Opinion of the Court.

We quite agree with Lord O'Hagan in Henderson v. Stevenson, that "when a company desires to impose special and most stringent terms upon its customers, in exoneration of its own liability, there is nothing unreasonable in requiring that those terms shall be distinctly declared and deliberately accepted." But while we hold that libellants were not subjected to these alleged conditions and limitations, and that, therefore, the Court of Appeals erred in its conclusion that each of them was limited in recovery to £10, a limitation which we must say does not strike us as exactly reasonable in view of the "twenty cubical feet" of luggage for each, which the company had expressly contracted to carry, the question still remains, on the doctrine of implied exceptions, whether the injury here was by the act of God, for which the company was not liable. The burden in this respect is on the carrier. Clark v. Barnwell, 12 How. 272; Transportation Company v. Downer, 11 Wall. 129; The Edwin I. Morrison, 153 U. S. 199; The Caledonia, 157 U. S. 124.

The act of God, said Chancellor Kent (vol. 2, p. 597), means "inevitable accident, without the intervention of man and public enemies"; and again (vol. 3, p. 216), that "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. A casus fortuitus was defined in the civil law to be, quod damno fatali contingit, cuivis diligentissimo possit contingere. It is a loss happening in spite of all human effort and sagacity." The words "perils of the sea" may, indeed, have grown to have a broader signification than "the act of God," but that is unimportant here.

Judge Shipman in the Court of Appeals quotes from 1 Parsons on Shipping, 255, the definition there given of the "act of God," and the reason for it, as follows: "The act of God' is limited, as we conceive, to causes in which no man has any agency whatever; because it was intended never to raise, in the case of the common carrier, the dangerous and difficult question whether he actually had any agency in causing the loss; for, if this were possible, he should be held."

We think it quite clear that the damage complained of can

Opinion of the Court.

not be held to have been the result of such inevitable accident. The evidence was wholly unsatisfactory as to any inspection of the porthole before the vessel left Liverpool. What the chief officer says in that regard, in answer to leading questions, is manifestly not of his own personal knowledge, but on the assumption that such inspection had taken place, because it should have, which could have been established, yet was not, by calling the person whose duty it was to make it. Whether the ports were properly closed when the vessel sailed was not made out, nor was any such inspection of the compartment, after she sailed, proven, as, if the ports were not properly closed, would have detected the fact. The two or three feet of water in the mail room, Orlop No. 3, was perhaps not more than might have been taken in during the first four or five days of the voyage, if the port were not securely fastened and partially open. As remarked by the District Judge, whether the covers to all of the ports in the mail room, where this baggage was placed, were screwed down tight, or whether some of them were left open for light or any other purpose, was not affirmatively shown. The theory of the defence was that the breaking of the port was caused by floating wreckage, and while that might possibly have been so, there was no evidence directly tending to establish it as a fact. If it had been shown that when the vessel sailed the ports were in proper condition and properly closed, and that this was their condition on the day before the accident was discovered, that would have presented a different question. The captain testified that the iron dummy was turned back in a way which could not have been done by the sea, but he admitted that his memory was treacherous, after the lapse of time; and the log stated that the port was broken "either by the sea or by wreckage," while the chief officer, who was on the bridge, as the captain was not, said that, between six and eight that morning, he saw only one large piece of wreckage, which was "a good sized piece of timber"; "on the port side; away from the ship."

And, as Judge Brown held, if the wreckage referred to was of a kind adequate to force open an iron cover properly constructed and firmly screwed down over the port, then it de

Statement of the Case.

volved upon the company to show why the ship did not steer away from the wreckage or slacken speed while passing through it; and this was not attempted. In our opinion the steamship company failed to show that the accident was one which could not have been prevented by human effort, sagacity and care, and we perceive no reasonable ground for disagreeing with the judgment of the District Court upon the facts.

The order of the Circuit Court of Appeals is reversed, and the decree of the District Court affirmed, with costs.

ST. LOUIS v. WESTERN UNION TELEGRAPH

COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 219. Argued March 18, 19, 1897. - Decided April 5, 1897.

