the vessel was guilty of negligence in not selecting a proper place for the grounding of the vessel, or in not removing the goods when he saw that the coming of the water into the cabin was inevitable under the circumstances in which the vessel was placed. He was therefore liable for two reasons: first, because of his negligence in bringing the vessel into an improper place when the danger should have been seen; and secondly, because when the grounding had occurred he did not use the proper diligence to save the goods. Sec. 290. Same subject.-And in the case of Adams Express Co. v. Jackson,47 the carrier accepted a number of horses for transportation with knowledge that the road of a subsidiary carrier over whose lines the shipment was to pass was obstructed by floods. On account of such obstruction the horses were injured. In an action against the receiving carrier it was held that, while he might have refused to receive the horses on the ground that an act of God had obstructed the line, yet having done so with knowledge of the facts, the full extent of his liability attached and the act of God was therefore no defense. Sec. 291. (§ 188.) Same subject. So in Campbell v. Morse 48 the carrier undertook to cross a stream between sundown and dark, immediately after a rain, and the wheels of his wagon stuck fast, and he was unable to extricate it before the stream rose so as to submerge the body of his wagon and damage the goods. He relied for his defense upon the nature and circumstances of the misfortune as an excuse; and although it was proven that the rise was more sudden and higher than any that had been known to take place in the stream for forty years, the court held that it was manifest that, had he gone through the ford without being stopped, the accident would not have occurred. In attempting to cross the stream under the circumstances he took upon himself the risk of its sudden rise and the consequences. 47. 92 Tenn. (8 Pickle), 326, 21 S. W. Rep. 666. 48. 1 Harper, 468. Sec. 292. Same subject-Or if he negligently exposes the goods to danger.—But although the carrier will be excused if an act of God occasioned the loss, if it appear that his own misconduct concurred with the act of God in bringing the loss about, he cannot escape liability. He is bound to exercise due care and diligence in view of the attending circumstances to protect the goods intrusted to him for carriage. And this obligation will require that he take such precautions, when the means of doing so are at hand, as are reasonably necessary to avert a threatened danger; and if a loss ensue through his failure to take such precautions, he will not be permitted to shield himself from liability on the ground that the loss was occasioned by an act of God. He must also take notice of any signs of approaching danger, and, if they are such as reasonably to awaken apprehension, and he has the facilities for escape under his control, he must employ such facilities in removing the goods to a place of safety. And in general it may be stated that where the carrier by the exercise of reasonable diligence could have foreseen the happening of an event such as might reason-\ ably be presumed would cause injury to the goods, and he fails to make use of the means at his command to guard against it, and the goods are thereby lost or injured, he will be liable although such loss or injury would not have happened but for an act of God.1 Thus where cars loaded with goods were permitted to remain standing at a place where they were likely to be submerged by a flood, and the cars were later submerged and the goods injured, it was held that the carrier was liable for his failure to remove the cars to a place of safety.2 So where a carload of wheat was allowed to remain on a side track at a time when the water in a nearby river was steadily rising, which fact was known to the carrier's servants, and the car was later partially submerged and the wheat damaged, it was held that the question whether the carrier had exercised ordinary care in preventing the loss by removing the car to a place of safety was properly one for the jury.3 Sec. 293. (§ 189.) So if his vessel be unseaworthy.-So if the carrier by water start upon his voyage in a vessel which is not seaworthy and a loss occur by reason of any of those accidents or occurrences which are understood as the acts of God, he must answer for the loss if it appear that it would not have happened had his vessel been staunch and seaworthy. In Bell v. Reed, it was held that the loss must be borne in such a case by the carrier. Sec. 294. (§ 190.) Or if he deviate from the usual course.— So if the carrier deviate without necessity from the regular and usual course, he will be held responsible for any loss which may occur, whether by the act of God or from any other cause. And it will not be competent for him to show that had he gone the usual and customary route, he would in all probability have encountered the same danger with the same consequences. Nor will it avail him that had he done so, the same misfortune would beyond a reasonable doubt have overtaken him. Having been guilty of an inexcusable fault in the commencement of his undertaking he takes the risk of all the consequences to its end, and the law will not permit him to say, when the loss happens, that the chances were that it would have happened in the same way and from the same cause had he done his duty.5 And if there be two routes, one of which is more dangerous than the other, which is known to the carrier, if h 3. Baltimore, etc., Railroad Co. v. Keedy, 75 Md. 320, 23 Atl. Rep. 643. 