Andrew Vos and John Boonen Graves, against The United Insurance Company, 1 Cai. Cas. vii

Kent, J. On these facts two questions arise: 1. Will a voluntary attempt by the captain to break a blockade be sufficient to destroy the right of recovery on the policy ? 2. If it will, is there the requisite evidence in this case of that attempt? In answer to the first question, I am of opinion that such an attempt takes away from the assured his right to recover; for he can never be allowed to indemnify himself upon an innocent party, from the consequences of his own want of skill, or from his negligence or folly.

The act of the master must be referred to his principal, who appoints him.; and whenever a loss happens through the master’s fault, unless that fault amount to barratry, the owner, and not the insurer, must bear it. It is a fault in the master, to occasion a loss of property, from his carelessness or want of competent skill;' and much more is it the case, if he ■wilfully occasion that loss, as by resisting search, breaking a blockade, &c.

He is charged with a discreet aud faithful execution of his trust, and it is against his duty to expose the property unnecessarily to risk, either-from natural perils, or from perils arising from the violation of .his neutrality. It is a pointmot to be disputed, that an attempt knowingly to break a blockade, is a violation of neutral duty, and occasions a forfeiture of the property, and it cannot be supposed, unless it be so expressed, that the insurer takes up» on himself such risk.

The risk of fault in the master (barraexcepted) is not a risk enumerated in the policy; and it would be very unreasonable, that the insurer should be holden beyond his express undertaking, for the fault or folly of the master, whom the insured selects and controls . In answer to the seconc^ question, I have no doubt in concluding, there is su£° ■•ficient evidence in the cáse of a wilful attempt by the captain ''to break the blockade' of Amsterdam.

This evidence results from the condemnation in the British court of admiralty, and ■ for the conclusive effect of that sentence, I refer to my opinion in the' causes of Vandenheuvel v. the United Insurance Company, and Church. There is also sufficient evidence, without resorting to the sentence. When the captain left Cruxhaven,'he sailed with the understanding that Amsterdam was a blockaded port; and he sailed also under the idea, that if he should meet with a British cruiser in his attempt to enter Amsterdam, he would, for the first attempt, be sent back, and not seized.

This appears by the testimony' of the mate, and it is sufficient to establish the fact of the blockade as against the plaintiffs (it being the admission of their master) until they re■pel it by direct proof to the contrary. But there is no such contrary testimony in the case. It would seem, indeed, to be implied, from some of the observations of Sir William Scott, which are thrown into the case, that winds had occasionally blown off or kept at a-distance, the blockading squadron, but at what precise time, or to what precise distance, does not ap«= pear.

We do not know, except by necessary deduction from the testimony of the mate, what was the actual state of the blockade, or how far the British cruisers were at the time in a situation to preserve it. Nor do we know the situation the "vessel was in, or her proximity to Amsterdam, when she was captured. The mate informs us only, that the master understood when he sailed from Cmxhaven, that Amsterdam was blockaded; that he sailed with an intent to attempt to enter it, and with the understanding that for his first attempt he would only be sent back, and that he was captured the day he sailed.

Alow near he had approached the coast of the Vlie and Texel, A/e do'uot know. He might have reached the coast, for it is Vithin the reach of a day’s sail. Every reasonable conclusion that the admissions of their mate will warrant, is, however, to be drawn against the plaintiffs, so long as they furnish no "other proof to explain or repel those admissions.

My opinion accordingly is, that the existence of the blockade, wilful attempt of the master to break it, his capture while executing that attempt, and at no great distance from, if not in, the neighbourhood of the blockading port, are all necessarily to be inferred from the case, and that judgment ought, therefore, to be given for the defendants.

Radcliff, J. ’ On the 21st June, 1798, the date of the policy, neither party knew of the investment of Amsterdam, and this excludes the idea, that, by any special agreement or understanding, the insurance could have been meant to extend to any peril, for breach of the particular blockade in question, if any existed. 1st. It is a settled rule, that the insured, in ■order to comply with his warranty, -must not only maintain the property to be neutral, but so conduct himself towards the •belligerent parties, as not to forfeit his neutrality: he must pursue the conduct, and preserve the character of a neutral.

