KING
v.
THE DELAWARE INSURANCE COMPANY.

*75 Ingersoll, jun. for plaintiff in error.

Binney and Hopkinson, contra.

*78 MARSHALL, Ch. J. delivered the opinion of the court as follows:

This suit was instituted on a policy insuring the freight of the Venus, from Philadelphia to the Isle of France. The vessel sailed early in December, 1807, before the British orders in council, of the preceding November, were known in the United States. On the afternoon of the 16th of January, 1808, while prosecuting her voyage, she met the British ship of war Wanderer, by whom she was arrested and detained until the morning of the 18th, when she was restored to the captain, her papers being first endorsed with these words, "Ship Venus warned off the 18th of January, 1808, by H.M.S. Wanderer, from proceeding *79 to any port in possession of his majesty's enemies."

The captain was verbally informed by an officer of the Wanderer that the Isle of France was blockaded, and that the Venus would be a good prize if-she proceeded thither.

The captain returned to Philadelphia, where he was disabled from prosecuting his voyage by the embargo. Considering the voyage as broken up, by the arrest and detention of his vessel by the Wanderer, he on that account abandoned to the underwriters.

The principal question arising on this case is, was the captain of the Venus justified in returning to Philadelphia, after having proceeded about 1,000 miles on his voyage, either by the endorsement on his papers, or the verbal information given by an officer of the Wanderer?

A point preliminary to the examination of this question on its merits has been made by the plaintiff in error.

The jury have found, that "by the interruption, detainment, and warning off of the British force, the voyage of the said ship Venus was broken up."

After stating the verbal information given by the British officer respecting the blockade of the Isle of France, is this further finding, "We find, in consequence thereof, that the said Elisha King was fully justified in returning to the port of Philadelphia."

These findings, it is urged, conclude the court, and render this special verdict equivalent to a general one.

But this court is not of that opinion. It has been truly said, that finding the breaking up of the voyage finds nothing. The question recurs, was the voyage broken up by one of the perils insured against, or by *80 the fault of the captain? The answer to this question determines the liability of the underwriters.

It has been also truly said that the question of justification is a question of law, not of fact. If, as in this case, the jury find the fact specially, and draw the legal conclusion that the fact amounts to a justification, the court is not bound by that conclusion.

The case, then, is open to examination on its real merits, unaffected by the particular findings which have been noticed.

In proceeding to inquire whether the circumstances which actually occurred, justified the captain of the Venus in returning to Philadelphia, it becomes important to ascertain the real hazard of prosecuting his voyage. This essentially depends on the construction of the British orders of council issued in November, 1807. By the plaintiff in error it is insisted, that these orders extend to the direct trade between a neutral port and the colony of an enemy. In support of this construction, a very acute and elaborate criticism has been bestowed on those orders, which appears to the court merely to furnish additional proof of the imperfection of all human language. The intent of the orders to exclude from their operation this direct trade, an intent alike manifested by the context, and by the particular words forming the exception, the universal understanding of both countries, which has been, on more than one occasion, publicly and officially expressed, are too conclusive on this point to render it necessary that the court should proceed to review that analysis of this document which has been so well made at the bar.

According to the construction contended for by the plaintiffs in error, an exception professedly made to mitigate the rigour of the general rule, "and still to allow to neutrals the opportunity of furnishing themselves with colonial produce for then own consumption and supply," would be more rigorous than the rule itself, and would interdict that trade by which *81 they were to be supplied with this produce for their own use, with as jealous circumspection as the trade professedly prohibited by the general rule.

It is, then, the clear and unanimous opinion of the court, that the words "shall have," which are used in the exception, relate as well to the time of capture, as to the time of issuing the orders, and that a direct voyage from the United States to a colony of France, was not prohibited.

It being found that the Isle of France was not actually blockaded, and the orders not prohibiting the voyage, it remains to inquire whether the apprehension excited by the warning, or by the verbal communication of a British officer, justified the return of the Venus to Philadelphia.

It has been very truly observed that, in this case, the Venus was not physically incapacitated from prosecuting her voyage.

With equal truth has it been observed, that there was no legal impediment to her proceeding, because the voyage was not prohibited by the orders of November, 1807; and, consequently, the endorsement on her papers would not have increased the danger.

There did not, then, at the time the voyage was abandoned, exist, either in fact, or in law, the restraint or detention, against which the underwriters insured. From fear, founded on misrepresentation, the voyage was broken up, and the vessel returned to her port of departure.

Whether this might be justified under any circumstances it is unnecessary to determine. But the court is of opinion that the circumstances of this case did not justify it. The Venus might have proceeded, and ought to have proceeded, until she could obtain further information. It would be dangerous in the extreme if any false intelligence received on a voyage *82 might justify a captain in acting as if that intelligence were true.

The case of Blackenhagen v. The London Assurance Company, has a strong bearing on this case, and though that was a decision at Nisi Prius, it is entitled to all the respect which is due to the court of common pleas. After the same opinion had been successively given by Lord Ellenborough, and by Sir James Mansfield, it was affirmed by the whole court, and the jury having found against the opinion of the judge, a new trial was granted.

The court gives no opinion on the question how far the underwriters would have been liable, had the orders of council prohibited the trade to the Isle of France. This decision is not intended in any manner to affect that question.

Judgment affirmed with costs.