English ship, so long as he remained on board that ship he was in the same position as an English subject would have been. Then the great difference is this, that in that case the offence was fully and entirely committed on the vessel upon which Anderson and the murdered man were. am unable to see anv analogy between that case and the present. I Then, the learned judge of the court below referred to several other cases, and amongst them to The Halley, which he said appeared to his view to follow the same course as Reg. v. Anderson (ubi sup.). There, again, I am unable to agree with the learned judge. Where a suit is instituted in an English court in respect of a tort committed in a foreign country, it is not sufficient for the plaintiff to show that there is a liability on the part of the defendant in respect of foreign law, but he must also show a liability in respect of the English law, and therefore in that case of The Halley (ubi sup.), inasmuch as by English law there is no liability on the owners by reason of their having engaged a pilot by compulsion, it was not open to the plaintiff to claim or receive damages, because, by the law of Belgium the owners were not relieved from responsibility because they did employ a pilot by compulsion. The principles seem to be laid down much more clearly and distinctly, I think, in the case of Phillips v. Eyre-I am reading from the judgment of Willes, J. they are laid down in these terms: "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled, first, the wrong must be of such a character that it would have been actionable if committed in England. Therefore, in The Halley, the Judicial Committee pronounced against a suit in the Admiralty, founded upon a liability by the law of Belgium, for collision caused by the act of a pilot whom the shipowner was compelled by that law to employ, for whom, therefore, as not being his agent, he was not responsible by English law; secondly, the act must not have been justifiable by the law of the place where it was done.' If English law alone is applicable to this case, there would have been an actionable wrong just as if the wrong had been committed in England; then the question remains would it have been justifiable by the law of the place where it was done. For the purpose of the present proceedings we are bound to presume that according to the law of Spain, there is no liability or responsibility on the part of the owners of the ship for the acts of the master and crew. It appears to me, therefore, by applying the principles so enunciated in Phillips v. Eyre (ubi sup.), we are able to arrive at the conclusion in the present case that the law of Spain, and not the law of England, applies. I am reminded by my learned brother that the words "for action justifiable," must mean with regard to the particular defendant against whom the action is brought; we, therefore, think it is clear from that that the proceedings against the defendant must fail by reason of there being no liability under the Spanish law. Appeal allowed. Solicitors for the appellants, Parker and Clarke. Solicitors for the respondents, Ellis and Co. [CT. OF APP Wednesday, March 1, 1876. (Before JAMES and MELLISH, L.JJ., and BAGGALLAY, J.A.); THE PETER DER GROSSE. Damage to cargo-Bill of lading-Weight, contents and value unknown-Onus of proof. 66 A master signing a bill of lading in which it is stated that the goods were shipped in good order and condition," but which contained a memorandum of "weight, contents, and value unknown,” admits that, as far as could be seen externally, the goods were shipped in good condition, and if they arrive damaged the onus lies upon the shipowner to excuse himself from the damage. THIS was an appeal from a decree of the High Court of Admiralty of England in a cause of damage to cargo instituted on behalf of Schoetensack, Riecken, and Co., merchants of London, against the Russian steamship Peter der Grosse, and her owners intervening. In June 1874, Scheuman and Spregel, of St. Petersburg, shipped on board Peter der Grosse, then lying at St. Petersburg, seventeen bales of down and eight of feathers for delivery to the plaintiff's in London, and the master signed and gave to the shippers in respect of the said bales bills of lading, which were in the following words and figures: Shipped in good order and well conditioned, by Scheumann, Spregel, and Co., in and upon the good steamship, called the Peter der Grosse, whereof is master for the present voyage, H. Godtman, now laying at anchor in the harbour of St. Petersburgh, and bound for London: feathers 51p. 15lb. W.D. 1180/1186, 7 bales, down, gross weight, 35p. 38lb. G.D. 1336/1345, 10 bales, P. 1670/1674, 5 25p. 27lb. 1104/1106, 3 15p. 16lb. being marked and numbered as in the margin, which are to be delivered in the like good order, and well-conditioned at the aforesaid port of London (the act of God, the Queen's enemies, fire, machinery, boilers, steam, and all and every other dangers and accidents of the seas, rivers, and steam navi. gation of whatever nature and kind soever excepted), unto Messrs. Schoetensack, Riecken, and Co., or to their