much of the difficulty of this case arises from that cause; but as this case stands, it would seem entirely unjust to decree the defendant to pay a heavy sum of money, because the court of admiralty has done irregularly that which it had an unquestionable right to do.

Since the court of admiralty possessed the power of making a distinct order of sale immediately after the appeal was entered, and this, but for the depreciation, would *have been desirable by all, it is not unreasonable to suppose the practice to have been to consider the appeal as made from the condemnation, and not from the order of sale. The manner in which this appeal was entered affords some countenance to this opinion. In the recital of the matter appealed from, the condemnation alone, not the order of sale, is stated.

The court will not consider this irregularity of the admiralty, in ordering what was within its power, as charging the owners of the privateer, under the decree of the 23d of December, 1780, with the amount of the sales of the George and her cargo, which in point of fact never came to their hands, and over which they never possessed a legal control, for the marshal states himself to hold the net proceeds to the credit of the former owners.

It is, therefore, the unanimous opinion of this court, that the decree of the 23d of December, 1780, does not require that the restoration and redelivery which it orders should be effected by the captors, but by those who in point of law and fact were in possession either of the George and her cargo, or of the money for which they were sold. As the officer of the court of New-Jersey, not the captors, held this possession, the decree operates upon him, not upon them.

On that part of the libel in this case which may be considered as supplemental, and as asking relief in addition to that which was given by the decree of the 23d of December, 1780, the court deems it necessary to make but a very few observations.

The whole argument in favour of this part of the claim is founded on the idea that the captors were wrongdoers, and are responsible for all the loss which has been produced by their tortious act. The sentence of reversal and restoration is considered by the plaintiffs as conclusive evidence that they were wrongdoers.

But the court can by no means assent to this princi

Jennings

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Jennings

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ple. A belligerent cruiser who with probable cause seizes a neutral and takes her into port for adjudication *and proceeds regularly, is not a wrongdoer. The act is not tortious, The order of restoration proves that the property was neutral, not that it was taken without probable cause. Indeed, the decree of the court of appeals is in this respect in favour of the captors, since it does not award damages for the capture and detention, nor give costs in the suit below.

If we pass by the decree, and examine the testimony on which it was founded, we cannot hesitate to admit that there was justifiable cause to seize and libel the

vessel.

Upon the whole case, then, the court is unanimously of opinion, that the decree of the circuit court ought to be affirmed.

A capture of a neutral as prize by a

THIS was a case certified from the circuit court for the district of Pennsylvania, in which the opinions of the belligerent is a judges of that court were opposed to each other upon total loss, and the question, whether the plaintiff was entitled to recover insured to upon a case stated, the material facts of which were as abandon. follow:

entitles the

The state of

the loss at the The defendants insured 12,500 dollars, on the freight time of the of the plaintiff's American ship The Manhattan, which offer to abandon, fixes the had been chartered by Minturn & Champlin, for a voyrights of the age from New-York to Batavia, and back to New-York. parties,

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The freight was valued in the policy at 50,000 dollars. The charter-party contained a covenant that if any dise pute should arise between the plaintiff and Minturn & Champlin respecting the freight, the cargo should not be detained by the plaintiff, provided they should give good security to abide by the award of arbitrators, who were to be appointed to settle such dispute. On her home

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ward voyage, on the 10th of February, 1805, the ship was Rhinelander taken and detained on the high seas by a British armed vessel, and the second mate and 21 of the seamen taken Pennsylvanią. out, and two British officers and 15 seamen put on board, with orders to take her into a British port. The second mate was put on board another vessel, and arrived in New-York on the 26th of February, when he gave the above information to the plaintiff, who, on the 28th of February, communicated it by his letter of abandonment of that date, to the defendants.

The Manhattan, with her cargo, was carried into Bermuda on the 12th of February, and libelled as prize of war. On the 20th of April, 1805, both vessel and cargo were acquitted. From this sentence, so far as it respected the cargo only, an appeal was prayed, which does not appear to have been decided; but on the 8th of May the cargo was delivered to its owners, on their giving security, and on the 8th of July the vessel and cargo arrived in New-York; but before their arrival, the defendants having refused to give counter security, so as to relieve the owners of the cargo from the effect of the security which they had given upon getting possession of their goods, the plaintiff, on the 6th of June, 1805, after the vessel was liberated, brought the present suit. Upon the arrival of the vessel and cargo, Minturn & Champlin gave security to abide the award of the arbitrators concerning the freight, according to the covenant in the charter-party, and obtained possession of the cargo.

Hopkinson, for the plaintiff, contended,

1. That there had been a total loss of the property insured, occasioned by a peril within the terms of the policy.

2. That the abandonment was made in due time.

*Whenever a vessel is captured by a belligerent as prize, whether the belligerent be a friend or an enemy, the loss is total, so long as the detention exists; and vests a complete right of abandonment. It is not the state of the information received, but the actual state of the fact, which justifies the abandonment, and gives the right to recover as for a total loss. The vessel was actually libelled as prize at the time of the abandonment, although no information of such libel had been

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Rhinelander received by the plaintiff; and, therefore the case is Ins. Co. of clearly within the doctrine established by the supreme Pennsylvania. court of Pennsylvania, in the case of Dutilgh v. Gatliff,

decided a few days ago ;(a) that if the vessel be libelled

(a) Decided January 17th, 1807. The opinion of Ch. J. Tilghman, as published in the United States Gazette, of the 20th of the same month, is as follows:

On the 24th of September, 1799, the defendant, Samuel Gatliff, underwrote seven hundred and fifty dollars upon a policy of insurance on the schooner Little Will, belonging to John Dutilgh and Thomas Lillibridge, for whom the plaintiff was agent, on a voyage at and from Philadelphia to Havanna.

