Page images
PDF
EPUB

which excuses a carrier, must be not only the proximate cause of the loss, (m) but there are cases which lead to the conclusion that it must be the sole cause. If, therefore, *161 the carrier wrongfully delays the transportation of goods, and they are injured because of the delay by a flood, the carrier would be held liable, not only because the act of God was, although the proximate, not the sole cause, but because such a delay operates as a deviation in marine insurance, changing the risk. (n)

But whether the loss be caused by excess or deficiency of wind,

against a pier, and overset by the violence of the shock, has been adjudged to be the act of God, or vis divina. The sudden gust in the case of the hoyman, and the sudden and entire failure of the wind sufficient to enable the vessel to beat, are equally to be considered the acts of God. He caused the gust to blow in the one case; and in the other the wind was stayed by Him." Colt v. Mc Mechen, 6 Johns. 160. This case, however, has met with the disapprobation of Mr. Wallace. See the note to Coggs v. Bernard, 1 Smith, Lead. Cas. 82.

(m) Smith v. Shepherd, Abbott on Shipping, 383 (5th Am. Ed.), was an action brought against the master of a vessel navigating the rivers Ouse and Humber from Selby to Hull, by a person whose goods had been wet and spoiled. At the trial, it appeared in evidence, that at the entrance of the harbor at Hull there was a bank on which vessels used to lie in safety, but of which a part had been swept away by a great flood some short time before the misfortune in question, so that it had become perfectly steep, instead of shelving towards the river; that a few days after this flood a vessel sunk by getting on this bank, and her mast, which was carried away, was suffered to float in the river tied to some part of the vessel; and the defendant, upon sailing into the harbor, struck against the mast, which, not giving way, forced the defendant's vessel towards the bank, where she struck, and would have remained safe had the bank remained in its former sit uation, but on the tide ebbing, her stern sunk into the water, and the goods were spoiled; upon which the defendant tendered evidence to show that there had been no actual negligence. Mr. Justice Heath, before whom the cause was tried, rejected the evidence; and he further ruled that the act of God, which could excuse the defendant, must be immediate; but this was too remote; and directed the

jury to find a verdict for the plaintiff, and they accordingly did so. The case was afterwards submitted to the consideration of the Court of King's Bench, who approved of the direction of the learned judge at the trial, and the plaintiff succeeded in the cause. There does not appear to have existed in this case any bill of lading, or other instrument of contract; and the question, therefore, depended upon general principles, and not upon the meaning of any particular word or exception. Mr. Justice Story, in commenting upon this case, says: "If the mast, which was the immediate cause of the loss, had not been in the way; but the bank had been suddenly removed by an earthquake, or the removal of the bank had been unknown, and the vessel had gone on the bank in the usual manner, the decision would have been otherwise." Story on Bailm. § 517. And this opinion seems to be supported by the case of Smyrl. Niolon, 2 Bailey, 421, where it is held, that a loss caused by a boat's running on an unknown " " in the snag usual channel of a river is referable to the act of God; and the carrier will be excused. See also Faulkner v. Wright, Rice, 107; and Williams v. Grant, 1 Coun. 487. On the other hand, in Friend v. Woods, & Gratt. 189, where a common carrier on the Kanawha River stranded his boat upon a bar recently formed in the ordinary channel of the river, of the existence of which he was previously ignorant, he was held liable for damage done to the freight on board his boat. And this last case has received the support of Mr. Wallace, one of the learned American editors of Smith's Leading Cases. See his note to Coggs v. Bernard, 1 Smith, Lead. Cas. 82. See also Steamboat Lynx v. King, 12 Mo. 272.

(n) Read v. Spaulding, 5 Bosw. 395; same case, 30 N. Y. 630; Lowe v. Moss, 12 Ill. 477; Michaels v. N. Y. R. R. Co. id. 564.

or any other act of God, if the negligence of the carrier mingles with it as an active and sufficiently proximate cause, he is responsible. (0) So he is for a loss by fire, whether on land or at sea, unless it is caused by lightning ; (p) and this rule is applied to steamboats. (q) But the freezing of our navigable waters, whether natural or artificial, excuses the carrier, unless his negligence co-operates in causing the loss. (r) 1

If the goods are taken from the carrier by legal process, with no fault on his part, he is excused for non-delivery, but must give immediate notice to the owner. (rr)

(0) Amies v. Stevens, 1 Stra. 128; Williams v. Branson, 1 Murphey, 417; Williams . Grant, 1 Conn. 487; Campbell . Morse, Harp. L. 468; Clark v. Barnwell, 12 How. 272; New Brunswick S. Co. v. Tiers, 4 Zab. 697.

