« AnteriorContinuar »
bill of lading or in a charter party the effective cause by sea was liable for loss or damage to goods, except
by a leakage caused by rats guawing a hole in the botFor the purpose of regularity in business, and in tom of the vessel. The goods were not carried under order that people may know what their liabilities are, any bill of lading, and it was beld that by the commou and wbat they are undertaking, it seems to me that law the hoyman was not excused on the ground of we must revert back to the old rule, and say that any act of God. The larger exception to the carrier's wbere the effective cause of a loss under a charter- liability contained in the exception of perils of the party or a bill of lading is the damage to the cargo by seas or accidents and dangers of the seas has sprung rats that is not a peril excepted, and where the rats, up gradually since the reign of Queen Elizabeth, no by being the effective cause, let in the sea, this letting | such provision being found in the forms of charterin of the sea is not a cause at all. It is the effect of parties or of bills of lading given in West's Symboleowhat was done by the rats, and the rats were the effec- graphie, but being known apparently in the reign of tive cause.
Charles 1. See Pickering v. Burkley, 1 Style, 132; I cannot therefore agree with the judgment, and I Mors v. Slew, 3 Keb. 73; and Barton v. Wolliford, 3 am of opinion that it must be overruled.
Comb. 56. The cargo in the present case was carried BOWEN, L. J. The judgment I am about to read is under a bill of lading containing the pow familiar ex. the judgment of my Brother Fry and myself.
ception, and we have to consider accordingly whether This was an action brought against the owners of a a carrier who would not be excused by the common sbip to recover damages for sea injury to the cargo law for loss due to leakage caused by rats, can find caused by a leakage of which rats were the authors. protection under the express term “accident or dauThe defendants' ship had been chartered by the plain- ger of the sea.” tiffs to proceed to Akyab and there load a cargo of The exact deinition of the term "dangers or acci: rice for Liverpool. The excepted perils in the charter dents of the sea,” or of the cognate expression party were the act of God, and all and every other “perils' of the sea, which latter name is only the dangers and accidents of the seas, rivers, and steam Latinised equivalent for "dangers," has been the navigation of whatsoever nature and kind and errors subject of perpetual discussion both in England and of navigation during the voyage, and the tenor of the America. On the one side it has been sought to conbills of lading was the same. It appeared that the fine it to calamities which occur only through the riodamage was caused during the voyage to Liverpool, lence of the elements (esc marina tempestatis discrimine) after the ship had left Akyab, by sea water passing or (to use the language of Marshall, vol. 2, p. 487, part through a hole in a metal pipe connected with a bath- I, ch. 12, $ 1), “such as arise from stress of weather, room in the vessel, this pipe baving been gnawed winds and waves, from lightning and tempests, rocks through by rats.
and sands," etc. By others it has been sought to exIt was not disputed at the trial that all reasonable tend it so as to include all inevitable accidents which precautions had been taken by the captain and his crew occur upon the seas, or at all events all such as occur to keep down the rats on the voyage from Liverpool | by the action of sea-water in the course of navigation, to Akyab. The jury found further that the rats which for which human negligence, or for which at all events caused the damage were not brought on board by the the carrier's negligence is not responsible. The term shippers in the course of shipping the rice at Akyab, "peril of the sea" is one which has long been em. and that those ou board had taken reasonable precau- ployed in policies of insurance as well as in contracts tions to prevent the rats coming on board at Akyab of carriage, though losses which fall within the meanduring the shipping of the cargo. There was on the ing of the policy (owing to the different nature of the other haud no finding of the jury, and no admission contract) are not always losses which would fall by the parties as to the condition of the vessel in re- within the bill of lading exception. But it may be at spect of rats when she left Liverpool for Akyab, or as least considered probable (subject always to any questo the original cause of the presence of rats on board tion of usage or construction) that if a loss is not due the abip.
to a peril of the sea within the meaning of a policy of The case was dealt witń by Lopes, L. J., on further insurance, neither will it be due to a peril of the sea consideration, and he directed a verdict for the de. within the meaning of the ordinary bill of lading. fendants on the ground that the case was one of dan- According to Lord Tenterdeu the decision of the ger or accident of the seas within the exception in the judge upon what is a peril of the sea may be guided by shipping documents, and that the shipowners were usage and the course of practice among merchants, thereby exonerated. From this judgment the plain- and it is observable that the case in which pirates tiffs now appeal.
