
    Gracie against The New-York Insurance Company.
    
      Insurance an a cargo :from New-York to Antwerp" During the voyage, sniuh priva! ecnñ To* K,ri‘land, and, after tion.wasreieased, aDd, on arriving in Flush-wig roads, an armedforcewas pUt on board, ™>n val at Antwerp, on the 21st of July, 1807, where she was not suffered to land her cargo, nor to depart with it, the armed force being kept on hoard by the officer of the customs. On application by the consignees, leave was obtained from the French, government, through its ministers, to land the cargo, under the direction of the officer of the customs, on condition ofits being placed in depot, in the custom-house stores, until the decision of the Emperor of France could be obtained. After remaining in this state of sequestration until 1810, the cargo was sold by order of the emperor, and the proceeds paid into his caisse d'amortissement. Held tbat there was a total loss of the cargo, by the arrest, restraint, and detainment of the French
    
    THIS was an. action on an open policy of insurance, dated the 8th of May, 1807, on the cargo of the American ship. Mary, Richards master, on a voyage “ at and from New-York to An twerp; ii blockaded, to a porjt not blockaded,” “ upon coffee in casks, sugar, and ashes.” “Warranted not to abandon, if captured, until condemnation, or until after a detention of six months after advice is received of her capture. The exporter, not the • mi . -1 1 . , _ ímporter. Ihe cause was tried at the New-York sittings, be- * ° fore Mr. Justice Yates,, in May, 1814, subject to the opinion of 7 v7 ? J i the court, on a case, with permission to either to turn the same into a special verdict. The case, however, instead of stating the facts as they would have , been found by the special verdict of a jury, set out all the evidence, consisting of depositiohs, letters, &c,, in hcec verba..
    
    The. following are all t’he parts of the evidence it is thought material to state:
    The master, in his deposition, stated, that the ship sailed on the voyage insured, the 10th of May, 1807. On the 10th of June, she was boarded by an English privateer, and carried into Portsmouth, in England, where the master made his.protest: and being released by an order of the court of admiralty, he. sailed on the lllh of July, and arrived in Flushing roads on the 14th of July, when they took On board a pilot. An armed force was put on board, which, continued-on board until the ship reached Antwerp, and until the cargo was landed. There were two or three ships of war lying in Flushing roads at the dme-the , J\Iary entered. there ¿ and- she could not have gone to sea again without being boarded by some of them*. The armed force which came on board, inquii’ed of the master, whether he had been in England, and he answered, that he had'been captured and carried in there,. Nothing was said about-his.being allowed Jo enter. and land his cargo at Antwerp; nor was he warned not to go there, or to any other port. The master stated, that he had no control over his ship, nor the power of directing where she should go, until after the cargo Was landed. That when the ship arrived at Antwerp, the custom-house officers, in consequence of the ship having been carried into 'England, kept the firmed force on board of her, and, Refused to give permission to íánd the cargo, until the.25th of August, when permission was received, as he Understood, from Paris, to land the cargo, on condition that- it should be deposited in the stores of the custom . house, Which was, accordingly, done. The armed force on bohrd he’believed to be iVenc?imm,buthe neither understood nor .spoke French or German. On his cross exa mination, he verified a protest made by him fit Antwerp, and stated, that several American ships, were at Antwerp, in the same' situation, none of . which left that place with their cargoes. -He never inquired of,the consignee, or- any other' person, whether he could depart with, his cargo,, but waited for orders for landing it, and did land it, in pursuanee of orders received from the consignee, bn the ,25th' of August, and returned to New-Yorkc with the .ship in ballast. The clerk of the consignees, and a cüstom-hóuse officer, also, took an account of the landing of the Cargo; and the clerk gave a receipt on his set of the bills of the lading. That he had no Communication with the custom-house officers at Antwerp before landing his cargó; he did not remember whether he entered his Ship, or not, before he had orders to land his cargo ; that he knew nothing of any permission from Paris to land itthat he acted in pursuance of orders from the consignees, by whom he was directed to land it. [ He did not know for what purpose the armed men were put on board,'but supposed it was to guard the vessel; hor did he recollect their number, nor whether the same men who came., on board at Plashing continued to Antwerp; they might have been the same or others. He knevv nothing of any arrangement between the consignees and the French government about landing the cargo, nor of the. terms or conditions on which it was landed. That he did nót know the reason why he did not state, in his protest, that the vessel was taken possession Of by an armed'forcé in Flushing toads, but supposed, that he did not think it necessary. Several of the master’s answers, in this respect, to the questions put to him, appeared confused and •inconsistent.
    
