way of a stanchion in heavy weather, it was considered that the loss fell within a clause providing for exemption from liability for all damage and accidents of the seas and navigation.58 Sec. 489. (§ 288.) Same subject-Other perils-Fire not included. Losses by fire, though it may be accidental, do not come within the exception of the perils or dangers of the seas in bills of lading,59 though this and other losses may be excluded.60 And the fact that fire produces the motive power of the vessel makes no difference.61 Nor does the explosion of the boiler of a steam vessel come within the exception,62 though it has been held that the escape of steam without the fault of the officers of the boat, whereby mules which are being carried as freight, and which were properly stationed on the boat, were injured, came within the meaning of the exception of the perils of navigation.63 And where the carrier of cattle put them in a lighter to be landed, which was the customary mode, confining them by a chain of wind. Southerland-Innes Co. v. Thynas, 128 Fed. 42, 64 C. C. A. 116. 58. The Exe, 57 Fed. 399, 6 C. C A. 410, 14 U. S. App. 626, reversing 52 Fed. 155. See also, The Folmina, 143 Fed. 636. 59. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Garrison v. The Memphis Ins. Co., 19 id. 312; Parsons v. Monteath, 13 Barb. 353; Swindler v. Hilliard, 2 Rich. 286. 60. Losses from sweating, heating, etc., may be provided against if carrier not negligent. The Por tuense, 35 Fed. Rep. 670; The Keystone, 31 Fed. Rep. 412; The Jefferson, id. 489; Wolff v. The Vaderland, 18 Fed. Rep. 739. So a loss by leakage may be provided against, and relieve the carrier if goods were properly stowed (The Barracouta, 39 Fed. Rep. 288), but not if defectively stored. The Britannia, 34 Fed. Rep. 906. Leakage means leaking of the cask or can and not leaking of the ship (Hill v. Sturgeon, 28 Mo. 323), nor leaking from other goods. Thrift v. Youle, 2 C. P. Div. 434. So of breakage or drainage. The Bitterne, 35 Fed. Rep. 927. So loss from fire "at any time or place" before or after loading. The Egypt, 25 Fed. Rep. 320; Hall v. Railroad Co., 14 Phila. 414; Scott X. Steamship Co., 19 Fed. Rep. 56; Little Miami R. Co. v. Wetmore, 19 Ohio St. 110. 61. New Jersey Steam Nav. Co. v. Merchants' Bank, supra; Hale v. The N. J. Steam Nav. Co., 15 Conn. 539; Singleton v. Hilliard, 1 Strob. Law, 203. 62. Bulkley v. The Naumkeag, etc. Co., 24 How. 386; The Mohawk, 8 Wall. 153; McCall v. Brock, 5 Strob. Law, 119. 63. Union Ins. Co. v. Groom, 4 Bush, 289. running fore and aft, to which they were tied, and before they could be landed they became violent, broke the chain and some of them were drowned, the loss was held to have been by the perils of the sea.6 64 Sec. 490. (§ 289.) Same subject-How question determined. -These are given as a few of the many illustrations which might be given from the decided cases upon this subject.65 The question, what is and what is not to be included in such exceptions, has perhaps more frequently arisen between the insurer and the insured in actions upon policies than between the carrier and his employer. The distinction in such cases is that the insurer is liable at all events, provided the danger from which the loss has ensued comes within the terms of his policy, while 64. Anthony v. Etna Ins. Co., 1 Abb. Ct. Ct. 343. 65. "Blowing" of bilge water is within exemption of "blowing" and perils of the sea. East Tennessee R. Co. v. Wright, 76 Ga. 532. Loss from the motion of the boat is a peril of the sea unless caused by defective stowage. Christie v. The Craighton, 41 Fed. Rep. 62. Sweating of a cargo of sugar in a storm is a sea peril. Matthiessen Co. v. Gusi, 29 Fed. Rep. 794. But a loss which is the result of ordinary wear and tear or of the employment of the vessel in the usual course of navigation is not a loss by "perils of the sea." The term may be defined as denoting all marine casualties resulting from the violent action of the elements as distinguished from their natural, silent influence upon the fabric of the vessel; casualties which may and not consequences which must occur. The Warren Adams, 74 Fed. 413, 20 C. C. A. 486, 38 U. S. App. 356, writ of certiorari denied, 163 U. S. 679. Damage from coal dust is not a peril of the sea (Hills v. Mackill, 36 Fed. Rep. 702), nor is an