Слике страница
PDF
ePub

while at sea is caught in a gale and compelled to throw the goods overboard; and this is held a deviation from the established route, rendering the carrier liable for the loss. Here is another illustration: a carrier by a line of vessels receives goods on his ship at Philadelphia to be carried to Baltimore by the way of the Chesapeake and Delaware Canal, the dangers of the navigation excepted; and the canal being found out of order, so that he cannot pass through it, the carrier proceeds down the bay and out to sea, with the intention of going round to Baltimore; being caught in a gale at sea, his vessel strikes on a shoal, and is with the cargo totally lost; and the carrier is held liable for the loss of the goods.2 The same rule has been applied in England: plaintiff put on board defendant's barge a quantity of lime to be conveyed from the Medway to London; the master of the barge deviated unnecessarily from the usual course, and during the deviation a storm arose and wet the lime, and the barge taking fire thereby, the whole was lost; and it was held that the defendant was liable, and that the cause of the loss was sufficiently proximate to entitle the plaintiff to recover under a declaration alleging the defendant's duty to carry the lime without any unnecessary deviation, and averring a loss in consequence of such deviation.3 The carrier is bound to go by the usual and ordinary route; and where he deviates therefrom and encounters an accident or a storm causing a loss, it does not lie with him to say, that he might have encountered the same or a different storm, with a like result, on the usual route.5

4

§ 540. Having incurred a liability by a breach of duty or by a breach of contract, the carrier cannot excuse himself or change his situation, by showing a subsequent loss of the goods by superior natural force. If he receive goods to forward by a particular steamer, and on its being withdrawn from the route sends them by another steamer without consulting the owner, he must bear the responsibility himself; he incurs the liability of an insurer, and cannot excuse himself by showing that the goods were lost in a subsequent wreck of the ship. If he receive goods to carry by rail, exempting himself from liability for losses by

'Crosby v. Fitch, 12 Conn., 410. It is suggested that a usage to go by the other route, in cases of obstruction, would justify the carrier in adopting that

course.

2 Hand v. Baynes, 4 Wharton, 204.

3 Davis v. Garrett, 6 Bing. R., 716; Parker v. James, 4 Campb., 112; Hadley v. Clark, 8 Term R., 259.

+ Hales v. London & Northwestern R. Co., 4 Best and Smith, 66; Powers Davenport, 7 Blackf., 497.

V.

Powers v. Mitchell, 3 Hill, 545.

Goodrich v. Thompson, 4 Robt., 75; S. C., 44 N. Y., 324.

fire, he waives his exemption and renders himself liable as an insurer, when he assumes to carry the goods by water.' He renders himself liable for the consequences, when he departs from the terms of his contract prescribing the way or the mode of the conveyance. He does the same thing, where he disregards the owner's instructions in carrying, or in sending forward the goods at the end of his line. He sends them at

his own risk.

§ 541. The law relieves the carrier from liability for losses caused by superior force, when the same occur without rashness or negligence on his part; and it does not attribute losses to the act of God, when the carrier by his negligence or want of prudence and foresight, brings the goods in his custody under the operation of destructive natural forces; as where he carries the goods into a place of danger, or leaves them exposed to danger, and they are damaged by a freshet; or where he fills a steam-boiler with water, and negligently leaves it over night to the action of frost, causing a pipe to crack and leak, and thus injure the goods with water.5 The same rule has been applied where the carrier unreasonably detained the goods at a depot, and they were injured by an extraordinary freshet. His neglect was considered as concurring in and contributing to the injury; it delayed the goods and so exposed them to peril. On the other hand, a former delay on account of which the goods come, at a subsequent stage, in their transit, under the action of an extraordinary flood, at a point which they would have passed safely but for the delay, has not been regarded as a cause of the loss; on the ground that the law regards the proximate as the true cause of the loss, and does not consider the remote cause.7

A breach in the banks or locks of the canal, or the bad condition of the highway used by the carrier, or low water in the river on which the goods are to be conveyed, interrupting the navigation, will excuse a

1 Maghee v. Camden & Amboy R. R. Co., 45 N. Y., 514, 521.

2 Steel v. Flagg, 5 Barn. and Ald., 342; Danseth v. Wade, 2 Scam., 285; Hartung v. Pepper, 11 Pick., 41.

3 Johnson v. N. Y. Central R. R. Co., 31 Barb., 196; S. C., 33 N. Y., 610; Ackley v. Kellogg, 8 Cow., 223. See as to effect of the contract, 56 N. Y., 429; Brown Mott, 22 Ohio St., 149; L. M. R. R. Co. v. Washburn, 22 Ohio St., 324.

V.

4 Campbell v. Morse, 1 Harper S. C. R., 468; Wallace v. Vigus, 4 Blackf., 260; Boyle v. M'Laughlin, 4 Harris and John. R., 291; Williams v. Grant, 1 Conn. R., 487.

