was effected on slaves, and the vessel was driven into a port of distress and the slaves liberated on habeas corpus, it was held, that this loss came within the terms "arrest, restraints, and detainments," etc.1

If the seizure is caused by the unlawful act of the master, it

broken up. See also, Cook v. Essex F. & M. Ins. Co., 6 Mass. 122; Wheatland v. Gray, 6 Mass. 124; Lee v. Gray, 7 Mass. 349; Tucker v. United M. & F. Ins. Co., 12 Mass. 288. In some of the States the decisions are the other way. 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 sealetter 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 sea-letter 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 des. tination 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 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 do not think it necessary to express any opinion." M'Call v. Mar. Ins. Co., 8 Cranch, 59. See also, Emerigon, c. 12, s. 31, Meredith's

Ed. 425.

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

would seem that the underwriters are not liable, but in determining this point, the parties stand on their strict rights, and if the master had the right to do the act which led to the seizure, the underwriters are liable, provided he acted bonâ fide, although, by adopting another course, the seizure might have been avoided. And where the lawfulness of the act of the master, and consequently, the legality of the seizure, depend upon the fact, whether the power which seized the vessel, had the right to exercise jurisdiction over the place where the offence was committed, the question must be determined by the fact, whether the government of the country to which the vessel belongs, recognizes the right of jurisdiction on the part of the seizing power. If a suit is commenced against a captain by the government in a foreign port, and the voyage is consequently delayed, the underwriters are not liable for the detention, the proceedings being against the captain personally, and not against the ship.3

Policies are sometimes made containing a stipulation authorizing the vessel to proceed to another port, in case the port of original destination is blockaded. And insurance is

1 Sewell v. Royal Exch. Ass. Co., 4 Taunt. 856; Williams v. Suffolk Ins. Co., 3 Sumner, 270, 13 Pet. 415.

2 Williams v. Suffolk Ins. Co., 3 Sumner, 270, 13 Pet. 415. The question in this case was, whether the government of Buenos Ayres had jurisdiction over the Falkland Islands, and the court held that it was bound by the acts of the government of the United States, and could not examine the question de novo.

3 Bradford v. Levy, 2 Car. & P. 137.

4 Naylor v. Taylor, 9 B. & C. 718; Ferguson v. Phoenix Ins. Co., 5 Binn. 544. In this latter case, the insurance was on sugars from New York to Amsterdam, "with liberty, in case of being turned off on account of blockade, to proceed to a neighboring port." On the voyage, the vessel was boarded by a British privateer and her papers indorsed, "warned not to enter, or attempt to enter, an enemy's port." In consequence of this, she proceeded to Cowes, remained there about a month and a half, paid duties, obtained a license for Amsterdam, and was about to depart, when she was seized by a British vessel and sent into Portsmouth. The vessel was libelled and restored. The captain then sailed again for Amsterdam, but was captured by the British, the vessel was a second time libelled and again restored. By this time her license had expired, and information having been received that the decrees of the French and Dutch governments, prohibiting the entry into their ports of any vessels coming from England, were rigorously enforced in Holland, the captain took the ship to London and landed her cargo. On the receipt of this intelligence, the plaintiffs abandoned. A majority of the court, consisting of two judges, held that London was

often made against unlawful arrests, restraints, and detentions only.1

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 underwriters were therefore not liable. Mr. Justice Brackenridge, was of the opinion, that the indorsing 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 expiration 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 Oleron, 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.

SECTION VIII.

OF THE GENERAL CLAUSE RESPECTING OTHER PERILS.

There is nothing in the law of insurance which prevents parties from agreeing upon insurance against other perils than those usually enumerated, and specifying them in the policy. But the general clause which is usually inserted against "all other risks and perils," enlarges the scope and operations of the policy very little, because, by a common principle of construction (that general words are restrained by the particular recital),1 it is always construed to mean other perils of like nature or character with those enumerated, which would therefore be included, generally at least, in the other clauses. But these words have been declared by courts to be material and operative, and insurers have been held liable under them, but, as it seems, in most of these cases they might have been held liable as well under other clauses.2 It has been held that an extraordi

12 Rolle, Abr. 409; Payler v. Homersham, 4 M. & S. 423; Moore v. Magrath, 1 Cowp. 9; Rich v. Lord, 18 Pick. 322; Jackson v. Stackhouse, 1 Cow. 122.

