
    Nehemiah Parsons versus The Massachusetts Fire and Marine Insurance Company
    Merchandise is insured on board a ship to India and home, for the purpose of disposing of the outward, and procuring a return cargo, and in India, in the due course of the voyage, a part of the merchandise is sent on shore; and, after-wards, being in the ship’s boat for the purpose of being reshipped, it is violently seized and detained, either by the orders of a sovereign prince, or by assailing thieves: the insurers are liable.
    Case upon a policy of insurance, which is in the usual form, insuring for the plaintiff “ 5000 dollars, in specie or merchandise out, and merchandise home, on board the brig Success, at and from Boston, to port or ports in the Islands of Sumatra and Java, for the purpose of disposing of the outward, and procuring a return cargo, and at and from thence to her port of discharge in the United States, with liberty to touch at the usual places of refreshment, on the outward and homeward passages, and to trade thereat.”
    The cause came before the Court on a case stated, in which the parties agree to the following facts: —
    The defendants made the policy declared on, and the plaintiff was interested in the cargo, to a greater amount than the sum insured thereon by him.
    The vessel arrived, with her cargo on board, at Labouaga, in the Island of Sumatra, on the 5th of June, 1805, when John Hilliard, the master, went on shore, three days successively, to ascertain the price of pepper; and finding the state of the market unfavorable, he determined to proceed to another port in [* 198] said island. When he was weighing * anchor for this purpose, the chief magistrate or sovereign of the countries, called Dato Bassow, sent off certain messengers, and offered to furnish him with a cargo of pepper upon terms which were satisfactory ; and he accordingly, the next day, proceeded to take on board his return cargo. He continued lading, according to the usual course of business in that place, until the 24th of said June, when he agreed to sell to the said Dato a chest of opium, being the property of the plaintiff, and part of the cargo, at an agreed price, and to receive one half the price thereof in dollars, and the other half in pepper, which he supposed would complete the lading of the vessel. The said Dato accordingly ordered his subjects to deliver the said pepper, which Captain H. continued to take in until the evening of that day. Early in the morning of the next day, the said Dato came on board the vessel, to ascertain how much more pepper she could take in. He appeared to be very friendly, and after tarrying about half an hour, and examining the vessel, he went on shore. The captain went with him, and sent off the last boat-load of pepper that the ship could take in, which, with one third before received on account of the opium, made about two thirds of the value of the opium. The Dato then desired to have the opium brought on shore, and said he would pay the balance in dollars, as he had agreed. It was brought on shore, and the Dato 
      ordered his men to take it to the scales, and see if it held out in weight; and while they were placing it in the scales, the Dato told Captain H. that he must let him have it at a price which he named, and which was less by one fifth than the price before agreed on. Captain H. immediately replied, that unless the Dato would comply with the agreement, he would pay him in dollars for the pepper received on account of the opium, which he would take on board again. To this he apparently assented; and Captain H. sent for his long-boat and four hands to take the opium on board the ship. The water being shoal for some distance, the people waded up*to their knees in the water about four or [*199] five rods, with the opium, and had rested it on the gunwale of the boat, and were part of them getting into the boat to stow it, when the Dato ordered his subjects to bring it on shore again. About two hundred of the natives accordingly ran to the boat, and brought back the opium with loud shouts. On inquiring of the Dato the meaning of this extraordinary conduct, he told the captain, that when he had paid for said pepper, and had received back a chest of muskets, which he had previously sold him, and returned the price paid for them, he might go on board his vessel, with the opium and muskets. Captain H. sent on board for his money, and paid 212 dollars 50 cents, which he had received foi the muskets, and 1785 dollars, which was the price of the pepper, and desired that some of the natives should assist him in getting the muskets and opium into the boat. The Dato then replied, that those goods should not be carried on board until the money received for one half of the opium, which he said he had paid the day before, was returned. On the captain’s asking him the meaning of such conduct, the Dato replied, that he had paid him in dollars for half the opium the day before, and that it should not be carried on board until that sum was returned. This assertion was wholly untrue, and the captain became alarmed, and inquired of the interpreter, who had always been friendly to him, if the Dato intended to rob him. The interpreter replied, in a low voice, that he did The captain said, that he might as well take his life as the opium, and that he must take it on board that night. The interpreter replied, “ You will do well to get away alive yourself, and, as a friend, I advise you not to hesitate a moment.” As it was then evening, and Captain H. knew that the Dato had no superior, to whom he could apply for relief or protection, he determined to get on board with his boat’s crew as soon as possible; and ne had scarcely got clear of the shore, when an attempt was made by the natives to stop him, but without success. On the * said 25th day of June, there were nearly 2000 of [*200j the natives on the shore, and rather more the next day, a larger portion than usual of whom were armed. Before that time, there had never been above 200 together. During the whole night of the 25th, the crew were expecting to be attacked by the natives, and made every preparation to defend themselves. In the morning, a prow, or small vessel, belonging to a neighboring port, came off from the shore, the master of which advised Captain H. not to go on shore, telling him that the natives had carried the opium, back into the country, that they were making preparations to capture the vessel, and were arming every prow in the harbor for that purpose. This information corresponding with what had already occurred, and with the hostile appearances on shore, which were seen from the vessel, Captain II. determined, for the preservation of the lives of the crew, and the residue of the property, to put to sea immediately. As soon as this was seen from the shore, the natives began to fire at the vessel from the fort, but did not prevent her departure. The usual mode of conducting business at said Labouaga is to contract with the Dato, or king, in whose name all contracts are made. His subjects furnish the articles contracted for to an officer, who delivers them to the purchaser, and in return receives the money, or other articles given in exchange, and distributes them among the natives. Captain Hilliard, conducted his sales and purchases, and his mercantile transactions, in all respects, according to the usage of said place. The value of the opium and other arti cles lost was, at the time of the shipment, 3100 dollars; and the sum due from the defendants, if they are liable for the whole of said loss, is 2558 dollars 57 cents, with interest from, &c.
    If, upon the foregoing statement, the Court should be of opinion that the plaintiff is entitled to recover for said loss, the defendants agree to be defaulted, and that judgment be rendered [*201 ] against them for such sum as the Court * shall award, with costs; otherwise the plaintiff agrees to become nonsuit, and that judgment for costs be rendered against him.
    The cause was argued upon these facts, at the last March term, by Otis and Jackson for the plaintiff, and Deader and Hall for the defendants.
    
