842 HARVARD LAW REVIEW able action to avoid the peril insured against is not a loss within the terms of the policy.^^ Later arose the second line of cases involving sim- ilar circumstances, in which nonperformance of a charter-party or bill of lading was uniformly excused under the restraints clause. Nor is a formal blockade or embargo insisted upon, but the danger of seizure of a belligerent merchantman by enemy warships or of seizure of a neutral for carrying contraband is held suflficient.^* This seems sound, for the difference between this and actual seizure is merely in the time and space through which the restraint may operate. The degree of apprehension reasonably entertained under the circumstances may be said to be an index of its extent. And surely the vessel should not be required to pro- ceed to certain destruction, in order to establish a defense under this exception to the contract. As is repeatedly stated by the courts, a phrase so commonly employed should be construed in the same way in every type of mercantile con- tract. Accordingly later cases have explained the apparent conflict be- tween the two lines of authorities on the ground of causation, rather than on any difference in the interpretation of the phrase itself. Thus in the recent case of Becker, Gray &" Co. v. London Assurance Corporation,^^ it was said that in insurance cases a stricter rule of causation must be ap- plied. There insurance was issued on British goods bound for Hamburg on a German vessel. War broke out, and the captain to avoid capture, put into a neutral port to remain until the end of the war. The court held that the frustration of the adventure was caused, not by the peril insured against, but by the voluntary act of the captain in putting into port, this latter being the direct cause." This strict rule may have arisen from a reluctance to allow a recovery as for a total loss under such circumstances. But it has been well settled that where goods are in- sured under such a policy from port of origin to port of destination, the owner may abandon to the underwriters as a total loss, if the adventure is frustrated by a peril insured against, although the goods are them- selves undamaged.^^ The insurance is not merely of the merchandise from injury, but also of its safe arrival. There seems to be no reason therefore for applying any rule stricter than the normal principles of proximate causation. It is certainly to the best interests of all concerned to avoid a complete destruction of the property. One may wonder if the court would expect the captain to negotiate Scylla and Charybdis. " Hadkinson v. Robinson, 3 B. & P. 388 (1803); Lubbock v. Rowcroft, 5 Esp. 50 (1803); Blackenhagen v. London Assurance Co., i Campb. 454 (1808); Richardson v. Maine Insurance Co., 6 Mass. 102 (1809); Brewer v. Union Insurance Co., 12 Mass. 170 (1815). But in some American jurisdictions the opposite conclusion was reached. Schmidt v. United Insurance Co., i Johns. (N. Y.) 249 (1806); Thompson v. Read, 12 Serg. & R. (Pa.) 440 (1820) (setnble). See i Phillips, Insurance, 5 ed., par. 11 15. The federal courts drew a distinction between the failure to attempt to enter a block- aded port and the failure to attempt to leave such a port. Smith v. Universal In- surance Co., 6 Wheat. (U. S.) 176 (1821); Olivera v. Union Insurance Co., 3 Wheat. (U. S.) 183 (1818). " Geipel v. Smith, L. R. 7 Q. B. 404 (1872); The San Roman, L. R. 5 P. C. 301 (1873); Nobel's Explosives Co. v. Jenkins & Co., [1896] 2 Q. B. 326; Embiricos 11. Syd- ney Reid & Co., supra; The Styria, 186 U. S. i (1901).
- ^ Supra. In Kacianoff v. China Traders Insurance Co., [1914] 3 K. B. 1121, the
peril insured against was capture and not restraint-of-princes. " See British & Foreign Marine Insurance Co., Ltd. z). Samuel Sanday&Co.,5M/»rff,656.