5 Siordett v. Hall, 4 Bing. R., 607.

6 Read v. Spaulding, 5 Bosw., 395; S. C., 30 N. Y., 630; Michaels v. N. Y. Central R. R. Co., 30 N. Y., 564.

7 Denny v. N. Y. Central R. Co., 13 Gray, 481; Morrison v. Davis, 20 Pena. St., 171; approved in Railroad Co. v. Reeves, 10 Wallace, 176.

delay in the carriage of goods; but in the meanwhile the carrier is bound to keep the goods safely, and he is required to anticipate and provide against the usual and ordinary dangers by the way, such as freshets.1 An unusual freshet interrupting the navigation on a canal, is not a legal excuse for a failure to fulfill an express contract to carry and deliver goods within a given time; especially where it is not shown that the transportation could not have been accomplished by any means.2

§ 542. A loss is not considered as arising by the act of God when any human agency concurs in producing it. The exception in favor of the carrier does not cover inevitable accidents which are in part caused by human agency; and it does not cover losses remotely caused by superior force; as where a ship and goods were lost through the combined agency of man and the natural current of a river changing the channel; 3 as where a vessel was pierced and goods lost on the river, by the mast of a ship which was sunken in the channel by a storm two days before; or where a vessel was wrecked and goods lost by mistaking the lights on a stranded vessel for the lighthouse, and thus running on shore in a storm in the effort to enter the harbor; or where a severe storm produced a very low tide and thereby caused the carrier's barge to strike against a timber projecting from the lower part of the wharf. The carrier is liable, when his negligence mingles or combines with the act of God in causing the loss.

5

The law does not excuse a loss by a carrier, when his vessel runs upon rocks or shoals that are well known to navigators; and it may be questioned whether he can excuse himself from liability when he runs his vessl upon an unknown reef, not laid down on any chart. The vis inertia of a chain of rocks just covered by the water, can scarcely be termed an act of any kind. A newly formed obstruction in the channel, placed there by the current, may with much more propriety be termed. an act of superior force, when the carrier's vessel strikes it without any failure in diligence or skill on his part."

1 Wallace v. Vigns, 4 Blackf. R., 260; Boyle v. M'Laughlin, 4 Harris and John. R., 291; Hand v. Baynes, 4 Whart., 204.

2 Harmony v. Bingham, 12 N. Y., 99; 52 Barb., 40, 44; 29 Barb., 100, 472, 476; Van Buskirk v. Roberts, 31 N. Y., 661, 675; Collier v. Swinney, 16 Mo., 484.

3 Smith v. Shepherd, Abb. on Shipp., Part 3, Ch. 4, § 1.

4 Merritt v. Earle, 31 Barb., 38; S. C., 29 N. Y., 115.

McArthur v. Sears, 21 Wend., 190.

6 New Brunswick Steamboat Co. v. Tiers, 4 Zab. (N. J.), 697.

7 Wolf v. Amer. Express Co., 43 Mo., 421; Dibble v. Seligson, 1 Woods, 406. Williams v. Grant, 1 Conn., 487; Penneville v. Culles, 5 Harrington, 238;

Friend v. Woods, 6 Gratt., 189.

9 Smyrl v. Niolan, 2 Bailey, 421; Faulkner v. Wright, 1 Rice, 108.

§ 543. A fire kindled by a stroke of lightning is considered an act of God; accidental fires, though wrought upon by a gale of wind and kindled into a great conflagration, are not so considered.1 The carrier insures against losses by an accidental fire, from the time he receives the goods as a carrier; 2 during the transit; and until he delivers them to the next carrier, or stores them when that becomes necessary; or carries them to the place of their destination and gives the consignee a reasonable opportunity to receive them. The ship carrier is equally liable under the common law; as are also all inland carriers by land or by water. Even an exemption from losses by fire, will not excuse the carrier, where his delay exposes the goods to that danger.

The statute of the United States regulating the transportation of passengers and merchandise, expressly exempts the owners of vessels (except canal-boats, barges, lighters and other craft used in rivers and inland navigation) from liability for any loss or damage to any merchandise shipped or taken on board, happening by reason or by means of any fire, unless the same is caused by the owner's neglect or design. The lives of the master and crew on board of a merchant vessel at sea, are pledged for their diligence and good faith, and it is not thought necessary or just to hold the ship-owner liable as an insurer against losses by fire, in our coasting trade and foreign commerce, when the same occur without his fault; and the statute does not apply when the fire occurs by his neglect or design. By its terms the act does not apply to any de

1 Merchants' Dispatch Trans. Co. v. Kahn, 76 Illinois R., 520; Merchants' Dispatch Co. v. Smith, 76 Ill., 542, relating to the great Chicago fire; Shelton v. Merchants' Dispatch Trans. Co., 59 N. Y., 258; Chicago & N. W. R. R. Co. v. Sawyer, 69 Ill., 235.

