#### Wilson *against*The United Insurance Company.

NEW-YORK,

May, 1817.

Insurance on goods on board of»« American ship, from '^/to^conui nue, both duriug capture, and lít-eme was stopped at the mouth of the *Chesapeake*by a *British*blockading squadron, and ordered back to Norfolk, under pain of capture and condemna-tion ; she accordingly returned up the Chesapeake, and afterwards gave up the voyage. Held, that it was a loss by detention of the British, within the meaning of the warranty.

THIS was an action on a policy of insurance, tried before / ■ _ tt- • • . . Mr. Justice Spencer, at the *New-York*sittings, m *November,*1 ° ; where a verdict was taken for the plaintiff, subject to opinion of the court, on a case to be made, with liberty for either party to turn the same into a special verdict, subject also to an adjustment as to the amount; upon such principles as the court should direct.

The policy, which was dated *February*11th, 1813, was on cargo of the *American*ship *Hibernia, Delano*master, at and *228from Norfolk, in *Virginia,*to *Cadiz.*It was in the usual form °f the printed policies of *New York,*and contained at the foot of it the following written memorandum : “ Warranted free-from loss by *British*and *American*cápture and detention, but the usual sea and other risks to continue both during capture and after liberation.” The declaration averred, that the vessel# while proceeding on her voyage, was forcibly, &c. by persons acting under the authority of the king of *Great Britain, &c.*“ restrained, hindered, and prevented from proceeding upon, pursuing, and making her said voyage,’’ &c. by reason whereof the goods, &c were totally lost. On the 3d of *February,*1813, the *Hibernia,*loaded with flour, sailed from *Norfolk*for *Cadiz,*and reached *Hampton Roads*the 7th day of the same month, where she found a *British*squadron of four frigates blockading the mouth of the *Chesapeake.*An officer from the blockading squadfon boarded the *Hibernia,*and having examined her papers, ordered her back to *Norfolk.■*She accordingly returned to *Norfolk*the next day. The blockade continuing, she remained' at *Norfolk*until the 3d of *March,*when she sailed again from *Norfolk,*with a neutral brig, in the hope of passing the blockading squadron, and intending to proceed to *Cadiz.*The *Hibernia*was again boarded by an officer of the blockading squadron, on the 16th of *March,*who endorsed on her papers an order to return to *Norfolk.*The master hearing that hulks had been sunk in the channel near *Norfolk,*thought it most prudent to go to *Port Hood*in *James River,*where the vessel lay until *November*following, when, to preserve the cargo, it was discharged, and the voyage broken up. The master, who was examined as a witness, testified, that the enemy did not capture or detain the *Hibernia,*but only restrained her from proceeding on her voyage; that he might have gone with his vessel to any port he chose, in the *Chesapeake,*or any of its waters, within, and out of the reach of the blockading squadron ; that when he sailed from *Norfolk,*he did not know of the blockade, nor until he came in sight of the blockading squadron ; that the *Hibernia*was the first vessel turned bark by the blockading squadron. That he had on board of the Hibernia, when she sailed from *Norfolk,*and until the voyage was broken up, an *American*register, a clearance, bill of health, &c., and a *British*license, on *229the face of which the boarding officer made the endorsement, when she attempted to proceed on the voyage the second time. That the license was what is called a *Sidmouth*license, which he believed to be genuine; and was furnished to him by the owners of the ship; and that he showed the license to the officer of the blockading squadron who boarded the *Hibernia,*with a view to her protection. The endorsement on the license was as follows : “ In pursuance of orders from the commander in chief, to place the ports in the *Chesapeake*under a rigorous blockade, you are hereby ordered and directed to return into the port from whence you came. Any attempt to violate this order will subject ship and cargo to condemnation. *March,*16th, 1813.”

Colden, for the plaintiff, contended,

1. That there was no *capture*or *detention*of the *Hibernia,*by *British*or Americans, within the language or meaning of the written clause of warranty ; it was a *restraint*merely, which being a peril in the policy not excepted by the warranty, the plaintiff was entitled to recover. *Detention,*he said, was a forcible taking into possession or custody, but *restraint*was a mere hindrance by a superior power, from proceeding in the destined course. The *Hibernia*found at the mouth of the *Chesapeake*a force which prevented her from getting out to sea, and proceeding on her voyage to Cadiz; but it did not capture or detain her, but left her at liberty to return to *Norfolk,*or to go to any other place within the waters of the *Chesapeake.*

2. But it will be said, she has falsified her warranty of being an *American*ship by having on board a *British*license. This was a mere pass, to permit the vessel to go to a neutral port; and was different from what is called a *Sawyer’s*license, granted for the purpose of carrying provisions to the enemy. The counsel proceeded to discuss this question, which he regarded as important, at considerable length; but as the court expressed no opinion upon it, it is thought unnecessary to state the arguments of counsel. He cited 5 *Bob. Adm. Rep.*10 *(n.)*1 *Gallis. Rep.*513. The *Liverpool Packet. Id.*594. *The Julia,*

J. *T.*Irving, contra, insisted,

that the words *detention*and *230*restraint*used in policies of insurance, must be regarded as sy=> nonymous terms; and that there was no ground for the distinction attempted to be maintained by the plaintiff’s counsel. An embargo is a *detention*within the policy.* So, where a vessel is arrested by the government, from any supposed necessity, it is a detention. To create a loss for which insurers are answerable, it must be by a peril acting immediately, not circuitously, or collaterally, upon the subject insured† Where the insurer takes upon himself the risk of capture, the fear of the assured to encounter that risk will excuse the insurer from being answerable for the loss of the voyage.‡ But the present case is much stronger; the assured, by his warranty, took the risk of *British*capture ; yet, because he dared not, or would not, encounter that risk, he seeks to make the defendants answerable for the loss of the voyage.

On the *second*point, he contended, that the *Hibernia,*having an enemy’s license, had identified herself with that enemy, and thereby falsified her *American*character.§ It is not lawful for a citizen of the *United States*to use the license or protection of the public enemy of his country.ǁ

S. *Jones.*Jun.,

on the same side, was stopped by the court-

*D. B. Ogden,*in reply,

said, that policies of insurance, like all other instruments, must be construed so as to give meaning and effect to the whole. If *restraint*was synonymous with detention, it was perfectly redundant and useless. Detention implies that the thing detained is kept within the power of the party detaining. Restraint may exist, where the thing is out of his custody or immediate power. The warranty is against capture *and*detention, not against capture *or*detention. *Again;*the sea risks are to continue during capture, and after liberation.

*

*Marsh, on Ins.*508.

†

*Hadkinson*v. *Robinson,*3 *Bos. and Pull.*388.

‡

*Lubbock*v. *Rowcroft,*5 Esp, *Rep.*50 *Blackenhagen*v. London As*s. Comp.*1 *Campb. Rep.*454,

§

 1 *Caines,*549.

ǁ

 2 *Dallas,*10. *4*Rob. *Adm.*Rep. 11. Vigilantia, 1 *Gallison's*Rep. *594. Julia, wheaton on' Captures,*165.168.

*Per Curiam.*

There is no difference between detention and restraint in this case. The ship was detained and restrained by the *British*from proceeding on the voyage insured. Being , warranted free from such detention by the assured, the plaintiff j cannot recover. Had the vessel been captured, he could not I *231have recovered; yet he seeks to recover, because he did not choose to proceed for *fear*of capture and condemnation.

Judgment for the defendants.