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burned while plying quiet inland waters on a pleasant day with no vis major
or unusual disturbance of the elements, and within half an hour after the
fire broke out, 90 per cent of the passengers had been drowned or burned to
death, such catastrophe was not the result of inevitable accident, but was itself
evidence of negligence and inattention to duty on the part of the master and
crew."*"

41. Failure to post station bill assign- Cas. 456.

ing crew to quarters. — Van Schaick v. 44. Indictment. — United States v. La-
United States, 159 Fed. 847. 87 C. C. A. varrello. 149 Fed. 397.
27, 14 .\m. & Eng. Ann. Cas. 456. 45. Evidence. — Van Schaick v. United

42. Defenses.— Van Schaick v. United States. 159 Fed. 847. 87 C. C. A. 27, 14
States. 159 Fed. 847, S7 C. C. A. 27, 14 Am. & Enfj. Ann. Cas. 456.

Am. & Kng. Ann. Cas. 456. 46. Negligence and inattention to duty.

43. Failure to maintain station drills. — \'an Schaick v. United States, 159 Fed.
— \'an Schaick v. United States, 159 Fed. 847, 87 C. C. A. 27, 14 Am. & Eng. Ann.
847, 87 C. C. A. 27, 14 Am. & Eng. Ann. Cas. 456.



CHAPTER XL.

Limitations of Liability.

I. Limitation by Exceptions in Contract, §§ 4448-4493.

A. Implied Exceptions, § 4448.

B. Express Exceptions in Bill of Lading or Shipping Contract, §§ 4449-4480.

a. Power and Validity Generally, §§ 4449-4450.

(1) In General, § 4449.

(2) What Law Governs, § 4450.

b. Construction Generally, § 4451.

c. Operation and Efifect Generally, §§ 4452-4455.

(1) General Rule, § 4452.

(2) Partial Invalidity, § 4453.

(3) Right of Assignees, § 4454.

(4) Loss from Negligence of Carrier or Servants, § 4455.

d. Particular Exceptions, §§ 4456-4479.

(1) Perils of Sea, Navigation, Lakes, Rivers, etc., §§ 4456-4403.

(a) In General, § 4456.

(b) Damage by Sea Water — Leakage, § 4457.

(c) Collisions, Stranding, Obstructions of Navigation, § 4458.

(d) Explosions, § 4459.

(e) Fire, § 4460.

(f) Jettison, § 4461.

(g) Storms, § 4462.

(h) Negligence of Carrier or Servants, § 4463.

(2) Exceptions as to Warranty of Seaworthiness, § 4464.

(3) Exceptions of Loss or Damage Resulting from Negligence of Carrier,

§ 4465.

(4) Fire, § 4466.

(5) Stowage on Deck, § 4467.

(6) Loss Through Leakage, § 4468.

(7) Risk of Due Refrigeration, § 4469.

(8) Risk of Mortality or Accident, § 4470.

(9) Loss from "Sweating, Natural Decay or Sea Water," § 4471.

(10) Loss from Heat or Heating, § 4472.

(11) Theft, § 4473.

(12) Delay in Delivery, § 4474.

(13) Strikes or Stoppage of Labor, § 4475.

(14) Limitation of Amount of Damages, § 4476.

(15) Benefit of Insurance Clause, § 4477.

(16) Exception of Restraints of Princes, Rulers, or People, § 4478.

(17) Requirements as to Notice of Loss and Time to Sue, § 4479.

e. Presumptions and Burden of Proof, § 4480.

C. Provisions in Passenger Tickets. §§ 4481-4493.

a. Liability for Personal Injuries to Passenger, § 4481.

b. Liability for Passenger's Effects, §§ 4482-4493.
(1) Validity, Form and Requisites, §§ 4482-4487.

(a) Stipulation That Landing Not Part of Voyage, § 4482

(b) Stipulation Limiting Liability to Stated Sum, §§ 4483-4487.
aa. Validity Generally, § 4483.

bb. Form and Requisites, §§ 4484-4487.

