[IN THE COURT OF APPEAL.] NUGENT v. SMITH. Common Carrier-Liability of Shipowner-Act of God. The defendant, a common carrier by sea from London to Aberdeen, received from the plaintiff a mare to be carried to Aberdeen for hire. In the course of the voyage the ship encountered rough weather, and the mare received such injuries that she died. The jury found that the injuries were caused partly by more than ordinary bad weather, and partly by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence of the defendant's servants: Held, reversing the decision of the Court below, that the defendant was not liable for the death of the mare. The carrier does not insure against the irresistible act of nature, nor against defects in the thing carried itself; and if he can shew that either the act of nature or the defect of the thing itself, or both taken together, formed the sole direct and irresistible cause of the loss, he is discharged. In order to shew that the cause of the loss was irresistible it is not necessary to prove that it was absolutely impossible for the carrier to prevent it, but it is sufficient to prove that by no reasonable precaution under the circumstances could it have been prevented. Per Cockburn, C.J.: A shipowner, who is not a common carrier, is not subject to the liability of a common carrier-i.e. does not insure the goods bailed to him for carriage. The question what amounts to an "act of God" within the meaning of that expression, as applied to the carrier's exemption, discussed. APPEAL from the decision of the Court of Common Pleas, reported ante, p. 19, where the facts are set forth. Jan. 24, 25. Benjamin, Q.C., and Holl (with them Douglas Walker), for the defendant. The carrier by sea does not insure against all perils of the sea, but only against those to which the act of man contributes. If the goods are lost by an operation of nature, to which no act of man contributes, the loss is by the act of God, and falls within the well-recognised exception to the liability of a carrier as insurer. Damage to the goods by leakage and such like ordinary incidents of sea transit, are matters against which man can provide, and consequently are not the act of God; but an unusually violent storm is. The reason generally given for the onerous nature of the carrier's duty is the danger of collusion, but 1876 May 29. 1876 NUGENT v. SMITH. that does not apply to losses by the operation of nature not contributed to by the act of man. If the carrier is guilty of any neglect to provide against the operations of nature, then the loss ceases to be by the act of God, for human agency has contributed. But in the present case the jury have found that there was no negligence. It is contended that so far as the protection of the goods against the act of God is concerned, the duty of the carrier is only to use due diligence, and the onus is on the plaintiff of shewing the absence of such diligence. Here the plaintiff has failed to sustain that onus; the damage was partly caused by the inherent nature of the animal itself, and partly by the act of God. The carrier is clearly not answerable for a loss occasioned either by an inherent quality of the thing itself or by the act of God. [They cited Forward v. Pittard (1); Trent Navigation Co. v. Wood (2); Story on Bailments, s. 511; Taylor v. Dunbar (3); Angell on Carriers, p. 154; Colt v. McMechen (4); Nicholls v. Marsland (5); Kendall v. London and South Western Ry. Co. (6); Blower v. Great Western Ry. Co. (7); Parsons on Shipping, vol. 1, p. 253; Amies v. Stevens (8); McArthur v. Sears (9); Jones on Bailments, p. 103; Lloyd v. Guibert. (10)] Cohen, Q.C., and Lanyon, for the plaintiff. The definition of the term "act of God" for which the defendant contends is incorrect so far as concerns the law of carriers. It is not every natural cause to which no act of man has contributed, or against which no diligence could provide, that constitutes an act of God. A storm somewhat more violent than usual is not, within the definition, an act of God. To constitute such there must be something extraordinarily violent, sudden, and overwhelming; something that admits of no time for human intervention between itself and the damage caused. The rule as to carriers is derived from the Roman law, which was not, at any rate in terms, applicable to the case of carriers by land, but of ships navigated by their owners. The foundation of it is not the danger of collusion, as suggested, but the difficulty, where (1) 1 T. R. 27. (2) 4 Doug. 287; 3 Esp. 127. (4) 6 Johns. (N.Y.) 160. (5) Law Rep. 10 Ex. 255. (6) Law Rep. 7 Ex. 373. (9) 21 Wendell, 190. (10) Law Rep. 1 Q. B. 115. the ship was navigated by the shipowner and his servants, of proving negligence. Therefore, the only exception to the liability of the carrier by sea was when the damage was occasioned by a cause so violent and immediate in its nature and results as that no question of negligence could arise. It must be something about which there could be no doubt and dispute as to its being the sole cause. The intention was to avoid all doubtful and complex questions as to how far the diligence of the shipowner could have prevented the result of the operation of nature, with respect to which the person whose goods were carried would be at a great disadvantage. Here the operation of nature was not so extraordinary and violent as properly to be called the act of God, and the result did not follow so immediately upon it as to preclude all question of human intervention. Taking the definition suggested by the other side, there was abundance of human intervention in this case. [They cited Lavaroni v. Drury (1) ; Kay v. Wheeler (2); Smith v. Shepherd (3); Oakley v. Portsmouth and Ryde Steam Packet Co. (4); Riley v. Horne (5); Laurence v. Aberdein (6); Gabay v. Lloyd (7); Kent's Commentaries, vol. ii. 8th ed. pp. 784, 785.] Benjamin, Q.C., in reply. Cur. adv. vult. May 29. The following judgments were delivered : COCKBURN, C.J. This case involves a question of considerable importance as regards the law relating to carriers by sea, but the facts are few and simple. The plaintiff, being the owner of two horses, and having occasion to send them from London to Aberdeen, shipped them on board a steamship belonging to the company of which the defendant is the representative, plying regularly as a general ship between the two ports. The horses were shipped without any bill of lading. In the course of the voyage a storm of more than ordinary violence arose; and partly from the rolling of the vessel in the heavy sea, partly from strug 1876 NUGENT v. SMITH. 