclu- • ded, at the same time furnishing me with a copy of the British orders in council, dated 11th of November last. I likewise was informed by an American vessel, that the Algerines were at war with the United States, had taken in a number of vessels ; and that the American consul, at Gibraltar, had sent out word for all American vessels bound up the Mediterranean to call at Gibraltar, for advice. Under these circumstances, I have thought it for the interest of all concerned that I should call here, where I find 20 or 30 sail of other vessels similarly situated, and more daily arriving, among which are several sajj wj10 jja¿ ^ei.r papers, like myself, endorsed without the St, aits, and had passed the rock ; after which they were captured for having passed Gibraltar; although sailing for Malta, they are sent in here, and are now waiting for trial. Not knowing the names of your friends in this place, I called on the friends of Messrs. Gompt and Co. (the consignees,) Mr. James R. Benson, and Messrs. Anderson and Co. for advice ; from whom and the American consul, I learn that I cannot go out until my quarantine is out, after which, as my cargo is comprised of such articles as will be admitted, we shall be .allowed to proceed to my original port of destination, by taking a certificate of my having stopped here. I shall extend my protests, and proceed as fast as possible, after permitted, for jBarcelona^ where I hope, and think it probable, I shall be permitted to an entry, notwithstanding the misfortune of being forced to call here.” &c.
    “ P. S. The difficulty with the Algerines is over,” &c.
    The second letter dated at the same place, on the 12th of January, 1808, was as follows : ,
    “ Since writing,” &c. “ I have made every exertion to get permission to proceed from quarantine, but have not been able to; however, we are" this day admitted to pratique, and have my protests made out, and permission to proceed to Barcelona. We have the appearance of a fine breeze to-morrow morning, for Barcelona, and I shall improve it, from whence I hope you will next hear from me. I have this day seen letters from Messrs* Compt and Co. dated the 2d instant, saying there was no difficulty in vessels coming to their place that had touched at Gibraltar. There is here a number of vessels similarly situated that are going to proceed on their voyages ; likewise a number that were bound to French and Italian ports which are pretty much determined to return home with their outward cargoes,” &c... . ■ •
    
      ■ The third letter, dated at the same place, the 18th of January, 1808, was as follows :
    “ Since writing to you, the 12th instant, the day I had pratique, I extended a protest and had cleared out, and was about getting under way, for Barcelona, when the, late French and Spanish decrees were received here; likewise, that Barcelona was occupied by French troops. And I hear from Messrs. Grevigne Co. in Malaga, that they have not a doubt but the decree will be rigidly, enforced which blasts our hopes of a voyage. I have advised with the first mercantile houses in this place, and concluded to return direct to Nexv-Tork, as the best possible thing for your interest in this dreadful dilemma. I shall sail with the first ships of force that go through the gut, as a convoy, and make the best'of my way home. There will be 15 or 20 other vessels likewise that will return, and more daily arriving. Algesiras is full. The boats are daily bringing in every American they board.’5
    The counsel for the defendants objected, that these papers did not contain sufficient evidence of the requisite -preliminary proofs ; and that the protest of the master ought to be produced ; but the objection was overruled, by the judge.
    The plaintiffs then produced the deposition of Moses Hilliard, the master, the reading of which was objected to, because it set forth a different cause of abandonment ; but this objection was overruled, and the deposition read.
    After stating the examination of his papers, and endorsement of his register, by the British cruiser, off the island of St. Michaels, the master deposed, that the commander of the British ship informed him, that, in consequence of the orders in council, he could not be permitted to proceed in his intended voyage to Barcelona, or to any other port referred to in the endorsement in the register, without stopping at some British port; and. that if he attempted to proceed to Barcelona, or to any of the ports referred to in the endorsement on the ship’s reg>ter, the ship would be taken by any British vessel of war that might fall in with her j and that the ship and cargd would, in consequence, be good prize and liable to cpndemnation. That the British commander showed the de- . . - ■ , ponent a newspaper containing the British orders m council of the 11th of November, 1807. That the ship, afterwards, proceeded on her voyage,, and being in the Gnt of Gibraltar, he spoke an American brig, the master' of which informed him, that the Algerines had declared war against the United States, and had captured several American vessels, and that the American consul had advised all ships bound up the Mediterranean to call at Gibraltar, for advice. That, under these circumstances, believing that he could not prosecute his voyage to Barcelona, or-go to any port referred to in the endorsement made on his register, nor to any free or open, port in the Mediterranean, without subjecting the ship and cargo to capture by the British or Algerines, and to a consequent total loss, he deemed it his duty, and for the benefit of all concerned, to stop at Gibraltar ¡ and accordingly put in there on the 3d of January, 1808. That the ship was immediately put on quarantine,, and he found he could not proceed further, until he had performed a quarantine of 10 days. That there were 20 or 30 American vessels at Gibraltar, under, the same circumstances; and several American vessels, had been brought in by British cruisers, and libelled as prizes, inconsequence of their having attempted to. pursue their voyages up the Mediterranean, without stopping at Gibraltar, after having their registers endorsed. That on the 12th of January, 1808,- he obtained permission from the government at Gibraltar to proceed on his voyage, with the ship and cargo to Barcelonar on taking a certificate with him from certain officers at Gibraltar, of, the ship’s having touched there. That he was fully determined to pursue his voyage to Barcelona, but just as the ship was getting under way for that purpose, he received intelligence of the French and Spanish decrees,. That these decrees were published in the newspapers at Gibraltar, one of which, purporting to contain a copy or translation of these decrees, the deponent received at Gibraltar, the 16th of January, 1808. That after taking the best advice he could obtain, and considering the great risk the vessel and cargo would run of being captured, if he attempted to proceed to Barcelona, or to any other port in the Mediterranean or Europe, from the number of French and Spanish privateers which were then out, and which he was informed and believed were daily capturing American vessels and carrying them into Algesiras and other Spanish ports, he deemed it best for the interest of all concerned to return back from Gibraltar to New-Tork; and, accordingly, after waiting for convoy until the 31st of January, he sailed from Gibraltar, under the protection of a British vessel of war through the Straits of Gibraltar, and arrived in safety at New-Tork on the 14th of March, 1808. That from the information he received at Gibraltar, as well as from what he has since received, he verily believes, that if he had proceeded on his voyage to Barcelona, or any other port in the Mediteranean, the ship and cargo would have been captured by the French and Spanish, and have been condemned. And that it was solely the fear of capture and condemnation, in proceeding on the voyage to Barcelona, ’or to any other port in the Mediterranean, which induced him to break up the voyage and return to New-Tork ; btii that from his knowledge of the consignees, and of their respectability and interest at Barcelona, he was persuaded -that notwithstanding the French and Spanish decrees, if the vessel had arrived at Barcelona, both vessel and cargo might have been protected and saved from confiscation, by the interest of those to whom she was consigned.
    On his cross-examination, the master stated, that after his register was endorsed by the British ship of war, his intention was to -go to Malta, and not to Barcelona. That he went into Gibraltar on account of the news of án Al
      
