THE MARYLAND INSURANCE COMPANY
v.
WOODS.

*38 P.B. Key, for the plaintiffs in error.

Harper, contra.

Martin, in reply.

*42 MARSHALL, Ch. J. delivered the following opinion of the court, viz.

This cause comes on upon various exceptions to opinions delivered by the circuit court of Maryland.

The first exception, having been taken by the party *43 who prevailed in the cause, is passed over without consideration.

The 2d and 3d exceptions are so intimately connected with each other, that they can scarcely be discussed separately.

This action was brought by the owners of the cargo of the William & Mary, to recover from the Maryland Insurance Company the amount of the policy insuring the cargo of that vessel. The voyage insured was "from Baltimore to Laguira, with liberty of one other neighbouring port, and at, and from them, or either of them, back to Baltimore." The cargo was warranted to be American property, and the vessel to be an American bottom, "proof of which was agreed to be transferred in the United States only."

Previous to the sailing of the William & Mary from Baltimore, the blockade of Curraçoa had been notified to the President of the United States, by the British government, and was generally known in Baltimore. The vessel arrived at Laguira, from which place she sailed for some other port, was captured within thirty miles of the port of Amsterdam, in Curraçoa, then actually blockaded, and was condemned for an attempt to break the blockade.

The proof whether the William & Mary sailed from Laguira for Curraçoa, or for St. Thomas's or Porto Rico, is not positive; and the evidence respecting the information which she sought, or might have received, at Laguira, respecting the blockade of Curraçoa, is contradictory. On the part of the plaintiff below, evidence was given that, at Laguira, information of this fact was sought and could not be obtained. On the part of the underwriters, evidence was given, that no inquiry respecting it was made at Laguira, and further, that there was a small island called Bonaire, between Laguira and Curraçoa, not much out of the track from the former place *44 to the port of Amsterdam, at which no inquiry respecting the blockade of Amsterdam was made.

The counsel for the underwriters prayed the court to instruct the jury, that, if they believed these facts, the plaintiff could not recover.

This instruction the court refused to give, but did instruct the jury "that if they shall be satisfied, in this case, that Captain Henry Travers, master of the said schooner, sailed from Laguira for the port of Amsterdam, in the island of Curraçoa, with intent to enter the said port, if not actually blockaded, but, if blockaded, not to attempt to enter, but to sail for the island of St. Thomas's, and if the jury should be also satisfied from the said evidence, that the said Henry Travers did not attempt to enter the said port, but was captured on his way to the said port, at the distance of 29 or 30 miles therefrom the court are of opinion, and accordingly directed the jury, that such conduct, on the part of the said Henry Travers, was not unlawful, and that, notwithstanding such conduct, the plaintiff can maintain the present action."

This opinion and direction of the circuit court asserts two principles of law.

1. That the sentence and condemnation of a foreign court of admiralty, condemning a vessel as prize for attempting to enter a blockaded port, is not conclusive evidence of that fact, in an action on this policy.

2. That, under the circumstances of the case, the sailing from Laguira, and the passing Bonaire, without making any inquiry, at either place, respecting the blockade of Amsterdam, were not such acts of culpable negligence as to discharge the underwriters.

1. Is the sentence of a foreign court of admiralty, in this case, conclusive evidence of the fact it asserts?

*45 This depends entirely on the construction given to the policy. The question respecting the conclusiveness of a foreign sentence was, some time past, much agitated throughout the United States, and was finally decided, in this court, in the affirmative. Pending this controversy, a change was introduced in the form of the policy, at several offices, by inserting, after the warranty that the property was neutral, the words, "proof of which to be required in the United States only."

By the underwriters it is contended that these words go to the property only, and not to the conduct of the vessel. By the assured it is contended that they apply to both.

The underwriters insist that the words themselves import no more than that proof respecting the property may be received in the United States, and that a more extended construction is not necessarily to be given to them in consequence of their connection with the warranty of neutrality, because a neutral vessel attempting to enter a blockaded port would thereby discharge the underwriters, although no warranty of neutrality should be found in the policy.

