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7 Mass. 349

Lee v. Gray

Massachusetts Supreme Judicial Court

Decided March 15, 1811

Massachusetts Supreme Judicial Court · decided 1811-03-15

<p>Case upon a policy of insurance upon property on board the ship Meridian, Robert Lord master, from Boston to Rotterdam, or Amsterdam. The policy was dated October 31st, 1807, and was opened for 40,000 dollars, of which the defendant subscribed 5,000 dollars.</p> <p>The plaintiffs declare for a total loss, which they allege as follows: The said ship, with the said property of the plaintiffs laden on board, proceeded on the voyage mentioned in the policy on the first of November, 1807 ; and afterwards, viz. on the 3d day of December following, being at sea, and proceeding on the voyage aforesaid, was arrested and restrained by certain persons, being subjects and servants of the king of the united kingdom of Great Britain and Ireland, and acting under the authority of the said king, then being on board the armed ship called the Active, of which one John Lusk then was the commander, and was by the said persons then forbid, prevented, and restrained, from going to her said ports of destination ; and the said ship was thereupon obliged to proceed, and did proceed, to the port of Plymouth, in the said united kingdom ; whereby the said voyage, on which the said vessel was bound as aforesaid, was entirely interrupted, destroyed, and lost; and the said property of the plaintiffs became and was entirely lost to them.”</p> <p>The cause came before the Court on a case stated by the parties, in which it was agreed, that while the ship was pursuing her voyage, the master had notice from a British privateer of the British orders in council of the 11th of November, 1807, by which the port of Rotterdam was placed under the same restrictions respecting trade, as if actually blockaded; and all neutral vessels bound thither were made subject to capture as prize, unless cleared out from * Great Britain, Gibraltar, or Malta; that there- [ * 350 ] upon the master could not have proceeded to his destined port without great danger of being captured, and he therefore proceeded to Plymouth, in England, to procure further intelligence and advice how to act, and while lying in that port the ship was greatly damaged by a violent storm, which damage was not repaired until the 4th of February following; that while in Plymouth the master was informed of the French decree of December 17th, 1807, by which all vessels which had been boarded by a British ship, or which had submitted to make a voyage to Great Britain, or which had cleared out from any port therein, should be considered as good prize ; that the master, having knowledge of the operation of this decree in Holland, determined, on the 29th of February, 1808, to proceed with the ship to London, but was prevented by head winds from sailing until the 1st of April following; that on her arrival at London, on the 18th of April, the cargo was landed for the benefit of all concerned; that the ship could not have been cleared out from Plymouth for Rotterdam with cotton on board, of which about a tenth part of her cargo consisted, but the same must have been unladen before any such clearance could have been obtained; that as soon as the plaintiffs had notice that the ship had began to unlade in London, they made an offer to the defendant to abandon, which was refused.</p> <p>The cause was argued at the last March term, in this county, by Prescott and Jadcson for the plaintiffs, and Dexter and Otis for the defendant.</p>

Decided 1811-03-15

Parsons, C. J.

¶1(after briefly stating the facts agreed.) The question is, whether the plaintiffs are entitled to recover for. any loss within the policy, which insures against all the usual risks.

¶2As no damage is stated as having happened to the goods insured, the only ground of claim is for a total loss, arising from the loss of *295the voyage insured. It must be admitted that the voyage has been wholly lost; but unless this loss *is from [ * 352 j some peril insured against, the plaintiffs must fail, unless some exception be made with respect to the cotton.

¶3When the master had notice of the British orders, and unde stood that he could not afterwards proceed to his destined port, he departed from the course of his voyage, and arrived at Plymouth. As this was done for a good cause, and for the purpose of procuring intelligence and advice, and not with the intention of discontinuing the voyage, his proceeding is no deviation. It also appears that, after he arrived at Plymouth, finding new obstacles to the prosecution of his original voyage, he determined to proceed to London, and there discharge his cargo; but was prevented by head winds from sailing until the 1st of April, 1807. As an intention to deviate, where a ship has commenced the voyage assured, is no deviation, this determination of the master is no deviation; which must be considered as commencing on her sailing from Plymouth for London, for then the original voyage was abandoned. Therefore, whatever loss, from any of the perils insured against, happened before the 1st of April, is a charge on the underwriters.

¶4It appears that the ship met with considerable sea damage while in the harbor of Plymouth, for which the underwriters upon the ship are answerable.

¶5But the policy before us is only on the merchandise. Now, if the voyage was lost by a peril within the policy, that peril must be either capture, or the arrest and detention of a prince. But the departure from the direct course of the voyage, and the final abandonment of it, were not from capture, but from the fear of capture, which is not insured against. And there appears to be no arrest and detention of any prince.

¶6For when the ship was in Plymouth, she might have cleared even for her port of destination; but the danger of proceeding thither was too imminent, in consequence of the French decrees, to justify that measure; or the ship might have returned home with her cargo. Indeed, no fact is stated which can be correctly construed as an arrest. It is true *tbat the cotton was [ * 353 J refused to be cleared at Plymouth for Rotterdam; but this was no arrest. For the refusing in a foreign country to clear out a vessel for any particular port, or ports, cannot be deemed an arrest within the policy, while the vessel remains in the master’s possession, with liberty to proceed to any but the prohibited ports.

¶7In this case, it is manifest that, if the cotton might have been cleared out, the master would not have availed himself of it to pro*296ceed to his destined port. We cannot, therefore, find any peril insured against, by which the voyage has been lost, (a)

¶8 Plaintiffs nonsuit.

¶9 [Richardson & Al. vs. Maine Insurance Company, 6 Mass. Rep. 102.— Cook vs. Essex Insurance Company, 6 Mass. Rep. 122. — Wheatland vs. Gray, 6 Mass. Rep. 124. -Amory vs. Jones, 6 Mass. Rep. 318. — Shepley vs. Tappan, 9 Mass. Rep. 20. — Breed vs. Eaton, 10 Mass. Rep. 21.— Brewer vs. Union Insurance Company, 12 Mass. Rep 170.— Tucker vs. United M. F. Insurance Company, 12 Mass. Rep. 288.—Ed .]
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