2 Cliff. 394 | U.S. Circuit Court for the District of Massachusetts | 1864
The- defendants contend that the loss in this case, under the circumstances disclosed in the agreed statement, was not a loss by pirates within the meaning of the policy as understood in the law of insurance.
The theory of the defendants is, that the word “pirates” is used in the policy in the ordinary sense in which it is understood in the general commercial law of the civilized world; and they accordingly contend that the acts of the Sumter in taking the ship, having been committed when she was engaged in open and actual war, under a commission issued by a de facto government, as shown in the agreed statement, were not the acts of pirates, as assumed by the plaintiffs, but were the acts of persons having under the law of nations certain limited and qualified belligerent rights.
In the third place, they contend that the warranty in the marginal clause, against capture, seizure, and detention, or the consequences of any attempt thereat, takes the loss in this case out of the policy, and that any capture or seizure, whether rightful or wrongful, and whether made under a commission from a de jure or de facto government, or made by mere pirates, is equally within that provision.
Finally, they contend that the acts of the Sumter in taking the ship were the efficient and prevailing cause of the loss and destruction of the vessel, and that those acts were expressly put at the risk of the owner by the marginal clause.
The effect of the first proposition submitted by the plaintiffs, if admitted to be correct in its full extent, is'the same as that of the third; and the two, therefore, in their application to this case, may be regarded as identical. Authorities cited by the plaintiffs in support of then first proposition show that the words “arrests, restraints, and detain-ments of kings, princes, and people, of what nation or quality soever,” as a general rule, apply only to the acts of nations in their collective capacity; but they leave the question, whether the same rule shall be applied to the words “capture” and “seizure,” quite undetermined, which is the question in this case. Stipulations of indemnity against takings at sea, arrests, restraints, and detainments of all kings, princes, and people, says Chancellor Kent, refer only to the acts of governments for government purposes, whether right or wrong; but the same learned author says that every species of capture, whether lawful or unlawful, and whether by friends or enemies, is also a loss within the policy. 3 Kent, Comm. 303. Speaking of the clause under consideration, Mr. Phillips says it is more generally understood to apply to captures, seizures, and detentions by the commissioned officers and agents of some lawful and acknowledged government, but he admits in the same section, that the word “capture” is of itself broad enough to comprehend any forcible seizure or arrest which may occasion a loss to the insured. 1 Phil. Ins. (4th Ed.) § 1110, p. 664. Capture, properly so called, says Arnould, is a taking by the enemy, as prize in time of open war, or by way of reprisals, and .with intent to deprive the owner of all dominion or right of property over the thing taken; and no doubt is entertained that the word in legal acceptation is used in that sense more frequently than in any other. But the same author admits that the legality or illegality of the taking does not affect the liability of the underwriter as against the assured; and such.it is believed, is the well-settled law upon the subject Whether lawful or unlawful, or however made, capture, when the proximate cause of the loss, renders the underwriter liable under a policy against such a loss, though other causes may have contributed to the result. 2 Arn. Ins. § 303, p. 80S. When a vessel previously forced by -stress of weather to put into a port of distress was violently boarded by a mob, who took the control of her from the master and crew, and ran her on a reef of rocks, whereby the cargo was damaged, and then forced the master to sell the cargo at a low price, Lord Kenyon held that the loss fell within a capture by pirates, and consequently that the assured might have recovered under a count so alleging it, had not the underwriters been exempt-, ed by the memorandum, .from all average loss. Nesbitt v. Lushington, 4 Term R. 787; 2 Arn. Ins. § 306, p. 817. The usual phrase, “against all captares at sea, or arrests, restraints, or detentions of all kings, princes, or people,” says Mr. Parsons, “covers captures, detentions, or arrests by public enemies, by belligerents, or in certain cases by the government of which the assured is himself a subject;” but he does not say that it does .not also cover takings by pirates. 2 Pars. Mar. Law, 246. The remaining authority cited by the plaintiffs in support of their first proposition approaches more nearly to their views. Maude & P. Shipp. 232. Pirates, say those writers, are considered hostes humani generis, and therefore are never recognized as enemies, nor are they included in the expression “kings, princes, and people.” Referring to that entire phrase, they remak that the words are properly applicable only to the ruling power of a country, and not to pirates or any other lawless power; but the only authority cited in support of the latter branch of the proposition is the case of Nesbitt v. Lushington, 4 Term R. 787, which is rather the other way. Plainly, therefore, the authorities cited are not sufficient to establish the proposition that the word “captare” is not broad enough to include the taking in this case; but the point will be further considered in examining the third proposition submitted by the plaintiffs.
