YEATON v. FRY, 5 Cranch 335

March 13. Marshall', Ch. J. delivered the opinion of,the court as follows, yiz. The. material question in this case grows out of an exception in a .policy of insurance.

Theplaintiff insured a specified sum on the brig Richard, belonging to the defendant, “ at and front Tobago to one or more ports in the West Indies, and at and from thence to Norfolk and the .insurance is declared to be made against “ all risks. blockaded ports and Hispaniola excepted.’^ Thé Richard sailed from Tobago for Currafoa, which was 'then blockaded in fact, but the blockade was hot known at Tobago when the vessel sailed, nor was it known to the captain until he was. warned off by á British ship of wan He then sailed for Norfolk;' but ón his voyage Was captured by a French privateer, by whom the vessel was plundered 'to a considerable extent, and ordered to St.

Domingo for trial. The question is, whether this risk comes within the exception contained in the. policv. The counsel has considered the exception as a . Warranty; but the court cannot só consider it. The words, are the words of the insurer, riot of the insured; and they'take a particular risk out of the .policy which, but tor the exception, would be cora- ' prehended in the contract. What is that risk ?

Policies of. insurance are generally the most informal instruments which aré brought into courts of., justice; and there are no instruments which are more liberally construed, in order to effect the real intention of the parties, if that intention can be clearly ascertained.

In that part of the policy on which the present controversy depends, a few words áre given, to which others must be subjoined in order to complete the sense, and give a full description of.the risk against which the underwriters were unwilling to-insure.- These words are, “blockaded portá and Hispaniola excepted.” It is reasonable to suppose that a voyage to Hispaniola was not insured., The assuréd has notice of this, and if he sails for Hispaniola, the voyage is entirely at his own risk. Against the risks of such á voyage, whatever they may be, the underwriters will not insure.

It is a specified place,.excluded, by consent, from the policy. The perils attending the voyage áre understood, whether they arise from the sea, or otherwise, and aré all excepted* The motives for making the exception do not appear, nor' can they be inferred from the instrument. The plaintiff in error contends that the 'same reasoning applies, in its full extent, to the exception of blockaded ports; but the court does not think so.

Hispaniola is excepted absolutely from the policy; but other ports are within the terms, of the voyage insured, if they be not blockaded. 1 It is their character, as blockaded ports, which excludes them from the insurance. Their being excepted by this character is thought to justify the opinion, that it is the risk attending this character which produces the exception; and which is the risk excepted. The risk of a blockaded port, as a blockaded port, is the risk incurred by breaking the blockade. This is defined by public law.

Sailing from Tobago, for Curra^oa, knowing Curra^oq to be blockaded,, would-have incurred, this risk, but sailing for- that port, without such knowledge, did not incur it. The underwriter had no objection to a voyage to Currará, other than might arise, from its being blockaded. The dangers of the blockade, therefore, were the particular dangers which induced the exception, and it seems to the court that the exception, ought hot to be extended beyond them, if this be correct, the circuit court committed no error in refusing to, give the opinion which was required by the counsel on this point. .

The sentence in this case Is sufficiently authenticated to ,be received as evidence. Being a court acting under the law of nations, its proceedings-may be proved áccprding to the mode observed in the present case; and were this doubtful, that doubt would be removed by the circumstance that it is .the form stipulated by treaty. The defendant is not pt liberty to -except to his own depositions, because he does not produce proof of his having given notice to the plaintiff.

The admission of notice by the plaintiff is certainly sufficient,-if notice to. him was necessary, to enable him to use the defendant’s deposition. The fourth bill of exceptions depends op the principles stated by the court, in the first part of this opinion. There is no error in the judgment of th’e circuit court, and it is affirmed, with costs.