tract.' "20 But it is submitted that a paper which states the terms on which goods have been delivered and received, if those terms require action by the bailee, as is the case with the terms in a bill of lading, involves a promise to perform those terms and, therefore, is a contract. It would be possible doubtless for a writing to contain a recital of what previously had been agreed, and not a statement of present agreement; and this seems to be the view expressed in the quotation above, but the ordinary bill of lading is rather to be construed as stating what the parties agree at the time of shipment, than as reciting a previous contract made by them. In bills of lading issued by railroads indeed no other view is possible, for there is generally nothing in the way of a preliminary agreement prior to the issue of the bill of lading. Such a bill must necessarily be the written expression of the contract between the parties. Even where a preliminary agreement exists the bill of lading is given in the same form as where no such preliminary contract existed. If the bill of lading is a written contract in one case, it would seem to be such in the other. In spite, therefore, of the statement quoted above it seems clear that a bill of lading is not simply a receipt, but a written contract. Moreover, "that part of the bill which constitutes a receipt may be treated as distinct from the part incorporating the contractual terms. Ordinarily parol evidence will not be admitted to vary the terms or legal effect of a bill of lading considered as a contract between the parties to it, although, it seems, that as a receipt for the goods it may be contradicted by oral testimony." 21

§ 1089. Liability of a carrier for destruction of goods.

If a shipowner or other carrier is not a common carrier, he is simply a bailee for hire of goods in his charge and liable as such; 22 except so far as a shipowner's obligation that his

20 Lord Bramwell in Sewell v. Burdick, 10 A. C. 74, 105.

21 In the Matter of Bills of Lading, 52 Interstate Com. Com. Rep. 671, 681, citing The Delaware, 14 Wall. 579, 20 L. Ed. 779; Higgins v. U. S. Mail S. S. Co., 3 Blatchf. 282; Myer

v. Peck, 28 N. Y. 590; Porter, Law of Bills of Lading, § 14.

22 Supra, § 1045. See Nugent v. Smith, 1 C. P. D. 423, at page 434. (In the same case below, 1 C. P. D. 19, Brett, J., held that every shipowner is subject to the extraordinary liability

vessel shall be seaworthy, and other warranties impose additional liabilities. Unless his liability is more narrowly limited by special contract, a common carrier is liable for injuries to goods in transit, 23 which were not caused by act of God, by the country's enemies, by legal seizure, by the inherent nature of the goods themselves, or by the negligence of the owner of them.24 He is therefore liable irrespective of any negligence on his part for damage caused by fire, 25 theft, 26 or collision.27 If made necessary by perils of the sea without fault of the owner or his agents, jettison of any part or of all of the cargo may be made without liability. 28

A sleeping-car company is subject neither to the severe rule of liability for loss of property applicable to carriers nor to that applicable to innkeepers, but is liable only for negligence. The mere fact of loss by a passenger in a sleepingcar may, however, so strongly indicate negligence as to establish without more a prima facie case of liability.30

29

of a common carrier.) The Xantho, 12 A. C. 503; Allen v. Sackrider, 37 N. Y. 341.

23 See infra, § 1104, as to when this extraordinary liability begins and ends. 24 Nugent v. Smith, 1 C. P. D. 19, 423; Baldwin v. London, etc., R. Co., Q. B. D. 582; Pandorf v. Hamilton, 17 Q. B. D. 670, 683; Ames Mercantile Co. v. Kimball S. S. Co., 125 Fed. 332, 335; Louisville & Nashville R. Co. v. Taylor (Ky.), 205 S. W. 934, and see the following sections.

25 Louisville, etc., Packet Co. v. Rogers, 20 Ind. App. 594, 49 N. E. 970; Stiles v. Louisville &c. R. Co. 129 Ky. 175, 110 S. W. 820, 130 Am. St. Rep. 429; Miller v. Steam Navigation Co., 10 N. Y. 431. Cf. Lehman v. Morgan &c. S. S. Co. 115 La. 1, 38 So. 873, 70 L. R. A. 562, 112 Am. St. Rep. 259.

26 The Saratoga, 20 Fed. 869; Boon v. The Belfast, 40 Ala. 184, 88 Am. Dec. 761; The Belfast v. Boon, 41 Ala. 50; Schieffelin v. Harvey, 6 Johns. 170, 5 Am. Dec. 206.

27 Plaisted v. Boston, etc., Navigation Co., 27 Me. 132, 46 Am. Dec. 587; Mershon v. Hobensack, 22 N. J. L. 372; Hays v. Kennedy, 41 Pa. 378, 80 Am. Dec. 627.

28 Whitecross Wire, etc., Co. v. Savill, 8 Q. B. D. 653; Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58; The Rebecca, 1 Ware, 187; Bentley v. Bustard, 16 B. Mon. 643, 63 Am. Dec. 561.

