The Phœnix Insurance Company against Pratt and Clarkson

The Phœnix Insurance Company against Pratt and Clarkson. Philadelphia, Thursday, January 11. IN ERROR. If the general cargo covers^ belligerent pro-same vessel though without knowledgeof his principal, his principal is liable to condemnation, notwithstanding it is plainly distinguished from the covered property by bills of lading and invoices on board; and the underwriters on that property, if warranted neutral, are discharged, either upon the ground that the warranty has not been performed, or that the risk has been increased by the agent of the assured. No advantage can be taken, by bill of exceptions, of an erroneous opinion on a point of law, immaterial to the issue; but the plaintiff in error may assign error in an opinion on any point material to the issue appearing on the bill of exceptions, although it was not particularized in stating the exceptions below. * | UI IS was an action of covenant, brought by the defendauts *n error ™ the Common Pleas of Philadelphia county-, upon a valued policy of insurance dated the 25th of 1805, upon goods on board the ship Charles, Richard Stites, master, at and from Ilavanna to the island of St. Thomas; 7000 dollars at seven and a half per cent. The policy contained a warranty that the vessel and goods were American property, to be so proved in Philadelphia only; and the declaration averred the loss to be by capture by theBritish brigantine of war 1?Epervier, by whom the Charles was carried into Tortola, where vessel and cargo were libelled ' and condemned as prize. The cause came before this court upon a bill of exceptions to the charge below, in which the whole evidence on both sides was set out, together with the opinion of the court at large. The ship Charles belonged on the 6th October 1804 to Richard Stites, the master, a native American, who on that day in consideration of 800 dollars, made a bill of sale of two thirds of her to Pratt and Clarkson, the plaintiffs, also native Americans; and he afterwards made to them a bill of sale of the remaining third, which was intended as a security for 866 dollars due by him to Clarkson, and 869 dollars due to Pratt. The ship sailed from Philadelphia on the 12th November 1804 bound to St. Kitts, with a cargo, invoiced at 5786 dollars and eighteen cents, consisting of beef, pork, corn meal, shooks, hoops, shingles and staves, the whole of which belonged to the plaintiffs; and it was consigned to Stites the master, and Isaac Thomas a young man on board, as joint supercargoes, with instructions to proceed in the first place to St. Kitts, and there to sell the cargo; but if sales of the whole could not be effected, then to proceed to St. Thomas, and sell the remainder of the cargo together with the ship; and if that could not be done, to go elsewhere; with veiy full powers both as to the sale and purchase of cax-go, and to the forming of plans for the lucrative employment of the ship. The Charles arrived at St. Kitts about the 22d December 1804, where almost all the outward cargo was sold excepting twenty-five barrels of beef and the shooks, and produced exclusive of freight and charges, 5831 dollars eighty-five cents, of which a small part was sent home in molasses, a part was left in the hands of a merchant to be remitted, and 4716 dollars and forty-nine cents was invested in eighty puncheons of rum: about 750 pounds currency was paid to the supercargoes in cash. With this cargo the vessel proceeded to St. Thomas, where she arrived in February 1805. The rum and beef were there sold, and an invoice of dry S00<^s5 wine> &c. to the amount of 5225 dollars fifty cents was purchased with the proceeds, and shipped in the Charles for Havanna, in the name and for the account and risk of the plaintiffs. At the same time, Stites took on board in his own name an invoice of dry goods, and 670 doubloons, worth 11300 dollars, and then proceeded to the Havanna. The invoice of the plaintiffs there netted 5478 dollars, which was invested in 150 boxes white and brown sugars; and the invoice and gold of captain Stites netted 17623 dollars, which •was invested in 350' boxes of sugars, and 27 bales of beeswax. The former were invoiced and shipped on board the Charles in the name and for the account and risk of Pratt and Clarkson; and Stites signed bills of lading in their name deliverable to himself at St. Thomas. The latter were invoiced and shipped in the name of Stites, andfor his sole account and risk. To the plaintiffs’ bill of lading was annexed an affidavit of Hernandez, of the house of the widow Poey and Hernandez, who made all the sales and purchases of the cargo, that the property was for the sole account and risk of the plaintiffs, and that no citizen or subject of any of the belligerent powers had any interest therein. To the bill of lading of Stites, an affidavit by himself was annexed to the same effect. The Charles sailed with this cargo for St. Thomas on the 12th of April, and was captured on the 9th of May by the brigantine VEpervier, and carried into Tortola. On the 11th Maij, Stites wrote to the plaintiffs that there was no doubt the vessel and cargo wouldbe condemned, and recommended an abandonment, which was accordingly made on the 8th of June, On the 3d fune the judge of vice-admiralty pronounced the vessel and cargo to have belonged at the time of capture to enemies