      ¿'crine war, and that he would not otherwise have gone into that port. That after he went into Gibraltar he heard that the Algerine war had ceased, but that as there was no American force in the Mediterranean, apprehensions were still entertained, that the war would break out again 5 but he should not, on that account alone, have refrained from prosecuting his voyage to Barcelona. That if the Milan decree and Berlin decree had alone existed, when he was at Gibraltar, he would not have proceeded to Barcelona. That, while at Gibraltar, he had no information from any persons in Spain, that it was understood there, that the Spanish decree would be carried strictly into effect, or that it would not. That he saw no letters at Gib.raltar, nor had any information there to induce him to believe that the Spanish decree would have been enforced against the Amiable Matilda or her cargo, if she had arrived at Barcelona. That after his register was endorsed, he deemed it unsafe to proceed on his voyage without first stopping at an English port; and until he heard of the Algerine war, he intended to go to Malta, as being an English port, and from whence he might with more ease and safety reach his port of destination. That if when he left Gibraltar he had believed that he could have reached Barcelona in safety, he would have proceeded to that port.
    The endorsement on the register of the Amiable Matilda was in these words : “ Warned not to. enter any of the ports of France, Holland, Spain, Denmark, Italy, Portugal, or any other port from which the British flag is excluded. Lat. 37 deg. 6 min. north, long. 20. west. 30th of December, 1807.”
    Tlie counsel for the plaintiffs -read in evidence the ,British orders in council, of the 11th of November, 1807, the Milan decree, of the 25th of December, 1807, and the Spanish decree, dated at Aran juez, the 3d of January, 1808, and the Berlin decree, dated the 31st of November, 1806s ' '
    
      
      Chace, an American captain, deposed, that he was at" Algesiras, in January, 1808 ; that there were a number of French and Spanish cruisers in the Mediterranean, and that American vessels, obnoxious to the Milan and Aranjuez decrees, could hardly have escaped capture; that British convoys frequently passed Gibraltar, and went up the Mediterranean, by which American vessels might have been protected, by sailing in their company, but without having sailing orders or signals ; that the privateers generally kept in shore, and the greatest danger from them was off Algesiras, and in the Gut of Gibraltar ; that had he been at Gibraltar when the Amiable Matilda was there, and bound to Barcelona, he should have pro-ceded thither; and if he could have gone with a British convoy he certainly shóuld have done so, if his vessel had not been liable'to be seized on her arrival at Barce- / Iona.
    
    
      Graham, another witness, testified, that on account of a bar in the harbour of Barcelona, the Amiable Matilda would have been obliged to land more than half her cargo two miles from the city, where she would have been exposed, for some days, while unloading, to privateers.
    The jury found a verdict for the plaintiffs, for a total loss. Similar verdicts were also found in the other two causes.
    A motion was made in behalf of the. defendants for a new trial; on the following grounds :
    1. Because the preliminary proofs varied from the proofs at the trial, and did not show a right of action, at the time the suit was commenced.
    8. There was no justifiable cause of abandonment, there beifig no total loss by any of the perils insured against.
    3. Admitting a right to abandon, from fear of capture, the abandonment was premature.
    
      .Wells, for the defendants.
    1. The preliminary proof is defective in form. It consisted merely of three lettei-s from the captain, with the usual affidavit, as to interes^. an¿ other insurance. The abandonment should-have been accompanied with ,the protest of the master,whose duty it is, whenever any difficulty or disaster intervenes, to make a regular protest, the first convenient. opportunity. Proof implies something having the solemnity and authority of an oath. If the master actually. made no protest, he failed in the performance of his duty; and the plaintiffs were not prepared to abandon ánd exhibit the requisite proof of loss. The best evidence is the protest of the master; it ought, therefore, to have been exhibited. - '
    Again, the cause of abandonment, as stated in the letters exhibited as preliminary proof of loss, is different from what was given in evidence at the trial. When the insured makes an abandonment on a specific ground, he must, at the trial, be confined to it. He cannot show a different cause. In his letters, the master assigns as the reason for breaking up the voyage at Gibraltar arid returning here, the apprehension of seizure at Barcelona, his port of destination. In his deposition, read at the trial, he states the reason of his return hbmes, to be the fear of his intermediate capture by the Frénch and Spanish cruisers. - The averment in the 'declaration" alsd states, the apprehension of capture by French and Spanish cruisers, as the cause of breaking up the voyage.
    2. But putting the cause on the ■ ground taken by the plaintiffs at the trial, the question is, whether-that was a justifiable cause of abandonment. The cause assigned by the master, in his deposition, is a fear of capture arid condemnation by the French or Spanish, under their decrees, while proceeding from Gibraltar to the port of destination; for he expresses his confidence, that if the ship had arrived at Barcelona, she would not have been seized there. The cause of abandonment, then, is fear of capture. 1
    
