CHAPTER XVI. EXCEPTIONS CONTINUED FREEZING - FROM WHATEVER CAUSE HEAT-SUFFOCATION— FERMENTATION — INJURIOUS EFFECT OF OTHER GOODS-DANGEROUS GOODSINSUFFICIENT STOWAGE-JETTISON. "Freezing," § 234. Freezing after delay, § 235. Freezing after delay by preceding "From whatever cause," § 238. risk,” § 239. 66 "Injurious effect of other goods”— Liability under the clause "where ship "Heat"-" Suffocation"- "Fermen- "Jettison"-definition, § 247. tation," §§ 240, 241. Jettison-effect of negligence, § 248. Heat, etc., the result of defective Liability for deck load, §§ 249, 250. stowage, § 242. § 234. THE addition of the exception, "freezing," relieves the carrier from losses occurring except through his own negligence or negligent delay. Thus, where a bill of lading provided that "the company would not hold itself liable at all for injury to any article of freight during the course of transportation occasioned by the weather," and in addition the words "general release" were written upon it, the import of which was explained to be that the carrier was released from all loss and damage happening to the shipment, and where it appeared from the evidence that though the goods were delicate fruits, and were to be carried for a long distance in the dead of winter, they were nevertheless stowed by the carrier in an ordinary box-car into which the cold and snow entered, and when it was shown that fruits packed in this manner would freeze in ordinary winter weather; it was held that the carrier's liability was not discharged by the bill of lading.' The pecu 'Merchants' Dispatch and Trans. Co. v. Comforth, 3 Col. 280. liarity of the New York law which permits even negligence to be excepted is seen in a case in which the exact reverse of this doctrine is authoritatively stated. In Nicholas v. New York Central, etc., R. R. Co.,' the contract contained a release from liability for "damage to perishable property of all kinds occasioned by delays from any cause or change of weather. . . . heat or cold," and the carrier was held not to be liable for the freezing of the goods (fruit trees), though it occurred through his own negligence, since the release contemplated a complete exemption and the law permitted it. The general rule, however, is that the freezing of perishable articles is not, when it might have been prevented by the exercise of due diligence and care on his part, such an intervention of vis major as excuses the carrier. Here, too, as has been noted with respect to other exceptions, the question of what will amount to such negligence as should take the case out of the exception is to be determined according to the circumstances of each case. Where potatoes were being transferred across the North River by a carrier in unusually severe weather, stowed on deck as was usual, and were frozen, it was held that it was no defence that such stowage would ordinarily have been sufficient protection, or that it would have cost defendants more money to have put them below deck. "The intensity of the cold," it was said, "created also the obligation of additional vigilance and what was usual was not the consideration. What was necessary was the true criterion." 3 235. The carrier is liable for the value of goods frozen after negligent delay. So where the bill of lading read "not accountable for freezing," and "to be delivered without delay," and the goods were delayed and frozen, the carrier was held liable." The delay must, however, be unreasonable and unnecessary. The circumstances of the case and the average period of 1 4 Hun, 327. 2 Wolf v. American Express Co., 43 Mo. 421; Read v. St. Louis, Kansas City, etc., R. R. Co., 60 Mo. 199. 3 Wing v. New York and Erie R. R. Co., 1 Hilton, N. Y. 235; see Vail v. Pacific R. R. Co., 63 Mo. 230. 4 Whicher v. Steamboat Ewing, 21 Iowa, 240; Pittsburgh, Ft. W. & C. R. R. Co. v. Hazen, 84 Ill. 36; Armentrout v. St. L., K. C. & N. R. R. Co., 1 Mo. App. 158. transportation at the time in question, are to be considered. Thus, where apples were shipped from Vandalia to Minneapolis by way of Chicago and were seven days in reaching the latter place, the defendant showed that at the time of the shipment its tracks and depot at Chicago had just been destroyed by the great fire; that the company was giving preference to relief goods which they were carrying to sufferers from the fire at Chicago and that the average time for the carriage of other goods at this time was about ten days. It was held that this was not such a delay as would render the carrier liable for the freezing of the goods.' § 236. An interesting question arises when the negligent delay has occurred on the route of one of two or more connecting carriers, but the loss of goods by freezing takes place when the goods are in the hands of a subsequent carrier. Clearly the later carrier, if free from blame, cannot be held liable, but can the prior carrier? This was the question which was discussed in Michigan Central R. R. Co. v. Curtis. Here it is decided affirmatively: "They did not have the right," say the court, referring to the carriers, "to delay unreasonably the delivery of the trees until they would inevitably be destroyed in the hands of the next carrier and then be heard to say that they were destroyed in the hands of the company into whose hands they passed them for ultimate delivery. If they were guilty of such negligence they thus rendered themselves liable, no matter in whose hands the trees were overtaken and destroyed by the frost, if the injury was the natural and proximate result of their acts." 237. A somewhat different construction of the law was at almost the same time given in the neighboring State of Michigan. Here it was insisted upon by the court that a direct connection between the delay and the subsequent freezing must be shown to render the negligent carrier liable. The reasoning of the court is worthy of consideration. "The only breach of 1 Michigan Central R. R. Co. v. Burrows, 33 Mich. 6; Burroughs v. Grand Trunk R. Co., 34 N. W. Rep. 875. 