phrases. There seems to be a real difference between them. The carrier is liable for loss by robbery, although the force was overwhelming, and wholly without notice. If it be said that he is liable for this loss, because it is not" inevitable," as a sufficient guard or other precautions might have prevented it, then we say, that neither can injury from an inundation, a storm, or sudden illness (all of which excuse him), be regarded as " inevitable," because it is seldom that losses from these causes could not have been prevented by previous forethought and precaution. We take the true definition of the " act of God" to be, a cause which operates without any aid or interference from man. (j) For if the cause of loss was wholly human, or became destructive by human agency and co-operation, then the loss is to be ascribed to man, and not to God, and to the carrier's negligence, because it would be dangerous to the community to permit him to make a defence which might so frequently be false and fraudulent. (k) Nor need (j) "The act of God," says Lord Mansfield, "is natural necessity, as wind and storms, which arise from natural causes, and is distinct from inevitable accident." Proprietors v. Wood, 4 Dougl. 287, 290. See also the remarks of Cowen, J., in McArthur v. Sears, 21 Wend. 190, 198, and of Lowrie, C. J., in Hays v. Kennedy, 41 Penn. St. 378. (k) The case of Forward v. Pittard, 1 T. R. 27, is a very leading authority as to what constitutes an act of God. In that case the plaintiff's goods, while in the possession of the defendant as a common carrier, were consumed by fire. It was found that the accident happened without any actual negligence in the defendant, but that the fire was not occasioned by lightning. Under these circumstances, the Court of King's Bench held the defendant liable; and Lord Mansfield said: "A carrier is in the nature of an insurer. It is laid down that he is liable for every accident, except by the act of God or the king's enemies. Now, what is the act of God? I consider it to mean something in opposition to the act of man; for everything is the act of God that happens by His permission; every. thing by His knowledge. But to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightning, and tempests. If an armed force come to rob the carrier of the goods, he is liable; and a reason is given in the books, which is a bad one, viz., that he ought to have a sufficient force to repel it; but that would be impossible in some cases, as, for instance, in the riots in the year 1780. The true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil. In this case, it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man; for it is expressly stated not to have happened by lightning. The carrier therefore in this case is liable, inasmuch as he is liable for inevitable accident." See also McArthur v. Sears, 21 Wend. 190; Ewart v. Street, 2 Bailey, 157; Fish v. Chapman, 2 Ga. 349; Backhouse v. Sneed, 1 Murphey, 173; Merritt v. Earle, 31 Barb. 38. Since the loss, to come within the exception of the "act of God," must happen without human agency, it is of course no excuse for the carrier that the loss was occasioned by the act of the third person. Thus the owners of a steamboat, being a common carrier, are liable for a shipment on board of her, lost by means of a collision with another vessel at sea, and without fault imputable to either, there being no express stipulation of any kind, between the owner of the goods and the owners of the boat, that they should be exempted from the perils of the sea. Plaisted v. B. & K. Steam Navigation Co., 27 Me. 132. See also Mershon v. Hobensack, 2 N. J. 372; Lipford v. Railroad Co., 7 Rich. L. 409; The Brig Casco, Daveis, 184. And see Whitesides v. Thurlkill, 12 Sm. & M. 599, for the effect of such stipulation. See also Wareham Bank v. Burt, 5 Allen, 113. * *160 this "act" be positive; although, if only negative, it excuses the carrier; thus, a failure of wind is put upon the same footing as a storm. (1) The act of God which excuses a carrier, must be not only the proximate cause of the loss, (m) *161 but there are cases which lead to the conclusion that it must be the sole cause. If, therefore, the carrier wrongfully delays the transportation of goods, and they are injured be (1) Thus where a vessel was beating up the Hudson River against a light and variable wind, and being near shore, and while changing her tack, the wind suddenly failed, in consequence of which she ran aground and sunk; it was held, that the sudden failure of the wind was the act of God, and excused the master; there being no negligence on his part. And Spencer, J., said: "The case of Amies v. Stevens, 1 Stra. 128, shows that a sudden gust of wind, by which the hoy of the carrier, shooting a bridge, was driven 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. McMechen, 6 Johus. 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 get ting 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 situation, 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 v. Niolon, Bailey, 421, where it is held, that a loss caused by a boat's running on an unknown "snag in the usual channel of a river is referable to the act of God; and the carrier will be excused. See also Faulkner v. Wright, Rice, 106; and Williams v. Grant, 1 Conn. 487. On the other hand, in Friend v. Woods, 6 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. Case. 82. See also Steamboat Lynx v. King, 12 Mo. 272. cause 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, 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 (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. (0) Amies v. Stevens, 1 Stra. 128; Williams v. Branson, 1 Murphey, 417; Williams v. Grant, 1 Conn. 487; Campbell v. 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. Theil bar, 86 Ill. 71; Empire Transportation Co. v. Wamsutta Oil Co., 63 Penn. St. 14. (q) Gilmore v. Carman, 1 Sm. & M. 279. (r) Parsons v. 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, 24 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." Siordett v. Hall, 4 Bing. 607. 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 v. Chicago, &c. Ry. Co., 79 Iowa, 582; Pruitt v. Hannibal, &c. R. R. Co., 62 Mo. 527; Black v. Chicago, &c. R. R. Co., 30 Neb. 197; Feinberg v. Delaware, &c. R. R. Co., 52 N. J. L. 451, 454. Or by an unusually severe gale. Blythe v. 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. - W. 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) * 162 *If the goods have been injured by such an act of God, 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." act of God." But the carrier is (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 Or. 419; Furman v. Chicago, &c. Ry. Co. 37 Iowa, 42; 62 Iowa, 395; 68 Iowa, 219; 81 Iowa, 540. (s) Charleston S. B. Co. v. Bason, Harper, 262. 224. (t) Chouteau v. Leech, 18 Penn. St. (u) Bird v. Cromwell, 1 Mo. 81. (v) 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 wagons, 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. (c) Hall v. Renfro, 3 Met. (Ky.) 51. 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 Iowa, 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 Iowa, 424. Thus Blower v. Great Western Railway, L. R. 7 Č. 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. nevertheless not excused if the loss was caused also by his default, as by bad stowage, or other negligence. (xx) 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 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. (*) *Losses by the public enemy include those only which 163 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)1 And we regard this as a (y) Farrar v. Adams, supra. (2) 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. 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. Čar. § 200. We include pirates within the exception of "public enemies," on the authority of these eminent textwriters. The cases, however, which they cite, arose upon bills of lading, which con tained the exception of the "perils of the sea;" the only question made 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 Salk. 249, it was resolved, that "any man undertaking for hire to carry the goods of all persons indifferently is a common carrier." 1 An express company(yy) that receives and agrees to transport goods from a certain place to another for a compensation, in the ordinary means of conveyance, although (xx) Such as delay in transporting livestock or goods. See Hinkle v. Southern Ry. Co., 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685; Railroad v. Cabinet Co., 104 Tenn. 568, 58 S. W. 303, 78 Am. St. Rep. 933. (yy) See Bullard v. American Express Co., 107 Mich. 695 65 N. W. 551, 61 Am. |