(a) Miles v. Cattle, 6 Bing. 748.

(b) Brind v. Dale, 8 C. & P. 207.

(c) See Story on Bailm. §§ 383-330.

(e) Doorman v. Jenkins, 2 A. & E. 250b the common carrier and the private carrier for hire to be this. If goods given to either are neither delivered nor accounted for, the carrier, whether common or private, is liable. But if it be shown that the goods were lost, then the common carrier is still liable, unless he brings the case * within the excep tions of the act of God, or of the public enemy; but the private carrier is not liable, unless the owner shows that the loss arose from the carrier's negligence. (e) It is sometimes said that the liability of the common carrier is independent of contract and imposed by custom and public policy. We should prefer saying that it must arise from a contract and be founded upon it, but is then qualified and regulated by the customary law in a manner different from the liability assumed by a private carrier.

A private carrier for hire may undoubtedly enlarge his liability by special contract, even to the extent of warranty. Or he may lessen his liability by agreement. A special promise to carry "safely and securely," leaves him still liable only for negligence. (f)

The private carrier for hire would seem, on general principles, to have a lien on the goods for his hire; but this does not as yet appear to be distinctly adjudicated.

Common Carriers. The common carrier may be a carrier of goods, or of passengers, or of both. We shall first consider the common carrier of goods, and afterwards the common carrier of passengers.

The law in relation to the common carrier is very peculiar in many respects. He is held in the first place to very stringent responsibilities. He is not only responsible for any loss of or injury to the goods he carries, which is caused by his negligence, but the law raises an absolute and conclusive presumption of negligence whenever the loss occurs from any other cause than "the act of God, or the public enemy." (g) He is therefore held as an insurer of the goods, except only in these two causes of loss. And this rule of law is at least as ancient as the reign of Elizabeth. (h)

(e) See ante, p. * 125, note (b).

(f) Ross v. Hill, 2 C. B. 877.

(g) Coggs v. Bernard, 2 Ld. Raym. 209; Proprietors v. Wood, 8 Esp. 127; s. c. 4 Dougl. 287; Forward v. Pittard, 1 T. R. 27: Mershon v. Hobensack, 2 N. J. 872; Chevaillier v. Straham, 2 Tex. 115; Friend v. Woods, 6 Gratt 189. And by reason of this liability they have an insurable interest in the goods. Chase v. Washington M. Ins. Co. 12 Barb. 605; Steele v. Insurance Co. 17 Penn. St. 200. (h) Woodleife v. Curties, 1 Roll. Abr. Action sur Case vers Carrier (C), pl. 4; Co. Lit 89 a; s. c. nom. Woodlife's case, Moore, 462.

It is obviously founded on public policy. The goods are •159 entirely within the power of the carrier; *and it would be so easy for him to conceal his fraud or misconduct, and so difficult for the owner to prove it, that the law does not permit the inquiry to be made; but supplies the want of proof by a conclusive presumption.

The "act of God" is considered by some as equivalent to "inevitable accident," (i) * but we do not so construe these phrases. There seems to be a real difference between them. The carrier is liable for loss by robbery, although the force was overwhelming, and wholly without notice. If it be said that he is liable for this loss, because it is not "inevitable," as a sufficient guard or other precautions might have prevented it, then we say, that neither can injury from an inundation, a storm, or sudden illness (all of which excuse him), be regarded as "inevitable," because it is seldom that losses from these causes could not have been prevented by previous forethought and precaution. We take the true definition of the "act of God" to be, a cause which operates without any aid or interference from man. (j) For if the cause of loss was wholly human, or became destructive by human agency and co-operation, then the loss is to be ascribed to man, and not to God, and to the carrier's negligence, because it would be dangerous to the community to permit him to make a defence which might so frequently be false and fraudulent. (k) Nor need this "act" be positive; * although if

(i) See Fish v. Chapman, 2 Ga. 849; Neal v. Saunderson, 2 Sm. & M. 672; Walpole v. Bridges, 5 Blackf. 222.

(j) "The act of God," says Lord Mansfield, "is natural necessity, as wind and storms, which arise from natural causes, and is distinct from inevitable accident." Proprietors v. Wood, 4 Dougl. 287, 290. See also the remarks of Cowen, J., in McArthur v. Sears, 21 Wend. 190, 108, and of Lowrie, C. J., in Hays v. Kennedy, 41 Penn. St. 378.

(k) The case of Forward v. Pittard, 1 T. R. 27, is a very leading authority as to what constitutes an act of God. In that case the plaintiff's goods, while in the possession of the defendant as a common carrier, were consumed by fire. It was found that the accident happened without any actual negligence in the defendant, but that the fire was not occasioned by lightning. Under these circumstances, the Court of King's Bench held the defendant liable; and Lord Mansfield said: "A carrier is in the nature of an insurer. It is laid down that he is liable for every accident, except by the act of God or the king's enemies. Now, what only negative, it excuses the carrier; thus, a failure of wind is put upon the same footing as a storm. (l) The act of God which excuses a carrier, must be not only the proximate cause of the loss, (m) but there are cases which lead to the conis the act of God? I consider it to mean something in opposition to the act of man; for every thing is the act of God that happens by His permission; everything by His knowledge. But to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightning, and tempests. If an armed force come to rob the carrier of the goods, he is liable; and a reason is given in the books, which is a bad one, vis., that he ought to have a sufficient force to repel it; but that would be impossible in some cases, as, for instance, in the riots in the year 1780. The true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil. In this case, it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man; for it is expressly stated not to have happened by lightning. The carrier therefore in this case is liable, inasmuch as he is liable for inevitable accident." See also McArthur v. Sears, 81 Wend. 190; Ewart v. Street, 2 Bailey, 167; Fish v. Chapman, 2 Ga. 840; Backhouse v. Sneed, 1 Murphey, 173; Merritt v. Earle, 81 Barb. 88. Since the loss, to come within the exception of the "act of God," must happen without human agency, it is of course no excuse for the carrier that the loss was occasioned by the act of the third person. Thus the owners of a steamboat, being a common carrier, are liable for a shipment on board of her, lost by means of a collision with another vessel at sea, and without fault imputable to either, there being no express stipulation of any kind, between the owner of the goods and the owners of the boat, that they should be exempted from the perils of the sea. Plaisted v. B. & K. Steam Navigation Co. 27 Me. 182. See also Mershon v. Hobensack, 2 N. J. 872; Lipford v. Railroad Co. 7 Rich. L. 409; The Brig Casco, Daveis, 184. And see Whitesides v. Thurlkill, 12 Sm. & M. 699, for the effect of such stipulation. See also Wareham Bank v. Burt, 6 Allen, 113.