There can be no question as regards the law applicable to a common carrier. He is liable as an insurer of the property received by him for transportation, against all loss and damage happening thereto while under his control, unless occasioned by the act of God or the public enemy, or unless excused by special contract. As was said in Price v. Hartshorn, (44 Barb. 655,) with these exceptions the common carrier warrants the safe delivery of the property intrusted to'him against all contingencies. (See cases cited 44 Barb. 666.) The counsel for the appellant is therefore unquestionably correct in saying that the duty of the common carrier to transport and safely deliver is prima facie absolute; and that he can only be relieved from liability by establishing one or the other of the exceptions. And the burden of proof
By the contract between the parties (bill of lading,) the defendants were exempted from liability for loss and damage resulting from “ the dangers of the seas and fire.” That the injury in this case resulted from “ dangers of the seas” there can be, I think, no question. It occurred in navigable waters, and by reason of a hidden obstructions of recent origin not avoidable even with extraordinary care and foresight. It was held in Gordon v. Buchanan, (5 Yerger, 72,) that dangers of the seas, or, which is the same, perils of the sea, included a hidden obstruction in a river, newly placed there, and of a character which human skill and foresight could not discover or avoid.In Kingsford v. Marshall, (8 Bing. 458,) Tindall, Oh. J. says, that an injury done to a ship or goods therein, by settling on a hard substance at the bottom of a harbor is an injury oscasioned by the perils of the sea is beyond all doubt. Kent says, (3 Kent, 300,) that perils of the sea are all those natural perils and operations of the elements which occur without the intervention of human agency, and which the prudence of man could "not foresee, nor his strength resist. In Whitesides v. Russell, (8 Watts & Serg.
How in the case at bar, the defendants, as carriers, were not responsible for any loss, or injury to the plaintiffs’ goods, occasioned by the “ act of God.” Against such a peril, there existed a general exemption from liability, by law. But there was a further exemption, by the contract, in this case. The defendants were not to be liable for any dangers (perils) of the sea. It was so stipulated in the bill of lading. The exemption, therefore, embraced those accidents incident to navigation, other than those denominated the act of God—all such as are designated perils of the sea. The injury occasioned to a vessel safely moored in harbor, by settling on a hard substance, was said to be an injury from a peril of the sea. (Per Tindall, Ch. J. Kingsford v. Marshall, supra.) The running upon a stone in the Ohio river was a peril of the sea. (Whiteside v. Russell, supra.) The mistaking of a light on entering a harbor, was a peril of the sea. (McArthur v. Sears, 21 Wend. 190.) Sp also the mast of a sunken vessel. (Merritt v. Earle, supra.) While these are perils of the sea, they are not to be denominated the act of God. Judge Cowen says, in McArthur v. Sears, (supra,) the words “perils of the sea ” are evidently of broader compass than the words “ act of God.” In Gordon v. Buchanan, (5 Yerg. 71,) Green, J. is reported as saying: “ The exception in this bill of lading, pf the dangers of the river, which are
It would seem then very plain, from these authorities, that the injury complained of in this case was occasioned by a peril of the sea, from which the defendants were expressly exempted by the terms of the bill of lading, Hatural causes, the action of the waters, had recently produced the danger where navigation could before be conducted with safety, and in so far as could be observed, could still be so pursued. This became a peril of the sea, and from such perils the defendants had contracted, for exemption. They had by contract restricted their liability, principally if not wholly, to acts of fault or negligence on their part.
It is not urged that the case stands on any different grounds, for the reason that the contract, was between residents of Canada; this subject need not therefore be considered.
I am clearly of the opinion that the nonsuit-was properly ordered. There was "no conflict of evidence requiring a submission of the case to the jury. The facts were wholly undisputed, and it was therefore for the court to declare the law upon them.
Nor was there any error in the admission, or rejection of evidence, affecting the merits.
. The judgment appealed from, should be affirmed.
Tames, Mosehrans, Potter and Boches, Justices.]