wilful but not the barratrous act of the crew; the sweating of the cargo; dampness caused by a change of climate; the accidental sinking of the ship; the breaking of tackle ; collision;" the deflection of the needle of the compass; the "blowing" of a vessel, or the opening of the seams of a ship, caused by straining in rough weather."

§ 270. In "The Juniata Paton" the libellant had shipped certain hogsheads of sugar, to be delivered in good order, "the dangers of navigation excepted." The vessel reached the port of Milwaukee, its place of destination, on a dark and stormy night and the captain, mistaking a light on shore for the pier light, it being in the same range and resembling the pier light, in attempting to enter the harbor, ran the vessel aground. It appearing that there had been no lack of care on the part of the carrier; this was held to be a loss within the exception.

A loss may be by a "peril of the sea," though happening in port. Thus a vessel laden with goods had arrived in port; taken into a dock to discharge her cargo, and for this purpose was fastened by tackle on one side to a loaded lighter and on the other to a barge lying between her and the wharf. The tackle by which she was fastened to the lighter broke, in consequence of which she careened over and water got into her ports and the goods yet on board were damaged. This loss was within the exception in the bill "all and every dangers and accidents of

Barton v. Wolliford, Comb. 56; Morse v. Slue, 1 Vent. 190; 1 Kent's Com., p. 302; Abbot on Shipping, Pt. IV., c. VI., § 2, p. 288 (10th ed.); 1 Kay on Shipping, p. 411.

1 Dixon v. Sadler, 9 L. J. Ex. 48. 2 Clark v. Barnwell, 12 How. 272; The Star of Hope, 17 Wall. 651.

3 Rich v. Lambert, 12 How. 347; Clark v. Barnwell, ib. 272.

Kirk v. Folsom, 23 La. Ann. Rep. 584; Palmer v. Lorillard, 16 Johns. (N. Y.) 348.

Me. 132; The New Jersey, Olc. 444; The Bernina, L. R., 12 P. D. 36; Peters v. Warren Ins. Co., 14 Pet. 99; Marsh v. Blythe, 1 McCord, 360; Van Horn v. Taylor, 2 La. Ann. Rep. 587; Daggett v. Shaw, 3 Mo. 189; Hays v. Kennedy, 3 Grant (Pa.), 351. 7 The Rocket, 1 Biss. 354.

Crosby v. Grinnell, 9 N. Y. Leg. Obs. 281; East Tenn., etc., R. R. Co. v. Wright, 76 Ga. 532.

9 Rich v. Lambert, 12 How. 347. But see Bearse v. Ropes, 1 Sprague,

5 Laurie v. Douglas, 15 M. & W. 331.

745.

Pilasted v. B. K. Nav. Co., 27

10

1 Biss. 15.

the seas and navigation." So in Davidson v. Burnand, where a steamer was loading in a harbor and her draught increased by reason of the weight of the cargo until the discharge pipe was brought below the surface of the water, which then flowed down the pipe under the valve, and some cocks or valves in the machinery having been negligently left open water flowed into the hold and injured the cargo, this was said to come within the exception.

§ 271. It has been held in some cases that evidence of a custom may be introduced to define the phrase "perils of the sea,"s and a series of Alabama cases go to the extent that by evidence of mercantile usage and understanding even loss by fire may be brought within the purview of this exception. This is not elsewhere the law (if, indeed, it is in that State), and the Supreme Court of the United States have held the reverse in Parrison v. Memphis Insurance Co.

In the New York case of Aymar v. Astor evidence to show that injuries by rats were considered, by custom, as among dangers of the seas was excluded and in "The Reeside," Mr. Justice STORY refused to admit evidence to the effect that "dangers of the seas" extend by usage to all losses, except those arising from neglect, in these words: "The true and appropriate office of a usage or custom is to interpret the otherwise indeterminate intention of parties and to ascertain the nature and extent of their contracts arising, not from express stipulations, but from mere implications and presumptions and acts of a doubtful and equivocal character. It may also be admitted to ascertain the true meaning of a particular word, or of particular words, in a given instrument, when the word or words have various senses, some common, some qualified and some technical, according to the subject-matter to which they are applied. But I apprehend

746.

Laurie v. Douglas, 15 M. & W. Sampson v. Lindsay, 6 Porter (Ala.), 123; Steele v. McTyer's Adm., 31 Ala. 667.

