were liable for the loss by reason of the delay, though the flood might have been the proximate and immediate cause of the loss. Sec. 303. (§ 197.) Same subject.-And so in Read v. Spaulding,21 the goods of the plaintiff were unreasonably delayed, and while awaiting transportation were damaged by the same flood. It was conceded that the injury had been caused by the act of God, and that there had been inexcusable delay, and the only question to be determined was whether the defendant had not precluded himself, by his negligence in not sooner sending forward the goods, from the benefit of that defense; and it was held that he had done so, upon the broad ground that the carrier in order to avail himself of such a defense must be without fault; and it was said of the cases of Morrison v. Davis and Denny v. The Railroad, that, so far as they held a contrary doctrine, they were certainly in conflict with numerous adjudged cases and would greatly relax the rules as to the responsibilities of carriers, and ought not to be followed. The judgment of the court below, which had taken the same view of the question, was therefore affirmed. Sec. 304. Same subject.-The latter cases were followed in Bostwick v. The Railroad,22 Condiet v. The Railway,23 and Dunson v. The Railroad,24 in the same state; and decisions to the same effect have been made in Wolf v. The American Express Company,25 Green, Wheeler Shoe Company v. The Railway,26 Alabama, etc., Railroad Company v. Quarles & Couturie,27 Wabash Railroad Co. v. Sharpe,28 and in The Michigan Central Railroad v. Curtis, 29 where it appeared that the goods had been destroyed by freezing which would not have occurred but for the delay in the transportation; and although the injury occurred while the goods were in the custody of another carrier to which the defendant had delivered them to complete the transportation, the defendant, as the party in fault by reason of the delay, was held liable. So in Wald v. The Railroad,30 the carrier was held liable where he negligently failed to forward a passenger's baggage on the same train with the passenger, and it was destroyed in the Johnstown flood. And in the Southern Express Company v. Womack,31 goods were delivered during the late civil war to the agent of the company at one of its offices upon the line of the railroad for transportation; but owing to the great accumulation of freight, the company was unable to take the goods upon its car, and they were permitted to remain at the depot in charge of the agent for some twenty days, at the end of which time they were captured by Federal troops and lest. Suit was brought against the company, and it was held without reference to any of the foregoing cases or to any case previously decided upon the subject, but upon general principles of law, the court evidently regarding the delay as the causa proxima of the loss, that although the captors of the goods were to be regarded as the public enemy, the company was liable in consequence of its delay in the transportation of the goods.32 Sec. 305. Same subject.-And in the case of Bibb Broom Corn Co. v. The Railway,33 it appeared that the railway company accepted for transportation a carload of broom corn, and that during an unreasonable delay the car was submerged by a flood which so greatly damaged the broom corn that the plaintiff, on its arrival at destination, refused to accept it and brought suit against the company for the less. It was admitted that the flood was an act of God and the question was whether the carrier should, on account of the delay, be held responsible for the injury. The court, after a review of the cases which hold that the carrier under such circumstances should be excused, said: "The rule that permits a carrier to excuse his negligence by an act of God overtaking him while thus in fault seems to be unsound. It is based on too strict an application of the rule of proximate cause. It is the duty of a common carrier to whom goods are delivered for transportation promptly and without unreasonable delay to forward them to their destination. . If the defendant had acted as enjoined by law, the car would have arrived at its destination prior to the flood. That the defendant's neglect concurred and mingled with the act of God seems the only reasonable conclusion the facts will warrant, and we feel safe in applying the general rule that an act of God is not, in such cases, a defense. Every reason in equity and justice relieves the carrier from the performance of his contract and from liability for injuries to property in his custody for transportation resulting exclusively from an act of God or other inevitable accident or cause over which he has no control and could not reasonably anticipate or guard against. But reasons of that nature lose their force and persuasive powers when applied to a carrier who violates his contract and by his unreasonable delay and procrastination is overtaken by an overpowering cause even though of a nature not reasonably to be anticipated or foreseen.” Sec. 306. Same subject-How where loss, due to cause excepted by contract, would not have occurred but for the carrier's unreasonable delay.