
    * Abner Wood versus The New England Marine Insurance Company.
    Insurance was for twelve calendar months, with an agreement that, should the • vessel be at sea at the expiration of that period, the risk was to be continued under the policy, at an agreed premium, until her arrival at her port of discharge. At the expiration of the year, the vessel was in a British port, whither she had been carried against the will of the master. A loss accuring afterwards in the further prosecution of the voyage, it was holden that, being absent on a voyage which had been commenced within the time of the original risk, the policy continued to protect the property after the expiration of the year, although not then literally at sea.
    Where any loss arising from the violation of the existing laws or regulations of any of the belligerent powers, restricting neutral commerce, was excepted from the risks undertaken in a policy of insurance, it was holden that the underwriters were liable for a loss arising from the violation of a decree of one of the belligerents, made after the execution of the policy.
    Assumpsit upon a policy of insurance, underwritten by the defendants upon the brig Sally-Ann, on which the plaintiff declared for a total loss. The trial was had upon the general issue, before the Chief Justice, November term, 1815, when a verdict was returned for the plaintiff, subject to the opinion of the Court upon the follow ing statement of facts :—
    The defendants executed the policy declared upon, on the 24th of December, 1806 ; wherein is contained that the plaintiff caused 6000 dollars to be insured by the defendants on the said brig, valued at 8000 dollars, from Newburyport to every port or place to which she may proceed, (excepting the West Indies,) during the term of twelve calendar months, to commence on the day of departure from Newburyport, at noon. A part of the usual printed form was as follows: “ beginning the adventure upon the said vessel as aforesaid, and to continue and endure during the voyage, and until said vessel shall be arrived and moored twenty-four hours in safety,” or until the expiration of twelve months aforesaid. At the foot of the policy, there follows this memorandum in writing: “ Should this vessel be at sea at the expiration of the above period, the rislc is to be continued until her arrival at a port of discharge. It is understood the company are not liable for any loss or expense arising from the 
      
      violation of the existing laws or regulations of any of the bellige-ent powers restricting neutral commerce.”
    The risk under this policy commenced on the 30th of December, 1806; and afterwards, and within twelve * months thereafter, viz., on the 14th of November, 1807, the said vessel sailed from Beverly for Amsterdam, and while proceeding on said voyage, under the protection of said policy, she was, on or about the 14th of December, 1807, captured by a British private armed ship, under pretence that she was bound to an enemy’s port. The master and all the hands, except the mate, were taken out, and the vessel ordered to Bristol, where she arrived on the 25th of the same December. The letter of marque, on board of which was the master of the Sally-Ann, arrived on the 28th. On his arrival the vessel was restored to him by the prize agents, and his papers delivered to him. The master then applied to the custom-house for a clearance to Amsterdam; but the collector, being doubtful of his right to clear vessels for that port, wrote to the admiralty for instructions, and in the mean time the master went himself to London, to consult with the plaintiff’s correspondent, to procure a clearance for the vessel. He remained there about twelve hours, and on his return to Bristol, he found that permission had arrived there to clear the vessel for Amsterdam.
    
    Immediately on his return to Bristol, the vessel was cleared ou,, and he proceeded to sea about the 20th of January, 1808; but was obliged to put back on account of contrary winds, and returned inte the outer roads for a few days, until a fair wind, when he sailed direct for the Texel, not having been on shore' after thus putting back. On receiving his papers from the prize agents, there was an endorsement on them, warning them not to proceed to an enemy’s port; against which he protested at the time. After sailing from Bristol for Amsterdam, he was boarded by an English frigate and a letter of marque, and permitted to proceed, after an examination of his papers.
    After the vessel arrived off the Texel, and while about taking a pilot on board to go up to Amsterdam, she was captured by a French privateer, and sent into a place called New Dieppe. The vessel, and the cargo on board thereof, were shortly after libelled as prize, in * the prize court at Baris, for having been captured and carried into England by a British cruiser, and departing thence for Holland, and being spoken by British cruisers on her voyage from Bristol to Holland. The vessel and cargo were immediately claimed by the master, and the consignees, and also by the Dutch government. Immediately on his arrival at Amsterdam, and before the vessel was injured the master applied to the captors to release the vessel on bond, and to deliver her without the cargo; but they refused.
    After remaining a long time in Holland and at Paris, where the libel against the vessel and cargo was pending, and believing there was no chance for a successful termination to his claim, the master of the said vessel, with the approbation and aid of the consignees of the cargo, and by advice of their counsel, made a compromise with the captors, by which it was agreed that the vessel and cargo should be sold, that the captors should retain two thirds of the neat proceeds thereof, and should restore the residue to the master and consignees, and that each party should bear their own cost and expenses. The said compromise was made bona fide, and was a reasonable one ; and it was for the best interest of all the parties concerned, that such compromise should be made; and it was the best that could be obtained. In making it, the vessel was not sacrificed for the benefit of the cargo; but it was as favorable for one as the other.
    Neither the master, nor any of his crew, were permitted to go on board the vessel, while under detention. When the master returned from Paris, he found that the sails and rigging were cut and destroyed, her boats gone, and the vessel a mere wreck, of very little value, and she was sold for as much as she was worth. The cargo brought a good price at the time of the compromise. Many American vessels, captured under similar circumstances, were condemned ; and in no case was a better compromise made than this. The said master did not know of the existence of the Milan decree, until after he was so captured by the French * privateer; although it was published in the London papers of the 6th of January.
    The plaintiff was interested in the vessel to the amount insured; and he abandoned to the defendants his interest therein, immediately after he received notice of the said compromise; but never before, although he had seasonable information of the previous events; and he claimed a total loss, and also a general average for expenses incurred in England, Holland and Paris, in prosecuting his claims for the vessel, evidence of which was filed in the action.
    The foregoing facts were all agreed by the parties, except that the question, whether the master knew of the existence of the Milan decree at the time of his sailing from England, was submitted to the jury, who found that he was ignorant thereof, as above stated.
    The verdict, in other respects, was taken pro forma only ; and if the plaintiff was entitled to recover any thing, it was agreed that the Court should direct the amount for which the verdict should
    
