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goods from one point to another, from which latter place they were to be re-
shipped, the vessel is only liable as a forwarder of merchandise, and is only
bound to exercise ordinary care in procuring a proper conveyance for the
goods. "^

§§ 4290-4296. Exceptions and Excuses— § 4290. Act of God or
Public Enemy. — Act of God. — The carrier is not an insurer against loss or
injury to goods caused by an act of God."^^ Unless the carrier assumes the risk
of all contingencies, he is not liable because he fails to perform what is rendered
impossible by the perils of the sea. Such events as are known as the accidents
of major force, or fortuitous events, or the acts of God, always constitute an
Implied condition in every such engagement.^*^ If proper care could have avoided
a loss it was not a peril incident to the navigation ; if such care could not, it was."^^
So damage to goods from sea water, which came through a broken port hole,
is not the result of inevitable accident or act of God if the accident was one
which could have been prevented by human effort, sagacity and care.'^^ If a
damage to cargo is due to any fault or breach of contract on the part of the
owner or master of the vessel the loss must be attributed to that cause, rather
than to the sea peril, although that may enter into the case.'^^ And where a
carrier is negligent in stowing goods it can not claim that the damage was
caused by an act of God or peril of the sea.^^^ An injury caused by an explosion

71. The D Harvey, 139 Fed. 755. 76. Reed z\ United vStates (U. S.), U

72. Carriers to which rule applicable. Wall. 591. 20 L. Ed. 220^ .„,„.,>v
-Liverpool, etc., Steam Co. v. Phenix Instance of perUs f . ^^a 7A quanti y
Tn= Pr, 190 TT S sq7 ^2 L Ed 788 of arsenic was stowed in the same hold

"S. a: 469; "rhe- FoImfna.'^SlS^ U.' S. with olive oil, but where the slant o the

354 53 L. Ed 546, 29 S. Ct. 363. 15 Am. deck was downward from the arsenic to-

& EnR. Ann. Cas. 748; Elliott v. Rossell w^rd the oil, and with a dunn^f^ ^f

(N. Y.), 10 Johns. 1, C, Am. Dec. 306. ahout four inches. It was shown that

See an e. "Carriers to Which Rule Ap- the method of s owmg the arsenic was

il^.Kil'' SR inn=; inno usual, and that there was apparently no

phcable^ §§ lOOD-1009. '^^ ^^ .^ ^^^^^ ordinary circum-

73. Carriage of money.— Cincinnati, stances. It was also shown that the voy-
etc, Mail Line Co. •^'- Boal, l.\/nd. 345. ^^^ across the Atlantic was verv rough.
See ante, "Carriers of Money, j^ 1007. ^- ^ ^hat the vessel rolled and pitched to

74. Liability as forwarder. — Devillers ^^ unusual extent, and when she arrived
v. Schooner John Bell, fi La. Ann. 544. ^^ New York some of the arsenic was
See ante, "Forwarders," § 1009. found to have been injured from leak-

75. Act of God.— The Propeller Com- age of the oil. Held, that under_ such
merce (U. S.), 1 Black 574, 17 L- Ed. evidence the damage must be attributed
107; Commander-in-Chief (U. S.), 1 to perils of the sea, for which the vessel
Wall. 43. 17 L. Ed. 609; The Lady Pike was not liable. The Langfond, 143 Fed,
(U. S.), 21 Wall. 1, 22 L. Ed. 499; Liver- 150.

pool etc.. Steam Co. v. Phenix Ins. Co.. 77. Graham & Co. v. Davis & Co., 4

129 U. S. 397, 32 L. Ed. 788, 9 S. Ct. O. St. 362.

469; Howland v. Greenway (U. S.), 22 78. The Majestic, 166 U. S. 375, 41 L-

How. 491. 16 L. Ed. 391; The Folmina, Ed. 1039, 17 S. Ct. 597.

212 U S. 354, 53 L. Ed. 546, 29 S. Ct. 79. Corsar v. Spreckels & Bros. Co.,

363. 15 Am. & Eng. Ann. Cas. 748; The 141 Fed. 260, 72 C. C. A. 378. See post,

Gualala, 178 Fed. 402. 102 C. C. A. 548; "Navigation of Vessel," § 4305.

