of conversion.83 The effect of delay in causing a loss from an excepted peril must however be borne in mind, and is discussed in the following section.88

§1096. If the carrier's fault is a contributing cause of a loss, the carrier is liable.

An excepted peril whether excepted by implication of law or by an express provision of contract, affords no excuse if not the proximate cause of the loss in question. Therefore, a carrier whose negligence, deviation or other violation of duty directly contributes to the loss, will not be freed from liability because the loss ultimately was due to an excepted peril.84

The distinction in this respect between a contract of insurance, and a contract of carriage has been pointed out by Gray, J., of the Supreme Court of the United States.85 "Collision or stranding is, doubtless, a peril of the seas; and a policy of insurance against perils of the seas covers a loss by stranding or collision, although arising from the negligence of the master or crew, because the insurer assumes to indemnify the assured against losses from particular perils, and the assured does not warrant that his servants shall use due care to avoid them.86 But the ordinary contract of a

Co., 117 Miss. 646, 78 So. 577; Steinberg v. Erie R. Co., 103 N. Y. Misc 573, 170 N. Y. S. 893.

83 Ellis v. Turner, 8 T. R. 531; Hackett v. B. C. & M. Railroad, 35 N. H. 390.

83 As to the owner's liability for demurrage during delay, see Kansas City Southern Ry. Co. v. Ft. Smith Compress Co. (Ark.), 210 S. W. 147; Louisville & Nashville R. v. Camody (Ala. App.), 82 So. 648; Pittsburgh, C., C. & St. L. R. Co. v. Templeton, 210 Ill. App. 377; Northern Pacific Ry. Co. v. Pleasant River Granite Co., 116 Me. 496, 102 Atl. 298; Pennsylvania R. Co. v. Kittanning Iron & Steel Co. (Pa.), 106 Atl. 207.

84 Davis v. Garrett, 6 Bing. 716 (capture caused by deviation); James Morrison & Co., Lim., v. Shaw, etc.,

Co., [1916] 2 K. B. 783 (vessel torpedoed while deviating); Express Company v. Kountze, 8 Wall. 342, 19 L. Ed. 457 (taking a more dangerous route than necessary); Holladay v. Kennard, 12 Wall. 254, 20 L. Ed. 390; Dunn v. Currie, [1902] 2 K. B. 614 (negligently taking into a cargo goods liable to seizure); Harris v. Norfolk Southern R., 173 N. Car. 110, 91 S. E. 710 (lack of repair of warehouse); Porter Screen Mfg. Co. v. Central Vt. R., (Vt. 1917), 102 Atl. 44 (failing to protect shipment of lime from rising flood).

85 Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438, 32 L. Ed. 788, 9 Sup. Ct. 469.

88 Citing General Ins. Co. v. Sherwood, 14 How. 352, 364, 365, 14 L. Ed. 452; Orient Ins. Co. v. Adams, 123 U. S. 67, 73, 8 Sup. Ct. 68, 31 L. Ed.

carrier does involve an obligation on his part to use due care and skill in navigating the vessel and carrying the goods; and, as is everywhere held, an exception, in the bill of lading, of perils of the sea or other specified perils does not excuse him from that obligation or exempt him from liability for loss or damage from one of those perils, to which the negligence of himself or his servants has contributed." 87 Where, however, deviation, negligent delay or other wrong of the carrier, has no reasonable likelihood of increasing risk, the wrong seems merely a remote and not a directly contributing cause of a loss subsequently occurring from an excepted peril. Nevertheless some courts have held the carrier liable. The English court has thus explained the carrier's liability in case of deviation.88 "The principle underlying those judgments seems to be that the undertaking not to deviate has the effect of a condition, or a warranty in the sense in which the word is used in speaking of the warranty of seaworthiness, and, if that condition is not complied with, the failure to comply with it displaces the contract. It goes to the root of the contract, and its performance is a condition precedent to the right of the shipowner to put the contract in suit. It may be, no doubt, that, although that condition is broken, the circumstances are such as to give rise to an implied obligation on the part of the cargo owner to pay the shipowner the freight, and, it may be, to perform other stipulations which may be implied under the circumstances from the fact of the carriage of the cargo to its destination; but that is quite consistent with the effect of the deviation being to displace the special contract expressed in the bill of lading... therefore it is not necessary to trace the loss which has occurred to the deviation." 89 On the other hand,

63; Copeland v. New England Ins. Co., 2 Met. 432, 448-450.

87 Citing New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 12 L. Ed. 465; Express Co. v. Kountze, 8 Wall. 342, 19 L. Ed. 457; Transportation Co. v. Downer, 11 Wall. 129, 20 L. Ed. 160; Grill v. General Iron Screw Co., L. R. 1 C. P. 600,

and L. R. 3 C. P. 476; The Xantho, 12 App. Cas. 503, 510, 511.

