
    Ferguson and another against The Phœnix Insurance Company.
    1813. Philadelphia, Monday, July 12.
    Goods were insured on board the ship “ from "York to Am- ‘‘ sterdam, with “of being “turned off on “aS‘?°un,t , “of blockade, “ to proceed to "aneighbouring voyage she was £n^rpiby a vateer, and her “enter or at“tempt to enter “port"”in^on-sequence of which she proceededto Cowes, where 28th of December 1807. She there and took aS,ncense for Amsterdam, to continue in force four months from the 30th of December 1807. On the 13th of wifen about°to depart, she was ¿bSi«A ship of and libelled in the admiralty. Restitution was obtained on the 23d of March, and on the 18th of April she sailed with a view of prosecuting her voyage to Amsterdam, but was again captured by a British cruizer on the 3d of May, sent to Tarmouth Hoads, and a second time libelled. She was restored on the 21st of June; but her licence having expired, and intelligence having been received in England that the French and Butch decrees were rigidly enforced on the continent, the captain proceeded to London, and there discharged his cargo.
    
      Meld, that London was a neighbouring port, within the policy, and that the assured liad no right to abandon.
    THIS was an action of covenant upon a policy for 3209 dollars, dated the 2d of November 1807, on goods by S^'P Logan, My rick master, at and from New York to Amsterdam, “with liberty, in case of being turned off on ac-u count of blockade, to proceed to a neighbouring portP Premium ten per cent., to return two, in case or sate arrival,
    At the trial of the cause before Yeates T. at a Nisi Prius, . , , , , . in January last, the plaintiffs, having opened their case to (¿g jury entirely from written and printed documents, the defendants demurred; and on this demurrer it came now before the Court.
    The material facts were these: The Logan sailed from Lork upon the voyage insured, on the 31st of October 1807, having on board Savanna sugars belonging to the plain-,. tiffs, to an amount equal to the sum in the policy. On the 25 th of December, s * was boarded off Scilly by the British private 'ship of wc Minerva, and her papers indorsed, ,, , 1 , ,, warned not to enter, or attempt to enter, an enemy s port. The captain of the privateer at the same time read to the captain of the Logan, the British orders in council; in consequence of which the latter proceeded for advice to England, and arrived at Cowes on the 28th of December. Finding from the English newspapers, that all neutral ships and cargoes r -n , , ,. , , i , , coming from England, were liable to confiscation by the French decrees, he went to London; but learning nothing , , , , , , ° , . more than the existence of the decrees, he returned to his ship at Cowes, to remain there for information from Holland, which was daily expected, as to the operation of those decrees in that country. On the 22d of January 1808, he received advice from his owners’ correspondents, that there was no obstruction to American ships entering Holland; and having previously paid duties, and taken a license for Amsterdam, to continue in force for four months from the 30th of December 1807, he determined to proceed on his voyage to Amsterdam. But, as he stated in one of his protests, after "waiting at Cowes for a favourable opportunity to proceed with his ship for Amsterdam, and being about to depart, he was, on the 13th of February, seized by an officer and boat’s crew from the British ship of war Pelter, and the ship’s papers taken and sent to Portsmouth. The ship and cargo were libelled in the admiralty, and the captain attended in London until the 23d of March, when they were restored. He then proceeded to Portsmouth, where the ship had in the mean time been carried, and obtained possession on the 1st of April. Bad weather and various accidents detained him until the 18th of April, when he weighed anchor, and proceeded to the Mother Bank to wait for convoy to the Downs. He obtained it on the 23d, and on the next day came to in Dover, Roads, the wind being ahead. On the 1st of May he proceeded for Amsterdam, but on the third was boarded by the Zenobia sloop of war, and sent, under the charge of a prize master and crew, to Tarmouth Roads. The ship and cargo were a second time libelled in the admiralty, and restored on the 21st of June; but about this time, information being received that the decrees of the French and Dutch governments, prohibiting the entry into their ports, of any vessel coming from England, were rigorously enforced in Holland, — that several vessels had been seized there, and others ordered away, he determined to take his ship to London, and land her cargo, which he accordingly did a few days afterwards. On the 19th of October, the plaintiffs received a letter from Gruffe and brother, their agents in London, dated the 8th of September, informing of the unlading of the cargo, and on the next day they abandoned.
    The case was very ably argued by Hallowell and Rawle for the defendants, and by Hare and Meredith contra;
    but the Court having expressed no opinion upon the point that was particularly pressed by the counsel, it becomes unnecessary to give more than the heads of the argument on both sides.
    