assigns, he or they paying freight for the said goods, at 70s. sterling per ton, gross weight, in full with prisage and average acoustomed. In witness whereof the master and purser of the said ship hath signed five bills of lading all of this tenor and date, one of which bills being accomplished, the others to stand void. Not accountable for accidents from fire at sea or on shore. Weights, contents, and value unknown. These goods, if not taken out within twenty-four hours after the ship's arrival, the master to be at liberty to enter and land the same at the consignee's risk and expense. Dated in St. Petersburg, the 8th June 1874. H. GODTMAN. The ship had a very long passage from St. Petersburg to London. On her arrival at the latter port, the bales were discharged from the ship by means of lighters, and were at once examined, and were found to be stained and damaged by some offensively smelling liquid, the exact character of which was not ascertained, some persons supposing it to be oil of tar, others some sort of spirit; portions of the feathers and down in the bales were wetted with the liquid and completely spoiled. When the bales were landed, they were marked on the outside so that the lighterman in giving his receipt for them made an entry therein of "bales dirty." The bales were sold at a loss of 1561. on their proper value of 8401. 12s. 6d.. Evidence was given on behalf of the plaintiffs to show that the bales could not have been damaged by internal heating or other inherent vice, and that they sustained no injury in the lighters. From the defendant's evidence it appeared that the damaged feathers and down were stowed in the forehold on the top of some bales of wool, and were covered with sail cloth; also that although there was some strong spirit in the afterhold, there was no part of the cargo in the forehold of the ship that could have produced the damage complained of. The ship on her voyage was compelled to put into Revel, having broken her propeller. Between Cronstadt and Revel the ship carried passengers who lived down in the forehold on the top of the feathers. Evidence was also given for the defendants that no other goods in the ship were in any way damaged, and that the feathers were no worse damaged than feathers arriving by steamer from Russia usually are. The defendants alleged that the damage was not occasioned by any negligence, breach of duty, or contract on the part of themselves or their servants, but by reason of inherent vice in the feathers and down and by reason of improper curing; and that the goods were properly stowed and preserved on board ship. The cause was heard before the learned judge of the Admiralty Court on the 22nd July 1875, and he then delivered the following judgment: SIR R. PHILLIMORE.-This suit relates to seventeen bales of down and eight bales of feathers which were placed on board the Russian vessel Peter der Grosse in the month of June 1874. There is no question whatever as to the fact that these bales were taken out of the ship in a bad condition-in what one of the witnesses has called "a not merchantable condition." The question which the court has to determine, upon the evidence before it, is, whether the plaintiff has succeeded in maintaining the position that he out these bales on board in good order, and that therefore the damage must have occurred from some cause with which he may not be acquainted, but which could not arise from the state of the cargo itself when put on board the vessel. Now, the bill of lading says, "Shipped in good order and well-conditioned by Scheumann and Spiegel, in and upon the good steamship called the Peter der Grosse, whereof is master for this present voyage H. Sodtmann, now lying at anchor in the harbour of St. Petersburg, and bound for London ;" and then there follows the numbers of the bales of down and of feathers, and then the bill of lading goes on, "which are to be delivered in the like good order and well-conditioned at the aforesaid port of London :" then the usual exceptions, " unto Messrs. Schoetensack, Riecken, and Co., or to their assigns," and there is the freight, and in the margin is written, "Not accountable for accidents from fire at sea or on shore; weight, contents, and value unknown." Now the vessel made a very long voyage; she was six weeks before she reached the port of her destination, and she was detained by the necessity of repairs at Revel for 17 days. The evidence as to the state of these bales when they were taken out is important, not only with respect to the latter part of the case, but in respect to the former part. Soon after their arrival early intelligence was given by the consignees of their objection to the state of the cargo. I need not enter into the details of the letters which passed as to the state of these goods [CT. OF APP. 66 when they arrived. One fact is very clearly established by all the witnesses, and is undisputed in this case that the feathers were of the very best class, and the down also, that could be imported. They were surveyed by two gentlemen experienced in the business, one appointed by the consigees and one by the