
    Oliver Simpson vs. The Charleston Fire and Marine Insurance Company.
    Under the risks enumerated in a policy of insurance of slaves, against “ arrest, restraints, and detainments, of all kings, princes, or people, of what nation, condition, or quality soever,” was held to be included the the issuing of a writ of habeas corpus by a judicial officer of a government, within the control of which the vessel was driven by stress of weather, and by which writ the slaves were taken from the vessel and set at liberty.
    BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.
    This was an action on a policy of insurance of thirty-eight slaves, valued at twenty thousand dollars, belonging to the plaintiff, shipped on board the Enterprize, from Alexandria, in the district of Columbia, to Charleston, South Carolina.
    Eor such a voyage, the crew and the passengers on board, from twenty to twenty-five days’ provisions ought to be laid in. The vessel sailed from Alexandria on the 22cl January, 1835; on the 30th, she left the capes of Yirginia — immediately thereafter, she encountered heavy gales, which drove her off her course — and, as was proved by the captain, his mate, and two passengers, they were driven far beyond the Gruff stream; that the vessel was injured in her rigging and sails, and had sprung a leak in consequence of the storms; that it was impossible to reach any port in the United States, and especially her port of destination, from the state of the weather, the condition of the ship, and tbe probable want of provisions before they could have reached Charleston. In consequence of this, on the 5th February, the captain bore away for Bermuda, and on the 11th came to anchor in the port of Hamilton.
    The log book of the voyage was produced, and condemned by Captains Wellsman and Lacoste, as badly kept; the main objection to it, however, seemed to be, that the distances made by the ship each day, were not set down, except the first; in the same book, the log of the first voyage of the Leonidas, commanded by Captain Smith, (the captain of the Enterprise) was highly commended by these witnesses. Several other voyages of the Leonidas, and one of the Enterprize, before the one now in hand, were set down in the book in the same way with the one before the Court. Captain Wellsman and Lacoste said, that on the 5th of February, when the Enter-prize bore away for Bermuda, she was nearly in the latitude of Charleston, not being more than twenty miles north of it; her longitude could not be ascertained. On the log book was mentioned, on a day previous to that on which the Enter-prize bore away for Bermuda, that a vessel from New Orleans to Baltimore, (the barque), had been spoken. Captain W ells-man thought, from the prevailing winds, that that vessel was probably driven out of the Gulf stream; Captain Lacoste thought she was in the Gulf stream when spoken by the Enterprize; if so, the latter was much nearer then to Charleston than to Bermuda. Captains Wellsman and Lacoste thought most of the winds registered in the log book, from the 30th January to the 5th February, were fair for Charleston ; but they spoke of the winds with which each day’s log was headed, in the margin: the account given in the body of each day’s log, showed that the winds were various, and and generally in squalls.
    On the 5th of February the entry in the log book was, as to provisions, "short;” the same fact was mentioned in the protest, and return to a writ of habeas corpus. Mr. Tucker, the consular agent, stated, on the 12th of February, to the officers of the custom house in Hamilton, that the slaves were in want of provisions. Captain Smith had been ten years a sea captain. The captain, his mate, the two passengers, all concurred in saying, that when they sailed from Alexandria, they had thirty days’ provisions on board; that a part of their provisions were washed overboard in the stress of weather which they encountered; that it was in consequence of this accident, and the fact that they were driven far from their port of destination, and were baffled in all their attempts to reach it by head winds, that their provisions were short.
    Soon after they reached Hamilton, the vessel was seized or detained by the officers of the custom house; while thus detained, and while she was refitting, a writ of habeas corpus was issued by the Chief Justice of Bermuda, directed to Captain Smith, requiring him to bring before him the seventy-eight slaves on board his vessel, the Enterprise; he obeyed the writ, and the slaves were told by the Chief Justice that they were free, and at liberty to remain if they chose. All except six (not included in this policy), chose to remain, and were discharged from the custody of the captain. With the six, who chose to come with him, the captain, after repairing his vessel, reached his port of destination. The assured gave notice of the loss to the company, who declined to pay it.
    The question was submitted to the jury, whether the vessel was seaworthy, tight, and staunch, and well found in provisions, and a skilful and competent crew.
    The presiding Judge ruled, that under the risks enumerated in the policy, viz: “arrests, restraints, and detainments of all kings, princes, or people, of what nation, condition, or quality soever,” the bringing up of the slaves, under the writ of habeas corpus, and the discharge of them lay the Chief Justice of Bermuda, was included.
    The act done was under and by the authority of the government of Bermuda — and was, therefore, the act of the people, which means nothing more than “ the supreme power of the country.” So, too, the act was to be regarded as done by the king of Great Britian, inasmuch as the government of Bermuda emanated from him, and was administered in his name, and by his authority.
    The jury found for the plaintiff.
    The defendants appealed, on the following grounds:
    
