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for whose benefit they have been introduced. Their meaning is not to be extended to give him a protection for which he has not bargained in clear terms.
Thus, it is presumed, unless stated to the contrary, that he is to continue liable for negligent acts and defaults committed by himself or his servants or agents. General words therefore, excepting losses arising from a particular cause, do not protect him if that cause came into operation through such neglects or defaults.1
Ordinarily the burden of proving that a loss which has occurred has been due to an excepted cause, falls upon the shipowner who seeks to excuse himself. Thus, if there be a doubt whether damage to a cargo has arisen from bad stowage, or from excepted perils of the sea, the shipowner relying on the exception must prove that the perils of the sea caused it. And where it appears that two causes have contributed to the loss, one of which only is excepted, the shipowner must distinguish between the damage which was and was not due to that.3
But if a loss apparently falls within an exception, the burden of showing that the shipowner is not entitled to the benefit of the exception, on the ground of negligence, is upon the person so contending.
1 The Xantho, L. R. 12 A. C. 503.
* Taylor v. L'pool Great Western S. S. Co., L. R. 9 Q. B 546.
3 The Rona, 1 L. T. 28; The Alexandra, 14 L. T. 742; Muddle r. Stride, 9 3. & P. 350.
Czech v. General Steam Nav. Co., L. R 3 C. P. 14; Taylor v Liverpool & Great Western Steamship Co., L. R. 9 Q B. 516; P. & O. Co. v. Shand, 3 Moo. P. C. N. S 272; Craig v. Delargy, 16 Sc. L. R. 751; Williams v. Dobbie, 19 Sc. L. R 336. See per Lord Esher, M. R. in the case of the Glendarroch, 63 L. J. Ad. 89.
Act of God.
This exception designates the immediate operation of purely natural agents, such as lightning, earthquake, and tempest, exclusive altogether of human intervention, but is not so extensive as to comprehend what is merely inevitable.'
The "Act of God" when relied upon as a defence, must be the immediate cause of the loss and not remotely connected with it.2
This limitation of liability exists at common law in the case of all common carriers, without any express agreement to that effect. A loss caused by a sudden gust of wind is within the exception. A sudden failure of the wind under critical circumstances may be enough: as where a ship is tacking near rocks, or is under the influence of a current setting her on to the shore. But a loss caused by a mere accidental circumstance, as the tide lifting up a ship and pitching her on the rudder of another ship, is not within the exception.5
In Nugent v. Smith, the meaning of the term "Act of God" was for the first time judicially decided as to the degree of care to be applied by the carrier in order to entitle himself to the benefit of its protection. It was held "that in order to come within
1 Forward v. Pittard, 1 T. R. 27.
2 Smith v. Shepherd, cited in McLach. on Sh. 499.
Amies v. Stephens, 1 Str. 128; Oakley v. The Portsmouth & Ryde Steam Co., 25 L. J. Ex. 99; Kay on Sh. Vol. 1, 411.
Colt v. M'Mechen, 6 Johns 160; cited in Ang. on Car. s. 155.
the exception of loss by the 'Act of God' as applied to the liability of a common carrier, the loss need not have been caused directly and exclusively by such a direct and violent and sudden and irresistible act of nature as the carrier could not by any amount of ability foresee, or (if he could foresee it) could not by any amount of care and skill resist so as to.prevent its effect."
A loss is a loss by the "Act of God," if it is occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and a common carrier is entitled to immunity in respect of loss so occasioned, if the loss is occasioned partly by the "Act of God" as above defined and partly by some other cause, which if it had been the sole cause of the loss, would have furnished a defence. The carrier would be entitled to immunity in respect of such loss if he can show that it could not have been prevented by any amount of foresight, pains and care reasonably to be required of him.'
"Restraint of Rulers, or
If the government of the country to which the ship and cargo belong, should prohibit the exportation, or importation, of the particular commodities that compose the cargo, or by the terms of the contract are destined to compose it, performance being or impedithus rendered illegal by an authority to which both parties owe allegiance, damages for non-performance cannot be claimed by either. The common excep
1 See Story on Bail., s. 25.
tion of "the restraint of princes and rulers" applies only to the case of the master, unless it is expressly stipulated to be mutual.1
Where the contract is in the form of separate covenants, and the shipowner's covenant alone contains the exception clause, the construction that he only is to have the benefit of it seems necessary.
In Storer v. Gordon, a ship was chartered to deliver an outward cargo on payment of freight, and carry home cargo; the seizure of the outward cargo by the government before delivery was held to absolve the charterer from payment of freight, but not from the liability to load a return cargo.
For, if a merchant hires a ship to go to a foreign port, and convenants to furnish a lading there, a prohibition by the government of that country to export the intended articles neither dissolves the contract, nor absolutely excuses a non-performance of it.3
In the case of Smith v. The Rosario Nitrate Co., Ld., the vessel was prevented from being loaded at Iquique by reason of a civil war, owing to which the cargo of nitrate of soda could not be brought down in the customary way by railway from the mines to Iquique, and the vessel was delayed a considerable time before she could complete her lading. It was held in an action against the charterers that the de
Sjoerds v. Luscombe, 16 East. 201; Bruce v. Nicolopulo, 24 L.J. Ex. 321. 23 M. & S. 308.
3 Blight v. Page, 3 B. & P. 295n; Touteng v. Hubbard, 3 B. & P. 291. * L. R. (1893) 2 Q. B. 323; L. R. (1894) 1 Q. B. 174.
INSURRECTIONS, POLITICAL DISTURBANCES, &c. lay was covered by the exception of "restraint of princes, &c."
The restraint meant by this exception must be an actual and operative restraint, and not a merely expected and contingent one. With reference to any contracts which were fairly and lawfully made at the time, if from a change in the political relations and circumstances, they have become incapable of being any longer carried into effect, without derogating from the clear public duty which a British subject owes to his Sovereign, and the State of which he is a member, the non-performance of a contract in a State so circumstanced is not only excusable, but a matter of peremptory duty and obligation on the part of the subject. But in order to found this new public duty which is to supersede the performance of this former private one, it is necessary that an actual change in the political relations of the two countries should have taken place; and that the danger to result to the public interests of his own country from an observance of the contract, should be clear, immediate and certain.
In short such a State of circumstances must be shown to exist as that the contract is no longer capable of being performed by him without a criminal compromise of his public duty.'
Where a vessel, loading in New York for Fort Jefferson, in Florida, was chartered to bring a load of cedar timber from Bayport, Florida, to New York, the charter stating that she was loading for
Atkinson v. Ritchie, 10 East. 530.