ship-owners. Mr. Brookes was the person appointed by the consignees, and he surveyed the feathers and down in company with another gentleman whose name was Blumenthal, and he gives evidence that a clerk was present from Messrs. Bailey and Leetham, who were the representatives of the owners of the ship during the time, and he put in a report. The essential part of this report was that the bales emitted a very bad smell, which smell was, to use the expression of the witness, foreign to to the natural smell of feathers," and, in his opinion, also the damage to them must have come from the outside. He said there was no appear ance of heat; the outside of the canvas in which these feathers were placed was more or less dirty. I think it was stated that they were bags 5ft. high, or thereabouts, and 3ft. broad. He said they were stained with a black stain, and they also smelt more or less. That is the substance of the evidence given by Mr. Brookes. Mr. Blumenthal, who, as I have said, was appointed on behalf of the shipowners, says that he deals in down and feathers, and he surveyed these bales, and that the outside was as if some liquid had been poured over them, while the inside had an offensive smell more or less through it; certainly not a natural smell, something quite strange to the article. And then another witness was examined, also conver sant with what is called the feather business, a gentleman of the name of Worrall, who said he imported a great deal, and that he bought a parcel of the feathers from the plaintiff in this case by sample. He afterwards refused to take the feathers on account of the condition in which they were. He said that he got a notice that the goods were damaged; that he went down to the quay the next morning, and found every bag stained more or less, some in the side, and some in the middle; he put his hand nearly through, and he says the damage was from the outside decidedly; it cer‐ tainly was not damaged by the inherent heating. He proceeded to say that the smell was a very bad one, and certainly one not natural to the feathers, and I think he said from 8in. to 12in. in the interior was quite wet, he refused to accept the feathers; he said that the smell of heat in feathers would be quite different. He said, in cross-examination, that he put his hand in, and that they were of an oily or greasy appearance. The next witness of importance is, I think, the lighterman who fetched the bales from the Peter der Grosse, and he, when he received these goods, called attention to their condition, because he said they looked as if they had lain in mud, and when he gave his receipt for them, it was in these words: "Received the within, in good condition, into barge Result, Number 1765, to be landed at the Custom House, bales dirty; ' then he delivered them to Mr. Mackenzie, at the Custom House quay, who was manager to Mr. Dudley Smith at the Quay. Mr. Mackenzie said the goods were landed about the 27th of July; that the outside of the bales was dirty and damp, they looked as if they had been drawn across the deck; the cause of this condition was recent, and they CT. OF APP.] were THE PETER DER GROSSE. out in were not externally in a merchantable condition. He did not examine the inside. It is clear, therefore, that these goods were taken out in an unmerchantable condition, and that they were damaged externally as well as internally, that the damage was recent, that the damage was not one which would be naturally inherent in any goods in the feathers themselves, and that the feathers and down themselves were of the very first quality. Now, these points being established, it becomes important to consider what evidence is furnished by the bill of lading, as to their condition when they were put on board, and I agree with the observation which has been made by Mr. Clarkson, that, fairly construed, and giving all due weight to the legal effect of the marginal note, the result must be that apparently, and so far as meet the eye, and externally, they were placed in good order on board this ship. Well, then, if that be so, if the plaintiff has shown by primâ facie evidence that, having put these bales and bags in good order on board the ship, and they then taken bad order, both externally and internally, then I agree with the observation which was made that it is not incumbent on him to show either how or when the damage was done. It is for the defendant to displace the evidence, which certainly shows that it did not occur from any internal mischief inherent in the feathers or the down, and was not one which had any external appearance when they were put on board the ship. It has been asserted that the shipowner has proved the impossibility of the mischief having happened on board the ship; but it does not appear to me that the evidence goes to that length. There were spirits of strong smell on board this ship; there were passengers who, for a short time, were living in the vicinity of this cargo, in and amidst the cargo; the vessel was seventeen days at Revel, and the cargo was discharged, I think, according to the evidence, all about the same time, and there was a