This being the import of the warranty7, and the condemnation being founded on a breach of neutrality, it operates to preclude the plaintiffs, on the principles adopted with regard to the effectjof foreign sentences, in the case of Vandenheuvel v. -the United Insurance Company. -2d. In the present ease, thé ■plaintiffs, before the vessel sailed from New-Yorlc, to wit, on the 27th June, in consideration of law, had notice of the blockade. This appears by their letter to the defendants of that date.

Although the information was not then certain, it was sufficient to excite serious apprehensions, and to put them on their guard, which, in judgment of law, js deemed competent notice . The captain, however, before he sailed from Cruxhaven, had actual notice of the blockade; and there can be no doubt but the plaintiffs are liable for his acts. He sail- ' ed with the professed intent to evade it, if an opportunity ■ should offer, but under an idea that, by the treaty of 1794, he was entitled to notice to desist, and to be sent back on the first attempt.

The provision in the treaty on the subject, it is obvious, cannot apply to a case where the party already possesses the requisite information. This is the rule in all cases where -a. party is to be affected by notice. But it is objected, that the captain was not in the act of breaking the blockade ; that it existed merely in intention, and he was therefore not liable to seizure. If this idea be correct, then no such capture can be lawful, until the line of blockade be actually invaded.

The resolution may be formed and acted upon, and no progress in the execution of it can be stopped or prevented till the breach . be made. A construction so forced and limited, appears to me inconsistent with an effectual exercise of the right. It may be difficult to define its precise extent, but it is more reasonable to adopt the rule, that the besiegers are entitled to take preventive measures ; and that, where the resolution to break a blockade is formed, and begun to be executed, within a reasonable distance to render it practicable, the offence is incurred, and the party liable to seizure.

Such was the case in the present instance. From the testimony of the mate, as well as from the sentence, it appears, that an actual blockade was understood at the time to exist; as a fact, it seems not to have been questioned. But the particular situation of the blockading force does not appear, nor do I think it material. Although the party may have intended to avail himself of an accidental interruption, occasioned by winds and tempests, this intent will not excuse him, for such interruption cannot be considered as destroying .the existence of the blockade.

At least, if he attempt to enter, under such circumstances, it is at his peril, and he subjects himself to the hazard of seizure and confiscation. I think the reasoning of Sir William Scott, whose opinion is contained in the sentence annexed to the case, is satisfactory, and that the sentence on the merits was right, and of course that the plaintiffs have forfeited their neutrality, and ought not to recover on the policy, admitting the sentence open to investigation.

Neither is he entitled to recover the premium, because the risk had actually commenced, and the warranty was forfeited by a subsequent breach of neutrality.

Against this judgment, on behalf of the plaintiffs in error, Brockholst Livingston argued that it was erroneous, because the defendants assumed every risk attached to an attempt to enter a blockaded port; because the condemnation of the high court of admiralty of England is manifestly unjust.— The defendants understood the Columbia was going to a port ■supposed to be in a state of blockade, and therefore insured the plaintiffs against a seizure and condemnation on that, as well as on any other account. This appears from the policy, from the additional premium, and from the correspondence.

The policy is to Amsterdam. This was effected without suspicion of a blockade. The risk, therefore, as to the future state of that city, fell upon the assurers. If news of the blockade had been received the next day, the plaintiffs were not bound to break up the voyage. The insurance being at and from New-York, the underwriters could not be compelled to refund any part of the large premium which was" paid.

The plaintiffs, thus circumstanced, were not obliged to unload their vessel, or be at the expense of a new insurance to another place; without saying a word, they might have gone on, and if taken, even in an attempt to enter, the defendants must have paid. Thus a merchant who, in peace, warrants his property neutral, does not insure against future events, or engage the goods shall so continue the whole voyage. If war break out the next day, he is still covered .

