this memorandum formed part of the contract for the conveyance of the horse and that this disproved the averment in the declaration that the defendants received the horse to be "safely and securely" carried.

§ 265. In this connection it is, however, to be noted in passing that all the above cases were decided prior to the passage of the Railway and Canal Traffic Act of 1854,' when the rigor of the common law respecting the carrier's liability had, in England, been greatly modified. The act of 1854 may be said to have restored the common law in this regard.2

1 17 and 18 Vict. c. 31.

2 Section 7 of this act provides that a railway company "shall be liable for the loss of or injury to any horse, cattle, or other animals, or to any articles, goods, or things in the receiving, forwarding, or delivering thereof, occasioned by the neglect of such company or its servants, notwithstanding any notice or condition made and given by such company, in anywise limiting such liability." This is extended by section 16 of the Regulation of Rail202

ways Act, 1868 (31 and 32 Vict. c. 119), to the traffic on board steamers belonging to or used by railroad companies. It has been held that the act of 1854 applies to the baggage of passengers, and that no phrase, such as "at passenger's risk," or the like, will exempt the carrier from the results of his own negligence. Cohen v. Southeastern Ry. Co., L. R. 2 Ex. D. 253, overruling Stewart v. London, etc., Ry. Co., 3 H. & C. 135.

What are perils of the sea, §§ 269, Effect of clause when goods are stowed

270.

on deck, § 277.

Custom affecting the interpretation of Duty to protect the goods after damage the clause, § 271. by a peril of the sea, § 278.

What are not perils of the sea, §§ 272, 273, 274.

§ 266. It would seem that the phrase "perils of the seas" was to be found in charter parties as early as the reign of Charles I. In Pickering v. Barclay,' decided in the latter part of that reign, a ship having been overpowered and plundered on the high seas by pirates, the question was raised whether the carrier was exonerated by this exception occurring in his charter party and evidence was taken to show the usage of the trade, to aid in the interpretation of the phrase. More recently many analogous phrases have been embodied in the bill of lading. Among these, such expressions as the following: dangers of the sea, perils of the river, perils of the lake, dangers of the river, dangers of the lake, perils of navigation, dangers of navigation, dangers incident to the navigation of the river, river risks, etc. The custom of carriers now is, to group together a number of such expressions in the hope of including one sufficiently general in its application to relieve from liability in any case of loss. Whether, however, such expressions add to the force and scope of the ancient phrase may well be

Style, 132; S. C., 2 Rall. Abr. 248.

doubted. They have uniformly been treated by the courts as strictly synonymous with perils of the sea,' and shall be here so discussed. The phrases "inevitable accidents" and "unavoidable accidents" have been frequently placed in this category.2

§ 267. The definitions of perils of the sea to be found in the reports are numerous, ranging from those in a class of cases by no means small, which would make the phrase to be not more inclusive than the common law exception, the act of God, to the other extreme of which a recent decision of Mr. Justice WOODS may be given as a type, in which he asserts that "by dangers of the sea are meant all unavoidable accidents from which common carriers by the general law are not excused unless they arise from act of God." Clearly the phrase is intended to be more inclusive than the common law exception." Clearly, too, it is intended to include losses occurring partially through human agency as well as those to which the action of the elements has alone contributed. On the other hand the phrase cannot be made to cover every hazard and danger from the beginning to the end of the voyage, of whatsoever kind, but will be limited to those which arise from the action of the elements, or which are peculiar to the water." In Stephens Transportation Company v. Tuckerman, dangers of the sea are said to be those accidents "peculiar to navigation that are of an extraordinary character or arise from an irresistible force or overwhelming power, which can not be guarded against by the

1 Harrison v. Hixson, 4 Black f. (Ind.) 226; Jones v. Pitcher, 3 Stew. & P. (Ala.) 135; McArthur v. Sears, 21 Wend. (N. Y.) 190; Johnson v. Friar, 4 Yerg. (Tenn.) 48; Whitesides v. Russell, 8 W. & S. (Pa.) 44 ; McGregor v. Kilgore, 6 Ohio, 358; Southern Express Company v. Palmer, 48 Ga. 85.

2 Fowler v. Davenport, 21 Tex. 626; March v. Blythe, 1 McCord, 360; Friend v. Wood, 6 Gratt. (Va.) 189; U. S. v. Power, 6 Mon. T. 271;

8

ordinary exertions of human skill and prudence." This would seem to be more exact than the definition of Mr. Justice STORY1 in which he includes "only such losses as are of an extraordinary nature or arise from some irresistible force or some overwhelming power which cannot be guarded against by the ordinary exertions of human skill and prudence."

§ 268. Applying this principle to interual commerce, it will be seen that "dangers of the river or lakes" in a bill of lading mean such natural accidents incident to river or lake navigation as could not have been avoided by skill, judgment and foresight. Thus, also, the dangers of navigation of a public canal are such as are incident to a trip made in conformity to the public regulations of the canal, of which the carrier is bound to take notice, while for damages following the breach of such regulations he will be liable. Where the clause "risk of boats excepted," or a similar phrase, is added to the usual form of the exception under consideration, it would seem, on the authority of Johnston v. Benson," that the carrier's immunity from responsibility under the terms of the bill of lading is extended to cover the goods after they have been taken from

In "The Reeside," 2 Sumn. 571. 2 Richards v. Hausen, 1 Fed. Rep. 54; Tysen v. Moore, 56 Barb. (N. Y.) 442; The Northern Bell, 1 Biss. 529; The Niagara v. Cordes, 21 How. 7 ; Bearse v. Ropes, 1 Sprague, 331; The Brantford City, 29 Fed. Rep. 373; The Polynesia, 30 ib. 210; The Bergenseren, 36 ib. 700; The Willard, 28 ib. 759.

Chancellor Kent thus defines the phrase (Kent's Commentaries, vol. iii. p. 301, tenth ed.): "Perils of the Sea" denote natural accidents peculiar to that element, which do not happen by the intervention of man, nor are to be prevented by human prudence. For other definitions see Arnold on Marine Insurance, vol. ii. p. 817.

Hill v. Sturgeon, 28 Mo. 323; Johnson v. Friar, 4 Yerg. (Tenn.) 48; Gordon v. Buchanan, 5 ib. 70;

Turney v. Wilson, 7 ib. 340; Slocum
v. Fairchild, 7 Hill (N. Y.) 292;
Fairchild v. Slocum, 19 Wend. (N.
Y.) 329.

It is to be noted, however, that navigation on the great lakes has been held not to be inland navigation in the sense of coming under the Acts of Congress regulating the liability of carriers. Moore v. Transportation Co., 24 Howard, 1.

In Transportation Co. v. Dormer, 11 Wall. 129, it is said that dangers of lake navigation include all the ordinary perils which attend navigation on the lakes, among others that which arises from the shallowness of the waters at the entrance of harbors. 4 Atwood v. Reliance Transportation Co., 9 Watts (Pa.), 87.

5 4 Moore, 90; S. C. B. & B. 454.

the ship and are being landed in small boats, as in certain parts of the world is necessary.1

§ 269. The following have been held to be within this exception or its equivalents: The unavoidable stranding of the vessel; the running upon an unknown rock, or upon a hidden obstruction in a river, such as a tree recently fallen, or a snag recently carried into the channel;5 storm or stress of weather;" a sudden squall; the tossing of a ship in tempestuous weather;8 the shipping of water in a storm; the necessary jettison of the cargo in a storm;10 delay caused by storm," fog,12 piracy,13 the