she was engaged at the time of chartering, the shipowner would not be excused.

If the ship is to be loaded at the place where she is lying, it does not appear to be settled whether the "voyage" may begin before she has commenced her transit, in such a sense that the exceptions may relate to risks during, or prior to, the loading.1

Where the exceptions relate to the whole of the charter-party, a failure of the shipowner to start for the loading port by an agreed date will be excused, if it was caused by an excepted peril. And so, also, of a failure to arrive by an agreed date.3

2

But this does not affect the right of the charterer, if any, to cancel the contract, in consequence of such a failure. That right remains; whether it arose under an express clause giving the charterer an option to cancel, should the ship not sail or not arrive, by an agreed date, or only by implication, from a stipulation that she should sail, or should arrive, before a given date.

4

5

It has been said that the clause of exceptions in the charter-party is introduced "for the benefit of the master, not of the merchant," and in Blight v. Page, Lord Kenyon held that the charterer was not

1 Crow v. Falk, 15 L. J. Q. B. 183; Bruce v. Nicolopulo, 24 L. J. Ex. 321; Barker v. M'Andrew, 34 L. J. C. P. 191; The Carron Park, L. R. 15 P. D. 203; Valente v. Gibbs, 28 L. J. C. P. 229; The Accomac, L. R. 15 P. D. 208. 2 Crookewit v. Fletcher, 26 L. J. Ex. 153, 159.

3 Harrison v. Garthorne, 26 L. T. 508.

Smith v. Dart, L. R. 14 Q. B. D. 105.

Crookewit v. Fletcher, 26 L. J. Ex. 153.

Touteng v. Hubbard, 3 B. & P. 298.

73 B. & P. 295n.

excused from providing a cargo where that had been prevented by a prohibition of the Russian Government, though the charter excepted restraints of princes and rulers during the voyage.

Perhaps, however, this depends upon the manner in which the clause is introduced. 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; and is well supported by authority. But where the charter-party is in the ordinary form of a mutual agreement, with the exception clause after the several clauses that relate to the voyage to the port of loading, the loading there, and the voyage to and delivery at the port of discharge (and not specially referring to any one of these,) it would seem that the exceptions are as applicable to the charterer's part, of loading and unloading, as they are to the shipowner's part of bringing the ship to the ports of loading and discharge, and safely delivering.

It is now a frequent practice to express that the ordinary risks are "mutually excepted;" and in such a case, at any rate, the exceptions protect the charterer as well as the shipowner.2

In construing in a charter-party the exceptions to the shipowner's liability, the rule is to be remembered, that where the words leave the intention in doubt, they are to be construed against the person

1 Sjoerds v. Luscombe, 16 East. 201; Storer v. Gordon, 3 M. & S. 308. 2 Bruce v. Nicolopulo, 24 L. J. Ex. 321; Carver p. 155 et seq.

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.

2

1 The Xantho, L. R 12 A. C. 503.

Taylor v. L'pool Great Western S. S. Co., L. R. 9 Q. 546.

3 The Rona, 31 L. T. 28; The Alexandra, 14 L. T. 712; Muddle r. Stride, 9 C. & P. 350.

Czech v. General Steam Nav. Co., L. R 3 C. P. 11; Taylor e 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

6

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.

Smith v. Shepherd, cited in McLach. on Sh. 499.

L. R. 1 C. P. D. 423; 45 L. J. C. P. 697.

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.'

Princes,

Rulers, or

People."

Insurrections,

If the government of the country to which the "Restraint of ship and cargo belong, should prohibit the exportation, or importation, of the particular commodities that compose the cargo, or by the terms of the con- Political tract 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.

disturbances,

ments.