
    John Dorr versus The Union Insurance Company.
    The British orders in council of July, 1808, raising the blockade of the ports of Spain, extended to the colonies of Spain.
    
    A ship insured, being bound to China, was captured by a British cruiser for a supposed breach of blockade, and was carried into Canton and there detained; afterwards being taken to Calcutta, she was there libelled and condemned. — The assured heard of her detention at Canton, but did not then abandon : Six months afterwards having advice of the condemnation, he immediately abandoned, and it was held seasonable.
    The declaration in this case, which was in assumpsit, contained three counts. The first was upon a policy of insurance, dated June 9th, 1807, for 15,000 dollars, on the ship Jenny and appurtenances, and 6000 dollars on her cargo, at and from Boston, to, at, and from every port or place to which she might proceed, back wards and forwards, until her return to Boston; the time not to exceed 24 calendar months from the date of the policy; at a premium of eight per cent, per annum, warranting eight per cent. By a memorandum at the foot of the policy, it was declared that the company took no risk of illicit trade, nor of trading from one belligerent port to another port of the same belligerent. The second count was for 1500 dollars had and received by the' defendants for the plaintiff’s use. The third count was for 5000 dollars laid out and expended by the plaintiff for the use of the defendants.
    Trial was had before Parker, J., at the last November term, when a verdict was taken by consent for the plaintiff on the first and third counts, and for the defendants on the second count, subject to the opinion of the Court on the following case : —
    
      “ The defendants made the policy declared on, and the plaintiff was interested in the ship and cargo. The ship sailed from Boston in June, 1807, touched at Gough’s Island, and at the islands of St. Paul and Amsterdam., but did not trade at either of those places; and arrived at Port Jackson in New Holland about the last of October, 1807. The * captain and supercargo there sold the cargo, and purchased about eighteen tons of sandal wood, and in February following sailed for the Fegee Islands, to procure a full cargo of sandal wood,' to be carried to Canton for sale. In April following, while proceeding for those islands, the ship met with a sudden squall of wind, which carried away the foremast, and shivered it very much under deck ; and also carried away the head of the mainmast, and sundry other spars. They arrived at Goro, one of the Fegee Islands, about the 17th of May, 1808 ; but not finding any timber there suitable for repairing the ship, nor any goods, they proceeded in three days to another of those islands, where they lay one hundred and fifteen days, collecting sandal wood, of which they took on board about one hundred and thirty tons, having purchased the same of the natives, and paid for it in goods and money. At this place they could not procure any timber or spars suitable for repairing the damage the ship had sustained. They sailed about the middle of September for China, intending to stop at the Marian Islands, to get spars, and water; the master and supercargo deeming it unsafe to enter the China seas without repairing the ship, and those islands lying directly in their course. They arrived at Tinian, one of the islands, but could not procure any timber or spars for the repairs. They here took in a few barrels of beef and a little water. This island has no settled inhabitants, but is visited occasionally by the natives of Guam, a neighboring island, who usually stay there a short time to procure beef. Some of these natives, being there at the time, informed the master that he would probably get spars and timber at Guam,; on which they proceeded thither, and arrived about the 26th of Octo ber, 1808. They there found the necessary timber and spars; but the crew were obliged to cut and prepare them, which occupied them seven weeks. They were not able to get sufficient water at Tinian, and went to Guam for the sole purpose of procuring water and repairing the ship, and without any idea of trading there ; * but, while there, they purchased of the natives of the island about two tons of beech de mar, fifteen tons of beetel nuts, and twenty six hundred deer’s horns; the whole of which would be worth in Canton nearly four thousand dollars.
    The island of Guam belongs to the king of Spain, but there are but three Spaniards there, viz., the governor and two priests. There are about three thousand natives. The governor has two ports under his command, and about thirty soldiers, who are all natives. None of the other places, at which the ship had touched as above stated, are held by any of the belligerent powers, excepting Port Jackson, which belongs to Great Britain. The master and supercargo had not received any intelligence from America after their departure from Boston, until the capture herein aftermentioned, nor any intelligence from Europe of a later date than that which they had at Boston. While at Guam, they did not hear of any blockade of that island, nor were there any British vessels there, undertaking or attempting to blockade it. And they understood from the people of the island, that there had been but one vessel there for four years then past, and that was an American vessel. Thev sailed from Guam on the 10th of December, 1808, for China, 
      and on the 27th of that month, when within a mile of the Chinese shore, they- were captured by the British frigate Dover, commanded by Captain Tucker, who stated as the cause of the capture, that the ship had been at Guam, in violation of the British orders in council of November 11th, 1807, by which it was, among other things, ordered, that all places in the colonies belonging to the enemies of Great Britain should be subject to the same restrictions, in point of trade and navigation, as if actually blockaded. The ship and cargo were detained in China by the captors until the 5th of February, 1809, when they sailed for Calcutta, and arrived there on the 4th of April following. The vessel and cargo were then libelled, and on the 7th of June, 1809, were condemned by the British Court of Vice Admiralty. The only cause of condemnatian * alleged on the trial, or assigned by the judge in passing sentence, was the violation of the said British order, by touching and trading at Guam.
    