      That a just and reasonable apprehension of capture may excuse a deviation, is not denied; but this, I believe, is the first. time that fear of capture has been thought sufficient to justify an abandonment. The misapprehensions, miscalculations, and erroneous judgment of the master are at the risk of the insured, not the insurer.
    The case of Schmidt v. The United Insurance Company,
      
       certainly goes further than any of the English decisions ; but that case differs from the present. There the vessel was twice warned not to proceed to the Elbe, being blockaded; and had she, afterwards, proceeded, she would have been liable to condemnation. If she had gone on, afterwards, and attempted to enter the Elbe, she would have violated the law of nations. It is true$ Mr. Justice Livingston, in giving his opinion in that case, says, “ it is sufficient to justify the master’s conduct, in cases of this kind, if he has good reason to apprehend that a capture will be the consequence of going on ; and he cites Targa, Casaregis and Emerigon, in support of his position.
    Emerigon states, that the 26th article of the French Ordinance forbids the captain from abandoning the vessel, during the voyage, on account of any danger whatever, without the advice of the principal officers and the crew.” But the advice only of the officers and crew is not sufficient to justify the master in abandoning- the ship ; there must be a just cause for such a step. The danger must be imminent, and resistance impossible, dr ineffectual.. As the fear of being made a slave, or prisoner, is a just cause of abandoning the vessel, where there is an impossibility of defending the ship. Emerigon cites Targa and Casaregis, to illustrate his idea of a well grounded or just fear, and then puts several cases, by way of example. The jirst case, is that of a vessel bound from Candía to France, chased by a Turkish ship of war, and the captain and crew took to their boat and escape¿ to Zante.
    
    In the second case, the captain of a vessel, richly laden, came in sight of a ship of 30 guns, which he supposed to be a Barbary corsair ; and he abandoned his vessel, in his boat; and it afterwards appeared that the ship of war was in fact a French cruiser. In the third case, a French ship, returning from America, stranded on the Barbary coast, and while the crew were engaged in getting the ship off, the Moors, with' whom France was then at war, appeared in sight, and the captain and crew took to their boat and left the vessel. The fourth case was that of a vessel, off Majorca, chased by an' English cruiser, and the captain and crew abandoned their vessel, and went on shore. Another case was that of a. vessel, forced by stress of weather to cast anchor, near Mahon, and, during the night perceiving a ship, which they supposed to be a Barbary pirate; the captain and crew went ashore to obtain assistance, and soon after their vessel was discovered to be on fire. Other cases are also mentioned, as where the plague broke out on board of a vessel; and 'where a. vessel was in imminent danger of shipwreck.
    All the eases put by Emerigon, or the authors who are cited, are those in which there was a present physical force, and imminent danger. In the present case, the ' danger, if any, was distant, uncertain and speculative ; it" was a mere belief or apprehension of a probable or possible danger, arising from general report or information. This case, then, is widely different from any which has been cited. One of the witnesses, at the trial, was of opinion, that the vessel might have reached Barcelona, without being captured, though it was likely she might have been taken.
    
      Emerigon
      
       mentions the case of a vessel bound from Marseilles to Martinique, which having met with, violent gales, by which she was dismasted, put . into Carthagena, and afterwards pursued her voyage ; but meeting with heavy seas, which increased the water in her hold, she put into Gibraltar, and afterwards returned to Marseilles, for fear of becoming innavigable and shipwrecked, and was abandoned to the insurers. It was held, that the insured could not recover, as tile judges, at Gibraltar, did not pronounce the ship to be innavigable, and be. cause the fear of a misfortune is not the misfortune itself.
    In the case of Lubbock v. Rowcroft,
      
       goods were insured from London to Naples, Leghorn, or Messina, with liberty to touch at any port in the Mediterranean; and the vessel On arriving at Minorca, found that 3Iessina was in the hands of the French, or blockaded by them; in consequence of which, the insured abandoned for a total loss. Lord Ellenborough held, that the abandonment was from an apprehension of capture from an enemy, and not a loss within the terms of the policy ; and the plaintiff had no right to abandon. Ersk :ne, who argued for the plaintiff, observes, that the case then before the court ; “ was not merely quia timet, as if there were 100 French^ vessels covering the seas ; in which case, though the probability was great of the ship’s being captured, she might escape; but here the port was in possession of the enemy, so that her capture was certain.” Thus admitting, that in a case like the present, a fear of capture, or a probability of capture, would not be a sufficient cause of abandonment.
    In the case of Blackenhagen v. The London Insurance Company, the goods were insured from London to Reval, in Russia. The ship sailed under convoy, and arrived in the Sound; 'and while proceeding towards Reval, the captain of the convoying ship received information, that an embargo was laid on all British ships in the ports of Russia. The vessel put back, and lay off Gottenburgh, a friendly port, where she might have entered ; but she sailed with a fleet for England, and was lost on her voyage hbme. Lord Ellenborough said the case would hardly bear to be stated. The underwriters were bound to indemnify the plaintiff for any loss that should happen on her voyage from London to- Reval; but by sailing back to England., in the manner she did, the original voyage was abandoned, and the underwriters discharged.
    In the case of King v. The Delaware Insurance Company,
       decided in the circuit court of the United States, for the district of Pennsylvania, in April, 1809, the insurance was from Philadelphia to the Isle of France. During the voyage the vessel was stopped by a British sloop of war, and warned from proceeding to any port in possession of the enemies of Great Britain; and the captain was told, that the Isle of France was blockaded, and he would be a prize, "if he proceeded; in consequence of which he returned to Philadelphia, where an abandonment was made. . Judge Washington held, that the detention, and warning by the British vessel were no cause of abandonment. That the Isle of France not being, in fact, blockaded, there was neither a legal nor actual force, to prevent the ship from entering her port of destination, except the casual danger arising from capture by privateers ; and that the master was bound to proceed until the danger of actual loss was manifest.
    In the case of Atkinson v. Ritchie, the court of King's Bench held, that a restraint of princes, which would excuse the master of a vessel for not delivering his cargo, at the port of destination, agreeably to the charter-party, means an actual and operative restraint, and not a merely expected and contingent restraint.
    We shall, probably, be told, that the master is bound t© exercise a sound discretion, under existing circumstances; and if he acts bona fide, all parties are bound by his acts. This is generally true ; but the rule has many exceptions. The master must take care that he exercises his discretion under proper circumstances ; and the. question recurs, whether the circumstances of the present case did justify the exercise of his discretion. Capture is one of the perils insured against, and the master has no right to exercise his discretion as - to a probable capture. He cannot táke upon himself to abandon the voyage from an apprehension of one of the perils against which the insurer has undertaken to indemnify the insured. If this were permitted, then the insurer who is liable in a case of actual capture, would be equally liable, also, when the master abandons, the voyage, from a fear of capture. In the present state of the world, a vessel cannot sail in any direction, without danger of capture. It appears from the evidence, that the principal danger of capture, was in the neighbourhood of Algesiras ; and that the Amiable Matilda might have sailed under British convoy, though without sailing orders and signals. She had also a British certificate or passport. A master of a vessel, who was a witness, said, he should have gone on the voyage, under the circumstances. Here, then, is a contrariety of opinion, and two cases might happen in which the insurers would be liable; one, where a vessel returned home, and the other, where she proceeded on her voyage, and was lost.
    But if the fear of capture is a cause of abandonment, it must appear, that there were just grounds for the apprehension.
    The master says, if the Berlin and Milan decrees had alone been in operation, he would not have proceeded for Barcelona. He was not, then, influenced by the Spanish decree : and if by the Berlin and Milan decrees he would not have been liable to capture, he had no ground whatever for his apprehension.
    By the Tth and 8th articles of the Berlin decree, it is declared, “ that no vessel coming directly from England or her colonies, or having been there since the publication of this decree, shall be admitted into any port.” And, “ that every vessel that by a false declaration, contravenes the foregoing disposition, shall be seized, and the ship and cargo confiscated, as English property/5 Now, the Amiable Matilda was not coming from England or her colonies. Besides, it is a mere municipal regulation of France, excluding vessels, under certain circumstances, from entering into French ports.
    The 1st and 2d articles of the Milan decree declare, “ that every ship, to whatever nation she may belong, that shall have submitted to be searched by an English ship, or to a voyage to England, or that shall have paid any tax whatever to the English government, is thereby, and for that alone, declared to be denationalized, to have forfeited the protection of its king, and to have become English property.” And, “ that if the ships thus denation- . alized by the arbitrary measures of the English government,-enter our ports, or those of our allies, or whether they fall into the hands of our ships of war or our privateers, they are declared to be good and lawful prize.”
    The word search, in the law of nations, is a technical term. It is the exercise of the right claimed by the belligerents to examine and search neutral vessels, in order to ascertain, whether there be enemy’s property, or contraband goods on board. The Amiable Matilda was never searched, but merely boarded. She was not bound to England, nor had paid any tax to the English government ; she was not, therefore, liable to condemnation under this decree. If this be correct, then the fear of the master was groundless.
    If the doctrine contended for by the assured is to prevail, within what bounds is the master to be circumscribed, in the exercise of his discretion ? Suppose, that on the day after he left Nexu-York, he had met vessels from the Mediterranean, or Europe, who informed him, that if he proceeded he would be liable to capture ; nay, sup,-, pose that he was so informed while in the port of New-York, would he be allowed to abandon the voyage, and the insured entitled to recover for a total loss ?
    
