sank into the water and the goods on board were spoiled. Proof that there was no actual negligence, which was offered by the defendant, was rejected because, it was ruled, the act of God which could excuse the defendant must be immediate, but this was too remote.

Sec. 275. (§ 130.) Same subject-Human agency must not have intervened.-But while the carrier will be relieved from liability for losses arising from an act of God, it is universally conceded that in order that he may avail himself of this exception to his liability, human agency must not have intervened.17 17. Mershon บ. Hobensack, 2 vided into two classes - those Zab. 372; Backhouse v. Sneed, 1 which are occasioned by the eleMurphy, 173; Ewart v. Street, 2 mentary forces of nature unconBailey, 157; McArthur v. Sears, 21 nected with the agency of man or Wend. 190; The Majestic, 166 U. other cause, and those which have S. 375, 17 Sup. Ct. R. 597, 41 L. their origin either in whole or in Ed. 1039. part in the agency of man, whether in acts of commission or omission, of nonfeasance or misfeasance, or in any other cause independent of the agency of natural forces. It is obvious that it would be altogether incongruous to apply the term 'act of God' to the latter class of inevitable accident. It is equally clear that storm and tempest belong to the class to which the term 'act of God' is properly applicable. On the other hand, it must be admitted that it is not because an accident is occasioned by the agency of nature, and therefore by what may be termed the act of God,' that it necessarily follows that the carrier is entitled to immunity. The rain which fertilizes the earth and the wind which enables the ship to navigate the ocean are as much within the term 'act of God' as the rainfall which causes a river to burst its banks and carry destruction over a whole district or the cy

In the case of Nugent v. Smith, L. R. 1 Com. Pleas Div. 19, Brett, J., stated the rule to be that the act of God, to excuse the carrier, must be some irresistible violence or convulsion of nature against which he could, by no possible means, have guarded or preserved the goods; and that, when overtaken by such overwhelming power, it became his duty to use every possible means to avoid the loss and to save the goods. This, however, was held by Blackburn, C. J., and the other judges in the court of appeal, to have been erroneous, in requiring too much of the carrier when overtaken by the danger; and upon the subject of what was meant by the term "the act of God," the learned chief justice said: "It is obvious, as was pointed out by Lord Mansfield in Forward v. Pittard, 1 T. R. 27, that all causes of inevitable accident (casus fortuitus) may be di

An illustrative case is that of Merritt v. Earle.18

There a

steamer was sunk by running upon the mast of a sloop that had been sunk in a squall of wind a day or two previously; and although the sloop had been sunk by the violence of the wind, yet that, it was said, was but the remote cause of the loss of the steamer. It was also said that human agency had intervened in the case by placing the sloop in the position by which she was overtaken by the wind, and it was accordingly held that upon both grounds the accident did not come within the meaning of the term, the act of God. So where the defendant's vessel was sunk by being driven against a concealed anchor in the river, to which no buoy was attached, it was held by Mansfield, Buller and Ashurst, JJ., that the carrier was liable.19

Sec. 276. (§ 180a.) Same subject.-So in Packard v. Taylor20 it appeared that a boat, which had been injured by a snag, on reaching port had had a dock run under her and holes were cut for the insertion of new timbers, the boat being fastened to the dock by chains. While in this position the boat was loaded. clone that drives a ship against a is unseaworthy, and hence per rock and sends it to the bottom. Yet the carrier who, by the rule, is entitled to protection in the latter case, would clearly not be able to claim it in case of damage occurring in the former. For here another principle comes into play. The carrier is bound to do his utmost to protect the goods committed to his charge from loss or damage, and if he fails herein he becomes liable from the nature of his contract. In the one case he can protect the goods by proper care, in the other it is beyond his power to do so. If, by his default in omitting to take the necessary care, loss or damage ensues, he remains responsible, though the so-called 'act of God' may have been the immediate cause of the mischief. If the ship

ishes from the storm which it
otherwise would have weathered;
if the carrier, by undue deviation
or delay, exposes himself to the
danger which he otherwise would
have avoided, or if by his rash-
ness he unnecessarily encounters
it, as by putting to sea in a raging
storm, the loss cannot be said to
be due to the act of God alone,
and the carrier cannot have the
benefit of the exception. This be-
ing granted, the question arises
as to the degree of care which is
required of him to protect him
from liability in respect of loss
arising from the act of God."
18. 29 N. Y. 115; s. c. 31 Barb.

38.

Navigation Co. v.

19. Trent
Wood, 3 Esp. 127.
20. 35 Ark. 402.

A "small whirl of wind" coming up, the chain was broken and the boat slipped off the dock into the water and the goods were injured. It was held that the carrier was liable. "The act of God," said the court, "which shook the dock from under the vessel was not the immediate cause of the damages. It was the holes in the vessel admitting torrents of water as soon as it touched the surface."