The marginal clause, it is contended by the plaintiffs, is not a warranty in the sense in which that word is usually known and understood in the law of marine insurance.
The third proposition of plaintiffs is, that the loss in this case having arisen from a taking by rebels on the high seas is a loss by pirates, and not one arising from capture or seizure within the meaning of the policy. Obviously, there are two questions involved in the proposition, and it may well be admitted that they are important, and that neither is unattended with difficulty. They are as follows: 1, Whether the acts of the officers and crew of the Sumter in the taking the ship under the circumstances set forth in the agreed statement were piratical arts within the meaning of the policy; and if so, then, 2. Whether the meaning of the words “capture or seizure” is or is not broad enough tc include the taking by pirates. Standard writers upon criminal law in defining piracy say it “consists in committing those acts of robbery and depredation upon the high seas which, if committed on land, would have there amounted to felony.” . 1 Russ. Crimes (Shars. Ed.) 94; 2 Whart. Cr. Law (5th Ed.) § 2830, p. 541; 4 Bl. Comm. 72; 2 East. P. C. 790: 1 Hawk. P. C. c. 37, § 4.
Punishment of death is denounced against any person, by the act of congress of the 3d of March. 1819. who shall, upon the high seas, commit the crime of piracy as defined by the law of nations." 3 Stat. 513. The supreme court held, in the case of an indictment under the fifth section of that act, that the definition given of piracy was a constitutional one, and that the crime was defined by the writers on the law of nations with reasonable certainty. U. S. v. Smith, 5 Wheat. [18 U. S.] 159. All writers, say the court, in that case, concur in holding that robbery or forcible depredation upon the sea, animo furandi, is piracy. Judge Story gave the opinion in that case, and he proceeds to say that the same doctrine is held by all the great writers on maritime law in terms that admit of no reasonable doubt; and he further shows that the common law, as it existed at the date of the Revolution, recognized and punished piracy as an offense not against its own municipal code, but as an offence against the law of nations, which is a part of the common law. Until the statute of 28 Henry AHI. c. 15, piracy was punishable in the parent country, only in the admiralty as a civil-law offence; and it is well-settled law that that statute, in changing the jurisdiction to the courts of common law. made no change in the nature of the offence. Robbery on the high seas, say the same court in U. S. v. Pirates, 5 Wheat [18 U. S.] 197, is considered as an offence within the criminal jurisdiction of all nations. The reason of the rule undoubtedly is. that it is an offence against all nations, and consequently is punishable by all; and there can be no doubt that the plea of autre fois acquit is a good plea in any civilized nation, though resting on a prosecution instituted in the courts of a foreign jurisdiction. Modern writers also, upon the law of nations, maintain the same views. Piracy is robbery, says' Chancellor Kent, or a forcible depredation on the high seas without lawful authority, when done animo furandi, and in the spirit and intention of universal hostility. His definition is that it is the same offence at sea as robbery on land; and he remarks that all writers on the law of nations and on the maritime law agree in that definition. Every nation has a right to attack and exterminate pirates without any declaration of war; and the universal rule is that they acquire no rights by capture, but that the true owner may reclaim his property wherever it may be found. 1 Kent. Comm. 3S4. Another modern writer upon international law says piracy is a crime not against any particular stale, but against all states and the established order of the world. AVools. Int. Law, § 137, p. 282. The same learned author defines piracy as robbery on the sea or by descent from the sea upon the coast, as committed by persons not holding a commission from or at the time pertaining to any established state. He mentions three classes of persons whose depredations upon the sea amount to the crime under consideration: 1. Depredations of persons who form an organization for the purposes of such plunder, but who. inasmuch as such a body is not constituted for political purposes, cannot be said to be a body politic. 2. Acts of persons who having, in defiance of law, seized possession of a chartered vessel, use it for the purpose of robbery. 3. Similar acts
Actual robbery on the high seas is piracy under the law of nations by all the authorities, and so also is the act. of cruising upon the higli seas without a commission and willi the intent to rob, especially if the charge be accompanied by proof of unsuccessful attempts about the same time to commit the primary offence. Such robbery is piracy, because the criminal act is committed against •all nations, and therefore is punishable by all. Undoubtedly a statute may declare any -offence piracy committed within the juris-diction of the nation passing the statute, and such offence will be punishable by that nailon as an offence against the municipal authority. But piracy under the law of nations, which alone is punishable by all nations, can •only consist in an act which is an offence against all. No particular nation can in■crease or diminish the. list of offences thus punishable. Append. 5 Wheat. [18 U. S.] 8, per Marshall, C. J. The offence of piracy at common law, says Mr. ltoscoe. is nothing more than robbery upon the high seas; but by statutes passed at various times, and still in force, many artificial offences have been ■created which are to be deemed to amount to piracy, and the remark is undeniably correct, if applied exclusively to the municipal law of the nation where such statutes were passed and are in force. Rosc. Cr. Ev. (Shars. Ed.) 832; U. S. v. Palmer, 3 Wheat. [16 U. S.] 620. The controlling purpose of such municipal laws is to denounce certain acts as piracy not before known as such, and to make provision for tlie trial and punishment of such •offenders, as if the acts committed were piracy at common law.
