
    Duerhagen against The United States Insurance Company.
    THIS action was brought upon a policy of insurance, dated June 20th, 1809, upon coffee, shipped on board the brig Resort, on a voyage from New Tork to Bremen, “ with “ liberty to enter a Dutch port, when informed on arriving on that coast, that it may be done with safety; warranted Ame- “ rican property; not to abandon in consequence of the port “ of destination being blockaded, but shall have liberty to “ proceed to another port, not blockaded, at'the risk of the “ assurers; warranted free from damage or loss in conse- “ quence of a seizure or detention of the property for, or on “ account of any illicit or prohibited trade.”
    Insurance from JVbw York to Bremen, “with liberty to enter a Dutch port when informed on arriving on that coast, that it may be done with safety.55 On arriving off the coast of Holland, the captain was informed “that Amsterdam was not blockaded, and that he might enter that port free from molestation by British cruisers.55 lie then took a pilot on board and stood for the Texel, and was captured near the first buoy, about nine or ten miles from the entrance into .the Texel roads,, by-a French privateer, by which lie was canned into Amsterdam. The vessel and cargo were afterwards condemned.
    
      Held,- that the information received by the captain did notwamntbim in proceeding to the Texel, and that the departure from the course of the voyage to Bremen-ty^s a deviation which discharged the underwriter, f ** ‘ •
    
      The brig sailed from New York, and met with no vessel iii the course of her voyage, except two fishermen on the banks of Newfoundland, until she arrived off the coast of Holland. Here she fell in with two Dutch boats, from whom the captain received information u that Amsterdam was not blocka- “ ded, and that he 'might proceed to Amsterdam, free from “ molestation by British cruisersY On receiving- this information, he took two Dutch coasting pilots on board, to carry him to the Texel, for which he shaped his course, until he arrived nearly abreast of the first buoy, where the brig was captured by the French privateer Hebe, who carried her into the Texel roads, and delivered her to another .French privateer called the Tilsit, by whom she was carried to Amsterdam. The vessel and cargo were afterwards condemned by the French Council of Prizes at Paris.
    
    The defendants demurred to the evidence, and the jury assessed contingent damages for the plaintiff.
    In arguing the cause in this Court, the defendant’s counsel made two points. 1. That the defendants were discharged from the policy, because the captain of the Resort had been guilty of a deviation in going to Holland without making the inquiry and receiving the information called for by the policy. 2. That the loss was within the warranty against illicit or prohibited trade.
    As the decision of the Court is confined to the former question, the argument on the latter is omitted.
    
      Binney and Rawle for the defendants.
    The policy gave permission to enter a Dutch port, only on condition of receiving information on the coast of Plolland, that it might be done with safety. Oh this point, two questions arise. 1. What is the meaning and true construction of the clause in the policy ? 2. Did the sailing towards Amsterdam come within its meaning?
    
      1. The voyage insured was to Bremen, and the clause in question, which tended to alter it, must be rigorously construed. There 'was a condition to be performed by the assured, previous to his going into Holland, and it is incumbent. upon him to shew a strict performance of it. It is the assured who describes the voyage, and “ verba fortius accipienda contra proferentem.” Elliot v. Wilson.
      
       Stell v. Wardell.
      
       Sheriff v. Potts,
      
      Beatson v. Haworth.
      
       Hogg v. Horner.
      
       Syers v. Bridge.
      
       Lawrence v. Sidebotham.
       1 Marsh. 275.
    
    Where a clause is clear, it is to be understood literally, 1 Marsh. 305. and must be strictly complied with. Ash v. Ogden.
      
