the "management of the vessel"; and also for failure to heed a light showing the position of a reef, and for the mistake of the captain in entering a bay at low tide and thus stranding the ship," as faults of navigation.

Limited Liability Act 1

Under section 4283 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 2943), the liability of the vessel owner for loss or damage 92 is limited in amount to "the interest of such owner in such vessel and her freight," " provided only the loss or damage occurred "without the privity or knowledge of such owner." Under this statute, then, the owner is protected from losing any more than the amount of his interest, even though the damage to the injured cargo, or the value of the lost cargo, may far exceed in amount the interest of the owner.

1995

CARRIER'S LIABILITY FOR DEVIATION AND DELAYDEVIATION

121. When the carrier, without necessity or reasonable excuse, deviates from the usual or agreed route, he becomes ab

solutely liable for the goods, without any exception what

soever.

A material deviation from the usual or agreed route, without justification or excuse, by the carrier, is the assumption of an unlawful dominion over the goods, and is therefore equivalent to a

89 The E. A. Shores, Jr. (D. C.) 73 Fed. 342. 90 In re Meyer (D. C.) 74 Fed. 881.

91 Act March 3, 1851, c. 43, 9 Stat. 635. For text of act, see U. S. Comp. St. 1901, p. 2943; 1 Hutch. Carr. p. 361, note. For text and extensive annotations, see 4 Fed. St. Annotated, pp. 839-849.

92 The limitation applies equally to cases of personal injury and death, and to cases of loss of, or damage to, property. Butler v. Boston & S. S. S. Co., 130 U. S. 552, 9 Sup. Ct. 612, 32 L. Ed. 1017 (death of passenger); Craig v. Continental Ins. Co., 141 U. S. 643, 12 Sup. Ct. 97, 35 L. Ed. 886 (death of member of crew).

93 The City of Norwich, 118 U. S. 491, 6 Sup. Ct. 1150, 30 L. Ed. 134; The Benefactor, 103 U. S. 247, 26 L. Ed. 466; In re La Bourgogne (D. C.) 117 Fed. 261; Matter of Wright, 10 Ben. 14, Fed. Cas. No. 18,066.

94 Sumner v. Caswell (D. C.) 20 Fed. 253; The Main v. Williams, 152 U. S. 122, 14 Sup. Ct. 486, 38 L. Ed. 381; In re Meyer (D. C.) 74 Fed. 897. 95 The Republic, 61 Fed. 109, 9 C. C. A. 386; Craig v. Continental Ins. Co., 141 U. S. 643, 12 Sup. Ct. 97, 35 L. Ed. 886; Parsons v. Empire Transp. Co., 111 Fed. 208, 49 C. C. A. 302; The Annie Faxon, 75 Fed. 314, 21 C. C. A. 366; In re Leonard (D. C.) 14 Fed. 55.

96

conversion. This, therefore, imposes upon the carrier an absolute liability which recognizes no exception, not even the five excepted perils." For any loss or injury, the carrier is responsible, utterly regardless of how it happened or what was its cause. Even the pure act of God affords him no excuse."

98

It is said in such cases that if the loss was due to an act of God, and the carrier can go further and show that such loss or injury. would have occurred just the same, had there been no deviation, even this will not excuse him." As the unnecessary deviation was an active wrong, the carrier must bear its consequences, whatever they may be. It is said that he shall not be allowed to qualify or apportion his wrong.

Of course, this perilous responsibility rests upon the carrier only for a wrongful deviation, one for which there is no necessity or exWhen the deviation was necessary or justifiable, the carrier incurs no liability by it. Indeed,, there might be cases when the carrier, in not making a deviation, would thereby convict himself of negligence. In all of these cases, the consent of the shipper to such deviation can readily be presumed. Thus, the deviation was necessary and excusable when the carrier's vessel would otherwise have been captured by the public enemy, or when the deviation was

96 See discussion of this question as to conversion by the ordinary bailee for hire, ante, § 47. See, also, Maghee v. Camden & A. R. Transp. Co., 45 N. Y. 514, 6 Am. Rep. 124; Richmond & D. R. Co. v. Benson, 86 Ga. 203, 12 S. E. 357, 22 Am. St. Rep. 446 (carrier held liable for destruction of goods by act of God, after the carrier's wrongful refusal to deliver the goods); Baltimore & O. R. Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579; Louisville & N. R. Co. v. Barkhouse, 100 Ala. 543, 13 South. 534; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745; Powers v. Davenport, 7 Blackf. (Ind.) 497, 43 Am. Dec. 100; Davis v. Garrett, 6 Bing. (Eng.) 716; Merchants' Despatch Transp. Co. v. Kahn, 76 Ill. 520.