The insurers, in the words of Lord Mansfield, “ take upon themselves all future “ events and risks, from men of war, enemies, detention of “ princes, &c. &c.” An insurance to a blockaded port is not within the description of unlawful contracts. The laws of the United States do not prohibit such commerce. If publicly known that an American vessel was going to a port in that state, no measures would be used to stop her, nor would a seizure or forfeiture in this country follow.

The law of nations permits the same thing, but the vessel may'be seized as prize, by the surrounding squadron, if taken in an attempt to enter. By this is intended, that the law of nations attaches no illegality to the bare inception of such a voyage, unaccompanied by a subsequent attempt to enter. If it be true, that after the report of a blockade reached New-York, the plaintiffs' might have proceeded without saying any thing to the company, their case is greatly fortified. The increased premium which was exacted of them, shows a blockaded port was contemplated.

The assured, with good faith, and to avoid a greater risk to the other party, than may at first have been designed, immediately announce to them the intelligence of a probable blockade—and ask permission to direct the Columbia to touch at Hamburgh. This became necessary to prevent a deviation.

Here was an opportunity afforded to the underwriters of offering to cancel the policy, or of consenting to the vessel’s going to Hamburgh, which was in the way, and voyages to which, appear by the verdict to have been effected at exactly the same premium.—One would think they would gladly embrace a proposal so reason- and be relieved from the risk of the Columbia’s going to Amsterdam.

No : They are perfectly satisfied with the contract as it stands, and will not consent to any alteration, without an additional premium of two and a half per cent, which, not to incur the consequences of a deviation, the plaintiffs allow. This was emphatically declaring on the part of the underwriters, that they preferred the risk to Amsterdam, blockaded or not, to the Columbia’s going to Hamburgh, which' they would only permit for a farther consideration. The policy was varied accordingly, and the insurance then continued to Amsterdam, with permission to touch at Ham-burgh.

Is it not strange, that altho’ the defendants were now fully apprized that Amsterdam was supposed to be blockaded, they leave the policy in that respect as it first stood, and make no objection to that part of the voyage ? It may be answered, that they contemplated a termination of the voyage at Hamburgh, should its continuance to Amsterdam be attended with danger. It is unfortunate that the

interpretation of a policy is not, as of other instruments, to be collected from its own expressions. Recurrence is constantly had to letters, conversations, representations by brokers, and other matters; so that a contract for insurance is frequently converted into a heterogeneous compound of parol and written stipulations, the one in direct variance with the other—and the policy, which should be our guide, and is by itself perfectly intelligible, is involved in impenetrable obscurity by the addition of much extrinsic matter.

But if the plaintiffs’ letters, altho’ not a line of them be inserted in the policy7, are a part of the contract, they leave it optional with the plaintiffs to proceed to Amsterdam, in case their friends should think it not dangerous. This was leaving the right of the assured, to proceed, entirely at the discretion of a third party, which, if abused or improvidently exercised, could not affect them. It is not found, and therefore is not to be presumed, that their friends did think such a continuance of the voyage dangerous. The probability is the other way.

The friends of the assured, no doubt, thought there was no danger, or they would have ordered the vessel to Hamburgh and handsome commission. If they really thought it and still sent the vessel on, the underwriters are liable, for they reposed themselves on their discretion. If we consult the policy, nothing is said about the opinion of the plaintiffs’ friends, altho’ such stipulation might have been inserted in one line. The option is here left to the insured without any reserve or qualification. They may end the voyage, if they please, at Hamburgh. In that case they are to be refunded two and a half per cent.

If the brig proceeds, the company retain the whole premium. Here then were two and a half per cent, given, for the voyage between Hamburgh and Amsterdam, and when we are taken in performing that part of it, we are refused payment. The defendants should have inserted in the policy an express stipulation, that the voyage should end at Hamburgh, if a blockade existed. Having omitted so to do, they are too late to say they did not mean to assume every risk produced by such a state of things.

