J. D. Crawford, for the plaintiffs. The question is whether the loss was caused by hostilities or the consequences of hostilities. The loss was as much due to the hostilities as if the vessel had been pursued by a cruiser and had been lost in evading the pursuit; or as if, with the object of evading pursuit, she had taken refuge in a place where there was little protection and had been lost in consequence. She only returned to Liverpool in order to avoid the risk of capture, which she would have incurred if she had pursued her voyage to Havana.

[He referred to O'Reilly v. Gonne [1815] 4 Campb. 249, 16 Revised Rep. 788; O'Reilly v. Royal Exchange Assurance [1815] 4 Campb. 246, 16 Revised Rep. 786, and the judgment of Wills, J., in Isitt v. Railway Passengers Assurance Co. [1889] 22 Q. B. D. 504, 60 L. T. N. S. 297, 37 Week. Rep. 477, 58 L. J. Q. B. N. S. 191.]

J. A. Hamilton, for the defendants. The loss in the present case was not a proximate consequence of any peril insured against. The goods were never out of the control of the carriers, as was the case in Rodocanachi v. Elliott (1873) L. R. 8 C. P. 649, 42 L. J. C. P. N. S. 247. The cases of Blackenhagen v. London Assurance Co. (1808) 1 Campb. 454, 10 Revised Rep. 729, 13 Eng. Rul. Cas. 650, and Hadkinson v. Robinson (1803) 3 Bos. & P. 388, 7 Revised Rep. 786, shew that where an embargo or fear of captures obliges a vessel to turn back, and loss follows, the loss is not directly caused by the perils insured against, although the fear may be perfectly reasonable. In the present case the hostilities were not the causa proxima of the loss.

[He also cited Ionides v. Universal Marine Insurance Company [1863] 14 C. B. N. S. 259, 32 L. J. C. P. N. S. 170, 10 Jur. N. S. 18, 8 L. T. N. S. 705, 11 Week. Rep. 858, 14 Eng. Rul. Cas. 271, and Pink v. Fleming [1890] 25 Q. B. D. 396, 59 L. J. Q. B. N. S. 559, 63 L. T. N. S. 413, 6 Asp. Mar. L. Cas. 554.]

J. D. Crawford replied.

Mathew, J.: I am of opinion that there has been no loss under the policy. There was no capture or seizure, and no attempt to capture or seize within the first part of the clause in

the policy. But the clause goes on: "And also from all consequences of riots, civil commotions, hostilities, or warlike operations." The vessel did not in fact encounter any direct hostilities, but it is sought to fix upon the underwriters a loss due to an indirect consequence thereof. The vessel sailed from the Mersey, and put into Las Palmas after war had broken out. Under the bill of lading the master was entitled to go back to Liverpool, and he went back, and claimed and was paid freight. The loss so incurred was clearly not a consequence of hostilities, but was due to the terms of the bill of lading. It seems to me that the loss was a consequence from the proper exercise by the master of his discretion under the bill of lading. The policy was not a policy against fear [31] of capture or seizure. My judgment must be for the defendants.

Judgment accordingly.

Note.-Liability of insurer under policy of marine insurance for losses arising out of state of war.

I. Scope, 5.

II. War risks; when covered, 5.

III. Meaning of terms employed in insuring against war risks,

7.

IV. Matters as to which a duty of disclosure exists, 9.

V. Liability of insurer as affected by warranties:

a. Of seaworthiness, 10.

b. Of nationality or neutrality, 11.

c. Of ownership, 18.

VI. Conditions occasioned by war as justifying deviation, 19. VII. Liability in case of capture:

a. Generally, 22.

b. Capture of neutral by belligerent, 25.

c. Effect of capture on time policy, 25.

VIII. Liability as affected by deviation or loss of voyage occasioned by apprehension of capture, 26.

IX. Liability in case of blockade, interdiction or embargo:

a. Blockade, 28.

b. Interdiction, 32.

c. Embargo, 33.

X. Hostilities as proximate cause of loss, 34.

XI. What constitutes seizure or detention in port, 37.

XII. Extent of liability; right to abandon to insurer and recover

as for total loss:

a. In general, 38.

b. Time for abandonment, 41.

c. Effect of recapture or restitution:

1. As terminating right to abandon on ground of capture, 44.

2. Effect upon abandonment already made, 46.

d. Right to abandon for loss arising out of capture, 47. e. Effect of bidding in property for owner's benefit, 50. f. Stipulations restricting right to abandon, 52.

1. Scope.

The general topic stated as the title of this note is, so far as it comprehends the construction of insurance against capture, or of a "warranted free from capture" clause in a policy of marine insurance, covered by the note to Andersen v. Marten, post, 66, which should be consulted in this connection.

As to the effect of carriage of contraband upon marine insurance, see note to Yangtsze Ins. Asso. v. Indemnity Mut. M. Assur. Co. post, 53.

As to the validity of insurance of enemy property against seizure, see note to Janson v. Driefontein Consol. Mines, post, 810.

II. War risks; when covered.

Insurance against "the risk contained in all regular policies of insurance" covers loss by capture; and considerations drawn from the amount of the premium, or a letter written by the assured with a view to obtain indemnity from another quarter, in which the policy is spoken of as protecting the assured against sea risks only, are not available to vary its meaning. Levy v. Merrill (1826) 4 Me. 180.