(aa) Meeting of Minds of Parties Generally, § 4484.

(bb) Knowledge and Acceptance, § 4485.

(cc) Type or Printing, § 44S6.

(dd) Conditions Printed on Margin on Back of Ticket, § 4487.



4015 LIMITATIONS OF LIABILITY.

(2) Interpretation, § 4488.

(3) Operation and Effect, §§ 4489-4492.

(a) Stipulation Tliat Landing Not Part of Voyage, § 4489.

(b) Stipulation Limiting Liability to Stated Sum, §§ 4490-4492.
aa. Losses Covered, § 4490.

bb. Baggage to Which Applicable, § 4491.
cc. Tickets as Evidence, § 4492.

(4) Compliance with Stipulation for Notice of Loss, § 4493.

n. Limitation of Vessel Owner's Liability by Acts of Congress, §§ 4494-4576.
A. Limited Liability Act, §§ 4494-4530.

a. General Consideration, §§ 4494-4497.

(1) History and Object, § 4494.

(2) Constitutionality, § 4495.

(3) Part of Maritime Law, § 4496.

(4) Effect of Subsequent Acts, § 4497.

b. Construction, § 4498.

c. Losses Covered, §§ 4499-4505.

(1) Loss or Damage to Jewelry, Precious Metals, Moneys, etc., § 4499.

(2) Loss or Damage by Fire, § 4500.

(3) Loss or Damage for Which Liability Limited to Value of Vessel and

Pending Freight, §§ 4501-4505.

(a) Maritime and Nonmaritime Torts Generally, § 4501.

(b) Obligations Ex Contractu, § 4502.

(c) Collision, § 4503.

(d) Personal Injuries and Death by Wrongful Act, § 4504.

(e) Salvage Claim, § 4505.

d. Condition Precedent to Right to Limit Liability, §§ 4506-4514.

(1) Seaworthiness and Sufficiency of Equipment, § 4506.

(2) Want of Privity or Knowledge of Owner of Negligence or Defect, § 4507.

(3) Surrender of Vessel and Pending Freight or Interest Therein, §§ 4508-4514.

(a) In General, § 4508.

(b) Particular Vessels and Parts Thereof Which Must Be Surrendered,

§ 4509.

(c) Transfer of Interest to Trustee or Appraisement and Payment into

Court of Value, § 4510.

(d) Bond for Payment into Court, § 4511.

(e) Abandonment to Underwriters, § 4512.

(f) Total Loss of Vessel, § 4513.

(g) Effect of Failure to Surrender Pending Freight, § 4514.

e. What Constitutes Value of Ship and Freight, §§ 4515-4524.

(1) Point of Time at Which Value Taken, § 4515.

(2) Freight and Passenger Money Estimated, § 4516.

(3) What Constitutes Earnings of Voyage, § 4517.

(4) Ship Subsidy Money, § 4518.

(.5) Freight Earned by Other Vessels on Through Shipment, § 4519.

(6) Damages for Loss of Vessel in Collision, § 4520.

(7) Insurance, § 4521.

(8) Deduction for Expenses of Voyage, § 4522.

(9) Expenses of Salvage and Allowance for Risk of Undertaking, § 4523.
(10) Substitution of Another Vessel, § 4524.

f. Waters, Vessels and Interests to Which Applicable, § 4525.

g. Proceedings against Which Available, § 4526.
h. Freighters Entitled to Participate, § 4527.

i. Effect of Stipulation in Bill of Lading, § 4528.
j. Remedies Reserved, § 4529.
k. Waiver of Right, § 4530.



CARRIERS.



4016



B. Harter Act, §§ 4531-4547.

a. Purpose, § 4531.

b. Construction, § 4532.

c. Effect of Clauses in Bills of Lading Relieving from Liability, § 4533.

d. Effect on Stipulations in Passenger Tickets, § 4534.

e. Loss or Damage to Which Applicable, §§ 4535-4547.

