"In a note to the case of Coggs v. Bernard, in the American edition of Smith's Leading Cases, 43 Law Lib. 180, the American decisions are collated and reviewed, and a definition is given to the expression 'act of God,' which expresses, I think, with precision, its true meaning. The true notion of the exception is there held to be, ' those losses that are occasioned exclusively by the violence of nature; by that kind of force of the elements which human ability could not have foreseen or prevented; such as lightning, tornadoes, sudden squalls of wind.' 'The principle that all human agency is to be excluded from creating or entering into the cause of mischief, in order that it may be deemed the act of God, shuts out those cases where the natural object in question is made a cause of mischief, solely by the act of the captain in bringing his vessel into that particular position where alone the carrier while on the way.1 Nor the explosion of a steam-boiler.2 But an extraordinary snow-storm or flood, delaying the transportation of goods, has been held to excuse the carrier,3 unless by his culpable negligence or unreasonable delay in the transportation he unnecessarily exposed the goods to the danger.4 So, if goods are thrown overboard in order to preserve the remainder of a cargo in a violent storm, it has been held to be a loss by the "act of God." 5
1 Merritt v. Earle, 29 N. Y. 115. And see Redpath v. Vaughan, 52 Barb. 498.
§ 923. In the next place, as to the meaning of the phrases "the king's enemies," "enemies of the State," or "public enemy," for losses by whom the carrier is not liable. These that natural object could cause mischief; rocks, shoals, currents, etc, are not, by their own nature and inherently, agents of mischief and causes of danger, as tempests, lightning, etc, are.'
"The act of God which excuses the carrier must, therefore, I think, be a direct and violent act of nature. The rule, it is insisted, is a harsh one upon the carrier, and it is argued that the court should be slow to extend it further than it is fully sustained by the cases. However harsh the rule may at first appear to be, it has been long established, and is well founded on maxims of public convenience; and viewing the carrier in the light of an insurer, it is of the utmost importance to him, as well as to the public who deal with him, that the acts for which he is to be excused should have a plain and well defined meaning. When it is understood that no act is within the exception, except such a violent act of nature as implies the entire exclusion of all human agency, the liabilities of the carrier are plainly marked out, and a standard is fixed by which the extent of the compensation to indemnify him for his risks can be readily measured and ascertained. The rule, too, when so understood, puts to rest many perplexing questions of fact, in the litigation of which the advantage is always on the side of the carrier. Under this rule the carrier is not permitted to go into proofs of care or diligence, and the owner of the goods is not required to adduce evidence of negligence till the loss in question is shown to be the immediate result of an extraordinary convulsion of nature, or of a direct visitation of the elements, against which the aids of science and skill are of no avail."
1 Wolf v. American Express Co., 43 Mo. 422; Wing v. New York & Erie Railroad Co., 1 Hilton, 235.
2 M'Call v. Brock, 5 Strob. 119; The Bark Edwin, 1 Sprague, 478; 24 How. 386; Caldwell v. N. J. Steamboat Co., 56 Barb. 426 (1870).
3 Ballentine v. North Missouri Railroad, 40 Mo. 491; Briddon v. Great Northern Railway Co., 28 Law J. (N. S.) Exch. 51; Denny v. New York Central Railroad Co., 13 Gray, 481; Morrison v. Davis, 20 Penn. St. 177; Wallace v. Clayton, 42 Ga. 443 (1871).
4 Read v. Spaulding, 5 Bosw. 396.
5 Price v. Hartshorn, 44 N. Y. 94 (1870).
§ 924. The term "king's enemies" means enemies of the sovereign of the carrier, whether that sovereign be a king, an emperor, or a reigning duke.3 Confederate armies have been held "public enemies" within this provision of the law, and not merely insurgents, thieves, or robbers.4
§ 925. A common carrier is not, however, responsible for losses arising from the ordinary wear and tear of transportation; or for deterioration in quantity or quality, arising from any inherent tendency in the goods to decay or damage, as for leakage and fermentation or rotting without his default;5 or for injury or damage resulting from the default of the owner, or shipper,6 such as defective packing. So, also, there are cases of great exigency, where the loss is occasioned by the act of the carrier, in which the law, in consideration of the necessity of the case, excuses him. Thus, if he make a jettison of goods, to lighten a ship or boat in danger of foundering, or to preserve life, he will not be responsible for the loss. But it would be otherwise if such jettison be made rashly, imprudently, and unnecessarily.1 Ordinarily he is bound to exercise the greatest caution, and to remedy any neglect of the bailor when he perceives it, and can by care obviate its ill consequences. Thus, if he knowingly allow a cask of liquor to leak away on the road, it is no excuse that the cask was leaky when it was given in his charge, if he could have prevented its leaking by care.2 But if the leakage arises from an imperfect bung in the cask, the carrier is not liable.8 It has been held that, if a dog be given him to carry with an insecure rope, and be thereby lost, he is liable, because he was bound to see that the rope was secure.4
1 Angell on Carriers, § 200; Story on Bailm. § 526; 1 Bell, Comm. p. 559; Abbott on Shipping, p. 386, and note; 3 Kent, Comm. 216, 299; Pickering v. Barclay, 2 Roll. Abr. 248; Morse v. Slue, 1 Vent. 190; Coggs v. Bernard, 2 Ld. Rayni. 909.
2 King v. Shepherd, 3 Story, 349; Lewis v. Ludwick, 6 Cold. 368; Porcher v. North Eastern Railroad Co., 14 Rich. 184. See Mauran v. Alliance Ins. Co., 6 Wall. 1.