97 S. D. Seavey Co. v. Union Transit Co., 106 Wis. 394, 82 N. W. 285; Louisville & C. Packet Co. v. Rogers, 20 Ind. App. 594, 49 N. E. 970; Parker v. James, 4 Camp. (Eng.) 12; Galveston, H. & S. A. R. Co. v. Breaux (Tex. Civ. App.) 150 S. W. 287.

98 Davis v. Garrett, 6 Bing. (Eng.) 716; Galveston, H. & S. A. R. Co. v. Breaux (Tex. Civ. App.) 150 S. W. 287.

* See cases cited in note 97; 1 Hutch. Carr. § 295. See, also, opinion of Tindal, C. J., in Davis v. Garrett, 6 Bing. (Eng.) 716.

1 Hand v. Baynes, 4 Whart. (Pa.) 204, 33 Am. Dec. 54; Johnson v. New. York Cent. R. Co., 33 N. Y. 610, 88 Am. Dec. 416. Taking another vessel in tow, when not in distress, constitutes a deviation. Natchez Ins. Co. v. Stan

ton, 2 Smedes & M. (Miss.) 340, 41 Am. Dec. 592; Johnson v. New York Cent. R. Co., 33 N. Y. 610, 88 Am. Dec. 416. And see International & G. N. R. Co. v. Wentworth, 8 Tex. Civ. App. 5, 27 S. W. 680. But the burden of proving such necessity rests on the carrier. Le Sage v. Great W. Ry. Co., 1 Daly (N. Y.) 306.

made to escape a destructive and dangerous storm, or serious danger from icebergs.2

In each of the following cases there was no justification or excuse, and the carrier was held liable: When there was a deviation by the vessel from the usual course, and the loss was caused by a tempest; when the contract was for transportation by land, and the goods were sent by water, and destroyed by the act of God; when the shipper stipulated that the goods were to be sent by one line of boats, and they were sent by another line."

SAME-DELAY

12112. In the absence of special contract, the common carrier is bound to use only reasonable care or ordinary diligence in completing the transportation without delay. The carrier is therefore liable for delay only when it is due to his negligence.

When the carrier specially agrees to transport and deliver the goods within a prescribed time, he is, of course, bound by his contract, and is liable for his failure to live up to its terms.

When the common carrier receives goods for transportation, there is an implied undertaking on his part that they are to be carried and delivered within a reasonable time." But the carrier

2 See Van Zile, Bailm. & Carr. § 499; Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745; Johnson v. New York Cent. R. Co., 33 N. Y. 610, 88 Am. Dec. 416; Maghee v. Camden & A. R. Transp. Co., 45 N. Y. 514, 6 Am. Rep. 124.

8 Davis v. Garrett, 6 Bing. (Eng.) 716. The same principle applies to carriers by land. See Powers v. Davenport, 7 Blackf. (Ind.) 497, 43 Am. Dec. 100; Phillips v. Brigham, 26 Ga. 617, 71 Am. Dec. 237; Lawrence v. McGregor, Wright (Ohio) 193.

Ingalls v. Brooks, 1 Edm. Sel. Cas. (N. Y.) 104; Philadelphia & R. R. Co. v. Beck, 125 Pa. 620, 17 Atl. 505, 11 Am. St. Rep. 924. So, where the agreement was to send by canal, and they were sent by sea. Hand v. Baynes, 4 Whart. (Pa.) 204, 33 Am. Dec. 54.

