delivered the opinion of the court.. An objection was made to the-sufficiency of the preliminary proof which accompanied the offer to abandon. It was said that the protest of the captain was a necessary document which ought to have been communicated. It is a sufficient answer to this objection, that the abandonment Was made before the arrival of the ship at Nexv-York, and, consequently, before the plaintiffs were in possession of any protest.
The preliminary proof consisted of an affidavit of two of the plaintiffs, as to the interest, and of three letters of the captain, which contained the information of the warning given by a British cruiser, of the orders in council, of the cause of going into Gibraltar, and the subsequent leave to depart, and of the existence of the French and Spanish decrees. When the captain, after-wards, in his deposition, which was read upon the trial, assigns, as the reason for breaking up the voyage, the apprehension of capture, in going from Gibraltar to Barcelona, the danger must have been understood to arise from those decrees authorizing the capture. The variance was not essential, in substance, between the cause assigned in the deposition and in the preliminary proof, and if there be any variance, the party must undoubtedly be confined to that which was assigned to the defendants, as the justifiable pause of abandonment.
It becomes unnecessary for me to dwell upon this point, and I proceed to consider the important question, whether the existence and notice of these decrees, under the circumstances in which the ship was placed, at Gibraltar, when the <;aptain broke up the voyage, created a technical total loss within the policy.
The peril, if any, arising from the decrees, consisted either in the danger of capture, in the passage to Barcelona, or of seizure and confiscation after arrival there.
I have no idea that the apprehension of capture in, transititj between Gibraltar and Barcelona, afforded a *250justifiable ground of abandonment. That proposition is destitute of authority. It would lead to inconvenient and extravagant consequences, and confound all distinction between imaginary or apprehended danger, and danger present and palpable. In the cases cited by Emerigon, (tom. 1. 507 to 512.) in which a just fear of one of the perils insured against; was held equivalent to force majeure, and sufficient to charge the loss upon the insurer, the danger was imminent, apparently remediless, and morally certain. Targa says, that a just fear is a species of violence and justifies an abandonment of the ship; and Emerigon admits . the same thing. But the cases which are given, by way of illustration, explain what is meant by a just fear. It is a fear of being made a slave, or a prisoner, or of perishing in a case of extremity, or when defence Becomes impossible. Thus the barque Notre Dame des Reliques, in coming from Cahdia, was met and pursued by a Turkish vessel of war, and the captain and crew, to avoid capture and slavery, (for the vessel had been carrying- warlike stores to a place besieged by the Turks,') abandoned the vessel, and the insurers were finally, upon appeal, condemned to pay the loss. So, also, the Marie- Therese was stranded on the Barbary coast, and the crew, after labouring to relieve the vessel; abandoned her, for fear of being discovered by the subjects of the king of" Morocco, with whom France was then at war. The vessel afterwards floated, and was recovered, and the insurers were held responsible. for a proportion of the salvage. Again, the pink Jesus-Maria struck upon a rock, and the captain and crew, fearing to perish, escaped to the shore ; a flaw of wind afterwards relieved the, vessel, and she was conducted into port. This was held to be a case of just fear, and equivalent to the vis major, and the insurer was chargeable with the loss. On the other hand, a difieren decision was made in the ease of the St. Louis, (1 Emerig. *251594.) which being much injured by tempests, on a voyage from Marseilles to Martinique, put back to Marseilles, and was abandoned to the insurer, on the ground that the, ship returned from the fear of becoming alto-A gether innavigable, and of shipwreck. The right of recovery was denied; because the incompetency of the vessel had not been pronounced by the competent tribunal, and because the fear of misfortune was not the misfortune itself.
In Lubbock v. Rowcroft, (5 Esp. N. P. 50.) Lord Ellenborough held, that an abandonment, from an apprehension of capture, was not- warranted by the policy; and this principle has received the sanction of Judge Washington., in the case of King v. The Delaware Insurance Company. There cannot be much doubt as to the correctness of the general rule. The only difficulty consists in the application of it to different cases. In one of the cases already mentioned, the vessel was abandoned, from an apprehension of capture; but the danger was so near and so certain as to be equivalent to violence, and to justify the assured. I should doubt, also, of its application in the very case of Lubbock v. Rowcroft; for if it be discovered that the port of destination has fallen into the hands of an enemy, the danger of the voyage becomes imminent and certain. The voyage is broken up by actual £i restraint of princes.” It would be equally absurd and unlawful to pursue it. But, in the present case, the danger of capture, in transitu, was only contingent. There was no reasonable certainty of capture. A belligerent vessel might always be abandoned on that ground, without venturing on the ocean ; for to such vessels, there is always more or less danger of capture, as there is of shipwreck. It is this very risk which the assured must encounter, and against which the insurer is to indemnify.
