§ 308. Carrier responsible as in § 325. Same subject-Destruction case of deviation. 309. The degree of diligence to be exercised by the carrier when the goods have been overtaken by disaster. 310. Same subject. 311. Same subject. 312. Burden of proof as to carrier's contributory negligence. 313. Act of God will not excuse carrier if carrier has wrongfully refused to deliver goods. V. Rioters Strik VI. Rebellion Declaration Mobs 317. Same subject Revolution. 318. Same subject of war not necessary if actual hostilities exist. 319. Carrier liable if loss by public enemy caused by his negligence or deviation. 320. Same subject. 321. Same subject. 322. Effect of war on contract of carriage. 323. Same subject-Contraband goods. CARRIER NOT LIABLE FOR LOSSES FROM THE ACTS OF THE PUBLIC or injury under police power. 326. Same subject-Confederate authority. 327. Same subject-Seizure under legal process. CARRIER NOT LIABLE FOR LOSSES 328. Exception to liability on the 330. Same subject Neglect or failure to disclose tents or value. 331. Same subject - Extent carrier's liability. con of 332. Same subject-Illustrations. 333. Exception to liability in case of loss from the intermeddling or mistake of the owner of the goods. CARRIER NOT LIABLE FOR LOSSES 334. Nature of the exception. VII. EXCEPTION IN THE CASE OF 335. Live animals not regarded as goods. 336. Difference in liability based on inherent nature. 337. Same subject. 338. Same subject. 339. Carrier liable as common carrier of animals except for losses caused by their peculiar nature. 340. Same subject-Cases hold ing contrary view. 341. Carrier of animals is com mon carrier and not spe cial agent of owner. $342. Though injury caused by § 358. Goods 344. Statutes limiting carrier's liability. 345. Policy of United States courts towards carriers by water changed by Harter Act. 346. Statute similar to Harter Act enacted in Great Britain in 1900. 347. To what vessels and prop erty Harter Act applies. 348. Harter Act only modifies relations between a vessel and her cargo. 349. Stipulations in bills of lading contrary to section one of Harter Act are void. 350. Meaning of word "loading" in section one of Harter Act. 351. "Stowage" used in two senses in section one of Harter Act. 352. Stowage with a view to the proper trim of the vessel. for such stowage rests on the carrier alone. 353. Responsibility 354. Stowage with reference to the natural characteristics of the cargo carrierEffect of custom. 355. Stowage of liquid cargo. 356. Duty of ship to provide proper dunnage. 357. Stowage of delicate and easily tainted goods. should be secured from possibility of shifting. 359. Proper stowage at commencement of voyage may be made improper by change of vessel's trim during voyage. 360. Negligence in delivery of cargo within the first section of the Harter Act. 361. Vessel is liable for failure to deliver at all through master's negligence in overlooking goods. 362. Second section of Harter Act is the complement of section three. 363. Effect of sections two and three on the warranty of seaworthiness. de 364. Same subject-Latent fects. 365. Exemption clauses in bills of lading strictly construed. 366. The test of seaworthiness. 367. Burden of proof on carrier to prove vessel was seaworthy or due diligence was used to make her seaworthy. 368. How far warranty of seaworthiness extends vessel must be seaworthy at each stage of voyage. 369. Vessel liable for initial instability. 370. Presumption worthiness of unseawhen leaks soon happen in ordinary weather. 371. Leaking decks or hatches. 372. Defective rivets or bolts. 373. Unfastened ports. 374. Water and steam pipes, etc. 375. Bulkheads. 376. Insufficiency of coal. 377. Defective fog horns. § 378. Deviations in compass. 380. What is due diligence-Ves- 381. Due diligence in manning vessel. 382. Faults or errors in management. § 383. Faults or errors in naviga tion. 384. Dangers of the sea. 385. The inherent defect, quality 386. Effect of deviation. I. IN GENERAL. Sec. 265. (§ 170a.) The liability of the carrier by law. The liability of the common carrier by law is, as has been seen, an unusual and extraordinary one, based upon considerations of public policy which have survived the wonderful change in the circumstances under which they first arose. By that law the common carrier is regarded as a practical insurer of the goods against all losses of whatever kind with the exception of (1) those arising from what is known as the act of God, and (2) those caused by the public enemy; to which in modern times have been added (3) those arising from the act of the public authority, (4) those arising from the act of the shipper, and (5) those arising from the inherent nature of the goods. Sec. 266. (§ 171.) Carrier may by contract assume more than legal liability. As a carrier may, as will be hereafter seen, to some extent restrict his liability within narrower limits than are prescribed by the law in the absence of express contract, so he may enlarge it so as to waive this limited protection which the law has always afforded him. But this must be done by clear and precise language; for the law will not imply from any doubtful language such an intention, but will rather presume, where the meaning of the contract is doubtful, that it was not his intention to waive a protection so reasonable and so important to him. Express language will be required to impose upon a party the responsibility of an insurer beyond his legal obligation, or to prevent the operation of the customary rule in cases where the act of God or inevitable accident excuses the non-performance of a contract. Sec. 267. (§ 172.) Same subject-Contract must be express. -In Price v. Hartshorn1 the contract of the carrier was "to deliver without delay, damage or deficiency in quantity to be deducted from charges by consignees." It was contended that this contract, in the absence of words limiting his liability or reserving the benefit of the exceptions which the law made in his favor, was a contract to be liable at all events, and that he was therefore liable even for a loss which had occurred by the act of God; but the court, while admitting that it was competent for him to increase his legal obligation, held that it could not be concluded from this language that he had intended to do so, and that the contract, to have this effect, must be in direct and positive terms, and must show a clear purpose to add to his ordinary liability. So in Gage v. Tirrell, the carrier gave a bill of lading which contained no exception to his liability from any cause except the perils of the sea, and it was contended, as in the previous case, that expressio unius being exclusio alterius, this was a contract to assume all risks, even from the acts of God or the public enemy; but this was denied to be its effect by the court, and it was said that whilst the maxim expressio unius exclusio alterius generally furnished a sound rule by which to arrive at the intention of the parties to contracts, it was one to be applied with caution, and that it could not be concluded from such an argument that the carrier intended to divest himself of the protection which the law had given him. It was said, however, that had the exception in the contract been of one of those perils against which the law protected the carrier, instead of against the perils of the sea against which it did not protect him, its conclusion might have been different.3 Sec. 208. ($173.) Purpose of this chapter.-But where the carrier has not in any way enlarged his legal responsibility, he 1. 44 Barb. 655; 44 N. Y. 94. 2. 9 Allen, 299. 3. See Strohn r. Railroad, 23 Wis. 126; Morrison v. Davis, 20 Penn. St. 171; Redpath v. Vaughn, 52 Barb. 489. |