leakcargo. But ing cask, or casks, among the whether these circumstances do or do not suggest any reason for the damage which unquestionably happened to these goods, I think that the plaintiffs have discharged the burthen of proof that lay upon them, and it was for the defendants, if they could, to displace that burthen of proof by showing that when the goods were put on board the vessel they were in a bad condition, internally, and that the bad condition showed itself at the time in the external state of the packages in which the goods were placed. I need not repeat what I have already said, that rebutting evidence has not been furnished, but that the evidence which has been given leads me to the conclusion, from the facts before me, that the plaintiffs have established their case, that these goods were put on board the vessel in good order and condition, and taken out of that vessel in bad order. I therefore pronounce for the prayer of the petition, and I must order the documents and vouchers to be left with the registrar and merchants to report the amount of damage done. A decree was accordingly made in favour of the plaintiffs, and from this decree the defendants appealed. A. L. Smith (C. Hall with him) for the appellants. The master by inserting the words weight, contents, and value unknown" in the 66 [CT. OF APP bill of lading refuses to sign a clear bill, and asserts that he knows nothing of the condition of the goods. It is consistent with the evidence that the goods were damaged before shipment. When the consignee shows that the goods are delivered damaged he proves, no doubt, a primâ facie case, and the shipowner must show that nothing on board could have caused the injury which the consignee states the goods to have received; but on the shipowner giving such proof the onus goes back to the consignee, who must show that the shipowner did the damage. A shipowner is not estopped from showing that the goods carried by him are injured out of the ship, although his bill of lading states them to have been shipped in good condition, provided it contains the words weight, contents, and value unknown." 66 Jessel v. Bath, L. Rep. 2 Ex. 267; Lebeau v. The General Steam Navigation Company, ante, vol. 1, p. 435; L. Rep. 8 C. P. 89; 27 L. T. Rep. N. S. 447. The consignee has no better right than the shipper, who alone, before the Bills of Lading Act could have sued, and the master signing such a bill of lading would have been at liberty to show as against the shipper, that although the goods were shipped apparently clean they came in contact with nothing on board the ship that could account for the damage. It has been shown here that the injury to the goods was not of a nature which could have been caused on board the ship, more especially as these were the only goods damaged out of the whole cargo. E. C. Clarkson and Lanyon for the respondents were not called upon. JAMES, L.J.-The judgment of the court below must be confirmed. The appellants have sought to contend that because the master signed a bill of lading containing the words "weight, contents, and value unknown," it must be taken that he repudiated anything like an admission as to their condition when shipped, but I do not think that these words have such a meaning; the bill of lading taken together must be considered to admit that the goods when shipped were, as far as they could be seen, in good order, and by adding the words above quoted, the master does no more than say that he does not admit anything as to the contents of the packages, which he cannot see. He does admit, however, that the goods appear to be in good condition outside, and this throws upon the appellants the onus of proving that the damage did not arise whilst the goods were on board the ship or in their custody, or that it comes within the exceptions of the bills of lading. For the purpose of doing this they have attempted to show that there was nothing on board the ship that could have occasioned damage of the nature sustained, but looking to the evidence as to the passengers, I do not think that this is made out. Again, they contended that the damage could not have been done on board ship because only this consignment was damaged, whereas, if material of the nature causing the damage had been in the ship, other goods must likewise have been damaged. But there is no force in this argument, because these bales were all together, and it was most probable that the cause of the damage might affect a particular lot of bales. Many causes of damage are NUGENT v. SMITH. CT. OF APP.] necessarily purely local, as in the case of ink spilt over books; it is true a whole cargo may be damaged by a leak, or by some portion rotting, and affecting the rest, but saturation by an oily substance may very well be local, and affect only a portion, especially if the amount of damaging matter has been small. I am of opinion that the appellants have failed to show that this damage was not done on board ship, and in fact the evidence satisfies me that it was done on board the ship and not outside of it. The appeal will be dismissed with costs. MELLISH, L.J., and