Saltus v. United Insurance , 15 Johns. 523 ( 1818 )

Thompson, Ch. J.

delivered the opinion of the court. No objection can-be made against the sufficiency of the notice and cause of abandonment. A true statement-of the facts, with respect to the situation of the vessel at Gothen'burgh, was made, and given to the underwriters. Whether it was to be deemed, in judgment of law, a restraint or a blockade, would not alter the rights of the assured growing out of such a state of facts. The real question, therefore, is, whether such a state of things existed, as to warrant an abandonment, and throw the loss upon the underwriters. The policy is in the usual form, and is very broad and comprehensive, in the enumeration of the perils insured against. It would seem to reach almost every risk to which a vessel and cargo may be exposed, in the course of a voyage. The loss in this case may, I think, fairly fall within the risk of restraint of princes, or of men of war. It is not necessary, to constitute a loss by this peril, that actual physical force should be applied to the subject insured. The case of Schmidt v. United Ins. Co. (1 Johns. Rep. 249.) was considered a loss by restraint of princes, when, in fact, there was only a blockade of the port of destination, and no actual physical force was exercised. A blockade was deemed equivalent to any other restraint or detention, which includes every peril arising from a vis major, which could not be resisted. It equally interrupts and destroys the voyage. In a late case decided in the Supreme Court of the United States, (Oliver v. Union Ins. Company, 3 Wheat. Rep. 183.) it was held, that a vessel within a port blockaded after the commencement of her voyage, and prevented thereby from proceeding, sustained a loss by a peril within that clause in the policy insuring against the arrests, restraints and detainments of kings, &ic. and the insurers were made responsible for the loss. Ch. J. Marshall said, the term restraint in the policy, does not imply that the restriction or confinement must be imposed by those who are in possession of the thing or person which is restricted or confined ; but the term is satisfied by a restriction created by the application of external force : that although the blockading force is not in possession of the vessels inclosed in the harbour, yet it acts upon, and restrains them. It is a vis major applied directly and effectually to them, which prevents them from coming out of port.

This cannot be considered an abandonment quia timet, when the danger was remote and contingent The case shows, very fully, that the harbour of Gothenburg was so invested by the British squadron, as to make it morally certain (hap the Syren would have been captured had she attempted to go out. A state of war existing between us and Great Britain, there could be no reasonable grounds even to hope that she would have been permitted to pass the squadron ; and an attempt to escape would have been idle. The restraint, therefore, operated as effectually, as if she had been actually seized. It would, to be sure, have been no violation of duty, or of national law, to have attempted to force through, or elude the squadron, but it would have been madness in the master, and a violation of his duty to all parties, to have rushed headlong into the arms of the enemy, when a loss would have been inevitable. The language of the late Chief Justice, in the case' of Craig v. The U. Ins. Co. (6 Johns. Rep. 252.) is very strong on this point; and the principles laid down in that case are applicable here. It is there said, that when such restraint actually exists, and is ascertained to be effectual, and no doubt arises of its being exerted, it would be most unreasonable to require the assured to go on, and submit to the experiment of a capture. This would be fatal to the interest of all parties ; it would be against the duty of the assured, and he would be placed under a moral inability to do it.

The only circumstance which, in any manner, distinguishes this case from those I have referred to, is, that the blockade was by the squadron of a power at war with this country. Had not hostilities commenced, there could be no doubt that the restraint occasioned by the blockade would have been a loss within the policy, and justified the abandonment. I cannot see any substantial reason, why that event should vary the principle. It would have been lawful to insure against capture by the enemies of this country. The breaking out of the war did not dissolve the contract of insurance ; and I cannot discover, in any of the cases referred to as supporting such a distinction, any thing to warrant the conclusion that has been drawn. All those cases came under the review of this court, in the case of Craig v. United Insurance Company; and although it is said, that they seem to hold up such a distinction, yet it is very far from being sanctioned, or approved of by this court. We are, accordingly, of opinion, that the plaintiffs are entitled to recover a total loss, and that judgment must be entered on the verdict.

Judgment for the plaintiffs.