By the term "act of God" is meant something in opposition to the act of man, such as storms, lightning, tempests, and inevitable accidents not resulting from human agency. If the danger or the accident, though unavoidable, has been occasioned by the act of man, the carrier cannot avail himself of it as an excuse for the non-delivery of the goods(f). Thus, where an action was brought against a common of the company to transport freight within the usual time. Blackstock v. New York & Erie R. R. Co., 20 N. Y. 48. That a common carrier is an insurer against any loss not occasioned by the act of God or the public enemy, or the fault of the party suffering the loss, see Kohannan v. Hammond, 42 Cal. 227; Goodwin v. Baltimore, etc., R. R. Co., 58 Barb. (N. Y.) 195; Howe v. Oswego, etc.,. R. R. Co., 56 Barb. (N. Y.) 121; The Maggie Hammond, 9 Wall. 435; Klauber v: American. Express Co., 21 Wis. 21; Southern Express Co. v. Newby, 36 Ga. 635;, Porcher v. Northeastern. R. R. Co., 14 Rich. (S. C.) L. 181; Southern Express Co. v. Moon, 39 Miss. 822; Arnold v. Jones, 26 Texas, 335; Hooper v. Wells, 27 Cal. 11; Commander-in-chief, 1 Wall, 43 Berguson v. Brent, 12 Md. 9; Powell v. Mills, 30 Miss. 231; Central R. & B. Co. v.. Hines, 19 Ga. 203; New Brunswick Co. v. Tiers, 4 Zabr. (N. J.) 697; Roth v. Buffalo & State Line R. R. Co., 34 N. Y.. 548; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, ib. 251; Powell v. Myers, 26 Wend.. 591; Reed v. Spaulding, 30 N. Y. 630; Merritt v. Earle, 29 ib. 115. Goods taken from a carrier by the military forces of a State in insurrection are to be deemed taken by the "public enemy," within the meaning of the exception to the rule.. Lewis v. Ludwick, 6 Coldw. (Tenn.) 368. So if taken by the United States forces while being. transported within the Confederate lines. Southern Express Co. v. Womack, 1 Heisk. (Tenn.} 256. So where the goods were seized by Confederate soldiers. Bland. v.. Adams Express Co., 1 Duvall (Ky.), 232. But a carrier within the limits, and recognizing the Confederate govern. ment, is estopped from alleging that the seizure of his goods by a Confederate officer was. the act of a public enemy. Patterson v. North Carolina R. R. Co., 64. N. C.. 147. (ƒ) Oakley v. Ports. etc., Steam Packet Co., 11 Exch. 622; 25 Law J., Exch. 99. Merritt v Earle, 29 N. Y. 115. Michaels . New York Central R. R. Co., 30 ib. 564. Read v. Spaulding, ib. 630. Williams v. Grant, 1 Conn. 487. Crosby v. Fitch, 12 ib. 410. "Under the term act of God are comprehended all misfortunes and accidents arising from inevitable necessity which human prudence could not foresee or prevent; and in cases of this description, carriers may be liable for a loss arising from inevitable necessity existing at the time of the loss, if they had been guilty of a previous negligence or misconduct by which the loss may have been occasioned." "For though the immediate or proximate cause of a loss may have been what is termed the act of God, or inevitable accident, yet if the carrier unnecessarily exposes the property to such accident, by any culpable act or omission of hisown, he is not excused." Williams v. Grant, 1 Conn. 487. Crosby .. Fitch, 12 ib. 410. To excuse the carrier for loss or damage of goods intrusted to his care on the ground of inevitable accident or act of God, the loss or damage must result from the direct and imme-diate act of God without the intervention of any human agency Ferguson v. Brent, 12 Md.. 9. Sprowl v. Kellar, 4 Stew. & Port. 382. Jones v. Pitcher, 3 ib. 135. Michaels 9. New York Central R. R. Co., 30 N. Y. 561. Merritt v. Earle, 29 ib. 115. But even to this rule there may be exceptions. Thus, where by reason of a violent storm a jettison becomes necessary for the preservation of the rest of the cargo, the loss is by the act of God, although occasioned through the immediate agency of men Price v. Hartshorn, 44 N. Y. 94. So where the proximate cause of the loss of goods intrusted to a common carrier is the act of God, such as a flood, the carrier will be excused, even though he may have contributed in a remote way to the loss of the goods by his own negligence or laches. Railroad Co. v. Reeves, 10 Wall. 176. Thus where goods intrusted