Schmidt v. Union Ins. Co., 1 Johns. 249; Vigers v. Ocean Ins. Co., 12 La. 367; Symonds v. Union Ins. Co., 4 Dall. 417, 1 Wash. C. C. 382; Thompson v. Read, 12 S. & R. 440; Savage v. Pleasants, 5 Binn. .403. Mr. Justice Brackenridge, in this case, attached great importance to the fact that the warning not to proceed had been indorsed on the register. He said: "It alters the character of the vessel, and makes it sub modo a different property. The British themselves speak of such marking or indorsing on sea-letter and register, as giving them a qualified property in the vessel and cargo, and they act upon it accordingly, and seize and capture outright, if an attempt is made to go to another than a British port as ordered to proceed. The hailing and warning a vessel at sea are not the same with entering on board and indorsing papers. The sound of the warning carries no impression with it, it is a monition to the warned; but who shall know that a vessel has been warned? But the writing on the sealetter and register carries with it its own evidence, and will be seen by those who visit it afterwards. It is a charm or spell from which the vessel cannot escape; she is liable to be taken, and is uniformly taken, if she attempts to proceed or to return."

In King v. Del. Ins. Co., 2 Wash. C. C. 300, a blockade of the port of destination was considered as a restraint; but it was held, that where a vessel was stopped in the first part of her voyage, and warned not to proceed by an indorsement on her papers, and verbally informed that her port of destination

was blockaded, and she returned home and abandoned the voyage, the underwriters on freight were not liable, the port of destination not being actually blockaded. Washington, J., said: "If the underwriter is to answer for a technical total loss, where none has really been sustained, it is the duty of the insured to do all he may to prevent such loss, and he should proceed upon his voyage until the danger of an actual loss is rendered manifest." This case was affirmed on appeal, 6 Cranch, 71, on the ground, that the voyage was not prohibited by the British orders in council, and the port of destination was not actually blockaded.

There is a dictum of Mr. Justice Story on this subject, which is worthy of attention. He says: "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 it 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 warrantry of neutrality, the legal effect of such warrantry 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 do not think it necessary to express any opinion." M'Call v. Mar. Ins. Co., 8 Cranch, 59. See also Emerigon, c. 12, § 31 (Meredith's ed.), 425.

1 Simpson v. Charleston F. & M. Ins. Co., Dudley, S. C. 239.

Atkinson v. Ritchie, 10 East, 530, 534, per Lord Ellenborough, C. J.

majority of the court, consisting of two judges, held that London was a neighboring port within the meaning of the exception, and that, as the captain was justified in going there under the policy, the voyage was to be considered as there completed, and that the underwrites were therefore not liable. Mr. Justice Brackenridge was of the opinion, that the indorsing of the papers was a capture sub modo, and that a port of England was not a " neighboring port," within the meaning of the exception, on account of the nature of the cargo. The learned judge states in his decision that the vessel was ordered to proceed to a British port, when first stopped on the high seas. This does not appear by the statement of facts in the case, but is important, as showing that the voyage to Cowes was not a deviation, but imposed by necessity. The learned judge was, however, of the opinion, that the delay at Cowes amounted to a deviation which discharged the underwriters, and so agreed with his brethren in the result. See also Snowden v. Phoenix Ins. Co., 3 Binn. 457, 473.

In Radcliff v. United Ins. Co., 7 Johns. 38, 9 Johns. 277, the policy contained this clause, namely: "The insurers take no risk of a blockaded port, but, if turned away, the assured to be at liberty to proceed to a port not blockaded." It was held, that if the port was actually blockaded, the underwriters were not liable, either for a legal or an illegal seizure occasioned by an attempt to enter it. In Tenet v. Phoenix Ins. Co., 7 Johns. 363, insurance was effected on a vessel from New York to Bordeaux, warranted not to abandon, if detained or captured, until after the ex

piration of a certain time," nor if refused admittance or turned away, but may proceed to another near open port.” When the vessel was about twenty leagues from the island of Oleren, she fell in with a British squadron, and was informed that the whole continent was blockaded, and a warning not to proceed was indorsed on the register. The captain was ordered to proceed to England or Malta or return home. He then sailed for England, but, having met with a storm, put into L'Orient in distress, where the vessel was seized. Held, that whether Bordeaux was blockaded or not made no difference, as the facts showed that the vessel was prevented from entering her port of destination by the presence of the squadron, that the ports of France were to be considered as "open ports," and that the term "near open port" was to be considered as used in a geographical sense, and not as depending on a facility of reaching a distant port, if the wind should happen to be favorable, and that a port in England was not a near port.

1 In such a case, the qualification "unlawful" applies to "restraints and detainments," as well as to arrests, and the underwriters are not liable in case the voyage is broken up by the port of destination being lawfully blockaded. M'Call v. Marine Ins. Co., 8 Cranch, 59; Thompson v. Read, 12 S. & R. 440. But if the restraint is not authorized by the law of nations, it is unlawful, as where a neutral vessel with a cargo laden before the commencement of the blockade is prevented from leaving port. Olivera v. Union Ins. Co., 3 Wheat. 183.

insufficient, she took off the crew of the bark, left her at anchor off Nantucket Island, without any person on board, and went to Provincetown for a supply of coal; and when, a number of days afterwards, she was able to return to the place where she had left the Island City at anchor, she was not there. The steamer Westernport had discovered her the day before the return of the Forbes, took her in tow, and brought her into Hyannis, where she was followed by the Forbes and brought to Boston. The owners of the schooner Kensington, of the steamer R. B. Forbes, and of the steamer Westernport all filed libels against the Island City for salvage, and the three cases were heard together. On the above facts it was held, that parties who find a vessel derelict at sea, and carry her into port, are entitled to the usual salvage, without regard to meritorious but unsuccessful efforts previously made to rescue her by other parties. Secondly, that to constitute a case of derelict, it is not sufficient that the crew have left temporarily to procure assistance; the abandonment must be final, without hope of recovery, or intention of returning. Also, that if a ship disabled at sea is partially aided by one vessel, further assisted by another, then left with nobody on board, at anchor, but still in peril, while better means of rescue are

sought for, and in that condition she is discovered by a third vessel which brings her into a safe port, then this is a case in which all three of the vessels are entitled to share in the salvage awarded.

1 The rule is clearly laid down in the case of The Steamboat Edward Howard, 1 Newb. Adm. 522. In this case there was a non-joinder of salvors in the libel, and the court, McCaleb, J., presiding, held that although it was with reluctance that it required the payment of costs by salvors, yet, as the case now stood before the court, no other judgment could properly be given; and that the court could not be responsible for irregularities committed in the institution of suits of this nature, which, like suits in equity, should embrace all as parties who are interested in the final decree. In the case of The Ship Henry Ewbank, 1 Sumner, 400, Story, J., in delivering the opinion of the court, forcibly lays it down, that in all cases where unnecessary libels or claims are filed, it is at the peril of paying costs. Also see the case of The Schooner Boston, 1 Sumner, 328, in reference to the above.

2 This was so held in the case of The Ship Henry Ewbank, 1 Sumner, 400, where the British bark Hope and the brig Pedang of Boston, having adverse interests, filed separate libels.