of the crown of Great Britain, and as such or otherwise liable to condemnation, and condemned the same accordingly as good and lawful prize. By the proceedings in the vice-admiralty, which were given in evidence by the plaintiffs, it appeared that the captain in answer to the standing interrogatories, swore that the plaintiffs were laders of all the cargo that was put on board at Philadelphia, and owners of the greatest part; and that he owned the rest. That they owned 150 boxes sugar at the time of the capture, and that all the rest of the lading belonged to him. That he knew the lading so belonged, from its being the returns of the cargo carried out, of which a part, to the amount of seven or eight thousand dollars, was sold at St. Kitts, and the rest, to the value of about six thousand dollars, was sold at St. Thomas; that of this, part was carried down to the Havanna in goods, and part in 670 doubloons, added to which, he received about eight or nine thousand dollars at St. Thomas for nankeens he sold there, which were his own property, and which came to him there in the schooner Intrepid; and that if restored, it would belong as aforesaid, and to none others. In his claim he also mentioned two thousand dollars which he took with him from St. Kitts, and which he did not recollect upon his examination. No other explanation was given of the source from which the property claimed by Stites proceeded, except his own .account in the preceding answers. At the same time, in the correspondence with the plaintiffs, which was principally carried on by Stites alone, he repeatedly requested them not to let his poor wife and children want in his absence. It did not appear whether Thomas the assistant supercargo had participated in the shipment of this property, and in one or two of his private letters, he complained that Stites kept him in the dark as to the business of the cargo, and seemed to wish him out of the way. But to shew clearly that the account given by Stites was false, the defendants produced the captain of the schooner Intrepid, who swore that he was at St. Thomas’ in that schooner in the winter of 1805 while Stites was there, that he had on board but 3000pieces of nan-keen, no part of xvhich belonged to Stites, and that in the two ¿r three voyages he had previously made to that island in the Intrepid, he did not carry any nankeens. The defendants’ counsel thereupon insisted, that the matters given in evidence were sufficient and ought to be admitted and allowed as decisive evidence to entitle the defendants to a verdict in their favour. But the court delivered the following opinion to the jury. ' “ This is an action brought by Pratt and. Clarkson against the Phoenix Insurance Company, to recover 7000 dollars “ insured on goods on board the ship Charles from Havanna to St. Thomas. The policy is a valued one; and the plain- “ tiffs therein stipulate that the property insured is American• “ It is in proof that the property insured at the Havanna “ belonged to the plaintiffs, who are Americans; that the in- “ surance was effected at 7 and a half per cent., and that both “ vessel and cargo have been taken, and condemned by a “ British court of vice-admiralty at Tortola. Two thirds of “ the vessel were owned by the plaintiffs, and one third by “ Richard Stites the captain. She sailed the 12th November “ 1804 from Philadelphia to St. Kitts, from St. Kitts to St. “ Thomas, from St. Thomas to the Havanna, and on her ‘‘ way back to St. Thomas she was captured by a British “ vessel of war on the 9th 'May 1805, and condemned a few “ days after. The reasons assigned for the condemnation of “ ship and cargo, are singular in the mode of expression. If “ captain Stites actually covered the property of the enemy “ of Britain, the true reason of condemnation is not assign- “ ed in the sentence of the judge. Both vessel and cargo are “ condemned as belonging to the enemies of Great Britain, “ and as such or otherwise liable to confiscation. From the “ mass of papers that have been read, there is not any evi(l dence to support the decree, with respect to the property of “ the plaintiffs, and the counsel for the defendants have wisely “,taken another ground to j ustify the decree of the admiralty a court at Tortola.” “ The extensive commerce and immense naval force of u. Great Britain, have given her a commanding influence over “ the maritime laws of Europe for above half a century. But “ it is not in superior power we are to expect moderation, “ and at all times a due respect for the rights of others.” “ In the discussion of this cause a wide and extensive ‘,£ range has been taken; more so than perhaps was e‘ necessary. If the 150 boxes of sugar, the undisputed pro- “ perty of the plaintiffs, have been legally condemned,.they “ have no right to recover, and the underwriters are dis- “ charged from their contract. On the other hand, if they “ have been condemned contrary to the laws of nations, the “ insured have a right to recover. “ Whether captain Stites covered the property of a belliM gerent, is a question of fact enveloped in some obscurity. “ The bills of lading and invoices at the Havanna are ap- “ parently fair and regular, and carry on the face of them no 44 evidence of the charge. The sudden accumulation of pro» 44 perty; is the principal circumstance rested on by the defen44 dants to shew, that Stites was, at