There is much force in this argument, and if the question shall ever occur on such a policy, it will deserve serious consideration. But whatever might be the law in such a case, the majority of the court is of opinion that, under this policy, the sentence of the foreign court of admiralty is not conclusive.

The contract of insurance is certainly very loosely drawn, and a settled construction, different from the natural import of the words, is given, by the commercial world, to many of its stipulations, which construction has been sanctioned by the decisions of courts. One of these is on the warranty that the vessel is neutral property. It is not improbable that, without such warranty, the attempt of a neutral *46 vessel to enter a blockaded port might be considered as discharging the underwriters. But no such decision appears ever to have been made; nor is the principle asserted, so far as is known to the court, in any of the numerous treatises which have been written on the subject. On the contrary, the judgments rendered in favour of the underwriters, in such cases, have been uniformly founded on the breach of the warranty of neutrality, which, though in terms extended only to the property, has been carried, by construction, to the conduct of the vessel. It is universally declared that anti-neutral conduct forfeits the warranty that the vessel is neutral.

This being the construction put by the parties, and, in consequence thereof, by courts, on the warranty of neutrality, it is fair to consider the reservation of the right of giving proof in the United States, which, in direct terms, refers to the whole warranty, as intended by the parties to be co-extensive with the warranty itself; and, as the conduct of the vessel was, in legal construction, comprehended in the warranty of her neutrality, that the conduct of the vessel would, in legal construction, be comprehended in the reservation of a right to make proof in the United States.

The majority of the court, therefore, is of opinion, that the circuit court did not err in submitting the testimony respecting the conduct of the vessel, in this case, to the jury.

2. Are the underwriters discharged by the conduct of the captain?

This question is susceptible of several subdivisions.

1. Was the port of Amsterdam, in Curraçoa, a neighbouring port, within the policy?

2. Did the intention to pass Amsterdam, if blockaded, discharge the underwriters?

*47 3. Was an omission to inquire at Laguira or Bonaire, respecting the blockade of Amsterdam, such a culpable negligence as to discharge the underwriters?

It is the opinion of the court that the port of Amsterdam was a neighbouring port within the policy. The distance between the two places is inconsiderable. It is not stipulated that the neighbouring port shall be one under the Spanish government, nor is it to be implied from the nature of the case. Indeed, the common usage of Baltimore, which was given in evidence, for vessels sailing with cargoes assorted for the Spanish Main to and from Laguira to Curraçoa, if refused admittance into the former port, would be conclusive on this point, if, in other respects, it could be doubtful.

Neither was the intention to sail for some other port, on the contingency of finding Amsterdam blockaded, a deviation.

It is admitted that the voyage from Laguira must be certain, and that only a certain voyage would be within the policy. But the opinion of the circuit court was founded on the jury's believing that the voyage from Laguira was for Amsterdam, a voyage which the vessel had a right to make, and that the intention to sail to another port, should Amsterdam be blockaded, constituted no deviation while on the voyage to Amsterdam.

Certainly an intention, not executed, will not deprive the insured of the benefit of his contract in a case in which he would not have been deprived of it, had he executed his intention. Had Captain Travers, on the voyage to Amsterdam, sustained a partial loss, and, after entering that port, determined to go to Porto Rico, or St. Thomas's, it is certain that, after sailing from Amsterdam, the voyage would have been no longer within the policy, nor would the underwriters have been answerable for a subsequent loss. But it could never be contended, with any *48 semblance of reason, that this discharged them from the loss sustained on the voyage to Amsterdam.

3. The omission of the captain to make any inquiry respecting the blockade of Amsterdam, at Laguira, or to call, for that purpose, at Bonaire, comes next to be considered.

The notoriety of the blockade of Curraçoa, before Captain Travers sailed from Baltimore, must affect him, especially as the instruction given to the jury is not made dependent on their believing that he had no actual knowledge of the fact. It seems a reasonable duty, in ordinary cases, to make inquiry in the neighbourhood, if information be attainable, respecting the continuance of a blockade known previously to exist.

