to plead. The vessel and cargo had arrived, and the Rhinelander defendants may now set up that fact as a defence.

V.

Ins. Co. of

If a vessel, supposed to be lost, be abandoned to the Pennsylvania. underwriters, and a suit brought upon the policy, but before plea pleaded, the vessel arrive in safety; the underwriters may plead this fact, or give it in evidence, and it will be a good defence. In Hamilton v. Mendez, 2 Burr. 1214. Lord Mansfield says, "We give no opinion how it would be in case the ship or goods be restored in safety," "between the commencement of the action and the verdict." And in Sullivan v. Montague, Doug. 112. he says, "actio non goes, in every case, to *the time of pleading, not to the commencement of the action." The declaration is the beginning of the action. Co. Litt. 126. a. And even after plea pleaded, if any matter of defence arise, the defendant may, and indeed if he would not for ever lose the benefit of it, he must, plead it as a plea puis darrein continuance. Yelv. 141. Ewer v. Moile.

But the plaintiff has never made a cession to the underwriters of his right to the freight, and of the means of obtaining it. He had, by a covenant in the charterparty, given up his lien upon the cargo; a fact unknown to the defendants, and which ought to have been disclosed. He had also, without the defendants' consent, left the question of freight to arbitrators, who have not yet decided.

Ingersoll, in reply.

The question whether the cargo shall be restored to its owners, is still pending in the court of admiralty, and if the plaintiff had, at any time, a right to recover the freight from the underwriters, that right still continues. On the first intelligence of the capture, the plaintiff offered to abandon; and, according to the true state of the facts, he had then a complete right to abandon. Although the property was neutral, yet it was captured as prize. It was treated by the captors as enemy-property. It was, in fact, taken jure belli, and, therefore, it can make no difference, in principle, whether the nation of the captors be at peace or at war with the nation of the captured vessel and cargo. was seized as prize of war, and the question of neutrality is still to be decided. The delivery of posses

It

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V.

Rhinelander sion, upon security, is no more a restitution of the Ins. Co. of cargo, than if the owners had purchased it under a de Pennsylvania. cree of condemnation. It has not arrived safe; it is

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burdened with an encumbrance to its full value. The circumstances detailed by the second mate, in his first information to the plaintiff, clearly showed that the seizure was made of the property as prize of war. It is said the abandonment was made too soon. In Fuller v. M'Call, 2 Dall. 219. the plaintiff was holden to be too late, because he did not abandon upon receipt of the first intelligence, although the information came from a stranger. But here the information was given by an officer of the ship, an eye witness, and the vessel was, in fact, libelled as prize of war. The insured is bound to abandon in a reasonable time after receiving the intelligence, so that the underwriter may take measures to save what he can to indemnify himself; and no objection can be made that the insured abandoned too soon, if subsequent information prove that he had then a right to abandon.

Whether this be strictly a capture or not, is immaterial, as one of the risks insured against is taking at sea; and as this taking was with the view of seizure as prize, on suspicion of its being enemy-property, it is within the principle of belligerent capture. The right of search gives no right to dispossess the owner of his vessel, either according to the law of nations, or to our treaty with Great Britain. But if such right did exist, an unreasonable detention gives a right to abandon; and whenever a vessel is libelled, if the insured means to claim for a total loss, he ought to abandon, in order to give the underwriters a right to defend the property in the court of admiralty. The insured, after an offer to abandon, is not bound to defend the property. The libel was filed eight days before the abandonment, but that fact was not necessary to give the right to abandon.

It has been said that the books furnish no case in which the capture by a friend has been decided to be a total loss. But Marshall, in p. 422. and 435. considers the law as settled, that a capture by a friend, under pretence of enemy's goods, must be considered as a capture, because it is done as an act of hostility. The uncertainty of the duration of the detention, puts it

v.

upon the same principle as the case of an embargo. A Rhinelander capture is a total loss, although a condemnation never takes place. 2 Burr. 694. 697. Goss v. Withers.

be

An actual deed of cession was not necessary, cause the offer to abandon was not absolutely accepted. The offer to cede the plaintiff's right was sufficient. The covenant in the charter-party to relinquish the lien on the cargo for freight, upon other security being given, did not affect the interests of the underwriters. The security stood in the place of the cargo, and was abundantly sufficient.