      Jacob Ridgeway, who was-the American consul at Antwerp, and resided there from 1801 to 1808, and, afterwards, at ■Paris, until 1810, deposed, that the Mary, and several other ships, which he specified, arrived at Antwerp, in 1807, and had either been boarded by English vessels, or touched at English ports, and some of them were consigned to his house, That they were not permitted to depart with their cargoes; and demand, for that purpose, was made to the director of the customs, and, afterwards, to the emperor of France, through the minister, but without effect. The whole of their cargoes were put into depot, or the stores of the custom house, and were, afterwards, sold by the special order of the emperor, and the proceeds placed in his caisse d’amortissement, or sinking fund.' That the Mary was consigned to Parish Sr Co., and he did not believe that she could have departed without a special order from the emperor, and he did not believe that any such order could have been obtained; and his impression was that the consignees did endeavour to obtain such permission, through the agents qf the gqvernment. The cargo of the Mary was placed, by the order of the director of the customs, in the depot, or custom-house stores, and under the diresof- the officers of the customs. The consignees could hot either sell Or deliver the cargo; it was sold, by order of the emperor. The custom-house officers said they could not permit any ■American vessels, which had been boarded by' British vessels, or touched at. iirihs/i ports, to depart,, without the special leave of 'the emperor ; and he believed the- Mary could not have left Antwerp, with her cargo, without such special permission.. He 'did not know whether force Was used in landing the cargo, but beliévéd it was landed by direction of the custom-house officer. The cargoes of all the seven vessels mentioned by him, including the Mary, were landed and placed in depot, See., under sequestra-Ron; and cohtráry, he.belieyed', to the wishes of the consignees. As to the vessels consigned to his house, he spoke positively. Repeated applications for permission to depart, with their cargoes, ■ Were made without success. There was no prohibition, in this respect, as to vessels which had not been boarded by British ships of war, or touched at British ports. . >
    The consignees, in their letter to the plaintiff, of the 23d-of ■ July, 1807, after mentioning the arrival of the Mary, say, “ they aré going to send all her papers to Paris, in order to obtáin leave to land her cargo.” “ The cargo will remain under the control of the custom house, until a decision, which we have no great hopes of being shortly given.” In their.letter, of the 10th ' of August, they write r “ We are yet without any decision,” &c., “ nor have we obtained leave to land the Many’s cargo.” In September following, they again wrote: Enclosed you will find a printed note, by which , you will see that our government is fully determined to enforce the execution of the decree.of the *21st of November.” “ Not long after we wrote you last, we * had leave to land the 'Mary’s cargo.” “ We are apt to imaging ' that1 something is still to be determined in regard to such vessels whose;cargoes have been landed,- by permission of. the director' general of the customs,, authorized by the minister of finance. Are. those -cargoes to be admitted or not ?. Are they to be. adniitted under certain restrictions or conditions, or are they toybe sent back:?” In their letter of the 14th of April, Í808, they say, «■ We have hot discontinued a moment.doing every thing we- : could to obtáin the admission of the- sequestered cargoes per the -Perseverance and Mary l but. all without success;” ¿t We still 1 flatter ourselves that,--whatever may be the decision.which may be pronounced hereafter, in regard to the- American cargoes seized in our ports, in consequence of the decrees of the 23d of November and 17th of December, 1807, there will be an exception made in favour of those which, like yours, have, previously to these decrees, been admitted, provisionally, by the minister of finance, and the director general of the customs.” “ Wé have petitioned to be permitted to re-export those cargoes; but we do not suppose it will be granted.”
    In their letter of the 30th of May, 1808, they , wrote : “ We continue in the same uncertainty as to the sequestered cargoes; no decision having yet been given.” On the 4th. of August, 1808, they again wrote : “ We have the honour ;to inform you, that, by an imperial decree lately issued, it is ordered, 1st. That the cargoes entered into our ports, before the decrees of November and December, 1807, (which comprehend those under sequestration,) be sold immediately, by public sale, and the proceeds be.paid into the caisse d^amortissement. 2, That an inquiry shall be made, in order to. prove that the goods are not British property. 3. That the emperor reserves to himself the right of pronouncing on the result of such inquiry.”
    It appeared, from subsequent letters, that, after exhibiting the fullest proofs of American property, and various applications, no release of the cargo could be obtained; but it was, in June,. 1810, sold by order of the emperor, and the proceeds paid into the caisse d^amortissement. On receiving information of the sale, the plaintiffs, on the 13th of July, 1810, made a formal abandonment to the defendants for a total loss.
    