It is true, that upon this point, contradictory evidence was given; but the opinion of the court is predicated on the jury's believing that Captain Travers made no inquiry at Laguira. The correctness of that opinion, therefore, depends on its having been the duty of the captain to make this inquiry.

In an ordinary blockade, this, perhaps, might have been necessary; but it is contended, that blockades in the West Indies were so qualified by the British government, as to have dispensed with this necessity.

It was proved, that orders had been given by that government, to its cruisers and courts of vice-admiralty, which orders were communicated to, and published by, the government of the United States, "Not to consider blockades as existing, unless in respect to particular ports which may be actually invested, and then not to capture vessels bound to such ports, unless they shall have been previously warned not to enter them."

On the motives for this order, on the policy which *49 dictated this mitigation of the general rule, so far as respected blockades in the West Indies, this court does not possess information which would enable it to make any decision, but it appears essentially to vary the duty of the masters of neutral vessels sailing towards a port supposed to be blockaded.

The words of the order are not satisfied by any previous notice which the vessel may have obtained, otherwise than by her being warned off. This is a technical term which is well understood. It is not satisfied by notice received in any other manner. The effect of this order is, that a vessel cannot be placed in the situation of one having a notice of the blockade until she is warned off. It gives her a right to inquire of the blockading squadron, if she shall not previously receive this warning from one capable of giving it, and, consequently, dispenses with her making that inquiry elsewhere. While this order was in force, a neutral vessel might lawfully sail for a blockaded port, knowing it to be blockaded, and being found sailing towards such port, would not constitute an attempt to break the blockade, until she should be warned off.

There is, then, no error in the opinions to which the second and third exceptions are taken.

The 4th exception is taken to the refusal of the court to give an opinion to the jury, that, under the circumstances stated by the defendants below, the port of Curraçoa was not a neighbouring port within the policy.

The merits of this opinion have been essentially discussed in the view taken of the second and third exceptions, and need not be repeated. The port of Curraçoa is considered as a port within the policy, and, consequently, the circuit court ought not to have given the opinion prayed for by the plaintiffs in error.

*50 The 5th exception presents the extraordinary case of an exception to an opinion in favour of the party taking it, and, consequently, need not be examined.

The 6th exception presents a case not essentially varying from the second and third, and will therefore be passed over without other observation than that it is decided in the opinion on those exceptions.

The 7th exception is to a different point. The counsel for the defendants below prayed the court to instruct the jury, "that if they believed the said Travers sailed from Laguira on a voyage to St. Thomas's, or Porto Rico, but with an intention to proceed a small distance out of the way to see if Amsterdam was blockaded, and in case it was not blockaded, then to enter that port, and did so proceed to the port of Amsterdam, and was captured as aforesaid, then the defendants are not answerable."

This opinion the court refused to give, and proceeded to repeat the instruction to which the second and third exceptions were taken.

If St. Thomas's, or Porto Rico, were not neighbouring ports within the policy, as is most probably the fact, then the voyage from Laguira to either of those places was not insured. If they were neighbouring ports, so that a voyage to either of them was within the policy, then going out of the way to see whether Amsterdam was blockaded was a deviation, and, of consequence, the underwriters are equally discharged.

The only doubt ever felt on this point, was, whether any testimony had been offered to the jury to establish this fact, which would authorize counsel to request the opinion of the court respecting the law. On examining the record, it appears that such testimony was offered. It is stated that the defendants below offered in evidence, that the captain, on finding he could not be permitted to dispose of his cargo at Laguira, but on terms which amounted to a total sacrifice of it, "determined to proceed to Porto *51 Rico, and, as Curraçoa was very little out of the course, to ascertain whether the blockade still continued."

This evidence might be disbelieved by the jury, but the defendants were certainly entitled to the opinion of the court declaring its legal operation if believed.

It is the opinion of the court, that, in refusing to give the opinion prayed in the seventh exception, the circuit court erred, for which their judgment is reversed, and the cause remanded for a new trial.