It is important to show, that Messieurs Vos and Graves were entitled to proceed to Amsterdam, blockaded or not, because then the sentence, of which thus far they are the victims, just or unjust, cannot affect them. This step was illegal in them, as it respected the defendants, or they cannot suffer by the condemnation. If their contract has not been violated, the underwriters must bear the consequences of the confiscation. We proposed, however, to examine the decree, which we conceive unjust,5and therefore not binding as between the present parties.

The property was condemned for “ a breach of blockade,” and reasons are assigned at some length. It is with reluctance I can bring myself to animadvert on a judgment proceeding from a source so pure and intelligent. No one holds in higher estimation the talents and integrity of the eminent character who delivered it, or more admires the bold, eloquent, and yet perspicuous language in which his opinions are uniformly given.

In the cases decided by Sir William Scott, the mind finds relief from the fatigue and disgust which it contracts by a review of the iniquitous conduct of other Admiralties, which present one uninterrupted scene of rapine and oppression. But without pretending to derogate from his character or abilities, I cannot think the condemnation of the Columbia authorized by the Law of Nations, or the Treaty received a dangerous, between the two countries. It will not be denied that an attempt to enter a blockaded port is prohibited to neutrals. Such interdiction is inevitable.

Blockades would become idle ccremonies, were all the world permitted, as at other times, to the harbour, and succour the besieged. The investing foe therefore is permitted to interrupt such entrance, and to confiscate property taken in the attempt. But this being a right, in restriction of those of neutrals, who are to suffer as little as possible by the hostilities of others, ought not to be enforced, unless where a blockade actually and completely exists. If the squadron be accidentally absent, or blown off, neutrals are restored to their rights, and exempt from the penalty, which in the other case they incur.

Who can say the fleet will ever return, or the blockade be renewed ? If a neutral can take advantage of this temporary suspension of the blockade, whether produced by necessity or choice, he should not suffer for the attempt. If the blockade be raised, whether by the appearance of a more powerful foe, or by the act of God, it no longer continues, and the port becomes open to all the world.

If superior force confers a right to impose on neutrals this restraint, they in turn, without any imputation of fraud, are restored to the privilege of a free trade, the moment the ships are removed, and have a right, if they can, to take advantage of such removal. The Columbia, it will be remembered, was captured by a vessel not belonging to the blockading division. Where the squadron was at this time, whether blown off or not, does not appear; at any rate, it will be allowed, that Sir William Scott’s

interpretation of this right, as it respects neutrals, is very rigorous. But, without combating this construction, we say, the Columbia ought not to have been forfeited. To justify a confiscation for breach of blockade, there should be—notice of its existence—an attempt to enter—and, under the British treaty, a turning away, and a second attempt to go in. Sir William Scott admits the necessity of a notice, and a warning not to enter.—Rob: Rep: 124. What then shall amount to notice ? Will a mere report justify a master, who has signed ■ bills of lading for one port, in going to another ?

Suppose his information incorrect, and a loss happen, will it not be a deviation ? Would not the owners and shippers in that case lose their insurance, and he be responsible to both ? The obstinacy of a Danish master, in the case of the Henrick and Maria, mentioned in the first volume of Robinson’s reports, evinces what was his sense of duty in a similar emergence. Being warned by an English ship not to go to a Dutch port, he answered, that “ he must proceed according to his bilk “ lading, that he could not answer to his owners to go to any “ place but Holland.” In our case no such warning is pretended.

It is admitted by the Judge, that the Columbia left America “ with innocent intentions on the part of the owners; “ for, says he, it was not known at that time in America, “ that Amsterdam was in a state of investment, and there- “ fore there is no proof immediately affecting the owners.” After this concession, we contend that nothing short of being turned away, could justify the captain in not proceeding to Amsterdam. A contrary rule would lead to great embarrassment, and put it in the master’s power to break up a voyage on light rumours, or very imperfect accounts of a blockade.