      stand ; or might appoint assessors, for any purpose they might think necessary or convenient.
    The cause was argued at the last March term, by Prescott and Hubbard for the plaintiff, and by Gorham for the defendants.
    
      For the plaintiff,
    
    it was contended that the vessel must be considered as at sea, and in the prosecution of her voyage, when she was under detention in England, and until her final capture by the French privateer, and so under the protection of the policy. 
    
    The loss in this case arose from mere illegal violence. It was not pretended to have been within the Berlin decree; and the Milan decree was not within the meaning of the exception of the policy, since it was not in existence at the time it was effected. 
    
    The abandonment was seasonably made, being immediately after the news of the compromise was received, by which a total loss was first ascertained to have taken place. 
    
    
      For the defendant,
    
    it was said that the policy * expired on the 30th of December, 1807; that the loss occurred under the provisions of the Milan decree, and the defendants are excused from all loss from any of the decrees of the belligerents, which might exist during the policy. As to the seasonableness of the abandonment, Gorham observed, that the difference in this case between a partial and a total loss was so inconsiderable, that the point was not worth contending.
    The cause stood over to this term for advisement; and now the opinion of the Court was delivered by
    
      
       4 B. & P. 181, Scott Al. vs. Thompson.—2 Johns. 89, Robinson vs. Marine Ins. Company.
      
    
    
      
      
         8 Johns. 277, Corp vs. United Ins. Company. — 7 Johns. 363, Tenet vs. Phœnix Ins. Company. — 6 Johns. 226, Craig vs. United Ins. Company.
      
    
    
      
       8 Mass. Rep. 494, Dorr vs. The Union Ins. Company. —11 Mass. Rep. 1, Dorr vs. N. E. Ins. Company. — 1 Johns. Casesy 313, Earl vs. Shaw. — 4 Binney, 445, Brown vs Phœnix Ins. Company. —9 East, 294.
    
   Parker, C. J.

Several questions have presented themselves in this case, of somewhat difficult solution; but we are now ready to decide them.

The first respects the duration of the risk; whether it continued to the time when the ship was captured by the French privateer. At that time the year, which was contemplated as the termination of the policy, had expired. But by the terms of the policy, if the ship was at sea when the year expired, the risk was to continue until the voyage should be completed; and an additional premium by the month was to be paid, until the termination of such voyage. At the expiration of the year, the ship was not literally at sea; but was in a British port, whither she had been carried against the will of the master.

Was she then, within a fair construction of the contract, within the intent of the parties, at sea? We think she was. She was absent on a voyage which had been commenced within the time of the original risk. She would have been protected, upon that voyage, to Amsterdam and back again; because within the common meaning of the term at sea, which was undoubtedly adopted by those parties. A vessel is considered in that condition, while on her voyage and pursuing the business of it, although during a part of the time she is necessarily within some port, in the prosecution of her voyage. The intention, in prolonging the risk beyond twelve months, was unquestionably to give the ship protection under the policy, in case * that time should expire, while the vessel should be employed in some unfinished voyage; and wdiether in a foreign port, or actually upon the high seas, we believe there was no difference in the contemplation of the parties, when the "contract was made.

The policy being in operation at the time of the capture, the next question is, whether the loss happened within any peril insured against. And here we must ascertain what is the loss complained of. It is the capture by a French privateer, on the pretext that the ship had come from a British port, and had been spoken with by British cruisers. This certainly is within the general risks provided against in the policy ; for it was an arrest and detention, and final loss, by the force and violence of subjects of the then emperor of France.

We must therefore consider the exception in the memorandum at the foot of the policy, and see whether, by that, the underwriters are discharged.

