3 Russell v. Niemann, 17 C. B. (N. S.) 163 (1864).
4 Philadelphia, etc, R. R. Co. v. Harper, 29 Md. 330; Lewis v. Ludwick, 6 Cold. 368; Express Co. v. Kountze Brothers, 8 Wall. 342.
5 Warden v. Greer, 6 Watts, 425; Leech v. Baldwin, 5 ib. 446. See Clark v. Barnwell, 12 How. 272; Brown v. Clayton, 12 Ga. 568. See also Nelson v. Woodruff, 1 Black, 156; The Brig Collenberg, ib. 170; Ship Howard v. Wissman, 18 How. 231; Porterfield v. Humphreys, 8 Humph. 497; Powell p. Mills, 37 Miss. 691.
6 Story on Bailm. § 492, 493; 3 Kent, Comm. 299-301; Hastings v. Pepper, 11 Pick. 41; Whalley v. Wray, 3 Esp. 74; Brind v. Dale', 8 C. & P. 207; Gabay v. Lloyd, 3 B. & C. 793; Lawrence v. Aberdein, 5 B. & Al. 107; Stokes v. Saltonstall, 13 Peters, 181; Hawkes v. Smith, Car. & Marsh. 72.
§ 926. A carrier is not liable for loss from an inherent defect or vice in the article carried, if it be not caused or aggravated by his negligence;5 and it is upon this principle that an action cannot be maintained against a carrier for the escape or injury of live stock where the escape or injury is entirely attributable to the efforts and exertions of the animal.6
1 Mouse's Case, 12 Co. 63; Smith v. Wright, 1 Caines, 43; 2 Kent, Comm. 604; Jones on Bailm. 107, 108; Story on Bailm. § 575; Bird v. Astcock, 2 Bulst. 280; 2 Roll. Abr. 567; Bancroft's Case, cited in Kenrig v. Eggleston, Aleyn, 93.
2 Beck v. Evans, 16 East, 244. But see Chevaillier v. Patton, 10 Tex. 344.
3 Hudson v. Baxendale, 2 H. & N. 575.
4 Stuart v. Crawley, 2 Stark. 324. In a late English case, Stuart v. Crawley was examined and distinguished. In that case a valuable greyhound was delivered by its owner to the servants of a railway company, who were not common carriers of dogs, to be carried, and the fare demanded was paid. At the time of delivery the greyhound had on a leathern collar with a strap attached to it. In the course of the journey, it being necessary to remove the greyhound from one train to another which had not then come up, it was fastened by means of the strap and collar to an iron spout on the open platform of one of the company's stations, and while so fastened it slipped its head from the collar, and ran upon the line and was killed. Held, that the fastening the greyhound by the means furnished by the owner himself, which at the time appeared to be sufficient, was no evidence of negligence on the part of the company. Richardson v. North Eastern Railway Co., Law R. 7 C. P. 75 (1872).
5 Story on Bailments, § 492 a.
6 Blower v. Great Western Railway Co., Law R. 7 C. P. 655 (1872); Kendal v. London & Southwestern Railway Co., Law R. 7 Ex. 373 (1872); come to the ship when she is not on the high seas; but only to robberies by pirates.1 Nor does it include injury done to a vessel by worms.2 So, if a vessel in the ordinary course of her voyage, being moored in harbor, float when the tide is in, but take the ground when the tide is low, and thereby become strained, this is not a loss by the peril of the sea, as there was nothing fortuitous or accidental.3 But a loss indirectly caused by the peril of the sea, if growing necessarily out of it, may come within the rule. Thus, where a vessel carrying hides and tobacco shipped much sea-water, whereby the hides were rendered putrid and emitted a fetid odor which injured the tobacco, but the water itself did not touch the tobacco, the loss was, nevertheless, held to be by the perils of the sea.4 So, also, although leakage through stress of weather comes within the exception of perils of the sea, yet there may be cases where it would be incumbent on the carrier to dry goods so wet, if he could do so without great inconvenience; 5 and he has no right to insist upon carrying the goods through, when injured, against the wishes of the owner, merely for the purpose of earning his whole freight.1
§ 927. In cases of carriage by sea, the bills of lading often contain an exception of responsibility for losses arising from "perils of the sea." 1 This term, which would naturally include only dangers arising immediately from the sea, and peculiar to it, has been construed to include within it captures by pirates;2 losses by collision, where there is no blame;3 and all injuries and damages resulting to goods from the effect of storms and tempests upon the ship.4 A common carrier would not, therefore, be responsible for such injuries and losses. But this term does not include losses by embezzlement, theft, or robbery, by persons who are on board the vessel, or who
Rixford v. Smith, 52 N. H. 355 (1872); Lake Shore & Mich. So. R. Co. p. Perkins, 25 Mich. 329 (1872); Illinois Cent. R. Co. v. Hall, 58 I11. 409 (1871); Smith v. New Haven, etc. R. Co., 12 Allen, 531; Bissell v. New York Cent. R. Co., 35 N. Y. 442; Crazin v. New York Cent. R. Co., 51 N. Y. 61 (1872). See Carr v. Lancashire & Y. Railway Co., 7 Ex. 707.
1 In The Schooner Reeside, 2 Sumner, 571, where bales of carpeting sent by the vessel were damaged by the leaking of a number of casks of oil, Mr. Justice Story says: "The only remaining question, then, is whether the damage to the goods in this case has been occasioned by the danger of the seas, for there is no dispute as to the fact of the actual damage. I am not satisfied that there was any bad stowage in this case; though it does appear to me that, considering the nature of the principal cargo (two hundred barrels of oil), it would have been very fit and proper to have stowed the carpeting in a more prudent manner, in some other part of the vessel. I cannot attribute the damage in this case to any danger of the seas. It seems to me that the weather was not worse than what must ordinarily be expected to be encountered in such a voyage; and the rolling of the vessel by a cross sea is an ordinary incident to every voyage upon the sea. The phrase 'danger of the seas,' whether understood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element; or whether understood in its more extended sense, as including inevitable accidents upon that element, must still, in either case, be clearly understood to include only such losses as are of an extraordinary nature, or arise from some irresistible force, or some overwhelming power, which cannot be guarded against by the ordinary exertions of human skill and prudence." Elliott v. Rossell, 10 Johns. 1.