5 Johns. 299 | N.Y. Sup. Ct. | 1810
delivered the opinion of the court. This was the case of á vessel detained in one of our ports, after the voyage had commenced, by the intervention of the embargo act of the 22d of December, 1807 ; and the question is, whether this be a detention that justified an abandonment.
There is no decision in the English books which comes up to the question, though the uniform language of the cases, and of the writers on insurance, is in favour of the right of the assured, in a case like the present, to abandon and recover. They make no distinction between a foreign and a domestic embargo.
The French writers are more explicit. They consider an embargo laid by the French government, on their own vessels in their own ports, as a detention within the policy, if laid after the commencement of the risk. Valin, Emerigon and Pothier concur in this opinion. Under the law of insurance, as they lay it down, the question before us would not be open for discussion.
In addition to this, we have a very respectable authority at home, on the "point noW presented. I allude to the case of Odlin v. The Insurance Company of Pennsylvania, in the circuit court of the United States. (Halls Law Journal, vol. 2. p. 221.) Judge Washington went through all the cases that bear upon the question, and examined it, upon principles of law and public policy, and concluded that the assured had a right to abandon, and ' claim a total loss. After the clear and masterly view of the subject which was taken in that case, it becomes unnecessary to examine it here at large; and I think that I need not do much more than to declare that I yield my full assent to that opinion.
The counsel referred to some recent decisions, in England, arising under our embargo, and which are reported in the addenda to Park; (6th ed. p. 609.) but they will not be found, on examination, to have declared a different rule of law, as applicable to this case, from that which we deem the correct one. The court of K. B. decided that an American citizen could not recover from a British underwriter, under an abandonment founded upon our embargo, because every American subject was to be deemed a party to the act of congress ; and shall
The court are accordingly of opinion that the plaintiff is entitled to recover.
Judgment for th'1 olair