(p) Forward v. Pittard, 1 T. R. 27; Thorogood v. Marsh, Gow, 105; Hale v. N. J. Steam Navigation Co. 15 Conn. 539, 545; Parker v. Flagg, 26 Me. 181; Parsons v. Monteath, 13 Barb. 353; Chevaillier v. Straham, 2 Tex. 115; Miller v. Steam Navigation Co. 10 N. Y. (6 Seld.) 431; Merchants', &c. Co. v. Smith, 76 Ill. 542; Merchants', &c. Co. v. Theilbar, 86 Ill. 71; Empire Transportation Co. v. Wamsutta Oil Co. 63 Pa. 14.

279.

(q) Gilmore v. Carman, 1 Sm. & M.

(r) Parsons . Hardy, 14 Wend. 215. But the carrier is nevertheless bound to exercise ordinary forecast in anticipating the obstruction; must use the proper means to overcome it; and exercise due diligence to accomplish the transportation he has undertaken, as soon as the obstruction ceases to operate, and in the mean time must not be guilty of negli gence in the care of the property. Bowman v. Teall, 23 Wend. 306. See also

Lowe v. Moss, 12 Ill. 477. And where damage was done to a cargo by water escaping through the pipe of a steamboiler, in consequence of the pipe having been cracked by frost; it was held, that this was not an act of God, but negligence in the captain, in filling the boiler before the time for heating it, although it was the practice to fill overnight when the vessel started in the morning. And Best, C. J., said: "No one can doubt that this loss was occasioned by negligence. It is well known that frost will rend iron; and if so the master of a vessel cannot be justified in keeping water within his boiler in the middle of winter, when frost may be expected. The jury found that this was negligence, and I agree in their verdict." Siordet . Hall, 4 Bing. 607.

(rr) Bliven v. Hudson River R. R. Co. 36 N. Y. 403; Ohio, &c. R. R. Co. v. Yohe, 51 Ind. 181; French v. Star Union Transportation Co. 134 Mass. 288; Pingree v. Detroit, &c. R. R. Co. 66 Mich. 143; McAlister v. Chicago, &c. R. R. Co. 74 Mo. 351; Jewett v. Oleson, 18 Ore. 419; Furman v. Chicago, &c. Ry. Co. 37 Ia. 42; 62 Ia. 395; 68 la. 219; 81 Ia. 540.

1 A carrier is not liable for destruction by an unusual and sudden flood which could not have been foreseen or guarded against. Strouss v. Wabash, &c. Ry. Co. 17 Fed. Rep. 209; Norris v. Savannah, &c. Ry. Co. 23 Fla. 182; Nashville, &c. R. R. Co. v. David, 6 Heisk. 261; Nashville, &c. R. R. Co. v. King, 6 Heisk. 269. Or by an earthquake. Slater v. South Carolina Ry. Co. 29 S. C. 96. Or by a heavy snow storm. Chapin . Chicago, &c. Ry. Co. 79 la. 582; Pruitt v. Hannibal, &c. R. R. Co. 62 Mo. 527; Black v. Chicago, &c. R. R. Co. 30 Neb. 197; Feinberg . Delaware, &c. R. R. Co. 52 N. J. L. 451, 454. Or by an unusually severe gale. Blythe . Denver, &c. Ry. Co. 15 Col. 333. But the destruction of a vessel by a storm, which would not have destroyed a seaworthy vessel, does not excuse the owner from his liability as a common carrier. Packard v. Taylor, 35 Ark. 402. Nor will destruction by a landslide excuse if caused by ordinary rain, as it should have been guarded against. Gleeson v. Virginia Midland R. R. Co. 140 U. S. 435. When a loss takes place the burden is on the carrier to show that it was caused by act of God. Davis v. Wabash, &c. Ry. Co. 89 Mo. 340; Wallingford v. Columbia, &c. R. R. Co. 26 S. C. 258. But if by contract the carrier is excused from all losses except such as are caused by its own negligence, the burden is on the owner of the goods to prove the carrier's negligence. Witting v. St. Louis, &c. Ry. Co. 101 Mo. 631.

*If the goods have been injured by such an act of God, *162 the carrier is still bound to take all reasonable care of them, to preserve them from further injury; but is not bound to repair them or have them repaired; (s) and if practicable he should unpack the goods and dry them; (t) and for this purpose he may open barrels and boxes; (u) but he is not bound to delay his voyage or journey for that purpose. (v)

The carrier is not liable for any loss from natural decay of perishable goods, such as fruit or the like; or the fermentation of liquors, or their evaporation or leakage. (w) And it has been. held, that a carrier of animals is not liable for injury to them, caused by the peculiar risks arising out of their own nature, to which they are subject. He would not be liable for an accident arising from the animal's own viciousness, or restiveness, or of that of other animals transported with it. In such cases the cause of the loss is a question to be determined by the jury. (x) So far as losses of this kind are caused by the operation of natural laws, they come within the exception of the "act of God." But the carrier is nevertheless not excused if the loss was caused also by his default, as by bad stowage, or other negligence. And if he is informed that the goods are perishable, or should know it from the nature of the goods, he is bound to use all reasonable means and precautions to prevent the loss. (y) So if a particular

(s) Charleston S. B. Co. v. Bason, Harper, 262.