Elliott V. Rossell (N. Y.), 10 Johns. 1. 6 80. Negligent stowage.— See post. 'In

Am. Dec. 306. See ante, "Act of God," General," § 4299; "Stowage on Deck," §■■

§§ 990-994. post, "Jettison," § 4291. 4300.



§§ 4290-4291

of a steamboat boiler •'*i or by the incompetency, nnskillfulness, or negligence of
ihe master or pilot in charge of the deck,82 is not chargeable to the act of God.
And where by the use of such precautions as actually are used on many boats,,
an accident which resulted in the injury of goods in transportation could have
been avoided, such injury is not caused by the danger of navigation. ^^

Act of Public Enemy. — A carrier is not an insurer against loss or injury to-
goods caused by acts of the public enemy.^^

§ 4291. Jettison. — The carrier without fault is not liable for goods nec-
essarily jettisoned.s^ If the master is competent; if an emergency actually ex-
ists calling for a decision, whether to make a jettison of a part of the cargo ; if
he appears to have arrived at his decision with due deliberation, by a fair ex-
ercise of his skill and discretion, with no unreasonable timidity, and with an.
honest intent to do his duty, the jettison is lawful.^^ The single fact that the
boat is in such a situation at the time of a jettison as that in all reasonable
probability a total loss of both vessel and cargo must ensue if immediate relief
le not afforded, will not justify the carrier or his agents in resorting to the
extreme measure of casting overboard a portion of the cargo, so as to throw the
loss upon all who may be benefited by the sacrifice (though it be at the moment
necessary and prove successful), unless the crisis come without fault, that is,

81. Explosion of boiler. — Houston, etc.,
Nav. Co. r. Dwyer, 29 Tex. 376.

82. Incompetency, etc., of master or
pilot.— The Lady Pike (U. S.), 21 Wall.
1, 22 L. Ed. 499; The Morning Light (U.
S.), 2 Wall. 550, 17 L. Ed. 862; Union
Steamship Co. v. New York, etc.. Steam-
ship Co. (U. S.), 24 How. 307, 16 L. Ed.

83. Failure to use usual precautions.
— Haiighton v. The Memphis, 8 West. L.
J. 562, 1 O. Dec. 403.

84. Act of public enemy. — The Propel-
ler Commerce (U. S.), 1 Black 574, 17
L. Ed. 107; Commander-in-Chief (U. S.),
1 Wall. 43, 17 L. Ed. 609; The Lady Pike
(U. S.), 21 Wall. 1, 22 L. Ed. 499; The
Folmina, 213 U. S. 354, 53 L. Ed. 546,
29 S. Ct. 363, 15 Am. & Eng. Ann. Cas.
748. See ante, "Act of Public Enemy,"
§§ 995. 997.

85. Jettison. — Bentley v. Bustard (Ky.),
16 B. Mon. 643, 63 Am. Dec. 561; Law-
rence V. Minturn (U. S.), 17 How. 100,
15 L. Ed. 58.

"The case of a jettison at sea, to save
the vessel from foundering, and to pre-
serve the lives of the crew, is a loss by
the act of God, although it is accom-
plished by the immediate agency of man."
Price V. Hartshorn, 44 N. Y. 94, 4 Am.
Rep. 645, quoting Story on Bailments, §

"The right and law of jettison had its
origin and growth as a law of the sea,
in the navigation of which the loss of
tlie vessel involved not only, in most in-
stances, the loss of the cargo, but gen-
erally the loss, and always the hazard,
more or less imminent, of life. And we
sometimes find the rule exempting the
carrier from liability on the ground of
this right laid down as if depending upon
or growing out of a necessity of throw-

ing goods overboard for the preservation
of the vessel and crew in a tempest: 2"
Kent's Com. 603; or in extremity pro-
duced by other causes coming within the
common-law exceptions to the undertak-
ing of the carrier." Bentley v. Bustard
(Ky.), 16 B. Mon. 643, 63 Am. Dec. 561.