If aught, short of actual turning away, be sufficient, it should be settled with precision, what species of notice or information, shall justify a captain in going to some other port ? Whether such notice must proceed from one of the blockading ships, or may come from any other quarter ? Whether such an interruption will justify an abandonment to the underwriters ? And who is to sustain the loss, the merchant or assurer, in case none or a bad market offers at the port into which the vessel is compelled to go?

To avoid these difficulties, it is settled that nothing short of at attempt to enter justifies a seizure. “ If Í lay siege to a place, or only “ form the blockade, says Vattel, I have a right to hinder a any one from entering, and to treat as an enemy whoever “ attempts to enter the place, or carry any thing to the be- “ sieged without my leave.” Vattel, Book III. chap. VIII. Sect. 117. A mere intention, or sailing with such view, is not sufficient—an intention to commit an offence is not punishable.

Sir William Scott incautiously considers, “ the sailing “ with an intention of evading a blockade, an overt-act, con- “ stituting the offence.” It would be quite as correct to term a preparation of poison, with an intent to kill, an overt-act murder. As in the latter case, remorse or fear may arrest the career of the' assassin; so in the other, if the blockade found to exist, when the vessel approaches, the master may change his course without infringing on the rights of the enemy. It is important that Sir William Scott admits the of-fence here, consisted only in intention. An attempt to enter, is not pretended.

This also appears from the verdict. The seizure was made on the very day of the Columbia’s departure from Cruxhaven. The distance thence to Amsterdam does not appear. If it be once granted that a vessel, the moment of weighing anchor, with an intention of going to a blockaded port, may be seized, as was done here, where are we to stop ? If it be rumoured in New-York, that Calcutta, Batavia, or the Isle of France, be' in a state of blockade, shall no vessel in the United States laden for either of those ports, setisail until its termination be formally announced?

What injury is done to the powers at war, if a hundred of our vessels sail with an intention of going thither, and yet turn away, if the coast be not free ? The fleet are stationed there to prevent vessels from entering. If none attempt to pass, the object of the blockade is accomplished. The Columbia’s intention to go up the Texel would not injure the British. If they Were at its mouth, they would obstruct her course. If not there, they had no cause to complain. The captain certainly had no design to persist, if a blockade existed.

Take his intentions collectively, instead of forming the overt-act which has been mentioned, they bespeak a perfectly innocent conduct on his part. If the fleet had disappeared, from whatever cause, before his arrival, with great deference, I should not think it very criminal in captain Weeks to have gone to Amsterdam. The law of nations did not require him to cruise .off the Texel, to ascertain whether the blockade would be resumed. But the master knew of the blockade when he left Cruxhaven.

True; and “ he and all the Americans there, “ understood it to be the practice of British cruisers to stop “ vessels bound thither, and send them back, and only to “ seize in case of a second attempt to enter, and under this “ idea it was, he sailed for Amsterdam.” Nothing blameworthy can be inferred from this conduct. As .it regarded the underwriters, he had a right to go to Amsterdam, altho’ blockaded ; such being the true understanding of the parties, as is confirmed by the several insurances which were effected in New-York, after it was known the investment of that place was formed.

From this may be collected the sense of our merchants on a point which has been decided with so much severity against them. Their understanding is, that sailing with an intent to go to a blockaded place, is no cause of forfeiture. As it respected his owners, it was the masters duty to be better informed than he was at Cruxhaven, of the situation the Texel. The reports there might be ill-founded. As the voyage did not begin there, he was right in going on. As it concerned the British, no wrong would be done to them. The squadron, if there, could easily send him away. If not, their rights could not be impaired.