injury to cargo by rats. The Isabella, 8 Ben. 139. Contra, where water admitted through holes made by rats, Hamilton v. Pandorf, 12 App. Cases, 518. Shipping water is a peril of sea (The Chasca, 23 Fed. Rep. 156), and sc is leakage (The Blue Jacket, 10 Ben. 248; Evans v. Spreckels, 45 Fed. Rep. 265); and the breaking of the tiller rope without negligence is an "unavoidable danger of navigation. The Morning Mail, 17 Fed. Rep. 545. Desertion by seamen is not a peril of the sea, The Ethel, 5 Ben. 154. Burden of proof is on carrier to show loss to be within exemption. The C. J. Willard, 38 Fed. Rep. 759; The Thos. Melville, 31 id. 486; The Lydian Monarch, 23 id. 298; The Sinnickson, 24 id. 304; The Polynesia, 16 id. 702. But see The Jefferson, 31 Fed. Rep. 489; The Stevenson, 17 id. 540. the carrier is not liable if he has provided against his liability for the loss from the particular cause in his bill of lading, unless it can be shown that he has been negligent to such a degree as to have brought about the loss when it would not otherwise have occurred, or has been remiss in his duty in endeavoring to avoid it. Otherwise, it is presumed, that the construction of such terms, and whether a particular loss falls within them, will be the same whether the question be upon a policy of insurance or a bill of lading. What they mean cannot of course be exactly determined, nor their import precisely settled. The most that can be said perhaps is that they include only the dangers or accidents of navigation upon the seas or rivers, or other inland waters which are not embraced by the well known exceptions made by the law to the carrier's liability, the acts of God and the public enemy, and are yet such that they cannot be avoided by any prudence or foresight or ordinary skill on his part,67 and 66. Story on Bail., sec. 512. 67. In Garrison v. Memphis Ins. Co., 19 How. 312, the language used is: "These words include risks arising from natural accidents peculiar to the river, which do not happen by the intervention of man nor are to be prevented by human prudence; and have been extended to comprehend losses arising from some irresistible force or overwhelming power which no ordinary skill could anticipate or evade. They exonerate a carrier from a liability for a loss arising from an attack of pirates or from a collision of ships when there is no negligence or fault on the part of the master and crew. Latterly the courts have shown an indisposition to extend the comprehension of these words. The destruction of a vessel by worms at sea is not accounted a loss by the perils of the sea; nor was a damage from bilging arising in consequence of the insufficiency of tackle for getting her from the dock; nor was damage occasioned to a vessel by her props being carried away by the tide while she was undergoing repairs on the beach, excused, as falling within that exception." And in the case of McArthur . Sears, 21 Wend. 190, where the question was whether the disaster came within the exception of the act of God, there being no bill of lading, Cowen, J., after discussing the question, goes on to say: "There is a considerable class of cases arising upon exceptions in bills of lading of the 'perils of the sea,' where in addition to losses from natural causes, those arising from the acts of third persons are sometimes allowed to come within the terms. Such are losses by robbery of pirates. Pickering r. Barkley, Style, 132; 2 Rolle's Abr. 218; Buller v. Fisher, Ab. on Ship. that they exempt him from the absolute liability of the common carrier, but not from the consequencees of a want of that reasonable skill, diligence and care, the absence of which constitutes what is known as negligence. Sec. 491. (§ 290.) Same subject-Carrier liable, notwithstanding exception, for loss from theft, embezzlement, robbery, pt. 3, ch. 4, § 2. And the collision of ships without the fault of either party. But these words are evidently of broåder compass than the words 'act of God'; and although it was supposed by a very learned judge that they were but commensurate (Gould, J., in Williams v. Grant, 1 Conn. 487), and therefore whatever was a peril of the sea would excuse the carrier acting under his general liability, yet it is evident from the cases we have considered that they are not always so. The distinction