2 L. R., 4 C. P. 117.

In the early times such evidence seems to have been admitted. Pickering v. Barclay, 2 Roll. Ab. 248; Barton v. Wolliford, Comb. 56.

Hibler v. McCartney, 31 Ala. 501;

5 Boon v. The Belfast, 40 Ala. 184; Lawson on Contract of Carriers, § 13. 6 19 How. 312. 7 6 Cow. 266. 8 2 Sum. 567.

it can never be proper to resort to any usage or custom to control or vary the positive stipulations of a written contract and a fortiori not in order to contradict them."

§ 272. The following have been held not to fall within the exception under consideration-loss by fire,' by rats, by vermin, by worms destroying the ship's bottom, by embezzlement, by theft or robbery which is not piracy, by barratry," by the injurious effects of other goods, by the shifting of a buoy,' by the desertion or insubordination of seamen," by the explosion of the boiler of a steamboat," by the plundering of the ship by a custom-house officer while in charge of it,12 by the depredations committed on the ship's stores or cargo by her passengers and crew, in consequence of a scarcity of provisions, during a long voyage. These and similar causes of loss are excluded from the operation of the exception by the fact that they are not such dangers as "proceed from or are peculiar to. the water."14

1 Garrison v. Memphis Ins. Co., 19 How. 312; Gilmore v. Carman, 1 S. & M. (Miss.) 279; Cox v. Peterson, 30 Ala. 608; Merrill v. Arey, 3 Ware, 215; Union Mutual Ins. Co. v. Indianapolis, etc., R. R. Co., 1 Disney, 480; Hong Kong, ete., Banking Corp. r. Baker, 7 Bom. H. C. Rep. O. C. J. 203. But see U. S. v. Power, 6 Mon. T. 271 (River risk excepted).

2 Kay v. Wheeler, 2 L. R. C. P. 302; Lavemie v. Drury, 8 Exch. 166; S. C., 22 L. J. Exch. 2. Though every possible precaution be taken to prevent the loss, it is still without the exception. The Isabella, 8 Ben. 139; The Carlotta, 3 Asp. Mar. Law Cas. N. S. 456; Irish Jur. 237; Aymar v. Astor, 6 Cow. 266; Hunter v. Potts, 4 Camp. 203.

The Miletus, 5 Blatchf. 335. 4 Rohl v. Parr, 1 Esp. 445.

5 King v. Shepherd, 3 Story, 349.

6 Ib. Abbot on Shipping, pt. 4, c. 6, § 2, p. 289 (10th ed.).

7 The Chasca, L. R., 4 Adm. 446; S. C., 44 L. J. Adm. 17; The Goldhunter, Blatch. & H. 300; The Ethel, 5 Ben. 154.

8 The Antoinetta C., 5 Ben. 564; The Freedom, L. R., 3 P. C. 594; see Daggett v. Shaw, 3 Mo. 189.

9 Reeves v. Waterman, 2 Spears,

197.

10 The Ethel, 5 Ben. 154.

11 The Mohawk, 8 Wall. 153; The Edwin, 1 Sprague, 477; Bulkley v. Naumkeag, etc., Co., S. C. 24 How. 386; contra, Adams Ex. Co. v. Fendrich, 38 Ind. 150.

12 Schieffelin v. Harvey, 6 Johns. (N. Y.) 170.

13 The Gold Hunter, Blatch. & H. 300.

14 Opinion of Sharkey, C. J., in Gilmore v. Carman, 1 S. & M. (Miss.)

279.

§ 273. Another class of causes which have also been held to be without the exception, are those in which the loss is in whole or in part the result of the negligence of the carrier. Such are unskilfulness of the pilot,' lack of proper ventilation, bad stowage, damage from water made possible by bad stowage, or loss of the goods by being washed overboard when stowed on deck without the consent of the shippers," a leak not shown to have been caused by the irresistible action of the elements," a collision occasioned by negligence of the vessel's crew, the dampness or sweating of the hold of a vessel when shown to be the ordinary accompaniment of a voyage from southern to northern ports and to result not from tempestuous weather, but from occult atmospheric causes; the insufficiency or unseaworthiness of the vessel; the ordinary rolling of a vessel in a cross sea, being an ordinary incident of a voyage ;10 the striking on a rock, the presence of which is indicated by a buoy ;" the beaching of a ship within the tideway so that she might be repaired, by which act she is bilged and damaged.12 Low water in a river rendering it unnavigable, it has been frequently held is not to be classed among the dangers of the river, which absolve a carrier from his obligation ;13 or, as the same principle has been rather tersely put in a Minnesota case, the phrase "dangers of navigation" does not mean the want of navigation.1

