Ferguson v. Phœnix Insurance

after stating the facts, delivered his opinion as follows:

Serious objections have been made to the captain’s conduct in remaining so long at Corves, after he had obtained a license to proceed to Amsterdam, and also to the conduct of the plaintiffs’ agents in London, in suffering so long a time to elapse before information was given of the discharge of the cargo. I shall give no opinion on these objections, nor on the point raised by the plaintiffs’ counsel, and very well argued, touching the general right to abandon, in consequence of the situation in which the ship was placed under the British orders in council, and the decrees of France and Holland. It appears to me, that the case may be more properly decided under the special agreement in the policy, by which the ship was permitted to proceed to a neighbouring port, in case of being turned off on account of blockade. This agreement is entitled to a liberal construction, having been intended to remove the embarrassments arising from a blockaded port. A neighbouring port is an expression not very definite. I see nothing in it, however, which is confined to a port on the continent; and it would surely be unreasonable to give it that construction, if a port in the island of Great Britain should be nearer than any port unblockaded on the continent. So with regard to a blockade, it is immaterial whether it be actual or on paper, lawful or unlawful. The decrees of the emperor of France blockaded the whole island of Great Britain, and the British orders in council blockaded all that part of the continent held by France or her allies. In such a case what was to be done? It has not been denied, that the port of London was nearer to Amsterdam, than any port on the continent, not blockaded by the British orders in council. London then, may be fairly said to be a neighbouring port, within the meaning of the policy, and had the ship been lost on her way to that port, the underwriters would have been responsible. The captain had a right to go to London, and did go there for the purpose of discharging the cargo. Had the ship been lost on the way, the goods would have been covered by the policy. The owners of the *549goods, then, shall not be permitted in the first place to avail themselves of the policy, in order to get their property into' port, and having arrived there, to consider the. voyage as broken up, and throw the cargo on the underwriters.

Upon the whole of this case, it appears to me, that the voyage was completed according to the true intent of the policy. The assured, therefore, had no right to abandon.

I continue to be of the opinion that I have heretofore expressed in other cases, that the indorsing papers, and ordering to proceed to a port in England, was a capture sub modos that is according as the effect of it should turn out to be. It was such a restraint, and might occasion such detention, as to change the practicability of attaining a port of destination, and might break up the voyage. It did turn out to be the cause of an entry being prohibited at the port of destination, and of the voyage as to the main object being broken up; for I can have no idea that a port of England, was within the meaning of that clause in the policy, “ with liberty, in case of being turned off on account of “ blockade, to proceed to a neighbouring port.” The nature of the cargo shews that it could not be a British port that was intended. Sugars, of which the cargo insured consisted, could not be discharged at a port in England, but for the purpose of transportation. A market there, or a sale for this purpose, could be no better, if not worse, from the duties to be paid, than at the port of departure. It was evidently a cargo for the continent, and a neighbouring must mean some port in the vicinity of Amsterdam, and upon the continent. It is apparent for another reason, that on the second of November 1807, the time the policy was underwritten, there was no British port blockaded, or could be blockaded actually; for no other belligerent power had the means of blockading actually, and the constructive blockade of the Berlin decree had been declared by the French government not to extend to vessels of the United States. And it was not until long after, viz. the 23d of January 1808, that even this constructive blockade, or prohibition of an entry, had been declared by the Dutch decree of Lewis, king of Holland. So that I do not consider the port of London finally attained, as coming within the meaning of the policy. It was *550attained, it is true, and the cargo discharged; but this was compulsory, and the effect of the British outrage upon the law of nations, in marking papers, and ordering to proceed tG a British port in the first instance. All that happened afwas a struggle to escape from the effect of this; the complying by proceeding to a British port. For without so doing, there was no chance, or at least so little as to render it improbable that the vessel could escape, in which case an absolute capture and condemnation was unavoidable. The British cruisers, covering every wave in the channel, and on the coast of England, she was as perfectly guarded as if a prize master had been put on board. I do not, therefore, consider the proceeding to Cowes as a deviation, but á necessity imposed as an act of prudence on the part of the captain, by reason of the indorsing papers, and warning to proceed to a British port. And under the denomination of necessary prudence, I include the paying duties, taking license or convoy. But the delay at Cowes is in my way, and may make it a deviation. For the delay of a day might materially vary the effect of the license which had been obtained, the chance of convoy, or a more or less rigorous enforcement of the French belligerent decrees. A delay of three weeks did materially vary. The license expired before approaching Amsterdam, which occasioned the taking by the Zenobia. But suppose a cause of abandonment to have arisen, would not the captain be considered as from thence the agent of the insurers, or the agent of both insurer and insured, so that as to the delay, it will equally affect both, and not the insured only, so as to discharge the cause of abandonment? There is an equivocal language of this kind to be found in tract writers, and the reports of judicial decisions, of the captain or agent entrusted with the ship and cargo, being the agent of both. But it is language or dictum, if any where found, which I cannot comprehend. I consider him or them the agent of the insured only, not after a cause of abandonment has arisen, and until abandonment made, but even after abandonment, and until reasonable time and opportunity be given to the insurers to get actual possession of the property abandoned, and to become his own agent. A want of due diligence, therefore, or a want of due prudence, and unskilful management on the part of the insurers, will defeat the right of abandonment. I have not an opportunity of looking *551into authorities on this head, and comparing them, but it is so clear a principle in all cases of agency, that I cannot doubt of it. Now applying this, I am not able to get over the unaccounted for delay of three weeks at Cowes, and for that reason, and for that only, am constrained to concur in deciding for the defen dants. It is possible the captain, had he been examined as to this, or had he attended to it himself, in the several protests that he made, could have filled up.v this place, by shewing some necessity for the delay; but he has not done it, though he had it in his own hand, and could easily have raised a storm, or given adverse winds, or wanted convoy, or have invented some accident, but he has not ventured to do this, and I can make no other inference, but that he was amusing himself on shore, and taken up with the pleasures of the place. This, though spoken of by the counsel for the defendant as a minor point, appears to me the major in this case. I think less of the great point made, that the British arrest and the French interdict did not come under the head of restraint of princes. For I take them together, and between one and the other, certain it is that the voyage was defeated and the object of it broken up; and if not with a view to a possibility of such war risks, why the ten per cent, premium? On the other principal point made, I am also clear, that a neighbouring port must be construed a port in the vicinity of Amsterdam,, and on the same side of the channel or sea, which the port of London was not; and as to abandonment within reasonable time, it is unnecessary to say, as I am constrained to be of opinion that the unaccounted for delay at Cowes discharged the cause of abandonment which had arisen, or might afterwards arise.

Judgment for a general average only, to be adjusted by the parties.