wisest and ablest judges.1 Chief Justice Best points out the general reason of public convenience by which it is maintained in recent times, in these words: "When goods are delivered to a carrier, they are usually no longer under the eye of the owner; he seldom follows or sends any servants with them to the place of their destination. If they should be lost or injured by the gross negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier's servants; and they knowing that they could not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer. From his liability as an insurer, the carrier is only allowed to be relieved by two things, both so well known to all the country, when they happen, that no person would be so rash as to attempt to prove that they had happened, when they had not; namely the act of God, and the king's enemies." 2

§ 534. The Code of Louisiana, adopting the rule of the civil law, holds the common carrier to the same liability as it does an innkeeper; that is to say, liable for goods stolen or damaged, by his servants or agents or by strangers; but not liable for goods stolen by force and arms, or by exterior breaking open of doors or by any other extraordinary violence. It holds him liable for the loss or damage of things entrusted to his care, unless he can prove that such loss or damage was occasioned by accidental and uncontrollable events.3 It unites the rule of liability with a rule of evidence; and it is noteworthy that the

1 Lord Holt, in Coggs v. Bernard, 2 Ld. Raym., 909, considers it a politic establishment, contrived by the policy of the law for the general safety. 2 Riley v. Horne, 5 Bing., 217.

3 Code of Louisiana, Arts. 2722-2726, and 2335-2940. See as to common law liability of innkeepers, ante §§ 462, 463.

4 Hunt v. Morris, 6 Martin, 676, 682. This action was for goods lost by fire while on board of the carrier's boat. "The law casts the burden of proof on the carrier. Where the loss or damage arises from occurrences entirely beyond the control of the carrier, such as an attack by the public enemy, a storm or tempest, it is enough for him to prove the fact, and he who claims compensation for the loss is to prove the fault or misconduct of the carrier, in order to recover against him. But in those cases which are not readily supposed to happen without negligence, such as a loss by robbery, fire, &c., tho carrier is bound to show that they happened without any fault or negligence on his part which, being a negative proposition, can only be established by evidence of the ordinary care and attention, usually

common law rule was contrived by the policy of the law" to protect the owner against the difficulty of proving the cause of a loss, happening to his goods while in the hands of the carrier and his servants; 1 and that this protection is rendered perfect by holding the carrier responsible for the goods, unless he proves a loss of them by causes for which he is not answerable.2

§ 535. There does not appear to be any tendency in our modern decisions to relax the rule of liability imposed upon the carrier by the common law. The rule carries with it a compensation; in the words of Chief Justice Bronson: "There is less of hardship in the case of a carrier, than has sometimes been supposed; for while the law holds him to an extraordinary degree of diligence, and treats him as an insurer of the property, it allows him, like other insurers, to demand a premium proportioned to the hazards of his employment. The rule is founded upon a great principle of public policy; it has been approved by many generations of wise men; and if the courts were now at liberty to make instead of declaring the law, it may well be questioned whether they could devise a system which, on the whole, would operate more beneficially. I feel the more confident in this remark from the fact that in Great Britain, after the courts had been perplexed for thirty years with various modifications of the law in relation to carriers, and when they had wandered too far to retrace their steps, the legislature finally inter

given by diligent men on like occasions. This rule gives to the owner, the plaintiff, the advantage of implied or presumptive evidence of negligence, on the part of the masters and owners, which they are bound to disprove by showing due diligence."

Brousseau v. Ship Hudson, 11 La. Ann. R., 427, action for damages to bales of carpeting. The carrier must exculpate himself or bear the loss. The law presumes against a carrier in every case, except such as could not happen by the intervention of hunian means. He is liable for a loss or damage of goods, unless he shows that the same was occasioned by "accidental and uncontrollable events." The rule is not put disjunctively, so as to excuse him for a loss or damage occasioned by an accidental event.

1 Roberts v. Turner, 12 John. R., 232. "The carrier is held responsible as an insurer of the goods, to prevent combinations, chicanery and fraud.

