1 Johns. 249 | N.Y. Sup. Ct. | 1806
Without repeating the facts, I shall proceed to the consideration of the important question in the cause, whether the cargo has been lost, (even if Hamburgh was blockaded, and in a state that the vessel could not legally enter,) by any of the perils insured against in the policy. The words in the policy, under which the plaintiff ¡claims for a total loss, are arrests, restraints, and detainments of all kingsy&c, The terms do not I think, embrace a case like the present; for the master of the Orozimbo never attempted to enter the port of Hamburgh, nor was there any actual or immediate restraint, to hinder him from doling so.
I do not profess to consider, whether he was, or was not justified in going to Embden'; but I rest on the fact that
To shew that this was the real point, the learned Judge says, “here without entering into the question how far the cargo was totally lost, the claim made by the assured arises from the ship’s not proceeding to that port to which she was destinedand this, he says, “ cannot create a total loss within the meaning of the policy, because, it does not arise from a peril insured against; such peril must act directly, and not collaterally, upon the thing insured.” It is not requisite to pursue this subject further. To what lengths might not the claims of the assured extend, if this was sanctioned ? The parties have stipulated mutual things ; the underwriters, against the perils of the sea, and any positive, actual injury from restraints, arrests, and detainments, &c. as inatters of facts and not of imagination.
becomes unnecessary to examine the question as to the want of preliminary proof of the average loss ; on the first ground, I am fully of opinion that the defendants are entitled to a new trial, and that the costs should abide the event of the suit.
Tompkins, J. was of the same opinion.
The first question, presented by this case, is, whether a loss of the voyage, by reason that the port of destination was blockaded, be a peril within the policy ; and if so, whether the evidence of Hamburgh's being blockaded was sufficient ?
The insurance was on 35 bales of cotton on board the ship Orozimbo, at and from New-Tork to Hamburgh.—
This was not an illicit trade, and the assured, according to the general laws of trade, had a right to make his calculations for a sale of the shipment at the port of destination, and, for this purpose, insures the arrival of his goods at that port. Our policies are extremely broad and comprehensive, and would seem to embrace every species of risk to which ships and goods are exposed, from the perils of sea voyages. The underwriter, by his contract, stipulates, that the goods shall not be prevented from arriving at their place of destination, by any of the perils insured against. One of those perils is the restraint of princes. In the present case there was, I think, a total failure and loss of the voyage, by a peril coming within the meaning of the policy, under the term, restraint of princes. By the blockade, the vessel was prevented from going to her port of destinaton, and if she had proceeded she would have rendered herself liable to capture and condemnation ; for the master to have proceeded to Hamburgh, when it was in fact blockaded, would have been a violation of his duty. The evidence offered, with respect to Hamburgh's being blockaded was, I think, competent, and proper to be
The effect of an interruption by blockade, that is, whether it be a peril insured against, is the first point in this cause.
Without having recourse to the sweeping clause of “ all other perils, losses, and misfortunes,” (which by Molloy
, But it is insisted that the Orozimbo had a right to proceed, .and should have gone on, until she met xvith the investing squadron, and had been turned axvay. That American vessels, under the treaty of London, have the right of proceeding, until turned axvay in this manner, I never dqubted,- and such has been the decision of the court for the corz-ection of errors, but this is not the only" inquiry here. Properly to estimate the risk of proceeding, after the indorsement which was made on her z-egister, xve must look at the construction which the high court of admiralty of Great-Briiain has put on this part of the treaty.
The Columbia,
But if it were proper in the master to change his route, he ought, it is said, to have gone to the next nearest port, the voyage not being thereby lost, and the insurance would have protected him thus far. This is not so ; the moment a voyage is interrupted by a blockade, a right to abandon exists, and if it be seasonably followed up, every thing that is afterwards done, in good faith, by the master, must be on account of the underwriters. The assured are not obliged to receive their goods at the next nearest port, or at any other port than the one to which the vessel was bound. They have calculated on a particular market, and if impeded in getting thither, a loss of the voyage has happened, and the property may be cast on the insurers. As to the captain, he acted for the best j nor ought a receipt of the cargo by the consignees to prejudice any one. This was an act, in which the ultimate
My opinion is, that the verdict is right, except as to the sum included in it, for the average loss, settled at Hamburgh. As this must already have been paid by the consignee out of the proceeds of the goods, that is, out of a fund belonging to the defendants, it ought not to be recovered in this suit; the plaintiff, therefore, must deduct 57 dollars and 60 cents from his verdict, and enter judgment for the balance.
The first question that arises in this case, is as to the sufficiency of the evidence of the actual blockade of Hamburgh, in August and September 1803, This testimony consisted, 1. In the notice of the fact given to the captain, by an officer of one of the British ships of war, after the vessel had arrived on soundings near the English channel, with- a prohibition to proceed there; 2. In the like notice and prohibition given him, by an officer of another ship of war off the isle of Wight ; 3.- In a letter written to him from-London, on the 23d of August 1803, by Thomas Wilson, agent of the owner of the ship', who stated to him. the fact, and advised him to go to Embden; 4. In-a letter from William Boyd, the owner of the ship, dated afi Hamburgh, the 3d September 1803, and addressed to the captain at Embden, in which the fact seems to be necessarily implied; 5. In the testimony of
This evidence was, in the first instance, sufficient for the jury to infer the existence of- the blockade at the period in question, and as the defendants did not attempt to meet or destroy it by counter testimony,'the verdict ought not now to be questioned, on account of the insufficiency of that evidence.
The next, and more important question, is, whether a blockade of the port of destination, be a peril within the policy. The only case in the English books that appears to have a bearing on the question, is that of Hadkinson v. Robinson.
I do not consider the act of the consignee in receiving the goods at Embden as binding upon the plain tiff; for as he received them there in consequence of the peril, it was an act of necessity, and he received them as agent for the party in whom the interest should vest, according to the course of events.
It appears, then, to me, that the blockade in fact being established, the captain was forced out of his voyage by the peril; that his conduct in going to England, and from thence to Embden, arose from necessity, and was guided by the best advice, and the best discretion, that the circumstances of his case afforded ; and the abandonment having been duly made, the plaintiff is entitled to recover ^s for a total loss.
As to the further sum, found by the verdict, for the gross average, it cannot be admitted. We have allowed, after a recovery for a total loss, a further sum for expenditures in labouring to save the property, under the special agreement in the policy, but we have gone no further.—That sum must be deducted from the verdict.
Judgment for the plaintiff.
Willes, 644.
Hadkinson v. Robinson.
1 Rob. Adm. Rep. 154.
Cap. 59, 291.
Disc. 23, N. 84.
1 Vol. 509.
3 Bos. & Pull. 389.
3 Bos. & Puller, 389.