(1) Losses for Which Carriers Liable Generally, § 4535.

(2) Loss from Latent Defects, Fault or Error in Navigation or Management

of Ship, §§ 4536-4539.

(a) In General, § 4536.

(b) Seaworthiness as Condition Precedent, § 4537.

(c) Instances of Fault or Error in Navigation or Management of \'esseL

§ 4538.

(d) Loss before Commencement of Voyage, § 4539.

(3) Loss from Negligent Loading and Stowage or Unloading, § 4540.

(4) Loss of Tow and Cargo by Tug, § 4541.

(5) Collision, § 4542.

(6) Personal Injuries and Death by Wrongful Act, § 4543.

(7) Liability for Passengers' Effects, § 4544.

(8) Right to General Average Contribution, § 4545.

(9) Duty of Master of Stranded Vessel, § 4546,
(10) Application to Foreign Vessels, § 4547.

C. Proceedings to Limit Liability, §§ 4548-4576.

a. Nature of Proceedings, § 4548.

b. Forms and Rules of Procedure, § 4549.

c. Jurisdiction, Venue and Courts, § 4550.

d. Time of Taking Proceedings and Laches, § 4551.

e. Time for Filing Claims, § 4552.

f. Modes in Which Limited Liability May Be Claimed. § 4553.

g. Scope of Remedy, §§ 4554-4556.

(1) Ascertainment of Co-Existing Claims, § 4554.

(2) Contesting All Liability, § 4555.

(3) Claims Provable in Proceedings to Limit, § 4556.
h. Process to Bring Vessel into Court, § 4557.

i. Power of Court to Shape Course of Proceedings, § 4558.

j. Consolidation of Suits, § 4559.

k. Effect of Institution of Proceedings, §§ 4560-4565.

(1) Superseding Other Actions, § 4560.

(2) Duty of Other Courts to Suspend Proceedings, § 4561.

(3) Staying or Restraining Proceedings in Other Courts, § 4562.

(4) Bar to Subsequent Suit, § 4563.

(5) Application of Doctrine of Res Adjudicata, § 4564.

(6) Effect on Course of Appeal, § 4565.
1. Pleading, § 4566.

m. Evidence, §§ 4567-4570.

(1) Presumptions and Burden of Proof, § 4567.

(2) Admissibility of Evidence, § 4568.

(3) Weight and Sufficiency, § 4569.

(4) Cross Examination of Petitioner, § 4570.
n. Decree, §§ 4571-4574.

(1) In General, § 4571.

(2) Reopening Decree to Permit Other Claimants to Come in, § 4572.

(3) Allowing Interest on Appraised Value, § 4573.

(4) Res Adjudicata, § 4574.

o. Apportionment or Distribution of Proceeds, § 4575.
p. Costs and Expenses of Administration, § 4576.



4017



LIMITATIONS OF LIABILITY.



i§ 4448-4450



§§ 4448-4493. Limitation of Exceptions in Contract— § 4448. Im-
plied Exceptions. — Unless a 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
m every such engagement.^ The act of God means inevitable accident, without
the intervention of men and public enemies. ^

§§ 4449-4480. Express Exceptions in Bill of Lading or Shipping Con-
tract— §§ 4449-4450. Power and Validity Generally— § 4449. In Gen-
eral. — In the absence of statutory provision to the contrary, a carrier of goods
may, by special contract, contained in the bill of lading, stipulate for a more lim-
ited liability than that which the law would otherwise impose upon him.^

Private Carrier. — A contract by a lighterage company to carry the product
of a manufacturing company in and about New York Harbor, furnishing the
full capacity of its vessels, made it a private carrier; and a provision of its con-
tract that it should not be liable for goods lost or damaged, but requiring the
owner to insure against such loss, is valid.**

§ 4450. What Law Governs. — Exemptions for negligence, contracted for
in a foreign port on a foreign vessel, though valid where made, will not ex-



1. Implied exceptions. — Reed v. United
States (U S.), 11 Wall. 591, 20 U Ed.
220. See, to the same efifect. The Tor-
nado, 108 U. S. 342, 27 U Ed. 747, 2 S.
Ct. 746; Rowland v. Greenway (U. S.),
22 How. 491, 16 L. Ed. 391; The Harri-
man (U. S.), 9 Wall. 161, 19 L. Ed. 629.