       In the present instance it is manifest that security from British capture was not alone in the contemplation of the partiesj safety from capture by any power whatever, in entering the port, was what they had in view. It is not pretended that it was necessary to inquire whether the vessel would have been safe in port after having arrived there. This was expressly provided for by the warranty against seizure for illicit or prohibited tradej but we do contend,‘that information that Amsterdam was not blockaded, and .that there was no danger from British cruisers, was not sufficient to justify the captain in attempting to enter the port. Indeed there could have been no danger from this source, because, Unless a vessel is warned off by the blockading squadron, she may enter the port in safety. Our relations with the belligerents at the time this policy was underwritten, rendered it much more necessary to provide against French than English capture. In the month of April, 1809, Mr. Ershine’s convention was concluded, by which the British restrictions were to cease on the 10th of the following June, and on 24th May, 1809, the British order was made, suspending, for a limited time, the operation of the orders in council, in consequence of Mr. Erskine’s arrangement. This was known to the parties when the policy was subscribed j consequently there could have been no fear of capture by the British. But the probable resentment of the Emperor Napoleon, at the convention between the United States and Great Britain, made capture by the French greatly to be apprehended. That such apprehensions were entertained, is shewn by the insurance effected in Nezv Fork, upon the same vessel, the Resort, upon the same voyage, the policy for-which contained a warranty against seizure in any river, port or place, under the power of Napoleon. Black v. Marine Insurance Company.
      
    
    2. The captain states, that he was informed by the Dutch boats off the coast of Holland, that Amsterdam was not blockaded, and that he might enter that port free from molestation by British cruisers. This was certainly not the information called for by the policy, nor does it appear that even this was the result of an inquiry made by the captain. It may perhaps be objected that he was prevented from making the necessary inquiries by the capture.. The answer is obvious. He had departed from the course to Bremen, had taken a Dutch pilot on board, and had proceeded as far as the first buoy on his way to the Texel, before the capture took place. Had he inquired of the-pilot whether he could enter Amsterdam with safety, he would have been informed that there were two French privateers in the Texel roads; but it seems he had made up his mind to enter the port upon the information received from the fishermen, and did not intend to make further inquiries. The plaintiff is certainly entitled to every inference which the jury might fairly have deduced from the evidence, but it would be impossible for any jury to say that the captain had received information of safety before he changed his route; and the moment the original voyage is departed from, a new voyage is commenced. 2 Emerig. 56.
    
      Levy and Ingersoll for the plaintiff.
    This is an unusual case. It is a demurrer to evidence, where the evidence is circumstantial and conflicting. In such cases the established principle is, that every thing is to be inferred in favour of the party producing the evidence which the jury might have inferred; nor should the Court be scrupulous in drawing" such inferences, Steinbach v. Columbia Insurance Company.
      
       Coxhedge v. Fanshaw.
      
       Pawling v. United States.
      Park. on Ins. 228, notes (5th ed.) Patrick v. Hallet.
      
       Gibson v. Hunter.
      
    
    What was the meaning of the parties ?. The plaintiff had liberty to enter a Dutch port under certain restrictions. The restrictive part of the clause was in the words of the defendants, and is therefore to be taken most strongly against them. Its operation was to prevent the assured from going into the port unless he previously received information that it might be entered with safety. He had therefore an absolute right to go to the coast of Holland., even to the verge of the port, for the purpose of obtaining the information called for by the policy; and on the coast he was captured before he entered the port. He was taken possession of by the Hebe, nearly abreast of the first buoy, which was distant nine or ten miles from the entrance into the Texel roads. There was no evidence of a departure from the course to Bremen, when the vessel was captured; on the contrary, the condemnation was founded upon her being on a voyage to Bremen, and the French Council of Prizes expressly decided, that she was not within the jurisdiction of Holland. The jury might have found, upon the evidence, that she had not departed from her original voyage, and the Court ought to infer that she had not. The information the captain was bound to receive before entering a Hutch port, was that it might be done with safety; and this he substantially did receive. With respect to the meaning of words there can be no general rule; it must depend upon the subject. 1 Marsh. 197. When thi.s insurance was effected the parties no doubt had in view danger from some particular source, and this we suppose to have been a British blockading squadron. It was not known in this country at that time, whether Erskine’’s convention would be ratified. Many believed it would not; it was therefore very natural. and proper, under these circumstances, to provide against some public national act of the British, such as a blockade. That capture by French privateers was in the contemplation of the parties is highly improbable, because danger from that quarter must have been encountered in order to make the inquiry called for; the coast of Holland being the place where they were most likely to be found.
    