88 In Joseph Thorley, Ltd., v. Orchis Steamship Co., Ltd., [1907] 1 K. B. 660, 667. See also James Morrison & Co., Lim., v. Shaw &c. Co., [1916] 2 K. B. 783.

89 On the same principle the English court has held that where goods are

"the United States Supreme Court and the courts of a number of the states hold that a delay in transportation which places the shipment in the track of an unprecedented flood is a remote and not a proximate cause of an injury to the shipment by the flood, and will not render the carrier liable for the later loss. Such courts base the exemption of the carrier from liability upon the ground that the delay was too remote and that the proximate cause of the injury, to wit, the destructive act of God, could not have been foreseen and provided against as a probable result of the negligent delay. In this view the carrier is held not liable even though the injury would not have occurred but for the previous delay in transportation which caused the shipment to be in the track of the flood." 90 Logically, it is somewhat difficult to

shipped at "owner's risk" (which is permissible in England), the carrier's contractual exemption from liability is forfeited if it ships the goods by a wrong route; Mallet v. Great Eastern R. Co., [1899] 1 Q. B. 309; or by freight train instead of passenger train as agreed. Gunyon v. South Eastern, etc., R. Co., [1915] 2 K. B. 370. So in Seaboard Air Line Ry. v. Mullin, 70 Fla. 450, 70 So. 467, 468 L. R. A. 1916 D. 982, the court said: "In Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Green-Wheeler Shoe Co. v. Chicago, etc., R. Co., 130 Iowa, 123, 106 N. W. 498, 5 L. R. A. (N. S.) 882; Bibb Broom Corn Co. v. Atchison, T. & S. F. R. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St. Rep. 361; Alabama Great Southern R. Co. v. Quarles, 145 Ala. 436, 40 So. 120, 5 L. R. A. (N. S.) 867, 117 Am. St. Rep. 54; Wald v. Pittsburg, C., C. & St. L. R. Co., 162 Ill. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332, and other somewhat similar cases-the courts hold that when there is a negligent delay by a common carrier in transporting goods, and subsequently before reaching destination the goods are injured by an act of God that could not reasonably have been foreseen at

the time of the negligent delay, the carrier is liable. 4 R. C. L., p. 722; Moore on Carriers, p. 371. Such holdings are presumably predicated upon the theory that the delay is a concurring and proximate cause of the loss or injury, or that because of the delay the law enlarges the liability of the common carrier by withdrawing the exemption from liability that usually exists when goods in transit are injured by an act of God."

90 Seaboard Air Line R. v. Mullin, 70 Fla. 450, 70 So. 467, L. R. A. 1916 D. 982, citing: Railroad Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U. S. 223, text 237, 11 Sup. Ct. 554, 35 L. Ed. 154; Empire State Cattle Co. v. Atchison, T. & S. F. Ry. Co. (C. C.), 135 Fed. 135; Scott v. Baltimore, etc., Steam-Boat Co. (C. C.), 19 Fed. 56; Daniels v. Ballantine, 23 Oh. St. 532, 13 Am. Rep. 264; Yazoo, etc., R. Co. v. Millsaps, 76 Miss. 855, 25 So. 672, 71 Am. St. Rep. 543; Herring v. Chesapeake, etc., R. Co., 101 Va. 778, 45 S. E. 322; Morrison v. Davis & Co., 20 Pa. 171, 57 Am. Dec. 695; Rodgers v. Missouri Pac. Ry. Co., 75 Kans. 222, 88 Pac. 885, 10 L. R. A. (N. S.) 658, 121 Am.

accept the English view that the carrier's breach of contract totally displaces the contract. It is to be observed also that this reasoning is applicable only to perils excepted by contract, not to exceptions given by law. The conclusions in a recent Florida decision, on the whole, seem sound: 91 "In determining the liability of common carriers for goods injured or lost in transit by an act of God, the true rule is that, in order to relieve the carrier from liability, the act of God must be one that could not have been foreseen, and must be the sole proximate cause of the loss or injury. But where the carrier is otherwise without fault, and its mere delay in transportation causes the goods to be where they are injured by an act of God, the carrier is liable only when the injury resulted from the delay by ordinary natural sequence, or where the injury is of a character that is within the probable consequences of the previous negligent delay of the carrier; for otherwise the carrier's liability would be extended to losses that it is not by law required to anticipate and provide against." "