      D. B. Ogden, and S. Jones, jun., for the plaintiffs.
    They cited Speir v. New-York Ins. Co., 3 Johns. Rep. 88. Mumford v. Phœnix Ins. Co., 7 Johns. Rep. 449. 460. Brown v. The Phœnix Ins. Co., 4 Binney's Rep. 445. 5 Binnay, 403., Savage v. Pleasants.
    
    
      T. A. Emmet, and Wells, contra.
   Platt, J.

The plaintiff claims as for a total loss, under a policy of insurance upon the cargó of the ship Mary, on a voyage “at and from New-Yorlc to Antwerp; if blockaded, to a port not blockaded,” “ Warranted free from seizure, for, or ' on account of, any illicit or prohibited trade.”

On her voyage the ship was captured by an English privateer, find carried into Portsmouth, where she was liberated by a de* 'CrcC °f admiralty, and then pursued her voyage. ■

On the 21st of July, 1807, she arrived at Antwerp, and moored off the city.

About the 1st Of September, 1807, the cargo was landed at Antwerp ; and, I think, the only question is, whether, at- the. time if.was so landed, it was under, the “ arrest, restraint,, or detain-mend1 Of the French government. . .

= By the 7th article of the Ber/tn decree, (21st of November, 1806,) it was ordained, that ■“ no vessel'coming directly fi’dm England, or from the English colonies, Or having been there since'the publication of the present decree, shall-Be received into any port.’’

To go into.a French port, for the purpose of requesting a special permission to land a cargo, upon a full explanation that the vessel had come directly from an English povt, would not be a violation of the Berlin decree, whether such application were successful Or not. For, if the French government .refused permission to land the cargo, the legal consequence was, that the vessel had a right to depart with her cargo, and seek another market; arid if permission for landing the cargo was: granted, with a full knowledge that the vessel had come from art; English port, such consent '(by, the emperor himself, as in this case) would be a revocation of that decide, in.regard to that particular ship and cargo.

The 8th article of the Berlin decree provides, accordingly, that, “ every yessel'.contravening the above clause,, by means of a '.false'declaration, shall be seized j and the Vessel and cargo confiscated,'as if they were English property.”

I can, therefore, see no ground to suppose that the cargo of the J/ary was seized and condemned fora violation of the Bertin decree ; especially as the decree of cóndémnation does not allege that ás thé cause. If the assured had committed an infraction, of the Berlin decree, why was the ship permitted to depart? The penalty of that decree.was a fiprfeiture of the vessel, as well as her cargo. ¡ ' •

It is observable, that the condemnation of this cargo was not until after the Milan decreeof the 11th of November, 1807,. although the sequestration was long before that decree.

The, Milan decree declares all foreign vessels' lawful prize« which have submitted to be searched by an English ship, or have come from an English port. '

The fair presumption is, that, in condemning this cargo, the emperor exercised a special arbitrary power, ex post facto, inasmuch as the case of the Mary was exactly within the policy of the Milan decree, although she came into the French port fifteen months before the date of that decree.

There is, therefore, no evidence of á breach of warranty,' on the part of the assured, against “ illicit .and prohibited trade.™

. But if the landing of the cargo were the voluntary and unconstrained act of the consignees, having the free election, either to send away the cargo, or to land it, then it is clear that the defendants are not liable, because their risk terminated upon the safe and unrestrained landing of the goods insured, at the port of destination. <

That the cargo was sequestered, and, afterwards, sold by order of the French government, is Undeniable ; and the only material inquiry is resolved into a question of fact, viz. Was the seizure, or sequestration, in this case, before the landing of the cargo ?