-Where the carrier has exempted himself by contract from liability for losses arising from certain. causes, and a loss ensues from one of such excepted causes, which loss, but for the carrier's unreasonable delay, would not have happened, it is held that, if the cause of the loss was not attributable to any negligence on the part of the carrier, the delay will be considered as only the remote cause and the carrier will not be liable.34 Thus grain was shipped under a bill of lading the terms of which exempted the carrier from liability for loss 34. Davis v. Railroad Co., 66 Vt. 290, 29 Atl. Rep. 313, 44 Am. St. Rep. 852; Reid v. Railroad Co., 10 Ind. App. 385, 35 N. E. Rep. 703, 53 Am. St. Rep. 391; or damage caused by fire unless the same was due to negligence. The grain was placed in the carrier's warehouse to await orders from the shipper to forward it, this being done in accordance with a course of dealing previously followed. A fire broke out in the warehouse without any fault or negligence on the carrier's part, and the grain was destroyed. It appeared that the grain had all been ordered forward by the shipper at periods varying from thirty to seven days before the loss, and it was therefore contended that the delay or negligence of the carrier in not removing it as speedily as he should have done subjected him to liability for the loss. In holding that the carrier had incurred no liability, the court said: "It is evident that the fire was the immediate proximate cause of the destruction and loss of the grain. If the fire had not occurred, the grain would not have been lost. The causa causans was the fire. The concomitant incident was the delay by the defendant in removing it from the warehouse. But that delay would not have destroyed the grain and caused its loss if the fire had not intervened. It is generally held that a common carrier is liable on the ground of negligence only when that negligence is the proximate cause of the loss, and if the loss arises in such a manner that it will not support an action, neither will the remote cause, though incidental to the proximate cause.” 35 Sec. 307. (§ 199.) Effect of unreasonable delay upon insurance. Unreasonable delay by the carrier has been held to be the same in its effect upon the insurance upon the cargo as a deviation. In Mount v. Larkins36 it was so held by Tindal, C. J., "not only from the reason of the thing itself," but upon numerous authorities cited by him; and the reason is said to be, not 35. Davis v. Railroad Co., supra. But where the loss arises from a cause excepted by the contract, the loss being made possible by the carrier's unreasonable delay, the same difference of opinion would no doubt be encountered as exists where the carriers unrea sonable delay has subjected the goods to injury by an act of God. See Tewes v. Steamship Co., 85 N. Y. Supp. 994, 89 App. Div. 148; Keeney v. Railroad Co., 47 N. Y. 525. 36. 8 Bing. 108. that the risk is thereby increased, but because the insurer has, without necessity, substituted another voyage for that which was insured, and thereby varied the risk which the underwriter took upon himself. If equivalent to a deviation as to the insurer, it is not perceived why it should not be so as to the carrier himself; and if it be so, he should undoubtedly be held liable for any loss which can be traced to it, although the immediate cause of such loss may be an inevitable occurrence which comes within the meaning of the act of God. Sec. 308. ($200.) Carrier responsible as in case of deviation. It thus appears that there are many cases in which, as is well settled, we may look further than to the mere immediate occurrence which has caused the loss, and trace it back to the fault from which it in fact originated and without which it must be presumed that it would not have happened; and there would seem to be no good reason why, if the loss can be traced with any certainty to the fault of unreasonable delay, the carrier should not be held responsible for it in the same manner as he would be for the fault of an unnecessary deviation. Sec. 309. ($201.) The degree of diligence to be exercised by the carrier when the goods have been overtaken by disaster. When disaster has overtaken the carrier from some inevitable cause which would bring the case within the legal exception to his liability, if the goods have not perished thereby, duties still remain to be performed by him before he can entitle himself to the claim of exemption from such liability. As he is required to exercise a due degree of diligence and caution to avoid the danger, so, when it has overtaken him without his fault, his obligation of preservation and safe custody still continues, if the goods have not been destroyed. If, for instance, his vessel has been sunk or cast ashore, or in any way disabled by one of those occurrences known as the acts of God, if the goods have not been lost but remain, though in a condition of peril, he cannot abandon them to their fate, and escape the responsibility by the plea that they were lost or destroyed by the storm or other inevitable casualty. It therefore becomes a ques |