Offenders against such laws, if citizens or •subjects of the nation passing the laws, are .justly amenable to their penalties, as violators of the municipal law of the nation. Text-writers. says Mr. Wheaton, define piracy as “‘the offence of depredating on the seas without being authorized by any sovereign state or from commissions from different sovereigns at war with each other.” Wheat. Int. Law, by Lawrence (2d Ed.) 246. The annotator shows conclusively that in applying the term “piracy” regard has not always been had to the distinction between tire offence as known in the law of nations, which is justi-ciable everywhere, and certain offences created by the statutes of particular nations, for which the same nomenclature has been arbitrarily adopted, but which are only cognizable before the municipal tribunals of such nations having jurisdiction either territorial, actual, or implied, or over the person of the offender. Id. 247. The proposition that pirates are the common enemies of all mankind must be confined to piracy as defined by the law of nations, and cannot be extended to of-fences which are made piracy by municipal legislation. The former offence may be tried and punished in the courts -of justice of any nation by whomsoever and wheresoever committed; but piracy created by municipal statute can only be tried by that state within whose territorial jurisdiction, on board of whose vessels, the offence thus created was committed. Id. 256; U. S. v. Klintock, 5 Wheat. [18 U. S.] 144. Similar views also are expressed by Mr. Phillimore in his very learned commentaries upon international law. He -says piracy is an assault upon vessels navigating the high seas, committed animo furandi. whether the robbery or forcible depredation be effected or not, and whether or not it be accompanied by murder or personal injury. Courts of all nations have jurisdiction of the offence, or in other words, the pirate is “justiciable everywhere;” and the learned commentator remarks, that the detestable occupation of the pirate has made him hostis humnni generis, and that he cannot upon any ground claim immunity from the tribunal of his captor. 1 Phillim. Int. Law, 379. Contracts of marine insurance, however, have in general no connection with criminal procedure, or with the laws of a state malting provision for the punishment, of offenders. The interpretation and effect of marine policies of insurance must be governed by the rules of the commercial law, which is a system of law known to all nations, and which in general is wholly unaffected by the criminal law of any particular country. Warren v. Manufacturers’ Ins. Co., 13 Pick. 518; Deshon v. Merchants’ Ins. Co., 11 Metc. [Mass.] 190. Treating of marine insurance, a learned commentator says that maritime law in general partakes more of the character of international law than any other branch of jurisprudence; and the reason assigned for the conclusion is. that it pervades everywhere the institutions of that vast combination of civilized nations, which constitute one community for commercial purposes and social intercourse. 3 Kent. Comm. 342; The Antelope, 10 Wheat. [23 U. S.] 122. No branch of the law, says air. Phillips, can more proper
The defendants insist that a capture made under a commission to cruise against its enemies, and its enemies only, issued under a regularly organized de facto government, engaged in open and actual war, is not piracy under the law of nations. But they do not controvert the fact that such a commission, derived from the Confederate States under the circumstances disclosed in the agreed statement, would be utterly null and void as an answer to an indictment for an offence against our municipal criminal law. Such a proposition, if submitted, could not, in the judgment of this court, be maintained for a moment, as it would involve the question whether those states had a right to secede. They had no such right express or implied. Secession is a wicked heresy, which has no foundation whatever in the federal constitution. Nothing of the kind is pretended by the defendants; but what they contend is, that the exercise of such an assumed authority under such a government as that disclosed in the agreed statement, prevents those acting