4. 4 Binney, 127. 5. Crosby v. Fitch, 12 Conn. 410; Powers v. Davenport, 7 Blackf. 497; Louisville & C. Pack et Co. v. Rogers, 20 Ind. App. 594 take the unsafe or dangerous route instead of the safer one, he takes the risk of loss by so doing. Sec. 295. (§ 191.) Same subject.-The leading case upon the subject of deviation is that of Davis v Garrett, in which the plaintiff shipped by the defendant's vessel a quantity of lime, which, as it was alleged, was lost by a deviation by the master of the vessel from the usual and customary course between the point of shipment and the place of destination; to which the defense interposed was that the deviation by the master was not a cause of the loss sufficiently proximate to entitle the plaintiff to recover, inasmuch as the loss might have been occasioned by the same tempest if the vessel had proceeded in her direct course; but it was answered that no wrong-doer could be allowed to apportion or qualify his own wrong; and that as a loss had actually happened whilst his wrongful act was in operation and force, and which was attributable to his wrongful act, he could not set up as an answer to the action the bare possibility of a loss if his wrongful act had never been done.8 6. Express Co. v. Kountz, 8 such barge was out of her course, Wall. 342. 7. 6 Bing. 716. 8. Tindal, C. J.: "There are two points for the determination of the court upon this rule: the first, whether the damage sustained by the plaintiff was SO proximate to the wrongful act of the defendant as to form the subject of an action; and secondly, whether the declaration is sufficient to support the judgment of the court for the plaintiff. "As to the first point, it appeared upon the evidence that the master of the defendant's barge had deviated from the usual and customary course of the voyage mentioned in the declaration without any justifiable cause; and that afterwards and whilst in consequence of stormy and tempestuous weather, the sea communicated with the lime, which thereby became heated, and the barge caught fire, and the master was compelled for the preservation of himself and the crew to run the barge on shore, where both the lime and the barge were entirely lost. Now the first objection on the part of the defendant is not rested, as indeed it could not be rested, on the particular circumstances which accompanied the destruction of the barge; for it is obvious that the legal consequences must be the same whether the loss was immediately, by the sinking of the barge at once by a heavy sea when she was out of her direct Sec. 296. (§ 192.) Same subject. And in Williams v. Grant, J., in discussing this subject, said: "It is a condition precedent to the exoneration of carriers that they should have been in no default; or in other words, that the goods of the bailor should not have been exposed to the peril or accident which occasioned the loss, by their misconduct, neglect or ignorance. For though the immediate or proximate cause of loss, and usual course, or whether it the ship strikes against a rock or happened at the same place, not perishes by storm in the one in consequence of an immediate course, no one can predicate that death's wound, but by a connected she might not equally have chain of causes producing the struck upon another rock or met same ultimate event. It is only with the same or another storm if a variation in the precise mode pursuing her right and ordinary by which the vessel was de- voyage. stroyed, which variation will necessarily occur in each individual case. "But the objection taken is that there is no natural or necessary connection between the wrong of the master in taking the barge out of its proper course and the loss itself; for that the same loss might have been occasioned by the very same tempest if the barge had proceeded in her direct course. "But if this argument were to prevail, the deviation of the mas ter, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plaintiff to recover. For if a ship is captured in the course of deviation, no one can be certain that she might not have been captured if in her proper course. And yet in Parker v. James, 4 Camp. 112, where the ship was captured whilst in the act of deviation, no such ground of defense was even suggested. Or again, if "The same answer might be attempted to an action against a defendant who had, by mistake, forwarded a parcel by the wrong conveyance and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable. "But we think the real answer to the objection is that no wrongdoer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst this wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss if his wrongful act had never been done. It might admit of a different construction if he could show, not only that the same loss might have happened, but that it must have happened if the act complained of had not been done; but there is no evidence to that extent in the present case." 9. 1 Conn. 487. |