The testimony of Richards, the master, upon his direct examination, is clear and explicit, that when the,Mary arrived in Flushing roads, there were two or three ships of war there ; that an armed force was put on board the Mary; .that they inquired of him whether he had been in England; that he informed them he had been captured and carried in there; that the armed force continued on board until the arrival of the ship at Antwerp, and until the landing of the cargo ; and that he never had the control of the ship, nor the power of directing where she should go, until after the cargo was landed ; that, on the 25th 6f August, 1807, (he understood,) permission was given to land the cargo, on condition that it should be deposited in the stores of the custom house ; and it was landed and deposited accordingly. . • -

The credit, of the master is in some degree impeached by his Confused and incoherent answers to the cross interrogatories ; but it is strongly corroborated by the testimony of Jacob Ridge-way, then American consul residing at Antwerp.

He swears, that, at the time when the Mary lay at Antwerp, with her cargo on board, there' were six other American vessels, with their cargoes, also lying there, all having, like the Mary, touched ai an English port on their voyage to Antwerp ; that four of those vessels were consigned to himself; and the other three, including' the Mary, were consigned to David Parish 8r Co. He further swears, *i that the said vessels* which came addressed to his house, and which had touched' at English ports in their passage out, were not permitted to depart with their cargoes ; that he demanded permission for the departure of their cargoes j the .first demand w.as made to the director of the customs,, and afterwards to the emperor of France, through the medium of his -minister,, all without effect.” 'He further testifies,.that,' <?.to the best'of .his "knowledge and belief, the whole of-the cargoes of those, seven vessels were put into the depot, or custom-house stores, and were, afterward's, sold by a special order at the emperor, and the funds arising from-the sales placed in his caisse d'amortissemsnt.'' ■ , ' '

With regard to the ship Mary,. he says, “ I do. not believe it was possible for her to have departed from Antwerp, with her e,argo* for any other port, without the special, permission of the emperor of France... I do not believe that any such permission could have been obtained ; and the impression on my mind is, that the consignees (of the Mary) did make efforts to obtain such, permission.”, Mr. Ridgeway further testifies, that “ the caigo of the Aíary was deposited by Order of the directors of the customs in the depot* or custom-house stores, and under the control of the custom-house officers. The consignees could not, to the best of;his knowledge and belief, either sell or deliver said cargoand “ this cargo' was sold by special order from the empeior;” that the reason assigned by the custom-house' officers}for not permitting American vessels that.had either, been boarded- by British ships of war, or touched at British ports, to depart with their cargoes, was, that they could not do it without the special permission of the emperor,” He further adds, that e the cargoes of the seven vessels' were all landed and put into the depot, under -sequestration,, as; he believes, contrary to the wishe.s-ofthecpnsigne.es.” ■ . '

' Ridgeway's official station afforded, him the best means-of knowing,, and it was his duty, as American consul, to ascertain the truth on that point. He swears, that on inquiry' at. the proper, office, he was-told, that “ American vessels haying touched in England''' could not be permitted to depart with-their cargoes, without special permission of the emperor. I consider this declaration as strong evidence, in itself, of “ restraint,” upon this vessel, to which the language of the public officer was expressly applicable. *' Arbitrary restraint of princes’’ is often exercised in an equivocal and insidious manner; and it may not be the less certain, although the evidence of it be not frankly and palpably addressed to our senses. The testimony of Ridgeway, although less positive and direct* in regard to the Mary, is positive proof, to show that.the three cargoes consigned to him were under arbitrary restraint; and that fact alone greatly strengthens the credibility of Captain Richards, who swears, positively, as to the like restraint upon the cargo of the Mary ; all those cargoes being in the like predicament.

The extracts of letters from David Parish & Co., to the plaintiff, are not inconsistent with the testimony of Captain Richards, and that of Mr. Ridgeway. These letters do not expressly state when, and how, the seizure of this cargo was made ; but they speak of it as “ under sequestration,” before the decree for its sale; and, if sequestered, when did that take place ? It remained in the depot, under the entire control of the government, from the moment of its landing until the decree of sale; and whether the sequestration took place as soon as the vessel arrived in the Scheld, or at Antwerp, as may be in» fei’red from the testimony of Richards and of Ridgeway, or whether the cargo was sequestered while in the very act of landing, it was equally covered by the policy.

