
    Daniel Tucker versus The United Marine and Fire Insurance Company.
    Insurance was on the freight of a ship from the United States to Tonnmgen or Hamburg. The ship was captured by an English cruiser and carried into England, and afterwards liberated. In the mean time, the French decrees had made it too hazardous to proceed to the place of destination. The cargo was, by an order from the Chancery, delivered to an agent of the owners of it; and the master failed to recover the freight in an action instituted therefor, because the terms of the charter-party had not been fulfilled. No abandonment was made during the detention by capture. It was holden that the underwriters were not liable, the loss having arisen, not from any peril insured against, but only from an apprehension of such peril.
    Assumpsit on a policy of insurance, for $7000, on the ship Nep
      
      tune and appurtenances, $ 1000 on her cargo on board, and $2000 on freight, at and from Charleston, South Carolina, to Tonningen or Hamburg.
    
    [*289] *The interest of the plaintiff in the ship, cargo, and freight, the seaworthiness of the ship, and the facts stated in the deposition of J. B. Osgood, which came up in the case, were admitted by the parties ; and if the Court should be of opinion, on those facts, that the plaintiff was entitled to recover for a total loss on the sum insured on the freight, the defendants were to be default ed ; otherwise, the plaintiff was to become nonsuit, and the defendants to recover costs ; they having paid into court the amount of the general average loss on ship, cargo, and freight.
    The following facts are stated in the said deposition. The ship Neptune, of which the deponent was master, sailed about the 1st of September, 1807, from Charleston, South Carolina, bound to Tonningen, having a cargo principally on freight, and, in case the blockade of Hamburg should have been raised, she was to proceed to that place. On or about the 4th of October, she was taken possession of by an English vessel of war, and carried into Plymouth, in England, where she was detained until the fore part of November, and was then liberated. She then proceeded up the Channel, and was overtaken by a violent gale of wind, whereby she lost a cable rnd two anchors.
    Proceeding to Dover in order to repair damages, the master received a letter from the agent of the owner of the cargo in London, acquainting him .with the British Orders in Council having been issued and ordered to be carried into execution, and requesting him to come to London, to consult about the destination of the ship. At the same time the master received also a letter from the consignee of the cargo at Hamburg, informing him that the French decrees were rigidly enforced there, and therefore requesting him to proceed to Rotterdam, stating that the decrees might more easily be evaded there, but that at Hamburg the ship and cargo would inevitably be sequestered.
    After replacing the anchors, the master proceeded with the ship to Sheerness, as the nearest place of safety, and, going himself to London, was informed by Mr. Lyman, Consul of the United [ * 290 ] States, that he had received a letter from Mr. * Forbes, American Consul at Hamburg, requesting him to caution all Americans not to enter France, Holland, or Germany, after having been in a British port, and informing him that fines and imprisonment would be the consequence of false representations. Experienced merchants and learned lawyers, being consulted by the master, all concurring in opinion that he might lawfully terminate the " oyage in London, he took the ship there, tendered the cargo to the agent of the owners of it, and demanded his freight; which being refused, he landed the goods and retained them for freight. Shortly after, the agent, upon an application to the Court of Chancery, obtained an order for the delivery of the cargo, on paying into court £ 2000 sterling, as a pledge to secure the payment of the freight. But it was afterwards decided, in a suit commenced for the recovery of the freight, that none was due, because the terms of the charter-party had not been fulfilled.
    The cause was argued, at the last term, by Longfellow, for the plaintiff, and Whitman, for the defendants, and, being continued nisi from this term for advisement, judgment was rendered at the succeeding September term in Berkshire.
    
   Per Curiam.

Upon consideration of this case, and comparing it with the case of Lee & al. vs. Gray, we find nothing to justify a different decision from the one which was made in that case. It was urged upon our consideration in the argument, that the ship, insured ty the policy upon which this action is brought, was captured by a British armed vessel, and forcibly carried into England; whereas, in the other case, there was no actual capture, but a voluntary departure for England upon information of the existence of the French decrees.

We postponed the decision of this cause, in order to ascertain whether this difference in the facts ought to have any weight. But it appears that the vessel and cargo were liberated soon after her arrival at Plymouth, and restored to the possession of the master, who was under no restraint, but afterwards deviated from his voyage merely through fear of being seized for a violation of the decrees. We do not * think that his temporary detention [*291 j by capture, no abandonment having been made during its existence, can have any effect.

The freight was not lost from any of the perils insured against, but altogether from the apprehension of peril, and therefore is not charge able to the underwriters.

The principles of this decision have been so ably discussed in the two cases of Richardson & al. vs. Maine F. & M. Insurance Company, and Lee al. vs. Gray, before referred to, that it is wholly unnecessary to enter into any reasoning upon the subject now. Judgment must therefore be for the defendants, with costs, according to the agreement of the parties.

Plaintiff nonsuit. 
      
       7 Mass. Rep. 349.
     
      
       8 Mass. Rep. 402.
     
      
       Vide note to Brewer vs. The Union Insurance Company, ante, 171.
     