      
      Golden and T. A. Emmet, contra,
    1, The peculiar planee, in the Neny-Yo-'k policies, requiring proof of interest and loss to be exhibited to the insurers, thirty days before any action is commenced, has been frequently under the consideration of the court. All that is required is reasonable evidence; not full and legal proof of loss. And letters from the master have been deemed sufficient. The protest of the master is not legal evi(dence at the trial; it ought not, then, to be held indispe'nsable to the prelintinary proof. Proof of interest is not always made under oath. The exhibition of the original invoice and bills of lading have been held sufficient for that purpose.
    2. It is objected, that the cause of abandonment assigned by the letters of the master, is different from the one stated in his deposition, read at the trial. The letters not only state the danger of capture, while proceeding from Gibraltar to Barcelona, but also, that Barcelona was occupied by French troops, and, consequently, a certainty of being seized and condemned there. The abandonment refers to the letters generally, and the plaintiffs have a right to recover on all the grounds stated in those letters. There are three distinct circumstances; 1. That Barcelona was occupied by French troops; 2. That French and Spanish privateers swarmed in the Gut of Gibraltar, and were capturing all vessels they met with; 3. The French and Spanish decrees, which were rigidly enforced. The declaration avers all these circumstances as the cause of abandonment and loss. Under those decrees the Amiable Matilda was liable to capture and condemnation. She had been searched by a British ’cruiser, and had gone into a British port. It was not necessary that the hatches should have been broken open, and the cargo overhaled, to constitute a search or visit, in the sense of those decrees. The examination of the ship’s papers, and endorsing her register, was an act of search.
    
    
      Then, were not the fears of the master well founded ? j£ so? the abandonment of the voyage was justifiable. One of the perils insured against is, the “ arrest or detainment of princes,” &c. These words are not confined to actual capture and detention. Restraint has a larger and more extensive sense : it is a prohibition by a power having competent authority and means to enforce, such prohibition, in case of disobedience ; as in case of an embargo or blockade. It is possible that the vessel may evade an embargo, or elude a blockading squadron; but she is not bound to make the attempt'; it is enough, that the prohibition proceeds from a power able to enforce its observance.
    The case of Hadkinson v. Robinson does not touch the present. The declaration in that case did not aver, that the shutting the port of Naples was a hostile measure, and not a mere municipal regulation. Judge Livingston, speaking of that case, says, the only point determined was, that if a perishable cargo be sold at a loss, at an' intermediate port, in consequence of advice received, during the voyage, of the port of destination being shut by the government of the country, it is not a total loss within the policy.” The case goes no further than a denial of entry, with the additional circumstance of the goods being perishable.
    Judge Livingston also observes, in giving his opinion in the case of Schmidt v. The United Insurance Company, that the voyage may be abandoned, if the master “ has good reason to apprehend, that capture will be the' consequence of going on;” and he adopts the language of Targa and Casaregis, that “ a just fear is a kind of vio-, lence;” that “ fear, credulity, or even the error of the master,” will excuse him for abandoning his ship. In the present case, the plaintiffs prove, not a mere apprehension of danger, but an actual and existing danger, arising from the great number of cruisers and privateers in the Gut of Gibraltar.
    
