sity which could not have been occasioned by the intervention of man, but which proceeds from physical causes alone,” “all misfortunes and accidents arising from the inevitable necessity which human prudence could not foresee or prevent." Chief Justice KENT, in Elliott v. Rossell, defines the phrase as "inevitable necessity not arising from the intervention of man which human prudence could not have avoided."

A certain ambiguity has, however, crept into the use of the phrase by the suggestion of Sir William Jones in his treatise on Bailments," that the words "inevitable accident" be substituted in its stead, as being more reverent and more exactly expressing the meaning of the common law. This has led in some quarters to an extension of the meaning of the exception and it is not uncommon to find in the books act of God defined by such phrases as the following: "Casus fortuitus," "all unavoidable accidents," "inevitable accidents." In Brusseau v. The Hudson, it is said that the phrase is the equivalent of "the accidental and uncontrollable events" of the Louisiana code. In what sense and to what extent such terms are identical with the phrase, "The Act of God," is elsewhere considered.

§ 189. The definition given by Mr. Justice BRETT in a recent English case includes "such direct, violent, sudden, and irresistible acts of nature as could not, by any amount of ability, have been foreseen, or, if foreseen, could not, by any amount of human care and skill, have been resisted."10 Mr. Lawson, in his treatise on Contracts of Carriers, having first explained that "any amount of ability" and "any amount of human care and skill" mean only reasonable skill and reasonable

Ferguson v. Brent, 12 Md. 9.

2 Williams v. Grant, 1 Conn. 487. 10 Johns. 1.

See also Merrit v. Earle, 29 N. Y. 115; Merchants' D. Co. v. Smith, 76 Ill. 542; Chevallier v. Straham, 2 Texas, 115; Chapin v. Chicago, etc., R'y Co. (Iowa), 44 N. W. Rep. 820.

Jones on Bailments, §§ 104, 105.

Brusseau v. Ship Hudson, 11 La. Ann. Rep. 427.

7 Walpole v. Bridges, 5 Blackf. (Ind.) 222.

Neal v. Landerson, 2 Sm. & M. (Miss.) 572; Robertson v. Kennedy, 2 Dana (Ky.), 430.

11 La. Ann. Rep. 427. 10 Nugent v. Smith, 1 L. R. C. P. Div. 19.

diligence, adopts this as "a correct exposition of the law both in England and America." It may, however, be fairly questioned whether, under the decisions, the act of nature need be sudden and irresistible. It will hereafter be seen that there are cases in the books in which acts of nature, certainly not violent and sometimes not even sudden, have been decided to come under the exception and although the better opinion would seem to be that the more radical of these decisions are erroneous they cannot be wholly disregarded.

A more exact definition is that arrived at by Mr. Justice HARE after an elaborate consideration of the cases, in a note to Coggs v. Bernard in Smith's Leading Cases: "I apprehend that the true notion of the exception is those losses that are occasioned exclusively by the violence of nature, by that kind of force of the elements which human ability could not have foreseen or prevented, such as lightning, tornadoes, sudden squalls of wind. If, however, it does not necessarily mean only the violence of nature, it certainly is restricted to the act of nature and implies the entire exclusion of all human agency, whether of the carriers or of third persons." To this, however, there may be added the statement that the unquestioned tendency of the more recent decisions is to limit the application of the phrase to the extraordinary violence of nature.

In this connection it is to be remarked that it is not necessary in order that a phenomenon fall within the rule that it should happen for a first and only time. In a recent English case, where the damage was by an exceedingly high tide, it was argued that this cause could not be considered the act of God, inasmuch as it had been shown to be not without precedence. This fact was held to be immaterial and it was said that it was enough that the tide was extraordinary and such as could not reasonably have been anticipated.3

§ 4.

1 Lawson on Contracts of Carriers,

the loss was by flood, the fact that the water was high beyond precedent is

Vol. I., Pt. I., p. 423 (edition of laid stress on. This fact is clearly of importance in determining whether

1885).

See cases cited.

Nitro-Phosphate, etc., Co. v. Dock the loss could have been prevented by Co., 9 L. R. Ch. Div. 503.