    On the 4th of July, 1808, the British government made an order, declaring that the blockade of all the ports of Spain, except such as might be still in the possession or under the control of France, should be forthwith raised. This order was produced on the said trial.
    On the 5th of June, 1809, the plaintiff received intelligence of the capture, and that the ship was then detained at Canton. On the 31st of December, 1809, the plaintiff received intelligence of the said condemnation; and on the next day made an offer of abandonment to the defendants.
    The plaintiff appealed from the said sentence, and on the 16th of May, 1811, the same was reversed by the High Court of Appeals in England. The vessel and cargo were sold in Calcutta, immediately after the said first mentioned sentence. The plaintiff has not received any part of the proceeds. The said appeal was claimed by the master and supercargo at Calcutta immediately after the first sentence, and has been prosecuted by the plaintiff since the abandonment, for the benefit of whichever party it may concern. The decrees and orders above mentioned, and also the British order in council of the 7th of January, 1807, prohibiting vessels to trade from one port to another, both ports being in the possession of France or her allies, were read at the trial, and are referred to as a part of the report.
    The plaintiff claimed for a total loss of vessel and cargo; and if this were not allowed, he claimed for a partial loss, on account of certain damages to the cargo, and embezzlement of part thereof alleged to have taken place while in the hands of the captors; and also for the damage sustained by the ship in the storm above mentioned ; and for all such partial loss and damage to the property insured, as the defendants are legally responsible for, to be proved before the assessors hereafter mentioned. He also claimed a contribution for a general average, for the moneys laid * out and expended by him on the two trials above mentioned, and other charges.
    The parties agreed, that if the Court should be of opinion, that the plaintiff had maintained his action on the first count, and that he was entitled to recover for a total loss, the verdict on the first count should stand, with additional interest to the time of rendering judgment. — If the Court should be of opinion, that the plaintiff was not entitled to recover for a total loss, then the amount ol partial loss, if any be due, should be adjusted by assessors to be appointed by the Court; and the verdict on the first count be amended accordingly. — If the Court should be of opinion, that the plaintiff was entitled to recover for a general average, the amount to be adjusted by assessors as aforesaid, and the verdict on the third count to be increased or diminished according to their award. — And if the Court should be of opinion, that the plaintiff was entitled to recover for a partial loss, in addition to a total loss, then the verdict on the first count was to stand, with additional interest as aforesaid; and the amount of the partial loss be adjusted by assessors to be appointed as aforesaid, and the verdict on the third count made conformable to their award, including also the general average, if any should be due.
    The cause was argued at this term upon the foregoing report, by Prescott and Jackson for the plaintiff, and Dexter for the defendants.
    
      Jackson
    
    contended that at the time of the abandonment a total loss existed by the condemnation in the Court of Vice Admiralty; and that the abandonment was offered at the proper time. While the ship was detained at Canton, which was her port of discharge, the plaintiff, knowing that there had been no contravention of the British orders in council, expected with very good reason that she would be delivered up to the master, and therefore properly delayed an abandonment. In such a state of things, and with such impressions on his mind, it would not have consisted with fairness for the plaintiff to throw the voyage on his underwriters. * But when he received the account of the condemnatian, he immediately abandoned. He was under no obligation to wait the issue of the appeal. And while the reversal of the decree in the Court of Appeals shows that the ship had been engaged in no illicit trade, it establishes his right to abandon, at the same time that it favors the defendants in finally reducing the amount of their loss.
    
