M'Bride v. Marine Insurance

Kent, Ch. J. delivered the opinion of the court. This was the case of á vessel detained in one of our ports, after the voyage had commenced, by the intervention of the embargo act of the 22d of December, 1807 ; and the question is, whether this be a detention that justified an abandonment. There is no decision in the English books which comes up to the question, though the uniform language of the cases, and of the writers on insurance, is in favour of the right of the assured, in a case like the present, to abandon and recover. They make no distinction between a foreign and a domestic embargo. The French writers are more explicit. They consider an embargo laid by the French government, on their own vessels in their own ports, as a detention within the policy, if laid after the commencement of the risk. Valin, Emerigon and Pothier concur in this opinion. Under the law of insurance, as they lay it down, the question before us would not be open for discussion. In addition to this, we have a very respectable authority at home, on the "point noW presented. I allude to the case of Odlin v. The Insurance Company of Pennsylvania, in the circuit court of the United States. (Halls Law Journal, vol. 2. p. 221.) Judge Washington went through all the cases that bear upon the question, and examined it, upon principles of law and public policy, and concluded that the assured had a right to abandon, and ' claim a total loss. After the clear and masterly view of the subject which was taken in that case, it becomes unnecessary to examine it here at large; and I think that I need not do much more than to declare that I yield my full assent to that opinion. [308] An embargo is not required to be, upon the face of the act, definite, as to time. It is frequently otherwise ; and the case of the British embargo on vessels bound to Leghorn, as stated in Hadley v. Clarke, (8 Term Rep. 259.) is a pertinent and strong instance of the kind. But it is, from the very nature and policy of the measure, a temporary restraint. It suspends, but does not dissolve the contract of insurance, any more than the contract to carry goods. The error of the counsel for the defendants consists in considering the embargo imposed by congress, as a permanent prohibition, working a dissolution of the contract. We must judge of the act from what it purports to be, and from the terms which it uses. An embargo, ex vi termini, means only a temporary suspension of trade. A general and permanent prohibition of trade would not be an embargo. It would be an act too violent to be endured, and is not to be presumed. It is equally a very forced argument to liken this case to a contract to do an unlawful act, or to perform an illegal voyage. The voyage commenced before the law existed. It was not the object of the policy to violate any law. It had a contrary tendency. It was to indemnify against arrests and detentions, and not to indemnify for resistance to them. “ The policy of the state,” as Lord Alvanley observed, “ is not concerned in preventing one British subject from insuring another against the effect? of an embargo, laid by the British government.” ■ The counsel referred to some recent decisions, in England, arising under our embargo, and which are reported in the addenda to Park; (6th ed. p. 609.) but they will not be found, on examination, to have declared a different rule of law, as applicable to this case, from that which we deem the correct one. The court of K. B. decided that an American citizen could not recover from a British underwriter, under an abandonment founded upon our embargo, because every American subject was to be deemed a party to the act of congress ; and shall [309] not be permitted to indemnify himself, at the expense of a British subject, for a loss arising from his own act. This is similar to the reasoning suggested by Lord Alvanley in the case of Toutengv. Hubbard; (3 Bos. and Pull. 291.) and it appears to be drawn from political considerations rather than from principles of law. Whether the courts of this and of other countries would or would not adopt a similar rule, under similar circumstances, we need ngt now discuss. It is sufficient in this case to say that the rule is not applicable. Lord Ellenborough admits that u where the insured and insurer are both subjects of the same state, the question will stand upon very different grounds of consideration.” And, indeed, in Page v. Thompson, (Park, 6th ed. 109.) he is said to have ruled differently, that being a case between British subjects. When both parties belong to the same government, the act of the government is as much the act of one party as of the other, and each ought to be equally estopped from taking advantage of it, to the prejudice of the other. To consider it as amounting to an agreement between the two parties to dissolve the contract, would be pushing the doctrine to an extravagant length. A domestic embargo would, upon such a refined principle, dissolve all contracts of affreightment and for wages, contrary to the settled rule both in England and France. The court are accordingly of opinion that the plaintiff is entitled to recover. Judgment for th'1 olair