The rule seems to be well settled that
when the voyage is broken up by a sea
peril, that neither the shipper nor the
charterer is in general liable to the ship-
owner beyond the time when the peril
occurred; but that rule is more partic-
ularly applicable in cases where the
transportation of the cargo is not com-
plete. Reed v. United States (U. S.), 11
Wall. 591, 20 L. Ed. 220.

Burden of proof. — The burden is on
the carrier to show that the injury was
by the act of God, for which the com-
pany was not liable. Clark v. Barnwell
(U. S.), 12 How. 272, 13 L. Ed. 985;
Transportation Co. v. Downer (U. S.),
11 Wall. 129, 20 L. Ed. 160; The Edwin
I. Morrison, 153 U. S. 199, 38 L. Ed.
688, 14 S. Ct. 823; The Caledonia, 157
U. S. 124, 39 L. Ed. 644, 15 S. Ct. 537;
The Majestic, 166 U. S. 375, 41 L. Ed.
10;{9, 17 S. Ct. 597.

a. Act of God or inevitable accident.
—The Majestic, 166 U. S. 375, 41 U Ed.
10:59, 17 S. Ct. 597.

Damage to luggage 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 l)y human ef-
fort, sagacity and care. The Majestic,
166 U. S. 375, 41 L. Ed. 1039, 17 S. Ct.
597.

Disaster occasioned by the incompe-
tency, unskillfulness, or negligence of
the master or pilot in charge of the deck,



is not inevitable accident. The Lady
Pike (U S.), 21 Wall. ], 22 U Ed. 499;
The Morning Light (U. S.), 2 Wall. 650,.
17 L. Ed. 862; Union Steamship Co. v.
New York, etc., Steamship Co. (U. S.),
24 How. 307, 16 L. Ed. 699.

Difficulties or improbabilities of ac-
complishing the undertaking will not
avail the carrier. The Harriman (U. S.),
9 Wall. 161, 19 L. Ed. 629.

War. — Perils to the ship and cargo
from a war, the existence of which was
known to both parties when the contract
is entered into, the owner making no pro-
vision against any contingency, is no
reason for breaking up the voyage and
not proceeding to the port of delivery.
The Harriman (U. S.), 9 Wall. 161, 19
L. Ed. 629.

3. Power and validity generally. — The
Henry B. Hyde, 82 Fed. 681, decree af-
firmed in 90 Fed. 114, 32 C. C. A. 534;
The Delaware (U. S.). 14 Wall. 579, 20
L. Ed. 779; Propeller Niagara v. Cordes
(U S.), 21 How. 7, 16 L. Ed. 41; Clark
V. Barnwell (U. S.), 12 How. 272, 13 L.
Ed. 985.

And such special contracts between
the carrier and the customer, the terms
of which are just and reasonable, and
not contrary to public policy, are upheld;
such as those exempting the carrier from
responsibility for losses happening from
accident, or from dangers of navigation
that no human skill or diligence can
guard against. The Folmina, 212 U. S.
354, 53 L. Ed. 546, 29 S. Ct. 363, 15 Am.
& Eng. Ann. Cas. 748, quoting Liverpool,
etc., Co. V. Phenix Ins. Co., 129 U. S.
397, 32 L. Ed. 788, 9 S. Ct. 469.

4. Private carrier, — ^The Maine, 110'
Fed. 915, 96 C. C. A. 131, reversing de-
cree, 153 Fed. 635.



§§ 4450-4451



CARRIERS.