were first held to be a peril of the sea was decided That damage done to cargo by the direct action of upon a certificate of merchants, read in court, that rats, which devour it on the voyage, is not due to a they were so esteemed. Style, 132. It is not veces. peril of the sea, was decided in Kay v. Wheeler, L. R., sary in the present instance, and not being necessary 2 C. P. 302, by the exchequer chamber. See Laveroni it would be undesirable to lay down an exhaustive dev. Drury, 8 Ex. 166; 22 L. J. (Ex.) %, and Aymar v. finitiov as to the meaning of the term “perils of the Astor, 6 Cow. 266. It was contended however in the sea," either in contracts of carriage or in policies of present case, on behalf of the shipowners, that the insurance. We desire to leave ourselves entirely free question is a different one where cargo is directly to consider (whenever the necessary occasion arises) damaged by sea-water entering a ship through leaks whether the term “perils of the sea" may not emwhich rats have caused, and that although the ship- brace other dangers beyond those which are due owner is not excused when the rats eat a cargo of rice directly to the violent action of the elements. Unless directly--if a rat eats through a pipe which lets the there be some exception to such a definition it is diffigea-water in upon the rice, the accident is one for cult to account for the fact that pirates by mercantile which the sbipowner will not be responsible-a dis- custom are a peril of the sea, or that shipwreck tinction, which if it exists, must be admitted to upon a hidden boulder, when not due to the negllsavor of subtlety. By the common law of this country, gence of the master, would be due to the same exwhich in this respect is stricter than either the civil cepted cause. law or the law of many continental nations, a carrier It is sufficient to affirm broadly that within tbe
meaning of an ordinary charter-party or bill of lading been the case when Roccus wrote, we cannot but a loss cannot be due to the perils of the sea which the thiuk that rats might be now banished from a ship by exercise of reasonable skill and diligence on the part of no very extraordinary degree of diligence on the part the shipowner might have averted.
of the master.” 8 Ex. 172. It is not impossible that In the case of The Schooner Reeside (A. D. 1837), 2 it was on some such broad common sense view of the Sum. 571, Story, J., thus expresses himself: "The case that Lord Ellen borough proceeded when in Hune phrase · danger of the seas,' whether understood in ter v. Potts, 4 Camp. 203, he held that a loss arising its most limited sense, as importing only a loss by the from rats eating holes in the ship's bottom is not natural accidents peculiar to that element, or whether within the perils insured against by the common form understood in its more extended sense, as including of a policy of insurance. As a rule, rats can be kept inevitable accidents upon that element, must still, in out of ships which are fit to carry cargo, and speaking either case, be clearly understood to include only broadly, a loss which is due to leakage caused by rats such losses as are of an extraordinary nature, or arise will probably be found to be due not to the perils of from irresistible force, or some overwbelming power, the sea, but to the defects of the ship or the want of which canu at be guarded against by the ordinary ex- precautions of the shipowner. In his chapter dealing ertions of human skill and prudence.” So again in with policies of insurance, the learned author of Kent's Marshall Ins., vol. 1, p. 234, Part I, ch. 7, $ 4: “If any commentaries, says: “It has even been a vexed loss or damage happen to the goods, from any fault or question whether the damage done to a ship by rats defeot of the ship (uot arising from sea damage, or was among the casualties comprehended under perils from any accident or misfortune in the voyage, but of the sea, and the authorities are much divided on from some latent defect before she sailed), the owner the question. The better opinion would however of the goods bas his remedy against the owners of the seem to be that the insurer is not liable for this sort ship for such loss or damage.” The judgment of of damage, because it arises from the negligeuce of the Lopes, L.J., in the court below, accepts this principle, common carrier, and it may be prevented by due care, but proceeds upon the basis that the action of the rats and is within the control of human prudence and in gnawing through the pipe and letting in the sea- sagacity.” Vol. 3, pp. 300, 301. He adds in a note water upon the cargo was a matter beyond all human some references to a number of foreign juridical control, that it was, to adopt his own words, a case writers, who have all maintained the principle that "of sea damage at sea and nobody's fault." The bur- the owner, and not the insurer, is liable for an injury den of proof of this rested upon the shipowner, but by rats, and states that the only case which he has the admission made during the trial of the case and met with directly to the contrary is that of Garrigues the finding of the jury seem to us to fall far short of v. Coxe, 1 Bin. 592. Story Bail., $ 513, adds, that "it establishing the inference drawn by Lopes, L. J. It seems that a loss occasioned by a leakage which is is cousistent with both the verdict and the findings caused by rats gnawing a hole in the bottom of the that the presence of rats may have constituted an vessel is not in the English law deemed a loss by a original vice in the ship when she sailed to take in peril of the sea." Lord Tenterden in his work on cargo, which continued down to and at the time when Shipping, part IV, ch. 5, § 4, adopts language to the she in fact took it in. Their presence at such a time, same effect:
" Where rats," he says, occasioned a so far as their presence constituted any element of leak in the vessel, whereby the goods were spoiled, danger to the cargo, was to that extent a defect in the the master was held responsible for the damage notship. Even if it were shown to be impossible to have withstanding the crew afterward, by pumping, etc., excluded the rats which caused the mischief to the did all they could to preserve the cargo from injury. pipe, a topic which it may be said we have not the ma- And this determination agrees with the rule laid down terials before us for discussing exhaustively, it would by Roccus, who says: If mice eat the cargo and still we think be doubtful whether a ship with rats on thereby occasion no small injury to the merchant, the board her that receives goods into her hold ought not master must make good the loss, because he is guilty to bear the responsibility for all damage done to the of a fault. Yet if he had cats on board his ship he goods by the rats.
