may always show that the loss or damage has been caused by the act of God or the public enemy, and thus escape from liability.+ It therefore becomes a matter of importance to determine what is meant by the words "the acts of God" in this connection, and who are to be regarded as public enemies in the sense in which the words are to be understood when thus used. It may be observed, however, that the instances for the application of these exceptions have become much less frequent in more recent times, owing to the almost universal practice which now prevails of providing by contract the extent of the responsibility which the carrier shall assume.

It is also important to consider what other limitations, if any, the law attaches to the liability of the carrier in the absence of a contract limiting it, and it is the purpose of the present chapter to consider this subject, the question of contract limitations being reserved for the succeeding chapter.

II. CARRIER NOT LIABLE FOR LOSSES ARISING FROM THE ACT OF GOD.

Sec. 269. ($174.) What is meant by the "acts of God."— The words "the acts of God" have been the subject of much comment, in some of the cases in which carriers have endeavored to protect themselves against liability for losses caused by accidents or occurrences which they claimed to have been the acts of God. Perhaps no subject could open a wider field for theological and speculative discussion than the question what are and what are not the acts of God. In one sense it may be said that all events may be attributed to IIis agency; but this is by no

4. But where the carrier has contracted to furnish cars at a certain time and place, he cannot escape liability by insisting that an act of God rendered a perform ance of the contract impossible; nor will the fact that the owner of the goods knew at the time the

contract was entered into that it would be impossible for the carrier to comply with its terms relieve the carrier from liability for its non-performance. Collier v. Swinney, 16 Mo. 484; Myres v. Diamond Joe Line, 58 Mo. App. 199.

means the sense in which the phrase is to be legally understood; and it can never become necessary, so far as the question of the liability of the carrier is concerned, to discuss so abstract a proposition, because the exception to his liability intended by these words has by a long course of almost concurrent adjudication received a tolerably fixed and definite but limited meaning.

Sec. 270. ($175.) Same subject-Conflict in authorities.Still, the authorities do not entirely agree as to what causes of a natural and unexpected kind are to be embraced within the exception. Some extend its meaning so as to include hidden and unknown obstructions unexpectedly thrown in the way of the carrier by natural causes; and, when the carriage is by water, even to such as are of a permanent kind but hitherto unknown to navigators. These authorities assimilate the acts of God to inevitable or unavoidable accident, when such accident is in no way attributable to human agency nor to the fault or negligence of the carrier; and according to this view of the subject, if the occurrence be one produced by natural causes without the intervention of man, whether such causes be passive or active, and neither negligence nor the want of skill on the part of the carrier has concurred to produce the result, he will be excused. It is to be regarded, it is said, as one of those misfortunes against which no skill or watchfulness on his part could have guarded, and as no human agency has brought it upon him, it must be referred to that inevitable necessity, the vis major, which is the act of God. As where a freshet has lodged a snag in the usual channel of a river, and a vessel, following this channel as it had been used to do, strikes upon this snag.5 Or where the obstruction was a hidden rock in the sea, not before known to navigators and not known to the master of the vessel. And with this view of the subject would seem to agree our most eminent textwriters.7

5. Smyrl v. Niolon, 2 Bailey, 421; Faulkner v. Wright, Rice,

107.

6. Williams v. Grant, 1 Conn. 487. The doctrine of this case is

denied in Friend v. Woods, 6 Gratt. 189.

7. Story on Bail. §§ 489, 490, 511; 2 Kent's Com. 597. And see Hays . Kennedy, 41 Penn. St.

Sec. 271. (§ 176.) Same subject.-Other authorities, however, restrain the meaning of the exception within narrower limits, and require that the inevitable necessity, to come within the meaning of the phrase "the act of God," must arise from some violent disturbance of the elements, such as a storm or tempest, an earthquake, lightning, floods, or the like, which must be the immediate cause of the disaster; and according to them, to be the act of God, it must not only be an extraordinary violence of nature, but it must be of so stupendous a character that no act of man can do anything to avoid it. They deny, therefore, that losses arising from accidents attributable to existing obstructions, whether of old or recent date and no matter how produced, or to causes brought about by quiet changes in the physical world, no matter how sudden, can be claimed to be the acts of God which will excuse the carrier; for these, not being in their own nature and inherently agents of mischief and causes of danger, the loss, when it occurs by reason of them, must necessarily have sprung, in part at least, from human agency.8

Sec. 272. ($177.) The rule in Colt v. McMechem.-One of the earliest cases in this country involving this question was that of Colt v. McMechen, in which the proof was that the vessel was sailing close to shore under a light wind, which, had it not sud

378. In this case, Lowrie, C. J., learnedly reviews the authorities upon the subject as well as the history of the words "the acts of God," and shows that previous to the decision of Lord Mansfield in Forward v. Pittard they were used in the sense of something inevitable in the course of nature, and that the narrower signification claimed for them in modern cases, especially in their application to carriers, was first introduced by that decision in 1785.

