saying that otherwise the fear of capture would become a peril insured against, and that while the case was certainly a very strong one, they could not make nice distinctions.

In Becker v. London Assur. Corp. supra, it was said that if the vessel had been chased into the neutral port in which she had taken refuge the peril of capture would have begun to operate, and in that case it might be said that the abandonment of the voyage and the constructive total loss of the goods by the destruction of the venture was caused by a peril within the policy.

For other decisions as to the liability of the insurer as affected by a deviation or loss of voyage occasioned by an apprehension of capture, see subdivision of this note entitled, "Liability in case of blockade, interdiction, or embargo."

IX. Liability in case of blockade, interdiction or embargo.

a. Blockade.

Blockade running as a breach of warranty of neutrality, see heading, "Liability of insurer as affected by warranties," supra.

As to affect of warranty of neutrality to exonerate insurer from liability for a breaking up of the voyage in consequence of a blockade, see Thompson v. Read (1820) 12 Serg. & R. 440, set forth under the same heading.

As to whether a blockade will justify a deviation, see heading, "Conditions occasioned by war as justifying deviation," supra.

As to when a blockade, interdiction, or embargo will warrant an abandonment and recovery as for a total loss, see subdivision X., infra.

The fact that the port of destination is known to be blockaded does not render the voyage illegal, so as to discharge the insurer, as the vessel may lawfully proceed there for the purpose of ascertaining whether the blockade continues. See Naylor v. Taylor (1829) 9 Barn. & C. 718, 4 Moody & R. 526; Maryland Ins. Co. v. Woods (1810) 6 Cranch, 29, 3 L. ed. 143; Sperry v. Delaware Ins. Co. (1808) 2 Wash. C. C. 243, Fed. Cas. No. 13,236.

Although a blockading nation may by the law of nations be allowed to consider its notification of a blockade as notice thereof to all the subjects of the nation to which the notification has been made, since it cannot be expected that the blockading nation should be able or require to prove absolute knowledge in the master of the vessels of every other country, such rule cannot be applied to the case of insurance; but whether the master of the vessel knew of the blockade is properly a question of fact for the decision and judgment of the jury. Harratt v. Wise (1829) 9 Barn. & C. 712, 4 Moody & R. 521, 7 L. J. K. B. 309.

Information by a belligerent to a neutral that the port of destination is blockaded, and a warning not to proceed thither, do not amount to a restraint or detention within the provisions of an insurance policy against restraint and detainment of princes. Richardson v. Maine F. & M. Ins. Co. (1809) 6 Mass. 102, 4 Am. Dec. 92; King v. Delaware Ins. Co. (1808) 2 Wash. C. C. 300, Fed. Cas. No. 7,788; Cook v. Essex F. & M. Ins. Co. (1809) 6 Mass. 122.

But a blockade and warning may amount to a peril within the words "arrests, restraints, and detainments of princes," where there exists in the fact a right or power to make the restraint effectual and a reasonable degree of certainty that it will be and can be so used (King v. Delaware Ins. Co. (1808) 2 Wash. C. C. 300, Fed. Cas. No. 7,788, affirmed on other grounds in 6 Cranch, 71, 3 L. ed. 155); and a blockade of sufficient force to prevent a ship from entering the port is a restraint within the meaning of the policy, although the vessel is suffered to return home (Thompson v. Read, supra). Where a vessel is warned away from her port of destination by a squadron engaged in maintaining a rigorous blockade, and it is apparent that any further attempt to enter the port might have been followed by a forfeiture of the vessel and cargo without any recourse upon the underwriters, and the master could not have gone to any other port without forfeiting his insurance, the voyage is broken up, not by a vague apprehension of danger, but by a direct application of superior force, and the insured may abandon as for a total loss. Vigers v. Ocean Ins. Co. (1838) 12 La. 362, 32 Am. Dec. 118.

The turning back of a vessel by a blockading squadron under pain of capture and condemnation is a loss by detention within the meaning of a warranty in a policy of insurance on goods "free from British and American capture and detention." Wilson v. United Ins. Co. (1817) 14 Johns. 227.

