The opinion of the Court was delivered by
Rogers, J.This is an action to recover the value of jewellery shipped by the agent of the plaintiff, at New Orleans, and consigned to him, as is alleged, on board the ship Georgian, Eldridge master; of which the defendant was owner. Defence was made on two grounds; 1. By a denial of any shipment of jewellery, and consequently that none could be embezzled; and, 2. Fraud, by concealing from the captain that jewellery was shipped, and fraudulently representing that the trunk contained glass — an article of much inferior value.
On an attentive examination of the charge, we think the jury would be warranted in believing, that, in the opinion of the court, the only material inquiry was, whether the goods had been em*25bezzled; which, of course, includes the question of delivery into the custody of the master of the ship. “ In the inquiry whether the goods were embezzled,” say the court, “ the most important and difficult part is to know whether or not the goods were put on board at New Orleans. The question is, was a trunk containing $1600 worth of jewellery put on board at New Orleans ? If a trunk containing all the jewellery was put on board there, there can be no dispute that it was not delivered; and, if it was purloined, defendants are liable.” After calling the attention of the witnesses to the testimony, the court proceeds 'to say; “ these are the only points I shall call your attention to;” thus leaving the jury to infer, and doubtless they must have so understood it, that the only matter worthy of investigation, was the delivery of the goods, and their consequent embezzlement. If this was the ordinary case of the loss of goods intrusted to a common carrier, there is nothing exceptionable in the charge; but it is not so; for it involves another question, equally as important as the first, attended with equal, if not more uncertainty; that is, the alleged fraud arising from the misrepresentation of the plaintiff’s agent. The defendant complains, and with great justice, that the attention of the jury was not called to this part of the defence, in such a manner as to make it a prominent matter for investigation. The uncontradicted testimony is, that the jewellery, if delivered at all, was contained in a trunk of the kind generally used in carrying shoes, and was labelled “ William D. Rapp—glass—this side up— with care.” The latter is equivalent to an assertion that the trunk contained glass; and, if untrue, it was such a fraudulent misrepresentation as will prevent a recovery against the owner of the ship, even if the jewellery was purloined by the captain, or any one of the crew. A common carrier is answerable for the loss of a box, or parcel of goods, though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance. Even that principle has been doubted; but the better opinion is, that' the carrier would be responsible. And this is reasonable; because he can always guard himself by a special acceptance, or by insisting to be made acquainted with the general nature of the articles, and of their value, before he consents to receive them. If he omits this, he shall not escape responsibility, because of his own negligence. But the rule is subject to a reasonable qualification; and if the owner be guilty of any fraud, or imposition, in respect to the carrier, as by concealing the value or nature of the article, or deludes him by his own carelessness in treating the parcel as a thing of no value, he cannot hold him liable for the loss of his goods. Such an imposition destroys all just claim to indemnity; for it goes to deprive the carrier of the compensation he is entitled to, in proportion to the value of the article intrusted to his care, and the consequent risk he incurs; and it tends to lessen the vigilance the carrier would otherwise *26bestow. 2 Kent’s Com. 603. The qualification of the rule is as important to be observed, as the rule. It is absolutely necessary for the protection of carriers; who would otherwise be exposed to great frauds. With what show of justice can a man ask to be paid for an article of great value, when-he has induced the carrier, by a false assertion, to believe that it is of much inferior value ? It is just, when he asks compensation from the innocent owner, to hold him strictly to his own declarations. He has no right, in order to cheapen the freight, which is the usual inducement, to expose the owner fo an increased risk; as must inevitably be the case, where the nature and value of the article are Studiously concealed. I take a distinction between the owner and the wrong-doer; for, undoubtedly, notwithstanding the conduct of the plaintiff, the person who purloined the goods would be responsible for their value, either criminally or in a civil suit. But it would be unjust to make the owner pay damages for a loss which may have been the consequence of the fraudulent act of the shipper, by inducing a relaxed attention, or may have been perpetrated by a confederate of his own. In addition to the captain and crew, there were passengers on board. Indeed, this is the alleged reason that the bill of lading, and the label on the trunk, were different from the articles which the trunk really contained. In cases of common carriers where there is no notice, the better opinion seems to be, that the party who sends the goods is not bound to disclose their value, unless he is asked. But the carrier has a right to make the inquiry, and to have a true answer; and, if he is deceived, and a false answer is given, he will not be responsible for any loss. If he makes no inquiries, and no artifice is used to mislead him, then he is responsible for-any loss, however great the value may be. Story on Bailm. 362. But when the shipper voluntarily informs the carrier of the value or of the nature of the article, what need of further inquiry ? Surely he cannot complain that the carrier believes his statement to be true. If untrue, it would be a violation of every principle of common justice, to cast the responsibility upon the innocent owner, merely because his agent puts faith in the declarations of the shipper. And what difference is there, in effect, between the case put, and labelling a box or trunk as containing an article differing in nature and value from its true character ? The one is as likely to delude the carrier as the other, and is as likely to be used as a means of fraud.
After calling the attention of the jury to what it would appear was thought the only matter worthy of consideration, the court say, “I am requested by the defendant’s counsel to charge you, that it was not the duty of the captain of the ship Georgian, to ask what were the contents of the trunk, confided to his charge, at New Orleans; that it was the duty of the shipper to cause to be placed on the bill of lading the nature and character of the contents of the trunk; that the shipper having put jewellery and *27watches in a trunk ordinarily used for carrying shoes, and marked it * glass,’ would prevent a recovery, if full information was not given of its contents.” To these questions, the court answer: “ If the captain wished to know what was in the trunk, he was bound to inquire, unless deception was used to mislead him; that it was not the shipper’s duty to put upon the bill of lading the nature and character of the contents of the trunk. And if it was so marked, and no communication made of its contents, it is answered affirmatively.” It cannot be said that these answers, taken together, ai’e wrong in the abstract; yet we cannot but feel that they are not such answers as were calculated to give the desired information to the jury, and that connected with the remarks before made by the court, they tended to divert the attention of the jury from the turning point of the cause. It was his (the captain’s) duty, to inquire the contents of the trunk, unless deception was used to mislead; but what the deception was, is not explained. The court should have instructed the jury, that if they believed what was not disputed, that the trunk was marked “ glass, this side up, with care,” he was not bound to inquire the contents of the trunk; that the assertion of the shipper, that it contained glass, dispensed with any further inquiry as to its contents. The party has a right to a plain and intelligible answer, predicated on the facts in evidence. And if after giving the charge a fair construction, it tends to mislead the jury, by inducing them to believe that there is but one point of defence, when in truth there are two, and the point omitted the most uncertain, the cause should be remanded for another hearing. The trunk being labelled “ glass,” it is incumbent on the shipper to explain, why it was so marked; and this the witness has endeavoured to do, by saying it was purposely so done, for reasons given by him, and that the contents of the trunk were made known to the captain. But this, which is the debatable ground, is positively denied; and some circumstances exist on both sides, which give a colour of truth to the respective statements. Whilst it is admitted, that public policy requires that common carriers should be held to an extraordinary responsibility, it is necessary to watch, with increased vigilance, the conduct of the owner of the goods. It should be free from the suspicion of fraud or deception. The carrier is in the nature of an insurer, and he has a right to a true account of the character and value of the goods he insures, and has a right to be protected against imposition or misrepresentation of the nature and value of the articles intrusted to his care.
Judgment reversed, and a venire de novo awarded.