29 Beale on Innkeepers, §§ 318 et seq. 30 In Goldstein v. Pullman Co., 220 N. Y. 549, 116 N. E. 376, L. R. A. 1918 B. 1060, a satchel belonging to the plaintiff disappeared during the night from the aisle next the plaintiff's berth. The court held that in view of the company's duty to maintain a watch during the night the circumstances established a prima facie case of negligence. See also Robinson v. Southern Ry., 40 App. Dist. Col. 549, Ann. Cas. 1914 C. 959. Cf. Carpenter v. New York, etc., Ry. Co., 124 N. Y. 53, 26 N. E. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644.

$ 1090. What is an act of God.

Except in the law of carriers it is not important to distinguish between an act of God and other causes not due to a promisor's fault, which render performance impossible; but in that branch of the law it is held that a common carrier whether by land or sea is not excused for losses due to any breach of obligation unless the cause of the breach was one of those stated in the previous section, the most important of which is the so-called Act of God. "Act of God' is merely a short way of expressing this proposition: A common carrier a is not liable for any accident as to which he can shew that it is due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him." 31 Under this definition it is not essential that the inevitable situation shall have arisen from any sudden or violent manifestation of natural phenomena. It is enough for instance that an obstruction from fallen timber or other cause shall have arisen in a channel or stream upon which the carrier's vessel, following a course usually safe, strikes.32 Here there is neither any violent convulsion of nature, nor is the creation of the situation which causes the loss contemporaneous with the accident. One of these circumstances may be true and not the other. Thus the sudden cessation of wind causing a vessel to drift upon the rocks has been regarded as an Act of God. 33 Generally, however, such an act is substantially contemporaneous with the loss and is due to a positive rather than negative condition, 34

31 Per Mellish, L. J. Nugent v. Smith, 1 C. P. D. 423, 444. See also Alaska Coast Co. v. Alaska Barge Co., 79 Wash. 216, 140 Pac. 334.

32 Smyrl v. Niolon, 2 Bail. 421, 23 Am. Dec. 146.

33 Colt v. McMechen, 6 Johns. 160, 5 Am. Dec. 200.

34 In Nugent v. Smith, L. R. 1 C. P. D. 423, 442, "Violent storms and tempests have always been considered as coming within the words, and men have thought they could avert them

by prayers and offerings. Mr. Wallace, the American editor of Smith's Leading Cases, as cited in the note to Angell on Carriers, s. 155 (p. 153), attempts a definition. 'Upon the whole it would seem that the act of God signifies the extraordinary violence of nature.' This entirely disapproves of those two American cases referred to in the argument, Colt v. McMechen, 6 Johns. (N. Y.) 160, 5 Am. Dec. 200; and Williams v. Grant, 1 Conn. 487, 7 Am. Dec. 235, which appeared to go to the

39

as a tempest or violent wind,35 a flood,36 an extreme tide,” an extraordinary snowstorm, 38 an exceptional frost either preventing transportation by the freezing of a canal or stream or injuring the goods in transit, 40 a washout caused by an earthquake. Sudden insanity of a railroad engineer inducing careless action has been held not to excuse liability for the consequences of his carelessness. 42

Though fire is not usually an act of God, 43 yet if caused

extent of shewing that 'act of God' and 'act of Nature' meant the same thing. I mean, of course, 'act of God' as applied to the carrier's exception. I would not adopt this or any definition as exact and including all cases, but wherever there is that unusual violence of nature, against which, in the opinion of the jury, precautions would be considered unavailing, and could not be expected to be taken, I should say the case would come within the exception."

35 Alabama, etc., R. Co. v. Quarles, 145 Ala. 436, 40 So. 120, 5 L. R. A. (N. S.) 867, 117 Am. St. Rep. 54; Blythe v. Denver. etc., R. Co., 15 Colo. 333, 25 Pac. 702, 11 L. R. A. 615, 22 Am. St. Rep. 403; New England, etc., S. S. Co. v. Paige, 108 Ga. 296, 33 S. E. 969; Gillett v. Ellis, 11 Ill. 579; Tuthill v. Norfolk Southern R., 174 N. Car. 77, 93 S. E. 446; Allegheny v. Zimmerman, 95 Pa. 287, 40 Am. Rep. 649; Wells, Fargo & Co. v. Porter (Tex. Civ. App.), 202 S. W. 987.

38 Seaboard Air Line Ry. v. Mullin, 70 Fla. 450, 70 So. 467, L. R. A. 1916 D. 982, Ann. Cas. 1916 D. 982; Davis v. Wabash, etc., R. Co., 89 Mo. 340, 1 S. W. 327; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Long v. Pennsylvania R. Co., 147 Pa. 343, 23 Atl. 459, 14 L. R. A. 741, 30 Am. St. Rep. 732; Porter Screen Mfg. Co. v. Central Vermont R., (Vt. 1917), 102 Atl. 44. In Norris v. Savannah, etc., Ry. Co., 23 Fla. 182, 1 So. 475, 11 Am. St. Rep. 355, a flood was held to excuse liability for loss caused by

decaying fruit delayed by extraordinary flood, though the water did not touch the fruit.