The terms of insurance against arrest, restraint, and detainment embraced a case where the port of destination is actually blockaded. Schmidt v. United Ins. Co. (1806) 1 Johns. 249, 3 Am. Dec. 319.

A vessel within a port blockaded after the commencement of the voyage and prevented from proceeding on it sustains a loss by a peril within that clause of the policy insuring against the "arrest, restraint, and detainment of Kings," etc., for which the insurers are liable. Olivera v. Union Ins. Co. (1818) 3 Wheat. 183, 4 L. ed. 365. The investment of the port in which the vessel is lying by a blockading squadron so effectually as to make it morally certain that the vessel will be captured should it leave port is a restraint of princes, or of men of war, within the meaning of the policy of insurance, it not being necessary to constitute a loss by this peril that actual physical force should be applied to the subject insured. Saltus v. United Ins. Co. (1818) 15 Johns. 523.

Where, by reason of the siege and complete investment of the city in which the goods are, it becomes impossible to forward them, there is a constructive total loss by restraint of Kings and princes within the terms of the policy, although there is no specific action on the goods themselves. Rodoconachi v. Elliott (1874) L. R. 9 C. P. 518, 43 L. J. C. P. N. S. 255, 31 Times L. R. 239, 2 Asp. Mar. L. Cas. 399.

But where insurance on goods is only against "unlawful" arrest, restraints, and detainments, the insurer is not liable for the breaking up of a voyage by a lawful blockade. Thompson v. Read (1820) 12 Serg. & R. 440. If a policy insures against "unlawful arrests, restraints, and detainments of all Kings, princes," etc., the qualification "unlawful" extends in its operation as well to "restraints and detainments" as to "arrests;" and in such case, a detainment by a force lawfully blockading a port is not a peril insured against by a policy containing a warranty of neutrality. M'Call v. Marine Ins. Co. (1814) 8 Cranch, 59, 3 L. ed. 487. The stopping of a vessel by a blockading squadron, by the commander of whom it is directed to proceed to the port from whence it came, on penalty of seizure and condemnation, is not covered by insurance against "unlawful arrest, restraint, and detainment of all Kings, princes, or people of what nation, condition, or quality whatsoever." Patterson v. Marine Ins. Co. (1822) 5 Harr. & J. 417.

Since a blockade does not, according to modern usage, extend to a neutral vessel found in port, nor prevent her coming out with the cargo which was on board when the blockade was instituted, the restraint to which a neutral vessel prevented by the blockade from leaving port is subjected is an unlawful one within the meaning of a policy of insurance against unlawful restraint. Olivera v. Union Ins. Co. supra. On this point it was said by Marshall, Ch. J.: "What, then, according to common understanding, is the meaning of the term 'restraint? Does it imply that the limitation, restriction, or confinement must be imposed by those who are in possession of the person or thing which is limited, restricted, or confined; or is the term satisfied by a restriction, created by the application of external force? If, for example, a town be besieged, and the inhabitants confined within its walls by the besieging army, if in attempting to come out they are forced back, would it be inaccurate to say that they are restrained within those limits? The court believes it would not; and, if it would not, then with equal propriety may it be said, when a port is blockaded, that the vessels within are confined, or restrained from coming out. The blockading force is not in possession of the vessels inclosed in the harbor, but it acts upon and restrains them. It is a vis major, applied directly and effectually to them, which prevents them from coming out of port. This ap

pears to the court to be, in correct language, 'a restraint' of the power, imposing the blockade, and when a vessel, attempting to come out, is boarded and turned back, this restraining force is practically applied to such vessel."

In 17 Laws of England (Halsbury) 439, it is said that English law, in holding that although interdiction of commerce, or blockade of the port of destination, or an embargo imposed there, or the imminent danger of capture or seizure, prevent the completion of the insured voyage, the loss of voyage and the expenses thereby occasioned are not considered to be caused by an "arrest, restraint, and detainment," nor by any other peril insured against, because they do not act directly and immediately, but only circuitously on the subjectmatter insured,-differs from that which prevails on the continent of Europe.