5 Johnson v. New York Cent. R. Co., 33 N. Y. 610, 88 Am. Dec. 416; Cox v. Foscue, 37 Ala. 505, 79 Am. Dec. 69. So, if the agreement is to send by steam, and the goods are sent by sail. Wilcox v. Parmelee, 3 Sandf. (N. Y.) 610. A carrier must follow instructions as to the selection of carriers beyond his own route. Johnson v. New York Cent. R. Co., supra. If the owner of the designated line of boats refuses to receive the goods, the carrier should so notify the owner and await instructions. Goodrich v. Thompson, 44 N. Y. 324. And see Fisk v. Newton, 1 Denio (N. Y.) 45, 43 Am. Dec. 649.

• Ryland & Rankin v. Chesapeake & O. R. Co., 55 W. Va. 181, 46 S. E. 923; The Prussia (D. C.) 100 Fed. 484; Denman v. Chicago, B. & Q. R. Co., 52

is not an insurer, in this regard, as he is in case of loss or damage. He is liable for delay only when this is due to his failure to exercise ordinary care or reasonable diligence to transport and deliver the goods within a reasonable time. His primary duty, then, is to carry safely, as to which he is with certain exceptions an insurer. On this primary duty is ingrafted another, the duty of using ordinary care to carry promptly; but as to this he is liable only when he fails to deliver within a reasonable time, and when, in addition, this failure is due to his negligence. When loss or

Neb. 140, 71 N. W. 967; Denny v. New York Cent. R. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645; Cincinnati, I., St. L. & C. Ry. Co. v. Case, 122 Ind. 310, 23 N. E. 797; Pittsburg, C., C. & St. L. R. Co. v. Knox, 177 Ind. 344, 98 N. E. 295; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204; Bibb Broom Corn Co. v. Atchison, T. & S. F. R. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St. Rep. 361, 3 Ann. Cas. 450.

7 Taylor v. Railway Co., L. R. 1 C. P. (Eng.) 385; Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204; Scovill v. Griffith, 12 N. Y. 509; Michigan Cent. R. Co. v. Burrows, 33 Mich. 6; Empire Transp. Co. v. Wallace, 68 Pa. 302, 8 Am. Rep. 178; Kinnick v. Chicago, M. & St. P. R. Co., 69 Iowa, 665, 29 N. W. 772; Savannah, F. & W. Ry. Co. v. Pritchard, 77 Ga. 412, 1 S. E. 261, 4 Am. St. Rep. 92; Johnson v. East Tennessee, V. & G. Ry. Co., 90 Ga. 810, 17 S. E. 121. But see Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458. Goods received on Sunday must be transported within a reasonable time. Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415. The rule that a carrier is an insurer of safe delivery held not to apply to liability for delay of transportation; reasonable care only being required to avoid delay. Delaney v. United States Express Co., 70 W. Va. 502, 74 S. E. 512.

8 Southern Ry. Co. v. Wilcox, 99 Va. 394, 39 S. E. 144; International & G. N. Ry. Co. v. Hynes, 3 Tex. Civ. App. 20, 21 S. W. 622; Johnson v. East Tennessee, V. & G. Ry. Co., 90 Ga. 810, 17 S. E. 121; R. E. FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. R. CO., 163 Mo. App. 426, 143 S. W. 839, Dobie Cas. Bailments and Carriers, 196; Ruppel v. Allegheny Valley Ry. Co., 167 Pa. 166, 31 Atl. 478, 46 Am. St. Rep. 666; Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209, 40 Am. Rep. 415; Taylor v. Railroad Co., L. R. 1 C. P. (Eng.) 385; Rawson v. Holland, 59 N. Y. 611, 17 Am. Rep. 494; Michigan Southern & N. I. R. Co. v. Day, 20 Ill. 375, 71 Am. Dec. 278; Rathbone v. Neal, 4 La. Ann. 563, 50 Am. Dec. 579. A carrier of live stock is not liable for delay in the transportation thereof, unless the delay was occasioned by Its negligence, and a carrier acting in good faith and to protect the shipment is not negligent. Otrich v. St. Louis, I. M. & S. R. Co., 154 Mo. App. 420, 134 S. W. 665; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204. See, also, Cleveland, C., C. & St. L. Ry. Co. v. Heath, 22 Ind. App. 47, 53 N. E. 198; Bibb Broom Corn Co v. Atchison, T. & S. F. R. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, 110 Am. St. Rep. 361, 3 Ann. Cas. 450; St. Louis & S. F. R. Co. v. Dean (Tex. Civ. App.) 152 S. W. 1127.

