meaning of that term, so as, all due care having been taken to convey the mare safely, to afford immunity to the defendant's company as carriers from liability in respect of the loss complained of; and the question to be determined is, whether this contention is well founded. . . . But there being no doubt that in the case before us the shipowner was a common carrier, we have now to deal with the question on which the decision really turns, namely, whether the loss was occasioned by what can properly be called the "act of God." The definition which is given by MR. JUSTICE BRETT [in the opinion of the court below] of what is termed in our law the "act of God" is, that it must be such a direct, and violent, and sudden, and irresistible act of Nature as could not by any amount of ability have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. The judgment then proceeds: "We cannot say, notwithstanding the inability of the jury to agree to an answer to the fifth question left to them, that the defendant has in this case satisfied the burden of proof cast upon him so as to bring himself clearly within the definition. It seems to me impossible to say that no human ability could foresee the reasonable probability of the happening of rough weather on the voyage, and that a horse at sea might be frightened by it, or that no human ability could prevent injury to a frightened horse in such weather as occurred.” The exposition here given appears to me too wide as regards the degree of care required of the shipowner, and as exacting more than can properly be expected of him. It is somewhat remarkable that previously to the present case no judicial exposition has occurred of the meaning of the term "act of God," as regards the degree of care to be applied by the carrier in order to entitle himself to the benefit of its protection. We must endeavor to lay down an intelligible rule. That a storm at sea is included in the term "act of God," can admit of no doubt whatever. Storm and tempest have always been mentioned in dealing with this subject as among the instances of vis major coming under the denomination of "act of God." But it is equally true, as has already been pointed out, that it is not under all circumstances that inevitable accident arising from the socalled act of God will, any more than inevitable accident in general by the Roman and continental law, afford immunity to the carrier. This must depend on his ability to avert the effects of the vis major, and the degree of diligence which he is bound to apply to that end. It is at once obvious, as was pointed out by Lord Mansfield in " Forward v. Pittard 2, that all causes of inevitable accident — casus fortuitus "- may be divided into two classes—those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, of nonfeasance or of misfeasance, or in any other cause independent of the agency of natural forces. It is obvious that it would be altogether incongruous to apply the term "act of God" to the latter class of inevitable accident. It is equally clear that storm and tempest belong to the class to which the term "act of God" is properly applicable. On the other hand, it must be admitted that it is not because an accident is occasioned by the agency of nature, and therefore by what may be termed the "act of God," that it necessarily follows. that the carrier is entitled to immunity. The rain which fertilises the earth and the wind which enables the ship to navigate the ocean are as much within the term "act of God" as the rainfall which causes a river to burst its banks and carry destruction over a whole district, or the cyclone that drives a ship against a rock or sends it to the bottom. Yet the carrier who by the rule is entitled to protection in the latter case, would clearly not be able to claim it in case of damage occurring in the former. For here another principle comes into play. The carrier is bound to do his utmost to protect goods committed to his charge from loss or damage, and if he fails herein he becomes liable from the nature of his contract. In the one case he can protect the goods by proper care, in the other it is beyond his power to do so. If by his default in omitting to take the necessary care loss or damage ensues, he remains responsible, though the so-called act of God may have been the immediate cause of the mischief. If the ship is unseaworthy, and hence perishes from the storm which it otherwise would have weathered; if the carrier by undue deviation or delay exposes himself to the danger which he otherwise would have avoided; or if by his rashness he unnecessarily encounters it, as by putting to sea in a raging storm, the loss cannot be said to be due to the act of God alone, and the carrier cannot have the benefit of the exception. This being granted, the question arises as to the degree of care which is to be required of him to protect him from liability in respect of loss arising from the act of God. Not only, as has been observed, has there been no judicial exposition of the meaning of the term "act of God" as regards the degree of care to be applied by the carrier in order to entitle himself to its protection, but the textwriters, both English and American, are, for the most 21 T. R. 27. part, silent on the subject and afford little or no assistance. In our own law on this subject judicial authority, as has been stated, is wanting, and the text writers, English and American, with one exception, afford little or no assistance. Story, however, in speaking of the perils of the sea, in which storm and tempest are of course included, and consequently to a great extent the instances of inevitable accident at sea which come under the term "act of God," uses the following language: "The phrase 'perils of the sea,' whether understood in its most limited sense, as importing a loss by natural accidents peculiar to that element, or whether understood in its more extended sense as including inevitable accidents occurring upon that element, must still in either case be understood to include such losses only to the goods on board as are of an extraordinary nature or arise from some irresistible force, or from inevitable accident, or from some overwhelming power which cannot be guarded against by ordinary exertions of human skill and prudence. Hence it is that if the loss occurs by a peril of the sea which might have been avoided by the exercise of any reasonable skill or diligence at the time when it occurred, it is not deemed to be in the sense of the phrase such a loss by the perils of the sea as will exempt the carrier from liability, but rather a loss by the gross negligence of the party." Story, it will be observed, here