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(which cannot, all of them, be reconciled,) the court 1918 is of opinion, that if any person who endorses a bill of oil.
exchange to another, whether for value, or for the pur- w. pose of collection, shall come to the possession thereof Union Ins, - - Company. again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it onc or more endorsements in full, subsequent to the one to him, without producing any receipt or endorsement back from either of such endorsees, whose names he may strike from the bill, or not, as he may think proper.
Judgment affirmed. '
OLIvERA v. THE UNIon INsu RANce CoMPANY.,
A vessel within a port, blockaded after the commencement of her voy. age, and prevented from proceeding on it, sustains a loss by a peris within that clause of the policy insuring against the “arrests, restraints and detainments of kings,” &c. for which the insurers are liable; and if the vessel so prevented be neutral, having on board a neutral cargo, laden before the institution of the blockade, the restraint is unlawful.
A blockade does not, according to modern usage, extend to a neutral vessel found in port, nor prevent her coming out, with the cargo which was on board when the blockade was instituted.
A technical total loss must continue to the time of abandonment
1818." **** Olivera w. Union Ins. Company.
Quere as to the application of this principle to a case where the loss was by a restraint on a blockake, and proof made of the cominencement of the blockade, but no proof that it continued to the time of the
EaroR to the circuit court for the district of Mary
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 Cheapeake 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 1818. the loss on which this suit was brought. It appear- oo: ed, also, on the trial, , that the vessel had taken her Wi cargo on board, and sailed on her voyage before the Union Ins. blockade was instituted. On this testimony the Company. 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 er
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
Wol. III. 25
Union Ins. ompany.
a legal right to proceed with it, notwithstanding the
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, de
termines 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 liablé to condemnation as prize. Had the vessel been sent in
a The Betsey, 1 Rob. 93. The Vrow Sudith, Id. 150. The Potodam. 4 Rob. 89.
b 2 East, 283. S. C. 2.Marshall on Ins. App. No. VIII. p. 835. e Schmidt v. The United Ins. Co. 1 Johns. Rop. 249. Symonds v. The United Ins. Co. 4 Dall 417.
for adjudication, the captors would have been excused
that the blockade was lawful, and, therefore, the in
sured 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 inconsis
a 1 JMarshall on Ins. 219. Park cn Ins. 223. 6th ed.