BAGGALLAY, J.A. concurred. Appeal dismissed. Solicitors for the appellant, Plews, Irvine, and Hodges. Solicitors for the respondent, Stibbard and Cronshey. APPEAL FROM THE COMMON PLEAS. Reported by GILBERT G. KENNEDY, Esq., Barrister-at-Law. Jan. 24 and May 29, 1876. (Before COCKBURN, C.J., JAMES and MELLISH, L.JJ., MELLOR, J., and CLEASBY, B.) NUGENT v. SMITH. Act of God-Carrier by water-Damage to mare— Accident caused partly by storm, partly by terror of animal-Liability of owner of ship not a general ship. A loss occasioned by the act of God is a loss arising from and occasioned by the agency of nature which cannot be guarded against by the ordinary exertions of human skill and prudence so as to prevent its effect. The plaintiff delivered to the defendant in London a mare to be carried by the defendant by steamer from London to Aberdeen, between which places the defendant ran steamers as a common carrier. A storm arising during the voyage, the mare was so injured that she died. The jury found that the injury was caused partly by excessive bad weather and partly by the fright and struggling of the mare, and they negatived all negligence on the part of the defendant. Held, reversing the decision of the Common Pleas, that upon these findings of the jury the defendant was not liable. Per Cockburn, C.J.-There is no authority for the proposition, nor is there any trace of a special custom of the Realm, i.e., common law, that all carriers by sea are subject to the liability of a common carrier, whether by sea or land. THIS was an action against the defendant as secretary of a steamboat company, who advertised and ran a line of steamers from London to Aberdeen. The plaintiff delivered to the company in London two horses to be carried to Aberdeen The horses were shipped without any bill of lading. At a part of the voyage, during rough weather, one of the animals, a mare, was injured to such an extent that she died, and the plaintiff brought the action for damages occasioned by the loss. The action was tried before Brett, J., at the sittings in London after Hilary Term 1874, when the following questions were left to the jury: 1. Was the injury to the mare caused by negli gence of the defendant's servants, either in preparing for bad weather or in attempting to save | the mare from the consequences of bad weather? Answer, No. 2. Or, was the injury caused solely by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence of the defendant's servants? Answer, No. 3. Or was the injury caused solely by the perils of the sea, i.e., by more than ordinary rough weather, without any negligence of the defendant's servants, or any fright and consequent struggling of the mare ?-Answer, No. 4. Or was it caused partly by more than ordinary bad weather, and partly by the conduct of the mare herself by reason of fright and consequent struggling, without any negligence of the defendant's servants ?-Answer, Yes. 5. Were there any known means, though not ordinarily used in the carriage of horses by people of ordinary care and skill, by which the defendant could have prevented the injury to the mare? The jury were unable to agree upon this question. Upon the answers to these questions the learned judge entered a verdict for the defendant, with leave to the plaintiff to move to enter the verdict for him. In Easter Term 1874, a rule nisi was granted, against which cause was shown in Easter Term 1875. The considered judgment of the court (Brett and Denman, JJ.) was, on 2nd Nov. 1875, delivered by Brett, J., in favour of the plaintiff (ante, p. 87; 33 L. T. Rep. N. S. 731; L. Rep. 1 C. P. D. 19). Against this judgment appealed. the defendant now Benjamin, Q.C., Holl, and Douglas Walker for the defendant, the present appellant.-We do not appeal against that part of the judgment of the court below which decides that the defendant is liable as a common carrier, but we contend that by the act of God the defendant is excused from legal responsibility. In order to come within the legal definition of the act of God, the act must be one from which all human intervention is absent. The doctrine of the common law, that a common carrier by water is liable as an insurer, is founded on public policy, because if any human intervention, however irresistible, were allowed to be pleaded by him as an excuse for loss or injury, there would be no safety to the person entrusting him with goods; the doctrine does not extend to loss occasioned by the act of God or by the King's enemies, for the reason that such case would preclude the possibility of any collusion of the carrier's part. Such is the theory of the law. [COCKBURN, C.J.-Only as confined to English law]. It is founded on the Roman law. [CockBURN, C.J.