Phœnix Insurance v. Pratt

Tilghman C. J. delivered the court’s opinion. This cause was brought before us, by a writ of error to the Court of Common Pleas, founded on a bill of exceptions which states all the evidence, and contains the charge of the court at large. It was an action on a policy of insurance on goods shipped by Pratt and Clarkson on board the ship Charles, on a voyage from the Savanna to the Danish island -of St. Thomas in the year 1805, when Denmark was a neutral power. The ship was owned by Pratt and Clarkson; and the captain and Isaac Thomas were joint agents of the plaintiffs, and supercargoes. The policy contained a warranty that the goods were American property, to be so proved here only, and it was fully proved that'the goods were the property of the plaintiffs, who are Americans. Some evidence was given to prove, that captain Stites had taken in three hundred and fifty boxes of sugar, and twenty-seven bales of beeswax, which in truth were Spanish property, and carried them under false papers as his own property; but they were not blended with the goods of the plaintiffs. The invoice and other papers respecting them, were distinct from those of the plaintiffs. After the evidence was closed, the counsel for the defendants insisted that the several matters given in evidence, ought to be allowed as decisive evidence to entitle the defendants to a verdict. I think it would have been mo.re proper, and would have brought the questions of law more to a point, if the counsel had proposed the particular matters on which they desired the opinion of the court to be given. Indeed it would have been impossible to give in charge to the jury, that the evidence was decisive on either side, without assuming the decision of facts, which is beyond [323] tlie power of the court. The judge viewing it in this light, did not say whether it was decisive or not, but summed up the evidence, and then gave his opinion on certain points of law, arising as he conceived out of the facts. The jury found for the plaintiffs; and the defendants’ counsel excepted to the court’s opinion,’ in general. It has been made a question how this bill of exceptions is tó be understood, and what points are now open for discussion. If the president of the Court of Common Pleas had declared to the jury that the evidence was not decisive in favour of the defendants, I do not know that any objection could have been made to it. The evidence was legal, but how, far decisive, the jury were to judge. It has been determined by this court in the case of Burd v. The Lessee of Dansdale (a) that if a judge gives an opinion upon facts, not warranted by the evidence, it is no error which can be assigned on a bill of exceptions. Neither do we conceive that advantage can be taken of an erroneous opinion on a point of law, immaterial to the isáue which the jury are trying. But it is open to the plaintiff in error, to assign error in an opinion on any matter material to the issue, appearing on the bill of exceptions, although it is not particularized in stating the exceptions. , The judge’s charge appears to be in substance, this, that the conduct of captain Stites in covering Spanish property (if he did cover it) without the knowledge of the plaintiffs, could not affect the goods of the plaintiffs, which were not blended with the covered goods; and therefore if the,jury should be of opinion that the captain had on board Spanish property, and the plaintiffs participated in the act, their verdict should be given for the defendants; but if they should be of opinion that the plaintiffs had no knowledge of it, their verdict should be for the plaintiffs. It is contended,on the part of the defendants, that the plaintiffs are answerable for the conduct of their captain and agent, and his conduct has been such as to break the warranty of American property, or at any rate to increase the risk of the voyage, so that the plaintiffs ought not to recover. It is not unlawful for a neutral to carry the goods of a belligerent. So far from it, that it is the constant practice [324] of courts of admiralty to. restore the ship with full freight t# " the neutral owner, unless the case is attended with particular circumstances. It was not the carrying of Spanish goods then, but the attempt to mask them under a neutral cover, that was a breach of neutrality. This attempt was the act of the captain, or perhaps of the captain and his colleague Mr. Thomas. It is therefore to be considered how far the act of one, or both of these persons, may be imputed to the plaintiffs. There are some principles about which there is no dispute. The captain is the agent of the owners with respect to the ship, and they must answer for his conduct. But he is not agent for the owners of the goods, unless so specially constituted. If he attempts to enter a port, in breach of a blockade, the ship is subject to condemnation, and so also is the cargo, although not committed tothe care of the captain, if it belong to the owners of the ship. An agent for the owner of the goods, may likewise affect his principal, by his acts respecting the goods committed to his charge. If he violates the law of nations with respect, to those goods, they may be condemned. So if he mixes or entangles them with goods which are contraband, or the property of an enemy, they must all share the same fate. This is the principle laid down by Sir William Scott in the case of the Rosalie and Betty, 2 Rob. 294. The same judge has decided that owners of the cargo, are affected by the conduct of their general agent or supercargo, not only civilly, but penally, to the amount of their property on board; The Mars, 6 Rob. 87; and this doctrine was adopted by this court in Crousillat v. Ball, of which my brother Teat.es has a manuscript note, fuller than the report by Mr, Dallas. Taking the law to be so, the charge of the Court of Common Pleas seems to have drawn the attention of the jury to the wrong point; or at least to have laid them under too great restriction. The point submitted to their consideration, was, whether the captain covered Spanish property with the knowledge, or participation of the plaintiffs. The consequences resulting from improper conduct in a supercargo, or general agent, were thrown out of the question. Now suppose the jury had thought, that the captain, with the acquiescence of his colleague Mr. Thomas, had attempted to cover Spanish property without the knowledge of the plaintiffs; in that case the ver [325] diet ought to have been for the defendants; and yet the jury 'under the charge of the court were bound to find for the - o plaintiffs. The Court of Common Pleas have laid down the law, that the goods of the plaintiffs could not be affected by any conduct of their agent, because they were not blended with the covered goods. In this we think they were wrong. The jury should have been told, that the whole property of the plaintiffs on board the ship, was liable to condemnation by the law of nations, if their general agents attempted to deceive one of the belligerent powers by covering the property of his enemy. We are therefore of opinion, that in this respect the charge was erroneous, and consequently the judgment must be reversed, and a venire facias de novo be awarded. Judgment reversed, and Venire de novo. Footnotes [(a)] Ante 80.