2 Alden v. Pearson, 3 Gray, 432.

3 Colo v. Goodwin, 19 Wend., 251; Harrington v. McShane, 2 Watts, 443; Eagle v. White, 6 Whar., 517; Thomas v. Boston R., 10 Met., 476; Hale v. N.J. Steam Nav. Co., 15 Conn., 539 ; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344; Spence v. Chadwick, 10 Adolph. and El. (N. S.), 517 ; Green v. Hern, 2 Penn., 167; Merritt v. Earle, 29 N. Y., 115; Hill Manuf. Co. v. Boston & Lowell R. R. Co., 104 Mass., 122.

• Hollister v. Nowlen, 19 Wend., 234, 241, A. D. 1838.

fered, and in all its most important features restored the salutary rule of the common law." 1

§ 536. Without departing from the great rule of liability asserted from an early day, it is quite true that the carrying business has been in recent years regulated, in some degree, in England by statute; 2 and in this country by statute and the general use of special contracts. It may also be true that the progress of science tends to render the phrase, act of God, less descriptive of the causes of loss for which the carrier is not responsible, than it was in the seventeenth and eighteenth centuries, and that there is a silent drift of opinion working towards some modifiIcation of the rule itself. There is more study now of the civil law, in England and in this country, and on this subject apparently more respect paid than formerly to that system or body of laws; and yet scarcely so great a disposition to appropriate its principles as we find in the times of Lord Holt.

§ 537. Act of God. The law does not hold the common carrier liable for losses caused by the act of God or by the public enemy; and it includes among the acts of God, those events and accidents which proceed from natural causes and cannot be anticipated or guarded against or resisted; such as unexampled freshets, violent storms, lightning and frost. Having fulfilled his legal duty, i. e., having guarded against the danger by the exercise of ordinary skill and prudence, the carrier is not answerable for a loss or injury arising from one of these agencies of nature. He is not liable for a loss of goods caused by an unprecedented flood, where he has guarded against it by the use of such means as naturally suggest themselves to well informed and competent business men." And he is liable, where he fails to exercise at least ordinary forecast to provide against the danger, or fails to employ the proper means for overcoming it.

'The discussion related to the carrier's claim to restrict his common law liability by a general notice. See 11 Geo. IV. and 1 Will. IV., ch. 68; 48 N. Y. 212. See Halo v. N. J. Steam Nav. Co., 15 Conn., 539; Thomas v. Boston R., 10 Met., 476; Eagle v. White, 6 Whart., 517.

22 Broom and Hadley's Comm., 182-183, Waits' ed.

3 Nugent v. Smith, 34 L. T. Rep. (N. S.), 827 ; L. J. Rep., 697 C. L.; Law R., 1 C. P. D., 423.

4 Nugent v. Smith, supra; Parsons v. Hardy, 14 Wend., 215. The act of God interposing, excuses the performance of a contract; Worth v. Edmonds, 52 Barb., 40; it arrests performance; Wolf v. Howes, 20 N. Y., 197; Parsons v. Hydar, supra.

5 Nashville and C. R. Co. v. David, 6 Heiskell (Tenn.), 261; Railroad Co. v. Reeves, 10 Wallace, 191.

6 Bowman v. Teall, 23 Wend., 306; ante § § 344, 345.

The carrier is not liable for a loss of goods caused by a violent storm overtaking him at sea or upon one of our inland lakes and compelling him to throw them overboard. The necessity of the situation excuses the act, and the loss is considered one resulting from the act of God.' The fact that he is obliged, as owner of the vessel, to bear his rateablo proportion of the loss, is generally sufficient to insure the exercise of the highest skill and prudence on his part, before resorting to the extreme act of jettison; an act for which he is not answerable as a carrier, when it is justified by the exigency of the storm; and a loss towards which, the goods being duly shipped, all persons deriving a benefit from the sacrifice, must contribute pro rata ; as they must, where a loss is caused by fire while at sea, arising from a stroke of lightning.3

Winter closes the navigation of our canals, rivers and lakes each year, without any regularity in respect to the time of the interruption; the close can be anticipated, and the carrier can arrange his plans and make engagements in the confident expectation that the time will not vary more than fifteen, or at the most, twenty days, from one year to another. In making his contract towards the close of the season, the carrier has no advantage over his customer; and neither of them can foresee how early the ice will form so as to prevent the passage of boats. When it does form, arresting the voyage, or causing damage to the goods, it is such an intervention of superior force as will excuse delays and losses arising therefrom, without releasing him from the obligation of his contract. As soon as the obstruction ceases, he must resume the voyage and carry forward the goods; and in the mean time he must use all diligence to preserve the property.5

