alleges, that the vessel, with the cargo, pro- | proach the shore, but proceeded along the coast ceeded on the voyage, and asserts as a loss northward to a place called Pass Cavellos, within the contract, that while on the voyage, about 270 miles from St. Ander, where inforthe schooner, with her cargo, was restrained mation was received that St. Ander, and the and detained by certain persons acting under coast, were completely in possession of the the authority of the King of Spain, whereby Royalists. The objects of the voyage being in the goods and merchandises became wholly lost. this manner defeated, the schooner returned to The material facts, as they appeared on the New York with her original cargo on board, trial, are these. The Ellen Tooker, having on and arrived there on the 22d of July, 1817. board property of the plaintiff of a greater The plaintiffs had no intelligence of the breakvalue than the sum insured, sailed from New ing up of the voyage until the return of the York, on the voyage insured, on the 31st of schooner to New York, and then abandoned to January, 1817. On the 25th of February she the underwriters in due time, assigning as a arrived at the Balize, where the master left the cause, that the Ellen Tooker was "compelled, vessel and went to New Orleans, and having by an armed force, to leave St. Ander in the obtained information, that Nantia and Tala- Gulf of Mexico, where she had arrived and was cuta were in possession of the Independents, to about to deliver her cargo, and was prevented which places American vessels might proceed, thereafter by a like force from re-entering that on his return to the Balize, the schooner pro- place." This abandonment was not accepted. ceeded for Nantla, and arrived off that place It was also in evidence, that the cargo of the on the 23d of March, and found it in posses- Ellen Tooker was shipped, and intended to be sion of the Royalists. The schooner then pro- sold to the Independent party of Mexico, ceeded to Talacuta, and having arrived off that which was waging war with the King of place, a boat was sent ashore for information, Spain, and that the same was prohibited from the crew of which were made prisoners. Con- importation into Mexico by the laws of Spain, cluding from this occurrence, that the place and would have been seized and confiscated if was in possession of the Royalists, the schooner it had been carried into any of the ports in put to sea, and on the 5th of April fell in with *possession of the Royalists, but would [*181 179*] a fleet of six sail under the command have been freely admitted into any ports in of General Mina, with troops on board, bound possession of the Independent party. for the bar of St. Ander. The master having had communication with General Mina, and received encouragement from him that he would purchase the cargo, the schooner kept company with the fleet, and arrived off the bar of St. Ander on the 28th of April, where the schooner came to anchor in the open sea, the entrance being too shoal to permit her to cross the bar. On the 11th of May, the master left the schooner and went up the river to Porto La Marina (where General Mina had his headquarters), for the purpose of selling the cargo, which he accordingly did, deliverable to General Mina, as he should want it, from time to time, at St. Ander, the whole delivery to be completed by the first of July. On the 18th of May, while the master was on shore, a Spanish frigate and two armed schooners of the Royal ists hove in sight, and the schooner was immediately gotten under way for the purpose of escaping them, and after four hours' chase effected her escape. The schooner made several attempts to return, but was prevented by Spanish ships hovering about the place; on the 26th of May, finding the coast clear, she returned to St. Ander, which was still in possession of the Independents, and the master was taken on board. The foremast of the schooner being found to be loose in the step and injured, and the crew being short of water, the schooner proceeded to the mouth of the Rio Grande for water and to examine the foremast; and there the heel of the foremast being found to be gone, the schooner proceeded to the Balize 180*1 *for repairs, and arrived there on the sixth of June. The foremast was there repaired, and the schooner sailed again for St. Ander for the purpose of delivering the cargo to General Mina according to contract, and on her arrival there, on the 22d of June, the place was found to be in possession of the Royalists, who occupied it with a military force. In consequence of this, the schooner did not ap-1

Upon these facts a verdict was given, and judgment rendered for the defendants, and the cause was brought to this court by writ of error.

