Vigers v. Ocean Insurance

delivered the opinion of the court.

This case presents the question of a right to abandon as for a total loss on the part of the assured, under the following circumstances:

The insurance was upon merchandize on board the schooner Sarah Ann, bound from New-Orleans to Tampico, in the republic of Mexico, and against the usual sea risks and also against “arrests, restraints, and detainments of all kings, princes, or people, of what nation, condition, or quality soever,” etc. On the arrival of the schooner off the' bar of Tampico, she was boarded by an officer from the French squadron, then and yet employed in a vigorous blockade of Tampico and other Mexican ports in the Gulf, who gave formal notice to the master of the schooner, that all the Mexican ports were under strict blockade, by the squadron of ships of war of the king of the French; ordered him to leave the coast with his vessel, and endorsed the notice upon the róle d’Equipage of the schooner. Permission was refused to come to anchor, or to land the passengers, or to take in supplies. Under these circumstances, the master of the schooner, after-remaining for some time under the guns of a brig of war belonging to the French squadron, returned to New-Orleans. It is admitted, that the blockade still continues^ and the evidence shows, that it is rigorous and with an adequate stationary force.

It appears to us clear, that any further attempt to enter the port of destination on the part of the schooner, might have been followed by a forfeiture of the vessel and cargo, without any recourse upon the underwriters, and that the master could not have gone to any other port, without *367equally forfeiting his insurance. He had, therefore, no altef-i native left but to return to the port of departure, and the1 voyage or adventure was entirely broken up; not by a vague apprehension of danger, but by a direct¡ application of superior force. It was a restraint, in our opinion, according to a sound construction of the policy of insurance.

If the question presented by this case, was at one time unsettled, and the decisions of state tribunals, variant if not contradictory, as would appear from the cases to -which our attention has been called in the argument, we cannot but consider it as now at rest by the highest judicial authority of the Union. The case of Olivera vs. the Union Insurance Company, decided by the Supreme Court of the United States, 3 Wheaton, 183, cannot be distinguished in principle from this. The only difference in point of fact is, that in that case, the vessel was prevented from leaving the Chesapeake, upon her destined voyage by a blockading squadron, .and in tbis, the schooner was restrained from entering her port of destination, after having nearly completed her voyage. The same force was applied, the same notice' given, and in both cases,.the vessel was compelled to put back to the port of departure. If instead of a blockade of Tampico, it had been a blockade of the mouths of the Mississippi, and the schooner had been compelled to return from the Balize, the two cases would have been in every essential particular identical. In the case of Olivera, the vessel had sailed from the port of Baltimore bound to the Havana, and on its approaching the mouth of the Chesapeake Bay, was boarded by one of the frigates belonging to the blockading squadron, and notified of the blockade, and ordered to return to Baltimore. The reasoning of the great magistrate, who, at that time stood at the head of the federal judiciary, in delivering the opinion of the court, applies equally to both cases. The court considered, that a case of vis major applied directly and effectually so as to break up the voyage, and that it was a restraint within the terms of the policy, although not attended' by any actual seizure or arrest. In commenting on the case of Barker vs. Blakes, the chief justice remarks, *368“ that the court of King’s Bench thought the blockade of the port of destination constituted a total loss, which was occasioned by the detention of the vessel, but that the abandonment was not made in proper time.” It is also- to be observed, he adds,- “ that the vessel did not attempt (o proceed towards the blockaded ports, but lay in Bristol, when the abandonment was made. The blockading squadron therefore did not act directly on the vessel, nor apply to her any' physical force. It is not certain that such a circumstance might not have materially affected the case.” What the chief justice supposes might have happened, and have made a material difference in that case, actually took place in the one now under consideration. The force was directly applied to the vessel when on the point .of terminating her voyage, and she was restrained from entering by a force . which could neither be resisted nor evaded with safety. That the same restraint still exists is not only shown in the record, but is a matter of notoriety, and it is impossible to predict how long it may continue. Under these circumstances, we are of opinion, that the plaintiffs are entitled to recover as for a technical total loss.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.