
    Arthur M’Lellan versus The Maine Fire and Marine Insurance Company.
    The rescue of a neutral ship from a belligerent, she being detained for an alleged justifiable cause, is such a breach of neutrality as will exonerate the underwriter in case of a loss. But, if a belligerent does not make known his character and the cause of such detention, the neutral is not bound to know him as lawfully commissioned.
    [*246] * Assumpsit upon a policy of insurance, dated March 29th, 1811, whereby the defendants insured for the plaintiff the sum of $ 10,000 on the ship Mary Anne, at and from Charleston, S. C., to, at, and from London, to her port of discharge in the United States, with liberty to touch and trade at St. Ubes. The ship valued at $ 15,000. The plaintiff declared for a total loss ; and averred, in the first count, that the ship was attacked, taken, and carried away, by an armed vessel on the high seas, supposed to belong to citizens of France. 2. That she was, on the high seas, with force and arms, and in a hostile manner, attacked, conquered, taksn, and carried away by pirates, enemies, rovers, and assailing thieves. 3. That she was lost by the perils of the seas. And, 4. That she was attacked with force and arms, and in a hostile manner, on the high seas, *and taken and carried [*247J away by an armed vessel, to the plaintiff unknown.
    The cause was tried upon the general issue, at an adjourned session of the last October term, holden here in January last, before Putnam,, J.
    The policy and the interest of the assured were admitted.
    The defence was, that the master had rescued the ship from detention by a belligerent, and thereby forfeited his neutrality, and caused the loss of the ship.
    The plaintiff produced the master of the ship, who testified, that, while proceeding upon the voyage up the English channel, having •American colors hoisted, on the 8th of March, 1811, they discovered an armed lugger making sail for the ship, and, on her coming up, the lugger hailed in the French, and, also, in the English languages, by ordering her to alter her course, and threatening to fire into the ship on refusal. The lugger then hoisted French colors. The witness was obliged to comply; and the lugger accompanied the ship towards the French coast; and, when just under the land, the lugger ran alongside of the ship, and put a prize-master and two men on board her. They soon ran her on shore near the harbour of Calais, and then ten or twelve men came on board. The tide rising, the ship beat off. The witness inquired of the prize-master, what he was about to do with the ship, who replied, that he intended to carry her into Dunkirk ; and they threatened the witness and his crew, to run them through, if they would not assist to work the ship for them.
    During all this time, there had been no inquiry from the lugger, what ship it was, or from whence, or where bound ; nor any reason given, why she was taken, nor was it stated that she was taken as a prize ; but the only inquiry was, what cargo she had on board. The lugger appeared to have about six carriage-guns, and sixty men But she gave no notice, nor did the witness ever know, who she was, or to what nation or country she belonged, or that she was a commissioned vessel of any belligerent power. At the time *the lugger first came up with the ship, boats might have [*248] safely passed from the one to the other.
    The witness further testified, that, finding his ship in the possession of these people, who were continually threatening him and his seamen, and conducting themselves like ruffians, he, with the assistance of part of his crew, rose upon the captors, seized a dirk from one of them, and in a few minutes killed or wounded all but two of them, got a complete victory, retook the ship, and steered her towards England. It afterwards becoming calm, and the lugger again giving chase, and it being manifest that she would again retake,her, the witness, with all his crew (excepting three, who would not assist him, for fear of losing their lives if retaken), left the ship and took to the boat. The ship was again taken by the lugger, and carried towards the French coast ; but to what place the witness did not know. The vs ness, and those in the boat with him, with great peril arrived at Dover Nothing has ever been heard since, either of the ship, or of the three American seamen, who remained on board. The witness sent over his claim to France, to reclaim the ship ; but he did not know that it had arrived. The papers and documents belonging to the ship remained on board her. The testimony of the master was confirmed by one of the seamen.
    It appeared from the evidence, that the plaintiff gave notice to the company of the loss on the 13th of May, 1811, and left the master’s protest at their office, containing the substance of the above testimony, without any material variation. The plaintiff claimed of the defendants the whole sum insured by them.
    The plaintiff stated that there had been an adjustment between the parties as for a total loss ; and he produced the secretary of the company as a witness, who testified, that at first the president and directors thought they were not bound to pay ; but afterwards there had been a formal decision upon the claim at a meeting of the directors for the purpose of considering it, and he was ordered by the president of the directors to pay the loss. He could [*249] not recollect * whether a majority of the directors were present at the meeting. He had, accordingly, paid, at several times, the last payment having been made January 20th, 1812, sundry sums, amounting in the whole to $3268.50, on account of this loss. W. Widgery, who was then the president of the company, confirmed the testimony of the secretary. He also testified, that, before the decision to pay, he had examined the law ; and was satisfied it was a loss which the company ought to pay ; and he gave his opinion to the directors accordingly.
    There was some evidence, tending to show that the defendants had waived any advantage for want of an abandonment ; particularly the said Widgery testified that he had some faint recollection, that, when the plaintiff called at the office for the loss, he told him there should be no advantage taken for want of an abandonment; but this witness could not, at the trial, recollect or swear to it. The conduct of the company towards the assured, in the adjustment and payment aforesaid, was urged to the jury, as evidence of such waiver.
    The judge charged the jury, that belligerent ships had a right to search vessels on the high seas, to ascertain whether they belonged to an enemy ; or, if neutral, whether they had on board goods contraband of war, or enemy’s property ; or whether military persons of an enemy were on board ; that a belligerent might send a neutral ship into port for having enemy’s property on board, or goods contraband of war, or for violation of blockade ; that the rescue of a ship, when taken for such alleged cause, was such a violation of the duty of a neutral, and such a cause of the forfeiture of the property, as would exonerate the underwriter ; — but that belligerents had duties to perform, as well as rights to enjoy and enforce ; that it was their duty to make known their character as belligerents, and the cause of their detention of neutrals ; that, when they omitted to do so, neu trais were not bound to know them as lawfully commissioned belligerents ; that the neutral was not to be attacked at first in a hostile manner, but that an examination * was first to [*250 ] be had ; that neutrals had a right to resist assailing thieves ; and that, if a belligerent will disregard the duty imposed upon him by the laws of nations, and conduct himself like a pirate, resistance, on the part of the neutral, is not only a right, but a duty.
    The judge left it to the jury to decide, from the evidence, whether the capture was by pirates, enemies, rovers, or assailing thieves, and whether there had been an adjustment of the policy, as for a total loss, with a full knowledge of the law and the facts ; and that, in either of those cases, their verdict should be for the plaintiff.
    The judge also observed to the jury, that, if they were satisfied from the evidence in the case, and the law as above stated, that the plaintiff ought to recover, they might find for a total or partial loss ; for a total loss, if the defendants had waived their claim to an abandonment ; for a partial loss, if they had not ; that, in general, it is necessary there should be an abandonment proved in cases of capture ; that, if the defendants had not waived it, the jury might find for the plaintiff for a partial loss, that is, for the whole sum, deducting what they should be of opinion the hope of recovery or benefit of salvage might be worth to the plaintiff; but that, if the jury were satisfied from the evidence, that the capture was by a belligerent, who gave reasonable notice of his character, and the cause of his detaining the ship for lawful search, and that the master of the ship rescued her under such circumstances ; then their verdict must be for the defendants, unless they should find the question relating to the adjustment for the plaintiff, as before stated.
    The jury found a verdict for the plaintiff for a total loss. The counsel for the defendants excepted to the charge of the judge to the jury ; and, if the Court should be of opinion that the charge was wrong, the verdict was to be set aside, and a new trial granted ; otherwise, judgment was to be rendered on the verdict.
    
