Questions arising from losses or injuries by perils of the sea, come up between the owner and the insurer, and these questions will be treated of in the chapter on Insurance. They are also presented for determination between the owner of the ship and the freighter, or shipper of the goods. The owner in the bill of lading which he gives, stipulates to carry the goods safely, and deliver them in good condition, "perils of the sea excepted." If therefore a loss occurs which cannot be attributed to perils of the sea, the owner is responsible therefor to the shipper; but if it is so attributable, the loss rests with the shipper. It therefore becomes important to determine what are perils of the sea, and for this we must look to the law-merchant.
The meaning and reason of the rule thus defining the responsibility of the owner, are obviously this. The owner should be held to take all due care of the goods in his charge, so long as they remain in his charge. It follows, therefore, that the general definition of perils of the sea, must mean all those maritime dangers or disasters which may befall the goods, and which ordinary care and precaution cannot prevent. (a)
(y) See The Isabella Jacobina, 4 Rob. Adm. 77.
(z) It seems to be held in England, by the Court of Admiralty, that the capture of the vessel and the unlivery of the cargo terminates the contract of affreightment. The Racehorse, 3 Rob. Adm. 101; The Martha, id. 106, n.; The Hoffnung, 6 id. 281; The Louisa, 1 Dods. 317; The Wilelmina Eleonora, 3 Rob.
Adm. 284. See, however, the judgment of the court in Beale v. Thompson, 3 B.&P. 428; Bergstrom v. Mills, 3 Esp. 36; Moor-son v. Greaves, 2 Camp. 627. In The Nathaniel Hooper, 8 Sumner, 542, 666, Mr. Justice Story made an elaborate review of the cases decided in the English Admiralty, and held that they could not be considered as authority in this country. See also Spafford v. Dodge, 14 Mass. 66.
* These perils are those which arise from extraordinary violence by the wind, or the sea, wreck, stranding, or capture, by public enemy or by pirates. (aa)
The vessel must, in the first place, be entirely seaworthy in all respects and particulars, and properly navigated; and it is not so seaworthy or so navigated, unless it is competent to encounter or avoid the ordinary perils of the voyage.
In one sense, the action of the sea need not be extraordinary to bring a loss within the perils of the sea; as, if the ship be wrecked by a current, which the master did not know, and could not justly be regarded as bound to know, this would be a loss by a peril of the sea, although not in itself extraordinary. Whether fire, as between the owner and the shipper, is a peril of the sea may not be certain; but we think that it is not, and that the carrier would by the common law be responsible, although fire was not caused by the negligence of the master or seamen. (b) But now, by statute both in England (c) and in this country, (d) a carrier is not liable for an accidental fire happening to or on board of a vessel. The act of 1851 does not apply to any canal boat, barge, or lighter, or to any vessel of any description whatsoever, used in river or inland navigation. (e) And it has been held, that a vessel on Lake Erie, bound from Buffalo to Detroit, enrolled and licensed for the coasting trade, and engaged in navigation and commerce, as a common carrier, between ports and places in different States, upon the lakes and navigable waters connecting the same, is not a vessel used in inland navigation. (f) The statute does not exonerate the ship for a loss by fire after the goods are on the wharf, but before they are delivered. (g)
The destruction of a ship by worms, would not be generally a "peril of the sea," excusing the owner, because it must be known
(a) Sch. Reeside, 2 Sumner, 667, and cases passim.
(aa) Gage v. Tirrell, 9 Allen. 290.
(b) Morewood v. Pollok, 1 Ellis & B. 748; N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 344; Garrison v. Memphis Ins. Co. 19 How. 812.
(c) 26 Geo. 8, c. 86; Morewood v. Potlok, 1 Ellis & B. 748.
(d) 1851, c. 43, 9 U. S. Stats, at Large, 686.
(e) Id. § 7.
(f) Moore v. American Transp. Co. 6 Mich. 368, 24 How. 1.
(g) Salmon Falls Co. v. Bark Tangier, 21 Law Rep. 6; The Ship Middlesex, id 14.
when and where this mischief is likely to occur, and then and there a ship should be protected against it; as this is generally possible by adequate precautions. (h) So we should say the owner should be responsible for damage caused by rats (i) or other vermin. These are the principles applied in marine insurance, and would apply equally as between owner and shipper.
So, too, the owner would not be responsible, if without the fault of the master the goods were damaged by actual contact with seawater; (j) or if, a part of the cargo being so damaged, vapor and gases arising from it injured another portion. (k)
Damage caused by any form of wreck, as by the ship sinking or stranding, although generally a peril of the sea, would not be one, and therefore would not excuse the owner, if it were the master's wilful fault. If the total loss of the vessel be inferred by a presumption of law, from the lapse of a reasonable time without her being heard from, it will be a part of this presumption that she perished through a peril of the sea. (l) But collision (to be treated of in next sub-section) arising from the negligence of the crew is not a peril of the sea within the exception in a bill of lading. (ll)