of the seas, have contributed to the production of the disaster.1

In an early case the law was thus laid down: "If the situation of the rock or shoal be generally known and the ship be not forced upon it by adverse winds or tempests, the loss is to be imputed to the fault of the master." So where a boat upon the Ohio river ran upon a stone and knocked a hole in her hull, it was held, that in order to bring the case within the exception "dangers of the river," it was incumbent on the carrier to show that due diligence and proper skill had been used to avoid the accident. The question of the existence of negligence is,

however, always for the jury.

§ 276. It is not, however, sufficient to show merely the exist ence of a peril of the sea. It must be shown that the sea peril not only existed and that it was the cause of loss, but that it was a necessary cause of loss."

Thus where a master attempted to enter a port in a thick fog and wrecked his vessel, there being no necessity for his making the attempt at that time, this was not a peril of the seas. So, also, where a vessel about to sink from the effects of bad weather puts into an intermediate port and the master sells the ship and cargo without a necessity for so doing, this is not within the exception. Where there was doubt as to whether a collision was attributable to the master's neglect or

Spence v. Daggett, 2 Vt. 92; Williams v. Branson, 1 Murph. (N. C.) 417; Jones v. Pitcher, 3 St. & P. (Ala.) 135; Bazin v. Steamship Co., 3 Wall., Jr. 229.

2 Williams v. Branson, 1 Murph. N. C. 417.

3 Whitesides v. Russell, 8 W. & S. (Pa.) 44. It would seem, from some of the cases, that negligence is to be imputed where the carrier runs his vessel against a known rock. Collier v. Valentine, 11 Mo. 299; Fergusson v. Brent. 12 Md. 9; Williams v. Grant, 1 Conn. 487; Fletcher v. Inglis, 2 B. & Ald. 315; Tumey v. Wil

son, 7 Yerg. (Tenn.) 340; The Keokuk, 1 Biss. 522; Van Horn v. Taylor, 2 La. Ann. Rep. 587; The Ocean Wave, 3 Biss. 317; Gordon v. Buchanan, 5 Yerg. (Tenn.) 71.

4 Gordon v. Buchanan, 5 Yerg. (Tenn.) 71; March v. Blyth, 1 N. & M. 170; McClure v. Hammond, 1 Bay 99; Humphreys v. Reed, 6 Whart. (Pa.) 435.

5 The Compta, 4 Sawy. 375; Speyer v. The Mary Belle Roberts, 2 Sawy. 1; The Costa Rica, 3 Sawyer, 538; Cannan v. Meaburn, 1 Bing. 243. 6 The Costa Rica, 3 Sawyer, 538. 7 Cannan v. Meaburn, 1 Bing. 243.

to causes beyond his control, the loss was held to fall within the excepted perils.'

§ 277. Where the bill of lading declares that the goods are to be stowed on deck and excepts "perils of the sea," the circumstances of the case are to be carefully considered. Says Mr. Justice CURTIS in Lawrence v. Minturn: "The question is not what under other circumstances, would be deemed a peril of the sea, but what is to be deemed such when operating on this vessel with this deck load." In this case the jettison of the deck load was held to be justifiable.

§ 278. Where the goods have been damaged by water, it is the duty of the carrier to prevent further injury,3 if necessary by opening the packages and drying the goods, and where through an unquestioned sea peril, bilge water slowly entered the cabin • where was a box of books and the carrier had ample time to remove them to a place of safety, it was held that he could not take shelter from his liability to answer for his negligence in not preserving the goods under this exception.5 In general it

may be said that the rules in the cases of the act of God and negligence concurring as causes of loss, apply with equal force to the exception, peril of the sea, when modified by the negli gence of the carrier.

1 Buller v. Fisher, Abbot on Shipping, p. 289, tenth Am. ed.

2 17 How. 100, 112. See also Hand

v. Baynes, 4 Whart. (Pa.) 204.

Bird v. Cromwell, 1 Mo. 58.

224.

Chouteaux v. Leach, 18 Pa. St.

5 Steamboat Company v. Bason, Harp. (S. C.) 262.

213

CHAPTER XIX.

EXCEPTIONS CONTINUED-LOSS OF PERISHABLE GOODS-LOSS BY INHERENT DEFECT-BY DETERIORATION-BY DECAY.

Carriers are not liable for loss which is | Carrier's duty is measured by the cirthe result of the "inherent nature of

the goods" shipped, § 279. "Perishable goods," § 280. "Inherent defect-deterioration-decay,” §§ 281, 282.

Exception does not relieve from negligence, §§ 283, 284.

cumstances of each case, § 285. Master's duty to open packages, § 286. Master's duty in regard to the sale of

injured goods, § 287.

Master should communicate with the owners, § 288.

Right of a carrier by land to sell perishable goods, § 289.

§ 279. "INJURY to perishable goods," "loss by inherent defect," "loss by deterioration," "loss by decay" and similar expressions usually found among the printed exceptions of the bill of lading are not to be considered as limiting in a material degree the carrier's original liability.

