a navigation to which the exception of the perils of the sea did not apply (0).

In a case upon a policy of insurance, wherein the loss happened by the circumstance of the master of a British ship mistaking the ship insured for an enemy, and under that mistake firing into her, whereby she was sunk, it was doubted whether the loss could properly be said to have happened by a peril of the sea; and the point was not decided, because the loss was held clearly to fall within some other of the words used in the policy, and the manner of the loss was expressly stated in one of the counts of the declaration (p). In another case, on a policy of insurance, wherein it appeared that the master of the ship insured, mistaking a British ship of war for an enemy, produced simulated papers, and concealed his British license; in consequence of which his ship was taken in tow by the ship of war, and in order to keep up was obliged to use an extraordinary press of sail, and during a gale of wind and a high sea shipped a quantity of water, whereby the cargo was damaged-Lord Ellenborough held this to be a loss by perils of the sea (q). In another case, arising also upon a policy of insurance, wherein the loss happened by collision, without any neglect or fault on the part of the Helena, the ship insured, and was so specially alleged in the declaration, the underwriters were held answerable; and Mansfield, C. J., said, "I do not know how to make this out not to be a peril of the sea. What drove the Margaret against the Helena? The sea. What was the cause that the crew of the other ship did not prevent her from runuing against the Helena? Their gross and culpable negligence. But still the sea did the mischief (r). It is reasonable enough that the plaintiffs should permit the defendant to use their names as plaintiffs against the owners or crew of the Margaret, so as to recover whatever the plaintiff's would be entitled to as against the Margaret, and to apply it in diminution of their loss." In another case, wherein it appeared that a ship was hove down on a beach within the tideway, for the purpose of repairing, and the tide having carried away the shores by which she was supported, her side and some of her timbers were injured, the damage was considered as having happened on the land, and not to be a loss by perils of the sea (s). But where a ship was moored in a harbour, having a hard uneven bottom, and being left by the tide at night, a noise was heard as of timber breaking, and on the reflux of the tide, there being a considerable swell in the harbour, she struck the ground hard several times, and in the morning several of her knees were found to be broken, this damage was held to be a loss by perils of the sea (t).

(0) Where the damage to goods arose from one of the perils excepted in the bill of lading, but partly also from the mode in which the ship was moored during the unloading, it was held that the shipowners were not liable if there was no want on their part of ordinary and reasonable care. Lawrie v. Douglas, 15 M. & W. 745.

(p) Cullen v. Butler, 1 Stark. 138, and 5 M. & S. 461.

(q) Hagedorn and another v. Whitmore, 1 Stark. 157.

(r) Smith and others v. Scott, 4 Taunt. 126.

(s) Thomson v. Whitmore, 3 Taunt. 227. (t) Fletcher v. Inglis, 2 B. & A. 315.

But not every loss, proceeding directly from natural causes, is to be considered as happening by the peril of the sea. It was decided by Lord Kenyon, that the destruction of a vessel by worms at sea was not loss by perils of the sea (u). If a ship perish in consequence of striking against a rock or shallow, the circumstance under which the event takes place must be ascertained, in order to decide whether it happened by a peril of the sea or by the fault of the master. If the situation of the rock or shallow is generally known, and the ship not forced upon it by adverse winds or tempest, the loss is to be imputed to the fault of the master. On the other hand, if a ship is forced upon such a rock or shallow by adverse winds or tempest, or if the shallow was occasioned by a sudden and recent collection of sand in a place where ships could before sail in safety, the loss is to be attributed to the act of God or the perils of the sea (x). In the case mentioned in the beginning of this chapter (y), Lord Kenyon observed, that if an earthquake had removed the bank at the time of the accident, the master would have been excused.

If a vessel, reasonably sufficient for the voyage, be lost by a peril of the sea, the merchant cannot charge the owners by showing that a stouter ship would have outlived the peril. This was decided in the case of a hoy driven by a sudden gust of wind against the pier of a bridge, through which it attempted to pass, and thereby sunk, in consequence of a shock that a stronger vessel might have sustained without sinking.

