and frequent inundations, hidden snags frequently occur and constitute a danger peculiar to rivers so situated; and from the frequent shiftings of these snags and their recurrence from freshets, they constitute in our rivers an instance of the actus Dei which skill and experience cannot guard against." Hence the provision against the dangers of navigation is never omitted. from the bills of lading of those engaged in transporting goods upon our rivers. Sec. 483. Same subject-Perils of the sea, etc., not synonymous with act of God, etc.-While perils of the sea have been said to refer to those accidents peculiar to navigation which are of an extraordinary character, or which arise from some irresistible force or overwhelming power which cannot be guarded against by the ordinary exertions of human skill and prudence,37 such exceptions are by no means synonymous with those of the acts of God and of the king's enemies. They have a more extensive signification, and include many perils which, according to the construction which has been given to those words, would not come within the meaning of the acts of God or of the king's enemies.38 They include many casualties which the agency of man has concurred in producing, which, as we have seen, would preclude them from being treated as the acts of God. Thus, disasters from collisions, where the carrier who claims exemption from liability from the loss thereby occasioned by reason of such an exception in his contract is not in fault, are held to be embraced in the meaning of the term "the dangers of navigation.'39 But if such loss might have been avoided by the exercise of any reasonable skill or diligence at the time when it occurred, it is not to be deemed in the sense of the phrase such a 37. The Arctic Bird, 109 Fed. 312; Story on Bail. § 512; The 167. 38. Gordon v. Buchanan, 5 Yerg. 71; McArthur . Sears, 21 Wend. 190; Hays . Kennedy, 41 Penn. St. 378; Williams r. Branson, 1 Murphey, 417; Whitesides v. Thurlkill, 12 Sm. & M. 599; Garrison v. Insurance Co., 19 How. Schooner Reeside, 2 Sum. 567; 39. The Xantho, 12 App. Cas. 503; Garston Co. v. Hickie, 18 Q. B. Div. 17. loss by the perils of navigation as will exempt the carrier from liability, but rather as a loss attributable to his negligence.40 And when a ship was run down in open daylight and in moderate weather by one or two other ships sailing in an opposite direction to her, but under such circumstances that no blame could be attached to any of the vessels, the accident was held to have happened by a peril of the sea, and to come within the exception.41 Sec. 484. (§ 284.) Same subject-What included_Illustrations. So where the master of a vessel on a foggy night, in entering a port, mistook the signal lights and ran his vessel aground, whereby the cargo was damaged, a misfortune happening under almost precisely the same circumstances which were held in McArthur v. Sears42 not to be attributable to the act of God, and for which, therefore, the carrier in that case was held liable, it was held that he was protected from liability by the clause in his bill of lading providing against the perils of navigation.43 Sec. 485. (§ 285.) Same subject-Jettison, when included. -So a jettison made necessary by a tempest is, in ordinary cases, a loss by the perils of the sea.44 But, if it be rendered necessary by any fault of the master or owners of the vessel, it will be attributed to such fault and not to the peril of the sea, though the latter may cause the immediate necessity for it. And in the case in which this was held the carrier was held to have been in fault, because in the night and in a fog he entered by mistake the wrong port, supposing it to be the port of destination, when he could with safety have remained outside until 40. Hays v. Kennedy, 41 Penn. St. supra; Whitesides v. Thurl kill, supra; Abbott on Ship. 240; Story on Bail. § 514; Costigan v. Transportation Co., 33 Mo. App. 269; Woodley v. Michell, 11 Q. B. Div. 47; Nill v. Sturgeon, 28 Mɔ. 328. 41. Buller v. Fisher, 3 Esp. 67. 15. 42. 21 Wend. 190. 43. The Juniata Paton, 1 Biss. 44. Gillett, v. Ellis, 11 Ill. 579; Lawrence v. Minturn, 17 How. 100; The Bergenseron, 36 Fed. Rep. 700; The Marlborough, 47 Fed. 667. morning. Being in doubt, prudence should have restraineed him from entering the port until morning; and having ventured in and grounded in the night, which made the jettison necessary, he could derive no benefit from such a clause in his bill of lading.45 To the same effect is the case of The Delaware,46 in which it was shown that the goods were jettisoned in a storm, and the carrier claimed exemption from liability under the clause in his bill of lading excepting losses from the perils of the sea. But it also appearing that the goods, without the consent of the shipper, had been stowed on deck, contrary to the duty of the carrier, he was allowed to take no benefit from the exception. And where the master and crew became panic stricken and drove overboard a number of head of cattle, it appearing that the vessel did not encounter any extraordinary or unusual stress of weather, the owners of the vessel were not allowed to take advantage of the exemption from liability for losses arising from the perils of the sea.47 Sec. 486. (§ 286.) Same subject-Hidden obstructions.So if an obstruction be recently placed in a navigable stream and be hidden and unknown, such as no human prudence or foresight could have guarded against, and the carrier's boat be run. upon it and sunk, he will be protected by the exception of the dangers of navigation in his bill of lading.48 And under a bill of lading for goods to be delivered in good condition, "the damages of the seas and fire only excepted," the carrier is not liable for a loss of the goods occasioned by the striking of his boat on a hidden obstruction of recent origin in the channel of the river, causing it to sink while being towed upon the river, without fault or negligence on his part. Such an obstruction, it was said, was a peril of the sea.49 45. The Portsmouth, 9 Wall. 682. 