to a carrier by canal are lost by reason of the breaking of a dam in the canal in consequence of an extraordinary flood, the carrier will be excused on the ground of inevitable accident, although had it not been for the lameness of a horse the boat would not have been at the place of the flood when it occurred. Morrison v. McFadden, 5 Pa. Law J. Rep. 23. But if the carrier is guilty of unreasonable delay in forwarding goods, and they are injured by a flood while lying in the depot awaiting shipment he will not be excused, as the goods carrier for not safely carrying and delivering a quantity of hops, and it appeared that a fire broke out in a building adjoining a booth under which the carrier had placed the hops, and burnt with inextinguishable violence, and extended itself to the hops, and consumed them, without any neglect or default on the part of the carrier himself, it was held that, inasmuch as the fire had not been occasioned by lightning, but by the act of man, the occurrence of the disaster constituted no answer to the action(g). If the goods have been destroyed or swept away by rains and floods, the circumstances attendant upon the loss must be regarded, in order to determine whether it has been occasioned by the act of God or the act of man. If the common carrier has neglected to provide proper coverings for the goods; if he has gone out of his way to meet the danger; if he has travelled by unusual roads, or crossed a plain subject to inundations when he might have kept the high ground and been safe, the loss occasioned thereby is a loss from the act or negligence of man, and the common carrier is consequently responsible therefor(h). If a barge-owner who carries goods for hire on a canal accepts certain goods to be carried for hire, and rats gnaw a hole in the barge, and cause a leak, and the goods are injured, the barge-owner is responsible for the damage(i). He is not, of course, responsible for any deterioration in the value of the goods resulting from the negligence or want of care of the owner or the consignor, such as defective packing, nor for losses occasioned by an inherent defect in the article causing its were exposed to the peril by his fault and neglect. Dunson v. New York Central R. R. Co., So where goods carried by a steamboat are lost by the sinking of the vessel, and the immediate cause of the accident and loss is the contact of the boat with the mast of a sloop which Thad sunk some two days previously in a squall, leaving the mast fifteen feet out of water at low tide, the carrier will not be excused on the ground of inevitable accident or act of God, as the accident might have been avoided, and the squall which sunk the sloop was but the remote or secondary cause of the accident. Merritt v. Earle, 29 N. Y. 115. See Pennewill. Cullen, 5 Harring. (Del.) 238. So where a violent storm caused an unusually low tide, and a carrier's barge lying at a pier, was pierced by a projecting timber, covered at ordinary tides, and not known by the carrier to exist, the carrier was held liable for the injury of the goods upon the barge, notwithstanding that his negligence in leaving the barge there would not have resulted in the injury without the concurrence of the act of God and the negligence of the wharf-builder. New Brunswick Co. v. Tiers, 4 Zabr. (N. J.) 697. If divers causes concur in the loss of goods by a carrier, the act of God being one, but not the proximate cause, it does not discharge the carrier. The carrier is liable unless the act of God was the immediate cause of the loss, without which it would not have occurred. Ferguson. Brent, 12 Md. 9. New Brunswick Co. v. Tiers, 4 Zabr. (N. J.) 697. (g) Forward v. Pittard, 1 T. R. 33. Hyde v. Trent Nav. Co., 5 ib. 309. (h) Doct. & Stud. Dial. 2, ch. 38; Noy, ch. 43. Maghee v. Camden & Amboy R. R. Co., 45 N. Y. 514. Phillips. Brigham, 26 Ga. 617. A) Dale. Hall, 1 Wils. 281. destruction(i). If, however, the defective packing of goods is patent and visible, and easily remedied, and he accepts the goods for conveyance, he is bound to take all reasonable means to provide against the defect, and secure their safety. Where a dog, with a string about his neck, was delivered to a common