Olivera v. The Union Insurance Company
ERROR to the circuit court for the district of Maryland.
On the 29th day of December, in the year 1812, the plaintiffs, who are Spanish subjects, caused insurance to be made on the cargo of the brig called the St. Francis de Assise, 'at and from Baltimore to the Havanna.' Beside the other perils insured against in the policy, according to the usual formula, were 'all unlawful arrests, restraints, and detainments of all kings,' &c. The cargo and brig were Spanish property, and were regularly documented as such. The vessel sailed from Baltin ore, and was detained by ice till about the 8th day of February, in the year 1813, when, being near the mouth of the Chesapeake bay, the master of the brig discovered four frigates, which proved to be a British blockading squadron. He, however, endeavoured to proceed to sea. While making this attempt, he was boarded by one of the frigates, the commander of which demanded and received the papers belonging to the vessel, and endorsed on one of them the words following: 'I hereby certify that the bay of Chesapeake and ports therein, are under a strict and rigorous blockade, and you must return to Baltimore, and upon no account whatever attempt quitting or going out of the said port.' The brig returned; after which the master made his protest, and gave notice to the agent of the owners in Baltimore, who abandoned 'in due and reasonable time.' The underwriters refused to pay the loss on which this suit was brought. It appeared, also, on the trial, that the vessel had taken her cargo on board, and sailed on her voyage before the blockade was instituted. On this testimony the plaintiff's counsel requested the court to instruct the jury that if they believed the matters so given to them in evidence the plaintiffs were entitled to recover. The court refused to give this instruction, and the jury found a verdict for the defendants; the judgment on which was brought before this court, on a writ of error.
Mr. Harper, for the plaintiffs, argued, that a right of abandonment accrued on the original restraint or obstruction of the voyage by the blockade, without an actual attempt to pass. Upon reason and authority, the interposition of the blockade was a prevention of the prosecution of the voyage, and consequently, a loss within the policy. To constitute a technical total loss, which would give a right to abandon, it was necessary that the vessel should expose herself to a physical risk, or actual manucaption. It was sufficient that there was a moral impossibility of prosecuting the voyage. But here was an actual restraint by the vis major in endorsing the vessels papers, and ordering her back to Baltimore, which would unquestionably justify the abandonment. The restraint was 'unlawful,' according to the true intent of this qualification of the usual terms of the policy; because the blockade was instituted after the cargo was taken on board, and the vessel had a legal right to proceed with it, notwithstanding the blockade.  The case of Barker v. Blakes  supports the doctrine that the insured may abandon upon a mere proclamation of blockade, although under the peculiar circumstances of that case the party was held to have delayed his abandonment too long. The decisions of our own courts concur to support this doctrine. 
Mr. Jones, and Mr. Winder, contra, contended, that the decisions of this court laid the true foundation for the termination of the present case. The loss did not fall within the peculiar clause of the policy as to 'unlawful arrests, restraints, and detainments.' The case of M'Call et al. v. The Marine Insurance Company, determines that the qualification 'unlawful,' extends to all the perils mentioned, to arrests, and restraints, and detainments; and that a blockade is not an unlawful restraint.  Whether egress in the present case was unlawful or not, is immaterial unless the vessel had been actually detained and carried in for adjudication. The manner in which the blockade is to be enforced, is of military discretion, and a neutral vessel, with a cargo taken on board after the commencement of the blockade, may be turned back, though she may not be liable to condemnation as prize. Had the vessel been sent in for adjudication, the captors would have been excused from costs and damages, though she might have been acquitted, and pursued her voyage. Consequently' the restraint was not unlawful. This is a claim for indemnity on account of a technical total loss, consequential on some of the perils insured against; a loss breaking up the voyage, or rendering it not worth pursuing. But there is no proof on the record that the blockade still continued at the time of the abandonment. Besides the voyage must be completely and entirely broken up. The authorities have settled it that mere apprehension is no ground of abandonment; no loss, quia timet, is known to the law. In Barker v. Blakes, the two circumstances of capture and the supervening blockade, were combined and connected together to render the voyage not worth pursuing, and to justify the abandonment. The elementary writers have collected the cases concurring to establish the doctrine that a blockade, or embargo, or any other inhibition of trade will not authorize an abandonment. 
Mr. Harper, in reply. The case of M'Call et al. v. the Marine Insurance Company, went on the ground that the blockade was lawful, and, therefore, the insured was held not entitled to recover. But in this case, it is contended that the blockade was unlawfully applied to a neutral vessel attempting to depart with a cargo taken on board before the commencement of the blockade. The right of the neutral to depart is inconsistent with the pretended right of the belligerent to prevent his egress. The supposed exemption from costs and damages on the part of the blockading squadron would not show that the neutral had no right to proceed, but only that his right was not so manifest and apparent as to subject the captors to costs and damages. It was unnecessary for the insured to prove that the blockade continued after the vessel was turned back: The legal presumption is that it still continued; and it is a public notorious, historical fact that it did continue. In Barker v. Blakes, the court of K. B. merely state the previous detention by the capture, in order to show that the party was in fault, in not reaching Havre before the blockade commenced. But the main stress of the opinion tends to show that the institution of a blockade may afford a ground of abandonment, without an actual attempt to enter the blockaded port. The cases cited by Marshall and Park, are not cases of blockade, but of municipal edicts interdicting trade with the ports of the sovereign by whom they were established.
Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating the facts, proceeded as follows:
^1 The Betsey, 1 Rob. 93; The Vrow Judith, Id. 150. The Potsdam, 4 Rob. 89.
^2 2 East, 283, S.C.. 2 Marshall on Ins. App. No. VIII., p.835.
^3 Schmidt v. The United Ins. Co. 1 Johns. Rep. 249. Symonds v. The United Ins. Co. 4 Dall. 417.
^4 8 Cranch, 59.
^5 1 Marshall on Ins. 219; Park on Ins. 223. 6th ed.