• Taylor v. Railway Co., L. R. 1 C. P. (Eng.) 385; CONGER v. HUDSON RIVER R. CO., 6 Duer (N. Y.) 375, Dobie Cas. Bailments and Carriers, 204.

damage occurs, the only defense that the carrier can make is one of the excepted perils. When delay occurs, the carrier can set up the exercise of ordinary care as a perfect defense. The law thus prefers safety, by imposing an extraordinary responsibility on the common carrier as to this, to promptness, as to which the carrier incurs merely the responsibility of the ordinary bailee for hire. When the safety of the goods demands a delay, this is then not merely an act for which the carrier is excused, but such delay becomes a positive duty.10

An unreasonable delay, due to the clear negligence of the carrier, does not, however, amount to a conversion.11 Conversion involves the assertion of unlawful dominion over the goods. The owner of the goods is therefore bound to receive the goods, however long the delay.12 He cannot refuse to accept them and recover their value from the carrier. The remedy of the owner, in such cases, is to sue the carrier for damages.1 The measure of his recovery is the amount of damage that he has suffered, proximately and naturally resulting from the delay."

13

10 Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745, in which it was held that, when the safer passage was obstructed by ice, the shipmaster should have waited until it was open, instead of venturing out in the open sea. See, also, Davis v. Garrett, 6 Bing. (Eng.) 716; International & G. N. Ry. Co. v. Wentworth, 8 Tex. Civ. App. 5, 27 S. W. 680.

11 Scovell v. Griffith, 12 N. Y. 509; Hackett v. B. C. & M. R. R., 35 N. H. 390.

12 Rubin v. Wells Fargo Exp. Co. (Sup.) 85 N. Y. Supp. 1108; Goldbowitz v. Metropolitan Exp. Co. (Sup.) 91 N. Y. Supp. 318; Illinois Cent. R. Co. v. Johnson & Fleming, 116 Tenn. 624, 94 S. W. 600; Ryland & Rankin v. Chesapeake & O. R. Co., 55 W. Va. 181, 46 S. E. 923; Baumbach v. Gulf, C. & S. F. Ry. Co., 4 Tex. Civ. App. 650, 23 S. W. 693; St. Louis, I. M. & S. Ry. Co. v. Mudford, 44 Ark. 439.

13 Lowe v. East Tennessee, V. & G. Ry. Co., 90 Ga. 85, 15 S. E. 692; Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527; Wells, Fargo & Co.'s Express v. Fuller, 13 Tex. Civ. App. 610, 35 S. W. 824; Ormsby v. Union Pac. R. Co. (C. C.) 4 Fed. 706; Felton v. McCreary-McClellan Live Stock Co., 59 S. W. 744, 22 Ky. Law Rep. 1058; Ward v. New York Cent. R. Co., 47 N. Y. 29, 7 Am. Rep. 405.

14 See post, § 162. Such as deterioration of goods or loss of market. Murrell v. Pacific Exp. Co., 54 Ark. 22, 14 S. W. 1098, 26 Am. St. Rep. 17; Scott v. Boston & New Orleans S. S. Co., 106 Mass. 468; Scovill v. Griffith, 12 N. Y. 509; Ruppel v. Allegheny Valley Ry. Co., 167 Pa. 166, 31 Atl. 478, 46 Am. St. Rep. 666; Hudson v. Northern Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep. 550; Fox v. Boston & M. R. Co., 148 Mass. 220, 19 N. E. 222, 1 L. R. A. 702; Pereira v. Central Pac. R. Co., 66 Cal. 92, 4 Pac. 988; Douglass v. Hannibal & St. J. R. Co., 53 Mo. App. 473; The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644. The shipper may recover expenses to which he has been put by the delay. Black v. Baxendale, 1 Exch. (Eng.) 410; Gulf, C. & S. F. Ry. Co. v. Hume, 87 Tex. 211, 27 S. W.