2 Ante § § 523-531; Lakeman v. Grinnell, 5 Bosw., 625.

Mills v. Michigan Central R. R. Co., 45 N. Y., 622; Miller v. Steam Nav.

Co., 10 N. Y., 431; Gould v. Chapin, 20 N. Y., 259.

* Burnell v. N. Y. Central R. R. Co., 45 N. Y., 184; 64 N. Y., 254. Forward v. Pittard, 1 T. R., 27; Hydo v. Trent Nav. Co., 5 T. R., 389;

Parker v. Flagg, 13 Maine, 181; Moore v. Michigan R., 3 Mich., 23.

6 Hale v. N. J. Steam Nav. Co., 15 Conn., 539; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344; Swindler v. Hilliard, 2 Rich., 283; 10 N. Y., 431; 20 N. Y., 259; 46 N. Y., 271.

Condict v. Grand Trunk R. Co., 54 N. Y., 500.

R. S. of U. S., p. 832, § 4232 and § 4289; the statute covers baggage: Chamberlain v. Western Tr. Co., 44 N. Y., 305; Walker v. Transp. Co., 3 Wallace, 150.

9 Knowlton v. Providence & N. Y. Steamship Co., 53 N. Y., 76; Norwich Cov. Wright, 13 Wallace, 104–116; N. Y. Central R. R. v. Lockwood, 17 Wal., 357; Hill Manuf. Co. v. Providence & N. Y. Steamship Co., 113 Mass., 495. Post ý

scription of vessels used in rivers or inland navigation; and it has been adjudged that vessels running upon the Great Lakes or upon the Long Island Sound, are not to be considered as engaged in inland navi. gation, within the meaning of the statute.1

§ 544. The act of God which excuses a carrier, has been defined to be a direct and violent act of nature;2 and it has been adjudged that a sudden gust of wind, by which the hoy of a carrier shooting a bridge, is driven against a pier and overset by the violence of the shock, may be deemed the act of God; 3 and that a sudden cessation of the wind may be so considered, when it leaves a sailing vessel beating up the river, on the point of changing her tack, and she in consequence of this instant loss of power runs ashore and sinks. "The sudden gust in the case of the hoyman, and the sudden and entire failure of the wind sufficient to enable the vessel to beat, are equally to be considered the act of God. He caused the gust to blow in the one case; and in the other the wind was stayed by Him." The decision has been criticised, and our courts have refused to excuse the carrier where the proximate cause of the loss of goods in his custody, was a sudden gust of wind diverting the course of a distant fire, so as to drive the flames upon them.5

§ 545. While the act of God, working the destruction of goods, will excuse the carrier for their non-delivery, it does not leave him unharmed. If he accept goods to carry from one place to another, and on the way they are destroyed by a superior and irresistible force, he cannot recover a pro rata compensation for their carriage. The owner loses the goods and the carrier his freight. Nothing is earned or due under the

1 Moore v. Transp. Co., 24 How. U. S., 1; Knowlton v. Providence & N. Y. Steamship Co., 33 N. Y. Superior Ct., 370. The disastrous consequences of the loss of the Lexington, burned on Long Island Sound, prompted the enactment of the statute; and the Great Lakes are not more inland than the Mediterranean Sea. The jurisdiction of the State courts is not affected by the statute unless proper proceedings are taken by some party interested. Baird v. Daly, 57 N. Y., 235; Steamboat Co. v. Chase, 16 Wallace, 522; see 44 N. Y., 305, supra. 2 Friend v. Woods, 6 Gratt., 183. The definition is not perfect: a rail broken by force of frost is an act of God. 44 N. Y., 478.

3 Ames v. Stevens, 1 Strange, 128.

Colt v. M'Mechen, 6 John. R., 160; cited in Parsons v. Monteath, 13 Barb., 353; in Hollister v. Nowlen, 19 Wend., 234, 238; in McArthur v. Sears, 21 Wend., 190; in Hulett v. Swift, 42 Barb., 230, 250; and in Price v. Hartshorne, 44 Barb., 656, 666.

Miller v. Steam Nav. Co., 10 N. Y., 431.

• Harris v. Rand, 4 N. H. R., 259; Osgood v. Groning, 2 Campb., 466; Luke 7. Lnyde, 2 Burr., 882; Palmer v. Lorillard, 16 John., R., 348; Ogden v. Barker, 18 John., 87; after tendering the goods to the consignee, the carrier not being in fault may recover freight, though the goods are afterwards destroyed by superior force: Cleudaniel v. Tuckerman, 17 Barb., 184.

« ПретходнаНастави »