A general policy unaccompanied with any warranty covers war risks of all kinds and of all countries (Barnewall v. Church (1803) 1 Caines, 217, 2 Am. Dec. 180), belligerent as well as neutral property (Hodgson v. Marine Ins. Co. (1809) 5 Cranch, 100, 3 L. ed. 48; Murray v. United Ins. Co. (1801) 2 Johns. Cas. 263; Elting v. Scott (1807) 2 Johns. 157; Straas v. Marine Ins. Co. (1806) 1 Cranch, C. C. 343, Fed. Cas. No. 13,518); so, a policy "for whom it may concern" will, in ordinary cases, cover belligerent property (Buck v. Chesapeake Ins. Co. (1828) 1 Pet. 151, 7 L. ed. 90). But see, contra, cases set forth infra, under heading, "Matters as to which a duty of disclosure exists," which hold that where the ownership or origin of property is such as to expose it to capture or condemnation, a failure to disclose the circumstances to the insurer will avoid the policy.

The general terms of insurance against capture are, however, to be understood as virtually containing an exception of such captures as may be made by the authority of the government of the insurers (Furtado v. Rogers [1802] 3 Bos. & P. 191, 6 Revised Rep. 752, 14 Eng. Rul. Cas. 125; Kellner v. Le Mesurier (1803) 4 East, 396, 1 Smith, 72, 7 Revised Rep. 581; Gamba v. Le Mesurier (1803) 4 East, 407, 7 Revised Rep. 590; Ex parte Lee [1806] 13 Ves. Jr. 64), or by a cobelligerent (Brandon v. Curling (1803) 4 East, 410, 1 Smith, 85,7 Revised Rep. 592), as a contract to indemnify against such capture is regarded as contrary to public policy.

Where neither vessel nor cargo is warranted neutral, the insurer of cargo is liable for its loss by condemnation as being contraband of war (Baltimore Ins. Co. v. Taylor (1810) 3 Harr. & J. 198); and neither the fact that a vessel was laden with munitions of war destined for a belligerent, nor that the ship itself was to be offered for sale to the belligerent, nor that its captain was to be employed in the naval service of the belligerent, nor that a breach of blockade was committed by the vessel, violates a policy of insurance covering all risks, especially where the practices of chartering neutral vessels for the transportation of military stores and troops, and of such vessels being sold for the purpose of being used as war vessels, are facts of universal notoriety in the commercial world at the time of the insurance (Maryland & P. Ins. Co. v. Bathurst (1833) 5 Gill & J. 159). As to the validity of insurance upon contraband goods or voyages, see note to Yangtsze Ins. Asso. v. Indemnity Mut. M. Assur. Co. post, 53.

The fact that goods are shipped in the name of the insurer to protect them from seizure by enemies of the country of the insured does not render the policy void. Levy v. Merrill (1826) 4 Me. 180.

If, after the commencement of the voyage insured, a war breaks out between the country to which the property belongs and a foreign country, the policy is not vacated, and the insurers are liable for the loss arising out of the state of war. Saltus v. United Ins. Co. (1818) 15 Johns. 523.

Where insurance is made before the commencement of hostilities but when everybody expects war immediately, the insured is not bound to give the underwriter notice, though the ship does not sail until after the war takes place, since, although the risk has increased since the taking out of the policy, it was in view when the policy was written. Planche v. Fletcher (1779) 1 Dougl. K. B. 251.

But, in order to render an insurer against the consequences of hostilities liable, it is essential that the policy shall have attached. Thus, the insurer of a cargo against capture is not responsible for loss arising from a resale of the cargo at the port of loading, even though the underwriters notified the assured that if the cargo was

sent they would take the position that the assured deliberately caused any loss occasioned by the perils insured against, since, the vessel not having set out to sea with the cargo, the risk insured against has never begun to operate. Kacianoff v. China Traders' Ins. Co. [1914] 3 K. B. 1121, 83 L. J. K. B. N. S. 1393, 111 L. T. N. S. 404, 30 Times L. R. 546, 19 Com. Cas. 371.

A policy against war risks only extends to any seizure by any country at war, made in a hostile manner, even though such seizure may subsequently, in a prize court, be declared contrary to the laws of war, and even though the prize court may direct restoration of the goods with costs and damages. Seymour v. London & P. M. Ins. Co. (1872) 1 Asp. Mar. L. Cas. 423, 41 L. J. C. P. N. S. 193, 27 L. T. N. S. 417; and see also, as holding that as between the insurer and the insured it is immaterial whether the capture is in accordance with the laws of nations or not, Mauran v. Alliance Ins. Co. (1867) 6 Wall. 1, 18 L. ed. 836; Kohne v. Insurance Co. of N. A. (1814) 6 Binn. 219.

III. Meaning of terms employed in insuring against war risks.

As to the signification of the word "capture" as used in policies of marine insurance, see note to Andersen v. Marten, post, 66.

In Thompson v. Read (1820) 12 Serg. & R. 440, it is said that there seems to be a difference between arrest, restraint, and detainment. "An arrest operates immediately on the subject arrested, so does a detainment; for it supposes the subject detained to be in the hands of the detainer; but there may be a restraint where the subject restrained is not in the hands of the restrainer. Capture includes an arrest; capture, strictly speaking, is generally made for the purpose of condemnation; but neutrals are often arrested and carried into port for the purpose of investigation. An embargo is a detainment as well as a restraint; but a blockade may be a restraint without arrest or detainment."

The fact that the word "restraint" is used in context between the words "arrest" and "detainment" in a policy of insurance against arrests, restraints, and detainments of all kings, princes, and people of what nation soever, does not imply that force must be used or threatened. If the restraint is imposed by political or executive act it is not the less a restraint, within the terms of the policy, because the master submits without opposition and without the presence of either actual or threatened force. British & Foreign Marine Ins. Co. v. Sanday (1916) 32 Times L. R. 266. Upon this point it was said. by Lord Wrenbury: "It is not necessary that force should be employed, or even that force should be immediately available for employment. Every state ultimately enforces obedience to its laws by force. Restraint is equally imposed when obedience is given by rea