Mr. Winder and Mr. Raymond, for the plaintiffs, stated, that this was an action of covenant on a policy of insurance, and that the breach assigned in the declaration was a loss occasioned by the restraint and detention of certain persons acting under the authority of the King of Spain. The voyage was broken up and destroyed by the constraint imposed upon the vessel to leave St. Ander, in order to avoid capture by the Spanish armed ships: The insurers were apprised of the nature of the risk. The port of St. Ander became the destination, and the vessel was prevented from entering it, by the risks insured against. This is a restraint within the meaning of the policy. Every restraint or control exerted by a people, prince or state, over the subject-matter insured, so as to defeat the voyage, is a loss within the policy. Such are the restraints of a blockade; an embargo, limited in point of time, or indefinite; and the municipal law of a *country which [*182 subjects the vessel and cargo to confiscation, if it is morally certain that it applies to the vessel, and would be enforced. So, if the port of destination be shut, by being in possession of an enemy, or by interdiction of trade, it is a just cause for breaking up the voyage. There is a great apparent discrepancy in the English authorities as to restraint of princes." But this court has settled the import and meaning

Craig v. Unit. Ins. Co., 6 Johns. Rep. 226; Yeaton 1.-Schmidt v. Unit. Ins. Co., 1 Johns. Rep. 249; v. Fry, 6 Cranch, 335; Olivera v. Union Ins. Co., 3 Wheat. Rep. 183.

2.-M'Bride v. Mar. Ins. Co., 5 Johns. Rep. 299; Walden v. Phoenix Ins. Co., 5 Johns. Rep. 310; Rhinelander v. Ins. Co. of Pennsylv., 4 Cranch, 29. Ogden v. Firemen Ins. Co., 10 Johns. Rep. 177; 3. Craig v. Unit. Ins. Co., 6 Johns. Rep. 226. 4.-1 Johns. Rep. 268, per Kent, Ch. J., who cites Emerig. Des. Assur. 242.

1

of the term in the case of Olivera v. The Union Upon these facts, the Circuit Court directed Insurance Company. But it may be said that the jury that the plaintiffs were not entitled to there is no proof that the blockade existed at recover; and the propriety of this direction is the time of the abandonment. To which it is the question before us upon this writ of error. answered, that this principle does not apply to Two points have been argued at the bar: 1. a technical total loss produced by blockade. That there was no actual restraint of persons In the case of an embargo or capture, the voy-acting under the authority of Spain, whereby age is not necessarily broken up; it is merely the voyage was defeated. 2. That if a technisuspended; but in that of a blockade, it is en- cal total loss took place by the loss of the voytirely defeated, and the object of the voyage age, it was a loss occasioned by engaging in an cannot be accomplished. Though the restraint illicit and prohibited trade, for which, by the now under consideration is not that of a block- memorandum in the policy, the underwriters ade, yet it is equivalent; since the master was are not liable. prevented by the restraint from entering the port which he had selected, within the limits prescribed by the policy. A reasonable fear of loss by capture, seizure, &c., is a justifiable cause of deviation, and consequently protects against all losses arising from deviation. In 183*] the case of Schmidt v. United Insurance Company, it is said to be "sufficient to justify the master's conduct in cases of this kind, if he have good reason to apprehend that a capture will be the consequence of going

on."

Mr. Pinkney and Mr. D. B. Ogden, contra, argued, that in order to establish a technical total loss in this case, the insured must show a restraint within the policy and declaration; and that it actually produced the breaking up of the voyage. The onus probandi is on the plaintiffs, and they must trace the supposed consequences of the peril home to its efficient cause. The insurance was on munitions, contraband of war; but the memorandum that the underwriters were not to be liable for a loss by illicit trade, secured them against any loss by mere municipal regulations. They have nothing to do with an internal conflict, by which the port may change masters. The declaration alleges a loss by restraint of princes. But this restraint must be the direct and immediate agent in breaking up the voyage; as in an embargo, or blockade, which being removed, the peril instantly ceases. Here the restraint was not only not the efficient cause of the loss, but it arose out of illicit traffic. This part of the coast of Mexico did not cease to be subject to the colonial code of Spain, by the temporary possession of the insurgents. The vessel attempted 184*] to escape, not merely from the *ordinary peril of capture in war, but from that combined with the local prohibition. It was a loss from a fear, which, had it been realized, would not have made the underwriters liable. All the quia timet cases, are cases where they would be so liable. The attempt is to make the underwriters find a lawful market; whereas the insured stipulates to take that upon himself by his warranty. Even if the market were lawful for a time, its ceasing to be so is not at the risk of the underwriters. So that the insured have broken up the voyage for a technical total loss, arising from perils not insured against.