By the British Treaty, captain Weeks was authorized to act as he did. He should have been turned away, and not seized until he made a second attempt. This was his conception of the Treaty, and it was accurate. Altho’ the obligation of such warning be confined to vessels, whose masters knew nothing of the blockade at the time of sailing, yet as the nature of this knowledge or notice is undefined, it is the safer construction to say, that no report or any information short of a formal notification to foreign ministers, which usually takes place, shall be deemed sufficient. But, rejecting this

interpretation, it is not alleged that the owners knew of the blockade when the Columbia sailed from New-York. The contrary is admitted by Sir William Scott. This then being the inception of the voyage, brings her case within the letter of the Treaty, so that nothing short of a warning, and a second attempt to enter, should have exposed her to confiscation. I forbear to make any remarks on the conclusiveness of this sentence, as between the parties to this suit. As to its direct effect on the vessel and goods, it is and will remain so.

Were the Columbia and her cargo now lying in the harbour of New-York, the former owners could not touch them. The purchasers under the decree would be protected. This is going far enough, and all that is intended by paying respect to foreign judgments. But in relation to the assured, and assurers, who were no parties to the litigation in the court of Admiralty, and who submitted, if at all, ex necessitate, to its jurisdiction, this court will be compelled, in order to do justice between them, to examine the grounds of their sentence.

The object of the inquiry will be, not to reverse it, to which this tribunal is incompetent, nor to disturb any rights acquired under it, which would be improper, but to ascertain how far the causes assigned were just, and if so, how the condemnation is to affeet the present question. If captain Weeks had a right to do what he did, then this sentence is unjust, and instead of a defence, it forms another item or link in our proofs of loss. if the sentence consist with the law of nations, still we say the underwriters are liable, because they insured us against every risk attending a voyage to a blockaded port.

When the reasons of a sentence appear, a foreign court will ever review them. This is a rule so intelligible and fraught with so much plain and common sense, as to be liable to no misapprehension. It may be obscured, as often happens, but cannot be illustrated, by an anxiety to amplify and elucidate. It is not like the doctrine of a silent foreign sentence, being conclusive between parties to a policy in cases of warranty, which now also awaits its doom in this honourable court.

Not a hundred volumes—not all the lawyers in the Universe, can ever succeed in rendering such a position intelligible to men of common understanding. It requires a sublimation of genius, to comprehend one syllable of what is written or said on the subject. If Sir William Scott, in delivering this decree, had withheld his reasons, every one would have been compelled to conclude, as in the case of Goix and Low, that the Columbia was condemned as enemy’s property.

The judge having been more communicative than usual, we are relieved from the trouble of guessing, and the necessity of doing injustice, for in this case also, there was a warranty that the property was American, which is admitted by the decree, or the assured were inevitably gone. This court, we presume, will have no difficulty in examining the reasons assigned for this condemnation, and making up a judgment of their own on them. Suppose the Columbia had been condemned, altho’ an unarmed merchantman, “ as an

article contraband of war,” as was done with the Calliope by one of the West-India tribe; would this court hesitate to pronounce such a sentence a wicked departure from the law of nations, or to give the owner the full benefit of his insurance ? In a word, the plaintiffs contend that they had a right to go to Amsterdam, blockaded or not.. That if they had no such right, the master was not guilty of a breach of blockade. That he did only what was permitted by the lav/ of nations, and the British treaty, and that therefore in every point of view they are entitled to a reversal of the judgment of the supreme court.

Troup, contra, insisted the judgment ought to be affirmed. 1. Because, by the universal received law of nations, the entry of a blockaded port, or even the attempt to enter it, a knowledge of its being- blockaded, is a just ground for confiscating the cargo, as well as the vessel, where they both belong to the same owner. 2.

Because, it cannot be presumed to have been the intent of the parties, that the insurance in question should be made to Amsterdam, as a blockaded portj for if such had been their intent, it must have been accompanied at least with an implied licence from the defendants in error, to the plaintiffs in error, to attempt to break the blockade, at the risk of the defendants in error, if a state of things should be found to favour the attempt; and it will be contended, that under such circumstances, the insurance was void in its commencement, as being contrary to law. 3.

Because, supposing- the insurance was not intended to be made to Amsterdam, as a blockaded port, the attempt by the master of the Columbia to break the blockade, in pursuance of discretionary orders given to him for the purpose, by the plaintiffs in error, who were the owners of the vessel, is not one of those acts of the master, for which the defendants in error are liable in damages to the plaintiffs in error. 4.

