
4 U.S. 455 (____)
4 Dall. 455
Morgan et al.
versus
The Insurance Company of North America.
Supreme Court of United States.

*456 *457 The chief justice delivered the following opinion, in which BRACKENRIDGE Justice, concurred.
TILGHMAN, Chief Justice.
This is an action on a policy of insurance on freight of the brig Amazon, from Philadelphia to Surinam, valued at 3500 dollars.
The brig sailed from Philadelphia on the 7th of August 1790 with a cargo consisting of provisions and merchandize, and arrived in the river Surinam, on the 17th of September following. During the voyage, the colony of Surinam was conquered by the forces of the king of Great Britain. Permission was obtained from the British commander, for the brig to go up to the town of Paramanto, and she arrived there with her cargo, on the 20th September. On her arrival, the captain of the brig, in pursuance of instructions from the owners, as well as in pursuance of an agreement between the owners and a certain J.A. Richter, who was a passenger in the said brig, offered to deliver the cargo to the said Richter, upon his paying, or giving security to pay, 25,310 dollars. Richter agreed to pay that sum as soon as possible after the delivery of the cargo, and actually gave good security for the money. But the British collector of the customs, refused permission to land any article of the cargo, except the provisions, nor could such permission be obtained, although repeated petitions were presented to the government. The consequence was, that the cargo was not landed, and the captain entered his protest. The brig remained at Paramanto till the 27th of September. The plaintiffs were owners both of the brig and cargo.
The question is, whether the plaintiffs are entitled to recover, either for a total loss, or for a partial loss, on this policy?
The plaintiffs' counsel contend, that they are entitled to recover for a total loss; that the landing and delivery of the cargo, is an essential part of the contract between the owner and freighter, and not being complied with, no part of the freight has been earned; and that the circumstance of the same persons being owners of the brig and cargo, is immaterial in a question between the assurers and assured. On the other hand, the defendants' counsel say, that there has been no loss, because the freight was completely earned.
No adjudged case, in point, has been cited on either side. The defendants' counsel relied on the case of Blight v. Page. 3 Bos. and Pull. 295. (not.) but I do not think that case applicable. The owner of a vessel agreed to go to a certain port, and take in a cargo of barley, to be carried on freight. When the vessel arrived at the port, the defendant, could not furnish the cargo according to his agreement, because the government refused to permit the exportation of barley. The owner sued the defendant, for not complying with his contract, and recovered damages equal to the amount of the freight. This only shews, that the interference of the government did not excuse the defendant from complying *458 with his contract. The plaintiff had done every thing necessary on his part, and was prevented from earning his freight, by the breach of contract on the part of the defendant. No conclusion can be drawn from this case, under what circumstances freight may be earned, or not earned. For, it was not an action for the recovery of freight, but of damages, for not being permitted to earn freight.
But, although there is no adjudged case, the subject has not escaped the notice of writers on the marine law. In one of the ordinances of Lewis XIV. (A.D. 1681)[(1)] it is declared, that on a charter party to carry goods out and in, if, during the voyage, the commerce is prohibited and the vessel returns, the outward freight only is earned; and Valin, in his commentary on this article, says, the law is the same, if the vessel is freighted outward only. These ordinances, and the commentaries on them, have been received with great respect, in the Courts both of England and the United States; not as containing any authority in themselves, but as evidence of the general marine law. Where they are contradicted by judicial decisions in our own country, they are not to be respected. But on points which have not been decided, they are worthy of great consideration. I am strongly inclined to adopt the rule laid down by Valin, because I think it reasonable. The owner of the ship has been in no fault whatever. When he took the goods on freight, there was an open commerce between Philadelphia and Surinam; the goods were carried to the port of delivery; the vessel waited there seven days, and the captain offered to deliver the cargo to the consignee, who refused to receive it. Nothing prevented it, but the prohibition of the British government. It is not like the case of a vessel which is prevented from entering the port of delivery, by a blockading squadron; for there the voyage is not performed, and it is impossible to say, certainly, that it would have been safely performed, if there had been no blockade. I think it most agreeable to reason and justice, that the obtaining permission to land the cargo, should, in this case, be considered as the business of the consignee. That being established, it follows that the freight was earned.
Upon the whole of this case, I am of opinion, that the plaintiffs are not entitled to recover, either for a total or a partial loss.
NOTES
[(1)]  1 Vol. Ord. Lewis XIV. 656. Art. 15. title Freight, cited by Abbot.
