leaving the shipper of the goods to protect himself by procuring an insurance on them against those perils. The exception does not appear in the bill of lading used in the reign of Elizabeth; and it does appear in the bill used in the reign of Charles the First. It was afterwards enlarged and modified in many ways. What losses are attributable to the dangers or "perils of the sea"? The phrase is very broad, and the forces that act upon and at times work loss or damage to the ship and its cargo, are capable of almost infinite modifications; but the phrase is not broadly construed. The danger from fire, which is certainly enhanced by the situation of the ship, is not considered a peril of the sea. The phrase is considered descriptive of those dangers arising from the elements, which occur without the intervention of human agency, and which the prudence of man cannot foresee, nor his strength resist. It covers losses by collision without fault on the part of the carrier; and it does not cover losses arising in part through his negligence; nor such as he might have foreseen and ought to have prevented.

5

1 Ch. J. Kent, in Elliott v. Rossell, 10 John. R., 1, 8, 9, refers to these exceptions as evidence of the common law.

2 Morewood v. Pollock, 1 Ellis and Black., 743; S. C., 18 Eng. L. and Eq., 341; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S. Rep., 344; Garrison v. Memphie Ins. Co., 19 How. U. S., 312.

sea.

3 3 Kent's Com., 300; Schooner Reeside, 2 Sumner, 571.

4 Smith v. Scott, 4 Taunt., 126; Hays v. Kennedy, 41 Penn. St., 378. Buller v. Fisher (3 Esp., 67) was an action against the owners of the ship Atlas, for the loss of goods shipped in her, and the bill of lading excepted the perils of the The circumstances presented were these: Two ships, called the Patriot and the Matthew, were sailing in one direction, and the Atlas in another; the Matthew was to leeward when they saw the Atlas coming; the Matthew steered to keep closer to the wind, in order to give the Atlas an opportunity to pass; the Atlas mistook the object, and unable to weather both ships, she and the Patriot ran foul of each other, and the Atlas went down. Lord Kenyon: "If the defendants have been guilty of any degree of negligence, and it could havo been proved that the accident might have been prevented, they would have certainly been liable; but they are exempt by the condition of the charterparty from misfortunes happening during the voyage, which human prudence could not guard against--against accidents happening without fault of either party. I am of opinion that neither ship could be deemed to be in fault; and that the misfortune must be taken to be within the exception of the perils of the sea."

5 Converse v. Brainard, 27 Ct., 607; Lloyd v. Gen. Iron Screw Collier Co., 3 H. and C., 284.

6 New Haven Steamboat Co. v. Vanderbilt, 16 Ct., 420; Sills v. Brown, 9 Carr. and Payne, 661; Blythe v. Marsh, 1 N. and McCord, 360; Fairchild v. Slocum, 19 Wend., 329.

§ 587. It has been asserted that a carrier does not by excepting "the dangers of the seas," vary or qualify his common law liability; in other words, that whatever is a peril of the sea will excuse the carrier without any stipulation to that effect. But while it is plain enough that the phrase covers many acts of superior force for which the carrier is not liable under the general rule, it is also clear that the exception relieves him from some losses for which he is otherwise liable. By legal intendment the exception covers those perils of the seas, or accidents incident to navigation, not included among the acts of God.3 The law relieves the carrier from liability for losses compelled by stress of weather in order to lighten the ship; and the exception in the bill of lading will excuse him from losses that cannot be attributed to the act of God; 5 but will not enable him to recover freight on the goods not delivered, or to retain it where it is paid in advance.

4

Similar exceptions, covering the dangers of navigation, the dangers of the lake or the river, are construed on the same principle; they relieve

1 Crosby v. Fitch, 12 Ct., 410; following Williams v. Grant, 1 Ct. R., 487. 2 McArthur v. Sears, 21 Wend., 190, 198; ante § 546.