4018



cuse torts and consequent damage occurring within our territorial jurisdiction.^
Stipulations Limiting Liability for Negligence. — A contract limiting the
carrier's liability for negligence, though valid by the lex loci, will not be en-
forced when it is in violation of the public policy of the forum ; '^ even though
the contract expressly provides that it shall be governed by the laws of the
ship's flag or by the laws of a place where such contract is valid.'^ This rule
governs both under and independent of the Harter Act.^

§ 4451. Construction Generally. — Exceptions in a bill of lading or charter
party, inserted by the ship owners for their owni benefit are unquestionably to
be construed most strongly against them.^ Their meaning ought not to be ex-
tended to give the ship owner a protection, which, if intended, should have been
expressed in clear terms. ^"^

Rule of Ejusdem Generis. — A clause in a bill of lading exempting the
carrier from liability for loss or damage "occasioned by causes beyond his con-
trol," following the enumeration of a large number of specific causes, including
perils of the sea, fire, accidents of navigation, and others of like nature, which
would be covered by such clause if given a broad construction, must be re-
stricted in meaning to causes of the same general nature as those particularized.
As so construed, such excuse does not relieve the carrier from liability for dam-
age occasioned while the vessel was in port and being unladen, by the explosion
of certain detonators forming a part of the cargo, which made a hole in the side
of the ship, through which the sea water entered and injured the goods, where



5. What law governs. — The Kensing-
ton. 88 Fed. 331, decree affirmed in 94
Fed. 885, 36 C. C. A. 533, which is re-
versed in 22 S. Ct. 102, 183 U. S. 263,
46 L. Ed. 190.

A provision in a bill of lading, contain-
ing an exception of damage from negli-
gent stowage, that the contract should
be governed by the law of the flag (Eng-
lish), is not enforceable in our courts,
being against the public policy of this
country. Decree 76 Fed. 582, affirmed in
Botany Worsted Mills v. Knott, 82 Fed.
471, 27 C. C. A. 326, affirmed in 21 S. Ct.
30, 179 U. S. 69. 45 L. Ed. 90.

6. Contracts limiting carrier's liability
for negligence. — The Kensington, 183 U.
S. 263, 46 L. Ed. 190, 22 S. Ct. 102; Knott
V. Botany Worsted Mills, 179 U. S. 69,
45 L. Ed. 90, 21 S. Ct. 30; Liverpool, etc.,
Co. V. Phenix Ins. Co., 129 U. S. 397, 32
L. Ed. 788, 9 S. Ct. 469; compare Com-
pania De Navigacion La Flecha v.
Brauer, 168 U. S. 104, 42 L. Ed. 398, 18
S. Ct. 12._

The validity of a stipulation exempting
a steamship company from liability for
negligence of its servants in the per-
formance of its voyage is to be governed
by the American law in a contract of
affreightment made in an American port
by an American shipper with an English
steamship company doing business here;
hence, since, by our law, such a stipula-
tion is not enforceable, the contract is
void. Liverpool, etc., Co. v. Phenix Ins.
Co., 129 U. S. 397, 32 L. Ed. 788. 9 S. Ct.
469; The Kensington, 183 U. S. 263, 46
L. Ed. 190, 22 S. Ct. 102.

7. Contract stipulating that it shall be



governed by laws of place where valid.

—The Kensington, 183 U. S. 263, 46 L.
Ed. 190, 22 S. Ct. 102. See Compania
De Navigacion La Flecha v. Brauer, 168
U. S. 104, 42 L. Ed. 398, 18 S. Ct. 12,
where the court refused to expressly de-
cide on this question.