the time of the capture, “ covering the goods of a belligerent. It is certain he had 44 during the voyage become possessed of a large sum of 44 money, and hence the presumption, that it was the property 44 of an enemy, is urged by the defendants. That the captain 44 had acquired possession of property to the amount of 350 44 boxes of sugar, and 27 bales of beeswax, cannot be con» 44 tróverted. But whether it was belligerent or neutral pro-44 perty is very doubtful\ and has not been proved. When he 44 sailed from Philadelphia there is no evidence that he car» 44 ried any money; but there is every reason to believe he “ did; because he had just sold his share in two thirds of the 44 ship, and mortgaged the other third, the whole amount 44 being 1-166 dollars. He swears too, that he carried from 44 St. Thomas to the Havanna 670 doubloons. Who owned 44 this sum, from what source it was derived, whether from a •4'4 neutral, or an enemy of Great Britain, is a point on which 44 much observation has been expended, but nothing satis» 84 factorily established. 41 It is an acknowledged principle, that the captain, generally K speaking, is the representative of the owner, and that in 44 many instances the owner is responsible for his acts. In á 4,4 voluntary deviation, in case of trespass comihitted by him, 44 and in case of illicit trade, this is the consequence, The 44 acts of the captain in these cases; are in their nature in* 44 divisible, and their operation cannot be restricted toa por» 44 tion of the property committed to his trust, but must ne»44 cessarily extend to the whole. But the case before us is not 44 of this sort. Here the owners and the property are clearly 44 distinguishable; and the ship was not engaged in the viola.» 84 tion of the laws of nations, or of any treaty. 44 The commerce of a neutral with an enemy, except in 44 contraband goods, is certainly lawful. The ship Charles 44 therefore, being neutral property, owned by American 44 citizens, was not illegally employed between the Havanna 44 and- the island of St. Thomas. They had a right to carry “ sugar and beeswax from the former to the latter place. No “ law of nations forbids it. Being a neutral vessel, and liable “ to be searched, the belligerent had a right to take enemy’s “ property found on board, but nothing more. If they found “ property, which in fact belonged to the enemy of England, “ covered by captain Stites, it is admitted they had a right to “ take it; but it is not admitted they had a right to seize “ and condemn property, which it is acknowledged on all hands belonged- to a friend. When I say this, I allude to “ the 150 boxes of sugar, the property of Pratt and Clarkson, “ and which certainly did not belong to the enemies of “ Great Britain. The general law of nations cannot be alter- “ ed by the arbitrary ordinances of a single nation. Even the “ courts of England admit, that the concurrence of all nations “ is required, to produce a change in the law of nations. The “■ law of nations appears to be, that neither ship nor lawful “ goods are liable to be condemned by means of unlawful ones, “ unless when they belong to the same owner, or cannot be “ distinguished, which is acknowledged not to be the case on u this trial. The insured in the case before the court, “ have warranted against seizure on account of any illicit “ or prohibited trade, which must mean trade prohibited by “ treaties, or the law of nations, not the ordinances of a par-w ticularnation. Itis true the risk of the insurers cannot bein- “ creased by the insured; but that is not the case heyc,because “ by the law of nations the risk of the underwriters is not in- “ creased with respect to the property of the plaintiff, by cap- “ tain Stites taking on board goods belonging to a belligerent. “ Every thing usual and agreeable to the law of nations is “ supposed to be contemplated by both parties at the time of “ the insurance.” “ Upon the whole, gentlemen, if you are satisfied that “ captain Stites had on board Spanish property, and that <c Pratt and Clarkson participated in the act, your verdict “ should be for the defendants. But if you are of opinion that “ the captain had Spanish property on board, but that Pratt “ and Clarkson had no knowledge of the fact, your verdict “ should be for the plaintiffs.” With this direction the cause was left to the jury, who found a verdict for the whole sum in favour of the plaintiffs; and the defendants’ counsel tendered a bill of exceptions tp the opinion, insisting in the usual form, that “ the said several “ documents, matters and proofs, were sufficient in laW to bar ,. , , . „ “ the plaintiffs recovery. • TIallozuell and Rawle for the plaintiffs in error took three exceptions to the charge. 1. That the proof of enemies’ property being covered by Stites, was so irresistible, from the sudden acquisition of so large a sum, from his necessity at the commencement of the voyage to mortgage one third of the ship for a small debt, from his repeated requests to the owners not to let his poor-wife and children want in his absence, from the falsehood of his account of the cargo in his answers at Tortola, and from the want of all possible temptation to disguise neutral property, that the court below were wrong in saying it was doubtful. They should have charged the jury that the evidence was decisive, and that the underwriters were discharged. Both vessel and cargo were warranted neutral, because a warranty of neutral goods was in this case the same as a warranty of neutral cargo; and the excess, of funds obtained upon such a voyage, beyond the amount carried out, not being explained, was, in connexion with the preceding circumstances, decisive evidence that the warranty was not performed. Blagge v. New York Insurance Company. 