Illustrations. — A vessel put into Bom-
bay with part of her cargo of sugar dam-
aged. By recommendation of surveyors
a part of the cargo was there sold.
While in the Red Sea she grounded on
a coral reef near Mocha, and jettisoned
some more, and, on arriving 'at Mocha,
sold some more that had been taken ofF
when aground by lighter. Held, as the
sales had been recommended chiefly by
surveyors, and as at the time of the jetti-
son the ship and cargo appeared in im-
minent danger, and would have been to-
tally lost had any rough weather come
on, and the chance of relief from Mocha
did not appear to justify delay, and the
jettison seemed a necessity, there was na
improper conduct on the part of the
master. Bursley v. The Marlborough, 47
Fed. 667.

A vessel being aground, the captain
ordered the deck load, consisting of casks
of brandy, to be thrown overboard; it
was found impossible, however, to throw
the casks over whole, and their heads
were knocked out to allow the liquor to
escape through the scuppers. Held, that
such a state of facts would not sustain
a charge of want of skill or of miscon-
duct against the captain; and that the
brandy was lost by "peril of the sea."
Van Syckel v. The Thomas Ewing, Fed.
Cas. No. 16,877, Crabbc 405, 3 Clark 301.

86. Lawrence v. Minturn (U. S.), 17'
How. 100, 15 L. Ed. 58, followed in Du-
pont, etc., Co. V. Vance (U. S.), 19 How..
162, 15 L. Ed. 584.

§§ 4291-4293



without the want of due care in avoiding and due skill and diligence and exertion
in overcoming the evil.^'^ If the jettison is rendered necessary by or due to any
fault or breach of contract on the part of the owner or master of the vessel, the
loss must be attributed to that cause, rather than to the sea peril, although that
may enter into the case.^^ If a jettison is made only to prevent harm to the
boat or to expedite her on the voyage, the carrier is liable. ^^ A jettison is not
justified where a part, if not the whole, of the cargo could have been saved by
lighters. ^^ Under an ordinary bill of lading the carrier is liable for goods
stowed on deck and necessarily jettisoned.'^^ But if a vessel is seaworthy to carry
a cargo under deck, and there was no general custom to carry such goods on
deck in such a voyage, and the loss is to be attributed solely to the fact that the
goods were on deck, and their owner had consented to their being there, he has
no recourse against the master, owner, or vessel, for a jettison rendered necessary
for the common safety, by a storm, though that storm, in all probability, would
liave produced no injurious effect on the vessel if not thus laden.'^'^ The justifi-
able consumption of cargo has the same effect upon the ships liability as jettison
in an emergency.^^

§ 4292. Humidity and Dampness of Ship. — In the case of damage on
account of humidity and dampness of the ship, which is, more or less, incident
to all vessels engaged in trade and navigation, especially upon the high seas, if
it can be shown that it might have been avoided by the use of proper precaution-
ary measures, and that the usual and customary methods for this purpose have
been neglected, the carrier may be held liable.^'*

§ 4293. Seizure under Legal Process. — A carrier is excused from liabil-
ity when without any act or fault on his part the cargo is seized by virtue of a
valid legal process and taken out of his possession ; ^^ but he must give proper
notice of the seizure to the owner of the goods. ^^' A seizure under invalid

87. Bentley v. Bustard (Ky.), 16 B.
Mon. 643, 63 Am. Dec. 561.

88. Corsar v. Spreckels & Bros. Co.,
141 Fed. 260, 72 C. C. A. 378.

89. Jettison to prevent harm to boat
or expedite voyage. — Bentley v. Bustard
(Ky.), 16 B. Mon. 643, 63 Am. Dec. 561.

90. The Portsmouth, Fed. Cas. No.
11,295, 2 Biss. 56.

91. Goods carried on deck. — The Wel-
lington, Fed. Cas. No. 17,384, 1 Biss. 279.
See The Rebecca, Fed. Cas. No. 11,619,
1 Ware 187; The Gran Canaria, 16 Fed.

93. Lawrence v. Minturn (U. S.), 17
How. 100, 15 L. Ed. 58.

93. Justifiable consumption of cargo.
— A steamship, sufficiently coaled, going
from Colombo to Aden, met a hurri-
cane in her front, and, after failing to
make way against it, and being much
damaged, ran back to Bombay, the near-
est available port. Her coal supply be-
came exhausted, and much of the wood-
work and part of the sugar forming her
cargo was burned. Held, as persistence
in her endeavor to push on would have
imperiled ship and cargo, and as suffi-
cient coal to take her to Bombay could
not be expected to be carried, the con-
sumption of the cargo was justifiable.
Bursley v. The Marlborough, 47 Fed.