37 Hecht v. Boston Wharf Co., 220 Mass. 397, 402, 107 N. E. 990, L. R. A. 1915 D. 725, Ann. Cas. 1917 A. 445.

38 Briddon v. Great Northern Ry. Co., 28 L. J. Ex. (N. S.) 51; Ballantine v. North Missouri R. Co., 40 Mo. 491, 93 Am. Dec. 315; Feinberg v. Delaware, etc., R. Co., 52 N. J. L. 451, 20 Atl. 33.

39 Harris v. Rand, 4 N. H. 259, 17 Am. Dec. 421; Bowman v. Teall, 23 Wend. 306, 35 Am. Dec. 562; Spann v. Transportation Co., 11 N. Y. Misc. 680, 33 N. Y. S. 566.

40 Swetland v. Boston & Albany R. Co., 102 Mass. 276; Vail v. Pacific Railroad, 63 Mo. 230.

41 Slater v. South Carolina Ry. Co., 29 S. C. 96, 6 S. E. 936.

42 Central of Georgia R. Co. v. Hall, 124 Ga. 322, 52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. Rep. 170. The court said (p. 334), "If the agent of the company had made a mistake and delivered the plaintiff's horse to some other person, whereby it was lost to the plaintiff, would it be urged that, if the agent were insane, the delivery of the horse to the wrong person was an act of God? Surely not. Sudden death, or sickness of such a character as to render action impossible may sometimes excuse non-action. But tortious action does not become the act of God because the person acting may be sick."

43 Forward v. Pittard, 1 T. R. 27, 33; Merchants' Despatch Co. v. Smith,

by lightning," or spread by an exceptional wind from a distant forest 45 it is so considered. A bursting boiler is not an act of God,46 nor is loss from any elemental disturbance excused if the loss could have been avoided by reasonable care.47

§ 1091. Animals.

Contracts for the carriage of live stock have often been placed on a different plane from those for transporting ordinary goods. Unquestionably common carriers are not liable for any injury to livestock which arises from the inherent character or propensities of the animals. 48 But a few courts have gone further and held that livestock is not properly to be considered goods which a common carrier is bound to receive as such, and that it is liable only for negligence or failure to perform a special contract, but not as an insurer.” In England, and by the great weight of authority in the United States, however, the carrier is held liable, as such, for losses not due to the inherent nature of the animals except as the carrier by special contract limits its liability;

76 Ill. 542; Miller v. Steam Navigation Co., 10 N. Y. 431.

44 Parker v. Flagg, 26 Me. 181, 45 Am. Dec. 101.

45 Pennsylvania R. Co. v. Fries, 87 Pa. 234. A contrary decision, however, was reached in Chevallier v. Straham, 2 Tex. 115, 47 Am. Dec. 639.

46 Caldwell v. New Jersey Steamboat Co., 56 Barb. 425; M'Call v. Brock, 5 Strobh. 119.

47 The Majestic, 166 U. S. 375, 17 Sup. Ct. 597, 41 L. Ed. 1039. See infra, § 1096.

48 Kendall v. London, etc., R. Co., L. R. Ex. 373; Coupland v. Housatonic R. Co. 61 Conn. 531, 23 Atl. 870, 15 L. R. A. 534; Burke v. United States Express Co., 87 Ill. App. 505; United States Express v. Burke, 94 Ill. App. 29; Chicago, etc., R. Co. v. Woodward, 164 Ind. 360, 72 N. E. 558; Swetland v. Boston & Albany R. Co., 102 Mass. 276; Cragin v. New York Central R. Co., 51 N. Y. 61, 10 Am. Rep. 559.

49 Louisville, etc., R. Co. v. Hedger, 9 Bush, 645; Louisville & N. R. Co. v. Wathen, 23 Ky. L. Rep. 2128, 66 S. W. 714. But see Cincinnati, etc., R. Co. v. Sanders, 25 Ky. L. Rep. 2333, 80 S. W. 488; Michigan, etc., R. Co. v. McDonough, 21 Mich. 165; McKenzie v. Michigan Central R. Co., 137 Mich. 112, 100 N. W. 260.

50 Kendall v. London, etc., R. Co., L. R. 7 Ex. 373; Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Louisville, etc., R. Co. v. Smitha, 145 Ala. 686, 40 So. 117; Cooper v. Raleigh, etc., Co., 110 Ga. 659, 36 S. E. 240; Baltimore, etc., R. Co. v. Fox, 113 Ill. App. 180; St. Louis, etc., R. Co. v. Clark, 48 Kans. 321, 329, 29 Pac. 312; Dow v. Packet Co., 84 Me. 490, 24 Atl. 945; Evans v. Fitchburgh R. Co., 111 Mass. 142, 15 Am. Rep. 19; Chicago, etc., Ry. Co. v. Slattery, 76 Neb. 721, 107 N. W. 1045, 124 Am. St. Rep. 825; Waldron v. Fargo, 170 N. Y. 130, 62 N. E. 1077.