(i) Chouteau v. Leech, 18 Pa. 224. (u) Bird v. Cromwell, 1 Mo. 81. (e) Steamboat Lynx v. King, 12 Mo. 272. See Notara v. Henderson, L. R. 5 Q. B. 346; 7 Q. B. 225.

(w) Thus, if an action be brought against a carrier for negligently driving his cart, so that a pipe of wine was burst and lost, it will be good evidence for the defendant that the wine was upon the ferment, and when the pipe was burst

he was driving gently. Per Lord Holt, in Farrar v. Adams, Bull. N. P. 69. See also Leach v. Baldwin, 5 Watts, 446; Warden v. Greer, 6 Watts, 424; Clark v. Barnwell, 12 How. 272. And where there is a custom to carry goods in open wag ons, of which the sender had notice, the carrier is not liable for injuries caused by rains during the transportation. Chevaillier v. Patton, 10 Tex. 344.

(x) Hall v. Renfro, 3 Met. (Ky.) 51. (y) Farrar v. Adams, supra.

1 A common carrier is not liable for loss or damage caused by an inherent defect in the thing or animal carried without any fault of the carrier, or by the manner of packing or loading, the responsibility of which the owner has assumed, or by any want of care which the owner was to exercise. Rixford v. Smith, 52 N. H. 355; Chapin v. Chicago, &c. R. R. Co. 79 Ia. 528. But where the cause of damage to live-stock, for which recovery is sought, is not connected with the conduct, character, or propensities of the animals undertaken to be carried, the ordinary responsibility of the carrier should attach. McCoy v. K. & D. M. R. Co. 44 Ia. 424. Thus Blower v. Great Western Railway, L. R. 7 C. P. 655, decided that a common carrier was not liable for the loss of a bullock which escaped solely by its own efforts from a proper car in which it had been placed, and was killed without any negligence on the carrier's part. Carriers of livestock are liable for any loss occasioned by their failure to provide them with water. Toledo, &c. R. Co. v. Hamilton, 76 Ill. 393. See Michigan, &c. R. Co. v. McDonough, 21 Mich. 165. — K.

notice is given him; as by marking the box, "Glass, this side up," or the like, he is bound to take notice and follow these directions. (2)

* 163

* Losses by the public enemy include those only which are sustained from persons with whom the State or nation is at war; and pirates on the high seas, who are "the enemies of all mankind;" (a) but not thieves; or robbers; nor mobs; nor rioters, insurgents, or rebels. (b) But this principle may be affected by the rule that robbery at sea is piracy.

SECTION VI.

WHO IS A COMMON CARRIER.

To determine who is a common carrier, we adopt the definition of Mr. Chief Justice Parker of Massachusetts. He is one who undertakes, for hire, to transport the goods of such as choose to employ him, from place to place. "(c) And we regard this as a

(z) Thus, where a box containing a glass bottle filled with oil of cloves, delivered to a common carrier, was marked, "Glass-with care- this side up;" it was held, that this was a sufficient notice of the value and nature of the contents to charge him for the loss of the oil, occasioned by his disregarding such direction. And Shaw, C. J., said; "It is not denied that the box was marked, 'Glass — with care -this side up,' which was quite sufficient notice to the defendant that the article was valuable, and liable to injury from rough handling and other causes, and that there was danger in carrying it in any other position than the one indicated by the inscription. As the carriage is a matter of contract, as the owner has a right to judge for himself what position is best adapted to carrying goods of this description with safety, and to direct how they shall be carried, and as the carrier has a right to fix his own rate for the carriage, or refuse altogether to take the goods with such directions, the court are all of opinion, that if a carrier accepts goods for carriage, thus marked, he is bound to carry the goods in the manner and position required by the notice. Here it is in evidence, and not denied, that the box was stowed in such a manner that the marked side was

[ocr errors]

not kept up, and consequently the large bottle, which was broken by some cause in the passage, after it was stowed and before its arrival, bore its weight upon its side, and not on its bottom." Hastings v. Pepper, 11 Pick. 41. See also Sager v. Portsmouth Railroad Co. 31 Me. 228; and Cougar v. Galena R. R. Co. 17 Wis. 477.