94. Humidity and dampness of ship.

—Clark V. Barnwell (U. S.), 12 How.
372, 13 L. Ed. 985.

95. Goods seized under legal process.
— See ante, "Goods Seized under Legal
Process," §§ 870, 874; "Act or Mandate
of Public Authority," § 1004.

A canal boat brought a cargo of hay
from Quebec to New York, where it ar-
rived in good condition. It was loaded
by the consignor, and was to be unloaded
by libelants, who had become owners of
the bills of lading. On arriving in New
York the boat and cargo were seized by
libelants under process from the state
court in a suit against the consignor, and
held on demurrage for some 30 days,
when the suit was dismissed, and the
cargo was unloaded. During such time
the weather was damp, and the hay in
the hold became musty. The vessel was
seaworthy, having no more leakage than
was usual in such class of boats. Held,
that the damage was due to the long de-
tention during the damp weather, and to
the lack of ventilation, due to the manner
of loading, which, combined, caused the
hay to sweat, and neither of which was
the fault of the vessel. The M. C. Currie,
132 Fed. 125.

96. Necessity for notice of seizure. —
See ante, "Duties of Carrier," § 871;
"Seizure under Police Regulations," §


carriage; of property.

§§ 4293-4296

orders of the secretary of war will not relieve the carrier.^'''

§ 42 94. Fault of Shipper or Owner.— A carrier who has used due care
is not responsible for loss of or injury to goods resulting from the neglect or
act of the shipper or owner.^s Thus, the carrier can not be held liable for dam-
age to a deck cargo of hay arising from defective covers, which were furnished
by the shipper.»^ A shipper who puts books containing valuable memoranda
with some clothing in a package described in the bill of lading as worn clothing
is guilty of fraud destroying his claim to indemnity. ^

§ 4295. Inherent Infirmities of Property.— If the damages has pre-
ceded from an intrinsic principle of decay naturally inherent in the goods them-
selves, whether active in every situation, or only in the confinement and close-
ness of the ship, the shipper or owner must bear the loss, as the carrier is in
no fault, nor does its contract contain any insurance or warranty against such
an event. 2 So the carrier is not liable for damage to sugar arising from sweat,
largely due to the inherent nature of the commodity.^

Loss from Disease. — A carrier is not liable for the death of a mare due to
an attack of meningitis, of which it was not forewarned, when it did all in its
power to care for the animal after the attack.^

§ 4296. Commencement and Termination of Liability. — The car-
rier's liability as an insurer of freight does not attach until the freight has been
actually or constructively delivered to and accepted by it for transportation.^
When the liability has begun, it continues until there has been a proper deliv-
ery,6 or the carrier has in some way been discharged of his peculiar relation to
the property."

97. Invalid orders of secretary of war.

— Where live fowls were put on board
of a vessel, at New York, for exportation
to Havana, and three bills of lading
were signed for them, one of which was
retained by the master of the vessel, and
two of which were delivered to the con-
signor, and forwarded to the consignee,
who made an advance thereon, and after-
wards the fowls were seized by the col-
lector of customs, under invalid orders
of the secretary of war, and removed
from the vessel, and the bill of lading in
the hands of the master was cancelled
by the consignor; held, in action by the
consignee against the vessel, on the two
bills of lading, to recover the amount of
such advance, because of the nondeliv-
ery of the fowls at Havana, that the
vessel was liable. The Matilda A. Lewis,
Fed. Cas. No. 9281, 5 Blatchf. 520.

98. Fault of shipper or owner.— -The
Lady Pike (U. S.), 21 Wall. 1, 22 L. Ed.
499; Howland v. Greenway (U. S.), 22
How. 491, If) L. Ed. 391; The M. C. Cur-
rie, 132 Fed. 125. See ante, "Fault of
Shipper or Owner," §§ 998, 1002.

99. The M. C. Currie, 133 Fed. 125.

1. The St. Cuthbert, 97 Fed. 340.

2. Inherent infirmities of goods.— Clark
V. Barnwell (U. S.), 12 How. 272, 13 L.
Ed. 985. See ante, "Inherent Infirmities
of Goods," § 1003.

Flour. — Mcphams v. Biessel (U. S.), 9
Wall. 370, 19 L. Ed. 677.