It is worthy of remark, that the letters of David Parish & Co. were written while they were within the reach of the strong and despotic arm of Napoleon ; and that all their letters were liable to his inspection; which may account for their writing as little, and as seldom, as possible, of the violent acts of the French government. Especially, as they were, during all that time, most humbly supplicating the clemenhy of Napoleon, in regard to this very cargo. It would, therefore, have been impolitic and unsafe to have written the plain truth, that these goods -were seized as soon as they came within the power of the French government; not for the violation of any law, but as an act of capricious and arbitrary despotism. From the whole tenor of their letters, however, I cannot entertain a doubt, that, if interrogated expressly upon the point, they would have sworn, in accordance with the other witnesses, that the cargo was held under the control of the government, so that it could neither be landed .nor exported, by the owner, at any timé after its Arrival at Antwerp..

It- appears that the cargo was landed upon the express application and request of the consignees, under a,condition that it should remain in thé.dépot, under the control of t;he custom house, Until the emperor’s decision should be made. But if the cargó was under arrest or sequestration while it remained on board the Ship, in port, the benefit of this policy was not waived, nor lost, -by consenting to the landing 'of the cargo under the restriction imposed.. The; petition to land the goods, under such circumstances, was a request merely to modify the restraint, already imposed by the government, by removing the sequestered cargó from the ship to the store housfe ,; both equally within the territory and control of the French government.. The fair and legitimate object of that modification,- undoubtedly) was, that the ship might depart;; to which there was then no impediment.

1 think the decided weight of evidence establishes the fact; that the cargo of the Mary was lost to the, assured, by the “ arrest, restraint, or detainnient” of the French government, without any breach of warranty Against “illicit or- prohibited trade)'1 on • the part of. the assured1; And, therefore,'the plaintiff is entitled tb recover. '

Yates, J., and Van Ness, J., were of the same opinion.

Thompson, Ch. J.

The decision of this case depends entirely upon the question of fact, whether there was A voluntary landing of. the cargo, ot whether it was landed under the 'coercion of the force stated by the master to have been put On board. If the facts in the case will warrant the conclusión, that the Mary was seized by a military force, and the cargo landed under such constraint,' And against the consent of .the consignees, I should entertain, no doubt but that the underwriters were liable for thfe loss;-. This was not a seizure, or detention for, or ón account of, any illicit or prohibited trade. ' TheVe was no attempt whatever to trade, or to do any act in contravention.of any municipal regulation, A mere entry into the port of Antwerp was no breach of -that; warranty. Nor could there be any pretence tb charge the assured with-á violation of \hh Berlin Decree. . - . .

That decree declares, that no vessel coming directly from England) or her coloides, or having been there since the publication of the decree, shall be admitted into any port of the French dominions; 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.” There was no pretence that there was any attempt, on, the part of the assured, to obtain an entry in violation of this decree. If, therefore, this cargo was forcibly taken from under the control of the master and consignees, it was a lawless and arbitrary act, and the loss, would come under the general peril of arrests and deten-; tion of princes. But if, on the contrary,, the conclusion tp be drawn from the facts in the case is, that the consignees, finding that the Mary came within the Berlin Decree, and that they could not procure an unconditional entry and landing of the cargo, voluntarily consented to have the same deposited in the stores of the custom house, for the purpose of procuring a dispensation of the decree, and permission to sell the cargo, the underwriters are not responsible for the subsequent loss. If the consignees chose to speculate upon the chance of obtaining a relaxation of the decree, they must do it at the risk of the assured, and not of the underwriters. And, with respect to this question of fact, very considerable doubt may well be entertained. Much depends upon the credibility of the master, who certainly appears, in the case, to have exposecj himself to very considerable suspicion; and I very much regret that such a case is presented to the court for decision; it more properly belonged to the determination of a jury. This is enforced by the circumstance, that there is a provision for turning the case info a special verdict, which certainly cannot be done, if my understanding of the point on which the cause will turn be correct. The jury must find that fact; and not merely state the evidence of the fact. The conclusion is to be drawn by them, and not by the court. But, as the parties have seen fit to submit the case to the eourt, ¡n its present shape, it becomes necessary to weigh the evidence, and draw such conclusion as, in my judgment, it. will warrant.

