
    * Thomas Lee, Jun., and Others, versus William R. Gray.
    A cargo was insured from Boston to Rotterdam and Amsterdam. On the outward passage, the master received notice of the British orders in council, declaring the ports of France, &c., in a state of blockade, and in consequence thereof proceeded to Plymouth, in England, for the purpose of procuring intelligence. While at this latter port, he was informed of the French decrees, which declared all vessels, &c., good prizé, which had been at a British port By the laws of England, at that time, he could not clear for a port in Holland without leaving a part of the cargo. Upon this he went to London, where the cargo was discharged for the benefit of all concerned. As soon as the assured heard that the cargo was unlading in London, they abandoned the cargo to the underwriters on the ground of a total loss of the voyage. It was held that the going to Plymouth was no deviation ; that the prohibition there to export a part of the cargo to Holland was not an arrest or detainment by princes, &c.; that the going from Plymouth to London was a deviation.; and that the underwriters were not liable, as for a loss of the voyage.
    Case upon a policy of insurance upon property on board the ship Meridian, Robert Lord master, from Boston to Rotterdam, or Amsterdam. The policy was dated October 31st, 1807, and was opened for 40,000 dollars, of which the defendant subscribed 5,000 dollars.
    The plaintiffs declare for a total loss, which they allege as follows: The said ship, with the said property of the plaintiffs laden on board, proceeded on the voyage mentioned in the policy on the first of November, 1807 ; and afterwards, viz. on the 3d day of December following, being at sea, and proceeding on the voyage aforesaid, was arrested and restrained by certain persons, being subjects and servants of the king of the united kingdom of Great Britain and Ireland, and acting under the authority of the said king, then being on board the armed ship called the Active, of which one John Lusk then was the commander, and was by the said persons then forbid, prevented, and restrained, from going to her said ports of destination ; and the said ship was thereupon obliged to proceed, and did proceed, to the port of Plymouth, in the said united kingdom ; whereby the said voyage, on which the said vessel was bound as aforesaid, was entirely interrupted, destroyed, and lost; and the said property of the plaintiffs became and was entirely lost to them.”
    The cause came before the Court on a case stated by the parties, in which it was agreed, that while the ship was pursuing her voyage, the master had notice from a British privateer of the British orders in council of the 11th of November, 1807, by which the port of Rotterdam was placed under the same restrictions respecting trade, as if actually blockaded; and all neutral vessels bound thither were made subject to capture as prize, unless cleared out from * Great Britain, Gibraltar, or Malta; that there- [ * 350 ] upon the master could not have proceeded to his destined port without great danger of being captured, and he therefore proceeded to Plymouth, in England, to procure further intelligence and advice how to act, and while lying in that port the ship was greatly damaged by a violent storm, which damage was not repaired until the 4th of February following; that while in Plymouth the master was informed of the French decree of December 17th, 1807, by which all vessels which had been boarded by a British ship, or which had submitted to make a voyage to Great Britain, or which had cleared out from any port therein, should be considered as good prize ; that the master, having knowledge of the operation of this decree in Holland, determined, on the 29th of February, 1808, to proceed with the ship to London, but was prevented by head winds from sailing until the 1st of April following; that on her arrival at London, on the 18th of April, the cargo was landed for the benefit of all concerned; that the ship could not have been cleared out from Plymouth for Rotterdam with cotton on board, of which about a tenth part of her cargo consisted, but the same must have been unladen before any such clearance could have been obtained; that as soon as the plaintiffs had notice that the ship had began to unlade in London, they made an offer to the defendant to abandon, which was refused.
    
      The cause was argued at the last March term, in this county, by Prescott and Jadcson for the plaintiffs, and Dexter and Otis for the defendant.
    
      For the plaintiffs,
    
    it was observed that this case was easily distinguishable from that of Richardson & Al. vs. Maine F. and M. Insurance Company. 
       Here was an actual restraint, and prohibition by the government of the country where the ship lawfully was; for it will not be pretended that the going to Plymouth for advice, under the circumstances which caused it, was a deviation In that case, the voyage was discontinued from the mere [ * 351 ] fear of a * peril; but had the ship gone to the nearest and most convenient port of safety to procure intelligence, she would still have been protected by the policy. While lawfully at Plymouth, she was prohibited by the government of the country from going with her cargo to her port of destination. It is immaterial whether all or a part only of the cargo was thus interdicted. The defendant undertook that we should carry the whole cargo to Rotterdam. We were prevented by a peril within the policy, viz. the restraints and detainments of all kings, &c. The voyage was thus completely broken up and lost. Had the ship gone to Rotterdam, leaving the cotton in England, the ship and cargo would have been confiscated in Holland for that very fact. Besides, though the cotton constituted but a minor portion of the cargo, it might be the portion on which the principal profit was calculated.
    