Mr. Justice STORY delivered the opinion of the court, and, after stating the facts, proceeded as follows:

1-3 Wheat. Rep. 183.

2.-Per Livingston, J., 1 Johns. Rep. 262, and Targa. Ponderaz, c. 59, 291; Casaregis, Disc. 83, No. 84, cited by him. See also 1 Emerig. des Assur. 509.

The declaration and the abandonment, both tie up the case to a total loss of the voyage, by the restraint of Spanish authorities. If this case be not made out in proof, there is an end of the controversy.

*In cases of this sort, where a techni- [*185 cal total loss is asserted as a ground of recovery, it is not sufficient that the voyage has been entirely frustrated and lost; but the loss must be occasioned by some peril actually insured against. The peril must act directly, and not circuitously, upon the subject of the insurance. It must be an immediate peril, and the loss the proper consequence of it; and it is not sufficient that the voyage be abandoned, for fear of the operation of the peril.

The plaintiffs rely upon the fact of the Ellen Tooker's being chased away from St. Ander, and being prevented for several days from returning to that place by the presence of Spanish armed ships as decisive proof of actual restraint. But the voyage was delayed only, and not broken up by this occurrence, for the vessel afterwards returned in safety to St. Ander. The insurers do not undertake that the voyage shall be performed without delay, or that the perils insured against shall not occur; they undertake only for losses sustained by those perils; and if any peril does act upon the subject, yet if it be removed before any loss takes place, and the voyage be not thereby broken up, but is, or may be resumed, the insured cannot abandon for a total loss. If a vessel be captured during a voyage, and afterwards be recaptured, and performs, or may perform it, there can be no abandonment after the recapture, for a technical total loss. In the present case, the vessel actually did resume her voyage after the restraint ceased; and there is no evidence to show that any object of the voyage was defeated by this temporary *restraint and de- [*186 lay to avoid capture. Then, what was the real cause of the final destruction of the voyage? It was, that St. Ander, which but for a short time was in the possession of the troops of General Mina, was, in transitu, again occupied by the Royalists, and the colonial government resumed its functions. A trade was inhibited with that place, by the ordinary colonial laws of Spain; and the voyage itself, in which the Ellen Tooker was engaged, placed her, and her cargo also, in the character of an enemy. It was clear, therefore, that a proceeding into St. Ander, would have subjected the Ellen Tooker to confiscation for a double cause; for breach of the ordinary laws of trade, and for a violation of neutral duties. The voyage, then, was broken up from fear of loss, by reason of the seizure and confiscation of the property. It was abandoned by the master quia timebat, and not because there

APPEAL from the Circuit Court of South of this transaction. The court has been re

explained, she cannot complain if she be the victim of them. No extraordinary prudence or circumspection on the part of the claimant was necessary to have avoided the unpleasant predicament in which she is placed. If she had brought these goods on board in London, as cargo; if she had paid freight for them as such; if she had desired them to be placed on the manifest of the cargo, which she was most probably apprised was necessary; if, when she entered her other merchandise imported in the same vessel, she had also entered these; if, after making her baggage entry, she had distinguished or informed the inspector which of the trunks contained her baggage, and which were 191*] filled with merchandise, the whole *of the present difficulty would have been avoided. The claimant neglecting to take any one of these precautions, which could not have been the effect of ignorance, as it appears she is occasionally engaged in the importation of goods in the line of her business, leads, irresistibly, to the conclusion, that she intended to land those trunks without the payment of duties, and that this end was to be effected under the disguise of entering them as baggage and wearing apparel. Although a mere intention to evade such payment be no cause of forfeiture, yet when a question arises, whether an act has