under it from being pirates under the law of nations. The commission in this case was to attack, capture, or destroy American vessels, and none others; and the agreed statement shows that the attack, capture, and destruction of the ship was by the described persons, acting by virtue of such commission, and under the assumed authority of such Confederate States. The concession of the defendants is, that the facts stated would constitute no defence to an indictment alleging an offence against our municipal criminal law; and they also concede affirmatively that the United States have, in respect to the government and people of the so-called Confederate States, sovereign as well as municipal rights; that, under the first they may wage war to suppress the rebellion, and that under the second they may hold persons engaged in it subject to the criminal laws of the United States. Rose v. Himely, 4 Cranch [8 U. S.] 272; Halleck, Int. Law, 344. Granting all this, still they insist that the existence of such criminal laws, and the illegality of the acts of the Confederate States and people, when tested by such laws, have no bearing whatever on the question, whether in the case under consideration the law of nations has been infringed. The Antelope, 10 Wheat. [23 U. S.] 122; The Marianna Flora, 11 Wheat, [24 U. S.] 1. Such a question came before the supreme court under the following circumstances. U. S. v. Klintock, 5 Wheat [18 U. S.] 151. The statement of the case-shows that in the trial of an indictment for-piracy, it appeared that the defendant had been cruising on the high seas under a commission from a person having no authority to-issue commissions for the capture of vessels at sea; that the defendant, as first lieutenant of the vessel in which he sailed, aided in capturing the vessel described in the indictment The defence, among other things, was. that the acts proved did not amount to piracy, because the defendant had acted in good faith imder the commission. The answer of Marshall, C. J., to that proposition deserves, consideration. He said whether a person acting in good faith under such a commission may or may not be guilty of piracy, we are-all of the opinion that the commission can be no justification of the facts stated in this, ease. The decision turned wholly on the fact stated by the court. that the whole transaction, taken together, demonstrated that the vessel had not been captured jure belli, but was seized and carried into port animo fu-randi; that it was not a belligerent capture, but a robbery on the high seas, which, by all the authorities, is piracy under the law of nations. Unlike what was stated in that case, the agreed statement in this case shows that the capture of the ship was for the purpose-of prosecuting said war so declared to exist, and with the sole purpose and intent of coercing the government of the United States, as before explained.
The policy in this case was executed, and the contract was completed, as the parties, agree, previous to the president’s proclamation establishing the existing blockade; and it also appears that since the beginning of hostilities our public armed ships have claimed and exercised the right to visit neutral ships on the ocean, and that many such have been captured, and with their cargoes condemned for having contraband of war on board destined to some port in the control of the rebels. Property also belonging to persons resident in any place in the possession and control of the rebels, and found on the high seas, has been, pursuant to the orders of the president, captured and condemned as lawful prize of war, upon the ground that it was enemies’ property. Looking at the whole case, it is evident that the question under consideration has been fully settled by the supreme court. The Amy Warwick. 2 Black [67 U. S.] 665. Neutrals, say the court in that case, have a right to-challenge the existence of a blockade, de facto, and also the authority of the party exercising the right to institute it. They have a right to enter the ports of a friendly nation for the purposes of trade and commerce, but are bound to recognize the rights of a belligerent engaged in actual war, to use this mode of coercion for the purpose of subduing the enemy.