shall be excused.' This rule and the exception to it, The burden, as we have said, rests upon the ship- although bearing somewhat of a ludicrous air, furnish owner. An owner of cargo bas no means of knowing a good illustration of the general principle, by which what has been done by the ship in respect of rats or the master and owners are held responsible for every what is the conditiou of the vessel. He has a right to injury that might have been prevented by human assume that the ship is reasonably fit for the carriage | foresight or care. In conformity to which principle, of his goods. The broad inference of fact which most they are responsible for goods stolen or embezzled on persons would accordingly be inclined to draw is that board the ship by the crew or other persons, or lost or rats capable of doing substantial mischief to a ship or injured in consequence of the ship sailing in fair cargo, and which do not come on board with the cargo weather against a rock or shallow known to expert itself, are not the kind of inevitable misfortune which mariners." happens to ships fit to carry cargo; that a rat and all It is not strictly necessary to decide what would be the direct or indirect mischief a rat does is, in other the result in the somewhat improbable case of a shipwords, a peril of the ship and not a peril of the sea.
owner who succeeded in proving that the presence of Sir William Jones (Essay on the Law of Bailments, rats that have caused mischief by leakage to the cargo, 105), commenting upon the case of Dule v. Hall, 1 was neither due to any defect in the reasonable coudi. Wils. 281, in which the rats had gnawed out the tion of his ship nor a matter which by reasonable preoakum and made a small hole through which the cautions could have been prevented. This hypothetiwater gushed, says that it must have been at least or- cal case of a possible exception to what we may call diuary negligence to let a rat do such mischief in a the broad and natural inference of faot is reserved by vessel, and quotes the Digest (19, 2, 13, 6): “Si fullo Marshall, vol. 1, p. 235, part 1, ch. 7. $ 4, where he says vestimenlu polienda ucceperit, eaque mures roserint, ex that the owners are liable for damage done by rats, locato tenetur, quia debuit ab hac re cavere.” The court unless it appear that all necessary precautions were of exchequer in Laveroni v. Drury, 8 Ex. 166; 22 L. J. used to prevent it. The academical question which (Ex.) 2, seem to have been of the same opinion. Speak- / Marshall and other writers have left open it is not ing of a passage from Roccus, which states that keep- | necessary in the present case to close, so far as relates ing cats on board excused the shipowner from damage to leakage caused by rats as distinguished from damby rats, Pollock, C. B., says: “Whatever might have age done by them to the cargo directly.
It is however obvious that the continental writers to Williams went on and took off a portion of the timwhom Story refers as entertaining a view that in such ber within the two years, and before the time limited a case the owner would be protected, wrote at a time had expired he agreed with James Ford, the owner of when ships were very different from the carrying ships the land, verbally, for an extension of time for one of the present day, uor indeed were their views fol. gear in which to cut and remove the balance. Before lowed by the court of exchequer in Luveroni v. Drury, this extended time expired, be and Ford agreed upon 8 Ex. 166; 22 L. J. (Ex.) 2, or by the exchequer cham- , another extension, to and including the winter of ber in Kuy v. Wheeler, L. R., 2 C. P. 302. It never 1885-6. This agreement was also verbal, and both of must be forgotten that the English law is less indul. ( them were withont auy new consideration passing gent to the carrier than either the Roman law or the from Williams to Ford. November 27, 1885, defend. law of many continental nations. In the present in- ants purchased the lands upon which the trees were stance, the burden of proof resting with the shipowner, standing from their uncle, and received a deed exeno facts have been established which raise this specu- cuted on that day. It was not a full covenant warlative point. It was consistent with all the findings ranty deed, but contained a covenant against the that the mischief done to the pipe and the incursion grantor's own acts. At the time of their purchase of sea-water which followed would never have hap: however they were fully inforined that the plaintiff pened but for either a defect in the condition of the had purchased the timber, and that the time in which ship or some want of providence iu the sbipowner or he was to cut and remove it had been extended by his servants. The question therefore does not arise verbal agreement, as above stated. Shortly after New whether there may not be a conceivable case of leak- Year's of 1886 the plaintiff commenced to cut the timage caused by rats which would not fall within the ber with a view of removing it, when he was forbid. broad and every day rule.
