in any given instance, 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 his own, he is not excused." And accordingly in the case of The Delaware,10 where the master of the vessel had stowed the goods on deck when it was his duty to stow them under deck, and the goods had to be jettisoned in a storm in consequence of such stowage, it was held that the vessel should bear the whole loss, and could not demand contribution of its freighters although the jettison was made necessary by a storm. Sec. 297. (§ 193.) Where the loss would not have occurred but for the carrier's unreasonable delay.-But suppose the carrier delays an unreasonable time on his journey, and it is shown that but for such unreasonable delay he would have been able to deposit the goods in safety, or to deliver them to the next succeeding carrier by whom they would have been carried beyond the reach of the danger which has occasioned their loss, shall the carrier be held liable under such circumstances for the loss of the goods as the consequence of his delay? Different views of this question have been taken by the American courts. It is maintained in those cases which hold that the earrier is not liable that, while the loss might not have happened but for the delay, the carrier is responsible only where his negligence was the proximate cause of the loss; that where an act of God has intervened, it cannot be said that the carrier could have foreseen and anticipated that the goods would be overtaken by such a casualty as a natural and probable consequence of the delay, and that the delay is therefore but the remote cause of the loss and the carrier must accordingly be excused from liability. Sec. 298. Same subject. Thus in Morrison v. Davis,11 goods which were being carried on a canal-boat were injured by the wrecking of the boat by an extraordinary flood, and it was held that this being an act of God which would excuse him if he were 10. 14 Wall. 579. 11. 20 Penn. St. 171. not in fault, the rule was not changed by reason of the fact that one of the horses attached to the boat was lame, and that such delay was thereby caused that the boat did not sooner pass the place where the accident occurred, beyond which it would have been safe. In other words, the fact was that but for this delay the goods would have been put beyond danger and would not have been lost. It was held that carriers being answerable for the ordinary and proximate consequences of their negligence and not for those which are remote and extraordinary, and the flood and not the delay in this case being the proximate cause, the case came within the exception of the acts of God.12 Sec. 299. ($194.) Same subject.-In Denny v. The N. Y. Central Railroad,13 the goods were carried to the end of its route by the railway company, and while they were in its warehouse there awaiting delivery to another carrier, they were injured by a flood in the Hudson river. It was found that the company had been negligent in delaying the transportation of the goods, and that the goods would not have been exposed to the cause of the damage had they arrived by the defendant's road as soon as they should have done, because in that event they would have been carried forward by the connecting carrier in time to avoid the flood. It was contended that, as the damage was the direct consequence of the delay in the transportation, the company should be held liable for the loss; but it was held that the flood, which was the act of God, being the proximate, and the delay of the company only the remote, cause of the loss, it should be excused.14 12. For caseз following this doctrine see, Railroad Co. v. Millsaps, 76 Miss. 885, 25 So. Rep. 672, 71 Am. St. Rep. 543, 17 Am. & Eng. Rd. Cas. (N. S.) 269; Herring v. Railroad Co., 101 Va. 778, 45 S. E. Rep. 322; Moffatt, Mo. etc., Co. v. Railroad Co., App. 88 S. W. Rep. 117; Railway Co. v. Darby, 28 Tex. Civ. App. 229, 67 S. W. Rep. 129; Railroad Co. v. Bergman, 3 Tex. Ct. Rep. Sec. 300. ($195.) Same subject. These cases were cited and approved by the supreme court of the United States in the case of The Railroad v. Reeves, 15 where the carrier also relied upon the fact that the goods were injured by an extraordinary overflow. This was in turn met by a charge of negligence on the part of the carrier in not forwarding the goods beyond the point of danger as soon as it had agreed to do or as soon as its duty required it to do under the circumstances of threatened danger. But the principle upon which the foregoing cases were decided was approved by the court, and as it was at variance with the general groundwork of the charge of the court below, under which the jury had found a verdict for the plaintiff, the case was reversed and remanded. It was further held that even if the railroad company had contracted with the plaintiff to start with his goods the evening before the occurrence, which would have taken them byond its influence, and which the plaintiff undertook to prove it had agreed to do, it would still not be liable for the loss, because the failure to comply with such a contract would have been only the remote and not the proximate cause of the loss. And these cases were same court in Hoadley v. The the result proves, the damage Northern T. Co., 115 Mass. 304, in which the carrier was protected from liability for loss by fire by its contract, which protection, however, it was contended, it had forfeited by its delay in removing the goods. But this contention was not sustained by the court, which went on to say that "in cases of this description the injury complained of must be shown to be the direct consequence of the defendant's negligence. This, it was said, is the only practical rule which can be adopted by the courts in the administration of justice. It is not enough that the act charged may constitute one of a series of antecedent events without which, as The would not have happened. 