been committed which draws after it this consequence, such intention will assist in dispelling some of the doubts in which the act itself might otherwise be involved, and will justify a court in not putting on the conduct of the party, in relation to the act in question, an interpretation as favorable as under other circumstances it would feel disposed to do. Thus, in the case before us, the claimant wishes us to believe, that the seven trunks of wearing apparel, and the band-boxes, which were included in her baggage entry, were all of them actually landed under her permit; and that, therefore, the five trunks which remained on board, and were seized as composing part of her bag. gage entry, were not comprised in it. But is this made out with any reasonable certainty? On the contrary, is there any evidence what ever on which we can come to a satisfactory conclusion, that seven trunks, which was the number entered by her as baggage, were actually landed before the seizure. What the 192*] *claimant herself considered as bandboxes, and actually represented as such to the inspector, she now desires may be converted into trunks. Unless this can be done, which would be to disbelieve the whole evidence in the cause, there is no pretense for saying that all the trunks entered by her as baggage had been landed. The marks on the trunks do not furnish even a presumption in her favor, for on those landed, and on those seized, we find the same inscription, that is. Mrs. Savage's baggage, apparel, and haberdashery." In this uncertainty and confusion, which is the result of her own irregular conduct, and which it was her business, and not that of the court, to remove, she has exposed her case to very unfavorable inferences. One of the trunks landed was empty, or contained only a few books and loose papers, and yet it appears, by a cocket produced before the Circuit Court, that this very trunk, when taken board, was valued in London at 115 pounds sterling. What be

came of the goods which it then contained, is left without explanation. This forms a part of the res gesta, and is a circumstance, if not a strong suspicion, at any rate but little calcu lated to evince the integrity of the transaction.

Without, therefore, entering into a more minute detail of the circumstances in this case, the court is well satisfied, from the whole of the evidence, notwithstanding some little obscurity in which it is involved, that the trunks in question formed a part of the baggage entry of the claimant, and therefore, affirm the sentence of the Circuit Court, with cost.

THE NUEVA ANNA AND LIEBRE.
THE SPANISH CONSUL, Claimant.

This court does not recognize the existence of any lawful court of prize at Galveztown, nor of any Mexican republic or state, with power to authorize captures in war.

APPEAL from the District Court of Louisi

ana.

These were the cases of the cargoes of two Spanish ships, captured and condemned by a pretended court of admiralty at Galveztown, constituted by Commodore Aury, under the alleged anthority of the Mexican republic. The goods were, after this condemnation, brought into the port of New Orleans, and there libeled by the original Spanish owners in the District Court. That court decreed resti

tution to the original owners, and the captors appealed to this court.

This cause was argued by Mr. Hopkinson for the respondents and libelants, no counsel appearing for the appellant and captors. the existence of any court of admiralty sitting The court stated, that it did not recognize at Galveztown, with authority to adjudicate on captures, nor had the government of the United States hitherto acknowledged the existence of any, Mexican republic or state at war with Spain; so that the court could not consider as legal, any acts done under the *flag and [*194 commission of such republic or state. But, as the record, in this case, stated the capture to have been made under the flag of Buenos Ayres, it became necessary to send back the case, in order to ascertain under what authority it was in fact made.

Sentence reversed, and cause remanded for further proceedings.

Court, the former court can make no order respecting the property, whether it has been sold, and the proceeds paid into court, or whether it remains specifically, or its proceeds remain in the hands of

the marshal.

if the vessel and cargo were acquitted, but to return it in case of a different issue. That the other moiety of the proceeds was paid on the 6th of April, 1809, which was previous to the It is a great irregularity for the marshal to keep filing of the mandate in the court below, by the property or the proceeds thereof in his own hands, or to distribute the same among the parties the marshal, to the present appellant, as apentitled, without a special order from the court; pears by his receipt of that date, and which exbut such an irregularity may be cured by the as-presses the sum therein mentioned, to be for sent and ratification of all the parties interested, if his one half of the net proceeds of the sale of the schooner Collector and cargo. The mar

there be no mala fides.

Α'

PPEAL from the Circuit Court of Mary-shal died, pending the proceedings, and they were revived against his executors.

land.

The facts of this case were as follows: In the year 1807, the schooner Collector and cargo were libeled in the District Court of the district of Maryland, as forfeited under the act 195*] of Congress, *prohibiting commercial intercourse with certain ports of St. Domingo. | John Wilmot, the present petitioner and libelant, and the house of Tagart & Caldwell, claimed the whole property.

to

Pending the proceedings in the District Court, the vessel and cargo were sold under an order bring in the proceeds, subject to the future disposition thereof." The money, not withstanding this order, was never paid to the clerk, nor was it ever deposited by him in any court, and the court never afterwards made any order respecting it.

