and it may be supposed that since the passage of the Carmack Amendment of 1906, any local rules to the contrary are superseded so far as concerns interstate shipments.51 § 1092. Public enemies, restraint of princes. The common law excused a common carrier from liability for losses caused by the King's enemies.52 King's enemies may be translated into the law of the United States as public enemies. Therefore, capture by the forces of a country which is at war with that to which the carrier belongs, is an excusable loss.53 The exception does not, however, include pirates,54 and covers enemies of only the country of the shipowners, not of the shipper.55 Losses by mob violence of any kind are not excused; 56 but where rebellion goes so far as to produce de facto a state of war the carriers of either side would be protected against losses due to the other.57 An exception after contained in charter parties and bills of lading excuses the carrier from losses caused by restraint of princes. 58 This covers seizure or detention by government embargo or blockade, or other effective means," 59 or detention by quarantine laws; 60 but 51 Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314. See also American Express Co. v. United States Horseshoe Co., 244 U. S. 58, 37 Sup. Ct. 595, 61 L. Ed. 990, and cases cited. 52 Coggs v. Bernard, 2 Ld. Ray. 909. See Holmes, Common Law, 177, 201. 53 Russell v. Neimann, 17 C. B. (N. S.) 163. 54 See Forward v. Pittard, 1 T. R. 27, 34. 55 See Russell v. Niemann, 17 C. B. (N. S.) 163; Scrutton on Charter Parties (7th ed.), 206. 56 Coggs v. Bernard, 2 Ld. Ray. 909; Hall v. Pennsylvania R. Co., 14 Phil. 414. 57 Mauran v. Insurance Companies, 6 Wall. 1, 18 L. Ed. 836; Thorington v. 60 Miller v. Law Accident Ins. Co., [1903] 1 K. B. 712; Clyde Commercial Smith, 8 Wall. 1, 19 L. Ed. 361; Bland v. Adams Express Co., 1 Duval, 232, 85 Am. Dec, 623; Nashville &c. R. v. Estes, 10 Lea, 749. 58 Similar exceptions are common in contracts of marine insurance. The construction of the words in these different forms of contract is compared in 32 Harv. L. Rev. 839. 59 Geipel v. Smith, L. R. 7 Q. B. 404; Miller v. The Law Accident Ins. Co., [1903] 1 K. B. 712; Nobel's Explosives Co. v. Jenkins, [1896] 2 Q. B. 326. In Furness v. Rederiaktiegolabet Banco, [1917] 2 K. B. 873, it was held that where a Swedish vessel had been chartered for voyages outside of Swedish waters an order of the Swedish Government prohibiting such voyages was a restraint of princes, though the S. S. Co. v. West India S. S. Co., 169 Fed. 275, 94 C. C. A. 551. nor the does not cover seizure by ordinary legal process; 61 actions of persons who do not claim governmental authority for their acts,62 or even of persons claiming such authority but not having it in fact.63 It has been held, also, that a vessel was in English waters and the only effect of disobedience would be to render the owners and master liable to imprisonment if they return ts Sweden. In The Athanasios, 228 Fed. 558, the Greek government appropriated a Greek vessel in the port of New York. The court said (p. 559), "I am of opinion that performance of contract has been prevented, and the charter party relieved, by 'restraint of princes.' This Greek steamer cannot fulfill her charter without lawfully clearing from this port; she cannot clear without her papers; the Greek consul has them, under orders from his government to see to it that the vessel loads for governmental purposes, and he has authority to put on her a captain who will obey these orders, if the present master does not. In the phrase now current, the sovereign of the ship's home and owner has 'commandeered' or requisitioned the steamer for government account. There is certainly no power in any court of the United States to prevent or undo this act of the Greek king and his consul. It is of no moment whether the Greek municipal law is being correctly interpreted by the various Grecian officials concerned-the restraint is actual and is governmental. Restraint need not be by physical force. Olivera v. Union Ins. Co., 3 Wheat. 183, 4 L. Ed. 365. Many of the cases on restraint are cited in The Styria, 186 U. S. 1, 22 Sup. Ct. 731, 46 L. Ed. 1027; all the British decisions and the American rule as to quarantine, in Carver on Carriage by Sea (5th ed.), § 82, and Scrutton on Charter Parties (6th ed.), art. 82. "It is unnecessary to parade the opinions; the essential holding is that restraint which fulfills the exception must be actual, not potential or probable, and must emanate from recognized authority, not, e. g., the brute power of a pirate. I am quite unable to conceive any more actual restraint than is here present." 61 Finlay v. Liverpool, etc., S. S. Co., 23 L. T. 251. 62 Nesbitt v. Lushington, 4 T. R. 783. 