2 In Cullen v. Butler, 5 M. & S. 461, the vessel was lost by being fired into through mistake. Held, that the loss was covered by the general clause. Lord Ellenborough, C. J., said: "The extent and meaning of general words have not yet been the immediate subject of any judicial construction in our courts of law. As they must, however, be considered as introduced into the policy in furtherance of the objects of marine insurance, and may have the effect of extending a reasonable indemnity to many cases not distinctly covered by the special words, they are entitled to be considered as material and operative words, and to have the due effect assigned to them in the construction of this instrument; and which will be done by allowing them to comprehend and cover other cases of marine damage of the like kind with those which are specially enumerated and occasioned by similar causes." The following have been held to be covered by the general clause. Damage done to a vessel while in a graving dock for repairs, by being blown over by the wind. Phillips v. Barber, 5 B. & Ald. 161 or by the explosion of the boiler. Perrin v. Protection Ins. Co., 11 Ohio, 147. Or while the vessel is being hauled up on a marine railway, and is partly in the water and partly on land. Ellery v. New England Ins. Co., 8 Pick. 14; injury sustained by the accidental breaking and giving way of the tackle and supports whereby the vessel was supported in being moved from a dock where she had been hauled up for repairs. Devaux v. J'Anson, 5 Bing. N. C. 519. So dollars thrown overboard to prevent their falling into the hands of the enemy, one of the perils enumerated being

nary duty laid on goods at the port of destination between the time of the capture of a vessel and her release and arrival, is not covered by an insurance against "all unavoidable perils, losses, and misfortunes to the damage of the goods;" the loss being occasioned by a political event not insured against.1 Courts have been disposed to construe "against all risks," when written and not printed, as an insurance against every thing but the fraud of the assured; but it may be doubted whether, in practice, even this phrase should be permitted to extend its operation quite so indefinitely.2

jettison, which was considered as not confined to the signification it has in general average, but as meaning any casting overboard ex justa causa, are protected by this clause. Butler v. Wildman, 3 B. & Ald. 398. So, it would seem is loss by barratry committed by one part-owner against another, or against any other party in interest. Per Martin, B., Jones v. Nicholson, 10 Exch. 28, 26 Eng. L. & Eq. 542. In Moses v. Sun Mut. Ins. Co., 1 Duer, 159, it was held that a loss occasioned by the sale of a part of a cargo of provisions to pay for necessary supplies at an intermediate port; and the necessary consumption of the rest by the passengers and crew, owing to the want of a proper supply on board the ship, was not covered by this clause. Mr. Justice Duer, said: "The words of the general clause, broad as they are, in this as in many analogous cases, are limited in their application by the specification that immediately precedes them, and therefore have their due effect assigned to them, by allowing them to comprehend and cover only such other cases of marine damage as are of the like kind (ejusdem generis) with those specifically enumerated, and are occasioned by similar causes." In Caldwell v. St. Louis Perpet. Ins. Co., 1 La. Ann. 85, the policy contained this clause, insuring against, "all other perils, losses, and misfortunes which shall come to the damage of the said boat, according to the general law of insurance." Held, that this covered a loss by a collision produced by the negligence of the officers of another boat. In Perkins v. New England Mar. Ins. Co., 12 Mass. 214, a license was insured "not only against capture, but against its being destroyed or rendered useless, by the ordinary perils of the seas, fire, or otherwise." The ship was afterwards boarded, the license was indorsed by a British officer, and thus rendered useless. Held that there was a loss within the policy.

1 De Peau v. Russell, 1 Brev. 441.

2 In Goix v. Knox, 1 Johns. Cas. 337, the court said: "This expression is vague and indefinite, but if we allow it any force, it must be considered as creating a special insurance, and extending to other risks than are usually contemplated. We are inclined to give it a liberal construction, and apply it to all losses, except such as arise from the fraud of the assured." See also, Skidmore v. Desdoity, 2 Johns. Cas. 77. In Marcy v. Sun Mutual Ins. Co., 11 La. Ann. 748, insurance was effected on a floating dock against "all risks." It was held that this term meant all river and harbor risks, so far as they were applicable to floating docks, and that evidence as to the general meaning of the phrase was not admissible, it not being shown to be so used in reference to floating docks.

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