
    Thomas C. Amory & Co. versus John C. Jones.
    Where a voyage is abandoned from fear of capture, it is not so defeated as to charge underwriters with a total loss.
    Assumpsit on a policy of insurance on fish, the property of the plaintiffs, on board the brig Rattlesnake, from Boston to Leghorn, upon which the defendant underwrote one thousand dollars. The policy was against the usual risks, with a proviso that the assurers were not to be liable for any partial loss on fish, unless the damage should happen by stranding or bilging, and amount to seven per cent. The plaintiff declared for a total loss by the dangers of the seas, and also by the restraint of princes.
    The action was tried upon the general issue before Parker, J., at the last November term, and a verdict found by consent of the parties for the plaintiffs, subject to the opinion of the Court upon the report of the judge.
    From the report it appears that the brig, in prosecuting her voyage, sprang a leak, and the master was obliged to throw overboard a cable and ten quintals of the fish for the preservation of the vessel and the residue of the fish. The brig, in further proceeding, received much damage, was taken by a Spanish privateer, carried into Algesiras, and, after • being detained forty-eight hours, was permitted * to depart; and she accordingly [*319] proceeded to Gibraltar. While she was detained at Gibraltar, to obtain the necessary repairs, one half of the fish was thrown overboard, having perished in the voyage. The other half was unladen, and, after the brig was repaired, was reladen. Before the brig was ready for sea, news arrived at Gibraltar of the Milan decree, in virtue of which all neutral vessels, having touched at an English port, or having been boarded by an English cruiser, were declared lawful prizes to the French government; and of the Brit ish orders in council of the eleventh and twenty-fifth of November, 1807, by which all neutral vessels trading to France, or the coun tries under her influence, were declared lawful prizes to the British government. After having waited some time in expectation of the repeal of that decree and of those orders, he was informed by a lieutenant of a British ship of war, that, if he proceeded on his voyage, he would be captured. He then had a second survey, from which it appeared that the fish on board was in a heating state, and would in a short time perish and become worthless ; and being advised to give up his voyage and sell his cargo, he accordingly abandoned his voyage, and sold the remainder of the fish at Gibraltar. An abandonment was afterwards duly made by the plaintiffs, which the defendant refused to accept.
    The cause stood over to this term, when it was argued by Otis and Parker for the plaintiffs, and by Dexter and C. Davis for the defendant.
    For the plaintiffs, it was contended that the vessel was lawfully at Gibraltar within the policy, having gone into that port to procure necessary repairs to the vessel, for the common safety of the vessel, cargo, and freight; and that the circumstances in which the decrees and orders of council placed her, were equivalent to an embargo, or actual restraint. The voyage being thus defeated, a right to abandon accrued, and in consequence the plaintiffs are entitled to recover for a total loss.
    * If the ship was justified in going into Gibraltar, she [ * 320 ] was justified in remaining there during the existence of the decrees and orders of council. While lawfully waiting for their repeal, her cargo was in so great hazard of spoiling, that it became necessary to sell it. Thus the voyage was defeated, and in consequence of perils insured against.
    An embargo, while it exists, is a sufficient cause of abandonment ■ But an embargo does not restrain the vessel by the application of physical force. It is the hazard attending a departure that consti tutes the restraint, and that hazard seldom exceeds what would have attended an attempt to prosecute the voyage in this case. 
    
    
      For the defendant, the decision of this Court in the case of Richardson Al. vs. The Maine Fire and Marine Insurance Company [ante, p. 102] was relied on as determining the case at bar. The case of Hadhinson vs. Robinson 
       was also cited, as being extremely similar in its circumstances to the principal case.
    The opinion of the Court was afterwards delivered by
    
      
       9 East, 283, Barker vs. Blakes. — 2 Caines's Rep. 1, Williams vs. Smith. — 2 Johns Rep 89, Robinson vs. Marine Ins. Company.
      
    
    
      
       3 Bos. & Pul. 388
    
   Parsons, C. J.

On the facts in this case, we are called upon to decide whether there was, or was not, a total loss of the fish, by any of the perils assigned. And it is very clear there was no actual total loss ; a small part was indeed thrown overboard as a jettison ; a moiety perished on board the vessel, either from the water taken in, or from the length of the passage ; and the remainder was sold at Gibraltar.

If there was a constructive total loss, it must have arisen either from the capture of the Spanish privateer, — which cannot be admitted, as the brig was liberated in forty-eight hours, — or from the restraint of princes, by the operation of the French decrees and British orders. The detention of the brig for repairs, until the arrival of intelligence of that decree and those orders, cannot be a total loss of the fish, for a part remained, and was afterwards sold.

[ * 321 ] * But it is said the voyage was wholly lost, as the

master abandoned it from a well-grounded fear of capture. That the abandonment of the voyage might be a prudent measure on the part-of the master, is not questioned. It is, however, our opinion, that an abandonment of a voyage, through fear of any peril insured against, is not a loss by any peril for which the assurers are answerable; there being an' essential difference between a loss and the mere fear of a loss. This point was very fully con sidered and decided in the case of Richardson & Al. vs. The Maine Fire and Marine Insurance Company, cited at the bar for the defendant.

The plaintiffs cannot, therefore, recover as for a total loss. The assurers are not answerable for any partial loss on fish, unless it arise either from the stranding or bilging of the vessel, neither of which has happened in this case. The verdict, therefore, cannot be amended, as for a partial loss. But on the facts, the plaintiffs are entitled to recover for the loss of the ten quintals of fish, which were thrown overboard to preserve the brig, and the remainder of the cargo; and the verdict may be so amended, that the plaintiffs may recover this small average loss.

After this opinion was given, the general average was compromised by the parties, and they were called.  