      The defendant's counsel objected to a recovery as for a tota* *oss’ which was onty point in dispute,
    1. In consequence of the delay at Cowes, from the 22d of January to the 13th of February, without any cause being assigned. This, they said, was a deviation which discharged the underwriters. Park 295. 310., 1 Condy's Marsh. 199, 200.
    2. Because, after the expiration of her license, to wit, on the first of May 1808, the ship sailed for Amsterdam, a blockaded port, contrary to her duty to the belligerent who imposed it, and in violation of the policy, as she had been previously turned off. This was an increase of the risk, which discharged the underwriters.
    3. Because, having been turned off from Amsterdam in consequence of blockade, the clause in the policy came into effect, by which it was made her duty to go to a neighbouring port; and London being selected as a port of discharge, was a neighbouring port, within the policy, where the voyage regularly terminated. If not a neighbouring port, then it was a deviation to go there; and none of the French or Dutch decrees, or British orders, justified the captain in thus deviating and breaking up the voyage. It was the consequence of apprehension merely. On this point were cited, Richardson v. Maine Ins. Co. 
      
      , Radcliff v. The United Insurance Company 
      , Snowden v. Phœnix Insurance Company 
      
      , Savage v. Pleasants 
      
       Lee v. Gray 
      
      , Hadkinson v. Robinson 
      , Lubbock v. Rowcroft 
      
      , Blackenhagen v. London Assurance Company 
      .
    
      4. Because the abandonment on the 19th of October was too late, the unlading of the cargo having taken place about the beginning of July; and the plaintiffs were responsible as much for the' delay of their agents, in not sooner communicating that fact to them, as they would have been for their own delay in not communicating it immediately to the underwriters. Unless an abandonment, is accepted, the agency is at the risk of the assured.
    The plaintiffs' counsel answered
    1. That there was no deviation by delay at Cowes, because the master swore that he waited for a favourable opportunity 
      
      to proceed, from which the jury might have inferred, and the; Court must infer, that he seized the first favourable oppor-. tunity, and that unfavourable occurrences operating on the ship, such as the state of the winds or weather, prevented him from proceeding sooner.
    2. That the ship sailed from Corves for Amsterdam before her license expired, though taken afterwards; and that she was still under the protection of that license, in consequence of her previous detention being caused by the government that gave it. Nothing but this circumstance could have led to a restitution of ship and cargo, by the admiralty.
    3. That London was not a neighbouring port within the policy; that phrase being used in a geographical sense, and with reference to the cargo, which was intended for a market on the continent. That if it was a neighbouring port, it was in the option of the plaintiffs not to use it, that clause being inserted, not to compel them to go there, but to protect them if they chose to go there, instead of breaking up the voyage and abandoning; and that the master, by reason of the Dutch decrees, and British orders, and the moral certainty of capture and confiscation in case he proceeded, was justified in breaking up the voyage, and landing the cargo in England.
    
    That this was the direct consequence of a legal and moral restraint, as effectual as if it had been actual, which was insured against by the policy, and entitled the plaintiffs to abandon. Tenet v. Phœnix Insurance Company 
      , 1 Emerigon 307, 508. 510, 511. 543, 544., 1 Valin lib. 3. tit. 3. Art. 15. p. 656, 657., Pothier, Charte Partie 79., Schmidt v. United Insurance Company 
      
       Craig v. United Insurance Company 
      , Marine Insurance Company v. Tucker 
      , King v. Delaware Insurance Company 
      , Barker v. Blakes 
      
      , Snowden v. Phœnix Insurance Cpmpany 
      
      .
    