But I dismiss this point, which it was unnecessary ever to touch; because the danger "of intermediate capture does not arpear to have been stated, to the defend? *252ants, as a substantive ground of abandonment; and th6 plaintiffs must confine themselves to the reasons communicated to the insurer; for on them alone was the insured called upon to judge and to act.
The only danger, if any, that could support the abandonment, was the danger of seizure at Barcelona, under the Aranjuez decree; and I think.it would be going too .far, and beyond any precedent, to adjudge that cause to be sufficient.
This is not the case of an “ illicit or prohibited trade,’* within the exception in the policy. If the defendants are exempted from the loss, it is upon more general principles.
• If the port of Barcelona had been absolutely interdicted, so that the prosecution of the voyage to a conclusion, had become impracticable, or been attended with a moral certainty of seizure and loss, I should have deemed it equivalent to actual restraint, to the existence of a vis major breaking up the voyage; and that the plaintiffs had ground for their claim. An interdiction of commerce with the port of discharge, happening after the •commencement of the risk, authorizes the assured to discontinue the voyage, and return at the risk of the insurer. (1 Emerig. 544.) And in the case of Schmidt v. The United Insurance Company, (1 Johns. Rep. 249.) it was decided in this court, that a blockade of Hamburgh, the port of destination, commenced and existing, hi fact, after the voyage had begun, and duly notified to the insurer; after he had arrived on the English coast, was á “ restraint” within the policy ; and, if I am not mistaken, the case of Barker v. Blakes (9 East, 283.) establishes the same doctrine. When such restraint actually exists, and is ascertained to be effectual, and no doubt arises of its being exerted, it would be most unreasonable to require the assured to go on, and submit to the experiment of a capture, or the imminent hazard of the attempt. It would be fatal to the interest *253of all concerned. It would be against the duty of the assured, and he would be placed under a moral inability to do it. I admit the good sense of the rule, that the assured shall not abandon quia timet, in cases in which the danger is remote or contingent, as where storms, cruisers of an enemy, or pirates, threaten a vessel, in transitu. But I do not perceive the fitness of its application to cases, in which the port of destination is discovered, and duly ascertained, in the course of the voyage, to be shut, by being in possession of an enemy, or by interdiction of trade, or by a blockade. The restraint is as much felt, and operates as effectually, as if the vessel was actually seized. The act of entry, and the attempt to do it, become unlawful.. It is as unlawful to rush into the arms of an enemy, with your property, as it is to break a blockade, or force an entry into a port, when an entry is prohibited by the sovereign of such port. There may. be doubts, as to the terminus a quo, or from what point the voyage is to be abandoned, and what species of demonstration of the danger, the assured ought to require. But assuming the fact of the existence of such an impediment, and of the reasonable certainty, that it would he made effectual, to the loss of the subject insured, the, assured is justified in giving up the voyage and calling on the insurer to indemnify. It amounts to a loss of the voyage. No deviation can help the party, for the peril existed at the port of discharge; and if the restraint is not limited, or transient, the spes recuperandi, as to the voyage, is as much gone, as if the vessel was detained, in the course of her voyage, by an embargo or capture. I am aware that some late cases (Hadkinson v. Robinson, 3 Bos. & Pull. 388. Lubbock v. Rowcroft, 5 Esp. N. P. 50. Blackenhagen v. London Insurance Company, 1 Campbell's N. P. 450.) go very far towards denying this right to the assured, if an English enemy creates the impediment; but in this respect, I cannot, at present, concur in the distinction which they seem to assume, and when the vase arises I shall choose to give it further consideration.
*254In the present case, however, I do not think that the port of Barcelona was shut, so as to bring the case within the reach of the principle. It was not shut generally, or absolutely, against American vessels. There was no general interdiction of trade with that port. The Spanish decree of the 3d of January, 1808, which operated at Barcelona, applied only to neutral vessels, under certain special circumstances; and whether the Amiable Matilda came within the operation of that decree, was a matter of uncertainty, depending upon the judicial construction which the decree might receive, in its application to that case.
