
    Thomas Brewer versus Union Insurance Company.
    An American vessel was at Buenos Ayres when the news of war between the United States and Great Britain reached that place ; and at the same time two British ships of war were lying in the river below the ship, the commanders of which announced their intention of capturing the ship, if she should attempt to sail. The ship was thus deterred from sailing, and an abandonment was offered to the underwriters upon her. It was holden that there was no loss, either absolute or technical, for which underwriters against the usual risks were liable.
    *This was an action of assumpsit on a policy of in- [*170] surance, dated the 5th of March, 1812, by which the defendants insured for the plaintiff against the usual risks, the sum of $5000 on the ship Laura and appurtenances, at and from Boston, to a port or ports in the river of Plate, and at and from such port or ports to Boston, or port or ports of discharge in the United States, with liberty to touch and trade at a port or ports in Brazil, on the outward and homeward passages, and to return from such port ot ports in Brazil, without proceeding further. The plaintiff declares, that, during the said voyage, namely, on the 26th of April, 1813, the ship was, by force of arms, in a hostile manner, seized, restrained, and detained in the harbour of Buenos Ayres, by certain ships of war, in the service, and acting under the authority, of the king of Great Britain, and thereby became wholly lost to him. The defendants pleaded the general issue.
    On the trial of the said issue before Jackson, J., at the last November term, in this county, it appeared that the said ship arrived at Buenos Ayres on the 12th of September, 1812 ; and on the 6th of October following, intelligence was received at that place, of the war declared by the United States against Great Britain. The ship was then prepared to take in her return cargo, and would have been ready to sail on her homeward passage in about a fortnight. There were, at that time, a British frigate and gun brig lying in the river of Plate nelow Buenos Ayres, in such situations that the Laura must have passed very-near them in going to sea, and it was impossible to go down the river without being captured by them. The officers of those vessels had announced and made known to the master of the Laura, and to the other American vessels then in Buenos Ayres, their intention to capture the American ships, if they should attempt to go to sea. The Laura was by this cause alone prevented [*171] from sailing ; and she still continued at Buenos * Ayres, under the same circumstances, at the date of the last advices from her previous to the trial, namely, on the 25th of March, 1814.
    On the 9th of March, 1813, the master of the Laura made his protest at Buenos Ayres, setting forth the causes and circumstances of his stay at that place ; and a copy of this protest was, on the 26th of April, 1814, forwarded to the plaintiff’s agent. Immediately on the receipt of this intelligence, the agent made it known to the defendants, and offered to abandon to them the said property, so far as insured by the said policy, considering the voyage as totally defeated by the circumstances above mentioned. The abandonment was not accepted.
    The judge instructed the jury that this evidence did not maintain the issue on the part of the plaintiff; and they accordingly returned a verdict for the defendants. The plaintiff moved for a new trial, on account of the said direction of the judge.
    
      Prescott, for the plaintiff.
    
      Hubbard, for the defendants.
   Curia.

We consider this case as coming directly within the principles laid down in the case of Richardson & al. vs. The Maine Fire and Marine Insurance Company.

The offer to abandon was not founded on any loss, technical or absolute. There was no application of hostile force, to prevent the sailing of the ship ; and, although her sailing would have been attended with imminent risk, yet, if that risk would authorize an abandonment, the fear of capture would become a peril insured against, contrary to the decision before referred to. This is certainly a very strong case ; but we cannot make new and nice distinctions. AH the cases relied upon by the plaintiff’s counsel were considered b) the Court, when they established the principle, that fear of a peril however well grounded, will not justify an abandonment.

Judgment according to the verdict. 
      
       6 Mass. Rep. 102.
     
      
       Sed queere, et vide Oliver vs. The Union Insurance Company, 3 Wheat. 133. — Saltus vs. The United States Insurance Company, 15 Johns. 526. — Smith vs. Universa. Insurance Company, 6 Wheat. 186, and note to Shapley vs. Tappan, 9 Mass. Rep. 27.
     