
    [Philadelphia,
    January 3, 1820.]
    THOMPSON against READ.
    Insurance on goods at and from Teneriffe to Sourabaya, and thence to Philadelphia, by a policy insuring, among other risks, against “ all unlawful, arrests, restraints, and detainments of all kings, princes,” &.c. and containing a warranty, by the insured, of neutrality. The ship being between sixty and one hundred miles from Sourabaya, was boarded by an officer of a British frigate, belonging to a squadron then blockading the island of Java, and warned not to enter any port in the island of Java or Madura. On the following day the vessel made another attempt to enter the port of Sourabaya, when site was chased off and again taken possession of by the same frigate, and, after a detention of three days, dismissed, with orders to depart immediately, and an assurance that if again found hovering on the coast, the ship would be captured and the crew impressed. She proceeded to the Isle of France, to refit, &c. and then returned to Philadelphia. Held, that if the word “unlawful’ had not been introduced into the policy, the blockade would have been a restraint of princes, &c., which would have entitled the insured to recover for a total loss.
    Tins action was brought oil a promissory note drawn by the defendant for five thousand one hundred and one dollars, and twen-iive cents, dated April 28th, 1812, payable on demand to the order of Archibald M‘Call, by whom it was endorsed in blank. The plea was payment,'with leave to give the special matter in evidence. Under this plea notice was given, that on the trial, the defendant would give in evidence, “That the note was given by William Read, as drawer, and Archibald M‘Call, as endorser, to pay and indemnify to the plaintiff a certain premium of insurance, which he alleged he had caused to be effected on goods belonging to the said William Read and Archibald M‘Call, and others on board the ship Cordelia, at and from, &c.: that the said goods were totally lost on the said voyage, and that the plaintiff so negligently and improvidently effected the said insurance, and effected the same with such unauthorized limitations of the risks which underwriters usually run, that the said MlCall, Read, and others, were, in consequence thereof, without remedy for such their loss, and have derived no benefit from the insurance so effected.”
    The note was given for the amount of a premium of insurance effected by the plaintiff by order of the defendant and others, with the Marine Insurance Company of Baltimore, on goods on board the ship Cordelia, at and from the island of Teneriffe to Sourabaya, in the island of Java, and thence to Philadelphia, at a premium of twenty-five per cent. The policy contained the usual risks, except that before the words “ arrests, restraints, and detainments of kings, princes,” &c. the word “ unlawful” was inserted, so as to make it read “ unlawful arrests, restraints, and detainments,” &c. The policy also contained a warranty of neutrality.
    The voyage was defeated, under the following circumstances:
    The Cordelia sailed on the 5th of April, 1811, from Orotava in the island of Teneriffe, and nothing material occurred until the 18th of the following July, when, at two o’clock A. M., being from sixty to one hundred miles distant from Sourabaya, she was boarded by an officer from the British frigate Sir Francis Drake, then within hail. The captain of the Cordelia was taken on board the frigate, with his papers, which, by order of Admiral Stopford, then commanding a blockading squadron, were endorsed by the captain of the frigate, with a warning not to enter any port in the islands of Java or Madura. On the 19th, the Cordelia made a second attempt to enter Sourabaya, but was chased off and again taken possession of by the same frigate, and, after a detention of three days, dismissed, with orders to depart instantly, and an assurance that if she should be again found hovering on the coast, the ship would be captured and the crew impressed. She then proceeded to the Isle of France, to refit and take in provisions and water, and then returned to Philadelphia.
    
    On the arrival of the Cordelia in Philadelphia, the assured abandoned and claimed for a total loss. , The insurers refused to pay the loss, upon which a suit was brought against them in the Circuit Court of the United States for the Maryland district, which was decided, on the charge of the court, in favour ,of the defendants, on the ground that the insurance being only against unlawful arrests, restraints, and detainments of kings, princes, See., and the blockade which occasioned the failure of the voyage being lawful, the loss was not covered by the policy. The cause was removed, by writ of error, to the Supreme Court of the United States, who affirmed the judgment of the Circuit Court.
    This cause was tried at a court of nisi prius, held by Judge DuttcaN, on the 29th of November, 1819, when two points were made:
    First. Whether, if the policy had not contained the word “unlawful,” the insured could have recovered?
    Second. Whether, if the introduction of- that word alone, prevented a recovery on the policy, the defect in the insurance was the result of such a want of attention or skill in the plain’&ff, as the agent of the defendant, as would make him answerable ?
    The jury found a verdict for the defendant, his honour having reserved the law arising upon the first point.
    