Bight of prize and capture has its origin, say the court, in the jus belli, and is gov-
When the regular course of public justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposed to the government were foreign nations invading the land. The court expressly say in that case that it is not necessary that the independence of the revolted province or state should be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Reference is then made to the fact that the queen of England, on the 33th of May. 1861, issued her proclamation of neutrality, recognizing hostilities as existing between the United States and the so-styled Confederate States; and then the court say that after such an official recognition by the sovereign, a citizen of such foreign state is estopped to deny the existence of a war with all the consequences as regards neutrals. Congress recognized the existence of war on the ,13th of July, 1SG1; and the minority of the court held that a civil territorial war in the international sense did not exist until that act of congress was passed. Two answers were made by the court to that objection: 1. That a prior declaration of war was not necessary to constitute that relation; and, 2. If it-was, that the subsequent acts of congress had a retroactive effect,' and operated to-cure the defect. A minority of the court denied that the acts of congress would have any such operation; and the majority of the court, in replying to that objection, admit that it might possibly have some weight in the trial of an indictment in a criminal court, but say that precedents from that source cannot be received as authoritative in a tribunal administering public and international law, which is undoubtedly correct The conclusion is that the president had a right jure belli, to institute a blockade of the ports in possession of the states in rebellion which neutrals were bound to regard. The next question in the case was, whether the property of all persons residing within the territory of the states in rebellion, if captured on the high seas, was to be treated as enemies’ property, irrespective of the question whether the owner -was or was not in arms against the government Responding to that inquiry, the court say that all persons within that territory whose property may be used to increase the resources of. the hostile power, are in the contest liable to be treated as enemies, though not foreigners. They have cast off their allegiance, and made war on their government, and are none the less enemies because they are traitors. The produce of the hostile territory, say the court, as well as other property engaged in the commerce of the hostile power, as the source of its wealth and strength are always regarded as legitimate prize without regard to the domicile of the owner, and much more so if he resides and trades within their territory. The supreme court, therefore, has decided that the present civil war is of such a character and magnitude as to give to the United States the same rights and powers which they might exercise in the case of a national or foreign war; that they have a right, jure belli, to institute a blockade of any ports in the rebellious states; that the proclamation of blockade was of itself conclusive evidence that a state of war existed which authorized and demanded such a measure, and that it made all persons residing in the territory liable to be treated as enemies, though not foreigners. Such conclusions are utterly irreconcilable with the proposition, that the taking of the ship in this case, under the circumstances described in the agreed statement, was a taking by pirates, as contended by the plaintiffs. The same views have also been expressed by the supreme court of Massachusetts in this very case, as may be seen by referring to the very able opinion of the court pronounced by the present chief justice. Dole v. New England M. M. Ins. Co., 6 Allen, 392. The opinion of the court was that it could not be maintained on the facts offered in proof, which were substantially the same as those agreed in this case, that the persons who seized and burned the ship were to be regarded as pirates within the ordinary signification of that word as used in the law of na
The decision of the tribunal of commerce of Marseilles is to the same effect. 1 Lemo-nier, 251; Journal de Jurisprudence Commercial et Maritime de MM. G-irod et Clariond, T. Y.. 2S5. Use will be made of the translation furnished at the argument, as it is believed to be ■ correct. The ease as stated shows that' insurance was caused to be made in behalf of the owner of a certain amount of specie, laden on board a certain brig. The policy warranted the underwriters free from all casualties of war. hostilities, or reprisals by any maritime power whatsoever. The agent • of the owners of the specie subsequently caused insurance to be effected- by other underwriters, and solely against risks of war. The vessel sailed and loss occurred, and the master made a protest, from which it appeared that the brig was met by a privateer of Colombia, arrested and carried to Cumana, where the capture of the cargo was declared lawful, because a part was recognized as Spanish property, and the neutrality of the remainder was not sufficiently proved. Said agents of the owners of the specie afterwards made an abandonment to the underwriters who had assumed the risks of the sea, and also to the underwriters who had assumed the risks of war. The underwriters agreed, in their defence, that the abandonment was not valid upon several grounds not material to the present investigation, but they were divided on the question who ought to pay the loss in case the abandonment should be held valid. Those first mentioned maintained that the capture was a casualty of war, and therefore that the loss was not at their expense. The second underwriters contended that the capture could not constitute an act of war or of hostility arising on the part of a recognized maritime power, and consequently that the case came within the class of ordinary risks of the sea, piracies, aggressions, and the’ like, Which were not assumed by them. The judgment given is too elaborate to be reproduced. The questions as stated are as follows: 1. Whether the capture made by the armed cruiser could be likened to acts of piracy. 2. Whether the loss ought to be considered a casualty of war or of the sea. The conclusions were: 1. That revolted colonies, established as a de facto government, were not to be considered as pirates under the circumstances, which showed that they only attacked the flag and property of the mother country, and respected the flag and property of other powers. 2. That the underwriter who insured against the risk of war was liable, and that the warranty took the risk out of the other policy.