St. Rep. 416; Sauter v. Atchison, T. & S. F. R. Co., 78 Kans. 331, 97 Pac. 434; Grier v. St. Louis Merchants' Bridge Terminal R. Co., 108 Mo. App. 565, 84 S. W. 158; Armstrong v. Illinois Central R. Co., 26 Okl. 352, 109 Pac. 216, 29 L. R. A. (N. S.) 671; Hunt v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ. App.), 74 S. W. 69; International & G. N. R. Co. v. Bergman (Tex. Civ. App.), 64 S. W. 999; Denny v. N. Y. Central R. Co., 13 Gray, 481, 74 Am. Dec. 645; Moffatt Commission Co. v. Union Pacific R. Co., 113 Mo. App. 544, 88 S. W. 117; Lamar Mfg. Co. v. St. Louis & S. F. R. Co., 117 Mo. App. 453, 93 S. W. 851; Lightfoot v. St. Louis, etc., R. Co., 126 Mo. App. 532, 104 S. W. 482; Extinguisher Co. v. Carolina, etc., R. Co., 137 N. C. 278, 49 S. E. 208. See also Hecht v. Boston Wharf Co., 220 Mass. 397, 107 N. E. 990, L. R. A. 1915 D. 725, 1917 A. Ann. Cas. 445; Toledo &c. Ry. v. S. J. Kibler & Bros. Co., 97 Ohio St. 262, 119 N. E. 733, certiorari denied 248

U. S. 569, 39 Sup. Ct. 10; Davis v. Central Vt. R., 66 Vt. 290, 29 Atl. 313, 44 Am. St. Rep. 852. Similarly a carrier was held not liable for loss of goods in its hands at their destination, caused by an unprecedented flood, though if the carrier had given prompt notice of their arrival to the consignee, they would have been removed. Hadba v. Baltimore &c. R., 183 N. Y. App. D. 555, 170 N. Y. S. 769.

91 Seaboard Air Line R. v. Mullin, 70 Fla. 450, 70 So. 467, L. R. A. 1916 D. 982.

92 Citing Merritt Creamery Co. v. Atchison, etc., R. Co., 139 Mo. App. 149, 122 S. W. 322, and adding, "As the injury to the goods in this case was directly caused by an admittedly unprecedented flood-an excusing act of God-to which injury the defendant did not directly contribute, and as such flood could not have been anticipated or the injury regarded as resulting by ordinary natural sequence, or as a natural and probable result of the

This is in substantial accord with the views expressed by the United States Supreme Court, and since the Carmack Amendment to the Interstate Commerce Acts the question, if it arises under an interstate shipment, must be decided according to the Federal rule.93 If the danger from natural causes, such as flood or tempest, was foreseeable there can be no doubt that the carrier is not excused if it fails to take reasonable precautions to guard against the danger.94

§ 1097. Obligations commonly assumed by shipowner. Common obligations assumed by a shipowner besides the warranties already considered94 are provisions in regard to the time of sailing or of arrival, or for loading and unloading. If the owner undertakes "to proceed to a safe port," and the port named by the charterer is either not safe when directions are given,95 or subsequently, before the arrival of the vessel, becomes unsafe, 96 the owner may refuse to proceed with the contract unless another port is named, and if the charterer will not name another, may recover freight. The situation is similar where a charterer entitled to name a port of destination does not do so within a reasonable time.98 If the contract gives a choice of ports, without clearly stating that

preceding delay in transit, the injury was not 'caused by' the defendant within the meaning of the law, and the defendant is not liable."

93 Continental Paper Bag Co. v. Maine Central R. Co., 115 Me. 449, 99 Atl. 259; Hadba v. Baltimore &c. R., 183 N. Y. App. D. 555, 170 N. Y. S. 769. See supra, § 1073.

94 Jonesboro, etc., R. Co. v. Dunavant, 117 Ark. 451, 174 S. W. 1187; National Rice Milling Co. v. New Orleans, etc., R. Co., 132 La. 615, 61 So. 708. Ann. Cas. 1914 D. 1099; Merritt Creamery Co. v. Atchison, etc., Ry. Co., 139 Mo. App. 149, 122 S. W. 322; Barnet v. New York Central, etc., R. Co., 167 N. Y. App. D. 738, 153 N. Y. Cent. 374; Ferguson v. Southern Ry. Co., 91 S. C. 61, 74 S. E. 129; International, etc., R. Co. v.

Bergman (Tex. Civ. App.), 64 S. W. 999. See further, 29 L. R. A. (N. S.) 671, and note 39 L. R. A. (N. S.) 639, and note, 1916 D. L. R. A. 974, and note.

94a Supra, §§ 1077 et seq.

95 The Alhambra, 6 Prob. D. 68. * The Teutonia, L. R. 4 P. C. 171, 181.

97 The Teutonia, L. R. 4 P. C. 171. 98 In Sieveking v. Maass, 6 E. & B. 670, the charter party provided that the charterer might name one of several alternative destinations, one of which was a safe port on the Firth of Forth. The charterer failed to exercise a choice within a reasonable time and the owner was held justified in exercising his judgment of what was most advantageous for the charterer and proceeding to the Firth of Forth.