what appears a more plausible reason is that there could be but little if any danger of his combining with the common public enemy to defraud the owner of the goods by a pretense of being robbed, while the danger of such combinations with ordinary thieves and robbers was more to be apprehended. But the reason for the exception or for its being confined to the public or common enemy can be of no interest at this day except as a matter of curious legal history. The law has been settled for centuries that losses by thieves or robbers and mobs and riots are to be borne by the carrier unless he has protected himself from such liability by his contract. "For though the force be never so great, as if a multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point."10 Sec. 316. ($205.) Who are public enemies-Mobs-Rioters-Strikers-Thieves-Pirates.-Losses, therefore, which are occasioned by the depredations or the violence of mobs, rioters, "strikers," thieves and the like,11 however much they may be in some sense the common enemies of the country, do not come within the exception; nor do losses by robbers, whether upon 10. Coggs v. Bernard, 2 Ld. Pittsburgh R. Co. v. Hollowell, Raym. 909. 11. "Strikers" are not the public enemy, so as to excuse the carrier for a destruction of property by them. Hall v. Railroad Co., 14 Phila. 414. Though their interference may excuse a delay in delivery. Geismer v. Railway Co., 102 N. Y. 563; Lake Shore Ry. Co. v. Bennett, 89 Ind. 457; 65 Ind. 188; Pittsburgh R. R. Co. t. Hazen, 84 Ill. 36; Haas v. Railroad Co., 81 Ga. 792; Lang v. Railroad Co., 154 Pa. St. 342, 26 Atl. Rep. 370, 35 Am. St. Rep. 846, 20 L. R. A. 360; Railway Co. v. Nevill, 60 Ark. 375, 30 S. W. Rep. 425, 46 Am. St. Rep. 208, 28 L. R. A. 80, citing Hutchinson on Carr. the highway or upon the sea.12 So the wilful and unlawful destruction of the property by United States soldiers, not acting in the line of their duty, is not a loss by the act of the public enemy.13 But pirates are regarded as the common enemy of all mankind-hostes humanis generis-and are therefore considered as enemies of the king; and hence losses by them are regarded as coming within the exception, although piracy is in fact nothing more than robbery or a forcible depredation upon the sea, animo furandi.14 12. Morse v. Slue, 1 Ventris, peril of the sea or not, according to the meaning of merchants. 190. 13. Seligman v. Armijo, 1 N. Twisden, of counsel with the Mex. 459. plaintiff, held it should not, and so the plea was not good, and that therefore the plaintiff ought to have judgment, and said that this was not a danger of the sea, but a danger upon the sea; secondly, he said the party (it may be) might have prevented it by vigilancy or by making resistance; and so it may be it was his own fault the ship was taken; thirdly, the men of war that took the ship were peradventure Englishmen, and then the defendant is not to be excused, for he may have his remedy for what he is damnified against them; and cited 33 H. 6, fol. 1, and prayed judgment for the plaintiff. Hale (Sir Matthew Hale), of counsel with the defendant, held that to be taken and robbed by pirates 14. Story on Bail. § 526; Pickering v. Barkley, Style, 132. The report of this case is as follows: Pickering brought an action of Covenant upon a deed of covenants of charter-party, whereby it was covenanted that the defendant, in consideration of a certain sum of money agreed to be paid to the defendant for freight of a ship, should make such a voyage and bear all the losses and damage which should befall the ship or merchandises in her, excepting only perils of the sea, and declares that the defendant had not performed his agreement, and for this he brings his action. The defendant pleads that in the making of his voyage upon the sea, the ship was taken, per quosdam ignotos homines bellicosos, is a danger of the sea, even as whereby he was hindered in mak- tempestuous winds and shelfs ing of the voyage according to his agreement. To this plea the plaintiff demurs. The question was, in regard that in the charter party perils of the sea were excepted, whether the taking of the ship by these unknown men of war should be accompted a and rocks are; and secondly, to that it is said the pirates may be Englishmen; we are not able to say of what nation they were, and therefore our plea is good in that point also; and prayed judgment for the defendant. Roll, justice, said it was not well Sec. 317. (§ 206.) Same subject-Rebellion-Revolution.But rebellion may grow into revolution and assume the proportions of a war which may entitle those in revolt to the acknowledgment of belligerent rights from other nations. In such cases carriers of either belligerent would stand in the relation of public enemy to the other and would be entitled to the protection. of the rule which exonerates them from losses by the public enemy. Such was the case of our Revolutionary war, and so it has been held of the various revolts of the Spanish colonies in America.15 And where hostilities between the people of two sections of the same country became so serious and flagrant as to acquire the character of a war, and the combatants treat each other as enemies with a recognition of belligerent rights, they are public enemies within the meaning of this exception. Such was the late war between the United States government and what were called the Confederate States, which attempted to secede from it.16 Several cases involving the liability of the carrier where the goods intrusted to him were lost by capture by the contending military forces in that contest have come