was adverted to but not much examined by Story, J., in The Schooner Reeside, Sumn. 571. The case of Aymar v. Astor, 6 Cowen, 266, was an action on a bill of lading excepting the dangers of the seas. The goods were damaged on the voyage by rats; and it was held that the defendants having taken every precaution to avoid their depredations, the loss was by a danger of the sea within the policy. This case, we noticed before, has been treated as tending to upset the law extending the implied liability of common carriers to the water. The case itself has no such tendency." "Cases as to the meaning of the words 'perils of the sea' often arise also upon policies of insurance. For instance, it was held that the loss of a ship by the sudden impressment of sailors sent on shore to fasten it was a loss within the policy. Hodgson v. Malcolm, 5 Bos. & P. 336. Yet it seems clear, on the cases, that such an act could not be received to exempt a common carrier either as the act of God or of the enemies of the state. It may be irresistible. So we have seen of many acts merely human; still they may be collusively committed. The carrier may collude with the press gang as well as with robbers or illegal kidnapers. The difficulty returns therefore; if we receive the immediate agency of third persons in any shape, we open the very door for collusion which has denied an excuse by reason of theft, robbery and fire. Marsh ads. Blythe, 1 Nott & McCord, 170, which held it a defense that the carrier's vessel was, without his fault, run down by another, is an instance in which the rule in respect to the special exception in a bill of lading has been applied to the carrier's general liability. There may be other cases of a like character; but it seems clearly to me, from authorities I have been able to consult, that the expression 'perils or dangers of the sea,' or 'dangers of the river,' etc., will be found to allow, in several cases, human agency and other causes to excuse a loss which cannot be allowed in favor of common carriers without giving up the rigorous obligation etc.-Consequently, notwithstanding these exceptions in his bill of lading, the carrier remains liable for embezzlement, theft, robbery, the violence of mobs and depredators, provided they are not pirates, in the same manner as he would have been without them, losses from such causes arising entirely from human agency, and being such as may be provided against. In King v. Shepherd,68 a box of sovereigns was shipped under a bill of lading containing the usual exceptions against the perils of the seas. The vessel was wrecked on the voyage and the box was stolen; and it was held that the master and owners were responsible for its value, theft and robbery being perils of the seas only when committed by pirates, but not where committed by persons coming to the ship when she was not upon the high seas or by those on board. Nor are depredations upon a cargo by passengers and crew in consequence of scarcity of provisions, owing to the length of a voyage, perils of the sea. In the case of The Gold Hunter,69 it appeared that owing to the length of the voyage, the ship's provisions became so scarce that the crew and passengers had to be put upon half rations, which caused the passengers to become so ungovernable that they could not be restrained from seizing upon and consuming a portion of the freight. It was nevertheless held that the master and owners of the vessel were liable. Sec. 492. (§ 290a.) Same subject-Carrier liable notwithstanding exemption if loss caused by negligence.-And in accordance with the general rule, these exemptions will afford the carrier no protection where the loss was caused by the negligence of himself or his servants70 unless he has expressly conimposed upon them by the policy Stevens v. Navigation Co., 39 Fed. of the law." Rep. 562. 68. 3 Story, 349. 69. 1 Bl. & H. 300. 70. Thus a stipulation in a bill of lading exempting the owner from liability for losses caused by vermin will not excuse him for a loss from rats if he negligently omitted to fumigate his ship. So a vessel is liable, notwithstanding exemption, where the vessel is stranded because a hazardous passage was unnecessarily selected (The Fred H. Rice, 40 Fed. Rep. 690), or the master neglects usual precautions (The Montana, 17 id. 377); and, though |