2. That the court were wrong in stating the law to be, that neither ship nor lawful goods are liable to be condemned by means of unlawful ones, unless when they belong to the same owner, or cannot be distinguished; for where the goods of aii enemy are'taken on board and masked by the general agent of neutral cargo, his conduct affects the whole, notwithstanding the sound parts may be distinctly documented, and his principal is answerable to the whole amount of his property-on board. If a master, without the knowledge of the shipowner, breaks a blockade, the ship is forfeited, because the master is the ship owner’s agent; and if he is expressly constituted ager.t of the owners of cargo, or the cargo belongs to the owners of the ship, for the same reason the cargo is forfeited. The Mercurius . The belligerent property was here taken on board by Stites the general agent. It was his intention in this part of the transaction “to mislead fhp " “ British courts of justice, and the British cruizers, as to the “ property of the cargo;” and upon the effect of such an intention, the opinion of Sir William Scott in the case of The Eenrom is decisive, that let the interests of his employers be what they may, they must be affected by the conduct of the agent, and the consequence will attach on them, to confiscate the property so engaged. In strict law, he says, every supercargo will bind his employer; and although cases may arise where the owner will not be implicated, as where supercargoes have taken in small parcels of goods in contradiction to orders, yet where there is a deliberate interference in the war, by masking a large property of the enemy, this indulgence is not shewn, and the owners who have conferred the power upon the agent, must look to him for redress. The neutral is not at liberty to say, “ I have endeavoured to protect the “ whole, but this part is really my property, take the rest, and “ let me go with my own.” If he will engage in fraudulent concerns with other persons, they must all stand or fall together. The Princessa , The Susa , and The Mars are all to the same point. In the latter case, Sir William Scott says, that whatever the hardship may be, the rule of law is established, that the principal is answerable for the act of his agent, not only civilly, but penally, to the whole amount of the property under his care. The case of Crousillat v. Ball recognized the same principle. The blending of the property-in one bill of lading or invoice is of no consequence. If the agent of the cargo covers property in his own name, it is the same by the law of the admiralty, as if the owner covered it in the agent’s name; it is a fraud by the owner himself up op. belligerent cruizers, which is punished by the condemnation of all his property. But here was in fact a confusion of property. The agent swore that 150 boxes belonged to the plaintiffs, and the residue to himself; whereas the papers on board, and the whole history of the voyage, shewed that as it respected his own part, the oath was false; and therefore as was decided in The Rosalie and Betty , tke whole of his testimony was discredited, and the property of his employers was reasonably affected by it. This is the real confusion pf property. The agent resorted to a false oath to protect the' epemy’s interest; and this being detected, it became impossible to say what was neutral and what was not. The only question then is, was the misdirection of the court upon this point of law material to the issue? And it certainly was, for this • reason. The warranty of American property meant, not only that the goods belonged to Americans, but that the owners or their agent, would do no act in the course of the voyage to compromit their neutral character; that the goods should not be liable even to impediment, in consequence of - unneutral conduct. Rich v. Parker . Now by putting out of view the relation of agency which subsisted between Stites and the assured, his acts became unimportant; whereas it was by those unneutral acts, and by his false swearing, that the condemnation was justified, and that the warranty of neutrality was broken. In Calbraith v. Gracie, in the Circuit Court of the United States, April sessions 1805, the condemnation of the property being caused by the false oath of the supercargo, the court held that the warranty was broken, notwithstanding the property was most clearly American. 