On the 25th of September, 1799, the Little Will sailed on her voyage from Philadelphia for Havanna, and on the 8th day of October following she was captured by three British privateers, and carried into the port of Nassau, New Providence, where she arrived on the 13th of the same month.

Upon her arrival in Nassau, the said schooner was libelled in the admiralty court, and on the 9th day of November following was regularly acquitted; and in the whole she remained thirty-seven days at Nassau, during thirty-five of which she was in custody of the captors; but the fact of her acquittal was not known to the plaintiff until after the abandonment hereafter mentioned; although it was known to John Dutilgh, one of the owners and supercargo, who was with her at Nassau.

On the 13th day of November, the plaintiff wrote the letter of abandonment, enclosing the papers therein referred to, which was received by the defendant the same day.

On the 20th of November the said schooner sailed from Nassau for Havanna, where she arrived on the 21st of the same month, and sold her cargo, except three boxes plundered at New Providence. Afterwards, the said schooner sailed from Havanna for Philadelphia, where she arrived on the 26th or 27th of February, in the year 1800, with a cargo of sugars, on which freight became due, and was received by Stephen Dutilgh for the benefit of those who were entitled to it; each party refusing to accept her, she was sold for wharfage, and the whole proceeds of sale applied to the payment thereof.

The schooner Little Will was American property, as warranted. The question for the court is, whether the plaintiff is entitled to recover as for a total loss?

Opinion of the court delivered by W. Tilghman, Ch. J. On the case thus stated, the question submitted to the court is, whether the plaintiff is entitled to recover for a total loss?

In resolving this question, I shall divide it into two points.

1. Did there ever exist a total loss?

2. Supposing that there once existed a total loss, has any circumstance occurred which excludes the plaintiff from recovering for more than a partial loss?

1. The case before us includes one of the risks expressly mentioned in the policy, a taking at sea. But it has been objected that this taking was not by an enemy, and that when a belligerent takes a neutral, it is to be presumed that the taking is only for the purpose of

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by the #captors as prize, it is such a capture as gives Rhinelander the insured a complete right to abandon; and to recover as for a total loss. Although the Manhattan and cargo Pennsylvania.

searching for the property of his enemy, or goods contraband of war, and that in the end, justice will be done to the neutral. To a certain extent there is weight in this distinction; but it must not be carried too far. At the time when the capture in question was made, the United States acknowledged the right of the British to detain their vessels for the purpose of a reasonable search. The bare taking of the vessel, therefore, could by no means constitute a loss; and if under suspicious circumstances she should be carried into port, to afford an opportunity for a complete investigation, perhaps even that ought not of itself to be considered as a total loss. On this, however, I give no opinion. But when the captor, having carried the vessel into port, and completed the examination of the cargo and papers, instead of discharging her, proceeds to libel her as prize, I think the loss is complete. The property is no longer subject to the command of the owner, and it is unreasonable that he should wait the event of judicial proceedings, which may continue for years. The case of an embargo is less strong, because there the confiscation of the property is not intended, and a temporary interruption of the voyage is all that in general is to be apprehended. Yet the assured is not obliged to wait the result, but may abandon immediately on receipt of intelligence of the embargo. Not many judicial decisions have been produced on the point in question. Where principles are strong, it is sufficient that there have been no decisions to the contrary. It appears, however, that in the state of New-York, the precise point has been determined. In the case of Mumford v. Church, decided in the supreme court of New-York, July term, 1799, the assured recovered for a total loss where there was a capture, carrying into port, and libelling by a British captor, although after the abandonment the property was restored. It is necessary that some general rule should be established; some line drawn by which the assured may know at what time he has a right to abandon. In most cases the voyage is extremely injured by proceedings in the court of admiralty, and the event is doubtful. For it cannot be denied, that of late such strange occurrences have taken place, in war and politics, as have very much affected the principles and practice of foreign courts of admiralty. Whatever may be said of the law of nature and nations, and the immutable principles of justice, we see very plainly that the courts obey the will of the sovereign power of their country; and this will fluctuates with the circumstances of the times. I am, therefore, of opinion, that both by the words and spirit of a policy of insurance, the assured may abandon when he receives intelligence of the libelling of his vessel.

·

2. This brings me to the consideration of the second point. Has any circumstance occurred "which limits the plaintiff to a recovery for only a partial loss?"

It is contended that such an event has occurred; that the vessel was acquitted by decree of the court of admiralty; that after acquittal she proceeded on her voyage, and that one of the owners was on the spot, and knew of the acquittal. I do not think there is much weight in the circumstance of one of the owners being on the spot, because the general agent of all the owners was in Philadelphia. This general agent effected the insurance, and conducted all the

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