In Nashville, etc., R. R. Co. v. David C., Heisk. (Tenn.) 261, where

reasonable foresight on the part of the carrier and so be without the exception, but the general law is

§ 190. The following have been held to be losses by the act of God: the destruction of goods by lightning, loss by tornado, by earthquake,' by storm,2 by sudden squall, loss caused by the sudden rising of a river, by flood,5 by an extraordinary tidal wave, by an extraordinary tide, loss by snow-storm by obstructing the passage of trains, by the freezing of navigable waters, by the freezing of the goods themselves,10 loss caused by exceedingly high wind," by stress of weather or inclemency of the season," loss by the driving of a boat against a bridge pier in a sudden gust of wind.13 In Colt v. McMechin' it appeared that a vessel had been beating up the Hudson against a light and variable wind and being near shore while changing her tack, the wind suddenly ceased, in consequence of which

correctly stated above, that the mere fact of a phenomenon having happened, or not having happened before, will not, of itself, and in the absence of evidence of negligence, either bring the cause under or take it out of the effect of the exception.

Formard v. Pittard, 1 T. R. 27. 2 Morrison v. Davis, 20 Pa. St.

171.

Amies v. Stevens, 1 Str. 127; Oakley v. Portsmouth, etc., Co., 25 L. J. Ex. 99.

Harris v. Rand, 4 N. H. 259; Norris v. Savannah R. Co., 1 South. Rep. 475.

Wallace v. Clayton, 42 Ga. 443; Nashville, etc., R. R. Co. v. David C., Heisk. (Tenn.) 261; Lamont v. Nashville, etc., R. R. Co., 9 Heisk. (Tenn.) 58; Lovering v. Buck Md. Coal Co., 54 Pa. St. 291; Read v. Spaulding, 5 Bosw. (N. Y.) 395; Memphis, etc. R. R. Co. v. Reeves, 10 Wall. 176; Davis v. Wabash & R. Co., 89 Mo. 340.

6 The Thomas Newton, 41 Fed. Rep. 106.

8 Bridden v. Great Northern R. W. Co., 28 L. J. Exch. 51; Ballentine v. Northern Missouri R. R. Co., 40 Mo. 491; Ritz v. Pennsylvania R. R. Co., 3 Phila. 82; Pruitt v. Hannibal, etc., R. R. Co., 62 Mo. 527.

9 Parsons v. Hardy, 14 Wend. (N. Y.) 215; Harris v. Rand., N. H. 259; West v. The Berlin, 3 Iowa, 532; The Maggie Hammond, 9 Wall. 435; Worth v. Edmonds, 52 Bart. (N. Y.) 40; Amies v. Stevens, 1 Str. 127; Bowman v. Teall, 23 Wend. N. Y. 306.

10 Nicholas v. New York C., etc., R. R. Co., 4 Hun (N. Y.), 327; Vail v. Pacific R. R. Co., 63 Mo. 230; Pittsburgh, etc., R. R. Co. v. Hazen, 84 Ill. 36.

11 H. & T. C. R. R. Co. v. Haines, 44 Tex. 628; Amies v. Stevens, 1 Strange, 127.

12 West v. The Berlin, 3 Ia. 532; Illinois Cent. R. R. Co. v. Owens, 53 Ill. 39; Brown v. Lamont, 30 Upper Canada, 2 B. 392.

13 Germania Ins. Co. v. The Lady Pike, 17 Am. Law Reg. (O. S.) 614;

7 Nitro-Phosphate, etc., Co. v. Dock S. C. 2 Bissell, 141. Co., 9 L. R. Ch. Div. 503.

14 6 Johns. (N. Y.) 160.

she ran aground and sank. The sudden failure of the wind. was held by the Court to be the act of God. Where the goods have been jettisoned in a violent storm under justifying circumstances the loss is within the exception.1

§ 191. Coming now to cases of more doubtful authority the following have been also declared to be losses by the act of God: the unavoidable breaking down of a sled,2 damage done by founderous roads, by a high wind blowing a forest fire.1 There are not wanting cases in which it is intimated that any misfortune or accident that could not be averted by the skill and prudence of the carrier is within the exception, but it is worthy of remark that many of these cases have been specifically overruled and others substantially departed from by the later decisions.