War having been recognized as existing between Spain and her colonies by our government, the supreme court of the United States held that it was the duty of the federal courts, when a capture was made by either of the belligerent parties, without any violation of our neutrality, and the captured prize was brought innocently within our jurisdiction, to leave the property in the same condition as they found it, or to restore the same to the state from which it had been forcibly removed by the act of our own citizens. The Neustra Senora. 4 Wheat. [17 U. S.] 497. The colonies of Spain during the existence of war
' Suppose it were otherwise, however, still the question remains to be considered whether the meaning of the- words ‘’capture or seizure” is or is not broad enough to include a taking by pirates under the circumstances disclosed in the agreed statement The supreme court of Massachusetts held, in the -case of Dole v. New England M. M. Ins. Co., before cited, that the word “capture,” as applied to the contract of insurance, was broad -enough to include within the exception in the policy a taking by pirates in the most enlarged sense in which that term is used; that is. a taking by common depredator’s-and plunderers who'do not merely :make war .on the vessels of a particular country, or seek to destroy or take forcible possession of the property only of the citizens of any one nation or. government, but who commit robbery and pillage upon all persons and property found on the high seas'lucri causa,, and who may therefore properly, be designated as hos--tes humani generis. ■ Since that opinion was delivered, the same question has been very thoroughly examined in the. case' before mentioned, by Davis, J., as the organ of the supreme court of Maine:. Suffice' it'to say, that the court, after a careful revision of the authorities, came to the conclusion that the word “capture”- was broad enough to include a taking by pirates, and held that the plaintiffs were not entitled to recover. Those two learned judges have-'examined most of-.the authorities referred to on this point, in the argument of this case. A repetition of those citations is unnecessary, as they are as open to scrutiny in those opinions, as they would be if made the- subject of further comment. Exception may well be made to two or three of the cases, as it may be that the volumes.in which theyare contained were not accessible at the time those opinions were prepared. Comment will first be made upon the case of Kleinwort v. Shepard. 1 El. & El. 447, because it must hereafter be regarded as a leading case upon the subject. The declaration was on a voyage policy from Macao to Havana, “warranted free from capture and seizure and the consequences of any attempt thereat.” The policy contained the usual clause stating the perils insured against, •which included “enemies, pirates, robbers, thieves, reprisals, takings at sea, and barra-try of the master and mariners.”. Insurance •was declared to be on a .certain sum expended in provisions, for the use of Chinese emigrants, and in advances on freights. The emigrants assaulted the master and crew, and took, stole, and carried away the ship. The defence was, that a forcible taking possession of the ship in the manner stated was a seizure within the meaning of the warranty. Judgment was delivered by Lord Campbell. C. J He said it became necessary for the plaintiff to show that the word •“séizure” was used in the warranty in some peculiar and restricted sense; and he admitted that it was sometimes introduced into policies Where there was an apprehension of war, with the view to protect the under writer, and to make him content with a peace premium-
But when it was introduced, the learned judge said there was no decision that it must be confined to belligerent seizure; and he added, that “we clearly think it would extend to captures -and seizures' by pirates.” Exactly the same point was ruled by the same court in Powell v. Hyde, 5 El. & Bl. 607; and the ruling was the same way. The ruling was. that the exception introduced by the warranty was not confined, to legal cap
Insurers are to bear all losses “ . . . . from pillage, captures (prises), arrests of princes, declarations of war, reprisals, and generally all other perils of the sea.” Poth-ier, De Contr. d’Ass. 49, p. 68. The insurer is liable whether the capture was lawful or unlawful according to the laws of war, whether it was an act of hostility or brigandage; for however suffered, it is a peril of the sea, and the insurers are liable for all perils of the sea. 54, p. 79.
“Assured may abandon,” says Yalin, “only in cases of capture (prises), shipwreck,” &e. Article 46 of Ordonnance.
Beferring to that article the commentator says: “In the first case, that of capture, it is immaterial whether the capture be legal or illegal; neither this article nor article 26 (above cited) makes any distinction, and in both cases it is a peril of the sea.”
The commentator then cites an opinion prepared by Emerigon, upon the distinction between a capture and an “arrest of princes.”- Page 121. “A capture,” he says, “is when a vessel is taken as prize of war in a spirit of depredation, with a design to deprive the owner of it”
It is either lawful or unlawful; lawful when made by a declared enemy, and according to the laws of war; unlawful when made by a pirate, a friend, or a neutral, or contrary to the law of nations. But whether the capture be lawful or unlawful the insurers are. liable. This word “capture” as used in the ordonnance, without any qualification, must be taken in a general sense, and as including all captures, lawful and unlawful, for both generally lead to the same result.
■ The Boman law enumerates among the perils the attacks of enemies, hostium in-cursus.