3 Judge BOCKES, in Redpath v. Vaughan, 52 Barb., 489, 499, and cases there cited by him. E. C., 48 N. Y., 655. Where a ship is driven by stress of weather on or near the enemy's coast, and there captured, it is a loss by capture and not by the perils of the sea; but where the vessel is lost or destroyed by the waves some miles from the shore, and then plundered by the enemy, it is a loss by the perils of the sea. It is not material how near the shore or how far from it, the loss occurs; if the vessel be wrecked, stranded or lost, and afterward visited by the enemy who captured the cargo, it is considered a loss by the perils of the sea, these being the immediate cause of the loss. The law regards the proximate and not the remote cause. Hahn v. Corbett, 2 Bing. R., 205; Green v. Elmslie, Peake N. P. C., 278; Bondret v. Heutigs, Holt N. P. C., 149. Under an exception in these words, "the act of God, the King's enemies, fire and all and every other dangers and accidents of the seas, rivers and nay. igation of whatever nature and kind soever, save risk of boats so far as ships are liable thereto excepted," the carrier was not held liable for goods dispatched from the ship in a boat, as usual, at the place of her destination, and lost in a hurricane. Johnston v. Benson, 1 Brod. and Bing., 454.

Price v. Hartshorne, 44 Barb., 655; S. C., 44 N. Y., 94. In this case the carrier, in order to save his vessel and the residue of the cargo from total loss by sinking, was obliged to throw overboard the grain stored on the deck; and it was held justified by the necessity, so that the carrier was not liable therefor under the usual contract.

Laurie v. Douglas, 15 Mees. and Wels., 746; Kingsford v. Marshall, 8 Bing., 458; see Merritt v. Earle, 29 N. Y., 115; 52 Barb., 489; the destruction of goods by rats has been held a loss by perils of the sea. Carrigues v. Coxe, 1 Binn., 592; but cannot now be so regarded; Aymar v. Astor, 6 Cowen, 266; Laveroni v. Drury, 8 Exch., 166; 16 Eng. L. and Eq., 510.

6 Phelps v. Williamson, 5 Sandf., 578; Griggs v. Austin, 3 Pick., 20.

the carrier from losses coming within the very terms of the exception, provided the carrier shows that the goods were lost by the perils specified in the exception. The burden of proof still rests with the carrier.1

1 An exception in these words, "dangers of the river only excepted," used in a bill of lading, covers only such dangers as cannot be guarded against by human skill and foresight; it has the same sense as these words, "dangers of the river which are unavoidable." It releases the carrier from liability for accidents and loss occasioned by invisible snags or hidden obstructions newly placed in the river, so that human skill and foresight cannot discover and avoid them. Johnson v. Friar, 4 Yerg. (Tenn.), 48, relating to an invisible snag in the Hatchie river; Gordon v. Buchanan, 5 Yerg., 71; to the like effect is Redpath v. Vaughan, 48 N. Y., 655. The exception does not change the burden of proof. In Turney v. Wilson (7 Yerg., 340), the court instructed the jury that the "dangers of the river, as defined by the law, means all hidden obstructions in the river, as rocks, logs, sawyers, and the like, which could not be foreseen nor avoided by human prudence; and that before the carrier can be excused in a case of loss, he must show that the loss happened from some cause which human foresight or prudence could not avert ;" and the charge was held proper. See Hooper v. Wells, Fargo & Co., 27 Cala. R., 1.

It rests with the carrier, to exonerate himself from liability; he is liable un less he proves a loss of the goods from a cause within the exception. Where a box of sovereigns was shipped, to be carried from New York to Mobile, and the bill of lading contained the usual exception, "against perils of the seas," and the vessel being wrecked on the Honda Reefs, the captain removed the box from the stateroom where it could be locked up, and placed it in the run where the crew had free access, and allowed it to remain there without personally superintending it while the wreckers were on board, and the box was lost; it was held that the burden of proof was on the carrier to show that the loss occurred by a" peril of the sea; "and that failing in this, he must be held liable for the loss; that embezzlement was not a peril of the sea, and that theft and robbery were perils of the seas only where they amounted to the crime of piracy on the high seas; that the fact of the wreck did not vary the liability of the carrier unless the property perished or was lost with the wreck, and in consequence of it, and that the carrier was bound to exert all possible diligence, care and skill. King v. Shepherd, 3 Story, 349; Shaw v. Gardner, 12 Gray, 488.