    
      It seems to be considered by the defendants’ counsel, that the master is bound to proceed, at all events, and encounter every peril enumerated in the policy. But this is unreasonable, and against the interest of the insurer. Suppose, after the vessel has commenced her voyage, a war should break out between the two countries ; must the vessel proceed until she is captured ?
    In the case of Speyer v. The United Ins. Co.† the counsel for the defendant say “ the insured, knowing of the prohibition of the French government, was not bound to proceed to France, but might have put an end to the voyage.”
    In the case of The Marine Insurance Company of Alexandria v. Tucker and others,
      
       the supreme court of the United States, considered the loss of the ship’s register, in consequence of a capture and recapture, as a sufficient cause for breaking up the voyage ,• and that had the captain proceeded, he would have been chargeable with culpable misconduct.
    The point decided in the case of Lubbock v. Rowcroft is the same as that in Hadkinson v. Robinson. In the case of Blackenhagen v. The London Assurance Company, there was, in fact, no interruption of the voyage; and the loss was there laid, in one count of the declaration, to be by the perils of the sea, and in the other, by capture. And that was the case of a temporary embargo at the port of destination.
    The cases stated by Emerigon are for the purpose of showing when a master may abandon his ship, without a breach of his duty. But the abandonment of his voyage, where there is an insurance, is a different case, not governed by the same reason. There is not the same strict necessity in the one case as in the other. The maritime law rigidly requires of the master never to desert his ship, until compelled by superior force. May not the merchant abandon his voyage, for a danger less imminent and pressing, than what would justify a master in abandoning,his ship ? It is a part of the contract of insurance, that when the voyage is not worth pursuing, the merchant may abandon it, and throw it on the insurer.
    In the case of Barker v. Blakes
      
       it was decided, that where a neutral ship bound to Havre, was detained and brought into a British port, and pending the proceedings in the admiralty, the port of Havre was declared to be in a state of blockade, the ship, after being released, was not bound to pursue her voyage to the blockaded port, but that the assured might abandon as for a total loss. What is a blockade ? It is not capture j but a danger of capture. The court of K. B. made no subtile or refined distinctions.- They considered this danger arising- from the blockade, as an impossibility to prosecute the voyage. But, in fact, it is not an impossibility, for the blockading squadron may be blown off, so that the ship might enter the port of destination. This case' and that of Schmidt v. The United Insurance Company, establish the principle, that danger of capture is a ground of abandonment ; that when there is an actually existing blockade of the port of destination, the ship is not bound to proceed to, or go within the line of blockade;: but may abandon the voyage.
    The case of King v. The Delaware Insurance Company has no bearing on the present. There was .no real existing danger in that case; for the port of destination, the Isle of France, was not blockaded ; and the court decided, on that ground, that it was a mere apprehension of danger, where none existed. Judge Washington, it is true, in speaking of the case of Schmidt v. The United Insurance Company, says, that this, court overlooked the case of Lubbock v. Rowcroft, or it would have, probably, shaken the opinion of some of the judges; but the fifth volume of the reports of Mr. Espinasse, which contains that case, was not. published until . .1807, and could not, therefore, have been. known to this court, when the case of Schmidt v. The United Insurance Company,
      
       was decided, any more than the case of Barkers v. Blakes
      
       was known to that learned j udge, wMten he gave his - opinion, in the case of King v. The Delaware Insurance Company. This last case was carried by writ bf error to the supreme court of the United States, who, in giving the judgment; affirming the decision of the circuit court, say, that the Venus did not come within the interdiction of the British orders, of-the 11th of November; and that the endorsing of her register, and the warning given her, by the British officer, was unauthorized, and the information erroneous, so that the master of the Venus knew; or anight have known that no danger, in fact, existed.
    In the case of Lubbock v. Rowcroft, the goods insured belonged to a citizen of Messina, and it is the policy of the British courts; where the violence which produced the loss proceeds from a foreign country, to throw it upon the citizens of that country. But the case of Barker v. Blakes, decided by the whole court of king’s bench, five years after the nisi prius decision of Lubbock v. Rowcroft, completely overthrows the argument of Erskiné; and the hasty opinion given by Lord Ellenboroiigh, in the latter case; for the court expressly say, that danger of capture; arising from the blockade of the port of destination, or quia timet, is a ground of abandonments
    The danger of capture; in transitu, as well as from the French decree, was real and existing; and it was necessary that the ship should wait two or three days, off Bar-' celona, to be lightened, before she could get into port; a circumstance which must have greatly increased the u- danger. Again, there was the danger of hostile capture, and confiscation, in the port of destination. We say, capture; for tips decree is not of the nature of a mere denial of entry; and this court must, in the present or some other case, decide, whether seizures, under these decrees, are mere municipal proceedings and regulations, or acts of hostility. The ship had been searched; a belligerent right had been exercised; and the register was ' endorsed, as the evidence of the exercise of such right» By this act, and the going into Gibraltar, she became liable to seizure and confiscation,. under the French and Spanish decrees. Vessels described in those decrees, are declared denationalized; that is,, they are no longer considered as belonging to a neutral nation, but as hostile and belligerent property, and liable to capture, on the high seas, as enemy’s property. If so, a seizure, in the port of destination, is a hostile act. The danger of loss-is as certain, as it would be in case the vessel should go into an enemy’s port. It is decided, that if the port of destination be actually blockaded, or. in the hands of an enemy, the insured may abandon ; then, why may he not also abandon, when the port is in possession of a power, which has declared she will treat you as an enemy ?
    To every purpose, commercial or political, this vessel was put into a state of war, in regard to the power in possession of Barcelona; not by the act and consent of the plaintiffs,- but by a power which they could not control. A vessel, without any fault of the owner or master, but rightfully and lawfully going.into Gibraltar, is, by a superior power, prohibited from entering her port of destination, undet; penalty of being considered as hos-= tile property, and liable to seizure and confiscation. Can it be said, that it was the duty of the master to proceed, in such a case ? Would it not have been culpable mis con? duct in him to have proceeded, when no good purpose could be attained, and his ship would be liable to seizure and condemnation, had he reached his port of destination ? It was impossible to proceed without imminent and unavoidable peril; and it is against peril that the insurance is made.
    
