Lehman, Stern & Co. v. Morgan's L. & T. R. R. & S. S. Co.

DisseNtxng Opinion. MOORE, J. T am of opinion that the responsibility of a common carrier for loss of, or damage to, the thing intrusted to1 him for carriage is the same under the civil law as it is at common law. At common law the only causes which will excuse the carrier for a non-performance of his contract must be events falling within the meaning of the expression “act of God or the public enemy.” The earliest use of the term “Act of God” that can be found in the English reports, is by Sir Edward Coke, 1 Co. 976, in *241 1581, in Shelly’s case, speaking of the death of a man, and he uses it subsequently (5 Co. 87 a. 1 Ins. 206 a.), also meaning death; and again, (10 Co. 1396) where it is applied to a sudden tempest breaking down sea walls, and refers to .the statute where the term is “inevitable dangers or necessity.” Moreover, Coke used the phrase, “the act of 'God excuses,” as equivalent to Impotentia excusat legem (Coke Litt, 29), and also equivalent to an accident which is so “inevitable that by no providence or industry of him who is bound it can be prevented,” or, as in Shelly’s case, “which no industry could avoid ' nor policy prevent.” Again he uses the phrase as applicable to a sudden storm (1 Bulst. 280, i Roll Dep. 79). Subsequently, Lord Mansfield, in Forward vs. Pittard (1 Term, R. 27), introduced a somewhat different view, holding that to be an act of God it must be such a one as could not happen by the intervention of man, as storms, lightning and tempests, (Hays vs. Kennedy, 41 Pa. 378 ; 80 Am. Dic. 627), and this expressed in varying phraseology, is the accepted definition of that expression. This same expression: “The act'of God,” however, is employed by Gaius: 0601/ fiioAÍ (Theu Bian) as comprehending the 'Roman terms, fataliter divinitus, casus for-tuitas, damnum fatale, all of which terms originally referred to the intervention of the gods, in the sense that human agency was powerless ; and it was from this source, and with the intention of conveying the same idea as is conveyed by the Roman terms, that, I believe, the expression “the act of God” was first introduced into the common law. And so also am I of opinion that the rule, as well as the reason and the policy of the rule, which imposes upon the common carrier a strict and peculiar obligation and which treats him as an insurer against all but the “expected perils,” which Sir William Jones called the “sinew of wisdom,” was borrowed from the 'Roman law. Two notions have been entertained with regard to the source of this rule; one that it was borrowed from the 'Roman law, the other that it was introduced by custom *242 as an exception to the general law of bailment in the reigns of Elizabeth and James I; but so far as I have been able to ascertain, the only authority holding the latter view is Nugent vs. Smith, L. R. Com. Pl. Div., Vol. 1, p. 426, decided in 1876 by Cockburn, L. C. J., whereas the great weight of authority, including in the number such authors, scholars and jurists as Sir William Jones, and Saville and Dyer and Brett and Denman and Sohm and our own Chancellor Kent and Justice Story, hold the former view. Originally carriers for hire by the Roman law were not put under any peculiar obligations which did not belong to other bailees for hire, except in the case-of a fullo; but it appears, however, that, as said (by Ulpian, (Dig. Lib. 4 tit. 9. 1. 1., Par. 1) as an extraordinary confidence is necessarily reposed in shipmasters, inn-keepers and stable-keepers, to whom the custody.of things is committed', a severer rule than that applying ordinarily to bailees, was necessary so as to thus prevent this particular class of persons from “combining with thieves against those who trusted them,” a special edict was passed by the Praetor, by which ship-masters, inn-keepers and stable-keepers were put under a peculiar responsibility and were made liable for all losses not arising from inevitable casualties or overwhelming force. Ait Praetor; Nautae, caupones stabularii quod empique salvum fore recep- erint, nisi restituent in eos judicium dabo. (Dig. Lib. 4, tit. 9. 1. 1. 