foreign maritime law held to be a loss by the peril of the sea or inevitable accident." This view of the law has been criticised by Chief Baron POLLOCK, in Laremie v. Drury.2 In Stevens v. Navigazione Generale Italiana,3 the bill of lading exempted the ship from liability for "damage done by vermin." The court held that the exception did not release the ship from liability for negligence in failing to fumigate and drive out rats. § 299. A "loss by vermin" is not within the exception perils of the sea. In "The Miletus" it was shown that the labels on an invoice of chests of tea had been eaten by cockroaches, thus occasioning loss to the shippers. The court held that this was not the result of a peril of the sea or of any of the dangers and accidents of navigation. There are numerous cases on the books to the effect that the destruction of the bottom of a vessel by worms is not a peril of the sea," but the rule is different where the damage is caused by sea-water escaping through a hole made by rats. Thus in the recent English case of Hamilton v. Pandorf rice was shipped under a bill of lading which excepted "dangers and accidents of the seas." During the voyage rats gnawed a hole in a pipe on board the ship, by which sea-water escaped and damaged the rice. It did not appear that there was negligence or default on the part of the owners of the ship or their servants. The House of Lords decided that the damage was within the exception and that the ship-owners were not liable. 1 Abbot on Shipping, Pt. 3, Ch. 3, § 9 (5th ed.). This view of the law is taken in Garrigues v. Cone, 1 Binney (Pa.), 592. 2 Supra. In The Bark Carlotta, 3 Asp. Nav. Law Ca. (N. S.), 456, even the fact that the ship had been fumigated does not seem to have brought the damage within the perils of the sea. 3 39 Fed. Rep. 562. 5 Blatch. C. C. 335. 5 Rohl v. Parr, 1 Esp. 444 (36 Geo. II.), opinion by Lord Kenyon; Martin v. Salem Marine Insurance Co., 2 Mass. 420; Phillips on Insurance, § 1101, vol. I. This is certainly the law where the ship has been sailing in an ocean where worms ordinarily assail and enter the bottom of vessels. Hazard v. New England Marine Insurance Co., 1 Sumner, 218. In Depeyster v. Columbian Ins. Co., 2 Caines, 85, Livingston, J., commenting on Rohl v. Parr, said: "I do not by anything that has been said mean to be understood as subscribing to the nisi prius opinion of Lord Kenyon. . . . . It is not necessary to decide this question now." 6 L. R. 12 App. Cases,. 518. CHAPTER XXI. EXCEPTIONS CONTINUED-RESTRAINT BY LEGAL PROCEDURE-RESTRAINT OF PRINCES-OF PEOPLE. "Restraint by legal procedure," ne cessity for the exception, § 300. Obligations of the carrier when legal seizure is made, § 301. Opinion in the case of Stiles v. Davis, § 302. Conflicting opinion in Massachusetts, § 303. Definition of exception "restraint of princes," § 304. Seizure for violation of customs laws within the exception, § 305. Embargo, blockade, and neutrality edicts generally within the exceptions, §§ 306, 307, 308. Effect of damage by delay caused by quarantine regulations, § 309. Restraint of princes and restraint of people practically synonymous terms, § 310. § 300. If the language of Finlay v. Liverpool, etc., Steamship Company is authoritative, a stipulation exonerating the carrier from the restraints of courts of law or by legal procedure should be contained in the bill of lading. It may, however, well be doubted whether such a provision is altogether necessary to exempt the carrier from his liability where delivery is impossible because of a legal seizure of the goods. In very many cases the principle has been thus broadly stated: A carrier is not liable for goods taken out of his hands by legal process and when goods are attached in his hands he cannot give them up to the consignee while the attachment is pending and this, it appears, without regard to the provisions of the bill of lading.' § 301. When such a seizure is made, however, the carrier must assure himself that the proceedings are regular and 123 L. T. N. S. Exch. 251. 2 Stiles v. Davis, 1 Black, 101; Bliven v. Hudson, etc., R. R. Co., 36 N. Y. 403; Same v. Şame, 35 Barb. 188; Van Winkle v. U. S. Mail Co., 37 ib. 122; Burton v. [§ 303. valid. He must immediately notify the consignor of the fact of the seizure, but beyond he is bound neither to litigate for his bailor, nor to show that the decision of the court issuing the process is correct in law or fact, nor to assert the title of the bailor, nor to follow the goods. In a Massachusetts case, where the action was for the nondelivery of a quantity of spirituous liquors and the carrier alleged that the goods had been taken out of his hands by a constable upon a writ of attachment, the court held that, inasmuch as spirituous liquors could not be legally sold under execution according to the existing laws of the commonwealth, the attachment was void and the officer a trespasser. The carrier was held liable." § 302. This case is not easily reconcilable with the ruling of the Supreme Court of the United States in Stiles v. Davis.5 This was an action of trover for the loss of goods delivered to the carrier. The defendant showed that the goods had been purchased by the consignor from the assignee of an insolvent firm and while in transit had been seized under an attachment sued out by creditors of the former owners as property of the insolvent firm. Mr. Justice NELSON, in delivering the opinion of the court, held that the right of the officer to hold the goods could be determined only by the court having jurisdiction in the attachment suit; that the fact that the goods were seized under an attachment against third persons did not impair the legal effect of the seizure and custody of the goods under it so as to justify the defendant in taking them out of the hands of the sheriff, and that the plaintiff's remedy was not against the carrier, but against the officer who had wrongfully seized them, or against the plaintiff in the attachment suit if he directed the seizure. 