This exception is from any loss or expense, arising from the violation of the existing laws or regulations of any of the belligerent powers restricting neutral commerce. At the time of executing the policy, the Berlin decree of the emperor of France was existing; but no other decrees, either of France or Great Britain, were in force, which restricted neutral commerce. Had the vessel been captured under that decree, the underwriters would have been discharged. But upon examination of that decree, we do not find any of its provisions, which would have subjected this vessel to capture. Ft does not appear that she had articles of English growth or manufacture on board, or those of her colonies. By the terms of that decree, vessels coming from a British port were prohibited from entry into a port of France or her dependencies; but they were not thereby made liable to confiscation, unless there had been a false declaration of the master or others on board, to evade this article of the decree.

At the time of the capture, the Milan decree was in force, which subjected the ship to capture, if coming * from an English port, or if she had been spoken with by British cruisers. Now, although this vessel would probably have been taken under pretext of the Berlin decree, had the Milan decree not been passed, as the system of plunder was then in full operation, yet as another decree existed, which authorized French cruisers to capture vessels situated like this, we must suppose she was captured under the latter, and not under the former decree. Causa propinqua, non remota spectatur. And by the allegations of the libel, it appears that it was under the last-mentioned decree that the ship was claimed by the captors as prize.

This narrows the question to the point, whether the term existing decrees, as used by the defendants in the exception to their liability under the policy, can by fair construction comprehend the Milan decree. And we should willingly yield to the construction urged for the defendants, if it were consistent with the most liberal use of terms, as they are commonly used by merchants. But it must be considered that the underwriters were, in this respect, making their own bargain, _and inserting their own phraseology; the object being to secure themselves, by the exception, against a risk, which in the body of the policy they had incurred.

What did they intend to provide against ? Surely against any decrees then in force, whether known or unknown. The ingenuity of the belligerent powers, and particularly of the French emperor, in manufacturing decrees against neutral commerce, was not fore seen, or at least not sufficiently provided .against. At any rate, it was thought enough to secure themselves against any decrees already in force. The Berlin decree had passed, and Was probably heard of, when the policy was effected. It might have been supposed, that a retaliatory or countervailing decree would immediately be made by Great Britain. It was thought sufficient to provide against such decrees as were in force on the twenty-fourth day of December, 1806. Had it been designed to secure against all such decrees * as should be made during the risk under the policy, surely more apt words would have been taken, than those made use of in their memorandum. At any rate, we cannot distort language, so as to make the term existing mean something which is to be made to exist afterwards.

It is thought hard that the defendants should be made liable for a loss happening from means which neither party calculated upon, when the contract was made. But it does not differ from the case of the breaking out of a war, which occasions a capture; when at the making of a policy the most profound peace existed, and there were no symptoms of approaching war. In such a case the underwriter loses, Because he did not guard himself in the policy.

With respect to going into England, and thus exposing the ship to the rapacity of the French, under their monstrous decrees, this appears, hy the statement, to have been wholly involuntary on the part of the master ; and his sailing for Amsterdam was not a violation of duty, because he did not know of the Milan decree; and his permission to sail for Amsterdam from Bristol sufficiently exculpates him on account of the British orders in council. The British ports could not be considered as under blockade, by virtue of the Berlin decree, when there was notoriously no force there to carry it into execution; and a seizure and condemnation on that ground would have been considered a violence not justified by the law of nations. Indeed, the decree itself did not expose vessels to capture for coming from English ports, but only prevented their being received at French ports. It was therefore no breach of duty in the master to leave Bristol and sail for Amsterdam. Although, by the letter of the Berlin decree, his vessel might have been turned away on that account from Amsterdam, yet she was not made liable thereby to capture; and the master might well have supposed that, as he had been carried into the English port by force and constraint, the decree would not be enforced against him.

* It has been said in argument, that the ignorance of the existence of the Milan decree, on the part of the master, does not the less expose the owners to the loss of their insurance; because he sailed from England in violation of the letter of that decree.

But we see it nowhere decided, that a vessel sailing from a neutral country to a blockaded port, or a neutral vessel sailing from the blockaded port of a belligerent, the owners and master having no knowledge of the blockade, thereby becomes liable to be made prize. There may be a presumption of knowledge where a blockade actually exists, which will defeat the excuse of ignorance. But in this case there was not, nor could there be, any blockade of the English ports; and there was nothing from which the knowledge of the master could be inferred, of the exposure of his ship under the Milan decree, except that it had been published in England, before he sailed from thence. But this inference is rebutted by the verdict of the jury.

Upon the whole, we think the loss in this case comes within the policy, according to the fair principles of construction, and not within the memorandum, under which the defendants would shelter themselves.

'Pile premium being stated in the policy at one per cent, per month daring the continuance of the risk, and it being agreed that the amount of it shall be deducted from the sum adjudged to the p'aintiff, it is necessary that we should decide the time for which the plaintiff is held to pay it, under the circumstances of the case; and it is our opinion that the same is recoverable, from the commencement of the risk until the time when the final compromise took place between the captors and the master.  