“Whether the capture be lawful -or unlawful, the insurers are none the less responsible. . They insure, not only against captures made by enemies or pirates, but also against such as. are improperly made by friends, allies or neutrals; in a word, against all captures in the way of hostilities, brigandage, or otherwise. Whoever commits depredations, says Targa, is a corsair,, and becomes an enemy.” 2 Boulay-Paty, p. 102.
Taken together, the authorities cited support the views of Hr. Marshall, in his treatise on the law of marine insurance. He says that capture is where -a ship is subdued and taken by enemies in open war, or by way of reprisals, or by pirates, and with intent to deprive the owner ■ of it. Marsh. Ins. 422. The weight of authority is adverse to the views of the plaintiffs; and in the judgment of this court the meaning of the word “capture” is broad enough to include a taking by pirates.
The fourth proposition of the plaintiffs is, that it is not the taking of the ship, as set forth in the agreed statement, but the fire which was the proximate cause of the loss, described in the declaration. The facts are that the ship was boarded “with a force which her officers and crew were unable and did not attempt to resist. The assailing force plundered her of her papers, some sails, spars, provisions and other articles, and took out her officers and crew; and after her officers and crew had been taken out of her, she was set on fire by those who took her, and was thereby totally destroyed.” The rule is, that where different causes concur, to one of which it is necessary to attribute the loss, it is to be attributed to the efficient predominating peril, whether it is or not in activity at the consummation of the disaster. 1 Phil. Ins. § 1132. The argument for the-plaintiffs is, that the fire not having been a means used in taking possession of the ship, but having occurred after the taking was complete, and after her assailants had obtained undisputed possession of her and taken out her officers and crew, was the proximate and efficient cause, and by law the sole cause, of her loss. They deduce that conclusion by virtue of the maxim, “causa próxima non remota spectator,” and by virtue of the assumed theory that the fire was a separate and distinct peril from the capture. But the defendants contend that the ■ hostile acts of the officers and crew of the Sumter were the efficient and prevailing cause of the-loss and destruction of the vessel, and that the taking and the burning were parts of one and the same act of hostility.
The agreed statement sho-svs that the steamer was cruising under a commission to-attack, capture, or destroy the vessels belonging to the government and citizens of the United States, and none others. Semmes had such a commission, and the agreed statement shows that he was prevented from taking the ship into a port of the Confederate •States by the danger and difficulty -of our blockade. The clear inference, therefore, from the agreed facts is, that the capture was made for the purpose of destroying the vessel. The design and intent of the capture, as agreed by the parties, was to coerce the government of the United States to-acknowledge the independence of said Confederate States. The danger and difficulty of taking the ship into port deterred the captor from making the attempt. Nothing else remained for him to do, consistent with the purpose for which he was cruising, but to attack and destroy the vessel. The attack
Several cases also are cited, where a peril insured against, put toe vessel iu such a position that she was acted upon by another peril, distinct in its origin and character, and which was not insured against; but it is not perceived that such cases can have any bearing upon toe question before the court. Livie v. Janson, 12 East, 653; Rice v. Homer, 12 Mass. 234. But where a fire arose from the barratry of toe master or crew, it was held that toe loss was by barra-try, and was not chargeable to an insurer who insures against fire, but not against bar-ratry. Waters v. Merchants’ Louisville Ins. Co., 11 Pet [36 U. S.] 219; Grim v. Phoenix Ins. Co., 13 Johns. 457. So where toe vessel was sunk by a shot fired from a battery, toe loss was held not to be by sinking, but by toe hostile act of the soldiers, and therefore within a waranty against capture and seizure, like toe one in this case. Powell v. Hyde, 5 El. & Bl. 607.
Defendants also refer to the case of Naylor v. Palmer, 8 Exch. 739, which is a leading case. Insurance was on advances to be repaid on toe safe arrival of certain emigrants at their port of destination. They seized the vessel on toe voyage, compelled toe crew to work her to another port, and there, without doing any injury to the vessel, left her. The claim was, that their failure to arrive, and toe consequent loss was owing to toe unwillingness of toe emigrants to proceed; but the court held that too proximate and efficient cause was toe seizure, and that toe loss was total. See, also. General Ins. Co. v. Sherwood, 14 How. [55 U. S.] 364, 367.
The present case, however, does not depend upon any very critical application rof the doctrine deducible from the maxim under consideration, because toe agreed statement shows that toe capture and burning were parts of one and toe same acts of hostility. Looking at toe whole case, it is clear that toe plaintiffs cannot recover, and there must be judgment for the defendants.
