U.S. Supreme Court McCall v. Marine Insurance Company, 12 U.S. 8 Cranch 59 59 (1814)
McCall v. Marine Insurance Company
12 U.S. (8 Cranch) 59
ERROR TO THE CIRCUIT COURT
FOR THE DISTRICT OF MARYLAND
If a policy insures against "unlawful arrests, restraints and detainments of all kings, princes," &c.;, the qualification "unlawful," extends in its operation as well to "restraints and detainments" as to "arrests," and in such case a detainment by a force lawfully blockading a port is not a peril insured against by a policy containing a warranty of neutrality.
This was an action on a policy underwritten by the defendants upon all kinds of lawful goods and merchandise on board the ship Cordelia on a voyage from the Island of Teneriffe to Surabaya and at and from
thence to Philadelphia, warranted American property. The ship sailed on the voyage on 5 April, 1811, having on board a cargo of lawful goods, the property of the plaintiffs, of the value of $15,000, and pursued the voyage until 18 July following, when, being in a place called Madura Bay, within about twelve hours sail of Surabaya, she was boarded by an officer of a British frigate, forming one of a squadron then actually blockading the port of Surabaya and all the other ports of the islands of Java and Madura. The frigate took possession of the Cordelia and conducted her to the admiral commanding the blockading squadron, who on the next day dismissed the Cordeila after endorsing her papers and warning the master not to enter the port of Surabaya or any other port in the Island of Java or of the Island of Madura on pain of capture. On the same day, the Cordelia made another attempt to enter Surabaya, but was chased by the same British frigate, and taken possession of a second time. After being detained two days, the Cordelia was again released and the master was ordered to depart instantly from the coast of Java and the neighborhood of Surabaya upon penalty of capture and impressment of his men. The master, finding it impracticable to pursue his voyage further, resolved to return to Philadelphia, where he arrived on 19 November, 1811. At the time of sailing on the voyage from Teneriffe, the blockade of Java was unknown to the parties. The plaintiffs abandoned to the defendants immediately after the arrival of the Cordelia at Philadelphia, which gave them the first knowledge of the occurrences. The defendants refused to accept the abandonment.
The policy contained the usual risks, except that the word "unlawful" was printed before "arrests," so that the clause stood, "unlawful arrests, restraints, and detainments of all kings, princes, or people of what nation, condition, or quality soever." The declaration alleges that the ship and cargo were, during the voyage,
"by persons acting under the authority of the British government and by a certain ship of war belonging to that government unlawfully seized, restrained, and detained,"
and thereby become totally lost.
The circuit court directed the jury, that on this
state of facts, the plaintiffs were not in law entitled to recover, to which the plaintiffs excepted and brought this writ of error.
STORY, J. after stating the facts of the case, delivered the opinion of the Court as follows:
The court below, at the trial, held that the plaintiff, under the circumstances, was not entitled to abandon as for a total loss, and the correctness of that opinion remains for the decision of this Court.
Whether the turning away of a ship from the port of destination in consequence of a blockade be in any case a good cause for abandonment so as to entitle the assured to recover from the underwriter as for a total loss by the breaking up of the voyage, and if so whether the doctrine could apply to a policy with a warranty of neutrality, the legal effect of such warranty being to compel the party to abandon the voyage, if it cannot be pursued consistent with neutrality, are questions of great importance upon which the Court does not think it necessary to express any opinion, because this cause may well be decided upon an independent ground.
The loss of the voyage in the case at bar was occasioned (if at all) by the arrest and restraint of the British blockading squadron. The right to blockade an enemy's port with a competent force is a right secured to every belligerent by the law of nations. No neutral can, after knowledge of such blockade, lawfully enter or attempt to enter the blockaded port. It would be a violation of neutral character which, according to established usages, would subject the property engaged therein to the penalty of confiscation. In such a case, therefore, the arrest and restraint of neutral ships attempting to enter the port is a lawful arrest and restraint by the blockading squadron. It would follow, therefore, from this consideration that the arrest and restraint on account of which a recovery is now sought is not a risk within the policy against which the under writer has engaged to indemnify the plaintiff.
But it is contended by the counsel for the plaintiff, in order to escape from this conclusion, that the word "unlawful" in the policy is confined in its operation to arrests, and does not extend to "restraints and detainments." To this construction the Court cannot assent. The grammatical order of the words and the coherence of the sentence require a different construction. It is not against every "unlawful arrest" that the underwriter undertakes to indemnify, but against "unlawful arrests, &c.;, of all kings, princes, and people," which have always been held to mean the arrests of kings, princes, or people in their sovereign and national capacity, and not as individuals. The necessary connection of the sentence therefore requires that "arrests, restraints and detainments" should be coupled together, and if so, the qualification of unlawful must be annexed to them all. The intent of the parties also urges to the same conclusion, for every arrest is a restraint and detainment, and it would be strange if the party could, under the allegation of a restraint, recover a loss from which the underwriter is expressly exempted by an unambiguous exception in the policy.
On the whole, the Court is of opinion that the judgment of the circuit court must be