den to do so by the defendants, who claimed to owu For these reasons we are of opinion that the judg- the timber by virtue of their deed. ment of the court below must be reversed, and the Plaintiff desisted, and brought this action to recover appeal allowed with costs.
the value of the timber, buth standing and serered, Appeal allowed.
left on the land covered by his bill of sale from James Judgment for the plaintiffs.
Ford. The Circuit judge instructed the jury to reuSolicitors for plaintiffs: Hollams, Son and Coward.der a verdict for the plaintiff, but how much the verSolicitors for defendants: W. A. Crump & Son. dict should be was left to the jury to determine under
the testimony. The jury returned a verdict in favor
of the plaintiff for $546.33. LICENSE TO CUT TIMBER-EXTENSION-SALE Que of the principal questions presented for considOF LAND-LIABILITY OF GRANTEE.
eration is whether the limitation of time for the re.
moval of the timber from the land is a covenant that MICHIGAN SUPREME COURT, NOV. 4, 1886.
the purchaser will remove the timber in two years, or
a condition subsequent of the contract of sale, which WILLIAMS V. FLOOD.
upon default would terminate the right of removal,
and revest the title to such timber as remained upon A. agreed in writing to sell to B. the timber standing on cer- the land in the vendor. The question was raised, but
tain land, and provided that the same should be cut and not decided, in Green v. Bennett, 23 Mich. 464, as the
which the contract was made, and the purpose for license to B , which C. had a right to revoke; that B. had
which it was made, are to be taken into consideraa right only to remove the timber which he had cut, until
tion. The operative words ju the written agreement forbidden by C. to cut any more; and that he could main.
“The party of the first part, for and in considertain no action against C. for the value of the standing
ation of the sum of $500, to us in hand paid by Henry timber.
W. Williams, the receipt whereof is hereby acknowlto Berrien.
edged, does by these presents sell, assign and convey
to the said Henry W. Williams all the standing timC. B. Potter (Clapp & Bridgman, of counsel), forber," etc. The words express the intention to sell and plaintiff.
convey the standing timber as timber attached to and N. A. Hamilton and Eduarl Bacon, for defendants
a part of the freehold, by which a present title was to
pass, and cannot be construed into an executory agreeaud appellante.
ment to sell and convey the timber when it should be CHAMPLIN, J. This is an action of trespass on the thereafter severed. case, to recover the value of certain standing and The agreement conveyed an interest in the land, down timber ou a parcel of land described in plain and was such as the statute of frauds required to be in tiff's declaration. On the 16th day of September, 1882, writing to be valid. Russell v. Myers, 32 Mich. 522; James Flood, who is an uncle of defendants, was the Wetmore v. Neuberger, 44 id. 362; Spalding v. Archiowner in fee of the land, and on that day, by a writ-bald, 52 id. 365; Putney v. Day, 6 N. H. 430; 8. C., 25 ing under seal, sold to the plaintiff “ all the standing Am. Dec. 470; Owens v. Lewis, 46 Iud. 488; S. C., 15 timber from and orer the size of vine inches in diam- Am. Rep. 295; Daniels v. Bailey, 43 Wis. 566; Slycum eter on the stump, situated, standing, or being upon v. Seymour, 36 N. J. L. 138. the land" in question. The instrument contained the When conveyed it was an interest in lands, and did following clause: “Giving and granting the said not cease to be such thereafter until severance. If the Herry Williams the undisputed right, for two years limitation as to time of removal should be construed from this date, to enter upon the said premises and as a covenant on the part of the purchaser that he remove the said timber, the same as if he, the said would remove the timber in the time specified, the Henry W. Williams, was the owner in fee of said title to the timber would remain in the purchaser land."