63 In Northern Pacific Railway Co. v. American Trading Co., 195 U. S. 439, 25 Sup. Ct. 84, 49 L. Ed. 269, a deputy collector, through his mistaken understanding of the law, refused a clearance to a steamer unless a shipment of lead which was contraband of war during the Chinese-Japanese War were first discharged. There was no statute of the United States nor any proclamation of the President requiring clearance to be refused to a vessel having on board articles contraband of war. Mr. Justice Peckham said: "Here there was no intervention of the government of the United States. The exportation of lead was never prohibited by the Treasury Department during the war between China and Japan. There was no change in the law or the policy of this government subsequently to the making of the contract by which its performance was refused. The exportation of the lead was legal when the contract was made and continued to be so after the execution of such contract, although the deputy collector mistakenly refused to grant the clearance unless the lead was taken off the vessel. Such mistaken decision did not render the original loading of the lead on the ship unlawful, nor would it have been unlawful reasonable apprehension which turned out to be well founded that the Dardenelles through which the chartered vessel must pass to reach its destination would be closed by war, was not restraint of princes.64 The decision seems somewhat narrow, for in many cases where there has been held a restraint of princes, there is on close analysis only a reasonable apprehension, for instance, that an existing embargo of a port of destination will continue if the vessel should actually go there.65 It should be observed that when the carrier is excused from its obligation, it does not necessarily follow that the charterer is similarly excused from paying charter hire.66 for the ship to proceed with the lead on board provided the clearance had been had. It was not an act of the state, therefore, which prevented the sailing of the vessel within the true meaning of such a term, but a mistaken act of a subordinate official not justified by law, and not sufficient as an excuse for the nonperformance of the contract in question under the circumstances already detailed. If the bill of lading were regarded as applicable for this purpose, the refusal of the clearance did not constitute a 'restraint of princes, rulers or people,' within that clause of the bill." Cf. Russian Bank v. Excess Insurance Co., [1918] 2 K. B. 123, [1919] 1 K. B. 39, 40; Brunner v. Webster, 5 Comm. Cas. 167. 64 Mitsui v. Watts, Watts & Co.. Ltd., [1916] 2 K. B. 826; Watts, Watts & Co., Ltd., v. Mitsui, [1917] A. C. 227, See also Becker v. London Assurance Corp., [1918] A. C. 101, and supra, § 877. 65 In North German Lloyd v. Guaranty Trust Co., 244 U. S. 12, 37 S. C. Rep. 490, 61 L. Ed. 960, the steamship Kronprinzessin Cecilie was freed from liability under a contract requiring it to deliver gold in Europe because on account of well-founded apprehension of war between England and Germany the captain returned to America; though as events turned out the vessel could have completed the remainder of her voyage before the declaration of war. The only pertinent exception in the bills of lading was of "restraint of princes." The court, however, held that under this contract as under contracts generally, "other exceptions are necessarily to be implied," and cites cases of impossibility actual and prospective. See supra, §§ 877 et seq. 66 In Clyde Commercial S. S. Co., Ltd., v. West India S. S. Co., 169 Fed. 275, 278, 94 C. C. A. 551, the court said: "Detention by quarantine authority is a restraint of princes or people. Street v. Progresso (D. C.), 42 Fed. 229; Street v. Progresso, 50 Fed. 835, 2 C. C. A. 45; The Santona (D. C.), 152 Fed. 516; Carver on Carriage of Goods by Sea, § 82. Accordingly this exception which prevented the owner from prosecuting his voyage with dispatch relieves him from liability to the charterer for the delay so caused. The case is to be treated as if no delay had occurred. On the other hand, the charterer is not protected by the exception from paying hire because it was not thereby prevented from paying hire and because it had the use of the § 1093. Inherent vice. The carrier is not liable for damage due to the inherent character of the goods themselves, such as the decay of perishable goods,67 or the injury or death of animals through their own characteristics, irrespective of outside interference. vessel for which it was to pay notwithstanding the interruption. There could be no doubt of the correctness of the conclusion of the court if the charter party had been a demise of the vessel. As it was not, it seems that the charterer should have the right of refusing to proceed with the charter if the delay were so material as to frustrate the object of the voyage; Scottish Nav. Co. v. Soutter, [1917] 1 K. B. 222, but if the charterer, whether bound to do so or not, continues to take the benefit of the charter, there seems little precedent for arguing under the common law that the hire shall be diminished. See infra, § 1101. 