carrier to be carried, and was tied by the string in a watch-box, and shortly afterwards the dog slipped his head through the noose, and escaped, and was never seen afterwards, and an action was brought to recover the value of the dog, and it was contended that the owner ought to have taken care that the cord was properly secured round the dog's neck, it was held that as the common carrier had the means of seeing that the dog was insufficiently secured, he ought to have locked him up or taken other proper means to secure him, and that he was responsible for the loss (j). Where, however, a greyhound, secured in the way ordinarily adopted and obviously intended by the owner to be used, viz., by a collar and strap, was delivered to a railway company to be carried, and the greyhound during the journey slipped his head through the collar and was lost, it was held that the company was not responsible(k). If a cargo or load of goods weighing a certain weight be delivered to a common carrier to be carried for hire, and the cargo on its arrival at its destination is deficient in weight, there is a primâ facie presumption of negligence on the part of the carrier, which the latter must rebut by showing that the deficiency of weight arose from causes over which he had no control(). If the accident or casualty causing the loss of the goods is occasioned by the misconduct of a third person, and not by any fault or neglect on the part of the common carrier himself, the latter is, nevertheless, responsible to the owner for the loss, as he has himself a remedy over against the offending party. Thus, where the ship of a common carrier by water drove on an anchor in the river Humber, and was sunk, and the goods on board were injured, and the accident was occasioned by the neglect of a third person in not having his buoy out to mark the place where his anchor lay, it was held that the common carrier was nevertheless bound to make good the loss(m). But if the misconduct of the third person is caused by the orders of the owner of the goods, the carrier of course will not be responsible(n). (ii) Rixford v. Smith, 52 N. H. 355. Klauber v. American Express Co., 21 Wis. 21. (j) Stuart v. Crawley, 2 Stark. 324. (k) Richardson v. North-East. Rwy., L. R., 7 C. P. 75. (7) Hawkes v. Smith, Car. & M. 72. (m) Trent Nav. Co. v. Ward, 3 Esp. 130. See Reaves v. Waterman, 2 Speers, 197. (n) Butterworth v. Brownlow, 34 Law J., C. P. 267. AD. VOL. I.-37 If a man professes to be a common carrier of passengers merely, and only receives occasionally, and at his own option, some trifling articles of luggage with such passengers, to be carried gratuitously for the accommodation of the latter, he cannot be charged as a common carrier of goods for the loss of them. He is, in such a case, a gratuitous bailee of the goods, and chargeable only with the liabilities and responsibilities of a person who gratuitously undertakes to carry goods for another. Such is an omnibus proprietor, who professes only to carry passengers and receives his hire solely therefor, but occasionally receives and carries gratuitously small bundles and parcels for the accommodation of his passengers. As he does not profess to carry goods for hire, he cannot be compelled to receive them as a common carrier of goods, neither can he be charged except as a gratuitous bailee for the loss of them. And if luggage is carried free, upon the express terms that the passenger shall himself take charge of it, and that it shall be taken at his risk, he cannot make the carrier responsible for the loss of it(o). If, however, the carrier or coach-proprietor professes to carry both passengers and luggage, he is clothed, as regards the conveyance of the luggage, with the obligations and responsibilities of a common carrier of goods for hire(p), whether the hire is paid by the passenger or by some other person on his behalf or for his benefit(q). 654 Concealment of risk by consignors.-A person who gives a carrier goods of a dangerous character to carry, and which require more caution in their carriage than ordinary merchandise, and which, without such caution, would be likely to injure the carrier and his servants, is bound in law to give notice of the dangerous character of such goods to the carrier, and if he fails so to do he is responsible to the carrier, or to his servants, for the injurious consequences of his neglect(r). See ante, p. 568. 