1 Harvey v. Pike, N. C. Tem. Rep. Gen. Iron Screw Colliery Co., 33 L. 82; S. C. J. Am. Dec. 698.

2 The Freedom, L. R., 3 P. C. 594. 3 The Rebecca, 1 Ware 188; The Newark, 1 Blatch. 203; The Casco, Davies, 184.

4 Richards v. Hausen, 1 Fed. Rep. 54; Fleming v. Marine Ins. Co., 3 W. & S. (Pa.) 144.

5 Dorsey v. Smith, 4 La. 211; The Rebecca, 1 Ware 188; The Casco, Davies, 184; The Newark, 2 Blatchf. 203.

6 The Emma Johnson, 1 Sprague, 527; The Compta, 4 Sawyer, 375; The Spring, 29 Fed. Rep. 397.

7 Grill v. Gen. Iron Screw Colliery Co., 1 L. R., C. P. 600; Lloyd v.

J. Exch. 269; S. C., 3 H. & C. 284.

8 Baxter v. Leland, Abb. Adm. 348; but see Rich v. Lambert, 12 How. 347.

9 The Northern Belle, 1 Biss. 529. 10 The Reeside, 2 Sumner, 567. 11 Ferguson v. Brent, 12 Md. 9. 12 Thompson v. Whitmore, 3 Taunt.

127.

13 Mahon v. The Olive Branch, 18 La. Ann. Rep. 107; Hatchett v. The Compromise, 12 ib. 783; Broadwell v. Butler, 1 Newb. 171; S. C., 6 McLean, 296; Cox v. Peterson, 38 Ala. 608; Transportation Co. v. Downer, 11 Wall. 129.

14 Cowley v. Davidson, 13 Minn. 92.

has been said, does Loss by lightning, sea,2 nor is being

§ 274. "Loss on the lakes (or rivers)," it not include loss of goods in a wharf boat. though an act of God, is not a peril of the fired at by the vessel of the enemy, though this is clearly within the common law exception, the public enemy. These distinctions are, however, of little practical value, since the expression of such phrases as that under consideration is not the exclusion of the implied common law exceptions.

If a vessel be driven by stress of weather upon an enemy's coast and be there captured, it is not a "peril of the seas." So, where the master of a vessel was unwilling to put to sea through fear of capture by an enemy, war having been declared against the nation under whose flag he was sailing while he was at an intermediate port, this was not within the exception," and in Spence v. Chadwick, where it was shown that goods in transit had been confiscated as contraband, at Cadiz, under the laws of Spain; this was said to be not within the meaning of the phrase and in as much as the plea did not set up that the shipper knew that the goods were contraband or allege any wrongful act on his part, the carrier was held liable.

§ 275. The question of the existence of negligence is frequently of great importance in determining whether the exception will serve as a release from liability. "If a ship perish by striking on a rock or shallow" (to quote from Abbot on Shipping)," the circumstances under which the event takes place must be ascertained in order to find out whether it happened by a peril of the sea or the fault of the master." Where it is clear that by the exercise of discretion and foresight the loss might have been prevented, it is idle to show that natural causes, which otherwise would constitute a peril

St. Louis, etc., R. R. Co. v. Smuck, 49 (Ind.) 302.

278; Hahn v. Corbett, 2 Bing. 211. The rule in the United States would seem to be otherwise. United States v. Hall, 2 Wash. C. C. 366.

2 Hong Kong, etc., Banking Corp. v. Baker, 7 Bomb. H. C. Rep. 204. Bever v. Tomlinson, Abbot on Shipping, p. 290 (10th ed.); Cullen v. Butler, 1 Stark. 138; S. C., 5 M. & S. 461. Green v. Emslie Peaks, N. P. C. cited in notes.

5 The Patria, L. R., 3 Adm. 436. 610 Q. B. 517; S. C., 16 L. J. Q. B. 313; 11 Jur. 872.

7 Page 388, 5th Am. ed.; see cases