67 Nelson v. Chicago &c. Ry., 102 Neb. 439, 167 N. W. 574; Gulf, C. & S. F. Ry. v. Persky (Tex. Civ. App.), 200 S. W. 606. In Faucher v. Wilson, 68 N. H. 338, 38 Atl. 1002, 39 L. R. A. 431, a hogshead of molasses while being unloaded burst because of fermentation. The carrier was held not liable. In Lister v. Lancashire, etc., Ry. Co., [1903] 1 K. B. 878, the defendants contracted with the plaintiff as common carriers to carry for them an engine from his yard to a neighboring town on the defendants' railway. The engine was on wheels and fitted with shafts to allow of its being drawn by horses. While the defendants were drawing the engine with their horses to the railway station one of the shafts, owing to its being rotten, broke; the horses took fright and upset the engine, which was damaged. The defective condition of the shaft was not known to either the plaintiff or the defendants, and could not have been discovered by any ordinary examination. It was held that as the engine was not in fact fit to be carried in the way in which it was intended to be carried, and the damage resulted in consequence of that unfitness, the defendants were excused. 68 Libro v. Cleveland &c. Ry., 202 Ill. App. 418, and see cases cited supra, 1091. The distinction between loss from inherent vice or defect and loss from outside agency was thus discussed in Kendall v. London, etc., Ry. Co., L. R. 7 Exch. 373, 377, by Bramwell, B.: "There is no doubt in this case that the horse was the immediate cause of its own injuries. That is to say, no person got into the box and injured it. It slipped, or fell, or kicked, or plunged, or in some way hurt itself. If it did so from no cause other than its inherent propensities, 'its proper vice,' that is to say, from fright, or temper, or struggling to keep its legs, the defendants are not liable. But if it so hurt itself from the defendant's negligence, or any misfortune happening to the train, though not through any negligence of the defendants, as, for instance, from the horse-box leaving the line owing to some obstruction maliciously put on it, then the defendants would, as insurers, be liable. If perishable articles, say soft fruit, are damaged by their own weight and the inevitable shaking of the carriage, they are injured through their own intrinsic qualities. If through pressure of other goods carried with them, or by an extraordinary shock or shaking, whether through negligence or not, the carrier is liable." The extent of the carrier's duty in regard to such goods is to use reasonable care and diligence.69 § 1094. Seizure by legal process. Goods in the hands of a carrier are not infrequently seized under legal process, and the carrier thereby prevented 70 from fulfilling its contract to deliver to the consignee. In England this seems to afford no defence to the carrier for the nonfulfilment of its contract, unless an express stipulation to this effect has been made,71 but in the United States such seizure has generally been held an implied exception to the carrier's contract.72 69 Daniels v. Northern Pacific Ry. Co., 88 Oreg. 421, 171 Pac. 1178. 70 See Clifford v. Brockton Trans. Co., 214 Mass. 466, 101 N. E. 1092, Ann. Cas. 1914 B. 909, and cases cited. 71 In Finlay v. Liverpool, etc., Steamship Co., 23 L. T. (N. S.) 251, though the cases arose in 1870 at a time when equitable pleas were allowed, and the seizure in question was pleaded as "a defence upon equitable grounds," Martin, B., said (at page 254): “This is an action founded on contract, and I do not see how the act of any court of law, or any judicial tribunal, deciding that the defendants should hold possession of the goods and deliver them to the order of the true owners, can relieve the defendants, the shipowners, from performing their contract, unless such an act or decision of a court or judicial tribunal had been expressly excepted." Channell, B., and Cleasby, B., concurred in this opinion. The case of Verrall v. Robinson, 2 C. M. & R. 495, s. c. 4 Dowl. 242, relied on in Stiles v. Davis, 1 Black, 101, 106, 19 L. Ed. 33, and Hutchinson on Carriers (3d ed.), §§ 739, 740, as indicating a contrary rule, relates to the liability of a livery stable keeper, and therefore does not involve any question of the extraordinary liability of a carrier. Moreover, the decision even as to ordinary bailees for hire has not escaped judicial criticism. See Pillott v. Wilkinson, 3 H. & C. 345. 72 American Express Co. v. Mullins, 212 U. S. 311, 29 Sup. Ct. 381, 53 L. Ed. 525; Wells, Fargo & Co. v. Ford, 238 U. S. 503, 35 Sup. Ct. 864, 59 L. Ed. 1431; Robinson v. Memphis, etc., R. Co., 9 Fed. 129, 16 Fed. 57; The M. M. Chase, 37 Fed. 708; Atchison &c. R. v. International &c. Co., 247 Fed. 265, 159 C. C. A. 359; Savannah, etc., R. Co., v. Wilcox, 48 Ga. 432; Ohio, etc., R. Co. v. Yohe, 51 Ind. 181, 19 Am. Rep. 727; Cleveland, etc., R. Co. v. Wright, 25 Ind. App. 525, 58 N. E. 559; Furman v. Chicago, etc., Ry. Co., 57 Ia. 42, 10 N. W. 272, 62 Ia. 395, 17 N. W. 598, 68 Ia. 219, 26 N. E. 83, 81 Ia. 540, 46 N. W. 1049; Bennett v. American Express Co., 83 Me. 236, 22 Atl. 159, 13 L. R. A. 33, 23 Am. St. Rep. 774; Pingree v. Detroit, etc., R. Co., 66 Mich. 143, 33 N. W. 298, 11 Am. St. 479; Merz v. Chicago, etc., Ry. Co., 86 Minn. 33, 90 N. W. 7; Hett v. Boston & Maine R. Co., 69 N. H. 139, 44 Atl. 910; Pecos Valley Trading Co. v. Atchison &c. Ry. Co. (N. Mex.), 174 Pac. 736; Bliven v. Hudson, etc., R. Co., 36 N. Y. 403; Jewett v. Olsen, 18 Or. 419, 23 Pac. 262, 17 Am. St. Rep. 745; Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145. |