    4. That the abandonment was made in due time, being offered as soon as the plaintiffs knew of the loss;' and that the negligence of agents abroad, did not affect the assured, because, by abandoning as soon as the loss was known, they transferred the property to the underwriters from the time of the loss, and placed the agency at their risk. Whether the persons having charge of property after a loss, are the agents of the assured, or the underwriters, depends on the former abandoning or not when the loss is known. If an abandonment is made, they are the agents of the underwriters.
    
      
       6 Mass. 110.
    
    
      
      
        7 Johns. 38.45. 9 Johns. 277.
      
    
    
      
       3 Binn. 466.
    
    
      
      
        Supra p. 403
    
    
      
      
        7 Mass. 349.
    
    
      
       3 Bos. & Pul. 388.
    
    
      
       5 Esp. SO.
      
    
    
      
       1 Campb. 454.
    
    
      
      
        а) 7 Johns. 363,
    
    
      
       1 Johns. 249.
    
    
      
       6 Johns. 226.
    
    
      
      
         3 Crunch 396,
    
    
      
       6 Cranch 71.
      
    
    
      
       9 East 283.
    
    
      
      
         3 Binn. 469.
    
   Tilghman C. J.

after stating the facts, delivered his opinion as follows:

Serious objections have been made to the captain’s conduct in remaining so long at Corves, after he had obtained a license to proceed to Amsterdam, and also to the conduct of the plaintiffs’ agents in London, in suffering so long a time to elapse before information was given of the discharge of the cargo. I shall give no opinion on these objections, nor on the point raised by the plaintiffs’ counsel, and very well argued, touching the general right to abandon, in consequence of the situation in which the ship was placed under the British orders in council, and the decrees of France and Holland. It appears to me, that the case may be more properly decided under the special agreement in the policy, by which the ship was permitted to proceed to a neighbouring port, in case of being turned off on account of blockade. This agreement is entitled to a liberal construction, having been intended to remove the embarrassments arising from a blockaded port. A neighbouring port is an expression not very definite. I see nothing in it, however, which is confined to a port on the continent; and it would surely be unreasonable to give it that construction, if a port in the island of Great Britain should be nearer than any port unblockaded on the continent. So with regard to a blockade, it is immaterial whether it be actual or on paper, lawful or unlawful. The decrees of the emperor of France blockaded the whole island of Great Britain, and the British orders in council blockaded all that part of the continent held by France or her allies. In such a case what was to be done? It has not been denied, that the port of London was nearer to Amsterdam, than any port on the continent, not blockaded by the British orders in council. London then, may be fairly said to be a neighbouring port, within the meaning of the policy, and had the ship been lost on her way to that port, the underwriters would have been responsible. The captain had a right to go to London, and did go there for the purpose of discharging the cargo. Had the ship been lost on the way, the goods would have been covered by the policy. The owners of the goods, then, shall not be permitted in the first place to avail themselves of the policy, in order to get their property into' port, and having arrived there, to consider the. voyage as broken up, and throw the cargo on the underwriters.

Upon the whole of this case, it appears to me, that the voyage was completed according to the true intent of the policy. The assured, therefore, had no right to abandon.

Yeates J. was of the same opinion.

Brackenridge J.