before the courts. During the war it was brought directly to the consideration of the supreme court of Kentucky in the case of Bland v. The Adams Express Company.17 Goods intrusted to that company for carriage had been forcibly taken from it by what were known as Confederate soldiers, in arms against the pleaded to say per homines igno- be brought into court to satisfy tos. Bacon, justice, said: The defendant doth not show that he and his ship was carried per locos incognitos, as he should have shown. But Roll, justice, answered that it may be the ship is yet kept upon the sea, but I suppose that pirates are perils of the sea; and to this purpose a certificate of merchants was read in court, that they were SO esteemed among merchants. Yet the court desired to have Granly, the master of the Trinity House, and other sufficient merchants, to the court viva voce Friday next following. Judgment was given this term, nil capiat per billam, because the taking by pirates are accompted perils of the seas. 15. United States v. Palmer, 3 Wheat. 610; Mauran v. Ins. Co., 6 Wall. 1; Nesbitt v. Lushington, 4 Term, 783. 16. The Prize Cases, 2 Black, €35; Thorington v. Smith, 8 Wall. 1; Nashville, etc., R. R. Co. v. Estes, 10 Lea, 747. 17. 1 Duvall, 232. government, and this fact was relied upon in its defense in the suit to recover for the loss. Robertson, C. J., considered the defense valid. "War," said he, "is either international or civil, foreign or domestic. Insurrection, however violent or formidable, is not war. Civil war is preceded by insurrection, which becomes magnified and matured into war in the legitimate sense. And when so characterized, the parties are belligerents and respectively entitled to belligerent rights.'18 In The Southern Express Company v. Womack,19 the facts were the same, except that the relations of the carrier and the captors were reversed, the latter being in this instance the troops of the government; and it was held that, whatever might have been the political relations in which the parties stood to each other as an abstract proposition, the fact that those upon either side of the dividing line were engaged in flagrant war and treated each other as enemies necessarily made them public enemies in the understanding of the contracting parties, and the carrier was not therefore to be regarded as an insurer against loss that might occur by the act of the hostile forces. And it has been held that the Confederate forces were neither robbers on land nor pirates at sea.20 A different opinion, however, has been expressed by the supreme court of Maine.21 Sec. 318. ($207.) Same subject-Declaration of war not necessary if actual hostilities exist.-It is not necessary, to constitute the relation of public enemy between the carrier and his captors, that there should be an open declaration of war between the two countries to which they belong. The existence of actual hostilities is sufficient to constitute the relation of public enemies, and all persons within the respective hostile territories are enemies of each other, whether in arms or not, and whatever may be their personal dispositions towards the contending parties.22 18. Frank v. Keith, 2 Bush, 123; Lewis v. Ludwick, 6 Cold. 368. 19. 1 Heisk. 256; ante, § 303. 20. Fifield v. Ins. Co., 47 Penn. St. 166; Mauran v. Ins. Co., 21. 51 Me. 465. 6 22. The Prize Cases, 2 Black, 635; Alexander's Cotton, 2 Wall. Sec. 319. (§ 208.) Carrier liable if loss by public enemy caused by his negligence or deviation. The same qualification exists in reference to the exemption of the carrier from loss by the act of an enemy as has already been stated in regard to a loss by the act of God; that is, that in order to be available as a defense it must not appear that the carrier has been guilty of negligence or temerity in not avoiding or in bringing about the capture. If in the course of deviation he be captured and the goods be lost, he is responsible; for, as has been said, the law will trace back the loss to the first fault to which it is attributable. Parker v. James23 was this very case of a capture in the course of a deviation, and yet, as said by Tindall, C. J., in Davis v. Garrett,24 no such ground of defense was even suggested. So if he were to land upon the enemy's coast; or, being aware of his proximity, made no effort to escape or took no precautions to avoid him; or if, having the choice of two routes, he took that which was the more dangerous;25 or if he exposed them to capture by an inexcusable or unreasonable delay.26 Sec. 320. Same subject-May carrier show that loss would have happened without his negligence or deviation.-But suppose there has been a deviation or delay or negligence of any other kind on the part of the carrier, and the goods are destroyed by an act of God or of the public enemy while such deviation, delay or other cause resulting from his negligence is still operative, and which, without more being shown, would compel him to bear the loss, would it be competent for him to show that such loss would have occurred in any event and though he had not committed the fault or been guilty of the negligence? Suppose, for instance, that he has unnecessarily deviated from the usual and proper route, which has caused delay, or that, without deviating, he has improperly delayed upon his journey, or has failed for an unreasonable time to put the goods in transit, and during such deviation or the delay caused thereby, or that 23. 4 Camp. 112. 24. 6 Bing. 716. 25. Express Co. v. Kountze, 8 Wall. 342. 26. Southern Express Co. v. Womack, 1 Heisk. 256; Holladay v. Kennard, 12 Wall. 254. |