1 Price v. Hartshorn, 44 Barb., 655; S. C., 44 N. Y., 94; Gillett v. Ill., 579.

Ellis, 11

2 Gould v. Oliver, 4 Bing., 142; placed on deck with the owner's consent, the owner assumes the risk of such a loss. See Barber v. Brace, 3 Conn., 9; Lawrence v. Minturn, 17 How. U. S., 100; Johnston v. Crane, 1 Kerr, 356; Sayward v. Stevens, 3 Gray, 97; Mouse's Case, 12 Co. R., 63; Bancroft's Case, cited in Kenrick v. Eggleston, Aleyn, 93; post § 612.

3 Nelson v. Belmont, 5 Duer, 310; S. C., 21 N. Y., 36.

4 Worth v. Edmonds, 52 Barb., 40.

Parsons v. Hardy, 14 Wend., 215; Bowman v. Teall, 23 Wend., 306. West v. Steamboat Berlin, 3 Iowa, 532. Goods were shipped late in the season at Dubuque for St. Paul, and it was held that the danger of a close of navigation by ice, entered into the contract. In Lowe v. Moss, 12 Ill., 477, the goods were shipped late in the fall at St. Louis for La Salle, on the steamboat Avalanche, and the boat was unable to reach La Salle in consequence of the ice, and the master stored the goods at Hennepin, from which the owner took part of them, the rest being injured by high water; held, that the carrier was justified in the delay arising from the obstruction, and was not released from the contract. Harris v. Rand, 4 N. II., 259, assumes the same principle.

§ 538. The carrier is not responsible for delays or losses caused by heavy falls of snow, that hinder and delay the transportation of goods.' Under his implied contract, he does not insure against injuries to fruits and vegetables by freezing, while in his hands; the action of frost being regarded by the law, in spite of its negative character, as one form of the superior force, or act of God. The owner can anticipate the danger from frost as well as the carrier, and he is understood to take the risk incident to the transportation from the weather, where the carrier is not chargeable with negligence.2 Is it the carrier's duty to give fruits and vegetables, in his hand and exposed to danger from frost, a preference over other goods in sending them forward? He has the right to give them a preference, where he receives them at the same time with goods that are not thus perishable. And he is liable for the damages where he unnecessarily delays the transportation late in the season, and thus by his negligence subjects them to the action of frost. He is bound to use greater diligence in loading and forwarding them on account of the special danger to which they are exposed. He is liable for the damages caused by his inexcusable delay, under a contract relieving him from liability for injuries resulting from the weather during the transportation.5 § 539. A carrier cannot excuse himself by alleging a loss from inevitable accident, where he has brought the goods into the danger by a deviation from the established route, or from the route prescribed by the terms of his contract. A carrier receives goods on his vessel at New York to be carried to Norwich, Connecticut, and the usual route is through the Sound; the Sound being obstructed with ice, very late in the season, the carrier goes around on the south side of the island, and

1 Ballentine v. North, Mo. R. Co., 40 Mo., 491, holds that a snow storm so heavy as to delay the business on a railroad, is an act of superior force, which excuses the carrier so far as it hinders and delays the running of the cars. Briddon v. Great Northern R. Co., 28 L. J. Exch., 51; 32 L. T., 94, holds that the carrier of goods and cattle is not bound to use extraordinary efforts or to incur extra expense to surmount obstructions caused by the act of God, such as a heavy fall of snow; 4 H. and N., 847.

2 Swetland v. Boston and Albany R. Cor., 102 Mass., 276, 282. The road received at Albany, on the afternoon of December the seventh a car-load of apples to be carried forward to Springfield, Mass., and being overtaken by a heavy snow-storm, left the car with a part of his train just east of Pittsfield over night, and the apples were frozen. See Brig Collenburg, and Nelson v. Woodruff, 1 Black., 156, 170; Clark v. Barnwell, 12 How. U. S., 272.

3 Marshall v. N. Y. Central R. Co., 45 Barb., 502.

4 Wing v. The N. Y. and Erie R. R. Co., 1 Hilton, 235, 243; Wolf v. American Es. Co., 43 Mo., 421.

5 Place v. Union Express Co., 2 Hilton, 19, 26.