Sec. 277. (§ 180b.) Same subject.-But in Blythe v. Railway Co., where an express car, having in it a coal fire burning in a stove and a lighted lamp, was blown from the track by a sudden gale of wind and overturned, and, with the contents, immediately consumed by fire which ensued, it was held that the act of God was the proximate cause of the loss and not the alleged negligence of the carrier's servants in not rescuing the goods, it appearing that any attempt to preserve them would have been unavailing.21

Sec. 278. (§ 181.) Same subject-Prudence or mistaken judgment no excuse. And whenever the carrier is placed in a situation in which it becomes necessary for him to exercise his skill or judgment, no matter what may be the circumstances of danger or difficulty, he takes the risk of their proper exercise; and if there be a way or the means of escape, and he, by losing his presence of mind or by mistaking one object for another, is thereby misled, or shows a want of the necessary skill and judgment, whereby a loss occurs, he is responsible. In McArthur v. Sears,22 which is an exceedingly instructive case upon this subject, the vessel approached the harbor of Erie. at night, in hazy and snowy weather, which made it difficult to see the beacon light by which it should have been guided. Another light close by was also visible, which the master mistook for the beacon light, on account of which the vessel was turned from its proper course and struck upon a shoal, which made it necessary to throw the goods overboard. It was proven that the master was one of the most competent masters of steamboats on the lake, and that the most prudent master might have

21. 15 Colo. 333.

22. 21 Wend. 189.

run his boat ashore under the circumstances. Cowen, J., in giving the judgment of the court, said: "I have sought in vain for any case to excuse the loss of the carrier, where it arises from human action or neglect, or any combination of such action or neglect, except force exerted by a public enemy. No matter what degree of prudence may be exercised by the carrier and his servants, although the delusion by which it is baffled or the force by which it is overcome be inevitable, yet, if it be the result of human means, the carrier is responsible. I believe it is a matter of history that inhabitants of remote coasts, accustomed to plunder wrecked vessels, have sometimes resorted to the expedient of luring benighted mariners by false lights to a rocky shore. Even such a harrowing combination of fraud and robbery would form no excuse. . . . The difficulty returns therefore; if we receive the immediate agency of third persons in any shape, we open the very door for collusion which has denied an excuse by reason of theft, robbery and fire."

Sec. 279. (§ 182.) Loss by fire, explosion or collision.-Loss by fire, unless it be caused by lightning, does not come within. the exception, because it can originate in no other way so as to be fairly called the act of God. This was decided by Lord Mansfield in the case of Forward v. Pittard,23 in a case of great hardship to the carrier. A wagoner had received the goods for carriage upon his wagon and had placed it, securely as he thought, under shelter, until the time should arrive for his departure with it. In the meantime, a fire originated at a comsiderable distance from it, but spread so rapidly that before the wagon could be removed it was reached by the flames and burned. In giving judgment in the case Lord Mansfield said: "The question is whether the common carrier is liable in this case of fire. It appears from all the cases for a hundred years back that there are events for which the carrier is liable independent of his contract. By the nature of his contract he is liable for all due care and diligence, and for any negligence he is suable on his contract. But there is a further degree of re

23. 1 T. R. 33.

sponsibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer.

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 the act of man, for it is expressly stated not to have happened by lightning. The carrier therefore in this case is liable for inevitable accident. ''24

Sec. 280. (§ 183.) Same subject.-In Miller v. Steam Navigation Company,25 the carrier had deposited the goods upon a float or floating warehouse for further transportation by another carrier. A fire broke out a quarter of a mile distant, and very soon afterwards a gale of wind suddenly sprung up and blew the fire in the direction of the float, which, in a few minutes, it reached, and the goods were consumed by it. There was no evidence to show how the fire originated. It was therefore presumed to have arisen from some act of man, and the carrier was held liable.26 In a very similar case, however, arising in Pennsylvania, the carrier was excused.27 And so where a sudden gale blew a car from the track, upsetting it, and a stove which it contained set fire to its contents, it was held that the carrier was not liable.28

Sec. 281. (§ 184.) Same subject-Same rule applies to carriers using steam.--The same rule as to the carrier's liability for losses by fire applies as well in cases of vessels or other vehicles propelled by steam as in other cases, although it has been argued that inasmuch as the use of fire is required to impel them, the same rule should not be applied to them as to vessels which sail by the wind, and that the carrier by steam vessels

24. Hibler V. McCartney, 31 Ala. 502; Mershon v. Hobensack, 2 Zab. 372; Gilmore v. Carman, 1 Sm. & M. 279; Hollister v. Nowlen, 19 Wend. 234; Condict v. Railway, 54 N. Y. 500; Am. Trans. Co. v Moore, 5 Mich. 368; York Company . The Railroad, 3 Wall. 107. 25. 10 N. Y. 431; s. c. 13 Barb. 361.

26. See, also, Niblo v. Binse, 44 Barb. 54; Moore v. Railroad, 3 Mich. 23; Cox v. Peterson, 30 Ala. 608; Chevallier v. Straham, 2 Tex. 115; Hyde v. Trent, etc. Nav. Co., 5 T. R. 389.

R. Co. v.

27. Pennsylvania Fries, 87 Penn. St. 234. 28. Blythe v. Railway Co., 15 Colo. 333.