Potatoes. — Ship Howard v. Wissman
(U. S.), 18 How. 231, 15 L. Ed. 363.

Soap.— McKinlay v. Morrish (U. S.),
21 How. 343, 16 L. Ed. 100.

Spools of cotton thread. — Clark v.
Barnwell (U. S.), 12 How. 272, 13 L. Ed.

3. The Niceto, 134 Fed. 655.

4. Loss from disease. — Klair v. Wil-
mington Steamboat Co. (Del.), 4 Pen.
51, 54 Atl. 694.

5. When liability commences. — See
ante, "When Liability Commences,"
Chapter 5; post, "Lien of Shipper against
Vessel," § 4337.

6. Termination of liability.— Bowman
V. Hilton, 11 O. 303. See ante, "Carrier
by Water," § 844; "Necessity for Per-
sonal Delivery," § 848; "To Whom De-
livery May Be Made," §§ 854-857.

7. Bowman v. Hilton, 11 O. 303; Mc-
Gregor & Co. V. Kilgore, 6 O. 359. See
ante, "Failure or Refusal of Consignee to
Receive Goods," § 868; "Goods Seized
under Legal Process," §§ 870, 874; "Stop-
page in Transitu," Chapter 17.

Carriers, who have agreed with the
consignee of goods to store them for
him for a certain time, have a right, if
lie does not come for them within that
time, to deliver them to a responsible
warehouseman and thus discharge their
own liability; and, in an action by the
consignee against them for the ware-
houseman's negligence, the jury may be
justified in finding that the warehouse-
man was his agent and not theirs, al-
though they gave him an order on the
warehouseman for the goods, and al-

^ 4297 CARRIERS. ■ 3902

§ 4297. Losses during Deviation or Delay. — Deviation. — An unneces-
sary deviation from a voyage renders a carrier responsible for all losses, ^ result-
ing directly or indirectly,^ even from unavoidable casualty, ^"^ such as destruction
of the goods by fire.^^ Where no route is specified the carrier is not liable for
injuries resulting from taking the usual and only route for its vessel, though the
injury would have been avoided by taking another more direct route. i- Where
a vessel sailed with an intention to deviate, and was compelled by mere necessity
to put into the port to which she had intended to deviate, and afterwards a loss-
of cargo occurred, it was held that the owners of the vessel were not answerable
to the shippers for the loss.^^

Delay. ^^4 — A vessel sailing under bills of lading giving her liberty to
stop at other ports and exempting her from liability for decay or damage to
perishable goods through delay in obtaining other goods to complete her cargo
is not liable for the loss of perishable goods in the absence of proof that her
stay in loading ports was a departure from general usage, and so unreasonable
as to constitute negligence. i-'' In a bill of lading for old metal, a provision, that
if the goods be prevented, "by any cause," from going by the steamer specified,,
the carrier may forward them by the succeeding steamer of his line, warrants
him in leaving them for the next vessel, which sails four days later, when the
space reserved for the goods is needed for more perishable articles, and his fail-
ure to notify the shipper that they are so left does not make either him or the
vessel liable for their loss in transit by a peril of the sea, though the shipper
procures insurance on the goods only by the vessel specified, whereby he is un-
able to recover on the policy.^^

Unavoidable Delay. — A ship can not be held liable for damage to the cargo-
resulting from delay due to the condition of the weather, and not to any negli-
gence in her navigation." And a vessel with a perishable cargo, driven by
stress of weather out of her course and into a strange port for repairs, is not
liable for such injuries to the cargo as are caused merely by the delay of the
voyage. I'* It is not negligence in a carrier to receive goods to be forwarded at a
time when by reason of a low stage of water his boat is so delayed that the
goods spoil before arrival. ^^ Where a boat was expected to be at hand to start

though the warehouseman paid the 10. Lawrence v. McGregor (O.),-

freight to them, and, on being repaid the Wright 193; Crosby v. Fitch, 12 Conn,

freight and paid for storage by the con- 410, 31 Am. Dec. 745; Cassilay v. Young

signee, gave him as a receipt, a bill of & Co. (Ky.), 4 B. Alon. 265, 39 Am. Dec.

freight signed by them. Bickford v. Met- 505; Louisville, etc.. Packet Co. v. Rog-

ropolitan\Steamship Co., 109 Mass. 151. ers, 20 Ind. App. 594, 49 N. E. 970.

