nor the rising of waves caused by the stopping of a vessel,' nor the running against a vessel capsized in a storm, nor the running against a sunken anchor in the river over which a buoy formerly was, nor the shifting of a buoy, nor the rolling of the vessel, nor mistaking a light, nor the formation of a bar in the river, nor running against a known rock in a fog, nor ruuning upon a snag, nor running aground," nor running upon a piece of timber not visible at ordinary tides," nor the sinking of a vessel at her wharf while undergoing repairs, nor the escape of water through the pipe of a steam boiler cracked by frost, the boiler having been filled before the time of heating it." An extraordinarily low tide which interferes with the progress of a carrier by water, though perhaps the act of God, is not such in the sense of being an excuse for the carrier. A carrier may, without liability, delay until the adverse winds and dangers from the low tide have passed away, but if he sails he takes the risk of dangers from such causes.14 12 193. The accident, to come within the exception, must be directly due and traceable to the act of God.15 Where the proximate cause of the loss was some cause other than the act etc., 1 Oakley v. Portsmouth, Packet Co., 11 Exch. 617. Merritt v. Earle, 31 Barb. (N. non v. Hammond, 42 Cal. 227. 11 New Brunswick S. N. Co. v. Tiers, 24 N. J. (Law), 697; Bohan Y.) 38. Proprietors Trent Nav. Co. v. Wood, 3 Esp. 127. 12 Packard v. Taylor, 35 Ark. 402. 13 Buller v. Fisher, Peake's Ad. Cas. K. B. 183. See Siordet v. Hall, 4 Reaves v. Waterman, 2 Spear's Bing. 607. Rep. (S. C.) 197. 5 The Reeside, 2 Sumner, 567. McArthur v. Sears, 21 Wend. (N. Y.) 190; but mistaking a light without accompanying negligence is within the exception perils of the sea. The Juniata; Paton v. Bliss, 1 Bissell, 15. 7 Friend v. Woods, 6 Gratt. (Va.) 189. • Fergusson v. Brent, 12 Md. 9. Eveleigh v. Sylvester, 2 Brev. (S. C.) 178. Reversed in McClenaghan v. Brock, 5 Rich. (S. C.) 17. 14 Boyle v. McLaughlin, 4 H. & J. (Md.) 291; Collier v. Swinney, 16 Mo. 484; Silver v. Hall, 2 Mo. App. 557. 15 Merril v. Earle, 31 Barb. (N. Y.) 38; S. C. affirmed, 29 N. Y. 115; Sprowl v. Kellar, 4 Stew. & P. (Ala.) 382; Ewart v. Street, 2 Bailey (S. C.), 157; King v. Shepherd, 3 Story, 349. In Wolf v. American Express Co., 43 Mo. 421, the law is more severely stated. It is there said that the act of God must be not the 10 S. S. Co. v. Bason, Harp. L. proximate but also the sole cause of Reps. (S. C.) 262. loss. of God, the carrier is not relieved by the exception and conversely where the proximate cause was the act of God, the Court will not inquire into the remote cause. The maxim is, causa proxima non remota spectatur.2 Where several causes have combined to produce loss, one of which, though not the immediate cause, was the act of God, the carrier is not exonerated under this exception. Thus, where a steamboat in the night ran against the mast of the sloop sunk in a squall two days before, the carrier was held liable, the loss being the result of mixed causes and not the immediate result of natural forces alone. So where a vessel ran aground in a storm, the master having mistaken the light, the storm was held to be causa remota.5 Where, however, the real cause of loss was the violent act of nature, the mere fact that negligence, delay, or deviation has been shown, will not render the carrier liable. Thus, the mere fact of the employment of a pilot without skill will not rebut the conclusion of the exemption of the carrier from liability, unless it be shown that the loss resulted from this fact." The failure to forward goods promptly will not render the carrier liable for a loss proximately caused by the act of God." Even negligence is immaterial where it has contributed to loss only as a remote cause. § 194. Ordinarily, however, the negligence of the carrier will take the loss out of the exception or, to state the matter more accurately, where the loss is attributable to the act of God and the neglect of the carrier concurring, the carrier is liable. Thus, the act of God cannot be urged successfully as a defence when an 38. 7 Lamont v. N. &. C. R. R. Co., 9 Heisk. (Tenn.) 58. › Memphis, etc., R. R. Co. v. Reeves, 10 Wall. 176; Hoadley v. Trans. Co., 115 Mass. 304. 9 Williams v. Grant, 1 Conn. 487; Merrit v. Earle, 31 Barb. (N.Y.) Brooke v. Pickwick, 4 Bing. 218; 6 Mc Arthur v. Sears, 21 Wend. (N. 395; Brodenham v. Bennett, 4 Price, 31; Birkett v. Willan, 2 B. & A. 356; Y.) 190. 114. Hart v. Allen, 2 Watts (Pa.), Smith v. Horn, 2 Moore, 18; S. C. 8 Taunt. 