5; Story on Bls., par. 458.) The. construction put upon this edict was that bailees were liable in every case of loss or damage, although happening without any fault on their part, unless it happened by what was called a “fatal damage.” “By this edict,” sqys Ulpian, “the one who takes the goods is liable under any circumstances, even if the thing perish or w damaged without his fault, unless the accident happen from a damnum fatale.” Then Laber writes, if anything shall have perished through shipwreck or by the force of pirates an equitable exception should be made in favor of him. Likewise it will be held it *243 a vis major shall have overtaken the shipmaster, inn-keeper or stable-keeper. At hoc Edito onmi modo, qui recepit tenetur, etiamsi sine culpa ejus res periit, vel damnum datum est; nisi si quid damno fatali contiugit. Inde Labe© scribit si quid naufragio, aut per vim piratarum perierit, non esse iniquum exceptionem ei dare. Idem erit dicendum, et si in sta'bo, aut in caupona vis major contingent. (Dig.Lib. 4 tit. 9. 1. 3., par. 1.) It seems clear that it was the purpose of this edict to impose upon the class of persons named therein the same extraordinary responsibility which the law imposed on a fuller, which was so great that if the clothes received by the latter to be cleaned by him were stolen the owner might not even have his action against the thief, because, as runs the law, the owner is not considered as interested in their safety, having a right of action called locati against the fuller. Item si Fullo polienda curandave, aut sarcina-tur sarciencla, vestimenta mercede certa constituía acceperit, eaque furto amiserit, ipse furti habet actionem, non dominus; quia domini nihil interest, earn rem non perire; cum judicio locati a fullone, aut sarcinatore, rem suam persequi possit. (Ins. Jus. Liv. IV, Tit. 1, Par. XV.) From the edict of the Praetor, says Kent, the principle of extraordinary responsibility of the common carrier and which regards him in the nature of an insurer, was taken; adding, that this principle “has insinuated itself into the jurisprudence of the civilized nations of Europe/’ (Kent’s Com., Vol. II, p. 597.) Referring to this same edict, Story says: “The modern nations of Continental Europe seem to have incorporated tbe same general obligations into their, jurisprudence, with the exceptions of like nature. The Roman edict, it will be at once perceived, did not extend in terms to carriage on land. But in most, if not all modern countries, the rule which is presented has been practically expounded to include them.” (Story on Bail, par. 458.) To this same source may be traced Art. 1784 of the Code Napoleon, which article did not exist in the “projet de code” sub- *244 tnitted to the Court of Appeal. The Court of Lyons having said (Fenet i. 4. p. 210), “Le Code omet de declarer les voituriers responsables de la perte et des avaries des merchandise a moins qu’il ne prouvent la force majeure,” the Council of State thereupon introduced into the text this article. (Trolong1 Du Contrat de Louage, Chap. Ill, Vol. 2, Par. 926.) This article, which is reproduced in our Code as Article 2754, reads: “Les voituriers sont responsables en outre de la perte et des avaries des choses qui leur sont confides, a moins qu’ils ne prouvent qu’elles ont été perdues ou avariees par cas fortuit ou force majeure.” These expressions, cas fortuit, and force majeure, are derived from the Roman terms “casus fortuitus” and “vis major,” and have precisely the same meaning. The former is synonymous with “fatalitier divinitus” and “damnum fatale” and all with the expression, “the act of God.” The latter, “force majeure,” being either, but not necessarily, “the act of God,” or, such an interposition of human agency, as is from its nature and power absolutely uncontrollable. Of this nature are losses occasioned by the inroads of a 'hostile army, or as the common law phrase is, by the “King’s enemies,” that is, by public enemies. I think 1 may safely rely on the authorities here following for the assertion that all these phrases have the same meaning in the Roman, the French and the Common Law, viz: Kent’s Com., Vol. III, P. 216 (5): “A casus fortuitue was defined bj' the civil law to be quod damno fatali contingit, cuivis diligentissimo possit contingere. It is a loss happening in spite of all human efforts and sagacity.” In Straccha, Glossa 22, casus fortuitus is defined to be accidents, quod per custodiam, curam et diligentiam mentus humanae evitare non protest. Sauterna, de Ars, part 3 N. 65, adds, ubi diligentissimus praecavisset et providessat non dicitur proprie casus fortuitus. Ibid, Note C., p. 300 (4). Vinnius, Part Juris. Lib. II C. 66, gives the following definition: Casum fortuitum definimus omne quod humano, coeptu *245 fjraevidere non protest, nec cui proviso protest resistí. (Fortuitous events we define to be everything which man (humano) camiot foresee, nor human efforts resist.) 