      Hoffman and Haris on,, in reply.
    Admitting that a danger of seizure in the port of Barcelona existed, that would not justify an abandonment to the United Insurance Company; for there is an express clause in their policy, which provides that they shall not be liable for a seizure in the port of destination, in consequence of having touched at a British port. If the plaintiffs could not abandon, in case of actual seizure or detention, until after six months; a fortiori, they cannot abandon for fear of a seizure or detention. Again, they cannot now rely on the fear of seizure at Barcelona ; for the master expressly says, that he had no fear of seizure there; and that, had it not been for the Berlin and Milan decrees., he would have proceeded.
    The plaintiffs claim for a technical total loss, by reason of a well grounded fear of capture, during the voyage to Barcelona ; or the certainty of a seizure in that port. On the first ground, the fear of peril is substituted for the peril itself. This is a new species of technical total loss. To bring this case within the words, “ restraint of princes,” there must be an actual and forcible detention, as by capture or seizure; or a virtual and legal detention, as by embargo or blockade. A virtual but illegal restraint is not a cause of abandonment. If the decrees of France were municipal regulations, the plaintiffs cannot recover. If they were under the law of nations, and justifiable, then they might abandon : if they were hostile or belligerent decrees, then, war having intervened, the contract was dissolved'; if not authorized by the law of nations, there was no ground for abandonment; for a a neutral cannot abandon for fear of an illegal and unauthorized capture.
    The insured is bound to prosecute the voyage, unless prevented by some of the perils enumerated in the policy. There are certain cases in which he will be1 excused. If a war intervenes, between the country from whence he sails, and that to which he is destined, the contract is dissolved. If an embargo be laid, the contract of insurance is not dissolved ; but the insured may break up the voyage, and throw the loss on the insurer; for it is lawful for every nation to lay an embargo, and it would be unlawful for the master to attempt to break it. So, a belligerent has a right to blockade the portg 0f ys enemy ; and it is unlawful for a neutral to attempt to violate it; that is, an actual and existing blockade. There is not another case, except actual capture, which can justify an abandonment of the voyage. The case of arbitrary and illegal decrees of belligerents, is far different; for it cannot be unlawful to. attempt to evade such decrees. The court, then, must decide on the nature of those decrees.
    We are to presume, that every government will afford redress for illegal and unjust captures. The insured, then, must meet the case, and merit the indemnity, by performing his part of the contract, and prosecuting the voyage. The insured is not to be deprived of the right of resorting to his own government tp obtain redress, and have a ruinous speculation thrown upon his own hands,» Privateers may be ayoided; and were, in fact, avoided by the captain, on his return. There is always a chance of escaping capture. Admitting a probability of-seizure, in the port of Barcelona, it was not certain. These decrees are sometimes executed against one nation, and not another. The caprice of the despotic, ruler of France may have induced a revocation of them, and Spain would have followed his example.. .
    The cage of Barker v. Blakes was that qf a blockade* which it would have been unlawful for the insured to violate.. In Schmidt v. The United Insurance Company, there was also a blockade. We admit, that an actual sei- ' zure or detention, howeyer illegal and unjustifiable, is a just ground of abandonment; but not the fear or apprehension of such a seizure. The insured cannot act op the presumption^ that a nation will do an unauthorized and violent act; qr that, if such act should be done; that it will not be reversed or redressed. Is this court prepared to say that these decrees were legal, and authorized by the law of nations ?
    
      
       1 Johns. Rep. 249.
      
    
    
      
      
         Emerigon, vol. 1. p. 507.
    
    
      
      
        Valin, sur L'Ord. Mar. liv. 2. tit. 1. Du Cap. art. 26.
    
    
      
      
        Emerigon, vol. 1. p. 594.
    
    
      
      
         5Esp. Cases}
      
    
    
      
       1 Campbell’s N P Cases, 154. and note. Park, (6 ed.) 226, 227.
    
    
      
      
        MS. case. See note to Condy’s edition of Marshall on Insurance, vol. 1. p. 81. 220.
    
    
      
      10 East’s Rep. 530.
    
    
      
      
         Talcott v. Mar. Ins. Co. 2 Johns. Rep. 136. Lenox v. United Ins. Co. January term, 1802. 3 Esp. Cases, 242.
      
    
    
      
      
         1 Johns. Rep. 183. 187.
    
    
      
      
         3 Bos. & Pull. 388.
      
    
    
      
       1 Johns. Rep. 264.
    
    
      
       3 Cranch's Rep. 396. 307.
    
    
      
       9 East, 285.
    
    
      
       1 Marshall, 2. (ed. by Condy,) p. 220. in note.
      
    
    
      
       1 Johns. Rep. 249. May, 1806.
    
    
      
       April, 1809.
    
   Kent, Ch. J.

delivered the opinion of the court.. An objection was made to the-sufficiency of the preliminary proof which accompanied the offer to abandon. It was said that the protest of the captain was a necessary document which ought to have been communicated. It is a sufficient answer to this objection, that the abandonment Was made before the arrival of the ship at Nexv-York, and, consequently, before the plaintiffs were in possession of any protest.

The preliminary proof consisted of an affidavit of two of the plaintiffs, as to the interest, and of three letters of the captain, which contained the information of the warning given by a British cruiser, of the orders in council, of the cause of going into Gibraltar, and the subsequent leave to depart, and of the existence of the French and Spanish decrees. When the captain, after-wards, in his deposition, which was read upon the trial, assigns, as the reason for breaking up the voyage, the apprehension of capture, in going from Gibraltar to Barcelona, the danger must have been understood to arise from those decrees authorizing the capture. The variance was not essential, in substance, between the cause assigned in the deposition and in the preliminary proof, and if there be any variance, the party must undoubtedly be confined to that which was assigned to the defendants, as the justifiable pause of abandonment.

It becomes unnecessary for me to dwell upon this point, and I proceed to consider the important question, whether the existence and notice of these decrees, under the circumstances in which the ship was placed, at Gibraltar, when the <;aptain broke up the voyage, created a technical total loss within the policy.

The peril, if any, arising from the decrees, consisted either in the danger of capture, in the passage to Barcelona, or of seizure and confiscation after arrival there.

