1

3

But it

sel; and it is a deviation to transship goods. would probably be going too far to call it a deviation to carry the goods in a position different from the directions given, although the liability in such cases is very extreme. It is, however, clear that any material departure in the conduct of carriage from the special undertaking in regard to it constitutes a deviation, as in one case where there was a special contract for through transportation in the same cars. In short any course which differs materially from the performance which was understood to have been undertaken is a deviation.

§ 907. Transportation over wrong route.

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6

Carriers receiving property for transportation plainly make a deviation by forwarding the goods by a route inconsistent with their undertaking or by forwarding property to a station other than that agreed upon. And it is equally deviation to forward the goods to the specified destination by an indirect route, the question whether the indirect route is outside the contemplation of the parties being a question for the jury. Where there is a fair choice of routes it will be assumed that it is left to carrier to choose according to ordinary course of business; 9 but if the carrier chooses a more dangerous route he is liable.10 Except in emergency the carrier has no right to

1 Simkins v. Norwich & N. L. Stb. Co., 11 Cush. (Mass.) 102 (1853).

The Maggie Hammond, 9 Wall. (U. S.) 435, 19 L. ed. 773 (1869). 'Colbath v. Bangor & A. R. R. Co., 105 Me. 379, 74 Atl. 918 (1909).

'Stewart v. Merchants' Dispatch Transp. Co., 47 Iowa, 229 (1877).

Isaacson v. New York Central & H. R. R. R. Co., 94 N. Y. 278, 46 Am. Rep. 142 (1884).

Gulf, C. & S. F. Ry. Co. v.

8

Robinson (Tex. Civ. App.), 72 S. W. 71 (1903).

7 White v. Ashton, 51 N. Y. 280 (1873).

8 Wells, Fargo & Co.'s Exp. v. Fuller, 4 Tex. Civ. App. 213, 23 S. W. 412 (1893).

Post v. Railroad Co., 103 Tenn. 184, 52 S. W. 301, 55 L. R. A. 481 (1899).

10 Pierce v. Southern Pacific Co., 120 Cal. 156, 52 Pac. 302, 40 L. R. A. 350 (1898).

1

utilize another line, or ship by another connection.2 A carrier receiving the goods from the carrier who took them from the consignor for transportation is directly liable to the owner for injury to the goods, during such deviation from the original contract for transportation,3 unless the first carrier under the circumstances had an apparent authority in dealing with the second carrier to ship as it did. If the connecting carrier designated has gone out of business the goods should be forwarded by another if one is running; and if it appears later that transportation over the connecting line designated would be dangerous another should be chosen.6

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§ 908. Essential change by deviation.

Deviation has from time immemorial been considered a serious matter, fundamentally changing the character of the service contemplated. It seems, therefore, that when there has been real deviation from the undertaking assumed, the consequences of that deviation persist until the service is completed. Thus if a carrier has deviated without justification, it would seem that he should be absolutely liable for loss throughout the entire transit. However, it is not altogether clear from the language of the traditional authorities that the carrier after he is back on his track would not be allowed to show that the loss would have occurred if he had not deviated, if this is conceivably possible. Certainly one should not go to the

1 Seavey Co. v. Union Transit Co., 106 Wis. 394, 82 N. W. 285 (1900).

2 Brown & H. Co. v. Pennsylvania Co., 63 Minn. 546, 65 N. W. 961 (1896).

3 See Fairfax v. New York Central & H. R. R. R. Co., 73 N. Y. 167, 29 Am. Rep. 119 (1878).

4 See Patten v. Union Pacific Ry. Co., 29 Fed. 590 (1886).

5 Andrus v. Columbia & O. Stb. Co., 47 Wash. 333, 92 Pac. 128 (1907).

6

• Empire State Cattle Co. V. Atchison, T. & S. F. Ry. Co., 210 U. S. 1, 52 L. ed. 931, 28 Sup. Ct. 607 (1908).

7 See Davis v. Garrett, 6 Bing.

other extreme of holding that deviation constitutes conversion with all the legal consequences that follow therefrom. It is in reality an intermeddling which should make the party failing to perform as he was authorized liable absolutely while he is performing in a way which by his deviation has become altogether wrong. But that this intermeddling does not amount to a conversion is shown by the cases which hold that the consignee must accept the goods upon their arrival after deviation and take appropriate action for his damages.1

Topic C. Excuses for Default in Performing Service § 909. Natural forces.

2

When delay is caused by the inevitable action of natural forces there is the established excuse of act of God. As this defense prevails against all liabilities whatever, even where the liability is otherwise practically that of an insurer, it will receive but summary treatment here, as it is more fully discussed later on in connection with these cases of more stringent liability. It will be sufficient to viation from the undertaking, all right to compensation is lost. De Colange v. The Chateau Margaux, 37 Fed. 157 (1888). All liens upon the property for the receiving of compensation are, of course, forfeited also. Marsh v. Union Pacific Ry. Co., 3 M'Crary, 236, 9 Fed. 873 (1882).

716 (1830); and Maghee v. Camden & A. R. R. Tr. Co., 45 N. Y. 514, 6 Am. Rep. 124 (1871).