      
      
         1 Marsh. 187.
    
    
      
       1 Marsh. 188. 1 Esp. Rep. 610.
    
    
      
       1 Marsh. 188. 5 Esp. Rep. 96.
    
    
      
      
         1 Marsh. 189. 6 T. R. 131.
    
    
      
       1 Marsh. 191.
      
    
    
      
      
        Doug. 509.
    
    
      
       1 Marsh. 199. 6 East. 45.
    
    
      
       1 Dall 162.
    
    
      
      
         11 Johns. Rep. 287.
    
    
      
      
         2 Caines, 134.
    
    
      
      
        Doug. 127, 128. 133.
    
    
      
      
         4 Cranch. 222.
    
    
      
       1 Johns. Rep. 245.
      
    
    
      
      
         2 H. Bl. 205.
    
   Tilghm an C. J.

(Briefly stated the facts and then proceeded.) The defendant demurred to the plaintiff’s evidence, consequently every inference which might have been drawn- by the jury from the evidence, must now be drawn by the Court. There is no difficulty about the facts. The evidence is short and simple. The information received from the Dutch boats was, that Amsterdam, was not blockaded and might be entered without danger from British cruisers. ' This is the whole of it, and there is no ground to infer any other information. The question is then, whether on that information the captain of the Resort was warranted, under the terms of the policy, in altering his course and proceeding towards the Texel. The policy requires information, that the port of Amsterdam might be entered with safety. To enter with safety it would seem necessary that there should be no danger from any belligerent nation. It was immaterial to the insurers from what quarter the danger arose, whether from British blockading squadrons or French cruisers ; nor do the words of the policy contain any distinction or any limitation as to the nations from whigh danger was apprehended. Indeed if we consider the political situation of' tile" United States at the time this insurance was effected, we cannot help supposing that danger was apprehended from France as well as from England. Mr. Er shine’s treaty had been made not long before, but it was uncertain whether it would be ratified by the British government. The probability was that it would be ratified, and if ratified there would be no danger from that quarter. But as the ratification was uncertain, it must be supposed that danger was apprehended from Great Britain. At the same time it must be confessed, that a prudent underwriter would apprehend danger from France also, and from Holland who was subject to France; because if the treaty had been ratified it would naturally have excited such resentment' in the emperor Napoleon as would have led to an immediate seizure and confiscation of all American property. This 'was an event so probable, that had it not been .for the waXTanty against seizui'e in port, I.should have supposed that the policy was intended to guax'd principally against danger of that kind. In case of French hostility, however, there would have been danger not only in port, but ixx approaching the port. And this was proved by the event. The outward buoy near which the brig was captured is nine or ten miles without the entrance of the Texel roads. So that the French px’ivateers had taken a station which would enable them to seize all vessels approaching the Texel. But it is contended by the plaintiff’s counsel, that the captain of the Resort had a right to proceed to the limits of the Dutch tenfitory to procure Information. To this construction of the policy I cannot assent, because it defeats the object of the parties, which was,.that the voyage to Bremen should not be departed from unless on reasonable assurance that it might be done with safety. For the. going to the verge of, .the Dutch territory in order to seek for information, whether you may safely enter, is exposing yourgelf to danger, in order to know whether you are safe. This never could have been intended by the underwriters, nor do the words of the policy express such an intent. The information was to be received on arrival on the Dutch coast. Now the captain of the Resort swears, that he was on the Dutch coast when he received the information from the two boats, and that on the receipt of that information he took pilots and s.tood for the, Tex el. But the information was not such as the policy called for. ■Consequently there was no right to proceed towards the Tex el, and.the.departure from .the course of the voyage to Bremen wag a deviation which discharged the insurers. This point being decided in favour of the defendants, it is unnecessary to consider, whether there has been any breach of the plaintiff’s warranty against seizure for illicit or prohibited trade. I am of opinion, that judgment should be entered for the defendants.

Yeates J.