144. unseaworthy vessel has been lost at sea' or where the loss is due to bad loading as well as to the wind, or where a ship is set on fire by a cargo of lime being wetted during a storm, the ship having necessarily deviated from her course, or where the carrier negligently allowed the goods to remain on the wharf and they were destroyed by storm, or where a buggy was blown from a car by violent wind, it not being clear that it had been securely fastened, or where the carrier, a ferryman, started to cross the river when a dangerous wind was blowing, or where a wagon attempted to cross a swollen stream with an insufficient team." Bad packing of the goods shipped will prevent the act of God being set up successfully as a defence. If the injury, however, may be attributed as well to the one cause as to the other, the carrier will not be liable. The carrier is bound to exercise proper foresight and prudence in anticipating the act of God, to exert the proper means for meeting and overcoming it and to use due diligence in accomplishing the transportation as soon as it ceases to operate and in protecting the goods against further loss if left in a damaged or exposed condition.9 § 195. The question naturally occurs: What amount of prudence, foresight and skill must the carrier use in order to have the advantage of the exception? In Briddon v. Great Northern Bell v. Read, 4 Binn. (Pa.) 127. Spencer v. Daggett, 3 Vt. 92. Davis v. Garrett, 6 Bing. 716. ' Morgan v. Dibble, 29 Texas, 108'; McHenry v. P. W. & B. R. R. Co., 4 Harr. (Del.) 448. Co. v. Morehead, 5 W. Va. 293; ' H. & T. R. W. Co. v. Hano, 44 Wallace v. Clayton, 42 Ga. 443; The Texas, 628. Maggie Hammond, 9 Wall. 435; Cook v. Gourdin, 2 Nott. & M. Dibble v. Morgan, 1 Woods, 406; (S. C.) 19. Read v. Spalding, 5 Bosw. (N. Y.) Campbell v. Morse, Harp. L. R. 395; Morgan v. Dibble, 29 Texas, 107; Harmony v. Bingham, 12 N. Y. 468. 380. • Muddle v. Stride, 9 Car. & P. 99; Shieffelin v. Harvey, 6 Johns. (N. Y.) 170; Feinberg v. D. L. & W. R. R. Co. (N. J.), 20 Atl. Rep. 33. 9 Bowman v. Teale, 23 Wend. (N. Y.) 306; Baltimore, etc., R. R. Railway Co.,' it is said that extraordinary efforts may be required of him. In Nugent v. Smith, already cited, it is said that the exception included such acts of nature as the defendant could not "by any amount of ability foresee" or if he could foresee "could not by any amount of care and skill resist." Chief Justice COCKBURN in reversing the judgment of the lower court in this case, states the law more reasonably, thus: "All that can be required of the carrier is, that he shall do all that is reasonably and practically possible to insure the safety of the goods. If he uses all the known means to which prudent and experienced carriers ordinarily have recourse, he does all that can reasonably be required of him and if under such circumstances, he is overpowered in storm or other natural agencies, he is within the rule which gives immunity from the effects of such vis major as the act of God." § 196. Mere delay unaccompanied by negligence on the carrier's part will not defeat his defence under this exception where goods were frozen during a delay caused by the violence of a mob. With respect to negligent delay, however, the decisions are conflicting. The rule in some States would seem to be that mere delay of itself is too remote a cause to be regarded in connection with the loss. This is the effect of the case of Railroad Co. v. Reeves, in the Supreme Court of the United States and of the ruling in Massachusetts' and in Pennsylvania. In New York, in Missouri and in Nebraska' the reverse has been held. 10 In Michigan Central Railroad Co. v. Curtis, the Supreme Court of Illinois have gone even farther in holding that where fruit trees were delayed so long by one carrier that they were 128 L. J. (Exch.) Rep. 51. 2 Section 191. 7 Read v. Spalding, 30 N. Y. 630; Michaels v. New York Central R. R. Pittsburgh, etc., R. R. Co. v. Co., ib. 564. (See opinion of Davies, frozen in the hands of the connecting carrier and it was impossible to save them, the first carrier could be held for the loss. In Browne on Carriers, the law is thus stated: "If he (the carrier) delays an unreasonably long time on the journey and it is proved that but for such an unreasonable waste of time he would have been able to deposit his goods in safety, it will not be a good defence to an action for the amount of injury done to the goods of an owner who intrusted them to him to be carried to say, that the injury was caused by a flood which was the act of God." § 197. Deviation has been defined as any unnecessary or unexcused departure from the usual or general mode of carrying on the voyage. It has been repeatedly held that where the loss ensues from such negligent act of the carrier, coupled with the act of God, the carrier is liable. The deviation is to be regarded as the proximate cause of the loss." It has been said that necessity can sanction deviation and this, though inconsistent with the definition here adopted, is in principle the accepted law, but applies only so far as the necessity exists and will not authorize a deviation incommensurate "with the vis major producing it." The necessity must be real and not supposititious and the burden of proving the necessity rests with the carrier." The rule applies to carriers by land as well as to carriers by water. It is deviation for the carrier having contracted to carry 1 Browne on Carriers, § 95. See also, Bonanno v. Boskenna Boy, 36 Fed. Rep. 697; Blodgett v. Abbott, 72 Wis. 516; S. C. 40 N. W. Rep. 491. 215 Am. L. Rep. 108; Bond v. The Cora, 2 Pet. Adm. 373; Coffin v. Newburyport Ins. Co., 9 Mass. 436. Lawrence v. McGregor, 1 Wr. Ch. (O.) 193; Crosby v. Fitch, 12 Conn. 410; Davis v. Garrett, 6 Berry, 716; Powers v. Davenport, 7 Blackf. (Ind.) 497; Phillips v. Bingham, 26 Ga. 617; Maghee v. Camden, etc., R. Story on Bailments, § 413. 6 Hand". Baynes, 4 Whart. (Pa.) 204; Le Sage v. Great Western R. R. Co., 1 Daly, 306; Ackley v. Kellogg, 8 Cow. (N. Y.) 223. 7 Powers v. Davenport, supra ; Lawrence v. McGregor, supra; Phil lips v. Bingham, supra. |