'He enumerates various instances: “Casus fortuiti varii sunt: veluti a vi ventorum, turbinum, pluviarum, grandinum, fulminum, aestus, frigoris, et similum calamutatum quae coelitus immittuntur. Nostri vim divina dixerii. Graci: 0£O1/ J3icuiT Baldus, Quaest 12 No. 4, gives the following definition: “Casus fortuitas est accidens, quod per custodiae curam, vel diligentiam mentis humanae non protest evitavi ab eo qui patitur.” Averani, cited in Nugent vs. Smith, supra, says: “Casus for-tuitas appellatur vis major, vis divina: fatum damnum fatali, fatalitas.” Facciolatus & Forcellinus in their “Totius latinatis lexicon,” verbo, “Vis,” say: “Praeterea vis dicitur violentia et calamitas quae de coelo venit. Ea quoque duplex est, major et minor. * * * Ante omnia autem duo genera esse coelestis injuriae meminesse debemus. Unum quod tempestates vocamus: in quibus grandines, procellac, ceteraque similia intelliguntur, quae cum acciderint, vis major appellatur. Plaece ab horridis sideribus exeunt, veluti, Arcturo, Orione, Haedis. Alia sunt illa quae silente coelo, sere-nisque noctis, fiunt, nullo sentients, nisi cum facta sunt. Publica haec, est magnae differentiae a prioribus, aliis rubiginem, aliis uredinem, aliis carbunculum appelantibus, omnibus vero sterilita-< tem. * * * Sed latius patet, et ad alia quoque vis haec caelestis re-fertur, incendia nempe, ter'rae motas, aut labes ingentis, vim aqua-ram, morborum, pestilentiae; et dicitur etiam a Gaius, vis mag-na, divina, naturalis et cui resisti non protest. Qsoif J3íqaT (Moreover, vis is said to be a violence and calamity which comes from the heavens; it is also duplex, major and minor. We ought to remember especially that there are two-thirds of heavenly injury, one called tempests, in which are included 'hail-storms, rainstorms and other like things, which, when they happen, are called vis major. There are other things which happen when the *246 sky is serene and in the silence oí the night, when no one perceives them until they are done. These are public calamities and are completely different from the former. But it stands even further, and this heavenly power refers to other things also, as. for instance, fires, earthquakes, force of waters, of diseases, of plagues and indeed as is called by Gaius “A divine natural power which cannot be resisted: Qeoxf J3iaaf Ibid: verbo, “Casus"’: “'Casus fortuitas is called those things which happen without the aid of man, such as storms, fires, bites of animals and such things. Casui fortuiti vero ea assignentur, quae sine ulla hominum ope eveniant, ut procellae, incendia, mor-sus, bestiarum, et similia.” Ibid, verbo “Fatum”: “Fate, destiny, a series of causes, the causes, the course of nature, the appointment or determination of the- Deity, the will of heaven.” It will be noticed that fire is included in casus fortuitas by the Romans, but it is quite evident that they referred to fire caused by the heavenly forces, (an act of the Deity), when we reflect that fire was not only regarded by the Romans as a divine agency but was looked upon by them as a divinity itself. Vesta had no image or statue in her own temple at Rome; the vestal fire being considered as the very goddess herself; and, as Ovid relates, the husbandmen who ate their repast before the hearth, believed, that they sat in the presence of the gods themselves. Even in the scriptures, fire seems to be an agency of the Divinity. God, it is said, often appeared in or encompassed with fire, as to Moses in the burning bush on Mount Sinai; and to the prophets Isaiah, Ezekiel and St. John. The wrath of God is described by a consuming fire, and the angels, as His ministers, are compared to it. Targo, cited by Emerigon, p. 247, Chap. XII, Sec. VIII, says that a vessel taking fire is not an accident presumed fatal, but that it is to be attributed to a fault of some one rvhenever it is not known how it happened. *247 Sweet’s Law