The Milan decree, of the 17th of December, 1807, did not, by the terms of it, apply to the case; for it only applied to ships, which “ should have submitted to be searched by an English ship.” The Amiable Matilda did not submit to be searched. She was only brought to, and boarded, by an English cruiser, and her register-endorsed. Whateyer presumption that fact might afford of a search; yet it was not true, in fact, and the presumption was capable of being destroyed by positive proof. The Spanish decree was broader in terms, for it applied to every vessel, ‘f which might have been vzV sited by an English ship.”(a) But this decree, professed to be grounded on the Milan decree, and to adopt “ the same measures.” It accordingly follows that decree, in almost its very words ; and if it deviates in any minute particular, it is, probably, owing to the difference of language, and the changes in translation. It must be considered in pari materia, as part of the same system, as a *255commentary on the same text, and as, by no means intended to have a more extensive or rigorous operation.
It was, therefore, doubtful, whether the Amiable Matilda could, by any sound judicial decision, have been adjudged liable to seizure and confiscation, at Barcelona, under the Aranjuez decree. But to make out a just ground of abandonment from this decree, it ought to have been certain that the decree applied to the case of this very ship; and it ought to be equally certain, that it would have been put in force against the ship, had she arrived at Barcelona, and before she could have anchored 24 hours, in good safety. If there existed a reasonable doubt of danger in both, or in either of these respects, the case did not amount to that just fear, which the authorities cited by Emerigon, consider as equivalent to the application of physical force and violence. I cannot consider the danger of arrest and restraint at Barcelona, from this decree, to have been so certain and manifest, as to be, in any degree, a substitute for the arrest itself. It is well known to the world, that the Spanish decree was not a spontaneous measure, on the part of Spain. It was presented by a master, who had just traversed the continent, from the Baltic to the Mediterranean, occupied in the business of dictating laws, as well as of extending his conquests. The decree contains, upon the face of it, the marks of a constrained obedience ; for it avows, in the preamble, that “ I will, that there be adopted, in all my dominions, the same measures, which my intimate ally has adopted.” Such an extraordinary measure as this Aranjuez decree, followed the Milan decree in 17 days, which was not much more than time enough for a communication between the one place and the other. It was not, therefore, to be expected, that a decree, violating every principle of law and justice, enacted in such haste, and made in subservience to the policy of an ally, and against the obvious policy of Spain, would be very scrupulously observed and enforced. A *256strong sense of interest would operate steadily to impgjg j^g execution. The decree admits, that the system which it adopts is “ barbarous, and assimilated to the legislation of Algiers.” The party ought, then, to have for proof of a practical application of the decree tó a .case like his, before he undertook to break up the voyage. No presumption ought, in decency, to be admitted, to supply the evidence of facts. Every presumption ought to have been indulged, in favour of the non-execution, or, at least, the most benign interpretaof this decree fay the admiralty courts in Spain. The captain, himself, did not consider the danger of arrest, at Barcelona, under the decree, as worth regarding; for he declares, that he broke up the voyage, from the danger of intermediate capture, and was persuaded, that if the vessel had arrived at Barcelona, the vessel and cargo might have been protected and saved, notwithstanding the decrees.
We are, therefore, of opinion, that the voyage was not broken up for any justifiable cause, or peril within the policy. The verdict is, consequently, against law, and must be set aside, with costs to abide the event of the suit.
New trial granted.(a)
The Spanish word visita and the French visite, mean precisely the same as the English word search, a species of judicial inquiry, or a formal act of search, in regard to ships, exercised, under the law of nations, by belli" gerents, towards neutrals. But there is a difference of opinion among writers on the law of nations, as to the manner in which the right of search is to be exercised. Hubner (De la saisie des Batimens neutres, c. 3. s. 5, 6, 7, 8, 9.) is of opinion, that it ought to be confined to an examination of the ship’s papers; and the mode of search has been regulated in numerous treatises. (Sec 2 Azuni's Marit. Law, 201—220. c. 3. Vattel, b. 3. c. 7. s. 114.)
Since the decision of the above causes, I have met with the case of Forster and others v. Christie, (11 East, 205.) in the court of K. B. A British ship was insured from Midi to St. Petersburgh ; and having sailed, under convoy, to the Sound, was, afterwards, stopped in her course, by a British ship of war, in the Baltic, from an apprehension of hostilities with Russia, for 11 days; and then proceeded to a point of rendezvous for convoy; until the officer of the ship of war received intelligence, that a hostile embargo was laid on British ships, at Si. Petersburgh, when he ordered the fleet back to the place of>rendezvous, from whence the ship returned to Mull. It was held, that the loss of the voyage was not attributable to the arrest or detainment of princes, &c. hut immediately to the fear of the hostile embargo, in the port of destination, and, therefore, not within the policy; though, if the ship had not been detained, in the first instance, by the officer of the ship of wav, she would have arrived at St. Petersburgh, in time to have delivered her cargo there, before the embargo was laid.
3 Johns. Rep. 92.