Speyer v. New-York Insurance

delivered the opinion of the court. This policy is stated to be the usual printed cargo policy, and, consequently, as I understand it, contains the usual printed clause, “ to be free from any loss which may arise, in consequence of a seizure, or detention for, or on account of any illicit or prohibited trade.” It was upon this clause, that the court determined, in the case of Suydam & Wyckoff v. The Marine Insurance Company, (1 Johnson, 181.) that the denial of an entry at St. Jago, the port of destination, was not a loss within the policy. The policy before us, has also another clause, of some moment in the present case, and that is a warranty, “ not to abandon if turned away, nor if captured, until condemned.” It seems to be agreed, that the turning away here, applies only to the case of a blockade; and we may waive any consideration of that part of the warranty. The question, *94then, is, whether under the operation of these two clauses of the policy, the plaintiff had a right to abandon, in consequence of the proceedings at Bourdeaux, and to claim a tota^ l°ss> as for a loss of voyage. I cannot distinguish this case from that of Suydam & Wyckoff v. The Marine Insurance Company. Here was a seizure and detention, a prohibition to enter, and a turning away, for illicit or prohibited trade ; and this was the very case excepted by the policy from the rule. The reason and grounds of this prohibition are not open for investigation. The plaintiff assumed the risk of such a peril upon himself. What would have been the effect of the prohibition without such a special clause in the policy, is another question, on which I give no opinion. The decision in Suydam Wyckoff v. The Marine Insurance Company, was founded on this special warranty in the policy, and I form my present opinion upon the ground of this special provision.

• But it is contended, that the prohibition and turning away from Bourdeaux, were in consequence of the British capture. If this be admitted, it was not a case for abandonment ; for no abandonment was to be made in case of capture, until condemnation. In my opinion, then, the plaintiff has precluded himself from turning this case into a total loss, and is entitled only to claim a partial loss, for expenses and average, to be computed from the capture, until the arrival at Bourdeaux ; and a reference must be made to proper persons to adjust, and report the amount, for which judgment is to be rendered. The defendant cannot be responsible for subsequent events. The risk terminated at Bourdeaux, for the policy did not provide for a continuation of risk, in case of a prohibition to enter, founded on an illicit trade, nor for leave for the plaintiff to go elsewhere. The prohibition to enter, under the special provision in the policy, was equivalent to an actual termination of the risk, by the landing of the goods. The policy had completely spent itself, when the prohibition intervened. The plaintiffs are to answer only for the previous losses.

Judgment for the plaintiff, for a partial loss.