Dictionary, Yerbo: “Vis Major”: “Vis Major is practically equivalent to -the act of God.” Emerigon, Chap. XII, p. 285: “Accidents, casus fortuitas, are those events which no human prudence could forsee. Fortuitas casus nullum humanum concilium providere potest (L 2 par. 7 ff de admin res ad vivit L 6 de Pignor act.) Superior force, vis major, is that which cannot be resisted; Cui resistí non potest. The two commingle. By accidents, cas fortuit, is meant a superior force which cannot be foreseen nor resisted. Fortuitas casus est cui non potest resistí, et cui praecaveri non potest; (cujus ad ■ code de locate casa regís disc. 23 N. 38 Strogi 22).. There is a difference between a fortuitas case and a case unforeseen. The loss that happens through the imprudence or unsldllfulness of the Captain is unforeseen, but it is not fortuitous. Improvisus casus dicitur qui solet imprudentibus contingere. In a word, we place in the category of fortuitous cases only those which happen in spite of all human prudence. Quod facto contingent, et cuivis patri familias quamvis diligentissimo, possit contingeret. L. 14 par. s if de minorib.” Baudrv-Lacantinerie, Précis de Droit Civil II, 891: “D’une force majeure ou d’un cas fortuit. Ces deux expressions, qui, dans le language de la loi, paraissent étre le plus souvent synonymes, désignent tout événement qu’on ne saurait resister quand méme il serait prévu, come le feu du ciel, un tremblement de terre, la gréle; la maladie, la mort, la guerre.” ■Merlin, 'Repertoire de Juris, Vol. 3, Par. VII, Des cas fortuits: “1. On donne ce nom a des événements occasionés par une force majeure qu’on ne peut pas prevoir, et a laquelle on ne peut pas xesister. Tels sont les debordements, les naufrages les incendies, le tonnere, etc.” Ibid III: “Le cas fortuit comprend toutes les pertes qui ar-rivent par tempete, naufrages, échouement, jet, feu, prise, pillage, etc. Repertoires du Journal du Pal., 1891 to 1890, p. 8on, par. *248 3, citing Cass. 7 Aout 1870 (Lefebore), 8. 91. 1. 238, p. 91. 1. 558: La force majeure ne peut résulter que un événement independent de la volonté húmame, que cette violonté n’a puni prévoir ni conjurer.” Boucher, Institution au droit maritime, par. 54, Cas fortuits et de force, majeure: “On appelle cas fortuits Ies evenements que la prudence humaíne ne sauvait prévoir. On appelle force majeure, celia á laquelle on ne peut resister. Ces deux points se con-fondent souvent ensemble. Par example, si aprés avoir loué un navíre, le gouvernement le requiest pour le service de l’état, dans cette circonstance il y a cas fortuit et force majeure. Mais si le feu du ciel brule mon bátiment, il n’y a, á proprement parler, que cas fortuit. Comme aussi sí jenvoie mon bátiment aux colonies, lorsque je sais que la mer est couverte de corsaires enemis, pré-voyant qu’ll peut étre prís, s’íl est captivé par un corsaire beaucoup plus fort que luí, il n’y a proprement parler que force majeure.” Die. de Jursp., verbo, Cas Fortuit: “An unforeseen event which cannot be prevented. Lois de Bat. pt. 2. c 2. That which neither of the parties has occasioned or could prevent.” Die. Gen’l de Droit Civil par une société de jurisconsultes. Verbo, Cas Fortuit: “On appelle cas 'fortuits les événements qui sont indépendents de la volonté de celui á qui ils arrivent soit quils lui cau sent de gains ou de pertes. Les cas fortuits proprement dits s’entendent des événements qui n’ont d’autres causes que le hazard, ou plutot des décréts ínconnus de la providence, tels que les incendies causes par le feu du del, les débordements de rivieres, leur changement de lit, les alluvions, la recontre d’une béte égarée, une maladie ou une mort imprévue, les orages, la stérilité, les tremblements de terre, la plupart des maladies con-tagieuses, Ies actions des fous et des enfants qui n’ont pas atteint l’age de discernement. Quelques auteurs comprennent sous le nom de cas fortuit, ce qui est causé par force majeure, par example l’effet d’une loi nouvelle, tel que la defense d’expo.rter des *249 bles, les faíts du prince, les 'invasions de f ennemi et les ravages de la guerre.” Ibid: Verbo, Force Majeure: “Force Majeure est toute force a l’aquelle on ne peut résister, soit de fait, soit de droit.” These authorities, in my opinion, seem 'conclusive of the fact that what Is called the Common law rule as to the