The words of this pplicy must be taken' in their plain and natural sense ; But the commercial and political state of Europe and this country may, with propriety, be resorted to in aid of its true construction. The voyage was at and from Nezv Tork to Bremen, with liberty to enter “ a Dutch port, xvhen informed on arrival on that coast, that it coidd be done xvith safety.” The plaintiff gave a warranty against illicit or prohibited trade. The word safety is, general in its nature: It comprehends freedom from ganger, not only from the Dutch ports being blockaded, and from British cruisers, but likewise from French or Dutch decrees, which might operate on the vessel before or after her arrival into such port.

The French decrees of the 6th August, and 13th November, 180/, were well known in the United States, before the brig sailed from Nezv York, in the summer of 1809, although the general practice of that port may not have conformed to their provisions. It is also observable that the case of a blockaded port is provided for by,a special contract in the policy; and that the written warranty is made against seizure or detention in port.

A demurrer to evidence admits not only those facts which are directly sworn to and stated on the record, but also all conclusions of fact to ..'hich the evidence is admissible, and to which it is properly relevant and applicable. • But I concur with the remarks of-the Chief Justice on the trial, that the information received by captain Burke -on the coast of Holland., is too explicit to admit- of any doubt. It tends to prove information that there was no danger from blockade or British ci-uisers, and no more. It has not the'least tendency to prove safety from. Dutch or French decrees which might eventually be called into action, injuriously to the property insured.

It has been contended, that the capture of the brig by<the French privateer, excused her captain from making inquiry, and that she was sent into Amsterdam against his will: But it is fully ascertained by his own oath, that he had previously taken a pilot on board to take hijm into the Texel, and that he came either into, or near, the Dutch territories before he was captured. If the brig had altered the track of her voyage to Bremen, her port of destination, by standing in for the Texel. it is wholly immaterial as to the purposes of deviation, whether she was captured in the open sea, the roadstead or the waters of Holland. The deviation became complete thereby. It was not justified by the terms of the policy which permitted the entry into a Dutch port, only in case of preceding information, that it could be done with safety; nor was there such necessity or reasonable cause of voluntary departure from the usual course of the voyage insured. The voyage was therefore determined, and the insurers were discharged from all responsibility.

Another ground of defence has been urged against the plaintiff’s recovery, that the trade in defect of a French certificate of origin, was illicit, and prohibited by the emperor Napoleon, under his decrees of the 6th August, and 13th November, 1807, and therefore within the terms of the plaintiff’s warranty. The determination of this point, in my idea, depends on the -fact, whether the captain of the brig was on the high sea, beyond the territories of Holland, or'within those territories then under the dominion of, and in a state of dependence on, France. The difference between the legal operation of these edicts on the ocean and in France or her dependencies, is'sufficiently obvious to my mind. But it is unnecessary to express a decided opinion on this part of the case, as the deviation from the voyage insured, forms 'an inSurmountable bar to the plaintiff’s recovery. I shall content myself with remarking that, the present case is more unfavourable to the plaintiff^ on- equitable principles, from' the decrees being known in the United States when he entered into the warranty against illicit o,r prohibited trade.

I deeply lament the, difficulties and hardships to which tbe commerce of neutrals has been subjected by the British orders in council, and the French, Spanish, and Dutch ordinances, during the late European war. A conformity to those regulations, unwarrantable in the highest degree by tbe law of natiqns, so far as they respect fair neutral trade on the 'ocean, is often impracticable. Innumerable inconveniences and losses have resulted to our merchants from the usurpations of power by foreign kingdoms. Incidit in'Scyllam qui vult evitare Charybdem. These are evils beyond our power to remedy. We sit n,pt to determine on the justice or morality of the laws of foreign sovereignties: But it is our imperious dut)^ to decide with impartiality and firmness on all contracts which may come before us however incautiously or improvidently those agreements may be expressed.

My opinion is, that judgment be rendered for the defendants upon this demurrer.

Gibson J. wb'o was not upon the bench when the case wá's. argued, delivered no opinion.

Judgment for the defendants.  