      For the defendant,
    
    it was insisted that, if the voyage was defeated, it was not defeated by any of the perils insured against. Detainment of princes must intend some actual force, but never was used as a mere prohibition to carry particular articles of cargo to a particular port. Here was no arrest, as an embargo. The very prohibition was but temporary, and it was the duty of the assured to have waited until it was removed.
    Though the going to Plymouth was no deviation, yet the continuing there, and the going to London, was a deviation, by which the underwriters were discharged.
    The action was continued for advisement to this term, when the opinion of the Court was delivered by
    
      
       6 Mass. Rep. 102.
    
   Parsons, C. J.

(after briefly stating the facts agreed.) The question is, whether the plaintiffs are entitled to recover for. any loss within the policy, which insures against all the usual risks.

As no damage is stated as having happened to the goods insured, the only ground of claim is for a total loss, arising from the loss of the voyage insured. It must be admitted that the voyage has been wholly lost; but unless this loss *is from [ * 352 j some peril insured against, the plaintiffs must fail, unless some exception be made with respect to the cotton.

When the master had notice of the British orders, and unde stood that he could not afterwards proceed to his destined port, he departed from the course of his voyage, and arrived at Plymouth. As this was done for a good cause, and for the purpose of procuring intelligence and advice, and not with the intention of discontinuing the voyage, his proceeding is no deviation. It also appears that, after he arrived at Plymouth, finding new obstacles to the prosecution of his original voyage, he determined to proceed to London, and there discharge his cargo; but was prevented by head winds from sailing until the 1st of April, 1807. As an intention to deviate, where a ship has commenced the voyage assured, is no deviation, this determination of the master is no deviation; which must be considered as commencing on her sailing from Plymouth for London, for then the original voyage was abandoned. Therefore, whatever loss, from any of the perils insured against, happened before the 1st of April, is a charge on the underwriters.

It appears that the ship met with considerable sea damage while in the harbor of Plymouth, for which the underwriters upon the ship are answerable.

But the policy before us is only on the merchandise. Now, if the voyage was lost by a peril within the policy, that peril must be either capture, or the arrest and detention of a prince. But the departure from the direct course of the voyage, and the final abandonment of it, were not from capture, but from the fear of capture, which is not insured against. And there appears to be no arrest and detention of any prince.

For when the ship was in Plymouth, she might have cleared even for her port of destination; but the danger of proceeding thither was too imminent, in consequence of the French decrees, to justify that measure; or the ship might have returned home with her cargo. Indeed, no fact is stated which can be correctly construed as an arrest. It is true *tbat the cotton was [ * 353 J refused to be cleared at Plymouth for Rotterdam; but this was no arrest. For the refusing in a foreign country to clear out a vessel for any particular port, or ports, cannot be deemed an arrest within the policy, while the vessel remains in the master’s possession, with liberty to proceed to any but the prohibited ports.

In this case, it is manifest that, if the cotton might have been cleared out, the master would not have availed himself of it to proceed to his destined port. We cannot, therefore, find any peril insured against, by which the voyage has been lost,

Plaintiffs nonsuit. 
      
      
         [Richardson & Al. vs. Maine Insurance Company, 6 Mass. Rep. 102.— Cook vs. Essex Insurance Company, 6 Mass. Rep. 122. — Wheatland vs. Gray, 6 Mass. Rep. 124. -Amory vs. Jones, 6 Mass. Rep. 318. — Shepley vs. Tappan, 9 Mass. Rep. 20. — Breed vs. Eaton, 10 Mass. Rep. 21.— Brewer vs. Union Insurance Company, 12 Mass. Rep 170.— Tucker vs. United M. F. Insurance Company, 12 Mass. Rep. 288.—Ed .]
     