Tenet v. Phoenix Insurance

delivered the opinion of the court. It will not be necessary to consider the points arising from the preliminary proofs, and the abandonment; admitting the evidence to have sufficiently established both those points, still the plaintiff is not entitled to recover. Nor is it essential to discuss the point of the blockade, de facto, of Bordeaux. Whether that port was blockaded or not, the facts show that the Calliope was prevented, by the presence of a British squadron, from entering the port of destination. There was therefore a turning away, within the terms and spirit of the policy, and consequently there existed a right on the part of the assured to proceed to another near open port. The policy precludes an abandonment for refusal of admittance, or a turning away. The questions then are, whether the French ports in the neighbourhood of Bordeaux are to be considered open ports, w'ithin the' purview of the policy; and if so, then, whether the ship did not deviate before her arrival at L'Orient?

It was conceded on the argument very properly, that the Milan decree could have no influence on the question, because it was not known to the captain, and he did not act with a view to it. If the ports of France .are to be considered as not open ports, it must be under the Berlin decree. That- decree was passed on the 21st of November, 1806, and this policy was underwritten on the 19th of November, 1807. The only articles of the decree which have any bearing on the question, are the 5th and 7th. The former forbids trading in English merchandise ; and all merchandise belonging to England, or coming from its manufactories or colonies, is declared lawful prize. The latter declares that no vessel coming directly from England, or from the English colonies, or having been there, after the publica*372tion of the decree, shall be received m any port. The French ports then were not shut, except as to neutral vessels so circumstanced as to come within the cases mentioned in the decree. When, therefore, we perceive that the voyage is from New-York to Bordeaux; that the property is warranted American; and that the policy was. effected one year after the promulgation of the Berlin decree, it is certain, that in the contemplation of the parties, the ports of France were not considered shut to this ship. The policy is on the ship, and we cannot intend that the cargo she -was to carry out would bring her within the decree. On the contrary, the intendment is, that such cargo would be laden on board as was admissible under-the decree 5 the parties acting tinder a full knowledge of its provisions. With respect to this ship, then, we consider the ports of France as open ports.

The terms near open port, must be considered as used in a geographical sense, and not as depending on a facility of reaching a distant port if the wind should, happen to be favourable. They admit of some latitude, but still there must be a limitation. If, therefore, it be conceded, that L'Orient comes within the expression of a near open port, in reference to Bordeaux, the port of destination, it is, perhaps, as great an extension of the import of the words as ought to be allowed. We are of opinion that neither Falmouth, Plymouth, nor Guernsey, can be considered near ports to Bordeaux; and, consequently, that an attempt to reach either pf those ports was a deviation, if the ship was wide of the usual course of a voyage from Bordeaux to L’Orient. That she was out of the common and usual iter, is very clear from the evidence; for after she was boarded and had her register endorsed, she set out for England, and during two or three days was beating against the wind, with a view to reach an English port; and when it was determined to abandon the attempt from the. *373stress of weather, and the leaking of the ship, she reached VOrient by putting herself, in fact, before the wind. When the resolution was adopted to abandon the attempt to gain an English port, the ship was in latitude 47 degrees 42 minutes north, and in longitude 5 west, and it is perfectly clear from an examination of the charts, that, at that time, the ship was entirely out of her course from Bordeaux to VOrient. Here then was a deviation, and consequently an end of the policy ; and the underwriters are not answerable for the subsequent loss, fo whatever cause it may be attributed.

Judgment of nonsuit#