Sperry v. Delaware Ins. , 2 Wash. C. C. 243 ( 1808 )

WASHINGTON, Circuit Justice

(charging jury). For the satisfaction of the parties, and particularly of the one against whom the court will decide, it may be proper to observe, that in few instances have we seen a case where either party was more excusable for coming into a court of justice, than the present. The court has felt extreme doubt upon one of the points, and our opinion, which, is now settled, has wavered considerably, during the very able discussion which we have heard. Whether the decisions of Sir W. Scott, as given in the cases cited from Robinson, are, to the extent to which they are contended to go, agreeable to the law of nations, may well be doubted; there is, in our opinion,' less room to doubt as to the application of those principles-to the case now under consideration. As a rule of evidence, there can be no reasonable objection to the doctrine laid down in this case. It certainly is a very suspicious circumstance, that a neutral vessel, even though it be an American, should sail upon a destination to a port known to be blockaded, with instructions, or with a known intention to be governed, as to her ulterior progress to that port by the information she might obtain at the mouth of the river, from the vessels forming the investment. It might well be said,, that your coming here to ask a foolish question, or to solicit a permission so unlikely to be granted, is strong evidence that you meant to go in, if time and'opportunity had offered. But to consider that as an actual breach of blockade, which is only evidence of an intention to commit a breach, seems to extend a mere measure of precaution and of preventive legal policy, (as the judge expresses himself in one of the cases cited,) beyond the necessity which created the rule. In this case, the light of heaven was not more clear, than the honest neutral destination of this vessel, and of course this court must say, that the foreign court was not warranted in pronouncing that her conduct amounted, really or technically, to a breach of the blockade of Hamburg. Indeed, we have the authority of Sir W. Scott himself for this opinion. In the case of The Betsey [supra], decided in May, 1799, her destination was to Amsterdam, a port known to be blockaded before she left America; and the instructions were to go to Hamburg, if sbe should not be so fortunate as to get into Amsterdam, owing to the English ships still keeping up the blockade, which, it is said, “you will know by speaking those which lie off.” This was as strong a case as could well have occurred for the application of the rule, and yet, in consideration of the fairness of the transaction, appearing from other evidence, she was acquitted. In the present case, it is obvious that the judge was entirely influenced by the circumstance, that the inquiry was to be made, and the permission obtained, from the cruising vessel at the entrance of the Eyder, which he construed to mean one of the blockading squadron. But, if this had been the meaning, we cannot conceive how this decision is to be reconciled with that just quoted. Whether the expression in the original letter was “vessel,” or “vessels,” may properly be left to the jury to decide, upon the evidence; but, even if it were the former, we think it is obvious that the latter was intended, from the manifest absurdity of pointing to a particular vessel, of which it was impossible the American owner could have had any knowledge. Upon this point, therefore, we are of opinion, that the warranty of neutrality was not falsified.

The important, and by far the most difficult question, still remains to be considered. Did the letter of instructions expose the property to a risk not contemplated by the policy? If it did, and if it was material in your opinion, then the policy is void. In this point of view, it is immaterial whether the decisions of Sir W. Scott, in 1799 and 1804, were consistent with the law of nations, or not. If not so, still the danger of capture and loss was as certain, as if the rule laid down had been in all respects correct. What was this risk? — That a vessel, destined to a blockaded port, known before her sailing to be blockaded, with instructions to go elsewhere, only in the case of her being turned away by the blockading squadron when on their station, is considered as guilty of a breach of blockade, and subject to confiscation. This rule was known to the insured and to the underwriters, or ought to have been known to them; but whether the vessel was placed in a situation, where the rule would apply, was known only to the insured. It is in vain for the insured to say, that he mistook the meaning of those decisions, or that he did not suppose the instructions were at all material to be known by the underwriters. If the case were even doubtful, it was his duty to give to the other contracting party, equally with himself, an opportunity of judging. If he has acted wrong, though without intention, and is of course innocent in a moral point of view, so are the underwriters; and the rule is clear, that if one of two innocent persons must suffer a loss, he who has occasioned the loss must bear it. The question then is, did this letter expose the property to the risk, of which both parties are presumed to be apprized? Let it be supposed that the author of this letter, at the time he wrote it, had Sir W. Scott’s decisions before him. In the case of The Betsey, he would discover, that an American vessel, destined to a blockaded port, known before she sailed to be in that situation, and with directions to make inquiries of the blockading squadron lying off, was acquitted. This of course would excite no alarm. In the case of The Posten [supra], he would discover, not only that she was a European vessel, and in this respect less favoured than an American vessel, but that her destination was to a blockaded port, and that she was to receive information from the blockading squadron on that destination. Hewouldofcoursethinkitnot prudent, to give such directions to the captain of his vessel. Looking upon the case of The Spes and The Irene [supra] he would observe that these too were European vessels; that the owners knew of the blockade of the Elbe, yet instructed their captains to continue their course to Hamburg, till they should be warned, and turned away.

With these cases before him, what were the orders given in this case, by the owner of this vessel? — To proceed to Tonningen, a port not blockaded; but in*case the captain could ascertain and obtain permission to go to Hamburg, he was in that case to go there. Prom whom, then, was he to obtain information and permission? The answer is obvious — permission from some of the blockading squadron, in case he should meet with any at the entrance into the Eyder — information from any other cruiser in the same place, provided none of the blockading squadron should be there. Where was the information and permission to be obtained? — At the mouth of the Eyder. But, to constitute this offence, according to the decisions I have alluded to, it was not sufficient, that the inquiries should be made of the blockading squadron, but it must have been at the mouth of the river; for it is clear, that if they had been met with at a distance from their station, there was no objection to the inquiry being then made. But in this case, it was to be made of them, or of any other cruisers, not at the mouth of the Elbe, the invested river, but at the mouth of the Eyder, which was not invested, and where it was lawful for this vessel to go. The difficulty which weighed with the court, for a considerable time, was' produced by the evidence of one of the witnesses, who stated that Heligoland was considered as at the mouth of the Eyder; which seemed to produce some doubt, at least, whether, if the inquiry was to be made of one of the blockading squadron, at a place considered to be the mouth of the Elbe, as well as of the Eyder, the case was not within the principle laid down in 1804. But, when the geographical situation of these places is considered — that Heligoland is in the direct and legitimate course to Tonningen, and that from that spot the courses to the two rivers diverge; that, in point of fact, this little island is twenty miles distant from the real junction of the Eyder and the Elbe, with the sea; and that the expression is not, that the information is to be obtained at the mouth of the Elbe, or even at Heligoland, but expressly at the entrance of the Eyder — it is plain, that the intention was, that she should look out for some vessel to the eastward of Heligoland, and in a course which she was permitted to pursue, and different from that which would have led her to the mouth of the Elbe. If the blockading squadron had discovered her pursuing that course, it would have been obvious, that she was not intending, or in a situation to bring herself within the letter or the meaning of the rules laid down by Sir W. Scott. Had her course been towards the mouth of the Elbe, the case would have been different. Upon this point, therefore, we are of opinion that the letter of instructions did not violate any decisions in England, prior to this insurance. As to the conduct of the captain, although certainly imprudent, yet it was not such as ought to affect the insured. This was not, in the slightest degree, relied upon by the court, as contributing to the condemnation of the property. It is incidentally glanced at by the judge, more in the spirit of admonition, than of severe censure.

Verdict for plaintiff.