Mr. Mitchell, for the appellant and claimant, *(1) stated, that this was not a motion [*197 in the court below, for a rule against the marshal, to lay the foundation for an attachment, but a proceeding in the nature of an original libel, to give effect to the sentence of this court, as another court of admiralty, in the former cause. That the District Court has jurisdiction to sustain such a libel or petition, founded upon the sentences of foreign courts, and a fortiori of our own, appears by numerous authorities.' The mandate from this court was properly filed in the District Court, because if the proceeds were to be considered as in court at all, they were in that court. They remained in that court, notwithstanding the appeal, and it was, therefore, the proper tribunal to execute the The property was condemned in the district decree of restitution. According to the Engand circuit courts, which latter decree was re-lish practice in proceedings in rem, the thing versed by the Supreme Court, in the term of February, 1809, and the property libeled or dered to be restored. The mandate of the Supreme Court was filed below, the 11th of May following. The present libel and petition was filed in the District Court, the 8th of June, 1816, when a decree passed dismissing the same, which was afterwards affirmed by the Circuit Court, from whose sentence this appeal was taken.

The object of the present appeal was to obtain the benefit of the decree of the Supreme Court, that is, restitution of the property, according to the rights of the respective claimants; the appellant insisting on one-half of the proceeds of vessel and cargo, as joint owner, and also upon a lien on the other half as ship's husband, for advances made beyond his proportion of the outfits of the voyage, as well as for expenses in defending the vessel and cargo against the information which had been filed 196*] against them, and for this purpose prayed that the marshal might be ordered to bring in the proceeds, according to the interlocutory decree, and that the same might be restored, pursuant to the decree of the Supreme Court, preserving to the parties their respective rights, liens, &c., concluding with a general prayer for relief.

From the petition of the appellant, the answer of the marshal, and the proofs in the cause, it appeared, that the marshal, although he sold the schooner and her cargo, did not, in fact, bring the money into court. That for the moiety of the proceeds belonging to Tagart & Caldwell, an order was given by them in favor of Van Wyck & Dorsey, as early as March, 1807, in consequence of which order Van Wyck and Dorsey, who sold the property at auction, under the marshal's directions, were permitted to retain the part belonging to Tagart & Caldwell, upon an understanding to keep it,

The

in controversy does not follow the suit into the
Court of Appeals, but remains in that where
the proceeding was originally commenced.*
This is also the law of our own country.
ground of complaint here is, that the proceeds
have not been brought into the registry, in pur-
suance of the interlocutory decree of the Dis-
trict Court, which is the only tribunal compe-
tent to vindicate its own decrees. The Circuit
Court has no original jurisdiction in *ad- [*198
miralty and maritime cases, and cannot redress
a violation of the orders of the District Court.
The object of the present application, is not
merely to compel the payment of the proceeds
into court, but to obtain payment of money out
of court, which requires the solemnity of a pe-
tition analogous to the proceedings in chancery
in a similar case. Lord Eldon would never
suffer money to be paid out of court on motion,
but put the party to his petition, stating his
rights, which would thus appear on the records
of the court at any distance of time; and this
practice was approved and adopted by Lord
Erskine. (2) The claimant insists upon his
lien as part owner and ship's husband, on the
voyage in which she was seized, for advances
made by him, besides his absolute right in one
moiety. It is an incontrovertible principle,
that where property is taken out of the hands
of a party, in invitum, and by legal process, the
law will retain all his liens, and return it to
him, still subject to them, as before." It is

1.-Penhallow v. Doane, 3 Dall. 54, 97, 118; Jennings v. Carson, 2 Cranch, 21; Livingston v. McKenzie, 3 Term Rep. 323, note; Smart v. Wolff, 3 Term Rep. 329; 2 Bro. Civ. and Adm. Law, 120; 7 Vez., Jun., 593; Camden v. Home, 4 Term Rep. 385, 395.

2.-2 Bro. Civ. and Adm. Law, 405.
3.-Jennings v. Carson, 2 Cranch, 21.
4.-3 Vez., Jun., 393.
5.-Abbott on Shipp. 114, Story's ed.
6. Wilson v. Kymer, 1 Maul. & Selw. 157, 163.