-The Roman law only contains nautæ, caupones, et stabularii; but must we not look at a cognate matter, and see how far a storm, however wild, is covered by the words "perils of the seas "in a policy of marine insurance?] There has been a distinction between perils of the sea and the act of God, in this way, that perils of the seas are what could be averted; for instance, if in ordinary bad weather a ship strains and water gets through her seams so that the goods get injured, the owner is liable; but if a wave, rushing on board, breaks into a hatchway, that is within the sense of the exception an act of God. The reason of the rule is that it does not apply where human collusion is possible, and if the carrier has not neglected every human precaution he is not liable. The leading case is Forward v. Pittard (1 Term Rep. 27), | Angell on Carriers, sect. 156, note; Colt v. M'Mechen, 6 Johnson's Reports of the Secondly, the accident was owing to the inherent qualities of the animal. An insurer is not liable if injury is caused by the inherent quality of the thing: Taylor v. Dunbar, (ubi sup.); Kendall v. South-Western Railway Company, 26 L. T. Rep. N. S. 735; L. Rep. 7 Ex. 373; 41 L. J. 184 Ex. ; Blower v. Great Western Railway Company, L. Rep. 7, C. P. 655; Jones on Bailments, App. 21; Clark v. Rochester and Syracuse Railway Company, 4 Kernan's (American) Rep. 570; Smith v. Newhaven Railway Company, 12 Allen 531. Cohen Q.C. (Lanyon with him) for the plaintiff. -If the common law presses harshly on the carrier, he may protect himself by a bill of lading; he is not liable for injury occasioned by the act of God or the Queen's enemies, but the onus is on him to show that the loss was so occasioned, and unless he discharges himself from such onus, he is liable. The question is, what is the meaning of the phrase actus Dei? It is not sufficient to show that the intervention of man is absent. Here there was no more intervention than in a case where a bale of cotton catches fire by spontaneous combustion, and sets fire to adjoining bales; the carrier would be exonerated from liability for the original bale, but not for the others. Where damage was done to goods on board a ship by rats, the shipowner was held liable for such damage, [CT. OF APP. although he had kept cats on board: (Laveroni v. Drury, 8 Ex. 166; 22 L. J. 2, Ex.). The tendency of rats to bite wood and the tendency of a bale on fire to set fire to other bales is not the intervention of the hand of man. The act must not only be the act of a higher power in order to exonerate the carrier, but it must be an act that is sudden, overwhelming, and extraordinary. The common law rule by which the carrier by sea is rendered an insurer was founded by the Roman law at a time when owners navigated their own ships, and therefore as the goods were entirely under the control of the shipowner and his servants, it was impossible for the owner of the goods to enter into any question of how injury was caused to the goods while under the care of the shipowner. Therefore it was in order to prevent litigation, not collusion, that the common law rule came to be what it is at the present day. That was before insurance. Now the shipowner can protect himself by exceptions in the bill of lading. He is not liable for perils of the sea: (Lawrence v. Aberdein, 5 B. & Ald. 107; Gabay v. Lloyd, 3 B. & C. 793.) All the American jurists and the greatest English judges have laid it down that it is not the act of God unless it is something unusual, sudden, and certain, and one that no care operating between the cause and the effect could provide against. [JAMES, L. J.-If between the commencement of the storm and the happening of the injury, the placing of two men at the head of the horse could have prevented the accident, then you say that the act was not in a legal sense the act of God ?] Quite so. Kent's Comm. 8th edit. pp. 784, 785. The evidence shows that there was plenty of human intervention-how difficult for the plaintiff to show whether such intervention was wise or not! Benjamin, Q.C. in reply.-The act of God must first be established, then comes in the human intervention; the human intervention must not be practically impossible but physically impossible. The evidence shows that all care was taken. Cur adv. vult. May 29.-The following judgments were delivered. COCKBURN, C.J.-This case involves a question of considerable importance as regards the law relating to carriers by sea, but the facts are few and simple. The plaintiff being the owner of two horses, and having occasion to send them from London to Aberdeen, shipped them on board a steamship belonging to the company of which the defendant is the representative, plying regularly as a general ship between the two ports. The horses were shipped without any bill of lading. In the course of the voyage a storm of more than ordinary violence arose, and partly from the rolling of the vessel in the heavy sea, partly from struggling caused by excessive fright, one of the animals, a mare, received injuries from which she died. It is to recover damages in respect of her loss that this action is brought. The jury, in answer to a question specifically put to them, have expressly negatived any want of due care on the part of the defendant either in taking proper measures beforehand to protect the horses from the effect of tempestuous weather, or in doing all that could be done to save them from the consequences of it after the storm had come on. A further question put to the jury was whether there were any known means, though |