The decisions have the same drift in Pennsylvania. Thus, where a steamboat on the Ohio ran upon a stone and stove a hole in her bottom, the carrier was not discharged from liability by virtue of the exception in his bill of lading, "the dangers of the river only excepted ;” but was held to prove that due diligence and proper skill were used to avoid the accident, and that it was unavoidable. Whitesides v. Russell, 8 Watts and Serg., 44. The same exception of the "dangers of the river" will cover a loss caused by collision with another boat, on proof that the loss did not occur by the carrier's negligence, or that it could not have been prevented by reasonable skill and diligence, by the hands on board. Whitesides v. Thurkill, 12 Smedes and Marshall, 599. So in respect to the dangers of the lake; Fairchild v. Slocum, 19 Wend., 329; 7 Hill, 292. Without any exception in the bill, the carrier is liable for a loss by collision at sea. Plaisted v. Boston & K. Steam Nav. Co., 27 Maine, 132; 11 N. Y., 9. An exception

§ 588. May the contract embodied in a bill of lading be controlled in its legal effect by proof of usage? Being free from ambiguity, verbal evidence is not received to vary the terms or the legal import of the contract; c. g., where a clean bill of lading is given, which imports that the goods are to be stowed under deck, parol evidence will not be received to prove a verbal agreement that the goods were to be stowed on deck.1 All prior, as well as contemporaneous stipulations are merged in the writing;2 verbal evidence of these are therefore excluded under the general rule, applicable to all contracts. The writing does not exclude proof of extrinsic facts and circumstances; or proof of mistake or fraud. And it does exclude the proof of local usage to limit or qualify the carrier's liability under the contract or under the common law.G

A custom or usage of business may be proved to assist in the inter

of "unavoidable accidents," and an exception of "unavoidable dangers and accidents of the road," are not, cither of them, considered as a restriction of the carrier's general liability. Walpole v. Bridges, 5 Blackf., 222 ; Fish v. Chapman, 2 Kelly R., 349.

"The dangers of navigation" are interpreted like other similar exceptions; it covers the dangers which are fairly attributable to the navigation; it does not cover losses arising from negligence or the want of due skill on the part of the carrier's servants. Hays v. Kennedy, 41 Penn. St., 378; and when the exception relates to the navigation of a public canal, it covers only sneh dangers as are incident to it when the trip is made in conformity with the public regnlations, of which the carrier must take notice; and hence he must answer for a damage arising from the bilging of his boat in a lock entered by him in contravention of the canal rules. Atwood v. Reliance Transp. Co., 9 Watts, 87; see Johnson v. Belden, 47 N. Y., 130, where the action was against a canal officer. So where he receives goods on a contract “excepting the dangers of the navigation," to go by a particular route, he will be liable for a loss occurring on a different ronte. Hand v. Baynes, 4 Whart., 204. What is the risk of navigation! Pitcher v. Hennessy, 48 N. Y., 415. Reserving the privilege of reshipment or transshipment does not affect the contract. Dausett v. Wade, 2 Scam., 285; Little v. Simple, 8 Mis. R., 99.

1 Creery v.

Holly, 14 Wend., 26; Niles v. Culver, 8 Barb., 205; White v. Van Kirk, 25 Barb., 16.