Grayson v. Lynch, 163 U. S. 468, followed to the point that the special finding of facts referred to in the acts allowing parties to submit issues of fact in civil cases to be tried and determined by the court, is not a mere report of the evidence, but a finding of those ultimate facts, upon which the law must determine the rights of the parties; and, if the finding of facts be general, only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions, and in such case the bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury.

AN action was brought in the Circuit Court of the United States for the Eastern District of Missouri by the city of St. Louis, seeking to recover from the Western Union Telegraph Company the sum of five dollars per annum per pole for 1509 telegraph poles which the defendant maintained on the streets of that city between July 1, 1884 and July 1, 1887. The case was tried without a jury, and resulted, on June 17, 1889, in a judgment in favor of the defendant, the court holding that the burden imposed was a privilege or license tax, which the city had no authority to impose. A writ of error was sued out

Opinion of the Court.

of this court, where it was held that the municipal charge in question was not in the nature of a privilege or license tax, but was a rental charge for the permanent and exclusive appropriation of those spaces in the streets which are occupied by the telegraph poles. To the defence asserted by the telegraph company that by ordinance the city had contracted with defendant to permit the erection of these poles in consideration of the right of the city to occupy and use the top cross-arm of any pole for its own telegraph purposes, free of charge, it was replied by this court that there was nothing in the record to show that any of the poles were erected under or by virtue of the ordinance mentioned, and that, therefore, so far as the facts appeared there was simply a temporary matter of street regulation, and one subject to change at the pleasure of the city. But this court did not find it necessary to consider the matter of this ground of defence at length, as, on the new trial awarded, the facts in respect thereto could be more fully developed. It was further claimed by the telegraph company that the ordinance charging five dollars a pole per annum was unreasonable. But this court thought this question also should be passed for further investigation on the new trial. 148 U. S. 92.

Thereafter, in January, 1894, the second trial was proceeded with, a jury being waived, and resulted in a judgment in favor of the defendant. The present writ of error was then sued out from this court.

Mr. W. C. Marshall for plaintiff in error.

Mr. John F. Dillon and Mr. Eleneious Smith for defendant in error. Mr. George II. Fearons and Mr. Joseph Dickson were on their brief.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

We are urged in the argument for the plaintiff in error to convict the Circuit Court of error in holding that a contract existed between the city and telegraph company, which con

Opinion of the Court.

tract would be impaired by the ordinance imposing a charge upon the company for maintaining its poles upon the streets, and in holding that said ordinance was void because unreasonable and oppressive.

But, in the view that we take of this record, those questions are not presented for our determination. The case was tried by the court without a jury, and the record shows simply a general finding and a rendition of judgment in favor of the defendant. There is no special finding of facts, and therefore inquiry in this court must be limited to the sufficiency of the complaint, and the rulings, if any be preserved, on questions of law arising during the trial. In such cases a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury. Norris v. Jackson, 9 Wall. 125, 128; Lehnen v. Dickson, 148 U. S. 71.

When all the evidence had been adduced in the case the plaintiff asked the court to declare the law to be as follows:

"The court declares the law to be that, under the pleadings and evidence herein, ordinance No. 11,604" (which was the ordinance which granted the company the right to maintain its poles, upon condition that the city should occupy the top cross-bar free of charge), "is not a contract between the plaintiff and defendant, but is simply a municipal regulation, which the city has a right to change at any time it sees fit, and that ordinance No. 12,783 " (which was the ordinance imposing the charge of five dollars per pole annually) "is a valid ordinance regulation, and that the defendant is bound thereby."

"The court declares the law to be that upon the pleadings and evidence in this case ordinance, No. 12,733 is a valid ordinance and is not void as being unreasonable, oppressive or unjust."

"The court declares the law to be that upon the pleadings and evidence in this case the plaintiff is entitled to recover from the defendant the sum of $22,635, with interest thereon at the rate of six per cent from the 7th day of April, 1888." The refusal of the court so to hold was excepted to and is assigned for error. But these were rulings which involved a determination of facts, and as those facts are not found for