THE MARYLAND INSURANCE COMPANY. v. WOOD

THE MARYLAND INSURANCE COMPANY. v. WOOD. • - Mr? Merrv to the secretary isd^S’April? 1804, extend: fandof Curra" goa, the of-der óf the lords cóttinus'Rduers ortlieadmipuU ty of the sth of re"pSÍ*te blockade0 of tíwdSe & a °I,e‘ . ERROR to the Circuit Court for ■ the district of Maryland, in an action, of covenant’on a policy upon the schooner William and Mary “ at and from Balti- “ moi‘e to kaguira, with liberty of one other neighbor- “ ing port, and at and from them or either of them back “^0 Baltimore” — “ Warranted by .the assured to be an ^American bottom, proof of which to be required in « the United States only.” The former judgment of the Circuit Court, in this case’ having been reversed (see ante, vol. 6, p. 29,) and the cause remanded for a new trial, the verdict and judgmen:fc Wftt’e aSain in favor of the original Plaintiff. The Defendants, took only one bill of exceptions which stated the execution of the policy, the sailing of the vessel with proper documents as ííñ American bottom from Baltimore on the 8th of March, 1805, upon the voyage insured; her arrival, off Laguira .on the 24th of the. same month, where’ she. remained three days laying off and.on, vainly endeavoring to obtain permission to enter the port, and orf the 31st sailed towards .the port of Amsterdam, in the island of Curracoa, by the direct and accustomed route, with a view and intention of ascertaining by enquiry of British .ships of war, or other vessels, whether the port of Amsterdam was then in a state of blockade, and to enter it if it should be blockaded, but if jt should be blockaded, not to attempt to enter it, hut to proceed to St.-Thomas’s or Porto Rico. That Amsterdam was a neighboring port to Laguira, being distant about 147 miles. ■ That when she approached Amsterdam, being distant about 30 Añiles, theinastcr discovered a Brilish vessel at the distance of 21 miles, whereupon he altered the course of the schooner, and stood diroctly towards the British vessel for the purpose of inquiring whether Amsterdam was still in a state of blockade; that while so standing for the British vessel, which was a frigate then actually supporting the blockade of the port of Amsterdam, the schooner was captured by the frigate and sent into Jamaica, and there condemned for breach of the blockade of Hie port of Amsterdam, whereby she was wholly lost to the Plaintiff. That on the IGth of May, 1805, the Plaintiff having received intelligence of the capture, abandoned the vessel in due time to the unslet writers, who refused to accept the abandonment. That on the 27th of October, 1803, the .government of the United States made to the British government, through its charge d’affairs in the .United States, a representation on the subject of a blockade, then recently notified, of the Islands of Martinique, and Gaudalopej which representation is set forth at large in the bill of exceptions, being a letter from -Mr, Madison, then Secretary of state, to Mr. Thornton, the British charge d’affairs, dated the. 27th of October, 1803. That on the 5th of January, 1804, the British government, in consequence of that representation, issued an order to its commanding naval officer in the West Indies and to its Courts of vice admiralty tlierej relative to the blockade of Martinique and Gaudalope,* which order is as follows : “Admiralty office, Sfn January, i804. SIR, Having communicated to the lords of the admiralty, lord Hawkesbury’s, letter of the 23d uit. enclosing the copy of r. despatch* which his lordship had received from Mr. Thornton, Ins majesty’s charge d’affairs in AinerU ca, on the subject of the blockade of the Islands of Martinique and Gaudalope, together with the report of the general thereupon, I have their lordships* commands to acquaint you for his lordships’ information that they have sent orders to commodore Hpod not to consider any blockade of those Islands as- existing unless in respect of 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; and that they have also .sent the necessary directions on tfie subject to the judges of. the vice admiralty Courts in the West Indies and America. I am, &c- EVAN NEPEAN. George Hammond, Esq.” That on the 12th of April. 1804, the British government, by its minister plenipotentiary in the United State's, Communicated the aforesaid order to the government of the United States who caused it to be immediately pubr lished in the public newspapers. . That on the same 12th, of April, 1804, the-said. British minister plenipotentiary officially made known to the government of the United States, that the siege of the island of Curra^oa had been converted-into a blockade, which communication was as follows : ‘‘ Mr. Merry to Mr. MadiSon. Washington, April 12th, 1804. SIR, I have the honor to acquaint you that I have just received a letter from rear admiral, sir John Duck-worth, commander in chief of his majesty’s squadron at Jamaica, dated the second of last mont'>, in which he desires me to communicate to the government of the United. States, that he has found it expedient for his majesty’s service to convert the siege, which he lately attempted of Cprracoa into a blockade of that Island. I cannot doubt, sir, that this blockade will be conducted conformably to the instructions which, (as I have the h .nor to acq aint you in another letter of this date,) have hi en recently sent on this subject, to the commander in chief of his majesty’s forces, and to the judges of . the vice admiralty Courts in the West Indies, shodld the smallness of the Island of Curraqoa still render necessary any distinction of the