1876 NUGENT v. SMITH. gling caused by excessive fright, one of the animals, a mare, received injuries from which she died. It is to recover damages in respect of her loss that this action is brought. The jury, in answer to a question specifically put to them, have expressly negatived any want of due care on the part of the defendant, either in taking proper measures beforehand to protect the horses from the effects of tempestuous weather, or in doing all that could be done to save them from the consequences of it after it had come on. A further question put to the jury was, whether there were any known means, though not ordinarily used in the conveyance of horses by people of ordinary care and skill, by which the defendant could have prevented the injury to the mare, but to this question the jury returned no answer. The question is, whether, on this state of facts, the shipowners are liable. For the defendant, it was insisted that the storm, which was the primary, and in a partial degree the proximate, cause of the loss, must be taken to have been an "act of God" within the legal meaning of that term, so as, all due care having been taken to convey the mare safely, to afford immunity to the defendant's company as carriers from liability in respect of the loss complained of; and the question to be determined is, whether this contention is well founded. The judgment of the Common Pleas Division in favour of the plaintiff, as delivered by Mr. Justice Brett, involves, if I rightly understand it, the following propositions: 1. That the Roman law relating to bailments has been adopted by our Courts as part of the common law of England; 2. That, by the Roman law, the owners of all ships, whether common carriers or not, are equally liable for loss by inevitable accident; 3. That such is the rule of English law as derived from the Roman law, and as evidenced by English authorities; 4. That, to bring the cause of damage or loss within the meaning of the term "act of God," so as to give immunity to the carrier, the damage or loss in question must have been caused directly and exclusively by such a direct and violent and sudden and irresistible act of Nature as the defendant could not, by any amount of ability, foresee would happen, or, if he could foresee that it would happen, he could not by any amount of care and skill resist, so as to prevent its effect; 5. That, notwithstanding the inability of the jury to agree to an answer to the fifth question left to them, the defendant has in this case failed to satisfy the burden of proof cast upon him, so as to bring himself clearly within the definition, as it is impossible to say that no human ability could foresee the reasonable probability of the happening of rough weather on the voyage, and that a horse at sea might be frightened by it, or that no human ability could prevent injury to a frightened horse in such weather as occurred. In no part of this reasoning am I able to concur. But before I proceed to deal with it, I must observe that, as the vessel by which the mare was shipped was one of a line of steamers plying habitually between given ports and carrying the goods of all comers as a general ship, and as from this it necessarily follows that the owners were common carriers, it was altogether unnecessary to the decision of the present case to determine the question so elaborately discussed in the judgment of Mr. Justice Brett as to the liability of the owner of a ship, not being a general ship, but one hired to carry a specific cargo on a particular voyage, to make good loss or damage arising from inevitable accident. The question being, however, one of considerable importance-though its importance is materially lessened by the general practice of ascertaining and limiting the liability of the shipowner by charterparty or bill of lading and the question not having before presented itself for judicial decision, I think it right to express my dissent from the reasoning of the Court below, the more so as, for the opinion thus expressed, I not only fail to discover any authority whatever, but find all jurists who treat of this form of bailment carefully distinguishing between the common carrier and the private ship. Parsons, a writer of considerable authority on this subject, defines a common carrier to be "one who offers to carry goods for any person between certain termini and on a certain route." "He is bound to carry for all who tender to him goods and the price of carriage, and insures these goods against all loss but that arising from the act of God or the public enemy, and has a lien on the goods for the price of the carriage." "If either of these elements is wanting, we say the carrier is not a common carrier, either by land or by water." "If we are right in this," he adds, "no vessel will be a common carrier that does not ply regularly, alone or in 1876 NUGENT v. SMITH. |