      Mellen and Storer, for the defendants,
    contended, that the rescue of the ship by the master and crew, especially after * arriving in France, was such a breach of neutrality as [*253 ] discharged the underwriters from all liability for the consequences of that act.  An abandonment was necessary to entitle the plaintiff to recover a total loss ; and here was not sufficient evidence, either of an abandonment by the plaintiff, or of a waiver of their right to it on the part of the defendants.  The payments towards the loss were no evidence of an adjustment, not being indorsed upon the policy ; and, if an adjustment has actually been made, it is not final. 
    
    
      Whitman and Potter, for the plaintiff.
    
      
      
        Marsh. 365, 311, 312, 315. — 8 Mass. Rep 536, 322.-8 D. & E. 231.
    
    
      
      
        Marsh. 508, 517. — 4 Mass. Rep. 670.
    
    
      
      
        Park, 118. — 2 Cranch, 167. — 6 Mass. Rep. 220.
    
   Jackson, J.,

delivered the opinion of the Court.

As to the supposed rescue of the ship, we are all satisfied that the law, on that subject, was correctly stated by the judge to the jury. The principle contended for, by the defendants, would expose every neutral ship to capture by pirates, without the right or means of self-defence. The neutral master could not venture to resist, until the captors had obtained the possession and entire command of his ship ; and, if he should then discover that they were pirates, resistance would be ineffectual.

The argument has proceeded, in some measure, on the supposition that the capturing ship was a French commissioned cruiser. But the neutral master had no evidence of that fact. From all that appears in this case, the captors may have plundered the ship and then sunk her, with the three men who were left on board ; and neither the owner nor the government of the United States could make any demand, for indemnity or satisfaction, against the French government.

As to the other point, the evidence was rightly left to the jury. The defendants were seasonably apprized of the loss, and all the circumstances attending it; and the plaintiff demanded the whole sum insured. In the course of the eight months following, they made sundry payments on account of- this demand. No suggestion was made, during all this time, that they were not bound to [ * 252 ] pay the whole, for * want of an abandonment.

From these circumstances, together with the testimony of the president of the company, the jury were warranted to conclude, either that there had been an offer to abandon, or that both parties considered the chance of recovery as altogether hopeless, and that an abandonment would therefore be an idle ceremony ; and that the loss was thereupon adjusted, and the defendants agreed to pay the sum demanded. If such an agreement were made, without any fraud or mistake, the defendants are bound by it, and cannot now object the want of evidence of a formal offer of abandonment.

Judgment according to the verdict. 
      
      
        Robinson vs. Jones, 8 Mass. Rep. 539. — Snowden vs. Phenix Ins. Co., 3 Bin. 457 - Garrols et al. vs. Kensington, 8 & E. 230. — Hughes, Ins. 311. — 1 Marsh. 436 3d edition.
      
     
      
       Hughes, 431. — 2 Marsh. 609, 3d edition.
      
     