3. That the court were wrong in charging the jury that the risk was not increased by the conduct of Stites. It was beyond doubt increased for two reasons. First, because the masking of property to so great an extent, threw a suspicion over the whole cargo, which made it the more liable to be both taken in and condemned; and secondly, because the agent’s persisting in a gross falsehood as to the bulk of the cargo, discredited his testimony as to the rest, and his being the perpetrator of the fraud, led to the entire condemnation. Without attending to the consequences which did occur, no one can believe that the company would have insured these goods for seven and a half per cent., if they had been told that two thirds of the cargo were enemies’ property covered by the agent of the assured, If the law given in charge, had been founded upon the assumption that there was no covered property on board, the case might have been different; but in the conclusion, the court say, even if Stites did cover Spanish property, yet if the plaintiffs had no knowledge of it, they were entitled to a verdict. For the purpose of stating the law, they therefore admit the fact of covering, and put the case upon the knowledge, which was wholly immaterial. The true question has never been submitted to the jury, and of course we are entitled to a venire de novo. Ingersoll and Lewis for the defendants in error. The bill of exceptions is bad in toto, because it was tendered in consequence of the court’s not charging that the evidence was a bar to the plaintiffs’ recovery. The form of the bill is taken from Buller’s Nisi Prius 317, where the defendant insisted that the evidence was decisive to give him the benefit of the 24 G. 3. c. 44. which was a bar to the action, and it was therefore a question of law; whereas in this case, where evidence was given on both sides, where the foreign sentence was not conclusive, and where the fact of agency, of enemy’s property, and of covering, were questions for the jury, it was impossible for the court to charge that the evidence was a bar, or that it was decisive. The bill of exceptions ought to be taken on some point_ of law arising upon a fact not disputed. Show. Par. Ca. 120. 1 Mod. Plead. 104, 105. Trials per Pais 222, 223. If a party wishes an opinion as to the sufficiency of the evidence, he must demur; Show. Par. Ca. 115; he cannot draw the whole matter into controversy again upon a writ of error. But further, if the bill contains matter upon which the party excepting was not overruled, it is not to be signed; Show. Par. Ca. 120; and as the only point upon which the plaintiffs in error were overruled, was as to the evidence being a bar, upon which they had no right to ask an opinion, we submit that the bill of exceptions falls; at least that the question in this court must be confined to that point. It is said that the evidence was decisive, because as there was no explanation given of the excess beyond the outfit, the warranty was falsified. This was in part matter of fact for the jury. But as matter of law the premises do not warrant the conclusion. The warranty applied only to the goods of the assured, not to the cargo of the vessel; and the neutrality of the former was proved. The case of Blagge v. The New-York Insurance Company does not apply. There the warranty extended to the whole cargo, and the excess was obtained at a hostile, port. Here the warranty was confined to particular goods, and the excess was taken in at the neutral island of St. Thomas. Whether the court were right in charging that the fact of enemies’ property was doubtful, is of no consequence. It was merely an opinion as to a question of fact, which is not examinable here. The admiralty proceedings, which are treated as if they were conclusive upon the matter, were not even evidence of it. The court were not wrong in the opinion which is the ground of the second objection. That opinion is to be understood in relation to the facts. The goods of the plaintiffs were clearly distinguishable from the property in the name of Stites; they were personally guiltless; and Stites was‘not their agent as to the property covered; and it results from all the admiralty cases, that under such circumstances, a discrimination is made between the guilty and the innocent property. The 3Iercurius recognises this principle. The cargo is not affected by breach of blockade, unless the owners are conusant of the blockade, or the captain is the agent of the cargo. In The Eenrom the whole property was invoiced as belonging to the same neutral owners, who had themselves directed the masking of the property; there was therefore no means of discrimination, and- the owners were personally implicated. It is there said, that if a neutral will weave a web of fraud, the admiralty will not take the trouble of picking out the threads for him, in order to distinguish the sound from the unsound. This is undoubtedly the rule. But if there is no web, if the threads are not interwoven, if the sound is already distinguished upon the papers, then it follows that the rule must be to restore. The Rosalie and Betty was also a case of mixed property; for Sir William Scott says in page 294, “ if Mr. Raster has any property in this cargo, if he “ has mixed his interest in any proportion with the interest “ of the enemy, and resorts to modes of prevarication to “ conceal the enemies’ interest, such a conduct will affect his “ own share.” It is the obscurity and doubt produced, not by the answers of the master, but by the state of the property itself, which leads to the condemnation of the whole; no means of discrimination being furnished by the documents of the property, as was required in The Franklin . In the case of Miller v. The Resolution the court of' appeals discriminated without hesitation when means were offered. The transportation of enemies’ goods is agreed to be lawful; when done fairly, the ship owner in case of capture gets