66

At the common law the carrier could not be held for such loss as was the result of the nature, vice, or defect inherent in the goods carried and in no sense the result of his own negligence. Says Mr. Justice STORY in his treatise on Bailments: Although the rule is laid down in general terms at the common law that the carrier is responsible for all losses not occasioned by the act of God, or of the king's enemies; yet it is to be understood in all cases that the rule does not cover any losses not within the exception, which arise from the ordinary wear and tear and chafing of the goods in the course of their transportation, or from their ordinary loss, deterioration in quantity or quality in the course of the voyage, or from their inherent natural infirmity and tendency to damage. Thus, for example, the carrier is not liable for any loss or damage from the ordinary decay or deterioration of oranges or other fruits in the course of the voyage from their inherent infirmity or

nature, or from the ordinary diminution or evaporation of
liquids, or the ordinary leakage from the casks in which the
liquors are
put, in the course of the voyage, or from the spon-
taneous combustion of goods or their tendency to effervesce."
§ 280. Of the exceptions under consideration, the phrase
"perishable goods" is perhaps the least broad in its application.
In an Illinois case, perishable property is defined as "that which
from its nature decays in a short space of time, without refer-
ence to the care it receives." "Of that character," it was said,
are most varieties of fruits, some kinds of liquors, and
numerous vegetable productions." Merchantable corn was held
not to be within the exception.

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§ 281. The other phrases, however, are more liberally construed, as indeed is the common law rule. Thus, a cargo of hemp could not, under the most liberal construction of the phrase, be termed perishable property, yet where the destruction of the hemp by fire was shown to have been caused by selfignition, the carrier was held to be discharged at common law.3 So where potatoes were shipped at Hamburg, to be delivered in New York and the evidence showed that they were in bad condition when shipped, the vessel was not held liable for their loss. Where the plaintiff loaded heavy machinery upon a platformcar and blocked its wheels with insufficient blocking, insecurely nailed, by reason whereof the machinery, while being transported, broke from its fastening and was injured, without fault of the defendant in the running of the train or the maintenance of the track, it was held that the defendants were not liable, even though their servants saw the fastening and noticed their insufficiency before the injury was done."

§ 282. This class of exceptions will include ullage, or the quantity of liquid a cask, on being gauged, lacks of being full." Hence, in Warden v. Green, where the action was for the value of a large quantity of molasses lost because of the expansion of

Story on Bailments, § 492, a.

2 Illinois, etc., R. R. Co. v. Me-
Clellan, 54 Ill. 58.

Boyd v. Dubois, 3 Camp. 133.
The Ship Howard v. Wissman, 18
How. 231.

5 Ross v. R. R. Co., 49 Vt. 364.

6 Angell on Carriers, § 211.

6 Watts (Pa.), 424. The loss is here incorrectly attributed to the act of God.

the goods caused by the warm weather and because of the insufficiency of the casks, the carrier was discharged. So in Nelson v. Woodruff,' where the goods were lard in casks and the loss was occasioned by the melting of the lard on a voyage to a Southern port, the loss was held to be within the common law exceptions. Where the loss has been occasioned by secret defects in the casks, boxes, or packages containing the goods, the carrier is not liable.2

§ 283. The exoneration of the exceptions under consideration does not, however, extend to a loss to which the carrier's own negligent act, or misconduct has contributed. The decay of fruit or grain, though ordinarily within the exceptions,3 will not excuse the carrier if he has failed to secure proper ventilation for the goods and the loss of meat will not be within the relief of the exception "decay" in the event of the failure of the carrier to provide sufficient ice to keep it during the voyage." In Lewis v. The Ship Success, where a ship, loaded to an average depth with grain for New Orleans, was delayed sixty-seven days by an unusually low stage of the water of the Mississippi River and on arrival the grain was found much damaged, it was held that though the general principle was, where the damage proceeded from the nature of the property whether in any situation whatever, or only in the confinement of the ship, that the ship-owners were liable, that this did not apply where there had been want of due diligence in ventilating and caring for the grain during the detention.

§ 284. In "The Ship Invincible," wine had been shipped from New York to San Francisco and by reason of the omission of the carrier's servants to provide proper and necessary ventilation, had been, in part at least, injured on the journey. The language of the Court was as follows: "I think it clear

11 Black, 156.

2 Hudson v. Baxendale, 2 Hurl & N. 575; Nelson v. Woodruff, supra; Warden v. Green, ib.

3 Story on Bailments, § 492 a; The Brig Collenberg, 1 Black, 170; Acatos v. Burns, 47 L. J. (N. S.) Q. B. 566 ; The Norway, 12 L. T. (N. S.) 57.

4 Davidson v. Gwynne, 12 East. 381; The America, 8 Ben. 491; The Collenberg, supra.

5 Sherman v. Inman S. S. Co., 26 Hun (N. Y.), 107.

618 La. Ann. Rep. 1.
7 3 Sawyer, 176.