      Binney and Chauncey, for the defendant,
    referred to Schmidt V. The United States Ins. Co., 1 Johns. 249. Craig v. The United States Ins. Co., 6 Johns. 226. Salters v. The United States Ins. Co., 15 Johns. 523. Hadkinson v. Robinson, 1 Marsh. 219. Lu-beck v. Rowcroft, 1 Marsh. 220. Barker v. Slakes, 9 East, 283. MlCall y. Marine Ins. Co., 8 Cranch, 59. Oliveira v. Union Ins. Co., 3 Wheat. 183.
    
      Rawle, jun., and Rawle, for the plaintiff,
    cited Blackenhagen v. The London Ins. Co., 1 Campb. 454. 1 Val. b. 3, tit. 1, ch. 8,p. 627. Richardson v. The Marine Ins. Co., 6 Mass. Rep. 102. King v. The Delaware Ins. Co., 1 Marsh. 222, (note.) Marine 
      
      Ins. Co. v. Wood, 6 Cranch, 46. 1 Marsh. 435. 2 Marsh. 515, 534. Parker v. Tunno, 838, 9, (notes.) Setón v. Low, 1 Marsh. 79, (notes.) Calbraith v. Grade, Id. 437. Elton v. Scott, Id. 207. The Phoenix Ins. Co. v. Pratt, 2 Binn. 308, 324. Brown y. Union Ins. Co., 12 Mass. Rep. 170.
   The opinion of the court was delivered by

Tilghman, C. J.

The plaintiff was employed by the defendant, as an agent to effect insurance on goods on board the ship Cordelia, on a voyage at and from Teneriffe to Sourabaya, and at and from thence to Philadelphia. Insurance was effected accordingly, and the promissory note on which this suit was brought was given by the defendant, to indemnify the plaintiff from loss, by his responsibility for the premium of insurance. The defence set up against the plaintiff is, that through his negligence the insurance was made in so improper a manner that the defendant derived no benefit from it, although, the goods were lost. The fault in the insurance was this: — instead of insuring, as usual, against all losses by arrests, restraints, and detainments by kings, princes, &c., the insurance was only against all unlawful arrests, restraints, &c. The goods were lost, in consequence of the port of Sourabaya being blockaded by a British squadron; but the blockade being lawful, it was decided, in a suit brought against the insurers,that the insured could not recover. But the plaintiff contends, that under the circumstances of this casé, the insured could not have recovered if the policy had been drawn in the usual way, that is to say, if the word unlawful had been omitted. Whether, in such case, the insured could have recovered is the question to be now decided. The Cordelia having sailed on the voyage insured, had got within twelve hours’ sail of her port, when she was boarded by a British ship of war belonging to a squadron blockading the island of Batavia, and forbidden to enter. In consequence of this, the master relinquished the voyage and proceeded to Philadelphia, upon his arrival at which place the insured abandoned.

The plaintiff’s counsel insist, that there was no loss by any peril insured against, that there was neither capture, arrest, restraint, or detainment; but the voyage was relinquished merely from the fear of capture.