full freight. The Copenhagen . The fraud consists in the concealment, and the penalty lies in the forfeiture of the concealed goods, and of those which are identified with them. Lee on Captures 141. What shews this rule decisively, is the conduct of the admiralty with respect to neutral ships in which property is masked. If the penalty extended to the whole property of the owner, whether distinguishable or not, the ship would be forfeited with the cargo; whereas the penalty in such a case is simply the loss of freight. The Atlas . The Vrow Henrica . The case of The Rising Sun is in point to the present. Then as to the liability of the owners for their agent. Certainly it cannot be to a greater extent, than if they were personally implicated; and even then the discriminated property is not forfeited. But in no case are owners implicated at all by the agent’s misconduct, except when he acts in relation to their-property, or under a general authority. In The Princessa the very property claimed by an Englishman, was shipped by his agent as Spanish. The Susa was a ship claimed for the American owner, whose agents had impressed upon her the character of a French ship; and in The Mars, where Sir William Scott asserts the rule that the owner is answerable penally to the whole amount of the property under the agent’s care, the whole property was in fact claimed by the American owner, and the fraud was in relation to the whole. In Crousillat v. Ball the master was the general agent of the whole cargo, and covered the enemies’ property in his owner’s name. Stites was not the agent of the plaintiffs as to the covered property, nor did he in fact act as their agent. He was joint supercargo with Thomas, who knew nothing of Stites's property. The two made one agent; neither could bind the principa! without the assent of the other. His acts alone could not therefore condemn his owner’s property. Nor did his conduct at Tortola lead to the condemnation. False papers, prevarication, spoliation, are not a ground of condemnation,' but merely causes of suspicion, grounds for further proof, or of refusing costs upon acquittal. The Rising Sun . 2 Brown Civ. and Adm. 450. Lee on Cap. 238, 240. The fact is that the cargo and ship, the latter of which was clear American property and never would have been condemned on account of the covered goods, were both condemned for another cause; and that was her sailing from an enemy’s colony to a port not in her own country, contrary to the spirit of the order of 24-th June 1803. It follows therefore from the whole, that nothing was done by the agent of the assured to compromit the neutrality of the goods insured, that the warranty was performed, and that the opinion of the court was right. As to the increase of the risk, it was a matter of fact for the jury, and the court were not asked to charge upon that point. But the risk was not increased; not the risk of being' taken in, because the underwriters must have known that the vessel would be taken in if met on this voyage; nor the risk of being condemned, because condemnation followed from the voyage; and if it did not, it could not result, as has before been shewn, from covering property as Stites is said to have covered it. At all events the plaintiffs’ agent did not increase the risk as agent, but as captain. In Calbraith v. Gracie, it was the supercargo whose acts condemned the property. The errors in the conclusion of the charge, if any, were in favour of the defendants; because' the jury were told that if the assured knew of the covering, they were not entitled to a verdict; whereas their knowledge of the fact ought not to be followed by any such result; they ought at least to have been parties to it. In reply to the argument against the bill of exceptions, it was said that there were two questions. 1. Whether on the face of the bill a writ of error would lie. 2. Whether there was sufficient on the record to reverse the judgment. As to the first, a bill of exceptions lies to the whole charge, because it lies to each part separately. The word dedsive does not mean conclusive; but that the evidence was such as entitled us to a decision in our favour, and so the judge was asked to charge. If he had said that the evidence had weight, and so referred it to the jury, no exception could have been taken; but instead of that, the opinion of the court was given upon points of law, all of which we say are erroneous, when applied to the facts, and we have excepted to all. If the bill was too broadly taken, it should have been corrected below; it is now too late. As to the second question, that rests upon the argument already m de. The ship had probably been repaired in the mean time, so as to increase her value. The two thirds -were sold for 800 dollars, and the sale of the remaining third was as security for debts to the amount of 1235 dollars. 1 Caines 565. 1 Rob. 71. 2 Rob. 7. 2 Rob. 43. 2 Rob. 214. 6 Rob. 87. 4 Dall. 294. 2 Rob. 289. 70. & 2.709. 6 Sob. 134. 2 Dall. 14, 2. Rob. 245. 3 Rob. 245. note a- 4 Rob. 282. 2 Rob. 8~, 2 Rob. 89, [MAJORITY — Tilghman C. J.] 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 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 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 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 verdiet 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. Ante 80.