46. 14 Wall. 579. 47. Compania de Navigacion La Flecha v. Brauer, 168 U. S. 104, 18 Sup. Ct. 12, 42 L. Ed. 398, affirming 35 U. S. App. 44, and 61 Fed. 860; s. c. 57 Fed. 403. 48. Johnson v. Friar, 4 Yerg. 48; Gordon v. Buchanan, 5 id. 71; Chouteaux v. Leech, 18 Pa. St. 224. 49. Redpath v. Vaughan, 52 Barb. 489. See, also, The Favorite, 2 Biss. 502; Boyce v. Welch, 5 La. Sec. 487. (§ 287.) Same subject-Other perils. In the case of The Washington Insurance Company v. Reed,50 after stating the law to be that the perils of the seas which constitute a part of the risks in almost every marine policy comprehend those of the winds, waves, lightning, rocks, shoals, collision, and, in general, all causes of loss and damage to the property insured, arising from the elements and inevitable accidents, the court held the underwriters of a policy insuring goods upon a flatboat against the perils of the river liable for damage caused by the waves made by a steamboat passing such flatboat, the court saying that it could see no difference in reason, so far as it concerned the question of what perils were included in the exception, whether the waves were raised by human or by natural means. But in the same court it has been held that, when the carrier relies upon the exception of the dangers of the river in his bill of lading, he must show that the highest degree of skill and care was exercised by him.51 And in Laurie v. Douglass,52 it was held that the breaking of a rope by which the ship, then in dock and unloading, was made to cant and take in water, whereby a portion of her cargo was damaged, came within the exception of the perils of the seas in her bill of lading. Sec. 488. Same subject.-But a rush of water through a rent in the side of the vessel, the rent having been caused by an Ann. 623; Hibernia Ins. Co. v. St. Louis Co., 120 U. S. 166; Turney . Wilson, 7 Yerg. 340; Smyrl v. Nolan, 2 Bailey, 421. 50. 20 Ohio, 199. Losses from collision or stranding are within the perils of the sea. Liverpool, etc. Steam Co. v. Insurance Co.. 129 U. S. 397. 51. Graham v. Davis, 4 Ohio St. 362. "The ordinary contract of a carrier does involve an obligation on his part to use due care and skill in navigating the vessel and carrying the goods; and, as is everywhere held, an exception in the bill of lading of perils of the sea or other specified perils does not excuse him from that obliga. tion or exempt him from liability for loss or damage from one of those perils to which the negligence of himself or his servants has contributed." Gray, J., in Liverpool Steam Co. v. Insurance Co., supra, citing Navigation Co. v. Bank, 6 How. 344; Express Co. v. Kountze, 8 Wall. 342; Transportation Co. v. Downer, 11 Wall. 129; Grill v. Screw Co., L. R. 1 C. P. 600; s. c. L. R. 3 C. P. 476; The Xantho, L. R. 12 App. Cas. 503, 510, 515. 52. 15 M. & W. 746. unforeseen explosion of blasting caps, was held not to come within an exception of perils of the seas or accidents of navigation.53 Nor will damage occasioned by rats gnawing a hole in a water pipe, causing water to escape and injure the cargo, be considered a peril of the sea.54 So an injury to the vessel caused by worms is not a peril of the sea within an exemption from liability for perils of the seas.55 But damage occasioned by sea water entering the ship's ventilator holes, after the ventilators had been carried away by a heavy gale, was held to have been caused by a peril of the sea within the exemption of the bill of lading.56 So where logs, having been brought alongside the vessel for the purpose of being loaded, were caused to go adrift by a heavy gale, it was held that the loss was caused by a peril of the sea within the clause for exemption from liability for losses due to such causes.57 And where a loss resulted from the giving 53. The G. R. Booth, 171 U. S. 450, 19 Sup. Ct. Rep. 9, 43 L. Ed. 234, reversing American Sugar Refining Co. v. The G. R. Booth, 64 Fed. 878, s. c. 91 Fed. 164, 33 C. C. A. 430. 54. The Euripides, 71 Fed. 729, 38 U. S. App. 1, 18 C. C. A. 226, reversing 63 Fed. 140, and 52 Fed. 161. 55. The Giles Loring, 48 Fed. 463. 56. The Dunbritton, 73 Fed. 352, 19 C. C. A. 449, 38 U. S. App. 369, reversing Crooks v. The Dunbritton, 61 Fed. 764. But the damage of cargo by seawater entering the hold, through the negligent calking of the hatches, is not due to a peril of the sea. The Glide, 78 Fed. 152, 24 C. C. A. 46. A severe storm, during which all the sails of the vessel are blown away, her foreboom broken and both her anchors parted from their chains is a peril of the sea which justifies her abandonment. The Calvin S. Edwards, 50 Fed. 477, 1 C. C. A. 533, 1 U. S. App. 173, aff'g 46 Fed. 815. The mere rolling of a vessel in a cross sea is not of itself a peril of the sea. But a loss which is sustained during cross seas of unusual violence may be fairly attributed to a peril of the seas. The Frey, 106 Fed. 319, 45 C. C. A. 309, reversing 92 Fed. 667. 57. Munson S. S. Line v. Steiger & Co., 132 Fed. 160; s. c. 136 Fed. 772. It cannot be presumed that a greater liability was intended to be contracted for as to cargo delivered alongside the ship, than for cargo received aboard for which bills of lading are outstanding. When, therefore, bills of lading contain exceptions as to perils of the sea, and pieces of timber are received alongside the ship, the carrier will not be liable if they are lost through a violent storm |