303. Another Massachusetts case is even more directly in conflict with the doctrine of Stiles v. Davis. In Edwards v. 1 Bliven v. Hudson, etc., R. R. R. Co. v. Tohe, supra; The Onrust, Co., 35 Barb. 188. 1 Ben. 431. 2 Scrantom v. Farmers' Bank, 24 N. Y. 424 and cases cited supra. 3 Bliven v. Hudson, etc., R. R. Co., 35 Barb. 188; Ohio, etc., R. Kiff v. Old Colony, etc., R. R. Co., 117 Mass. 591. 5 1 Black, 101. [CHAP. XXI. White Line Transit Company1 the facts were substantially the same as in that case, the goods in transit having been attached as the property of a third person. The suit was here brought on the carrier's contract to deliver the goods and it was held that the facts of the case presented no grounds for the relief of the carrier. The Federal case is thus distinguished: "In Stiles v. Davis, the action was not brought upon the contract of carriage; nor for a violation by the defendant, of his obligations as carrier. It was an action of trover for the conversion of the goods. The failure to deliver the goods at another place than that of their destination upon a demand made there, with no denial of the plaintiff's right, but merely for the reason that they were detained under attachment by legal process, would not be a conversion of the property. The case decides nothing more. The question whether the same facts would constitute a good defence to a suit against the defendant for breach of his contract or obligation as common carrier, was not decided and was not raised by the form of the action. The opinion by Mr. Justice NELSON does indeed assign as a reason for the decision that the goods were in the custody of the law, and the defendant could not comply with the demand of the plaintiffs without a breach of it;' that the right of the sheriff to hold them was a question of law to be determined by the proper legal proceedings and not at the will of the defendants nor that of the plaintiffs.' But this language must be interpreted with reference to the precise question then under consideration. In one sense the property was in the custody of the law, so far, at least, that the surrender of its possession to the officer claiming to attach it upon legal process was not tortious on the part of the carrier so as to subject him to the charge of converting it to his own use. But that custody was of no effect against any one having an interest in the property not made party to the suit in which the process issued. It was not in the custody of the law in the sense in which property that is the subject of proceedings in rem is in the custody of the law or property actually belonging to the party against whom the suit is brought. In personal actions, the attachment 1 104 Mass., 159. of property of another than a defendant in the suit is a trespass; and, as to the true owner, the property is not regarded as in the custody of the law. "As against the plaintiffs it was no more validity than a trespass by any other unauthorized proceeding, or by any unofficial person. The carrier is not relieved from the fulfilment of his contract, or his liability as carrier, by the intervention of such an act of dispossession any more than he is by destruction from fire or loss by theft, robbery, or unavoidable accident. In neither case is he liable in trover for conversion of the property; but he is liable on his contract or upon his obligations as common carrier." § 304. In Finlay v. Liverpool, etc., Steamship Company,' the exception "restraint of princes" is defined as the forcible interference of the state or government of a country, taking possession of the goods manu forti. It does not, it was there said, extend to legal procedure in the courts, nor in an action founded on a contract can the act of a court of law deciding that the carrier shall hold the goods to the order of the true owner, relieve him from performing his contract, unless such act or decision has been expressly excepted in the bill of lading. Such was the language of the court in this case with reference to one of the pleas of the defendants, but another plea setting up that the goods were not the property of the shippers and that they had had no right to ship them, and that they had fraudulently "endorsed the bill of lading for them to the plaintiffs and that the master had been compelled by the decision of the Supreme Court of New York to deliver said goods to the order of the true owner," was held to be good, since it denied the plaintiffs' title to the goods.2 § 305. Seizure or confiscation of goods for the unintentional violation of the customs laws of a country is probably within the exception. It has been expressly held that these are not, however, within the scope of such other exceptions as the "act 3 23 L. T. N. S. Exch. 251. 2 The phrase "restraint of princes, etc., upon the voyage" does not apply until the vessel has set sail from the port of departure. Crow v. Falk, 8 A. & E. N. S. 467. 3 This seems to be implied in the cases hereafter cited. |