A provision in the contract of a car-
rier with a passenger restricting the car-
rier's liability for negligence, to the pas-
senger, is contrary to the public policy
enforceable in our courts, and hence un-
enforceable; even though the passenger's
contract was made, and became binding
in a foreign country, and expressly stipu-
lated that the law of the foreign country
should control the contract. The Ken-
sington, 183 U. S. 263, 46 L. Ed. 190, 22
S. Ct. 102, discussing Knott v. Botany
Worsted Mills, 179 U. S. 69, 45 L. Ed. 90,
21 S. Ct. 30.

8. Effect of Harter Act.^The Kensing-
ton, 183 U. S. 263, 46 L. Ed. 190, 22 S.
Ct. 102; Knott v. Botany Worsted Mills,
179 U. S. 69. 45 L. Ed. 90, 21 S. Ct. 30.
See post, "Proceedings to Limit Liabil-
ity," §§ 4548-4576.

9. Construction generally. — Compania
De Navigacion La Flecha v. Brauer, 168
U. S. 104, 42 L. Ed. 398, 18 S. Ct. 12,
affirming 66 Fed. 776, 14 C. C. A. 88;
The Caledonia, 157 U. S. 124, 39 L. Ed.
644, 15 S. Ct. 537; The Majestic, 166 U.
S. 375, 41 L. Ed. 1039, 17 S. Ct. 597; The
Queen, 78 Fed. 155, affirmed in 94 Fed.
180, 36 C. C. A. 135, reversed in 21 S.
Ct. 278, 180 U. S. 49, 45 L. Ed. 419.

10. The Caledonia, 157 U. S. 124, -39 L.
Ed. 644, 15 S. Ct. 537.



4019 UMITATIONS OP LIABILITY. §§ 4451-4455

the detonators were shipped and handled in the usual way, and the explosion
was an unusual, and even unprecedented, occurrence. ^^

Preliminary Memorandum. — The bill of lading can alone be considered as
the contract between the parties, and can not be modified by a memorandum
which is preliminary merely; the same rule of construction would apply to the
memorandum as to the bill of lading.^^

Exceptions Omitted from Contract. — No exceptions of a private nature,
which is not contained in the contract itself can be engrafted upon it by impli-
cation or an excuse for its nonperformance. The carriers are responsible for the
miscarriage of their master and agent. ^^

Loss by Negligence. — Exemptions in bills of lading are not construed to
cover the negligence or default of the carrier, unless it is expressly stipulated
for.i-t

Unseaworthiness. — Clauses in a bill of lading exempting the owner from
the general obligation of furnishing a seaworthy vessel must be confined within
strict limits, and are not to be extended by latitudinarian construction or forced
implication, so as to comprehend a state of unseaworthiness, whether patent or
latent, existing at the commencement of the voyage. ^^

§§ 4452-4455. Operation and Effect Generally— § 4452. General
Rule. — Where stipulations in the nature of exceptions limiting the extent of the
obligation of the carrier, are inserted in the bill of lading of water carrier, the
bill of lading is evidence of the ordinary contract of affreightment, subject, of
course, to the exceptions specified in the instrument, ^*^ and the carrier is not
liable for loss or damage caused by the excepted perils.^'''

§ 4453. Partial Invalidity. — Though a stipulation for exemption from lia-
bility be in part in contravention of law, yet such portion as is otherwise valid
may be en forced. ^^

§ 4454. Right of Assignees.— Where goods are shipped by charterers un-
der bills of lading containing the clause, "All conditions as per charter party,"
the receivers of the cargo and indorsees of the bills of lading take the goods
subject to a charter exception of latent defects in the hull.^^

§ 4455. Loss from Negligence of Carrier or Servants. — Exemptions
in a bill of lading which are brought into operation by the negligence of the
shipowner or his servants are not enforceable in the courts of this country.^o
By the law of both England and America the ordinary contract of a common
carrier by sea involves an obligation to use due care and skill in navigating
the vessel and carrying the goods ; and an exception, in the bill of lading, of
specified perils, does not excuse him from that obligation, nor exempt him
from liability for loss or damage from one of those perils to which the neg-

