
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1803.
    Himely v. Stewart.
    Where goods insured are masked to avoid a capture at sea, the mask must ie preserved: and if the master of the vessel, in which they are la* den, has agreed with the insured to protect them by claiming them as his own, he is the ag’ent of the insured for that purpose, and is bound to take every necessary measure, and use every precaution, consistent with his duty, to preserve the property; and if the goods are lost by his failure to do so, the insurer will not be liable.
    So, if the insured send papers by the same vessel with the goods, which lead to a discovery of the contrivance, and enable the captors to un* mask the property, the insurer is not liable.
    Motion, in behalf of the defendant, for a new trial. This cause was tried in Charleston district, before Gktmke, J„ last term. The action was on a policy of insurance. The material facts in the case were these. The captain of an American vessel, going to Havana, engaged with the plaintiff to carry certain jewelry’ from Charleston to Havana, and in case of capture to claim them as his ewn, it being the practice among privateers to exempt from con. demnation the property of the captain or masters of vessels captured; and in order the more effectually to mask the property, the captain agreed to put the same in his own chest. In pursuance of this agreement the goods were not put down on the manifest and clearance. The defendant insured the goods. The policy of insurance was underwritten by others, without any communication with each other, ou the representation of the plaintiff. The un. derwriters were not informed whether the plaintiff was to send a bill of lading of the goods, or other account of them, by the same Vessel which was to take the goods. They made no enquiry as to this. The plaintiff however wrote by t e same vessel to his corres, pandeut and consignee at Havaua, and enclosed a bill of lading of these goods. It was not proved satisfactorily, what the usage of trade is in this respect, where property is thus masked. The practice most common seemed to be, to send the bill of lading, &e. by some other vessel. The insurers expecied that the giods were to go as the adventure of the captain, and had no idea that the papers sent by the plaintiff were to go in the same vessel. The Vessel was captured on her passage to the West Indies. The goods insured were placed at first in the captain’s trunk) bitl jj j been taken out before the caeture. The captain claimed them at first ..s liis; hut the bill of lading, &c. sent by the plaintiff leading to a discovery of the truth, the captain afterwards confessed" that the goods belonged to the plaintiff. These goods were con-demoed in the British Admiralty Court in the West Indies, as sub* ject to capture. The captain w,as a witness in the case,' and also' the underwriters, who had previously underwritten. 8'T. R. 27. The jury found a verdict for the plaintiff.
    The counsel’for the defendant argued that the verdict was con» trary to law and evidence. That the public interest and conve. ftience require that policies of insurance should receive a liberal Construction, couform .ble to the intention of the contracting par*» ties, and the usage of trade ; whereas the presiding Judge on the' trial had not expouuded the contract according to this principle, but hud given it the most rigid interpretation it would bear. That in all cases ol this kind involving questions of misrepresentation, and concealment of material circumstances, amounting to legal fraud, or fraud iu legal construction, the internal evidence arising out of the case, corroborated by other evidence, circumstantial and presumptive, ought to be deemed sufficient proof; whereas in this case the same was mtirely disregarded. That as it did'no't appear’ that the defendant had signed the policy upon the credit of those underwriters who had signed it before him, and ofi the truth of the' representations made to them, but had enquired of the1 plaintiff him.self, he could not be affected by any oiher representations than those made to himself; whereas it was allowed the plaintiff to give evidence at the trial, not only of the representations made by himself, to the defendant, but of those made to other persons who had signed the policy before him. That the less of goods was occasioned by the pluiutrffs sending double papers, which led to a disclosure of the truth, and defeated the o‘l ject in view ; and the loss ought tobe borne by him and not by the defendant, this conduct of' the plain, tiff being contrary to the intent of the policy. That the captain' had nol fulfilled his engagement to the plaintiff in preserving the mask, by keeping the goods in his trunk, and claiming them as his own; and that as the captain must bo considered the confidential' friend and agent of the plaintiff, and not of the defendant, who must have underwritten the policy, under a persuasion that the plaintiff might, confide in his agent, and that the plaintiff engaged for his agent’s faithful performance of what was to be done by: him, the loss occasioned by the neglect or misconduct of the captain under the circumstance of the case vacated the policy.
    The plaintiffs counsel contended that the neglect or misconduct of the captain, admitting that any such could be collected or inferred in this case, ought not to vitiate the policy ; for that the insurer is always supposed to insure against this as well as other things within the scope of the policy. That as the usage of trade was not proved relative to double papers in the case of a mask of this description, the same could not be presumed to be different from what the Jury had found: and it had been in evidence at the trial, that double papers had sometimes been sent as in this case; and therefore that the circumstance of double papers having been sent in this case, and their having served to occasion the loss, was not sufficient to invalidate the contract, and to afford a good ground for a new trial. Park, 198, 183, 200. 1. Marsh. Ins. 368. Park, 207, 204.
   By the Court,

.(in the absence of Grimke J.,and Bay,J.,)

We are clearly of opinion that a new trial ought to be granted, on two grounds : First, because from the nature of the case, without proving what the usage of trade is, it must be evident that the defendant could not have been under the impression that any papers would be sent by the plaintiff, or carried knowingly by the captain, which in the event of a capture and search, would infallibiy lead to a detection of the contrivance, and unmask the property. He must have expected the contrary ; for he had reason to suppose that every proper precaution would be used by the plaintiff, and the captain, to mask the property insured in the way proposed, which was consitteut with the nature of the contraot, and the situation of the parties : and therefore the sending of double papers under these circumstances, must be considered as an act on the part of the plaintiff inconsistent with the cont, act, and contrary to what he must be supposed to have stipulated with the defendant when the policy was signed, inasmuch as these papers exposed the property to the very danger which the mask was intended to avoid.

Secondly, because the conduct of the captain; in exposing the goods to the suspicion of their not being his own, by taking them out of his trunk, in the first place ; and afterwards confessing that they did not belong to him, without an absolute necessity, for he made this confession before he was called upon to swear in the Vice Admiralty Court; was in violation of that confidence reposed in him by the plaintiff, on which the policy was predicated: and as it must be considered in the nature of the case, that the de-. fepdant did uot undertake to answer for the conduct of the captain in this behalf, who in this respect is to be regarded as the agent of the plaintiff, who represented him to the defendant as a person to be confided in, in masking the property as his own adventure; there. fore on this ground the policy was invalidated, and the plaintiff ought not to recover upon it.

Parker, Pringle, Cheves, for the, plaintiff. J. Ward, Da Saussure, Ford, for the defendant.

A new trial ordered,

Kioto. Whether the agreement collusively to cover property liable to captar* Was not contrary to national law and void, and fraudulent aa respects belligr? rants? See 1 Johns. N. Y. Reports 1, 19.  