speaks only of "ordinary exertion of human skill and prudence and the exercise of reasonable skill and diligence." In my opinion this is the true view of the matter, and what Story here says of perils of the sea applies, I think, equally to the perils of the sea coming within the designation of "acts of God." In other words, all that can be required of the carrier is that he shall do all that is reasonably and practically possible to insure the safety of the goods. If he uses all the known means to which prudent and experienced carriers ordinarily have recourse, he does all that can be reasonably required of him; and if, under such circumstances, he is overpowered by storm or other natural agency, he is within the rule which gives immunity from the effects of such vis major as the act of God. I do not think that because some one may have discovered some more efficient method of securing the goods which has not become generally known, or because it cannot be proved that if the skill and ingenuity of engineers or others were directed to the subject something more efficient might not be produced, that the carrier can be made liable. I find no authority for saying that the vis major must be such as "no amount of human care or skill could have resisted," or the injury such as "no human ability could have prevented," and I think this con3 Story on Bailments 512 (a). struction of the rule erroneous. That the defendants here took all the care that could reasonably be required of them to insure the safety of the mare is, I think, involved in the finding of the jury, directly negativing negligence, and I think that it was not incumbent on the defendants to establish more than is implied by that finding. The matter becomes, however, somewhat complicated from the fact that the jury have found that the death of the mare is to be ascribed to the injuries caused partly by the rolling of the vessel, partly by struggles of the animal occasioned by fright, leaving it doubtful whether the fright was the natural effect of the storm or whether it arose from an unusual degree of timidity peculiar to the animal and in excess of what would generally be displayed by horses. But the plaintiff is in this dilemma: if the fright which led to the struggling of the mare was in excess of what is usual in horses on shipboard in a storm, then the rule applies that the carrier is not liable where the thing carried perishes or sustains damage, without any fault of his, by reason of some quality inherent in its nature, and which it was not possible for him to guard against.* If, on the other hand, the fright was the natural effect of the storm and of the agitation of the ship, then it was the immediate consequence of the storm, and the injuries occasioned by the fright are sufficiently closely connected with the storm, in other words, with the act of God, to afford protection to the carrier. If the disaster is the result of a combination of causes for neither of which the carrier was responsible, he cannot be made liable any more than if it had resulted from either of them alone. For these reasons I am of opinion that the judgment of the Court below must be reversed, and judgment entered for the defendant. BALTIMORE & OHIO RAILROAD COMPANY 49 Oh. St. 489. 1892.1 The action below was brought in the Court of Common Pleas of Licking County, by James O'Donnell, against the Baltimore & 4 See Fancher v. Wilson (1895), 68 N. H. 338 (bursting of vessel owing to fermentation of contents); Lester v. Lancashire & Y. Ry. Co. [1903] 1 K. B. 878 (injury to machinery due to hidden defect). 5 See Colt . M'Mechem (1810). 6 Johns. 160 (boat wrecked by falling of wind); Bowman v. Teall (1840), 23 Wend. 306 (sudden freezing of canal) Merritt r. Earle (1864), 29 N. Y. 115 (boat wrecked by striking mast of boat previously sunk by squall of wind). 1 Part of the statement of the case, the argument of counsel, and part of the opinion are omitted.- ED. Ohio Railroad Company, to recover damages for the conversion, by the defendant, of certain property of the plaintiff. A trial of the cause to a jury resulted in a verdict for the plaintiff, upon which judgment was rendered. Error was prosecuted to the circuit court, where part of the damages recovered were remitted by the plaintiff, and the judgment was affirmed as to the balance. WILLIAMS, J. . . . The principal contention of the plaintiff in error is that there was no conversion because it was justified, upon the grounds stated in its answer, in withholding the property from the plaintiff below, and removing it from the state. The ground chiefly relied on is that when the goods were received for transportation a state of lawlessness, amounting to insurrection, existed at the place to which they were consigned; and that the goods, which consisted entirely of fire-arms and ammunition, were purchased and consigned to the plaintiff to be used in aid of the insurrection; knowledge of which having come to the defendant's officers, they deemed it improper to deliver the goods to the plaintiff, and, after consulting the governor of the state, and under his advice, as it is claimed, they caused them to be taken to Baltimore, and there detained until the May following, when they were reshipped to Newark, and thence to Shawnee. All these allegations of the answer, except that the property was removed out of the state, and there detained, were denied by the reply, and the issues of fact thus raised were submitted to the determination of the jury. . . . It is not claimed the liability of the defendant was limited by special contract. Its obligation was, therefore, that imposed by the rules of the common law, which made it an insurer of the goods against all losses, except those arising from the act of God, or the public enemies, or from the conduct of the shipper, or the inherent nature of the goods, or, as is held in some cases, from the act or mandate of public authority. With respect to the last exception stated above, the rule seems to be now established that a common carrier is not liable if the goods be taken from his possession by legal process against the owner, or if, without his fault, they become obnoxious to the requirements of the police power of the state, and are injured or destroyed by its authority; as where they are infected with contagious disease, or are intoxicating liquors intended for use or sale in violation of the laws of the state which require their seizure and destruction. Wells v. Steamship Co., 4 Cliff. 228; Blivin v. Railroad Co., 36 N. Y. 403. But, in order to protect the carrier in such cases it is necessary that the seizure be made without the procurement or connivance of the |