The testimony of the master, and -the inference to be drawn from the letters of the consignees, would certainly seem to warrant very opposite conclusions. The master states, that on the Mary’s being moored off the city of Antwerp, an armed force was put on board, and continued there until after the landing of the cargo ; that th.e control of the ship was entirely taken from him ; and that this armed force was kept ombbard by-the custom-house officers,, in consequence of the Mary's having been carried into England-. He states nothing of this; however/ in. his protest, and gives no satisfactory explanation why he did not. An attentive, examination of the testimony of Ridgeway, would seem to,warrant the conclusion, that the custom-house officers would not permit vessels that had touched in England to depart, without the special permission of the emperor ;he, as consignee in several cases, had failed in obtaining .such permission. There is no evidence, however, that such1 permission was asked,.in this case, until some time in the, year 1808. But none of the letters, from the consignees, seem even to hint,-that there Was any compulsion in landing the cargo;. and it is hardly conceivable, if that.had been the casé, that.the consignees would not have mentiqned so important a circumstance,. The drift of all their letters, is to show that they , were using every exertion to obtain permission to land the cargo. The Mary arrived oil the 21st of July, and the cargo was not landed 'until the 25th of Ait-gust.' Qn the 23d pi July the consignees write,. “-We are' going to send all her papers -to Paris, to obtain leave to land her cargo,” ■. And cn the 10th of August they again write, that they, had not yet obtained leave to land-the Mary's .cargo; not an intimation of any difficulty of sending .away vessel and cargo; or of asking leave for that purpose,• . On the. 11th of September, they enclose a printed note, announcing the determination of the French governmeht to enforce the execution of the Berlin Decree, although the vessel might have been, forcibly carried into Eng- , land; and that a Portuguese vessel had already been sent a way. They then say, “ not long after we wrote you last, we had,/ease - to land the Mary's cargo, which was done in three days,, without any molestation ;” and they go on to state/that“ something, is still to be determined in regard to vessels whose cargoes have been landed bj. permission-pi- the director general of the customs.” In the letter of the 14th of April, 1808, after speaking of seizures under, the Müan Decreé, they say, there will be an exception made in favour of those which, like yours.,. have, previously to those decrees, been .admitted provisionally by the minister of finance.” And in this letter, for the first time,, they speak of having made application to be permitted to re-expor-t the cargo. Prom an examination of thesedelte'rs, it is difficult'; if. not-impossible, to resist the conclusion, that' thp cargo of the ■Mary was landed, at the earnest and pressing solicitation of •the consignees, who, finding that they could not obtain an unconditional entry, procured the cargo to be admittedprovisionally, as they term it; to remain in custody of the custom-house officers, until the determination of the emperor should be known on the subject; and this may account for there having been put on board a military force, by the custom-house officers, for its safe keeping. The captain says it was landed on condition that it should be deposited in the stores of the custom house; and was landed in pursuance of orders from, the consignees, who gave him a receipt for the same. A clerk of the consignees and a custom-house officer both attended to take an account of the cargo. All this shows, very evidently, that the landing was under, and pursuant to, some arrangement made by the consignees, and not by any compulsion; the consignees, probably, calculating upon their exertions and influence to obtain a relaxation of the decree; and that it would be better to procure a provisional landing than to sénd back the cargo at that time, thinking, probably, that this course might be resorted to after every other attempt should fail. For, in their speculations on the result, with respect to cargoes in this situation, they, in their letter of the 11th of September, consider them in one of three predicaments; either to be admitted unconditionally, or under certain restrictions, or to be sent back. And thus we see the reason why no mention is made of an application to re-export the cargo until April, 1808; all attempts, probably, to effect any thing better had failed, and this was resorted to as the last alternative. If I were setting as a juror to weigh the evidence in this cause, and draw inferences from the facts stated, I should be bound to say the weight of evidence is in favour of the conclusion that the cargo was landed voluntarily, under an arrangement between the consignees and the officers of the French government, with a view to some future negotiations with the emperor; and that, of course, the underwriters were not responsible for the loss. But I think, as I suggested upon the argument, that it is a cause which belongs to a jury to decide, and ought to be sent back for that purpose.

Spencer, X, was of the same opinion.

Judgment for the plaintiff.  