2 Renard v. Sampson, 12 N. Y., 561; Fitzhugh v. Wyman, 5 Seld., 559.

3 Thompson v. Sloan, 23 Wend., 71, 76; Barry v. Ransom, 12 N. Y., 462; Bank of Albion v. Smith, 27 Barb., 489.

4 Harmon v. N. Y. & Erie R. R. Co., 28 Barb., 323.

5 Graves v. Harwood, 9 Barb., 477.

6 Simmons v. Law, 8 Bosw., 213; S. C., 3 Keyes, 217; Wolfe v. Myers, 3 Sandf., 7; per COWEN, J., 21 Wend., 194; contra: Gordon v. Little, 8 Serg. and Rawle, 533; Singleton v. Hilliard, 1 Stobbart, 203, allowing testimony to restrict the carrier's liability by usage. Usage was excluded to show a damage by rats, a peril of the sea, in Aymar v. Astor, 6 Cowen, 266,

pretation of a bill of lading, or to show performance under it; and the proof will have the same effect upon this as upon other contracts. It is received to interpret or explain, but not to vary or contradict the contract. It may be received to justify carrying goods on deck, on a lake or river, or along the coast, according to the established course of trade.3 It would defeat the intent of the parties to exclude proof of a custom of this kind.

Custom and the course of business may also be proved, as evidence tending to show a delivery to the carrier, or a delivery by the carrier; 5 and as evidence of performance according to the true intent of the contract.

6

§ 589. In actions on policies of insurance against the perils of the sea, the rule of construction is somewhat more liberal toward the assured than it is towards the carrier, who has made an exception of these perils in the charter-party or bill of lading. The underwriter assumes the risk of loss from these perils for a consideration, and he cannot relieve himself from liability for a loss within the enumerated perils, by showing that the loss was remotely caused by the negligence of the master and mariners. The principle is the same as it is where he insures against a loss by fire, and is not allowed to escape liability for the loss insured against, by showing that the fire arose from the negligence of the insured or that of his agents or servants. The policy may be so drawn that it will not bind the underwriter, to answer for losses arising directly or indirectly from the want of ordinary care and skill in the lading or navigation of the vessel. But when the policy insures a

1 Walls v. Bailey, 49 N. Y., 464; Kirchner v. Venus, 12 Moore Priv. Coun. Cases, 361; for the difference between custom and usage, see Hursh v. North, 40 Penn. St., 241; see also Wayne v. Steamboat Gen. Pike, 16 Ohio, 421. 2 Schooner Reeside, 2 Sumn., 567; Turney v. Wilson, 7 Yerg., 340.

Harris v. Moody, 30 N. Y., 266; 21 N. Y., 36; May v. Babcock, 4 Ohio, 334. • The usage in shipping goods and giving bills of lading may be considered on a question of title to the cargo; Blossom v. Champion, 37 Barb., 554; 13 N. 121.

Y..

• Ante § § 524, 525; Blin v. Mayo, 10 Vt., 56; Gibson v. Culver, 17 Wend., 305; Huston v. Peters, 1 Met. Ky., 558; Dixon v. Dunham, 14 Ill., 324; 4 Pick., 371; 59 N. Y., 258.

• Columbia Ins. Co. v. Lawrence, 10 Peters, 507; Waters v. Merchants' Ins. Co., 11 Peters, 213; 14 Peters, 99; 2 Story's R., 176.

7 Walker v. Maitland, 5 Barn. and Ald., 171; Draper v. Com. Ins. Co. and Columbia Ins. Co., 4 Duer, 234, 239; Copeland v. New E. M. Ins. Co., 2 Metc., 435; Bishop v. Pentland, 7 Barn. and Cress., 219.

Gates v. Madison Co. M. Ins. Co., 1 Seld., 5 N. Y., 469, 478.

9 Savage v. Corn Ex. Fire and Inland Nav. Ins. Co., 4 Bosw., 1, 19; S. C., 36 N. Y., 655; for an insurance against perils, excepting ice, sce Dows v. How. ard Ins. Co., 5 Robt., 473; Allison v. Corn Ex. Ins. Co., 57 N. Y., 87.