I have no idea that the apprehension of capture in, transititj between Gibraltar and Barcelona, afforded a justifiable ground of abandonment. That proposition is destitute of authority. It would lead to inconvenient and extravagant consequences, and confound all distinction between imaginary or apprehended danger, and danger present and palpable. In the cases cited by Emerigon, (tom. 1. 507 to 512.) in which a just fear of one of the perils insured against; was held equivalent to force majeure, and sufficient to charge the loss upon the insurer, the danger was imminent, apparently remediless, and morally certain. Targa says, that a just fear is a species of violence and justifies an abandonment of the ship; and Emerigon admits . the same thing. But the cases which are given, by way of illustration, explain what is meant by a just fear. It is a fear of being made a slave, or a prisoner, or of perishing in a case of extremity, or when defence Becomes impossible. Thus the barque Notre Dame des Reliques, in coming from Cahdia, was met and pursued by a Turkish vessel of war, and the captain and crew, to avoid capture and slavery, (for the vessel had been carrying- warlike stores to a place besieged by the Turks,') abandoned the vessel, and the insurers were finally, upon appeal, condemned to pay the loss. So, also, the Marie- Therese was stranded on the Barbary coast, and the crew, after labouring to relieve the vessel; abandoned her, for fear of being discovered by the subjects of the king of" Morocco, with whom France was then at war. The vessel afterwards floated, and was recovered, and the insurers were held responsible. for a proportion of the salvage. Again, the pink Jesus-Maria struck upon a rock, and the captain and crew, fearing to perish, escaped to the shore ; a flaw of wind afterwards relieved the, vessel, and she was conducted into port. This was held to be a case of just fear, and equivalent to the vis major, and the insurer was chargeable with the loss. On the other hand, a difieren decision was made in the ease of the St. Louis, (1 Emerig. 594.) which being much injured by tempests, on a voyage from Marseilles to Martinique, put back to Marseilles, and was abandoned to the insurer, on the ground that the, ship returned from the fear of becoming alto-A gether innavigable, and of shipwreck. The right of recovery was denied; because the incompetency of the vessel had not been pronounced by the competent tribunal, and because the fear of misfortune was not the misfortune itself.

In Lubbock v. Rowcroft, (5 Esp. N. P. 50.) Lord Ellenborough held, that an abandonment, from an apprehension of capture, was not- warranted by the policy; and this principle has received the sanction of Judge Washington., in the case of King v. The Delaware Insurance Company. There cannot be much doubt as to the correctness of the general rule. The only difficulty consists in the application of it to different cases. In one of the cases already mentioned, the vessel was abandoned, from an apprehension of capture; but the danger was so near and so certain as to be equivalent to violence, and to justify the assured. I should doubt, also, of its application in the very case of Lubbock v. Rowcroft; for if it be discovered that the port of destination has fallen into the hands of an enemy, the danger of the voyage becomes imminent and certain. The voyage is broken up by actual £i restraint of princes.” It would be equally absurd and unlawful to pursue it. But, in the present case, the danger of capture, in transitu, was only contingent. There was no reasonable certainty of capture. A belligerent vessel might always be abandoned on that ground, without venturing on the ocean ; for to such vessels, there is always more or less danger of capture, as there is of shipwreck. It is this very risk which the assured must encounter, and against which the insurer is to indemnify.

But I dismiss this point, which it was unnecessary ever to touch; because the danger "of intermediate capture does not arpear to have been stated, to the defend? ants, as a substantive ground of abandonment; and th6 plaintiffs must confine themselves to the reasons communicated to the insurer; for on them alone was the insured called upon to judge and to act.

The only danger, if any, that could support the abandonment, was the danger of seizure at Barcelona, under the Aranjuez decree; and I think.it would be going too .far, and beyond any precedent, to adjudge that cause to be sufficient.

This is not the case of an “ illicit or prohibited trade,’* within the exception in the policy. If the defendants are exempted from the loss, it is upon more general principles.

• If the port of Barcelona had been absolutely interdicted, so that the prosecution of the voyage to a conclusion, had become impracticable, or been attended with a moral certainty of seizure and loss, I should have deemed it equivalent to actual restraint, to the existence of a vis major breaking up the voyage; and that the plaintiffs had ground for their claim. An interdiction of commerce with the port of discharge, happening after the •commencement of the risk, authorizes the assured to discontinue the voyage, and return at the risk of the insurer. (1 Emerig. 544.) And in the case of Schmidt v. The United Insurance Company, (1 Johns. Rep. 249.) it was decided in this court, that a blockade of Hamburgh, the port of destination, commenced and existing, hi fact, after the voyage had begun, and duly notified to the insurer; after he had arrived on the English coast, was á “ restraint” within the policy ; and, if I am not mistaken, the case of Barker v. Blakes (9 East, 283.) establishes the same doctrine. When such restraint actually exists, and is ascertained to be effectual, and no doubt arises of its being exerted, it would be most unreasonable to require the assured to go on, and submit to the experiment of a capture, or the imminent hazard of the attempt. It would be fatal to the interest of all concerned. It would be against the duty of the assured, and he would be placed under a moral inability to do it. I admit the good sense of the rule, that the assured shall not abandon quia timet, in cases in which the danger is remote or contingent, as where storms, cruisers of an enemy, or pirates, threaten a vessel, in transitu. But I do not perceive the fitness of its application to cases, in which the port of destination is discovered, and duly ascertained, in the course of the voyage, to be shut, by being in possession of an enemy, or by interdiction of trade, or by a blockade. The restraint is as much felt, and operates as effectually, as if the vessel was actually seized. The act of entry, and the attempt to do it, become unlawful.. It is as unlawful to rush into the arms of an enemy, with your property, as it is to break a blockade, or force an entry into a port, when an entry is prohibited by the sovereign of such port. There may. be doubts, as to the terminus a quo, or from what point the voyage is to be abandoned, and what species of demonstration of the danger, the assured ought to require. But assuming the fact of the existence of such an impediment, and of the reasonable certainty, that it would he made effectual, to the loss of the subject insured, the, assured is justified in giving up the voyage and calling on the insurer to indemnify. It amounts to a loss of the voyage. No deviation can help the party, for the peril existed at the port of discharge; and if the restraint is not limited, or transient, the spes recuperandi, as to the voyage, is as much gone, as if the vessel was detained, in the course of her voyage, by an embargo or capture. I am aware that some late cases (Hadkinson v. Robinson, 3 Bos. & Pull. 388. Lubbock v. Rowcroft, 5 Esp. N. P. 50. Blackenhagen v. London Insurance Company, 1 Campbell's N. P. 450.) go very far towards denying this right to the assured, if an English enemy creates the impediment; but in this respect, I cannot, at present, concur in the distinction which they seem to assume, and when the vase arises I shall choose to give it further consideration.