responsibility •of common carriers was borrowed from the civil law; and that the terms casus fatalitis, and vis major, or as expressed In the Civil Code, a “fortuitous event” and a '“superior force,” are synonymous with the common law expression, “the act of God” and the “public enemy.” Indeed, it Is not necessary to look further than to our own code for the definition of these phrases, nor to other authorities than our own Supreme Court for the af-firmance of the assertion that the terms “cas fortuit” and “force majeure,” are synonymous with the common law expression, “the act of God,” etc. Art. 3556, No. 15, declares that a “fortuitous -event Is that which happens by a cause which we cannot resist;” and Ibid, No. 14, says that “Those accidents are said to be caused by superior force, which human prudence can neither foresee nor prevent;” which are, practically, the same definitions which the authorities, supra, give to the terms “casus fortuitas,” “damnum fatale” and “vis major,” etc. In A. Brousseau vs. Ship Hudson, et als., n A. 427, an unanimous court held that, “Under our code, common carriers are liable for the loss or damage of the things intrusted to their care, unless it be shown by them that such loss or damage was occa-force majeure). The terms, vis majeure (superior force) is used in the civil-law in the same way that the words “Act of God” are used in the common law, and so also is the term casus fortuitas. By the act of God is meant' inevitable accident or casualty.” This case is cited and relied on in the case of *250 Cromwell vs. Ship Fosdick, 15 A. 436 ; and in Pitre vs. Offut, et al., 21 A. 679 . In Engester & Co. vs. West & Co., 35 A. 119 , the same construction was put on the phrase ‘cas fortuit” and it was held that “in its legal -sense “fortuitas event” is synonymous with “act of God” in the common law, and the Pandietes Francaise and Eriierigon are cited and relied on as authorities therefor. These are the only cases which I can find in our reports where the question as to whether the terms “cas fortuit” is synonymus with the term “an act of God” was absolutely necessary to a decision in the cases, and where it was squarely met by the Court and received direct decision. These cases have -never been overruled. Maxwell & Putnam vs. R. R. Co., 48 A. 386 , does not do so. This case, which is relied on by the Court and is made the basis for its decision in the instant cause, does not, in the first place, deal with this question at all. The case did not present the inquiry whether the carrier’s responsibility was to be measured by any rule of the civil law supposed to be different from the rule of the common law. No question as to whether he w'as to (be regarded, under our law, as an insurer, or not, was present in that case; nor did the plaintiff’s seek to hold the carrier liable on any other ground than that the loss was occasioned by the carrier’s fault without regard to how the accident which occasioned the loss may have occurred. The defense set (up by the carrier was that the loss was occasioned by -fire and that fire was specially excepted in the bill of lading as one of the- dangers for which the carrier was not to be responsible. In the next place, - the court found that the carrier, notwithstanding the exception in the bill of lading, was responsible for the loss because had it not been for the lack of due care and watchfulness, on his part, the loss would-not have occurred; hence if the court did in that case express any views contrary to the'views held in the two casés cited, -supra, it was simply obiter,'and I do not think that I'may not disregard it *251 and be a't liberty to follow the doctrine taught in Brousseau’s ease ( 11 A. 427 ), and In Engester’s case ( 35 A. 119 ), supra. I say that any expression of views in Maxwell’s case on the •subject here discussed is obiter, for as much as the rule both at common law and in the civil law, is precisely the same as to the responsibility of the carrier when the proximate cause of the accident, whatever it may be, and which occasioned the loss -or damage, would not have happened had it not been for the remote fault of the carrier. The court .having found the carrier to be at fault, the question here discussed could not possibly be in that case. For these reasons I respectfully dissent from the opinion and decree herein.