655 Contributory negligence.-If goods delivered to be carried are lost or stolen by the way, and the conduct of the bailor or consignor himself has in any way conduced to the loss, he has no ground at common law for seeking compensation at the hands of the common carrier(s). If a (0) Stewart v. Lond. and North-West. Rail. Co., 33 Law J., Exch. 199. (p) Brooke v. Pickwick, 4 Bing. 218. (q) Marshall v. York. and Newcastle Rail. Co., 11 C. B. 655; 21 Law J., C. P. 24. (r) Farrant v. Barnes, 11 C. B., N. S. 553; 31 Law J., C. P. 139; post, ch. 17, s. 1, FRAUDU LENT CONCEALMENT. Boston & Albany R. R. Co. v. Shanly, 107 Mass. 568. Barney v. Burstenbinder, 7 Lans. (N. Y.) 210; 64 Barb. 212. (8) Butterworth v. Brownlow, supra. Congar v. Chicago & Northwestern R. R. Co., 24 Wis. 157. Hellman v. Holladay, 1 Woolw. 365. If goods are missent in consequence of the negli· gence of the owner in marking their destination upon them, the carrier will not be liable. Id man, for example, sends bank-notes, sovereigns, or valuables, to a common carrier to be carried disguised as merchandise, or as a parcel of ordinary value, requiring no more than ordinary care, and the valuables are stolen, the common carrier is not responsible at common law for the loss, inasmuch as the neglect of the consignor in not apprising him of the extraordinary value of the parcel, in order that extraordinary care might have been taken of it, may have been the occasion of that loss (ante, p. 24); and "the holding out by the consignor as an ordinary risk what is in reality an extraordinary risk is a legal fraud-dolus malus,—and ex dolo malo non oritur actio”(t). 656 Inability of the common carrier to rid himself of the public duties imposed upon him.-It has been held that a person who undertakes the public employment of a common carrier of merchandise, or of passengers and luggage, has no more right to engraft upon his employment the terms that "all merchandise is carried at the risk of the owners," or that "all luggage is carried at the risk of the passengers," and that "he will not be responsible if it is lost or damaged by the way," than a common innkeeper has to refuse to receive guests except on the terms that he shall not be responsible for the safe-keeping of their goods and luggage deposited in his inn (post, s. 2). The consignor of merchandise or the passenger has a right to reject these terms, and to insist on the merchandise, or the customary allowance of luggage for a passenger, being taken at the common carrier's risk, provided he makes the declaration of value, and is ready to pay the premium of insurance in those cases where the declaration and payment are required by law (post, p. 582). "The traveller," justly observes an American judge, "is under a sort of moral duress, a necessity of employing the common carrier, and the latter shall not be allowed to throw off his legal liability. He shall not be privileged to make himself a common carrier for his own benefit and a mandatory or less to his employer. He is a public servant, with certain duties. defined by law, and as Ashurst, J., said of the duties of innkeepers, they are indelible”(u). (t) Bayley, J., Batson v. Donovan, 4 B. & Ald. 37. Warner v. Western Transportation Co., 5 Rob. (N. Y.) 490. American Express Co. v. Perkins, 42 Ill. 458. Cincinnati, etc., R. R. Co. v. Marcus, 38 Ill. 219. In the absence of circumstances amounting to a legal fraud, a carrier, who receives a box or package for transportation without inquiry as to its value, and is paid such price for transportation as is charged with reference to its bulk, weight or external appearance, will be responsible for its loss, whatever may be its value. Gorham Manufacturing Co. v. Fargo, 45 How. (N. Y.) 90. Phillips v. Earle, 8 Pick. 182. Compare Green v. Southern Express Co., 45 Ga. 305. (u) Cowen. J., Cole v. Goodwin, 19 Wend. 281. Hollister v. Nowlen, ib. 234. Angell on Carriers, App. xviii. xxiii. See Doct. & Stud. Dial. 2, ch. 39; Noy's Maxims, ch. 43, 92; |