was held that he had no right to call upon the master of the ship for a compensation (p). (1)

(p) Dunnage v. Jolliffe, before Lord Kenyon, Ch. J. at Guildhall, Sit. p. Mich. T. 1789.

(1) If the goods are on the arrival of the ship put on board of a lighter hired in the usual way, and the owner of them takes the custody of them before they are landed, the master is discharged. Therefore in an action on a policy of insurance, on a cargo of fish until safely landed, where it appeared that on the arrival of the ship at London, the goods insured were put on board a lighter hired in the usual way, and brought in the afternoon to a wharf belonging to the plaintiff, but in consequence of the roughness of the weather, could not be landed that evening, and the plaintiff told the lighterman that he need not stay to see the goods landed, for he, the plaintiff, would look to the landing himself; accordingly the lighterman left the cargo along side the wharf, and in the course of the night the lighter sunk without any neglect in any one; the Court held that the plaintiff had taken the goods into his possession, and was not entitled to recover. Strong v. Natally, 1 New Rep. 16..

CAUSES, WHICH EXCUSE THE MASTER, &c. 287

CHAPTER THE FOURTH.

OF THE CAUSES, WHICH EXCUSE THE

MASTER AND OWNERS.

1.

Ir

T has been already intimated (a) that a carrier is in general excused for a non-performance of the contract on his part, occasioned by any event falling within the meaning of the expression act of [249] God and the King's enemies. The expression

act of God denotes natural accidents, such as lightning, earthquake, and tempest; and not accidents arising from the fault or negligence of man (b); for which it has been already shewn that the master and owners, like other common carriers, are sometimes answerable, although no actual blame may be imputable to them; for in consider ing whether they, or other carriers, are chargeable for any particular loss, the question is, not whether the loss happened by reason of the negligence of the persons em ployed in the conveyance of the goods, but whether it was occasioned by any of those causes, which either actording to the general rules of law, or the particular contract of the parties, afford an excuse for the non-performance of the contract.

(a) In the preceding chapter,

sect. 2.

In the preamble to the statute, 26 Geo. 3. c. 86. the cases, in which the master and owners are exempted from responsibility, are expressed to be accidents by the King's

enemies, the perils of the sea, or the act of God.

(b) Trent & Mersey Navigation Company v. Wood, East. Term, 23 Geo. 3. in K. B. Forward v. Pit tard, 1. Ter. Rep. K. B. 27.

Thus in an action (c) brought against the master of a vessel navigating the rivers Ouse and Humber [250] from Selby to Hull, by a person whose goods had been wet and spoiled; at the trial whereof it appeared in evidence, that at the entrance of the harbour at Hull there was a bank, on which vessels used to lie in safety, but of which a part had been swept away by a great flood some short time before the misfortune in question, so that it had become perfectly steep instead. of shelving towards the river; that a few days after this flood a vessel sunk by getting on this bank, and her mast, which was carried away, was suffered to float in the riv

(c) Smith v. Shepherd. This cause was first tried at the summer assizes for Yorkshire, 1795, and the plaintiff non-suited; the judge being of opinion that no case of negligence was proved. The nonsuit was set aside by the Court of King's Bench, and a new trial granted, that the facts might be more fully inquired into. It was tried a second time at the lent assizes following. The account in the text is of the evidence given at the second trial, which differed in some particulars from that given at the first trial. In Easter term follow. ing, a new trial was moved for, but a rule to shew cause refused.

Several ship-owners, being greatly alarmed at the decision of this cause, petitioned Parliament for an alteration of the law on this subject: and a bill passed the House of Commons, enacting that no owner or master of any ships or vessels, employed in the navigation of the high seas, should be subject to answer for any loss or damage, which should happen to any goods on board by any accident whatever, unless the same should happen or arise "by or through the robbery, "embezzlement, secreting, or ma"king away with, or by or through

"the actual default, of the said "owner or owners, master, mariners, or other person or persons "employed in and on board of such "ships or vessels; any law, usage, "or custom to the contrary there"of in anywise notwithstanding." And that no owner or master of any ship or vessel employed in the navigation of the tideway of any river, and not employed in the navigation of the high seas, should be subject to answer for any loss or damage which should “happen or arise at "or below any port or place in "such tideway, where ships or "vessels employed in the coasting "trade, do or shall load or dis"charge by entry or sufferance;" to any goods on board, unless such loss or damage should happen or arise in the ways before-mentioned with respect to ships navigating the high seas.

But this Bill was rejected by the House of Lords.

This led to the alteration of the bill of lading mentioned before, part iii. chap. 2. sect. 3. and, I presume, also to the notice mentioned to have been given in the case of Ellis v. Turner & another, part ü. chap. 2. sect. 6:

ér tied to some part of the vessel and that the defendant upon sailing into the harbour struck against the mast, which, not giving way, forced the defendant's vessel towards the bank, where she struck and

would have remained safe, had the bank been in [251 ] its former situation, but on the tide ebbing her stern sunk into the water, and the goods were spoiled; upon which the defendant tendered evidence to shew that there had been no actual negligence: Mr. Justice Heath, before whom the cause was tried, rejected the evidence; and he further ruled that the act of God, which could excuse the defendant, must be immediate; but that this was too remote ; and directed the jury to find their verdict for the plaintiff; and they accordingly did so. The case was afterwards submitted to the consideration of the Court of King's Bench, who approved of the direction given by the learned judge at the trial, and the plaintiff succeeded in the cause. There does not appear to have existed in this case any bill of lading or other instrument of contract; and the question therefore depended upon general principles, and not upon the meaning of any particular words, or exception.

The only exception formerly made in the common bill of lading was of the perils of the sea, which 'words certainly denote the natural accidents peculiar to that element, and in no more than one instance have been held to extend to an event not attributable to natural causes. The several words lately introduced into the exception of the bill of lading (d) have not hitherto furnished matter for any judicial determination. In the

(d) See ch. 2.of this part, sect, S.

present chapter therefore I shall first consider [252] the meaning of this extensive phrase, perils of the sea, and then proceed to mention other excuses, which the wisdom of the legislature has introduced in very late times.

2. In considering this subject, the first question that presents itself to the mind of an English Lawyer, is, how is the question of peril of the sea to be decided? The particular manner in which a loss happens, must always be a question of fact, but admitting it to have happened in a particular manner, is the Judge, before whom a cause is tried, to pronounce whether that manner be a peril of the sea, or are the jury to declare it by their verdict? In general the construction of ambiguous expressions in written instruments is the proper province of the Judge; but in mercantile instruments it often happens that the Judge must have recourse to the usage of trade, and the practice among merchants, to obtain a proper knowledge of the meaning of the words. When the meaning of the words is ascertained, it will rarely happen that the Judge and jury can differ in the conclusion; and probably this question, although it might afford matter of speculation, will never become a subject of serious practical inquiry.

A very remarkable case to this purpose happened about the end of the reign of Charles the First. To an action of covenant on a charter-party, which contained

an exception of the perils of the sea, the defend[253] ant pleaded that the ship was taken by hostile persons unknown, armed in a warlike manner; and thereupon the question whether such a capture were within the exception, was brought before the court by a demurrer in the most strict technical form; the Court