The striking of a ship upon a rock not generally known to mariners, or upon a snag recently lodged in the channel of a river, has been said to be a loss by the act of God." In Pennewill v. Cullen8 the distinction is made that if the rock or shoal upon which the vessel struck was hitherto not known the Master is excused, but if it was known or laid down on any chart it does not fall within the exception. This cannot be given, however, as a correct statement of the law. In Friend v. Woods, decided in the same year, the stranding of a vessel on a bar previously unknown is expressly held to be without the exception and this may be considered as more in the line of the recent decisions.10

1 Bird v. Astcock, 2 Bulst. 280; Gillet v. Ellis, 11 Ill. 579; Johnston v. Crane, 1. Kerr (N. B.), 356; Price v. Hartshorne, 44 N. Y. 94; Warren v. Wilson, 6 Upper Canada, 2 B. (O. S.) 435.

2 Moses v. Norris, 4 N. H. 304. 3 Boyle v. McLoughlin, 4 H. & J. (Md.) 291.

Penna. R. R. Co. v. Fries, 87 Pa. St. 234, 235.

5 Hays v. Kennedy, 41 Pa. St. 378; Walpole v. Bridges, 5 Blackf. (Ind.) 222; Ereleigh v. Sylvester, 2 Brev.

(S. C.) 178, overruled by McClenaghan v. Brock, 5 Rich. Repts. (S. C.) 17 (1851); see also Harrington v. Syles, 2 Nott. & McC. (S. C.) 88 (1819); Patton v. Magrath, Dudley (S. C.), 159.

6 Williams v. Grant, 1 Conn. 487; Steele v. McTyer, 31 Ala. 667.

7 Smyrl v. Niolan, 2 Bail. (S. C.)

421.

8 5 Harr. (Del.) 238.

96 Gratt. 189.

10 Redfield on Carriers, § 151, and cases cited.

The recent English case of Nugent v. Smith is of interest. Here the action was for the value of a mare the loss of which had resulted from injuries brought on partly by the tossing of the ship in which she was being transported and partly by fright. The Court below held that this was not attributable to the act of God, Mr. Justice BRETT defining the term in the language already quoted, but the Court of Appeal overruled the Court below and held that such a loss properly falls within the exception.1

§ 192. A loss by fire not caused by lightning is not within the exception, nor does it affect the question of liability that the flames have been carried a great distance or diverted from their previous track by an extraordinary wind, nor that the conflagration is one of unusual extent, as the great Chicago fire, nor that the fire is started on board a steamboat by the bursting of the boiler" or was originated by the machinery," nor that the loss occurred on the high seas."

Explosion is not the act of God, nor is collision, even if unavoidable, nor are railroad accidents," nor is the breaking of tackle or machinery," nor a defect in the rudder of a vessel,12 nor the breaking of a chain thought to be sound, nor the bursting of a cask containing chloride of lime," nor is a heavy fall of rain,15

11 L. R. C. P. Div. 19 and 423. Forward v. Pittard, 1 T. R. 27; Patton v. Magrath, Dudley (S. C.), 159; Cox v. Peterson, 30 Ala. 608.

3 Miller v. Steam Nav. Co., 10 N. Y. 431; Chevallier v. Straham, 2 Texas, 115; Parsons v. Monteath, 13 Barb. (N. Y.) 353. But see R. R. Co. v. Fries, supra.

13

9 Raisted v. Boston, etc., S. N. Co., 27 Me. 132; The Propeller Mohawk, 8 Wall. 153; Mershon v. Hobensack, 2 Zabr. (N. J.) 380; contra, Lawrence v. McGregor, 1 Wr. Ch. (O.)

193.

10 Illinois Cent. R. R. Co. v. Owens, 53 Ill. 391.

"De Moet v. Laraway, 14 Wend.

• Merchants Dispatch Co. v. Smith, (N. Y.) 225. 76 Ill. 542.

12 Backhouse v. Sneed, Murph. (N.