1 Connecticut.-Tucker v. Housatonic R. R. Co., 39 Conn. 447 (1872).

Georgia.-Phillips v. Brigham & Co., 26 Ga. 617, 71 Am. Dec. 227 (1859).

Kentucky.-Chesapeake & O. Ry. Co. v. Saulsberry, 126 Ky. 179, 31 Ky. L. Rep. 624, 103 S. W. 254, 12 L. R. A. (N. S.) 431 (1907).

Teras. Southern Pacific Co. v. Booth (Tex. Civ. App.), 39 S. W. 585 (1897).

The collateral authorities are clear support for the doctrine advanced in the text. In case of de

And the benefit of the contract under which the service is being rendered is also forfeited. Thorley, Ltd., v. Orchis S. S. Co., Ltd., 1 K. B. 660 (1907). See the full discussion of this matter in Waltham Mfg. Co. v. New York & T. S. S. Co., 204 Mass. 253, 90 N. E. 550 (1910).

2 See §§ 655 et seq., supra.

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2

-to

cite here some illustrations of the general principle applied to the particular subjects in hand. Thus if a carrier is delayed by snowstorm,' or a shipmaster is obliged to deviate from his course by tempestuous weather, the delay and the deviation are equally excused. So the freezing of a canal 3 or river, low water 5 or a flood," give an assortment of cases,-excuse both delay and deviation caused thereby, however serious may be the consequences. Even when caused by natural forces a delay is not necessarily excused. It is well established that the ordinary actions of the elements must be anticipated and guarded against so far as this is reasonably possible." Where the delay might have been avoided by proper precautions there will be liability for any negligent action under the circumstances.

§ 910. Governmental authority.

It has been seen in another connection that the inter

1 Ballentine v. North Missouri R. R. Co., 40 Mo. 491 (1867). Sec also Pruitt v. Hannibal & St. J. R. R. Co., 62 Mo. 527 (1786).

2 Phelps, I. & Co. v. Hill, 1 Q. B. 605, 60 L. I. Q. B. 328 (1891).

Beckwith v. Frisbie, 32 Vt. 559 (1860).

'Empire Transp. Co. v. Wallace, 68 Pa. St. 302, 8 Am. Rep. 178 (1871).

W. 444 (1899); s. c., 186 U. S. 480, 46 L. ed. 1259, 22 Sup. Ct. 943. See also Cleveland, C., C. & St. L. v. Heath, 22 Ind. App. 47, 53 N. E. 198 (1899).

Wabash, St. L. & P. Ry. Co. v. McCasland, 11 Ill. App. 491 (1882).

So if a telegraph company cannot forward its messages by reason of electric disturbances its delay is excused. See Beasley v. Western Union Telegraph Co., 39 Fed. 181 (1889).

Similarly atmospheric conditions making it impossible to telegraph train orders will excuse delay in train movements. International & G. N. R. R. Co. v. Hynes et al., 3 Tex. Civ. App. 20, 21 S. W. 622 (1893).

position of governmental authority will excuse a refusal to perform service so long as the prohibition is in force.1 It is plain that such legal inhibitions equally excuse delay in completing performance to the extent that the delay is caused thereby. Where delay is caused by legal prohibition of any sort,' it is, of course, excusable. And orders proceeding from military authorities furnish an excuse to the extent that the delay is made necessary thereby. But if the fault of the carrier is the cause of the interruption of the transit by the authorities he has of course no excuse. And similarly if the delay is caused by process of the courts, the carrier is excused for delay caused by obedience thereto. But he must show that the process is legally binding."

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5

§ 911. Violent intervention.

7

As the acts of public enemies will excuse a loss of goods, they will a fortiori excuse a delay in performance. This is true where the situation is so serious as to justify the carrier in believing that there is real danger in continuing

1 See §§ 590 et seq., supra.

2 Decker v. Atchison, T. & S. F. Ry. Co., 3 Okla. 553, 41 Pac. 610 (1895). See also Fort Worth & D. C. Ry. Co. v. Masterson, 95 Tex. 262, 60 S. W. 833 (1902).

Illinois Central R. R. Co. v. McClellan, 54 Ill. 58, 5 Am. Rep. 83 (1870). Unless the condition was known at the time of acceptance. Illinois Central R. R. Co. v. Cobb, 64 Ill. 128 (1873).

'Dunn v. Becknall Bros., 2 K. B. 614, 71 L. J. K. B. 963 (1902). See also Railroad Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. 476, 34 Am. St. Rep. 579 (1892).

5 Hynds v. Wynn, 71 Iowa, 593, 33 N. W. 73 (1887), for one example.

Merz v. Chicago & N. W. Ry. Co., 86 Minn. 33, 90 N. W. 7 (1902), for another example.

7 It is a general defense to any apparent liability that the default is caused by the act of public enemies. See:

United States.-Express Co. v. Kountz, 8 Wall. 342, 49 L. ed. 457 (1870).

Kentucky.-Bland v. Adams Express Co., 1 Duv. 232, 85 Am. Dec. 623 (1864).

New Mexico.-Seligman v. Armijo, 1 N. Mex. 459 (1870).

Tennessee.-Southern Express Co. v. Womack, 1 Heisk. 256 (1870). See generally, § 666, supra.