In the present case, however, I do not think that the port of Barcelona was shut, so as to bring the case within the reach of the principle. It was not shut generally, or absolutely, against American vessels. There was no general interdiction of trade with that port. The Spanish decree of the 3d of January, 1808, which operated at Barcelona, applied only to neutral vessels, under certain special circumstances; and whether the Amiable Matilda came within the operation of that decree, was a matter of uncertainty, depending upon the judicial construction which the decree might receive, in its application to that case.

The Milan decree, of the 17th of December, 1807, did not, by the terms of it, apply to the case; for it only applied to ships, which “ should have submitted to be searched by an English ship.” The Amiable Matilda did not submit to be searched. She was only brought to, and boarded, by an English cruiser, and her register-endorsed. Whateyer presumption that fact might afford of a search; yet it was not true, in fact, and the presumption was capable of being destroyed by positive proof. The Spanish decree was broader in terms, for it applied to every vessel, ‘f which might have been vzV sited by an English ship.” But this decree, professed to be grounded on the Milan decree, and to adopt “ the same measures.” It accordingly follows that decree, in almost its very words ; and if it deviates in any minute particular, it is, probably, owing to the difference of language, and the changes in translation. It must be considered in pari materia, as part of the same system, as a commentary on the same text, and as, by no means intended to have a more extensive or rigorous operation.

It was, therefore, doubtful, whether the Amiable Matilda could, by any sound judicial decision, have been adjudged liable to seizure and confiscation, at Barcelona, under the Aranjuez decree. But to make out a just ground of abandonment from this decree, it ought to have been certain that the decree applied to the case of this very ship; and it ought to be equally certain, that it would have been put in force against the ship, had she arrived at Barcelona, and before she could have anchored 24 hours, in good safety. If there existed a reasonable doubt of danger in both, or in either of these respects, the case did not amount to that just fear, which the authorities cited by Emerigon, consider as equivalent to the application of physical force and violence. I cannot consider the danger of arrest and restraint at Barcelona, from this decree, to have been so certain and manifest, as to be, in any degree, a substitute for the arrest itself. It is well known to the world, that the Spanish decree was not a spontaneous measure, on the part of Spain. It was presented by a master, who had just traversed the continent, from the Baltic to the Mediterranean, occupied in the business of dictating laws, as well as of extending his conquests. The decree contains, upon the face of it, the marks of a constrained obedience ; for it avows, in the preamble, that “ I will, that there be adopted, in all my dominions, the same measures, which my intimate ally has adopted.” Such an extraordinary measure as this Aranjuez decree, followed the Milan decree in 17 days, which was not much more than time enough for a communication between the one place and the other. It was not, therefore, to be expected, that a decree, violating every principle of law and justice, enacted in such haste, and made in subservience to the policy of an ally, and against the obvious policy of Spain, would be very scrupulously observed and enforced. A strong sense of interest would operate steadily to impgjg j^g execution. The decree admits, that the system which it adopts is “ barbarous, and assimilated to the legislation of Algiers.” The party ought, then, to have for proof of a practical application of the decree tó a .case like his, before he undertook to break up the voyage. No presumption ought, in decency, to be admitted, to supply the evidence of facts. Every presumption ought to have been indulged, in favour of the non-execution, or, at least, the most benign interpretaof this decree fay the admiralty courts in Spain. The captain, himself, did not consider the danger of arrest, at Barcelona, under the decree, as worth regarding; for he declares, that he broke up the voyage, from the danger of intermediate capture, and was persuaded, that if the vessel had arrived at Barcelona, the vessel and cargo might have been protected and saved, notwithstanding the decrees.

We are, therefore, of opinion, that the voyage was not broken up for any justifiable cause, or peril within the policy. The verdict is, consequently, against law, and must be set aside, with costs to abide the event of the suit.

New trial granted. 
      
       The Spanish word visita and the French visite, mean precisely the same as the English word search, a species of judicial inquiry, or a formal act of search, in regard to ships, exercised, under the law of nations, by belli" gerents, towards neutrals. But there is a difference of opinion among writers on the law of nations, as to the manner in which the right of search is to be exercised. Hubner (De la saisie des Batimens neutres, c. 3. s. 5, 6, 7, 8, 9.) is of opinion, that it ought to be confined to an examination of the ship’s papers; and the mode of search has been regulated in numerous treatises. (Sec 2 Azuni's Marit. Law, 201—220. c. 3. Vattel, b. 3. c. 7. s. 114.)
     
      
       Since the decision of the above causes, I have met with the case of Forster and others v. Christie, (11 East, 205.) in the court of K. B. A British ship was insured from Midi to St. Petersburgh ; and having sailed, under convoy, to the Sound, was, afterwards, stopped in her course, by a British ship of war, in the Baltic, from an apprehension of hostilities with Russia, for 11 days; and then proceeded to a point of rendezvous for convoy; until the officer of the ship of war received intelligence, that a hostile embargo was laid on British ships, at Si. Petersburgh, when he ordered the fleet back to the place of>rendezvous, from whence the ship returned to Mull. It was held, that the loss of the voyage was not attributable to the arrest or detainment of princes, &c. hut immediately to the fear of the hostile embargo, in the port of destination, and, therefore, not within the policy; though, if the ship had not been detained, in the first instance, by the officer of the ship of wav, she would have arrived at St. Petersburgh, in time to have delivered her cargo there, before the embargo was laid.
     
      
       3 Johns. Rep. 92.
     