Termination of liability as carrier and 11. Louisville, etc.. Packet Co. v. Rog-

beginning of liability as warehouseman. ers, 20 Ind. App. 594, 49 N. E. 970. See

— See ante, "Carrier as Warehouseman," The Indrapura, 171 Fed. 929.

Chapter 13. _ ^ _ 12, Emerson Co. v. Reunis, 118 Pac.

8. Losses during deviation. — ^Louisville, 53^ 55 Wash. 513.

etc.. Packet Co z;. Rogers 20 Ind. App. ^ Hobart"z'. Norton (Mass.), 8 Pick.
594, 49 N. E. 970: The Citta Di Messma,

169 Fed. 472; Globe Nav. Co. v. Russ ^^-^^ u-r. , ■ n.

Lumber, etc., Co., 167 Fed. 228; Lamont 14- Delay.— See ante, ^Delay m Trans-

& Co. V. Nashville, etc.. R. Co., 56 Tenn. portation or Delivery, Ch^P^l\ 11-

(9 Heisk.) 58. See Hand v. Baynes "Neghgence Concurrmg with Act ot

(Pa.), 4 Whart. 204, 33 Am. Dec. 54. God,' § 992.

9. The Indrapura, 171 Fed. 929. 15. The Citta Di Messina, 169 Fed. 472.
Any deviation from the course of nav- ig. The Kansas, 87 Fed. 766.

igation which experience and usage have ^^ Unavoidable delay.— The Hiram,

prescribed as the safest and most expedi- j„^ Ved 138

tious mode of proceeding will cast loss ' ' . ^ ,, , /tt c \ 1
of, or injury to, either ship or cargo on 18- T^he Brig Collenberg (U. S.), 1
the shipowner, without reference to Black 170, 17 L. Ed. 89.
whether it had any bearing on the partic- 19. Starbuck v. Chesapeake, etc., R-
ular loss complained of. The Citta Di Co., 1 Wkly. L. Bull. 110, 7 O. Dec. Re-
Messina, 169 Fed. 472. print 97.



§§ 4297-4299

on a certain day, but by detention by fog and low water did not arrive until
several days later, the delay was not from insufficiency of equipment for trans-
portation, but from want of a boating stage of water, and the carrier is not
liable for loss sustained by a shipper on account of the delay. 2**

§ 4298. Losses during Loading- of Goods. -^ — Where a cargo is loaded
hy the vessel, she is liable for damages due to the negligent manner in which it
is handled. - The duties of the master extend to all that relates to loading
the cargo, and the vessel is liable for his faithful performance.-^ It is not the
-duty of a mate in loading casks of wine from a lighter, either to work at the fall,
or bear off with his own hands the casks from the side as it is about to come
aboard, though both duties are sometimes performed by mates from commend-
able motives, and hence a vessel will not be liable for injury or loss of goods in
loading caused bv his failure to perform these duties.-'*

Where a shipper undertakes to load his goods upon a vessel, he must him-
self bear any loss occasioned by the negligence of himself or servants in so

§§ 4299-4301. Stowage of Goods.— § 4299. In General.— The car-
rier contracts for the use of due care and skill in stowing the cargo, and is
liable for losses occasioned by the failure to use such care.-^ In the matter of
proper stowage, as in all others, due care and its opposite, negligence, are relative
terms, having respect to the nature of the duty to be performed, the knowledge
communicated to the party to be charged, and the prevailing usages of the trade.-'
The cargo must be so stowed that the dift'erent goods will not injure each other,-'^

20. Delay in starting. — Starbuck 7'.
Chesapeake, etc., R. Co., 1 Wkly. L. Bull.
110, 7 O. Dec. Reprint 97.

21. Losses during loading of goods. —
See ante, "Means for Loading and L"n-
loadint;." § 1021.

22. Negligence in loading. — The D.
Harvev, 1.T9 Fed. 7.55 (cement in bags).

23. Duties of master.— The R. G. Win-
slow, Fed. Cas. No. 11.736, 4 Biss. 13.

In loading wheat from a warehouse
through a pipe, it is the master's Inisiness
to arrange the pipe and trim the vessel,

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