Redpath v. Vaughan

By the Court, Bockes, J. There can be no question as regards the law applicable to a common carrier. He is liable as an insurer of the property received by him for transportation, against all loss and damage happening thereto while under his control, unless occasioned by the act of God or the public enemy, or unless excused by special contract. As was said in Price v. Hartshorn, (44 Barb. 655,) with these exceptions the common carrier warrants the safe delivery of the property intrusted to'him against all contingencies. (See cases cited 44 Barb. 666.) The counsel for the appellant is therefore unquestionably correct in saying that the duty of the common carrier to transport and safely deliver is prima facie absolute; and that he can only be relieved from liability by establishing one or the other of the exceptions. And the burden of proof — 497 — to establish the exemption is on the defendant. Where, however, the facts are undisputed, the question of liability is one of law. In this case there can be, I think, no well grounded charge of negligence or improper conduct on the part of the defendants, causing the injury complained of. The evidence is clear and undisputed that the boat was in good condition—was in the safest position in the tow; and the tow was run at the usual speed* in the accustomed channel, and in all respects properly conducted. The obstruction which caused the injury was unquestionably of recent origin. Whatever it was, it had been there for only a brief period, having been carried and lodged in the channel by the action of the waters, and was wholly submerged.' By the contract between the parties (bill of lading,) the defendants were exempted from liability for loss and damage resulting from “ the dangers of the seas and fire.” That the injury in this case resulted from “ dangers of the seas” there can be, I think, no question. It occurred in navigable waters, and by reason of a hidden obstructions of recent origin not avoidable even with extraordinary care and foresight. It was held in Gordon v. Buchanan, (5 Yerger, 72,) that dangers of the seas, or, which is the same, perils of the sea, included a hidden obstruction in a river, newly placed there, and of a character which human skill and foresight could not discover or avoid.In Kingsford v. Marshall, (8 Bing. 458,) Tindall, Oh. J. says, that an injury done to a ship or goods therein, by settling on a hard substance at the bottom of a harbor is an injury oscasioned by the perils of the sea is beyond all doubt. Kent says, (3 Kent, 300,) that perils of the sea are all those natural perils and operations of the elements which occur without the intervention of human agency, and which the prudence of man could "not foresee, nor his strength resist. In Whitesides v. Russell, (8 Watts & Serg. — 498 — 44,) a steamboat ran upon a stone in the Ohio river, and thus a hole was knocked in her bottom. The court held the carrier liable, notwithstanding the clause in the bill of lading, dangers of the sea excepted; unless he could show that he was not negligent or in fault; thereby marking the exception from liability in such case, in the absence of negligence or wrongful act. Story says, (Story on Bailments, § 516,) that “ if a carrier ship should perish in consequence of striking against a rock or shallow, the circumstances under which that event took place must be ascertained, in order to decide whether it happened by a peril of the sea, or by the fault of the owner, carrier or master. If the situation of a rock or shallow is generally known and the ship is not forced upon it by adverse winds or tempests, the loss is to be imputed to the fault of the master. And it matters not, in such, case, whether the loss arises from his own rashness in not taking on a pilot, or from his own ignorance or unskillfulness. On the other hand, if a ship is forced upon a rock or shallow by adverse winds or tempests, or if the shallow is occasioned by a sudden and recent collection of sand in a place where ships before could sail with safety; or if the rock or shallow is not generally known; in all these cases the loss is to be attributed to the act of God, and it is deemed a peril of the sea.” In Merritt v. Earle, (29 N. Y. Rep. 115,) the injury was caused by running upon the mast of a sunken vessel standing several feet out of water, the vessel having been recently wrecked in a squall. The carrier was held liable. It was not denied that the loss was occasioned by a peril of the sea, but the question was whether it occurred by'the “ act of God,” and therefore a peril of the sea against which no one is to be held responsible, in the absence of an express contract. Judge Wright says : “ The law adjudges "the carrier responsible, irrespective of any question of negligence or fault on his part, if the — 499 — loss does not occur by the act of God or the public eneemies. With these exceptions, the carrier is an insurer against all losses.” He adds: “The expressions ‘ act of God’ and ‘ inevitable accident’ have sometimes been used in a similar sense and as equivalent terms. But there is a distinction. That may be an inevitable accident which no foresight or precaution of the carrier could prevent; but the phrase ‘act of God’ denotes natural accidents that could not happen by the intervention of man, as storms, lightnings and tempests.” How in the case at bar, the defendants, as carriers, were not responsible for any loss, or injury to the plaintiffs’ goods, occasioned by the “ act of God.” Against such a peril, there existed a general exemption from liability, by law. But there was a further exemption, by the contract, in this case. The defendants were not to be liable for any dangers (perils) of the sea. It was so stipulated in the bill of lading. The exemption, therefore, embraced those accidents incident to navigation, other than those denominated the act of God—all such as are designated perils of the sea. The injury occasioned to a vessel safely moored in harbor, by settling on a hard substance, was said to be an injury from a peril of the sea. (Per Tindall, Ch. J. Kingsford v. Marshall, supra.) The running upon a stone in the Ohio river was a peril of the sea. (Whiteside v. Russell, supra.) The mistaking of a light on entering a harbor, was a peril of the sea. (McArthur v. Sears, 21 Wend. 190.) Sp also the mast of a sunken vessel. (Merritt v. Earle, supra.) While these are perils of the sea, they are not to be denominated the act of God. Judge Cowen says, in McArthur v. Sears, (supra,) the words “perils of the sea ” are evidently of broader compass than the words “ act of God.” In Gordon v. Buchanan, (5 Yerg. 71,) Green, J. is reported as saying: “ The exception in this bill of lading, pf the dangers of the river, which are — 500 — unavoidable, narrows down the liability of the owner of the boat.” He adds: “ Many of the disasters which would not come within the definition of the act of God would, fall within the exception; such for instance as losses occasioned by hidden obstructions in the river, newly placed there, and of a character that human skill and foresight could not have discovered and avoided.” Judge Cowen remarks in McArthur v. Sears, (supra,) as follows: “ Mr. Justice Story seems to suppose that if an obstruction be secretly sunk in the stream, and not being known to the carrier, his boat founder, he would be excused. But the cases do not appear to sustain him, unless the obstruction were sunk by the act of God, or by a sudden and extraordinary flood.” It would seem then very plain, from these authorities, that the injury complained of in this case was occasioned by a peril of the sea, from which the defendants were expressly exempted by the terms of the bill of lading, Hatural causes, the action of the waters, had recently produced the danger where navigation could before be conducted with safety, and in so far as could be observed, could still be so pursued. This became a peril of the sea, and from such perils the defendants had contracted, for exemption. They had by contract restricted their liability, principally if not wholly, to acts of fault or negligence on their part. It is not urged that the case stands on any different grounds, for the reason that the contract, was between residents of Canada; this subject need not therefore be considered. I am clearly of the opinion that the nonsuit-was properly ordered. There was "no conflict of evidence requiring a submission of the case to the jury. The facts were wholly undisputed, and it was therefore for the court to declare the law upon them. — 501 — [St. Lawrence General Term, October 6, 1868. Nor was there any error in the admission, or rejection of evidence, affecting the merits. . The judgment appealed from, should be affirmed. Tames, Mosehrans, Potter and Boches, Justices.]