At the time of the making of the contract of insurance upon which this action was brought, a state of war existed between Russia and Japan. In December, 1904, the defendant in error, being desirous of sending the steamship M. S. Dollar on a voyage from San Francisco to Vladivostok, caused the ship to be insured for the aggregate amount of £37,000 by various English insurers; the plaintiff in error being one of the insuring companies in the sum of £3,000, for the recovery of which sum the present suit was brought. The policy described the risk as “those risks excluded *128 by the warranted free from capture, seizure, and detention clause in marine policy or policies,” and covered the voyage from the port of San Francisco to Vladivostok, while there, and thence back to a safe neutral port. Vladivostok was at that time the principal naval station and base of supplies of Russia in its contest with Japan, and was being closely invested by the Japanese. The premium fixed in the policy was 25 per cent., with a provision to the' effect that 5 per cent, thereof should be returned should the ship sail before a certain date (subsequent to her actual departure), and 5 per cent, further if there were no claim made under the policy. The policy also contained an express provision giving the assured the “liberty to run blockade.” The insurance in question was effected through the agency of Bow-ring & Co., an English firm of brokers doing business • in London and also in San Francisco; one Comyn being their Pacific Coast manager. Comyn testified, over the objections and exceptions of the defendantcompany, that between him and the assured it was agreed as a condition precedent to the delivery of the policy in question, as well as the other policies taken out by the ship, that the premium should be prepaid at San Francisco simultaneously with such delivery, and arrangements were accordingly made by the assured with the Bank of California at San Francisco for the payment by it of the premiums to the Pacific Coast agent of Bowring & Co. upon receipt of the policies. In pursuance of that agreement, Mr. Comyn forwarded the application for the policies to Bowring & Co. at London, who, in turn, having procured the policies in London, forwarded them to their Pacific Coast agent, by whom they were delivered to the Bank of California at San Francisco on the payment of the premiums, the premiums being then forwarded by Comyn to the London firm; and this was the procedure in the case of the policy in suit. The M. S. Dollar, being so insured, sailed from San Francisco December 31, 1904, on her voyage. Before her departure, the master of {he vessel was directed by its managing owner to proceed to Vladivostok via La Perouse Straits if they were not blocked with ice, and, in the event of their being frozen, then to go through the Straits of Tsugar, and through the Sea of Japan. The evidence shows that the master left San Francisco with the intention of going through La Perouse Straits, which lie between the northernmost island of the Japanese group and the Kuril Islands. Tsugar Straits are further south, and lie between the Island of Yeddo and the main island of the Japanese group: The case shows that, for the pux-pose of evading capture by the Japanese, a false clearance of the ship was taken at San Francisco for Moji, Japan. The xnaster, having found La Pei’ouse Straits blocked by ice, passed to and through the Straits of Tsugai", and was then discovered in the Sea of Japaxx by a Japanese man of war, and, on the discovery of the falsity of her papers, the ship was taken in custody and conducted to Yokosuka. After the seizure, and on the 1st day of February, 1905, the assui-ed abandoned the ship to the insurance company, and she was in due course condemned by the Japanese Prize Court, and sold a.s a prize of war; the decree placing her condemnation on the ground that she was using the false papers as a means to evade capture.

*129 The plaintiff in error insists that the contract of insurance, was made in England, and must, in consequence, he controlled by the then prevailing law of England, and that it was error in the court below to leave to the jury, as it did, the determination as a fact of what the English law then was. The testimony of the witness Comyn tended to show that the contract in question was executed in San Francisco, in which event it would, of course, be controlled by the American rule upon the subject. Whether or not it becomes necessary to pass upon the defendant company’s objections to the testimony of Comyn will depend upon the conclusion we reach upon the main question in the case.

We assume that the trial court was in error in refusing to determine and declare to the jury what the law of England was upon the subject in band, and in leaving to it the determination of that matter as a question of fact. Nevertheless, if the case shows that the jury decided that question of law correctly, its submission to it by the court in the form it was submitted was without harm to the defendant. Minneapolis & St. L. R. Co. v. Col. Rolling M. Co., 119 U. S. 149 , 7 Sup. Ct. 168, 30 L. Ed. 376 ; Pence v. Laugdon, 99 U. S. 578 , 25 L. Ed. 420 . The policy in suit, as has been said, expressly gave to the assured the “liberty to run blockade.” It was, as a matter of course, only in view of the risks of the then prevailing war that the premium of 25 per cent, could be justified, and was paid. Insurance companies, like everybody else, must be held -to know that blockade runners in war times resort, and necessarily must resort, to many kinds of subterfuge — among others to the carrying" of false papers. Indeed, that is one of the most notorious.

Iti Buck v. Chesapeake Insurance Company, 1 Pet. 151, 160 , 7 L. Ed. 90 , the Supreme Court said:

Two English cases — Horneyer v. Lushington, 15 East, 46, and Os-well v. Vigne, 15 East, 70, decided January 28 and January 33, 18.12, respectively — are relied upon by the plaintiff in error as establish *130 ing the proposition that at the time of the execution of the contract of insurance here involved the law of England was that an insurer is not liable on a war risk policy for a condemnation because of the use of false papers, unless permission to carry false papers is expressly given in the policy. At the time, of the execution of the policies involved in those cases Sweden and Russia were at war. The policy in Horneyer v. Lushington was on goods “at and from Gottenburg to Riga, beginning the adventure on the goods .from the loading thereof aboard the ship at Gottenburg.” It appeared in the case that the ship sailed with a license and took on board simulated papers, representing that she came from Bergen in Norway. She arrived at Gottenburg, from whence, after receiving orders, she proceeded to and arrived at Riga, where her papers were taken and her hatches immediately sealed dówn by the government officers until her papers could be sent to St. Petersburg to be examined; and on such examination orders were immediately sent to Riga to seize the ship and cargo, which was done, and she was afterwards condemned with her cargo on the ground of having simulated papers on board. Lord Ellen-borough, with whom concurred the other judges, said:

Oswell v. Vigne was an action on a policy of assurance on the ship Wassila at and from London to any port or ports in the Baltic. The interest was averred in one Yakof Eomin and a total loss alleged upon attack and seizure of the enemy. It appeared at the trial that Fomin was a Russian subject; that the ship1 sailed with a license, the voyage insured from London to Petersburg, and, after touching at Gottenburg, was captured by a Danish privateer, carried into Arlborg, and condemned as prize to the captors, which sentence of condemnation was afterwards on appeal .affirmed by the Court of Admiralty at Copenhagen. It appeared that the captain on the voyage used false papers, which was at least one of the causes for the condemnation of the vessel. Lord Ellenborough said:

The other judges concurred in that conclusion.

In neither of those English cases did the policy of insurance contain any express consent to the carrying of false papers, nor did either of them contain any clause from which such consent could be inferred.

In the case at bar the insurer expressly stipulated in the policy that the assured should be at “liberty to run blockade.” Expressly consenting to that, it expressly consented to whatever acts are usually *131 done in such undertakings, and which, in the usual course of events, were to be expected. And such we understand to be the law of England, as well as of this country. The following excerpts from 2 Duer on Insurance, p. 627, are directly pertinent to the distinction above indicated:

Being of opinion, as we are, that both under the law of England and that of the United States the defendant company, under the facts shown, were liable to the assured by the terms of the policy, it is unimportant whether the contract was executed in London or in San Francisco, and therefore it is unnecessary to pass upon the objections made to Comyn’s testimony.

We think no other point made calls for special notice, although all of them have been carefully considered.

The judgment is affirmed;