Because, it clearly results from the facts stated in the record in this cause, that Amsterdam was a blockaded port; and that the master, with full notice of its being so, attempted to break the blockade. And it will be argued in behalf of the defendants in error, that such attempt of the master has discharged them from all responsibility to the plaintiffs in error. Per curiam. The question in this cause is, whether the sailing of the brig Columbia from Cruxhaven with a destination for Amsterdam, and an understanding that it was blockaded, is a breach of the blockade, and legal cause of capture and condemnation ?

The question may be qualified, perhaps, with the addition of an intention to enter the Texel, in the event only of the blockading squadron being blown off the coast, so as to leave the port in fact open for entrance. There is nothing in the verdict, or the assumption of facts by Sir William Scott, as the grounds of his determination, to warrant the conclusion of an attempt to break the blockade, any farther than the same is supported by proof of a sailing from, Cruxhaven for Amsterdam.

Upon fundamental principles, on which our municipal code of criminal law is established, intention, with some very peculiar exceptions, is not made the subject of judicial animadversion. That the moral law, which arraigns intention, should be adopted in the law of nations, with a greater latitude than in our municipal system, is a subject of some surprise, especially when the application is for the benefit of belligerents, and to the prejudice of neutrals.

In intention, there is nothing certain and permanent; it is controlled by every reflection; is changed, dropped, and renewed, by the occurrences of every hour; by the constant vicissitudes to which the agent is subject; the enterprise, on a nearer view, appals ; the locus penitentiae is embraced.—If there is an inception of the undertaking, by advances towards the theatre of action, (as the sailing from Cruxhaven in this instance) how wide a space yet intervenes !—to the dominion of how many various causes is the intention subject, before the act could be completed! the information of every hour may change the destination; the receipt of counter-instructions from the owner may arrest further progress ; the perils of the sea overwhelm ; the information received at Cruxhaven that induced the sailing, may be contradicted ; and lastly, before the vessel may arrive on the line of investment, the blockade may be, by instructions from the admiralty, withdrawn, or raised.

The rule that the sailing with a destination for a blockaded port, is a breach of blockade, as urged upon the court, is undefinable in relation to distance between the port of departure and that of destination, and will produce great uncertainty and vexation.

Nothing is to be found in the verdict or facts stated, or assumed in the sentence of the admiralty, from which to infer the progress of the brig from Cruxhaven to the Texel; Sir William Scott meets her at the threshold, at the port of departure, and pronounces the sailing with an intention of evading the blockade, to constitute the offence: these are his words. It is fairly presumable, that the ground thus taken by the judge, corresponded with the proof, was as broad as the evidence would justify. The record in the cause presents no fact to warrant a contrary conclusion.

No inference is to be made from the plaintiffs’ communication by letter of the 3 Tíh June, that the defendants consented to an attempt to enter a blockaded port, as that letter closes with the observation, that the blockade might probably be withdrawn before the arrival of the vessel. Therefore quite the contrary is rather to be supposed. It is unnecessary to give an opinion on the case of an actual attempt to enter a port during the interruption of the blockade, by reason of the blockading squadron being blown off; as, in this case, no such attempt was made, nor is the fleet found to have been so blown off.

It is therefore the opinion of the court, that there is no authority of precedent binding on it, to warrant the rule adopted by the admiralty sentence in this cause; that such rule is opposed to essential principles, uncertain in its application, and highly vexatious to neutrals; that the principle of the late treaty between England and Russia is more propitious to the interests of commerce, and sufficiently favourable to the rights of belligerents, and merits high respect from all neutral powers. Therefore the judgment below must be reverá» ed.

Millar, 136 to 144, 179 to 188. 2 Valin. 77. 79. 161. 650. 1 Atk. 490. 2 Fonb. 155. See Furtado v. Rogers, 3 Bos. & Pull. contra.