*MARSHALL, Ch. J. delivered the opinion of the court, as follows:

The Manhattan, a neutral ship, while prosecuting the voyage insured, was captured by a belligerent cruiser, the second mate and twenty-one of the hands were taken out, and two British officers and fifteen seamen put on board, and she was ordered into a British port. The mate soon afterwards arrived in the United States in another vessel. On the 26th of February, 1805, he gave information of these facts to the owner of the Manhattan, who, on the 28th of the same month, communicated it to the insurers, and offered to abandon to them. On the 2d of April payment of the freight was demanded and refused. The Manhattan was carried into Bermuda, and libelled as prize of war. On the 20th of April in the same year, both vessel and cargo were acquitted. From this sentence, so far as respected the cargo only, an appeal was prayed, which does not appear to have been decided. The cargo was delivered to the owners on their giving security, and on the 8th of July the vessel and cargo arrived at the port of destination. The underwriters having refused to give counter security, this action was brought on the 6th of June, after the vessel was liberated, and before her arrival at the port of destination. The policy is on the freight.

The question referred to this court is, whether the facts stated entitle the insured to recover against the underwriters for a total loss.

In examining this question, the material points to be determined are,

Ins. Co. of Pennsylvania.

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Rhinelander

V.

Ins. Co. of Pennsylvania.

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1st. Had the insured a right to abandon when the offer was made?

2d. Have any circumstances since occurred which affect this right?

These are important questions to the commercial interest of the United States, and ought to be settled with as much clearness as the case admits.

*It is universally agreed, that to constitute a right to abandon, there must have existed a total loss, occasioned by one of the perils insured against; but this total loss may be real, or legal. Where the loss is real, a controversy can only respect the fact; but the circumstances which constitute a legal, or technical loss, yet remain, in many cases, open for consideration.

It has been decided that a capture, by one belligerent from another, constitutes, in the technical sense of the word, a total loss, and gives an immediate right to the insured to abandon to the insurers, although the vessel may afterwards be recaptured and restored.

It has also been decided that an embargo or detention by a foreign friendly power, constitutes a total loss, and warrants an immediate abandonment. But the capture, or taking at sea of a neutral vessel by a belligerent, is a case on which the courts of England do not appear to have expressly decided, and which must. depend on general principles, on analogy, and on a reasonable construction of the contract between the parties.

A capture by an enemy is a total loss, although the property be not changed, because the taking is with an intent to deprive the owner of it, and because the hope of recovery is too small, and too remote to suspend the right of the insured, in expectation of that

event.

If a neutral ship be captured as enemy-property, the taking is unquestionably with a design to deprive the owner of it; and the hope of recovery is in many cases remote, since it may often depend on an appellate court; and though not equally improbable as in the case of capture by an enemy, is not so certain as is stated in argument by the counsel for the defendants.

The distinction between a capture by an enemy and by a belligerent not an enemy, has not been taken in the cases adjudged in England, so far as those cases have

been laid before the court, and the best general writers Rhinelander seem to arrange them in the same class. 2 Marshall, Ins. Co. of

422. 435.

*It has been also determined, that a total loss existed in the case of an embargo, or the detention of a foreign prince.

In one case cited at the bar, (Saloucci v. Johnson,) the court of king's bench determined that an illegal arrest at sea amounted to a detention by a foreign prince, and although that case has since been overruled in England, so far as it decided that to resist a search did not justify a seizure, yet the principle that an arrest at sea was to be resolved into a detention by a foreign power, has not been denied. Marshall, (435.) after noticing the contrary decisions respecting the right of a neutral to resist a search, adds " yet the above case of Saloucci v. Johnson may nevertheless, I conceive, be considered as an authority to prove, that if a neutral ship be unlawfully arrested and detained by a belligerent cruiser, for any pretended offence against the law of nations, this would be a detention of princes."

That a detention of a foreign power by embargo, or otherwise, warrants an abandonment, is well settled. 2 Marshall, 483.

The opinion given by the court of king's bench in the case of Saloucci v. Johnson, goes no further than to establish that an unlawful arrest at sea is to be considered as the detention of a foreign prince. Whether the arrest can only be considered as unlawful when the cause alleged, if true, is not in itself sufficient to justify a seizure, or when, if true, it would be sufficient, but is in reality contrary to the fact, is not stated. In point of reason, however, it would seem that when an arrest is made at sea by a person acting under the authority of a prince, the detention is as much the detention of princes in the one case as in the other.

In the case of an embargo, the detention is lawful. The right of any power to lay an embargo has not been questioned. Yet it is universally admitted, that an embargo constitutes a detention which amounts, at the time, to a total loss, and warrants an abandonment.

*In what consists the difference between a detention occasioned by an embargo, and a detention occasioned by an arrest at sea of a neutral by a belligerent power?

V.

Pennsylvania. * 43

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