"No carrier," said C. J. Pratt, "is obliged to have a new carriage every journey; it is sufficient if he provide one which, without any extraordinary accident, will probably perform the journey” (z).

3. Lightning.

From the preceding observations and authorities, it will be obvious that neither the master nor owners can be answerable for a loss happening to the cargo by lightning; yet upon the principle upon which the decisions are founded, they must be answerable for a loss by fire proceeding from any other cause, whether originally commencing in their own ship or communicated to it from another. And in the case of an inland carrier (a), this point has been decided, and the law remains unaltered (b). But by a statute made in the

(u) Rohl v. Parr, 1 Esp. 445. (x) Roccus, not. 55. Strac. de Nautis, pars 3, num. 32.

(y) Smith v. Shepherd, ante, p. 338. (z) Amies v. Stevens, 1 Stra. 128; Bull. N. P. p. 69. Sharp v. Grey, 9 Bing. 457. (a) Forward v. Pittard, 1 Term. Rep. K. B. p. 27.

(b) Hyde and another v. Trent and Mersey Navigation Company, 5 Term Rep.

K. B. p. 389. But a warehouseman is not answerable for a loss by fire. Garside v. Trent and Mersey Navigation Company, 4 Term Rep. K. B. 581. Nor is the hirer of goods answerable, per Lord Kenyon, Ch. J., Sit. at Westminster, after Easter Term, 1790. Longman v. Gallini, in the case of musical instruments hired to be used at the Opera House, and destroyed by fire there.

very same year in which the point was first decided, it was enacted, "That no owner or owners of any ship or vessel shall be subject, or liable to answer for, or make good, to any one or more person or persons, any loss or damage which may happen to any goods or merchandise whatsoever, which from and after the first day of September, 1786, shall be shipped, taken in, or put on board any such ship or vessel, by reason or means of any fire happening to or on board the said ship or vessel (i).

In this clause the master is not mentioned; and therefore it may be doubtful whether his responsibility is in this case removed by the statute: but the insertion of the word fire in the modern bill of lading has certainly removed it.

4. Embezzlement, Robbery, &c.

By another section of the same statute, reciting "That disputes may arise, whether the owners or masters of ships are liable to answer or make good the value or amount of any gold, silver, diamonds, watches, jewels, or precious stones, which may be lost after the same have been put on board their ships on freight, without the shippers thereof declaring at the time the value of such goods,"-it was enacted, "That no master, owner, or owners, of any ship or vessel, shall be subject or liable to answer for or make good, to any one or more person or persons, any loss or damage which may happen to any gold, silver, diamonds, watches, jewels, or precious stones, which from and after the passing of this Act shall be shipped, taken in, or put on board any such ship or vessel, by reason or means of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper thereof shall, at the time of shipping the same, insert in his bill of lading, or otherwise declare in writing to the master, owner, or owners of such ship or vessel, the true nature, quality, and value of such gold, silver, diamonds, watches, jewels, or precious stones" (k).

These provisions, less the word quality, which has been omitted, and with the addition of the words "without his actual fault or privity" qualifying the exemption, have been re-enacted by the Merchant Shipping Act, 1854 (1).

(i) 26 Geo. 3, c. 86, s. 2. This section does not protect shipowners from liability for loss by fire in the case of freighted goods burnt in a lighter employed by them to take the goods on board their ship. Morewood v. Pollock, 1 E. & B. 743. This Act has been repealed by the 17 & 18 Vict. c. 120.

(k) 26 Geo. 3, c. 86, s. 3. It has been doubted whether this Act be applicable to the case of shipments made in places not subject to the British laws. On a shipment from Valparaiso to England, the bill of lading described the property as

"1338

5. Neglect, &c., of Pilots.

By that Act also it is provided, that no owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory. This enactment has been substituted for the 55th section of the repealed General Pilot Act (6 Geo. 4, c. 125), respecting which there had been some variety of decision, and is in conformity with the construction put upon that section in the case of the Protector, by the present learned judge of the Court of Admiralty (m).

