Page:Harvard Law Review Volume 32.djvu/877

841 NOTES 841 of insurance, it was held in British &" Foreign Marine Insurance Co., Ltd. V. Samuel Sanday Cf Co.^ that the abandonment by a British ship of a voyage to a German port, which had become illegal upon the outbreak of war, was a loss caused by the peril insured against. The decision was linked up with previous cases on the ground that behind law stands force whereby obedience is compelled. Applying this theory to another state of facts the Court of King's Bench held that the requisition of a vessel by an ultra vires order of the Admiralty was not a restraint, since the owner was under no obligation to obey.^'^ The result seems questionable in any case and especially so where the authorities concerned have means of enforcing their regulations. For the pressure on the shipowner may be great, however unlawful its threatened application. If force is actu- ally employed illegally by governmental agencies it constitutes a re- straint." The improper order in the case just cited should be placed in a similar category. It is generally said that any forcible interference with a voyage or adventure by a constituted government or ruling power is covered by the restraint-of-princes clause.^^ The chief question then is as to what will constitute a restraint short of the actual physical application of force. A situation frequently arises where the master of a vessel deviates from his course to avoid a peril known to be in existence, such as an embargo at or blockade of the port of destination. Must the vessel attempt to run a blockade before the restraint-of-princes clause may be relied on? On this point a difference in result has developed between cases of in- surance on the one hand and those of charter-parties and bills of lading on the other. The former were the first to arise, and the prevailing view expressed was that there had been no restraint of the vessel under such circumstances. In other words, a loss of the adventure through reason- ' Supra. Similarly, where a foreign shipowner, having entered into an English charter party, was prohibited by the law of his sovereign from carrying out the con- tract. Furness, Withy & Co. v. Rederiaktiegolabet Banco, supra, discussed in 31 Harv. L. Rev. 799. But the owner of cargo on a foreign vessel, having no control over it, cannot rely on the clause on the ground of illegality through trading with the enemy. See Becker, Gray & Co. v. London Assurance Corporation, supra, 117. The clause does not apply to ordinary judicial proceedings. Bradlie v. Maryland Insurance Co., 12 Pet. (U. S.) 378, 402 (1838). 1" Russian Bank for Foreign Trade v. Excess Insurance Co., Ltd., supra. This point was questioned in the Court of Appeal, which affirmed the decision on another ground. See [1919] I K. B. 39, 40. Cf. Brunner v. Webster, 5 Com. Cas. 167 (1900); Northern Pacific Ry. Co. v. American Trading Co., 195 U. S. 439, 468 (1904). '^ Lozano v. Janson, 2 E. & E. 160 (1859); Magoun v. New England Marine In- surance Co., 16 Fed. Cas. No. 8961 (1840). The courts generally will not consider the legaUty of official acts of a foreign government under its own law. The Athanasios, supra; The Adriatic, supra; Earl Line S. S. Co. v. Sutherland S. S. Co., Ltd., supra. ^ See Carver, Carriage of Goods by Sea, 6 ed., § 82; MacLachxan, Merchant Shipping, 5 ed., 607; Scrutton, Charter-Parties and Bills of Lading, 7 ed., 207. Doubt, expressed in early cases as to whether a party was protected under the clause upon a restraint by his own sovereign, was removed in Aubert v. Gray, 3 B. & S. 163 (1861). Usually the restraint arises out of conditions of war, but frequently this is not so. Detention under quarantine regulations is a common instance. Miller v. Law Accident Insurance Co., [1903] i K. B. 712; The Bohemia, 38 Fed. 756 (1889); Tweedie Trading Co. v. Geo. D. Emery Co., 146 Fed. 618 (1906). Cf. Ciampa v. British India Steam Navigation Co., Ltd., supra. The restraint usually takes place on the sea, but may be on land. Rodoconachi v. Elliott, L. R. 9 C. P. 518 (1874); Robinson Gold Mining Co. v. Alliance Insurance Co., [1901] 2 K. B. 919.