"But if it be admitted that, in any case, the bursting of a boiler has proceeded from causes beyond human skill and vigilance, still the loss cannot be referred to the act of God. The steam-engine is of human invention, construction, and employment. Whoever uses this mechanical power must be responsible for its safety. If it be perilous, the more imperative must be such obligation. The carrier by steam power is, like any other carrier, liable for a master should rashly attempt to shoot a bridge during a violent storm, and his boat should be driven against one of the piers and destroyed, he would be liable, on account of his rashness.1 But the freezing up of a river or canal would be deemed to be "an act of God," so as to relieve the carrier of his responsibility for losses occasioned thereby, unless he were guilty of negligence, or want of proper forecast.2 Striking on an unknown snag in the usual channel of a river has sometimes been considered as "an act of God" so as to excuse the carrier: 3 but this construction has not met with entire approbation.4 loss which may arise from spontaneous combustion, or which may be extended to his vessel from the shore, when it may be impossible to remove the vessel from danger. These are losses apparently beyond prevention, at least as much as any possible accident to a boiler. Yet for them the carrier is liable; because, though the peril, when encountered, could not be resisted, it may possibly have been foreseen and avoided. Fire is a risk incident to a carrier's employment. No distinction can be made in regard to the causes from which the fire may originate. If such distinction were admitted, it could, with less reason, be applied in favor of the carrier for losses occurring by the propelling power of the boat, than for other losses by fire, more certainly beyond his power to prevent. It is not unjust nor harsh that he should be liable for losses, incident to the means of transportation he employs, on the same principle and to the same extent as other carriers, using a different motive power. If a vessel founders at sea, without stress of weather, the presumption is that it was not sea-worthy; and if the causes of an explosion are left in obscurity, the presumption must be, that the boiler was insufficient, or that it was exploded through misconduct or negligence."
1 So a carrier is liable for an injury to goods by an ordinary rain, while being taken from the cars to the express wagon and office of the defendants. Klauber v. American Express Co., 21 Wis. 21 (1866).
2 Plaisted v. B. & K. Steam Nav. Co., 27 Me. 132; Mershon v. Hoben-eack, 2 Zab. 372.
1 Story on Bailm. § 492; Amies v. Stevens, 1 Str. 128. See Clark v. Barnwell, 12 How. 272.
2 Story on Bailm. § 492; Richards v. Gilbert, 5 Day, 415; Angell on Carriers, § 160; Lowe v. Moss, 12 I11. 477. See also Worth v. Edmonds, 52 Barb. 40; West v. Steamboat Berlin, 3 Iowa, 532.
3 Smyrl v. Niolon, 2 Bailey, 421; Williams v. Grant, 1 Conn. 487; Faulkner v. Wright, Rice, 107. See Collier v. Valentine, 11 Mo. 299.
4 Friend v. Woods, 6 Gratt. 189. In this case Daniel, J., said: "Among the strongest authorities cited in behalf of the plaintiffs in error, are the cases of Smyrl v. Niolon, 2 Bailey, 421, and Williams v. Grant, 1 Conn. 487. In the former it was held, that a loss occasioned by a boat's running on an unknown 'snag' in the usual channel of the river, is referable to the act of God, and that the carrier will be excused; and in the latter it was said, that striking upon a rock in the sea, not generally known to navigators, and actually not known to the master of the ship, is the act of God. And other authorities go so far as to assert, that if an obstruction be secretly sunk in the stream, and not being known to the carrier, his boat founder, he would be excused.
§ 922. Running upon the mast of a sunken vessel has been held not an act of God.1 Nor a freezing of goods left out by phrases are understood to apply to nations with whom there is open war, and to pirates, who are considered as at war with all mankind.1 But they do not include robbers and thieves, or rioters and insurgents, whatever be their violence.2
The last proposition stands condemned by the leading cases, both English and American. In the case of Forward v. Pittard, 1 T. R. 27. Lord Mansfield says, that, 'to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such an accident as could not happen by the intervention of man, as storms, lightning, and tempests.' The same doctrine is strongly stated in McArthur v. Sears, 21 Wend. 196, where it is said, that' no matter what degree of prudence may be exercised by the carrier and his servants; although the delusion by which it is baffled, or the force by which it is overcome, be inevitable; yet if it be the result of human means, the carrier is responsible.'
"These cases clearly restrict the excuse of the carrier for losses occasioned by obstructions in the stream, to such obstructions as are wholly the result of natural causes. And the cases in which the carriers have been exonerated from losses occasioned by such obstructions, as Smyrl v. Niolon, and Williams v. Grant, before mentioned, will, I think, upon examination, be found to be cases in which cither the bills of lading contained the exception ' of the perils of the river,' or in which that exception has been confounded with the exception of the 'act of God.' In the case of McArthur v. Sears, a distinction between the two phrases is pointed out. It is shown that the exception of * dangers or perils of the sea or river,' often contained in bills of lading, are of much broader compass than the words 'act of God;' and the case of Gordon v. Buchanan, 5 Yerg. 71, is cited with approbation, in which it is said, that 'many of the disasters which would not come within the definition of the act of God would fall within the former exception; such, for instance, as losses occasioned by hidden obstructions in the river newly placed there, and of a character that human skill and foresight could not have discovered and avoided.