      1st. That the evidence showed that the vessel was unsea-worthy for want of provisions.
    2d. That the evidence showed that the vessel either was not tight and staunch when the insurance was effected, or that she was too deeply laden, and therefore not seaworthy.
    3d. That the ignorance and incapacity of the captain and mate, as appeared by the evidence, amounted to unseaworthiness in the vessel, and that on these three points the verdict is erroneous, and ought to be set aside.
    4th. That his Honor erred in charging the jury, that the facts proved amounted to an “ arrest, restraint, or detainment, of any prince, potentate, or people.”
    5th. That if there was no arrest or detainment, within the meaning of the policy, the loss was occasioned by an escape, which was an excepted peril.
    6th. That the charge of the presiding Judge, and the verdict of the jury, were, in other respects, contrary to law and evidence.
    
      Henry Grimke, defendants’ attorney.
    
      Petigru and Lesesne, plaintiff’s attorneys.
   Curia, per O’Neall, J.

The three first grounds of appeal are upon supposed errors of the verdict, in matters of fact; it is enough to say in relation to them that the evidence was abundant, and very satisfactory to my mind, to sustain the conclusion to which the jury came. The 4th and 5th grounds present the only legal question in the case, whether the bringing up the slaves under the writ of habeas corpus issued by the Chief Justice of Bermuda, and the discharge of them by him from the custody of the master of the vessel, i within the risks enumerated in the policy, viz: “ arrests, restraints, and detainments, of all kings, princes, or people, of what nation, condition, or quality soever.” For if this question be answered in the affirmative, then the loss cannot be referred to an escape, which is an excepted peril; the words, “ arrests, restraints, and detainments, of all kings, princes, or people, of what nation, condition, or quality soever,” are broad enough to cover every possible detention, legal or illegal, by color of law, or without it. Had it not been for the case of Nesbitt vs. Lustington, 4 T. R. 783, I should not have hesitated to say, that any detention in fact, was within the perils insured against. But that Gase beld a mere riotous detention of a vessel by a mob — and the consequent breaking up of ber cargo, not to be a detention within the meaning of the policy. It appears that the detention, to be within the policy, must be a capture, seizure, or detention, by the officer or agent of of some government in fact; Ph. on Ins., 259. It is true, that Mr. Phillips says, that it must be by the commissioned officers or agents of some lawful and acknowledged government. But this cannot be true — for, whenever a government in fact exists, whether lawful or unlawful, acknowledged or unacknowledged, it has the physical power to compel obedience to its commands, and its officers or agents axe supposed to act by its authority, and therefore the assured has no remedy for bis loss against them. This, however, need not be noticed for the purposes of this case — for, taking the doctrine to be as stated by Mr. Phillips, the detention here would be one of the risks enumerated in the policy; for the slaves were taken, and detained from the custody of the master, by a writ issued by the Chief Justice of Bermuda, the officer of an acknowledged and lawful government, viz.: that of Great Britian.

The master of a vessel was bound to yield obedience to the writ of habeas corpus ; be bad not the power to resist its mandate ; and if be bad, be would not have been justified in so doing — for it is the duty of all persons within the jurisdiction of a country to observe its laws, and yield to its legal and proper process; and any other rule would lead to continued insubordination, and the exercise of physical force. Whether the subsequent discharge of the slaves by the Chief Justice was according to or against the laws of Great Britian, cannot now be inquired into. It was an act done in a course of justice and by the judgment of a Court exercising a competent jurisdiction. It is hence to be presumed that it was done according to their law, although it must be conceded by every one having the least acquaintance with national comity, that it was in direct violation of its first principles. It is true, that most of the cases of restraints and detention reported in the books, are captures in time of war, and seizure under political regulations. But it does not hence follow, that a detention by judicial process is not an enumerated risk. It, as well as the others, is the act of an officer of the government acting under its authority, and executing its laws.

The motion is dismissed.  