2 Abbott on Shipping, pt. 3, ch. 4, § 1, 2, 5th ed.; 3 Kent, Comm. 216, 217; Park, Ins. ch. 3; Pickering v. Barclay, 2 Roll. Abr, 248; Barton v. Wolliford, Comberb. 56; 1 Phillips on Ins. ch. 13, § 7, p. 249.
3 Smith v. Scott, 4 Taunt. 126; 3 Kent, Comm. 230; Abbott on Shipping, pt. 3, ch. 4, § 5, 5th ed.; Buller v. Fisher, 3 Esp. 67; 1 Bell, Comm. p. 579-581.
4 Abbott on Shipping, pt. 3, ch. 3, § 9, 5th ed.; 1 Bell, Comm. § 501.
1 King v. Shepherd, 3 Story, 349, 356; Abbott on Shipping, pt. 3, ch. 4, § 3, p. 223, 5th ed.; Story on Bailm. § 528, 529.
2 Hazard v. New Eng. Marine Ins. Co., 1 Sumner, 218; 8 Peters, 557. A loss by worms eating in the bottom is not a peril of the sea, but a loss by ordinary wear and decay. Park, Ins. 23; Rohl v. Parr, 1 Esp. 445; Martin v. Salem Ins. Co., 2 Mass. 420. It was formerly supposed that the destruction of goods at sea by rats, when there is a cat on board, was within the exception. Garrigues v. Coxe, 1 Binn. 592. But see 3 Kent, Comm. 300, 301; Aymar v. Astor, G Cow. 266; Hunter v. Potts, 4 Camp. 204. But the later English cases hold that a loss by rats is not a loss by "perils of the seas:" Laveroni v. Drury, 8 Exch. 166; 16 Eng. Law & Eq. 510, and Bennett's note; nor within the still broader exception of "all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever:" Kay v. Wheeler, Law R. 2 C. P. 302 (1867).
3 Magnus v. Buttemer, 11 C. B. 876; 9 Eng. Law & Eq. 461, distinguishing Fletcher v. Inglis, 2 B. & Al. 315.
4 Montoya v. London Assurance Co., 6 Exch. 451; 4 Eng. Law & Eq. 500. And see Lawrence v. Aberdein, 5 B. & Al. 107; Gabay v. Lloyd, 3 B. & C. 793.
5 Chouteaux V. Leech, 18 Penn. St. 224; Bird v. Cromwell, 1 Mo. 81; Proneller Niagara v. Cordes, 21 How. 7; Soule v. Rodocanachi, Newb. 504; Rogers v. Murray, 3 Bosw. 357. But see Steamboat Lynx v. King, 12 Mo. 272.
§ 928. The general rule, in cases of insurance, is causa proxima non remota speetatur; and, therefore, although, during the carriage of goods, the carrier may have been guilty of negligence, which occasioned an injury to the goods, yet, if those goods be totally destroyed subsequently by storm, or be thrown over to lighten the vessel, the carrier would not be responsible for their loss. So, also, if the ship should be unseaworthy (which would ordinarily render the carrier responsible), but the loss should occur by capture, he would not be liable.2 So, where a canal boat was wrecked by an extraordinary flood, it was held, that the carrier was not responsible, although it appeared that on account of the lameness of one of his horses a delay was caused at the place where the accident happened.8 But this rule must be understood with the limitation that if the immediate cause would not have occasioned the loss, unless the common carrier had been guilty of negligence, he will not be absolved from liability; for no loss will be a loss by "perils of the sea," where it could have been avoided by proper diligence.4 "Where, therefore, goods are improperly stowed on deck, and are swept away by the sea, the carrier will be responsible, unless he can show that the loss would have occurred if the goods had been properly stowed.6 So,
1 Notara v. Henderson, Law R. 5 Q. B. 346 (1870).
2 Hastings v. Pepper, 11 Pick. 41; Bell v. Reed, 4 Binn. 127; Story on Bailm. § 514-516; King v. Shepherd, 3 Story, 356.
3 Morrison v. Davis, 20 Penn. St. 171.
4 Elliott v. Rossell, 10 Johns. 1; Kemp v. Coughtry, 11 Johns. 107; Smith v. Shepherd, cited in Abbott on Shipping, pt. 3, ch. 4, § 1; Hahn v. Corbett, 2 Bing. 205; Trent & Mersey Navigation Co. v. Wood, 3 Esp. 127; s. c. 4 Doug. 287; Siordet v. Hall, 4 Bing. 607; Coggs v. Bernard, 2 Ld. Raym. 909; Waters v. Merchants' Louisville Ins. Co., 11 Peters, 213; Hand v. Baynes, 4 Whart. 204; Crosby v. Fitch, 12 Conn. 410; Fletcher v. Inglis, 2B.& Al. 315; Kingsford v. Marshall, 8 Bing. 458; Potter v. Suffolk Ins. Co., 2 Sumner, 197; Hodgson v. Malcolm, 2 Bos. & Pul. N. R. 336; Colt v. M'Mechen, 6 Johns. 160; Bowman v. Teall, 23 Wend. 306; King v. Shepherd, 3 Story, 349. See Holladay v. Kennard, 12 Wall. 254 (1870); Railroad Co. p. Reeves, 10 Wall. 176.
5 Crane v. The Rebecca, 6 Am. Jur. 1, 15; 3 Kent, Comm. 206; Hastings v. Pepper, 11 Pick. 41; The Paragon, Ware, 324; Bell v. Reed, 4 where a steamboat on the Ohio River ran upon a rock and staved a hole in the bottom, it was held that the carrier could not absolve himself from responsibility by the exception "dan- gers of the sea," without showing that he had used proper skill and diligence, and that the accident was unavoidable.1 And unless the immediate cause of the loss be one which absolves the carrier from liability, he will be responsible, although the remote cause occasioning the loss be the irresistible act of God, or the king's enemies.2 Thus, if a vessel be wrecked in a storm, and stranded, and the wreckers, who come on board, steal any part of the cargo, the carrier is liable; for the immediate cause of the loss is theft, and not the perils of the seas.3
§ 929. "Dangers of the river" is also another phrase by which common carriers on water sometimes limit their responsibility; and it has received nearly the same definition from the court as "perils of the seas." 4 Some new causes of loss would, however, come under this term, not strictly "perils of the seas," - such as hidden obstructions in the river, newly placed, and not only not known to be there, but of such a character that human skill or foresight could not have discovered and avoided them.5 Again, the phrase "dangers of the seas, roads, and rivers," is sometimes introduced into bills of lading. By dangers of the roads is to be understood dangers of the sea-roads where ships lie at anchor, or such dangers of roads upon the land as overturning of carriages and the like, but not losses from thieves while the goods are in transit.1 The phrase "dangers and accidents of the seas and navigation" is construed to have a broader meaning than "perils of the seas;" - and where a vessel laden with goods arrived at London and was taken into dock to discharge, and for this purpose was fastened by tackle on one side to a loaded lighter outside of her, and on the other to a barge between her and the wharf, and in consequence of the breaking of the tackle she canted over and let in water through the port-holes, by which goods were damaged, the injury was held to be within the exception of the bill of lading.2 The exception "dangers of the rivers," in a bill of lading, has been held to excuse a carrier from loss by a collision of two vessels without the defendant's fault.3 So, of the term, "unavoidable dangers of the river navigation," 4 although it be caused by the carelessness of the other vessel.