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U.S. Supreme Court

Olivera v. Union Insurance Company, 16 U.S. 3 Wheat. 183 183 (1818)

Olivera v. Union Insurance Company

16 U.S. (3 Wheat.) 183


A vessel within a port, blockaded after the commencement of her voyage, and prevented from proceeding on it sustains a loss by a peril within that clause of the policy insuring against the "arrests, restraints, and detainments of Kings," &c., for which the insurers are liable, and if the vessel so prevented be neutral, having on board a neutral cargo laden before the institution of the blockade, the restraint is unlawful.

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.

A technical total loss must continue to the time of abandonment. Quaere as to the application of this principle to a case where the loss was by a restraint on a blockade, and proof made of the commencement of the blockade, but no proof that it continued to the time of the abandonment.

Page 16 U. S. 184

On 29 December, 1812, the plaintiffs, who are Spanish subjects, caused insurance to be made on the cargo of the brig called the St. Francis de Assise "at and from Baltimore to the Havana." Beside the other perils insured against in the policy according to the usual formula were "all unlawful arrests, restraints, and detainments of all Kings," &c. The cargo and brig were Spanish property and were regularly documented as such. The vessel sailed from Baltimore and was detained by ice till about 8 February, 1813, when, being near the mouth of the Chesapeake Bay, the master of the brig discovered four frigates, which proved to be a British blockading squadron. He however endeavored to proceed to sea. While making this attempt he was boarded by one of the frigates, the commander of which demanded and received the papers belonging to the vessel, and endorsed on one of them the words following:

"I hereby certify that the Bay of Chesapeake and ports therein are under a strict and rigorous blockade, and you must return to Baltimore, and upon no account whatever attempt quitting or going out of the said port."

The brig returned, after which the master made his protest and gave notice to the agent of the owners in Baltimore, who abandoned "in due and

Page 16 U. S. 185

reasonable time." The underwriters refused to pay the loss on which this suit was brought. It appeared also on the trial that the vessel had taken her cargo on board and sailed on her voyage before the blockade was instituted. On this testimony the plaintiff's counsel requested the court to instruct the jury that if they believed the matters so given to them in evidence, the plaintiffs were entitled to recover. The court refused to give this instruction, and the jury found a verdict for the defendants, the judgment on which was brought before this Court on a writ of error.

Page 16 U. S. 188

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