after the time limited bad expired, and he could still
enter upon the premises, and remove the same at his licensee, or would be productive of great hardship, in
It appears to me that the parties intended the one EVIDENCE-DECLARATIONS OF AGENTS-MEMORANto sell and the other to purchase the standing timber, DUM.-(1) In an action against a railroad company to upon the condition that it should be removed from recover damages for injuries received by a passenger the land within the time specified, and that the title on a train, a declaration of the engineer, made beto such as should remain upon the land at the expira-tween ten and thirty minutes after the accident oction of the time should revest in the vendor, the ef- curred, as to the rate at which the train was going at fect of the whole transaction being a sale of so much the time, is not admissible in behalf of the plaintiff. of the timber as the vendee should remove from the The acts of an agent, within the scope of the authorland within the time limited in the agreement for its ity delegated to him, are deemed the acts of the prinremoval. That this was the intention of the parties, as cipal. Whatever be does in the lawful exercise of that expressed by the contract, is borne out by the conduct authority is imputable to the principal, and may be of the parties, who appear to have placed this construc- proven without calling the agent as a witness. So in tion upon it. The vendee asked for and obtained a consequence of the relation between him and the verbal extension of the time upon two different occa- principal, his statement or declaration is, under some sions; and it is upon this extension of the time that circumstances, regarded as of the nature of original the rights of the parties depend in this controversy. evidence; “ being,” says Phillips, "the ultimate fact The breach of the condition worked a forfeiture of to be proved, and not an admission of some other the plaintiff's right and title to the remaining tim. fact.” 1 Phil. Ev. 381. “But it must be remember.
bered," says Greenleaf, " that the admission of the That the vendor could waive the forfeiture or breach agent cannot always be assimilated to the admission of condition cannot be disputed. That he did so in of the principal. The party's own admission, whenthis instance cannot be denied, if it was competent ever made, may be given in evidence against him; but for him to do so by parol. The defendants insist that the admission or declaration of his agent binds him the contract, being of that nature which the statute of only when it is made during the continuance of the frauds requires to be evidenced by writing, any exten- agency, in regard to a transaction then depending et sion of time in which it was to be performed must dum fervet opus. It is because it is a verbal act, and also be in writing to be binding. Abell v. Munson, 18 part of the res gestre, that it is admissible at all; and Mich. 306; Couk v. Bell, id. 393.
therefore it is not necessary to call the agent to prove This position would seem to be consistent with the it; but wherever wbat he did is admissible in evirulings of this court, holding that such a sale of stand-dence, there it is competent to prove what he said ing timber conveys an interest in real estate, and is about the act while he was doing it.” 1 Greenl. Ev., not valid unless in writing; for if the interest of the § 113. This court had occasion in Packet Co. v. vendee in the standing timber would cease at the ex- Clough, 20 Wall. 546, to consider this question. Repiration of the time limited in the contract for its re- ferring to the rule as stated by Mr. Justice Story in moval, the effect of the extension would be to grant a his Treatise on Agency, $ 134, that “where the acts of new or further interest in the land, and would re- the agent will bind the principal, there his represenquire a contract in writing as much as the original tations, declarations and admissions respecting contract.
the subject-matter will also bind him, if made at the If however the agreement for the extension was in- same time, and constituting part of the res geste," the valid as a contract, it would be good as a license, and court, speaking by Mr. Justice Story, said: “A close a protection to the vendee for any act done under it attention to this rule, which is of universal acceptuntil it was revoked. He would have the right to re- ance, will solve almost every difficulty. But an act move all the timber which he had cut up to the time done by an agent cannot be varied, qualified or exthe defendants forbade his cutting more; and if they plained, either by his deciarations, which amount to refused to permit him to enter upon their land for no more than a mere narrative of a past occurrence, that purpose, it would in law amount to a conversion or by an isolated conversion held, or an isolated act by them of the timber so cut. They would not be lia- done, at a later period. The reason is that the agent ble in this action for the timber standing upon the
to do the act is not authorized to narrate what he had land at the time the license was revoked. This must done, or how he had done it, and his declaration is no be the result in an action at law, especially in those part of the res gesta." We are of opinion that the decStates where the jurisdiction of courts of law and laration of the engineer, Herbert, to the witness equity are administered separately. In some States, Roach was not competent against the defendant for where the courts of law have equitabıe cognizance, re. the purpose of proving the rate of speed at which the liei is granted upon proper pleadings in common-law train was moving at the time of the accident. It is courts. Courts of equity have in proper cases en.
true, that in view of the engineer's experience and poforced a license, and restrained its revucation, where sition, bis statements under oath as a witness in resuch revocation would operate as a fraud upon the spect to that matter, if oredited, would have influence
with the jury. Although the speed of tbe train was the case admits. The present case does not require us
the postmaster general, no right could be implied and that he knows it was correct when prepared, al against the government from the continuance of the though after reading it he cannot recall the circum- / services, nor was plaintiff bound by the terms of its stances so as to state them alone from memory, the written contract. Nov. 1, 1886. Jacksonville, P. & M paper may be received as the best evidence of which R. Co. v. United States. Opinion by Field, J.