15. 10 Wall. 176. See, also, Gleeson v. R. R. Co., 5 Mack. 356; 140 U. S. 435; Northern Pacific Ry. Co. v. Kempton (C. C. A.), 138 Fed. 792. To the same effect, also approved and followed in Daniel v. Ballantine,16 where the facts were that the defendants having undertaken to tow a barge from one point on Lake Erie to another, after having commenced the towage, stopped unnecessarily, as was alleged, for three days during which the weather was fair, and at the end of that time resumed their trip with the barge and were overtaken by a storm, in which it was lost. It was held that though if they had not stopped on the way the barge would have been taken through safely, yet, upon the principle of the foregoing cases, the defendants could not be held liable. Their reasoning was also expressly approved by the supreme court of Michigan in the case of The Railroad v. Burrows,17 in which there was a delay beyond the ordinary time in the transportation of a car-load of apples, caused by the injury done to the track of the road by the Chicago fire, the great accumulation of freight occasioned thereby and the imperative necessity for the transportation of relief goods in preference to other freight by the road, in consequence of which delay the apples were frozen. It was held that the delay under these circumstances was excusable, but that even if it had not been it could not have been considered as the natural and proximate cause of the loss, and that therefore the carrier would not have been liable if no such reasons for the delay had existed. Sec. 301. (§ 196.) Same subject-The contrary view.— Other courts, however, decline to follow the rule that the carrier, although he has negligently delayed in sending the goods forward, is excused from liability for loss or injury if an act of God has intervened, and contend that the rule which thus excuses the carrier is based upon a too strict application of the doctrine of proximate cause.18 Nothing is better settled than that Empire State Cattle Co. v. Railway Co., 135 Fed. 135, citing The R. D. Bibber, 50 Fed. 841, 2 C. C. A. 50; Thomas v. Lancaster Mills, 71 Fed. 481, 19 C. C. A. 88; Insurance Co. v. Tweed, 7 Wall. 44, 19 L. Ed. 65; Railway Co. v. Insur ance Co., 139 U. S. 223, 11 Sup. 16. 23 Ohio St. 532. 18. See Bibb Broom Corn Co. in case of an unnecessary deviation the carrier will be liable, no matter what the immediate cause of the loss may have been, because the law will trace the loss back to the first fault and will there fix the liability for it, even though the immediate cause may have been some violent and unavoidable change or convulsion in nature. In other words, whenever the carrier attempts to evade responsibility for the loss by charging it to such a cause, he can be successfully met by showing the deviation.19 And it is difficult to understand why, if he is liable for a loss or injury in case of an unnecessary deviation, he should be excused where he has neglected to send the goods forward with reasonable dispatch. In either case there is a failure to comply with an obligation imposed by the contract of carriage and it would seem that the same degree of responsibility should attach. Sec. 302. Same subject. Thus in Michaels v. The Railroad,20 the facts were that the railroad company had received the goods of the plaintiff for immediate carriage, but instead of forwarding them at once as was its duty, it retained them for several days, when a flood came and injured them. The damage would not have occurred had the company sent them forward without delay, and their only excuse for not having done so was that, being a connecting road, it was not customary to send goods forward until it had been furnished with a bill of back charges by the other connecting road. It was not contended but that the flood was a vis major, and that as an act of God it would have been an excuse for the injury suffered by the goods but for the negligence of the company in not sending them forward as soon as it ought to have done; but it was held without any reference to the cases of Morrison v. Davis and Denny v. The Railroad, that the company had not assigned a sufficient reason for the detention of the goods, and that they v. The Railway Co., Minn. 19. Crosby v. Fitch, 12 Conn. 410; Davis v. Garrett, 6 Bing. 716; Seavey v. Transit Co., 103 Wis. 394, 82 N. W. Rep. 285; Chicago, etc., Ry. Co. v. Dunlap, Kan. 80 Pac. Rep. 34; Parmalee . Wilks, 22 Barb. 539; ante, § 115. 20. 30 N. Y. 564. |