V. Newport Ins. Co. Fitzsimmons ced may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless after notice she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper." * 200 This treaty is conceived to be a correct exposition of the law of nations; certainly it is admitted by the parties to it, as between themselves, to be a correct exposition of that law, or to constitute a rule in the place of it. Neither the law of nations nor the treaty admits of the condemnation of the neutral vessel for the intention to enter a blockaded port, unconnected with any fact. Sailing for a blockaded port, knowing it to be blockaded, has been in some English cases construed into an attempt to enter that port, and has, therefore, been adjudged a breach of the blockade from the departure of the vessel. *Without giving any opinion on that point, it may be observed, that in such cases the fact of sailing is coupled with the intention, and the sentence of condemnation is founded on an actual breach of blockade. The cause assigned for condemnation would be a justifiable cause, and it would be for the foreign court alone to determine whether the testimony supported the allegation that the blockade was broken. Had this sentence averred that the brig John had broken the blockade, or had attempted to enter the port of Cadiz after warning from the blockading force, the cause of condemnation would have been justifiable, and without controverting the conclusiveness of the sentence, the assured could not have entered into any inquiry respecting the conduct of the vessel. But this is not the language of the sentence. An attempt to enter the port of Cadiz is not alleged, but persisting in the intention, after being warned not to enter it, is alleged as the cause of condemnation. This is not a good cause under the treaty. It is impossible to read that instrument without perceiving a clear intention in the parties to it, that after notice of the blockade, an attempt to enter the port must be made, in order to subject the vessel to confiscation. By the language of the treaty it would appear that a second attempt, after receiving notice, must be made, in order to constitute the offence which will justify a confiscation. "It agreed," says 66 V. Newport Ins. Co. that instrument, that every vessel so circumstanced" Fitzsimmons (that is, every vessel sailing for a blockaded port, without knowledge of the blockade) " may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter." These words strongly import a stipulation that there shall be a free agency on the part of the commander of the vessel, after receiving notice of the blockade, and that there shall be no detention nor condemnation, unless, in the exercise of that free agency, a second attempt to enter the invested place shall be made. It cannot be necessary to state that testimony which would amount to evidence of such second attempt. Lingering about the place, as if watching for an opportunity to sail into it, or the single circumstance of not making immediately for some other port, or possibly obstinate and determined declarations of a resolution to break the blockade, might be evidence of an attempt, after warning, to enter the blockaded port. But whether these circumstances, or others, may or may not amount to evidence of the offence, the offence itself is attempting again to enter, and "unless, after notice, she shall again attempt to enter," the two nations expressly stipulate "that she shall not be detained, nor her cargo, if not contraband, be confiscated." It would seem as if, aware of the excesses which might be justified, by converting intention into offence, the American negotiator had required the union of fact with intention to constitute the breach of a blockade. The cause of condemnation, then, as described in this sentence, is one which, by express compact between the United States and Great Britain, is an insufficient cause, unless the intention was manifested in such manner as, in fair construction, to be equivalent to an attempt to enter Cadiz, after knowledge of the blockade. This not being proved by the sentence itself, the parties are let in to other evidence. However conclusive, then, the sentence may be, of、 the particular facts which it alleges, those facts not amounting, in themselves, to a justifiable cause of condemnation, the court must look into the special verdict, which explains what is uncertain in the sentence. The special verdict shows that the vessel was seized on her *201 V. Co. Fitzsimmons approaching the port of Cadiz, without previous knowNewport Ins. ledge of the blockade; that she never was turned away, and "permitted to go to any other port or place;" that she was "detained" for several days, and then sent in for adjudication, without being ever put into the possession of her captain and crew, so as to enable her either "again to attempt to enter" the port of Cadiz, or to sail for some other port; that while thus detained, the commander of the blockading squadron drew the captain of the John into a conversation which must be termed insidious, since its object was to trepan him into expressions which might be construed into evidence of an intention to sail for Cadiz, should he be liberated; *that availing himself of some