6. Restraint of Princes.

"The restraint of princes and rulers" (n), commonly mentioned in charter-parties as an exception or excuse for the non-performance of the contract on the part of the master, is to be understood of an actual, and not of an expected restraint, although the expectation may be reasonable and well-grounded, and the master may act upon it with fair and honest intentions. This was decided in the following case:-The British ship Adelphi was chartered for a voyage from London to St. Petersburgh, or as near thereto as she could safely get, there to load a complete cargo of hemp, and of iron for ballast, and proceed therewith to Woolwich and London, and there deliver the same, on being paid freight at certain rates per ton (restraint of princes and rulers during the said voyage always excepted): thirty running days to be allowed the merchant for loading. Under this contract the ship sailed to Cronstadt (the port of St. Petersburgh), and there took in iron for ballast, and a certain quantity of hemp; and the master was proceeding with all due diligence to load his full cargo of hemp, by screwing it down in the usual way, when, about the ninth day, a rumour was circulated of an embargo being about to be laid by the Russian government on all British vessels; and the person who was agent for the British factory at Cronstadt, and agent also to the house at St. Petersburgh, who were the agents to the merchant-charterer of this ship, in consequence of instructions received from the British consul-general at St. Petersburgh, desired the captains

(m) Sect. 388. See ante, p. 182.

(n) The words "restraint of princes, &c., during the said voyage," have been held not to apply at the loading port, but only during the voyage. Crow v. Falk, 8 Q. B. 467. But see Bruce v. Nicolopulo, 3 W. R. Exch. p. 483, in which those words were held to override the whole period of time

from the discharge of the outward cargo to the arrival of the ship at her port of ultimate destination; and that proof of a printed placard, purporting to be signed by the general of an invading army in occupation of the port of loading, and prohibiting the export of the cargo contracted for, was good evidence of such restraint.

of such British vessels as were ready to proceed to sea to do so as soon as possible, as he expected an embargo might take place immediately. In consequence of this, the master gave orders to leave off screwing down hemp, and to fill the ship as fast as possible by hand; and the whole day was employed in this way, and the ship filled as far as could be done by hand. In the evening the ship sailed, with something more than half the cargo that she could have carried if the hemp had been screwed down: the merchant had a sufficient quantity of hemp for a full cargo lying by the ship's side in lighters. Many other British vessels sailed the same evening, or the next morning, without full cargoes; some, however, remained, and afterwards completed their lading, and were not detained by the Russian government. No embargo was, in fact, imposed until six weeks after this time: the ship would have completed her loading within that period. The master sailed away without any communication with the defendant's agents at St. Petersburgh, who came to Cronstadt as soon as they had notice of the circumstance, with intention to stop the ship, but arrived too late. The master acted bonâ fide, and as an honest man, and there was reasonable and well-grounded apprehension for his acting as he did. The goods taken on board were brought to London, and there delivered to the merchant. The merchant sued the master for not bringing a complete cargo, according to his contract. It was argued that the master was excused either by the operation of this clause in the contract, or by that general principle of law which requires every subject, as a matter of public duty, to save the property and persons entrusted to his charge from falling into the hands of the enemies of his country.

But the court held, that neither of these grounds furnished an excuse in the particular circumstances of this case.

But

"It has been contended," said Lord Ellenborough, "that the exception contained in this contract, of 'restraint of princes and rulers during the voyage,' excuses the not taking on board a complete cargo in this case; but, without considering whether this provision respecting restraint of princes, &c., be at all applicable, by way of excuse for the non-performance of this part of the master's stipulated duty-viz., the taking on board a complete cargo-yet, at any rate, the restraint meant must be an actual and operative restraint, and not a merely expected and contingent one, as this at most only was. it has been further argued by the defendant's counsel, that, supposing the master, in respect of his express contract, not to be otherwise justifiable in regard to the freighter, yet that he is so at any rate, on the ground of his paramount duty to the state, which required him to save the property and crew under his charge from the impending peril of an instantly-expected embargo; and that, in every private contract, however express in its terms, there is always a reservation to be implied for the performance of a public duty, in which the interest of the state is materially involved. That no contract can properly be carried into effect which was originally made contrary to the provisions of law, or which, being made consistently with the rules of law at the time, has become illegal in virtue of some subsequent