I continue to be of the opinion that I have heretofore expressed in other cases, that the indorsing papers, and ordering to proceed to a port in England, was a capture sub modos that is according as the effect of it should turn out to be. It was such a restraint, and might occasion such detention, as to change the practicability of attaining a port of destination, and might break up the voyage. It did turn out to be the cause of an entry being prohibited at the port of destination, and of the voyage as to the main object being broken up; for I can have no idea that a port of England, was within the meaning of that clause in the policy, “ with liberty, in case of being turned off on account of “ blockade, to proceed to a neighbouring port.” The nature of the cargo shews that it could not be a British port that was intended. Sugars, of which the cargo insured consisted, could not be discharged at a port in England, but for the purpose of transportation. A market there, or a sale for this purpose, could be no better, if not worse, from the duties to be paid, than at the port of departure. It was evidently a cargo for the continent, and a neighbouring must mean some port in the vicinity of Amsterdam, and upon the continent. It is apparent for another reason, that on the second of November 1807, the time the policy was underwritten, there was no British port blockaded, or could be blockaded actually; for no other belligerent power had the means of blockading actually, and the constructive blockade of the Berlin decree had been declared by the French government not to extend to vessels of the United States. And it was not until long after, viz. the 23d of January 1808, that even this constructive blockade, or prohibition of an entry, had been declared by the Dutch decree of Lewis, king of Holland. So that I do not consider the port of London finally attained, as coming within the meaning of the policy. It was attained, it is true, and the cargo discharged; but this was compulsory, and the effect of the British outrage upon the law of nations, in marking papers, and ordering to proceed tG a British port in the first instance. All that happened afwas a struggle to escape from the effect of this; the complying by proceeding to a British port. For without so doing, there was no chance, or at least so little as to render it improbable that the vessel could escape, in which case an absolute capture and condemnation was unavoidable. The British cruisers, covering every wave in the channel, and on the coast of England, she was as perfectly guarded as if a prize master had been put on board. I do not, therefore, consider the proceeding to Cowes as a deviation, but á necessity imposed as an act of prudence on the part of the captain, by reason of the indorsing papers, and warning to proceed to a British port. And under the denomination of necessary prudence, I include the paying duties, taking license or convoy. But the delay at Cowes is in my way, and may make it a deviation. For the delay of a day might materially vary the effect of the license which had been obtained, the chance of convoy, or a more or less rigorous enforcement of the French belligerent decrees. A delay of three weeks did materially vary. The license expired before approaching Amsterdam, which occasioned the taking by the Zenobia. But suppose a cause of abandonment to have arisen, would not the captain be considered as from thence the agent of the insurers, or the agent of both insurer and insured, so that as to the delay, it will equally affect both, and not the insured only, so as to discharge the cause of abandonment? There is an equivocal language of this kind to be found in tract writers, and the reports of judicial decisions, of the captain or agent entrusted with the ship and cargo, being the agent of both. But it is language or dictum, if any where found, which I cannot comprehend. I consider him or them the agent of the insured only, not after a cause of abandonment has arisen, and until abandonment made, but even after abandonment, and until reasonable time and opportunity be given to the insurers to get actual possession of the property abandoned, and to become his own agent. A want of due diligence, therefore, or a want of due prudence, and unskilful management on the part of the insurers, will defeat the right of abandonment. I have not an opportunity of looking into authorities on this head, and comparing them, but it is so clear a principle in all cases of agency, that I cannot doubt of it. Now applying this, I am not able to get over the unaccounted for delay of three weeks at Cowes, and for that reason, and for that only, am constrained to concur in deciding for the defen dants. It is possible the captain, had he been examined as to this, or had he attended to it himself, in the several protests that he made, could have filled up.v this place, by shewing some necessity for the delay; but he has not done it, though he had it in his own hand, and could easily have raised a storm, or given adverse winds, or wanted convoy, or have invented some accident, but he has not ventured to do this, and I can make no other inference, but that he was amusing himself on shore, and taken up with the pleasures of the place. This, though spoken of by the counsel for the defendant as a minor point, appears to me the major in this case. I think less of the great point made, that the British arrest and the French interdict did not come under the head of restraint of princes. For I take them together, and between one and the other, certain it is that the voyage was defeated and the object of it broken up; and if not with a view to a possibility of such war risks, why the ten per cent, premium? On the other principal point made, I am also clear, that a neighbouring port must be construed a port in the vicinity of Amsterdam,, and on the same side of the channel or sea, which the port of London was not; and as to abandonment within reasonable time, it is unnecessary to say, as I am constrained to be of opinion that the unaccounted for delay at Cowes discharged the cause of abandonment which had arisen, or might afterwards arise.

Judgment for a general average only, to be adjusted by the parties.  