Common carriers are liable for the loss of goods entrusted to their care, in all cases, except where the loss arises from the act of God, the enemies of the state, or the default of the party sending them. Under the term act of God are comprehended all misfortunes and accidents arising from inevitable necessity, which human prudence could not foresee or prevent; and in cases of this description, they may be liable for a loss arising from an inevitable necessity existing at the time of the loss, if they had been guilty of a previous negligence or misconduct, by which the loss may have been occasioned.
If the rock on which this vessel struck had been generally known, then it was the duty of the master to have known and avoided it, and the loss would be imputable to his negligence. If the situation of the rock was not generally known, and the master did not actually know it, then if he conducted properly in other respects, and no fault was imputable to him, his striking on the rock would be an act of God, an unavoidable accident, and he would not be liable for the loss. For, though the rock had been there for ages, yet if it had never been discovered before, it is the same thing as if it *492had been created and placed there immediately before the accident happened. The charge of the court to the jury on this point was correct.
In this case, however, the plaintiffs offered evidence to prove that the master was ignorant of the navigation ; that he had no pilot, as was customary; and that the vessel went out of the usual course. It does not appear but that the running of the vessel on the rock may be attributed to this negligence. Of course, the court should have submitted these facts to the jury, and should have instructed them, that though the situation of the rock was not generally known, yet if they found the other facts to be true, so that the loss was imputable to the negligence of the master, then he was liable for it, and they must find a verdict for the plaintiffs.
For this reason I would advise a new trial.
In this opinion Trumbull, Edmond, Smith, Brainard, Baldwin and Hosmer, Js. concurred. Gould, J.It is very clear, that a common carrier is liable, under a general acceptance, for all losses, except such as are occasioned by inevitable accident, the act of public enemies, or the act, or default, of the bailor himself. In the case now before the court, neither any act of public enemies, nor any act or default of the plaintiffs, is in question. With respect to the other ground of exemption, (inevitable accident,) the defendants are, indeed, by an express exception in the bill of lading, excused, so far as regards losses caused by “ dangers of the sea.” This exception, however, does not seem at all to qualify their liability : For, by “ dangers of the sea,” are meant no other than inevitable perils, or accidents, upon that element ; and by such perils or accidents, common carriers are prima facie excused, whether there is any such express exception or not. In either case, however, it is a condition precedent to their exoneration, that they should have been in no default ; or, in other words, that the goods of the bailor should not have been exposed to the peril, or accident, which occasioned the loss, by their own misconduct, neglect, or ignorance. For, though the immediate, or proximate, cause of a loss, in any given instance, may have been what is termed the act of God, *493or inevitable accident ; yet, if the carrier unnecessarily exposed the property to such accident, by any culpable act or omission of his own, he is not excused. I recollect a case put, in some book, to this effect: That if a common hoyman unnecessarily puts to sea, under circumstances which render a loss of the goods on board probable—as in very tempestuous weather—he is liable, in the event of it loss, though it were immediately occasioned by the elements, over which he had no controul. This I take to be law.
In the present case, the plaintiffs claimed, and attempted to prove, at the trial, that the master unnecessarily deviated from the ordinary course ; that he was ignorant of the navigation of the river; and, that it was usual, in that navigation, to have a pilot—(whom he confessedly had not.) Now, such a deviation would certainly have been misconduct ; the alleged ignorance of the master, (there being no pilot on board,) would have been a species of deficiency, in the nature of a want of sea-worthiness ; and the want of a pilot, where one is, by common usage, employed, and the master ignorant of the navigation, is manifestly a culpable neglect. And, as the plaintiffs made it a ground of claim, that this misconduct, deficiency, and neglect, contributed to occasion the loss, by bringing the property on board within the reach of the peril ; the existence of the facts, on which the claim was founded, should have been left to the jury, and the legal effect of them, upon the supposition of their existence, explained. As this was not done, the plaintiffs are, in my opinion, entitled to a new trial.
Goddard, J. having been of counsel in the cause, gave no opinion.New trial to be granted.