equivocal, unguarded, and, perhaps, indiscreet, answers on the part of the captain, the vessel was sent in for adjudication; and on those expressions was condemned. * 202 This court is of opinion that these facts do not amount to an attempt again to enter the port of Cadiz, and, therefore, do not amount, under the treaty between the United States and Great Britain, to a breach of the blockade of Cadiz. The sentence of the court of viceadmiralty in Gibraltar, therefore, is not considered as falsifying the warranty that the brig John was American property, or as disabling the assured from recovering against the underwriters in this action, and the testimony in the case shows that the blockade was not broken. The judgment of the circuit court is to be reversed, with costs, and it is to be certified to that court, that judgment is to be entered on the special verdict for the plaintiff. Judgment reversed. MARSHALL v. THE DELAWARE INSURANCE ERROR to the circuit court for the district of Pennsylvania, in an action for a total loss, on a policy of insurance on the Brig Rolla, her cargo and freight. The right of the insured to abandon and recover for a The material facts stated, were, that the Brig Rolla, a total loss, deneutral vessel, while prosecuting the voyage insured, the state of pends upon was captured by a belligerent cruiser, and libelled as the fact at the prize of war. On the 9th of July, 1806, a final sen M. offer to abandon, and not upon the state of the infor time of the ved. cap tence in favour of the vessel and cargo was passed, and on the 19th of the same month, about 1 o'clock 'P. restitution was made. On the 17th of July the as- mation recei sured in *New-York received information of the ture, and immediately gave orders to his agent in Philadelphia to abandon to the underwriters.. In pursu- cal total loss ance of these orders the offer to abandon was made arising from on the morning of the 19th. * 203 The techni capture, ceases with a final The judgment of the court below was for the defend- decree of res ants. Hopkinson, for the plaintiff. titution, although that decree may not have been executed at The question in this case is, whether the plaintiff is the time of entitled to recover for a total, or only for a partial the loss. The proceeds of the cargo have been received by the plaintiff, who sold the same for account of the underwriters, if they will receive them. If the abandonment was made before the restoration in fact of the cargo to the captain on the 19th of July, the plaintiff has a right to recover for a total loss, according to the decision in Rhinelander's Case, at last term, (ante, p. 41.) The plaintiff having shown a total loss, by the capture, it is incumbent on the defendants to show that the property was restored before the abandonment. On the 17th the plaintiff received information of the capture; on the 18th he wrote and put into the postoffice at New-York, the letter to his agent in Philadelphia, directing the abandonment to be made; on the 19th it was received in Philadelphia, and the abandonment offered. The abandonment must relate to the 18th, when offer to abandon. Marshall Delaware Ins. Co. *204 the plaintiff wrote his letter and made his election to abandon. Abandonment is an ex parte act, and if the plaintiff has a right to abandon at the time when he elects and offers to abandon, the defendants are liable from that time. No consent is necessary on the part of the defendants. The plaintiff was bound from the date of his letter; and the defendants must be equally bound. But although the property may have been in fact restored before the abandonment, if that restoration was unknown to the plaintiff, it is yet an undecided question, whether the abandonment is not valid. *The opinion of Lord Mansfield in Hamilton v. Mendes, unlike the opinions of that great man, is confused and contradictory, sometimes making the question of right to abandon depend upon the state of the information, and sometimes on the fact itself. It is not reasonable that the insured should be bound to abandon upon receipt of the first intelligence, and yet the underwriter be permitted to take advantage of subsequent events. There would be no mutuality in this principle. It would be ruinous to merchants thus to be kept out of their money. Besides, the contract is for indemnity, and there can be no fairer mode of ascertaining the indemnity than to give the underwriters the thing itself, subject to the chance of recovery, and let them pay the price. If the thing is restored, and goes to a good market, the underwriters derive the benefit; if a loss happens, it is what they are bound by their contract to sustain. But as to the state of the fact itself, we contend that there was no actual restoration of the property before the offer to abandon. If there was, it is for them to show it. The onus probandi is on them. If it is necessary to the justice of the case, the court will divide the day, and ascertain which event did first actually happen. 3 Burrow, 1434. Combe v. Pitt. Dallas and Rawle, contra, contended, That the peril being at an end, at the time of the offer to abandon, the plaintiff cannot recover for a total loss, unless the consequences of the capture created a total loss either in fact or in law. |