Whether a blockade is actual or only constructive, or whether it is unduly restrictive of the rights of neutrals, is immaterial as between the parties to a contract of insurance. The effect is the same whether the blockade is or is not authorized by the laws of war, because the danger to the assured is the same and arises from the same cause,the act of one of the powers at war. Richardson v. Maine F. & M. Ins. Co. (1809) 6 Mass. 102, 4 Am. Dec. 92.

An insurance "against all risks, blockaded ports excepted," nevertheless covers a vessel sailing ignorantly for a blockaded port, the exception being, not of the port, but of the risk of capture for breaking the blockade, and a vessel sailing in ignorance of the blockade not being liable to capture by the law of nations. Yeaton v. Fry (1809) 5 Cranch, 335, 3 L. ed. 117.

A clause in a policy of marine insurance that "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," extends to every loss happening by reason of a blockaded port, and the court cannot inquire whether the belligerent was strictly justifiable in condemning the property insured for a violation of the blockade. Radcliff v. United Ins. Co. (1810) 7 Johns. 38, s. c. on subsequent appeal, 9

Johns. 277.

A clause in a policy of insurance on freight that "the assured shall not abandon in consequence of the port of destination being blockaded, but the vessel shall in such case have liberty to proceed to another port not blockaded, and there end the voyage, or wait a reasonable time for the blockade of the original port of destination to be raised," does not, where a blockade is one of the risks not taken by the insurer, authorize the insured to break up the voyage from an apprehension that the cargo may be injured by hot weather while waiting for the raising of the blockade. Marks v. Louisiana State M. & F. Ins. Co. (1843) 3 Rob. (La.) 454.

b. Interdiction.

If the port of destination has been absolutely interdicted so that the prosecution of the voyage to its conclusion has become impracticable, or been attended with a moral certainty of danger and loss, it will be considered as equivalent to the existence of a vis major in breaking up the voyage. Craig v. United Ins. Co. (1810) 6 Johns. 226, 5 Am. Dec. 222.

In Sanday v. British & F. M. Ins. Co. [1915] 2 K. B. 781, 31 Times L. R. 374, 84 L. J. K. B. N. S. 1625, [1915] W. N. 185, 59 Sol. Jo. 456, where a cargo in a British ship en route to Germany, and contracted to be sold to Germans, was, upon the breaking out of war between Germany and Great Britain and the issuance of a proclamation prohibiting trading with the enemy, diverted to a British port, it was held that, the further prosecution of the voyage having become illegal, there was a constructive total loss covered by the words, "arrests, restraints, and detainments of all Kings, princes, or people of every nation, Kingdom, or quality whatsoever," in a policy of marine insurance thereon, though no force or violence was exerted. Swinfen Eady, L. J., however, dissented upon the ground that to constitute an arrest, restraint, or detainment within the meaning of the phrase as used in policies of marine insurance, it is essential that force should be actually present and ready to be immediately exercised if obedience be not accorded without its being actually exerted. The Law Journal (issue of May 1, 1915), in commenting editorially upon this decision said that while it seems to be a reasonable application of the principle that the insurance of goods is also an insurance of the adventure of bringing them to their destination, it is not altogether consistent with the series of cases decided at the beginning of the 19th century, of which Hadkinson v. Robinson (1803) 3 Bos. & P. 388, 7 Revised Rep. 786, is a good example, in which the courts invariably held that when the voyage was abandoned owing to an interdiction of commerce with the port of destination by reason of a blockade or embargo, the insured could not recover because the peril had not acted directly upon the property insured.

Any doubt as to the ultimate attitude of the English courts on the subject has, however, been set at rest by the affirmance of the foregoing decision by the House of Lords in British & Foreign Marine Ins. Co. v. Sanday (1916) 32 Times L. R. 266, in which Hadkinson v. Robinson, supra, is expressly distinguished. Lord Atkinson said: "The cases of Hadkinson v. Robinson (3 B. and P. 388) and Lubbock v. Raycroft (5 Esp. 50) are distinguishable from the present. In each of these cases the only deterrent was the risk of ultimate capture if the ships proceeded to their destination. The