      For the plaintiff, it was insisted that the seizure of the opium by assailing thieves, while lading on board the ship’s boat, was a loss protected by the policy. It was never safely landed, and though this is not an expression in the policy, yet words full as com prehen sive are used. The insurance was on merchandise on board the ship at and from Boston, &c., and at and from Sumatra and Java, for the purpose of disposing of the outward, and of procuring a return cargo. The property was then covered by the policy so long as it might be considered as on board the ship, (and for this purpose the boat is a part of the ship,) and until disposed of for the avowed purpose of the voyage, or until it was landed in safety according to the course of the voyage.
    But if it were safely landed, yet being afterwards seized by violence, while lading on board the boat, and had thus become part of the return cargo, still the insurance will protect it.
    The money demanded and taken by this JDato Bassow, or sovereign prince of the country, was property lost by the “ restraint and detainment of kings, princes,” &.c., and so expressly within the words of the policy. 
    
    
      For the defendants, it was insisted, that the insurance was limited to merchandise on board the ship. Here the article was landed in pursuance of a previous bargain, which had changed the property, and two thirds of the consideration had been actually received. This opium had become the property of the Dato Bassow, who in this case is to be considered solely as a merchant; and thus the defendants were discharged as much as if it had been landed. 
    
    " * The case of Martin vs. The Salem Marine Insurance [ * 202 ] Company 
       shows that goods insured must retain their connection with the vessel, to be within the contract of insurance. But this opium had been taken on shore, and put into the merchant’s scales to be weighed, when he fraudulently fell from his bargain, and with violence seized it, refusing to pay a balance still due for it. This was merely a fraud in this merchant, against which underwriters never insure. The pepper, which had been delivered in payment for the opium, and was on. board the ship, was at the risk of the underwriters as return cargo; but they could not be held for the outward and return cargoes at the same moment.
    As to the money, for which the plaintiff demands an indemnity, it was not taken by force, but voluntarily carried on shore, after the D to Bassow had unmasked himself. The master might certainly have refused to surrender it, and have brought it away with him.
    The cause was continued for advisement, and at this term the opinion of the Court was delivered by
    
      
      
        Marshall, 434, 162, 164, 171. — Beale vs. Thompson, 3 Bos. & Pul. 415, 416. — 4 East’s Rep. 546. — Peake’s N. P. 211.
    
    
      
      
        Marsh. 170.
    
    
      
       2 Mass. Rep. 420.
    
   Sedgwick, J.

(After stating the facts, as agreed by the parties.) The policy of insurance, upon which this action is brought, is in the usual form as to the perils insured against; and the loss ali ged to have happened during the voyage insured, is claimed against the defendants, as having been occasioned by the restraint and detention of a prince, called the Dato Bassow of the Island of Sumatra.

It is an insurance of 5000 dollars in specie or merchandise out and merchandise home, on board the brig Success, at and from Boston, to port or ports in the Island of Sumatra, or Java, for the purpose of disposing of the outward and procuring a return cargo, and at and from thence to her port of discharge in the United States.