The question is new in this court, and not without difficulty, nor can it be said to be settled either in England or the United States; for judges of great eminence have held different opinions. The general principle is agreed, that if the voyage is relinquished merely through fear of capture, the loss is not covered by the policy; but it is held by some, that if the danger is so great as to amount almost to a certainty of capture, it is a peril for which the insurer is responsible, a restraint within the meaning of the policy. That this should be the law, is certainly for the interest of all parties: if the voyage is abandoned, the property is sayed and ceded to the insurers; but what advantage can it be to them for the Insured to rush into danger with the certainty of loss? There seems to be a difference between arrests, restraints, and detain-ments. An arrest operates immediately on the subject arrested, so does a detainment; for it supposes the subject detained to be in the hands of the detainer. But there may bé a restraint where the subject restrained is not in the hands of the restrainer. Capture includes an arrest. Capture, strictly speaking, is generally made for the purpose of condemnation; but neutrals are often arrested and carried into port for the purpose of investigation. An embargo is a detainment, as well as a restraint. But a blockade may be a restraint without arrest or detainment. In the case before us, there was more than the restraint of well grounded fear. The ship was in the hands of a British cruiser, and thus prevented by actual force, from entering the port of Sourabaya. This force was indeed withdrawn, but only for the purpose of suffering the ship to go on a different voyage. The blockade was continued with a force sufficient to prevent an entry, and this was certainly a strong and effectual restraint. It would seem therefore, upon a fair construction, this loss fell within the scope of the policy, unless the meaning of the word restraint had been otherwise settled-by adjudged eases. I do not know, that in the English books a case is to be found exactly like the present. In Hadkinson v. Robinson and Lubeck v. Rowcroft, cited in 1 Marsh. 219, 220, the ship stopped at a port short of the port of destination, and there gave up the voyage on receiving intelligence that the destined port was shut against her. But there was no force actually applied. It was decided that these losses were not by any peril insured against. In Barker v. Blakes, an American ship being bound to a French port, was taken and carried into England, and, while detained there, information was received that she could not enter the French port. Being afterwards restored by a decree of the English court, it was held that the loss was within the policy. But it was not decided how the law would have been, if the ship had not been carried into England, but relinquished the voyage on hearing that the port to which she was bound was shut against her. In Blackenhagen v. The London Insurance Company, 1 Campb. 454. Marsh. 838, note 135, an English ship bound to Revel, altered her voyage on hearing that a hostile embargo was laid on English ships in all the ports of Russia. Held, that the insurers were discharged whenever the voyage was altered, because fear of capture was not a peril within the policy. In Parker v. Tunno, Marsh. 839, an English ship was insured for Monte Video, or any other port or ports in the river Plate, in the possession of the English. When she arrived in the river Plate, Monte Video, and every other port except Maldonado, was in 'the hands of the enemy (Spain,) and the English commander of Maldonado ordered the ship immediately away, whereupon she proceeded straight to Rio Janeiro, the nearest friendly port, It was held that the insurers were discharged, because they hi ’ insured no other voyage than to some port in the river Plate. These are all the English cases which seem to bear on the point. None of them come exactly up to ours, because in none of them was the ship prevented by actual force from pursuing her voyage. Yet I should rather suppose, from the reasoning of the judges, that they inclined to the opinion, that even if there was a boarding for the purpose of giving notice of an embargo, and a consequent relinquishment of the voyage, this would not constitute a loss covered by the policy. This was the decided opinion of the Circuit Court of Massachusetts, as appears by the opinion delivered by the late Chief Justice Parsons, in Richardson v. The Marine Insurance Company, 6 Mass. Rep. 102; and that court still adheres to the same opinion, as we see in the case of Brown v. The Union Insurance Company, 12 Mass. Rep. 170. But the contrary opinion is as decidedly held by the Chief Justice of New York, as appears by the cases of Schmidt v. The United States Insurance Company, 1 Johns. 249, and Salters v. The United States Insurance Company, 15 Johns. 523. Between such respectable authorities of our own country, it would be hard and unpleasant to decide, were we not relieved by a decision of the Supreme Court of the United States, which turns the scale. I allude to the case of Oliveira v. The Union Insurance Company, 3 Wheat. 183, where the contested principle was brought fully before the court, and directly decided. The United States and Great Britain being at war, and Spain neutral, a Spanish ship bound outward was turned back by a British squadron blockading the bay of Chesapeak. It was decided, that this was a restraint within the meaning of the policy. Chief Justice Masshalu, by whom the opinion of the court was delivered, after saying that a blockade was a restraint, adds, that “ where a vessel attempting to come out is boarded and turned back, this restraining force is practically applied to such vessel.” He also says, (speaking of a vessel prevented from entering a blockaded port,) “but if, in attempting to pass the blockading squadron, the vessel is stopped and turned back, the force is directly applied to her, and acts directly and not circuitously.” It appears, then, that the weight of authority in our own country, supports what we take to be the true meaning of the word restraint. The Cordelia, therefore, lost her voyage by a peril insured against, when she was boarded and turned back from the port of Sourdbaya. What she did afterwards, was for the benefit of the insurers. But it is contended further, on behalf of the plaintiff, that his case case is strengthened by the warranty in this policy, that the property was neutral, in consequence of which the insured was obliged to conduct himself as a neutral throughout the voyage, and could not have attempted to break the blockade without a breach of warranty. It is true, that the in-saved was bound to conduct himself as a neutral, but it does not follow that therefore the insurer was discharged from the peril of blockade. The insured engaged that he would not break the blockade, but he did not engage that he would bear the loss resulting from the blockade. In the present instance, it is to be presumed that he did nothing against the duties of neutrality, or the cruiser who boarded him would have made prize of him. Suppose the Cordelia had been seized, on suspicion of being loaded with property of the enemy, and ordered to a British port for adjudication, it would have been her duty to make no resistance, but the insurers would have been liable for the loss. I cannot perceive, therefore, why the insurer should be discharged in the present case, because the insured was bound not to- break the blockade. The warranty still answered a valuable purpose. By preventing the breach of the blockade, it saved the property of the insurer.

It is the opinion of the court, on the whole, that if the word un~ lawful had not been inserted in the policy, the insured might have recovered on it; and therefore judgment should be entered for the defendant.

Judgment for the defendant.  