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of security on 8th May, the vessel was virtually restored to the owners, and in perfect safety; and was known so to be by the owners. As therefore, no loss existed at the time of the action brought, the plaintiffs could not recover; for they argued that the state of the loss at that time was the rule.

4. That though not before action brought, yet as before plea pleaded, the vessel had arrived in safety at the port of her des. tination, had performed her voyage and had earned her freight, the plaintiffs had no right to recover.

Ingersoll, Hopkinson & Tilghman for the plaintiff argued: 1st. That the capture of the Manhattan by the Busy William was not an exercise of the acknowledged right of search, but a capture as prize. Her crew was taken out; British officers and seamen put on board; she was sent to Bermuda and libelled as prize. The plaintiff was therefore authorized to abandon on the 2d March.

2. The state of the loss at the time of the abandonment is to decide the right of recovery. By the abandonment, the proper. ty is devested from the insured and vested in the insurer; and a subsequent order of restoration restores it not to the former owners, but to the underwriters. As therefore there was a loss at the time of the abandonment, the plaintiff may recover.

MARSHALL, Chief Justice, delivered the opinion of the court. After stating the case he proceeded in substance as follows:

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

2. Have any circumstances since occurred to affect their right?

To give a right to abandon there must have existed a total loss by one of the perils insured against, either real and absolute, or legal and technical. A capture by one belligerent from another constitutes a technical total loss, and gives an immediate right to abandon, though the property may afterwards be restored. So too of an embargo or detention by a foreign friendly power. On general principles and on analogy there is

out and two British officers and 15 sailors put on board, and she was ordered to Bermuda. On the same day, the mate was put, by the captors, on board a vessel bound for New-York, where he arrived on the 26th February. The owners being informed of the capture, on the 2d March claimed a total loss by reason of the capture, and offered to abardon. On 2d April, payment was demanded of the office and refused. On 6th June, the action was brought.

The vessel after being carried into Bermuda was libclled as prize. On 20th April, vessel and cargo were acquitted and restitution ordered. From this sentence, so far as respected the cargo, the captors appealed, which appeal is still undecided. The cargo was ordered to be delivered to the owners on their giving security. On the 8th May security was entered, and this was known to the owners before action brought; but the captain did not take actual possession of the ship till 11th June. The owners applied to the office for counter-security, which was refused.

The question referred by the case to the court was, Whether the plaintiff be intitled to recover for a total loss?

Rawle and Lewis argued for the defendants, 1st. That the stopping of the Manhattan on the 10th February by the Busy William, and ordering her to Bermuda, did not constitute a loss so as to authorize an abandonment. It was not a capture by an enemy, but merely a stopping on the high seas of a neutral by a belligerent for search; and a sending in for further examination. As the abandonment was made on the information of this taking only, without any knowledge of the subsequent proceedings, as it was made for this cause only, as this cause did not authorize it, and as no other abandonment has been since made, the subsequent transaction cannot relate back so as to give the plaintiffs a right against the underwriters.

• 2. The mere institution of judicial proceedings against a neutral vessel, unless followed by condemnation, gave no right to abandon.

3. That though after the vessel was acquitted on the 20th April, an appeal was entered as to the cargo, yet by the entry

of security on 8th May, the vessel was virtually restored to the owners, and in perfect safety; and was known so to be by the owners. As therefore, no loss existed at the time of the action brought, the plaintiffs could not recover; for they argued that the state of the loss at that time was the rule.

4. That though not before action brought, yet as before plea pleaded, the vessel had arrived in safety at the port of her destination, had performed her voyage and had earned her freight, the plaintiffs had no right to recover.

Ingersoll, Hopkinson & Tilghman for the plaintiff argued: 1st. That the capture of the Manhattan by the Busy William was not an exercise of the acknowledged right of search, but a capture as prize. Her crew was taken out; British officers and seamen put on board; she was sent to Bermuda and libelled as prize. The plaintiff was therefore authorized to abandon on the 2d March.

2. The state of the loss at the time of the abandonment is to decide the right of recovery. By the abandonment, the proper. ty is devested from the insured and vested in the insurer; and a subsequent order of restoration restores it not to the former owners, but to the underwriters. As therefore there was a loss at the time of the abandonment, the plaintiff may recover.

MARSHALL, Chief Justice, delivered the opinion of the court. After stating the case he proceeded in substance as follows:

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

2. Have any circumstances since occurred to affect their right?

To give a right to abandon there must have existed a total loss by one of the perils insured against, either real and absolute, or legal and technical. A capture by one belligerent from another constitutes a technical total loss, and gives an immediate right to abandon, though the property may afterwards be restored. So too of an embargo or detention by a foreign friendly power. On general principles and on analogy there is

no difference between the capture by a belligerent from a belligerent and from a neutral. In both it is made with a design to deprive the owner of the property. A distinction has not been taken in any adjudged case in England, and the best general writers arrange them in the same class. [The learned judge then went throughan examination of the English authorities and cases and concluded the first point as follows.] Itistherefore the unanimous opinion of the Court, that where, as in this case, there is a complete taking at sea by a belligerent who has taken full possession of the vessel as prize, and continues that possession to the time of the abandonment, there exists in point of law a total loss; and the act of abandonment vests the right to the thing abandoned in the insurer, and the amount of the insurance in the insured.

2d. The insured in this case has done nothing subsequent to his offer to abandon which can be considered as a relinquishment of the right vested in him by that act. Does the release and return of the vessel deprive the insured of his right to resort to the insurers for a total loss which he acquired by the abandonment? This point has never been settled in England. In Hamilton v. Mendez, Lord Mansfield leaves it undecided whether the state of loss at the time of abandonment, or at the time of action brought, or at the time of the verdict, shall fix the right to recover for a partial or a total loss. A majority of the judges are of opinion, that the state of the loss at the time of the abandonment must fix the right of the parties to recover in an action afterwards brought; and the judge who doubts respecting it, is of opinion, that in this case countersecurity having been refused by the insurers, the question of freight is yet suspended. It is therefore the unanimous opinion of the Court, that the plaintiff in this case is intitled to recover for a total loss.

Supreme Court of the United States.

FEBRUARY TERM, 1808.

Hudson, Smith and Thomas v. Peter A. Guestier.

FOREIGN SENTENCE-JURISDICTION. If a vessel be seized for a violation of a municipal law, the manner of instituting legal proceedings against her must be exclusively regulated by the sovereign power of that country whose laws she has violated: and no foreign court can inquire into the correctness of a condemnation passed in consequence of the seizure, unless the court by which the adjudication has been made lose its jurisdiction, by some circumstance which the law of nations can notice. The court of the captor does not lose its jurisdiction of the case in

consequence

of the captured vessel being carried into a port of a neutral power, because she is there in such a place of safety that a sentence of condemnation can be passed according to the law of nations.

Opinions delivered by the Court.*

MARSHALL,

Chief Justice. This case differs from that of Rose v. Himely, * in one material fact. The vessel and cargo, which constitute the subject of controversy were seized within the territorial jurisdiction of the government of St. Domingo, and carried into a Spanish port. While lying in that port, proceedings were regularly instituted in the Court for the island of Guadaloupe, the cargo was sold by a provisional order of that Court, after which the vessel and cargo were condemned. The single question therefore which exists in this case is, did the court of the captor lose its jurisdiction

* This and the following case were argued together. The opinions are taken from a copy certified by the clerk of the Supreme Court.

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