delivered the opinion of the court. I am entirely satisfied with the finding of the jury on the matter of fact which was submitted to their consideration by the learned judge before whom the cause was tried. The loss of a part of the nutmegs was satisfactorily proved by the plaintiffs’ witnesses, and their evidence is not shaken by what was testified by the mate, even admitting what he ‘"swore to have been believed by the jury. It is altogether probable that the nutmegs were purloined by the custom-house officers, while they were stowed in the ship’s hold, in London.. But this is a loss for which the defendant is liable, unless the special circumstances which attended it, or the particular contract between the master and consignees, take this case out of the general rule of law.
The master and owners are responsible for every injury that might have been prevented by human foresight or care. They are liable for goods stolen or embezzled on board the ship, by the crew or any other-persons, although no negligence may be imputable to them. Tinrigour of the law in this respect arises from reasons of public policy, and to prevent the combinations that might be made with thieves and robbers. (1 Marsh. Ins. 156, 157. Abbott on Ship. 182. 202. 196. part 3. c. 2. s. 3. Morse v. Slue, 1 Ventr. 190. 238. T. Raym. 220. Malloy, book 2. c. 2. s. 12. Hob. 17. Cro. Jac. 330.)
*178It is, however, insisted, for the defendant, that after the master was prevented from delivering the goods, by reason °f their being prohibited articles, he is no longer to be regarded in the light of a common carrier, but as a mere bailee, and so liable for negligence only.
In giving my opinion upon this part of the case, I lay out of view the imputation upon the plaintiffs, that they fraudulently shipped prohibited goods. Such a . measure would be without any assignable motive, and the charge is moreover repelled by the fact stated in the case, that it “ was found on the arrival of the ship at London, that all the goods mentioned in the bill of lading were inadmissible.” The just inference from this is, that until the arrival of the ship at London, this fact was equally unknown to both parties ; and if so thére was n® fraud or fault imputable to the plaintiffs. As soon as it was discovered that the goods could not be landed, a new contract was made between the consignees and the master, by wjaich the latter agreed to suffer the goods to re* main on board, until he should sail for New-Tork, and that he yi^oukl carry them back to the owners there, by the return qf the ship ; and pursuant to that agreement, on the day the ship sailed from London, the endorsement stated in the case, was made on the bill of lading, and the amount of the freight was thereby fixed and determined. Here was a complete contract for conveying the goods in question from London to New-Tork., for a stipulated compensation ; and from the time it was entered into, the goods were in the master’s charge, as a common carrier; and he became bound to deliver them in the same state in which they were shipped ; and he, as well as the owner, was answerable for all loss or damage for which common carriers are by law made liable. What, then, is there in this case to exempt the defendant from making good the loss which occurred ? It is said, that the nutmegs must have been stolen by the custom-house officers, while they were on board the ship, and had access *179to them, in order to prevent them from being smuggled on shore. But this is no excuse. It was the duty of the master to guard against such accidents ; and if he has neglected to do it, or been so unfortunate as not' to detect, the theft, if one was committed, he,Sand not the shipper, must bear the loss. This was one of the risks which he agreed to assume; and he must have known that some persons, in all probability, would be stationed on board, to guard against any attempt to run the goods, because such a precaution was both reasonable and right.
The master was left in the full possession of the ship, and his control over her and her cargo, except as it related to the landing of the goods in question, was as complete as if the custom-house officers had not been on board.
This distinguishes the present from cases where it has been held, that during the period of detention by captors, as prize, or by the belligerent for adjudication, all the responsibilities of the master and crew are suspended.
In such cases, the master is temporarily deprived of his command; but such was not the effect of having the custom-house officers placed on board of this vessel, for purposes altogether different and justifiable.
To admit such an excuse as this would be opening the door- to all the evils to be apprehended from fraudulent combinations and collusions between the master and the crew and other persons, which it was the policy of the law to prevent.
But it is said, that by the endorsement on the bill of lading, “ it was agreed, that the goods were to be returned to the shippers at their own risk,” and that this amounts to a special acceptance of them by the carrier. I am not prepared to say, what precisely was intended by the introduction of those words. I should be inclined, were it necessary to express an opinion, to adopt the construction given to them by the learned judge on the trial. Per - *180haps it was a mere cautionary measure, on the part of the consignees, to save themselves from all responsibility, for having reshipped the goods, before they had an opportunity t0 consult their principals, without having them insured. . But I am very clear, that it never could be designed to throw a loss that might arise from embezzlement, by the crew or others, upon the shipper. Such a construction would exonerate the captain from all the risks for which he would otherwise have been liable, which, would be going much farther than the terms of the contract would warrant.
■' It is undoubtedly true, that' the general operation of law may be controlled by the agreement of the parties. But . such agreement ought to be clear, and capable of but one construction, unequivocally and necessarily evin-. cing that such was the intention of both the parties.
The freight which the plaintiffs were to pay from NewTirk to London was, as appears from the bill of lading, 12l. 4s. 2d. sterling, and for carrying them back they were to pay 20l. 7s. sterling, being a difference of 8l. 2s. 10d. This fact, I think, has some weight to show that such a freight would not have been paid, if the master was to be exonerated from all liability for any loss that might accrue in the transportation, except such as should arise from negligence only. The court are of opinion, therefore, that the motion for a new trial should be de-. nied.
Judgment for the plaintiffs,