8. For cases involving losses from the act of God, see Packard v. Taylor, 35 Ark. 402; Gillespie v.

Railway Co., 6 Mo. Ap. 554; Davis v. Railroad Co., 89 Mo. 340; Haas v. Railroad Co., 81 Ga. 792; Norris v. Railway Co., 23 Fla. 182; Slater v. Railway Co., 29 S. C. 96; Hibernia Ins. Co. v. Transportation Co., 120 U. S. 166; Gleeson v. Railroad Co., 5 Mackey, 356, 140 U. S. 435; Strouss v. Railway Co., 17 Fed. Rep. 209; The Majestic, 166 U. S. 375, 17 Sup. Ct. R. 597, 41 L. Ed. 1039, reversing Potter v. The Majestic, 60 Fed. 624, 9 C. C. A. 161, 20 U. S. App. 503, 23 L. R. A. 746; s. c. 56 Fed. 244, 69 Fed. 844.

9. 6 Johns. 160.

denly failed, would have carried her safely; but suddenly failing, the vessel ran aground and the goods of plaintiff were thereby injured. The opinion of the court was delivered by Spencer, J., with whom a majority of the court agreed. "Upon a position so plain in my apprehension," said he, "as that the sudden cessation of a wind which was competent, at the very moment when the vessel began to come about, for the avoidance of the shoal, was the act of God and did not arise from the fault or negligence of man, I am at a loss for further illustration." But Kent, C. J., dissented, saying: "I concur in the general doctrine that the sudden failure of the wind was the act of God. It was an event which could not happen by the intervention of man nor be prevented by human prudence. But I think there was a degree of negligence imputable to the master, in sailing so near the shore under a light, variable wind, that a failure in coming about would cast him aground. He ought to have exercised more caution and guarded against such a probable event, in that case, as the want of wind to bring his vessel about. A common carrier is only to be exeused from a loss happening in spite of all human effort and sagacity."

Sec. 273. (§ 178.) Same subject. Of this decision it has been said that it may be fair divinity, and that upon such a philosophical theory of causation everything may be the act of God; but that it is the most extraordinary version of the principle on which a common carrier is discharged from liability that the books contain, and that upon the authority of later cases it may be confidently pronounced to be wrong,10 But if a sudden gust of wind is the act of God when it causes the loss, as was held by Lord Mansfield,11 it would seem too plain for argument that its sudden cessation was due to the same cause, and that if the physical effect were the same, so should be its legal effect, aside from any negligence or want of precaution on the part of the carrier. And it would be difficult to distinguish the difference in legal effect between losses occurring from such

10. Am. Notes to Coggs v. Bernard, Smith's Ld. Cas. p. 317.

11. Amies v. Stevens, 1 Strange, 128.

causes, and those occasioned by the freezing up of canals and rivers, which has been repeatedly held to be the act of God which will exonerate the carrier where no fault is imputable to him.12

Sec. 274. (§ 179.) Act of God must be proximate cause of loss. All the authorities, however, agree that the act of God, to excuse the carrier, must be the proximate cause of the loss;13 for the very definition, as given by Lord Mansfield in Forward v. Pittard,1 of the act of God is, that it is something in opposition to the act of man. If, therefore, another agency than that which may properly be referred to as an act of God intervenes to produce the misfortune, the act of God will no longer be considered the proximate cause of the loss, and the carrier cannot relieve himself from liability by pleading it as an excuse.15 This is illustrated by the case of Smith v Shepherd,16 which was an action brought against the defendant as the master of a vessel, and it appeared that at the entrance of the harbor of Hull there was a bank on which vessels used to lie in safety, but a part of which had been swept away by a great flood some time before the misfortune in question, so that it had become perfectly steep instead of shelving towards the river as formerly; that a few days after this flood a vessel sunk by getting on the bank, and her mast, which was carried away, was suffered to float in the river tied to some part of the vessel, and that 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 been in its former situation; but on the tide ebbing, her stern

12. Bowman v. Teall, 23 Wend. 306; Parsons v. Hardy, 14 id. 215; Harris v. Rand, 4 N. H. 259; Crosby v. Fitch, 12 Conn. 410; Spann v Transportation Co., 11 Misc. Rep. 680, 33 N. Y. Supp. 566.

13. Hart v. Allen, 2 Watts, 114; Ewart v. Street, 2 Bailey, 157; King Shepherd, 3 Story, 349; Siordet v. Hall, 4 Bing, 607; Rail

road Co. v. Tapp, 6 Ind. App. 304; 33 N. E. Rep. 462.

14. 1 T. R. 33.

15. See Railroad Co. v. Kuhn, 107 Tenn. 106, 64 S. W. Rep. 202, citing Hutchinson on Carr.; Jones v. Railroad Co., 91 Minn. 229, 97 N. W. Rep. 893, 103 Am. St. Rep. 507.

16. Abbott on Shipping, p. 383.