investment being confined to particular ports. I have the honor to be, &c. ANT. MERRY.” That Travers, the master of the schooner William and Mary, heard a report at Baltimore, before he sailed, that Amsterdam was in a state of blockade; and that he was informed, before he sailed from Baltimore, by the master of an American vessel, that about four months before the time of giving that information, he arrived with his vessel near the .port oí Amsterdam, and there met with a squadron of British ships of war then blockading that port,, and was warned off by the commander of the squadron, with his register endorsed in the usual manner. That Travers in the course of his voyage fell in with a strong French squadron in lat. 15, long. 63, which ivas sailing westward. That the port of AmsterditM is in lat. 11 deg. 55 min.. — long. 68. That’while laying off Laguira to endeavor to obtain permission to enter the port, or to anchor Ins vessel, lie was informed by a merchant at Laguira, to whom he had been introduced by. a letter, and through whom lie made application for permission as aforesaid, that the port of Amsterdam was then free from blockade; and was advised by the said merchant to proceed thither with his vessel — that the port of Laguira and all the ports on the Spanish main, were then shut against foreigners, whereby he Was prevented from going on shore and from making enquiries otherwise than by writing from his vessel to some person on shore. Thatthe Island of Buenos Ayres was then a dependency <aF Curraeoa, distant from it about twenty milesjeast, and is a small island having no port, except a road-stead about the middle of its length on the east side, where there was a small battery and military post. That the cruizing ground of vessels blockading Curracoa, between chat, island and Buenqs Ayres, which latter w&s, included in. the blockade, as were also all the other ports of the Island of Curracoa. That Travers did not attempt to enter the port Df Amsterdam, nor sail towards it with an intention of entering it if blockaded, butmerelyfor the purpose of ascertaining, by any lawful and proper means in hjs power, whether it was still in a state, of blockade, of entering it if it was not, and of proceeding elsewhere if it was. That when lie sailed from Laguira as aforesaid he had, from the facts and circumstances above mentioned, reasonable ground of belief that the blockade had ceased, ,and had no means of obtaining any further information on the subject at any neighboring port or place. ■Whereupon the Plaintiff prayed the Court to instruct the, jury that if they believed the matters so given in evidence by him, then his rigid of recovery in this action is not affected by the conduct of Travers in proceeding as aforesaid from Laguira towards Amsterdam for the purposes, aforesaid, which instruction tile Court gave, and also the further direction, that if they should h el hare that Travers intended, while at Laguira, to violate the blockade of Amsterdam, and attempted it by sailing tow ards that port, and within the limits of the cruizing ground; in such case his conduct was unlawful ; and the Defendants were thereby discharged from any responsibility upon the policy. To this instruction the Defendants excepted and brought their writ of error. Martín, for Plaintiffs in error. ■When this case-was-here before it was erroneously supposed that the order of the 5th of January) 1804, applied to the Island of Curracoa', as well as to those of Caudalopc- and Martinique. Jtwas not until the 12th of April following, that the blockade of Curracoa was' notified to our government l»y Mr. Merry, who gives his opinion that the former order would be extended to this blockade. But it is merely his opinion; he had no authority to bind his'government upon that subject; and his opinion could not justify the master of this vessel in going to the blockading squadron for If he acted upon the information of the minister he acted at his peril. -5, Rob. 74, 234 — 1, Rob. 144. The^ Neptunus — 2, Rob. 92.He ought to have called at Buenos Jhjres for information. — Park, 408, 9, Marshall, 321. Livingston, J. Thought this case could not be distinguished from the one which was here before. It appears to.be only. an application to this Court to re-< verse its own decision.. Story, J. Thought, the letter of Mr, Merry was conclusive upon the~subject. Johnson, J. It does not appear to be so clear a case as the other. Marshak, Ch. J. had formed no opinion upon this -case. It seemed to him to be different from the other. Harter, for the Defendant in error, requested that the opinion of the Court might be given in writing. Marshak, Ch. J. I understand the opinion of the. Court to be, that the letter of Mr., Merry puts the case ■ on the same ground as if-the blockade had been of Martinique or Gaudalope. Harter. That is, that it extended to this case the" benefit of the order of the 5th of January, 1804. Marshak, Ch. J. I so understand it. [MAJORITY — Livingston, J.] Livingston, J. Afterwards delivered the opinion of the Court in writing, as follows: It is the opinion of the.Court, that the communication of the British minister to the American government on the tzth of April, 1804, relative to the blockade of Cur-' raeoa, furnished a sufficient excuse for the assured's pro-. ceeding towards that Island for the purpose of enquiring as to its continuance, and that his doing so was no violation of his neutrality. The Court does not mean to be understood as giying any opinion , on the effect of such conduct if no such communication had been made. The judgment of the Circuit Court is affirmed with costs.