2 80 Ill. 324. 3 Michigan Central R. R. Co. v. Burrows, 33 Mich. 6. this agreement complained of was the failure to deliver within a reasonable time. Are then the damages claimed the natural and proximate consequences of such breach? We think not. To be so, the loss must be immediately connected with the supposed cause of it. The loss in this case might or might not have occurred, even had there been no delay. If, in the ordinary course of events, a certain result usually follows from a given cause, then we may well consider the immediate relation of the one to the other established. Cold, freezing weather does not, however, in the ordinary course of events follow from mere delay. Such is not the natural and direct result of delay. It is true that in certain climates and at certain seasons such an injury would be much more likely to result from delay, while at others there would be not even a possibility of such a result following. It is very evident, therefore, that as we approach the one or the other, we enter upon debatable ground, where it would be very difficult, if not, indeed, impossible to say what the result of a given delay would be. Where fruit is to be carried a long distance, especially in such a country as this, where the climate is so changeable, it would as frequently result that delay would be the cause of averting such injury as of contributing to it. It may be true, that had there been no delay whatever on the part of the defendant, the loss would not have occurred. The law, however, cannot enter upon an examination or inquiry into all the concurring circumstances which may have assisted in producing the injury and without which it would not have occurred. To do so would not only be to involve the whole matter in utter uncertainty, for when once we leave the direct and go to seeking after remote causes, we have entered upon an unending sea of uncertainty and any conclusion which should be reached would depend more upon conjecture than upon facts." 238. The expression "From whatever cause,' was defined by Mr. Justice HOGEBOOM,, in Smith v. New York Central Railroad Company,' in respect to the carriage of a person in charge of live-stock upon a stock-pass containing this phrase, in the following language: "There are risks incident to the transaction to which this clause might naturally and properly apply; risks from the stock themselves; risks from detentions along the way; risks from the necessity of moving about the cars for the purpose of feeding and taking care of the stock; risks from the increased difficulties and perils of operating a train of cars heavily encumbered with live stock; risks incident to the management of every railroad train, and inherent in the very nature of the business, and not always possible to be avoided, even by the exercise of the utmost precaution. Against such risks we may well conclude the parties intended to contract; but to assume that the passenger intended to issue a license for misconduct, or pay a premium for negligence, is more than I am willing to believe." The effect of this phrase seems, therefore, but little different from that of the other general expressions of release elsewhere considered, as "owners' risk," "general release," "unavoidable accident," etc. It will not exempt from the consequences of negligence. In Oxley v. St. Louis, etc., Railroad Company' the bill of lading for the shipment of twenty-one mules and one horse, stipulated that the carrier should not be liable for loss by escape or "from any cause whatsoever." The car door was not fastened by the carrier's agent, as the shipper requested, and one mule escaped. The carrier was held to be liable for the escape, since his negligence had caused or had co-operated in causing it. In Hawkins v. Great Western Railroad Company, the exceptions included "all risks of loss, injury, damage, and other contingencies in loading, unloading, conveyance, and otherwise," but these, it was said, did not include an injury caused by the bottom of the car in which the animals were dropping out, and the carrier was held liable. In Louisville, etc., R. Co. v. Oden,3 a stipulation in a bill of lading exempting the company frotn loss or damage "by fire or other casualty," was held to be good, except as against losses from the negligence of the company's agents or servants. § 239. The presumption in every contract for carriage by water, is that the goods shall be stowed below decks. Said 165 Mo. 629; S. & N. A. R. R. Co. v. Henlein, 56 Ala. 368. But see Ill. Cent. R. R. Co. v. Hall, 58 Ill. 409. 2 17 Mich. 57. |