It is agreed that the plaintiff was interested in the cargo shipped at Boston, for the voyage, to a greater amount than the [ * 203 ] sum insured, and that, during the voyage, he has * sustained a loss; and the general question is, whether for that loss the defendants are responsible.

The insurance is on the voyage round, both outward and homeward, for an entire premium, and it is therefore to be considered as one voyage.

There are two subjects for which the plaintiff claims to recover — 1. The money sent on shore from the brig, by the order of the master; and, 2. the opium, which was forcibly taken from the brig’s boat.

As to the money, we think the plaintiff cannot recover. The whole money carried on shore and delivered to the Dato Bassow, Was 1997 dollars 50 cents, of which 212 dollars 50 cents had been previously received of him for some muskets ; and the money was voluntarily delivered to him, on his promise to redeliver the muskets, which promise he broke. Had he performed his promise, no loss would have been sustained. Of consequence the real loss was sustained by his breach of promise, for which, however liberally we may be disposed to consider this contract, we cannot think the underwriters responsible. And, besides, these muskets were not the property of the plaintiff; and therefore the money received for them could not belong to him. As to the residue of the money, 1785 dollars, it was in fact paid as the price of pepper, which constituted part of the return cargo. The pepper was, it is true, received by the master in pursuance of an agreement, by which it was to be paid for in opium. The pepper was accordingly carried on board the brig, and the opium brought on shore ; but before the delivery was completed, the former agreement was rescinded, and a new one substituted, by which the master was to pay in money for the pepper, and the opium was to be returned on board. The master faithfully performed his part of the agreement, but the Dato Bassow most perfidiously violated his part. This violation of promise was the cause of the loss in this respect. It is therefore a loss, as has been observed with regard to the other sum of money, for which the underwriters cannot be responsible.

* The next question is, whether the plaintiff is entitled [ * 204 ] to recover for the opium. — The insurance is of the cargo on board for the voyage to the Islands of Sumatra and Java, for the purpose of disposing of the outward-, and procuring a return cargo.

That the opium was in fact lost by a peril insured against, the restraint and detention of a sovereign prince, or by assailing thieves, is undoubtedly true; and the only question is, whether the loss occasioned thereby happened under circumstances to entitle the plaintiff to demand a compensation for it from the underwriters.

It must be acknowledged that the policy did not attach, unless the property of the plaintiff, secured by it, was in such circumstances as to constitute part of the cargo of the brig; and that the insurers were discharged from all responsibility, whenever that property was landed in good safety, whether at the termination of the voyage, or at any intermediate port. Was the opium so landed at Labouaga, when it was violently seized and detained by the Dato Bassow ?

Every underwriter is presumed to be acquainted with the practice of the trade he insures; and it must be supposed to be the intention of the contract to conform the indemnity to the known practice. In the casé of Noble vs. Kennoway, this principle was recognized and applied. This was an insurance on the ships Hope and Anne, from Waterford to a port or ports of discharge on the coast of Labrador, and upon any kind of goods or merchandise; on the ships until they should have arrived at their port of discharge, and been moored at anchor twenty-four hours; and on the goods until the same should be discharged and safely landed. Both the ships arrived on the coast of Labrador; the last on the 14th of July, 1778. The goods were not landed, but kept on board until the 13th of August following, when they, with the ships, were captured by an enemy privateer. Now, it is the known duty of the insured, in ordinary cases, to remove goods insured from on board, * within a convenient and reasonable time [ * 295 ] after arrival at the port of destination ; and if he neglects to perform it, the underwriters are discharged. But as it turned out in evidence, in the case referred to, that the practice was different in this trade, and that goods were generally kept on board, it was therefore determined that the plaintiff was entitled to ecover.

And in the case of Tierney vs. Etherington, reported at large by Lord Mansfield, in delivering the opinion of the court in the case of Pelly vs. The Governor and Company of the Royal Exchange Assurance, the same principle is laid down. That was an insurance on goods in a Dutch ship from Malaga to Gibraltar, and at and from thence to England or Holland. This insurance was attended with an agreement, that upon the arrival of the ship at Gibraltar, the goods might be unladen, and reshipped in one or more British ship or ships for England and Holland.