11. Rule of ejusdem generis.— Decree S.,), 14 Wall. 579, 20 L. Ed. 779; Propel-
64 Fed. 878, reversed in The G. R. Booth, Icr Niagara v. Cordes (U. S.), 21 How. 7,
91 Fed. 164, 33 C. C. A. 430. 16 L. Ed. 41; Clark v. Barnwell (U. S.),

12. Preliminary memorandum. — The 12 How. 273, 13 L. Ed. 985; Rich v. Lam-
Caledonia. 157 U. S. 124, 39 L. Ed. 644, bert (U. S.), 12 How. 347, 13 L. Ed. 1017.
]5 S. Ct. 537. 17. Clark v. Barnwell (U. S.), 12 How.

13. Exceptions omitted from contract. 272, 13 L. Ed. 985; Rich v. Lambert (U.
— Howland v. Greenway (U. S.), 22 How. vS.), 12 How. 347, 13 L. Ed. 1017.

491, 16 L. Ed. 391. 18. Partial invalidity.— The Pru.ssia, 88

14. Loss by negligence. — Decree, 168 Fed. 531, decree affirmed in 93 Fed. 837,
Fed. 386, affirmed in The Toronto, 174 35 C. C. A. 625.

Fed. 632, 98 C. C. A. 386. 19. Right of assignees.— The Sandfield,

15. Unseaworthiness. — The Carib Prince, 79 Fed. 371, decree affiirmed in 92 Fed.
18 S. Ct. 753, 170 U. S. 655, 42 L. Ed. 663, 34 C. C. A. 612.

1181, reversing decree 68 Fed. 254, 15 C. 20. Loss from negligence of carrier or

C. A. 385. servants. — The Manitou, 116 Fed. 60, af-

16. General rule.— The Delaware (U. firmed in 127 Fed. 554, 63 C. C. A. 109.

4 Car— 58



§§ 4455-4457



CARRIERS.



4020



ligence of himself or his servants has contributed. ^^ Thus, stipulations against
loss by perils of the sea, dangers of the sea or navigation, etc.; against loss
by heating or heat;-^ against the risk of due refrigeration;-^ or a stipulation
that the shipment should be on deck at the owner's risk.-^ do not exempt from
liability for a loss from such cause to which the negligence of the ship owner or
his servants contributed.

§§ 4456-4479. Particular Exceptions— §§ 4456-4463. Perils of Sea,
Navig-ation, Lakes, Rivers, etc. — § 4456. In General. — "Perils of the sea"
in a ship's bill of lading denote natural accidents peculiar to that element,
which do not happen by the intervention of man, nor are to be prevented by
human prudence. A casus fortuitus was defined in the civil law to be, quod
damno falati contingit, cuivis diligentissimo possit contingere. It is a loss
happening in spite of all human efifort and sagacity. The words "perils of
the sea," may, indeed, have grown to have a broader signification than "the
act of God." -^ Generally speaking, the words have the same meaning in a
bill of lading as in a policy of insurance, although the effect of negligence of
the master or crew contributing to the loss by a peril of the sea may be differ-
ent on the two contracts.-*'

The term "dangers of lake navigation" includes all the ordinary perils
which attend navigation on the lakes, among which are dangers arising from
shallowness of w^ater at the entrance to harbors formed from them.-"

§ 4457. Damage by Sea "Water — Leakage. — Damage to cargo by sea
water is not necessarily damage by a peril or danger of the seas.-^ Damage to
cargo by sea water entering the hold around a loose rivet, which has been
fractured by perils of the sea, is a loss by perils of the sea within the excep-



21. Compania De Navigacion La Plecha
V. Brauer, 18 S. Ct. 12, 168 U. S. 104, 42
L. Ed. 398, affirming decree 66 Fed. 776,
14 C. C. A. 88.

After a barge had been loaded with a
cargo of wheat in January, and while. ly-
ing in the Chicago river, awaiting the
opening of lake navigation in the spring,
a drain pipe which passed through the



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