(a) Story on Bailm., §§ 25, 526; Angell, Com. Car. § 200. We have ventured to include pirates within the exception of" public enemies," on the authority of these eminent text-writers. The cases however, which they cite, arose upon bills of lading, which contained the ex ception of the "perils of the sea;" and the only question made in those cases was whether a loss by pirates came within the latter exception; and the testimony of merchants was taken as to the mercantile usage in that respect. See Pickering v. Barkley, 2 Roll. Abr. 248; s. c. Styles, 132; Barton v. Wolliford, Comb, 56.

(b) Morse v. Slue, 1 Vent. 190, 238.

(c) Dwight v. Brewster, 1 Pick. 50. 53. A similar definition is given in Robertson v. Kennedy, 2 Dana, 430; Elkins v. Boston & Maine R. R. Co. 3 Foster (N. H.), 275; Mershon v. Hobensack, 2 N. J. 373. So in Gisbourn v. Hurst, 1

1 An express company that receives and agrees to transport goods from a certain place to another for a compensation, in the ordinary means of conveyance, although

true definition, although in some of the States it has been held, that a wagoner who carried goods on a special request, although such carrying was not his general business, but only *occasional and incidental, was still a common carrier. (d) *164

[blocks in formation]

(d) Gordon v. Hutchinson, 1 W. & S. 285. In this case the defendant being a farmer, applied at the store of the plaintiff for the hauling of goods from Lewistown to Bellefonte, upon his return from the former place, where he was going with a load of iron. He received an order and loaded the goods. On the way, the head came out of a hogshead of molasses, and it was wholly lost; and this action was brought to recover the price of it. The defendant contended that he was not subject to the responsibilities of a common carrier, but only answerable for negligence, inasmuch as he was only employed occasionally to carry for hire. But the learned judge before whom the case was tried in structed the jury that he was liable as a common carrier. And the Supreme Court held the instruction to be correct. Gibson, C. J., said: "The best definition of a common carrier, in its application to the business of this country, is that which Mr. Jeremy (Law of Carriers, 4) has taken from Gisbourn v. Hurst, 1 Salk. 249 [see preceding note], which was the case of one who was at first not thought to be a common carrier, only because he had, for some small time before brought cheese to London, and taken such goods as he could get to carry back into the country, at a reasonable price; but the goods having been distrained for the rent of a barn, into which he had put his wagon for safe-keeping, it was finally resolved that any man undertaking to carry the goods of all persons indifferently, is, as to exemption from distress, a common carrier. Mr. Justice Story has cited this case (Commentaries on Bailments, 322), to prove that a common carrier is one who holds himself out as ready to

engage in the transportation of goods for hire as a business, and not as a casual occupation, pro hâc vice. My conclusion from it is different. I take it a wagoner who carries goods for hire is a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment. It is true, the court went no further than to say the wagoner was a common carrier, as to the privilege of exemption from distress; but his contract was held not to be a private undertaking, as the court was at first inclined to consider it, but a public engagement by reason of his readiness to carry for any one who would employ him, without regard to his other avocations; and he would consequently not only be entitled to the privileges, but be subject to the responsibilities of a common carrier; indeed, they are correlative, and there is no reason why he should enjoy the one without being burdened with the other. Chancellor Kent (2 Com. 597) states the law, on the authority of Robinson v. Dunmore, 2 B. & P. 416, to be, that a carrier for hire in a particular case, not exercising the business of a common carrier, is auswerable only for ordinary neglect, unless he assume the risk of a common carrier by express contract; and Mr. Justice Story (Com. on Bailments, 298), as well as the learned annotator on Sir William Jones' Essay (Law of Bailm. 103 d. n. 3), does the same on the authority of the same case. There, however, the defendant was held liable, on a special contract of warranty, that the goods should go safe; and it was therefore not material whether he was a general carrier or not. The judges indeed said that he was not a common carrier, but one who had put himself in the case of a common carrier by his agreement; yet even a common carrier may restrict his responsibility by a special acceptance of the goods, and

not the owner, and having no interest in the conveyance by which the goods are transported, is a common carrier. Overland, &c. Express Co. v. Carroll, 7 Col. 43; U.S. Express Co. v. Backman, 28 Ohio St. 144; Bennett v. Northern Pac. Express Co. 12 Ore. 49; Grogan . Adams Express Co. 114 Pa. 523; but not a log-driving company, Mann v. White River Log, &c. Co., 46 Mich. 38. Nor a vessel hired to carry a single cargo. The Dan, 40 Fed. Rep. 691; cf. Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338, where a lighterman letting barges to one customer at a time under a separate agreement with each for the conveyance of goods between any points such customer wished, was held liable for goods lost without negligence. Sleeping and parlor car companies are not common carriers. See cases cited ante, p. *145, n.

« PreviousContinue »