      
      Dexter
    
    argued that the facts disclosed no loss within the policy ; or rather the whole loss arose from causes within the exceptions in the memorandum attached to the policy; and that if a total loss within the terms of the policy had once existed, yet the abandonment was not seasonably made, and a restoration having been decreed, the plaintiff cannot now recover for a total loss.
    The capture and all the subsequent misfortunes arose from the trading at Guam., in violation of the British order of November 1807. This was illicit trade, as being with a blockaded port. And in this argument it is wholly immaterial whether the order was justifiable by the law of nations or not. Nor does the reversal of the decree of condemnation in the Court of Appeals go at all to disprove the cause or ground of the condemnation. It merely avoids the decree, and may have been produced by causes foreign to the original ground of capture. The decree of condemnation being conclusive evidence of the facts recited in it, and being bottomed on the trading at Guam as illicit, it is not competent to the plaintiff to say the trade was lawful. The underwriters are not liable for a loss by condemnation for illicit trade, whether in fact the assured has or has not been engaged in it.
    The order of July, 1808, applied only to Spain proper, and did not extend to the colonies; it originated from the political changes which were then taking place in that kingdom. If the British government had intended to include the colonies of Spain, it cannot be doubted that they would have been mentioned in the order.
    But whether included or not, it is sufficient for the defence of this action, that the * Court of Vice Admiralty did not consider them to be included, and on that grounded the decree of condemnation.
    But the plaintiff cannot recover for a total loss, not having made his offer of abandonment within a reasonable time from the account of the loss. The capture constituted the loss ; and the condemnation was but a continuance of it. The abandonment was unreasonably delayed, unless the decree of condemnation constituted the loss; but if the condemnation constituted the loss, that being for illicit trade, it was not a loss within the policy. If the condemnation gave no right to abandon, none has been seasonably made.
    
      Prescott, in reply,
    contended that the case did not show that there had been illicit trade within the intent of the parties to the policy. This phrase is always used for a trading in breach of the revenue or other municipal laws of the place where the trade is carried on; it is synonymous with smuggling or an interloping trade, and is never applied to a breach of a blockade. Such is the popular use of the phrase, and such is the technical description of the thing, as given by this Court in the case of Richardson & Al. vs. Maine Insurance Company. 
       5 The stopping and trading at Guam was then not carrying on an illicit trade, but was a breach of a construe tive blockade, if the orders in council can be supposed to extend to so insignificapt a place, as the facts show this island to have been.
    The orders of July, 1808, were, intended as a repeal of the previous orders of November, so far as they related to Spain and its dependencies. They must therefore have been intended to be coextensive with the former. Such seems the necessary construction. But if the latter orders had never been issued, yet the entire change of the political relations of Great Britain and Spain would of itself have operated the repeal of the first orders.
    The reversal of the decree of the Vice Admiralty Court, and the decree of the Court of Appeals for a restoration of * the property, is conclusive proof that there never was a good cause of condemnation. It falsifies the condemnation, and the grounds of it. It proves either that Guam was never within the first orders, or that it was included in the rescinding orders, or that the alliance between the two countries ipso facto raised the blockade, which had previously existed.
    The abandonment was made in good season. When the account of the detention of the ship was received, she was known to be at her port of destination. The owners did not think there was any hazard of a condemnation; and although they then had a right to abandon, they had also a right to wait for further information. When this came, and the ship had been taken out of the course of her voyage to a distant port, and there condemned, the property was gone from them, a total loss had taken place, and they immediately made the abandonment. The appeal was interposed for the benefit of all concerned. If the appeal had not been made, no abandonment would have been necessary. But the appeal cannot have an ex post facto operation, in altering the plaintiff’s rights, which were fixed by the condemnation.
    
      
       6 Mass. Rep 102.
    
   By the Court.

Two objections are made to the plaintiff’s right to recover in this action. The first is, that the ship was concerned in illicit commerce, by trading at the island of Guam, which belonged to the crown of Spain, whose territories had been declared by the British orders in council in a state of blockade. But it is very apparent that the posterior orders revoking the blockade of Spain were intended to extend to the colonies in her possession, and that the blockade of Guam was raised before the ship in this case arrived there. It is true the decree of condemnation in the Court of Vice Admiralty was bottomed on the supposed fact of a breach of blockade; but the reversal*of that decree shows it to have been made illegally, and without sufficient foundation.

* The other objection is, that the abandonment was not made within a reasonable time after the account of the loss was received. But the account received was merely of a seizure and detention for a cause, which the owner here knew did not exist. It was not his duty to abandon under such circumstances. After the condemnation was known to him, no delay in offering to abandon is imputed to him. He is then entitled to recover for a total loss on the first count. The case does not furnish evidence to entitle the plaintiff to recover a partial loss, beyond the total loss; but the expenses incurred by him on the two trials in the Courts of Admiralty constitute a general average, the amount of which must be ascertained by assessors, and the verdict amended accordingly ; and upon the verdict so amended let judgment be entered up, with costs for the plaintiff.  