Here it will be observed that the goods were insured in no other ships than the Dutch ship, in which they first were, and the British ship or ships, on board which they might be reshipped. But when the Dutch ship arrived at Gibraltar, the goods were unloaded, and put into a store-ship, which was considered as a warehouse, where, two days afterwards, they were lost in a storm. Now, although, by the terms of it, the policy did not protect the goods while in the store-ship, yet the plaintiff recovered, because the assured, by putting them there, had pursued the known course of the trade, and therefore such a construction must be given as would indemnify the assured for the loss which had happened. In this case, it was said by Lee, C. J., “ This manner of unloading and reshipping is to be considered as the necessary means of obtaining that which was intended by the policy, and seems to be the same as if it had happened in the act of reshipping from one ship to another; and as this is the known course of the trade, it seems extraordinary if it was not intended.” And in the case of Pelly vs. The Governor and Com- [ * 206 ] pany of the Royal Exchange * Assurance, Lord Mansfield says, “ The insurer, in estimating the price, at which he is willing to indemnify against all risks, must have under his consideration the nature of the voyage to be performed, and the usual course and manner of doing it. Every thing done in the usual course must have been foreseen, and in contemplation, at the time he engaged. He took the risk upon a supposition that what was usual or necessary would be done.” “ If it is usual to stay so long at a port, or to go out of the way, the insurer is considered as understanding that usage.” “ The means must be taken to be insured, as well as the end.” And Lord Mansfield, farther on in the same case, says that describing the voyage is an express reference to the usual manner of making it, as much as if every circumstance was mentioned.”

It remains to be considered, whether, in the application of these principles to the case at bar, it follows that the defendants are liable for the loss which has happened.

The insurers knew the nature of the voyage, and the risks to which it was exposed; and knowing this, they insured the plaintiff against the restraint and detention of princes, for the purpose of disposing of the outward, and procuring a return cargo ; and while executing this purpose, (in the doing of which, it is expressly agreed that the captain conducted his sales and purchases, and his mercantile transactions, in all respects, according to the usage of the place,) the property in question was, by the orders of a sovereign prince, violently seized, while resting on the gunwale of the brig's boat, at that time in the possession of the crew ; and it has thereby been lost to the assured.

The master, without being chargeable with any want of prudence or discretion, was induced, by the art, fraud, and falsehood, of the Dato Bassoiv, to carry the opium on shore, and put it in his power, whose after-conduct shows that his original intention was not to pay for it, but to detain it by force. Can this property, in the meaning of the policy, * be considered as safely [ * 207 ] landed, in such manner as to put it out of the protection of the stipulated indemnity ?

This case is certainly very little like that of Martin vs. The Salem M. Insurance Company, which was cited in the argument. In that case, so far as respects the question now before us, upon a policy similar to this, for the purpose of selling the outward, and purchasing a return cargo, it was very properly determined, that the underwriters were not liable for the proceeds of the sales of the outward cargo, which, by the plunder and burning of Cape.Franpois, were destroyed, in the possession of a factor, with whom they had been several months deposited. In the case before us, when the policy, as made in relation to that particular trade, — the conduct of the captain, in conforming to the known practice of it, —the base conduct of the Dato Bassow, by which the captain was induced to land the opium, — and the violence with which it was afterwards detained, — are taken "into consideration, it may well be said that it was never safely landed, and consequently that when it was lost, the loss was occasioned by a risk insured against. But upon this part of the case no opinion is given, because —

In a further attention to the facts agreed in this case, other considerations, favorable to the plaintiff, and which are believed to be decisive, present themselves. In deciding this cause, as has been before observed, the particular circumstances of the trade to be pursued in the voyage insured, are to be taken into consideration. Now, while the master, in the management of the concerns of his owners, is conducting his sales and purchases, and his mercantile transactions, in all respects, according to the usage of the place, it becomes proper (so conducting) to send on shore part of the cargo; and afterwards such transactions occur, as render it equally proper that it should be reshipped; and being in a boat o.f the ship for that purpose, the property is violently seized, taken away, and detained, either by the orders of a sovereign prince, or by assailing [ * 308 ] thieves, — there can be * no doubt that such is a violent seizure and detention, and renders the underwriters liable as much as they would be, if the property had been taken, in the same manner, from on board the ship itself. For although, in the commencement of the voyage, the insurance did not attach upon the goods, while in the act of .transportation in boats to the brig, nor until they were on board, and this from the terms of the policy, yet during the voyage, the goods were as much protected by the policy in the boats while they were employed, as auxiliary to the legitimate purposes of the voyage, as they were on board the ship. For all the purposes of the voyage, boats so employed are very reasonably considered as part of the ship. It is our opinion that the plaintiff is entitled to judgment.

Defendants defaulted..

Note. The chief justice did not sit in this cause. 
      
       Marshall, 161
     
      
      
        Doug. 492
     
      
       1 Burr 348.
     
      
      
        Marshall 159. — Stra. 1236, Sparrow vs. Carnthers. — 1 Burr. 348, Pelly vs. Royal Exchange Assurance, and Tierney vs. Etherington, there cited.
     
      
       [ Wadsworth vs. The Pacific Ins. Co., 4 Wend. 33.— Coggeshall vs. American Ins. Co., 3 Wend. 383. —Ed.]
     