delay in the shipment of freight;32 or where washouts were caused on its tracks by unprecedented floods.33

Sec. 655. (§ 332.) Same subject-Other illustrations. So where the carrier's line was to Philadelphia by rail, and thence to Boston by water, and, having carried the goods to the former place, but owing to obstructions in the river from ice it could not forward them for the time being by its own line, it was held that it was not required by its duty as carrier to send them on to destination by railroad, though that might have been done, especially as sending them in that way would have been very expensive. It was, therefore, held justified in detaining the goods until the obstruction should be removed. A carrier, it was said, is not bound to use any extraordinary exertions, nor to incur heavy expense, in order to hasten the carriage of the goods. All that can be required in that regard is reasonable diligence.34 And where a vessel lying in port had taken on freight for another port, the usual route to which was through Long Island Sound, but the passage in that direction being obstructed by ice, the master took the open-sea route, and, encountering a storm, the goods were lost, it was held that he should have delayed his voyage until the obstruction was removed, the delay which would thereby have been occasioned having been a matter of mere secondary consideration to that of the safety of the goods; and the owners of the vessel were held liable for the value of the goods, because he had ventured to make the voyage by the more dangerous route, instead of delaying it until the customary and safer route became practicable. But, it was said, that if he had encountered the difficulty while in transitu, then a necessity would have been put upon him of exercising a sound discretion, and of adopting the course which prudence would have suggested.35 So an embargo operates as a temporary restraint, which only suspends the time of the performance of

32. Railway Co. v. Haynes, 3 Tex. Civ. App. 20, 21 S. W. Rep. 622.

33. Burnham v. Railway Co., 81

Miss. 46, 32 So. Rep. 912.

34. Empire Trans. Co. v. Wallace, 68 Penn. St. 302.

35. Crosby v. Fitch, 12 Conn. 410.

the contract of affreightment, and obliges the carrier to delay his voyage until its removal,36

Sec. 656. (§ 333.) Same subject-Circumstances may make delay a duty. Such occurrences may not only be relied upon by the carrier as an adequate defense against the charge of unreasonable delay, but they make delay on his part a positive duty. For if, in an attempt to hasten the carriage of the goods, he should expose them to danger, which by a temporary delay might have been avoided, and they should thereby be lost, he would be justly chargeable with negligence. In an emergency of this kind it is therefore incumbent upon him to exercise discretion. A reasonable degree of foresight is required of him in anticipating the difficulty, and skill and prudence in avoiding it when it is possible to do so; but when it has become unavoidable the duty is no less urgent to suspend his journey until the danger has passed. While it is his duty to convey the goods by the ordinary route and without unnecessary delay, both these duties may be obviated by the circumstances, and where either delay or deviation is necessary for the safety of the goods, it will be held to have been a part of the primary duty of the carrier.37 And if, owing to some obstruction upon the route, the carrier is unable to forward the goods, he cannot, of his own accord, where the safety of the goods does not require it, undertake to send them forward over another route for the purpose merely of obviating a delay. His duty under such circumstances is to communicate with the shipper and obtain instructions as to their disposition, and for a failure to do so, he will be liable for such damages as result from his wrongful act.39

Sec. 657. (§ 334.) Same subject-Delay from strikes or riots. But while circumstances which can be referred neither to the act of God nor of the public enemy, even though they

36. Hadley v. Clarke, 8 T. R. 259; McBride v. Ins. Co., 5 Johns. 299; Palmer v. Lorillard, 16 id. 348.

37. Crosby v. Fitch, 12 Conn. 410; Davis v. Garrett, 6 Bing. 716.

See, also, International, etc., Ry. Co. v. Wentworth, 8 Tex. Civ. App. 5, 27 S. W. Rep. 680.

38. Fisher v. Railroad Co., 99 Me. 338, 59 Atl. Rep. 532, 105 Am. St. Rep. 283, 68 L. R. A. 390.

may be produced by the negligence or the fault of third persons, may excuse delay in the carriage of the goods, no such excuse will avail the carrier if the delay has been occasioned by the agency of himself or his servants. Where a railroad conpany was sued for delay in the carriage of goods, the defense set up was the refusal of a large number of the defendant's engineers to work on account of their dissatisfaction with a new regulation of the company.39 "The position," said the court, "that the defendants are not responsible, because the misconduct of their servants was wilful and not negligent, cannot be sustained. The action is not brought on account of any injury done to the property by the engineers, but for an alleged nonperformance of a duty which the defendants owed to the owner of the property. If their inability to perform was occasioned by the default of persons for whose conduct they are responsible, they must answer for the consequences without regard to the motives of those persons. In the common case of a contract for services, as for building a house, which the builder had been unable to perform because his workmen had abandoned his service, proof that their conduct was wilful and every way unjustifiable would not give the party injured an action against them, nor would it excuse the party who had made the contract. A similar point was taken in Weed v. The Panama Railroad Company,40 where misconduct of the defendants' servants in detaining a train of cars was active, but it was held not to furnish any answer for the detention. . . In the present case the excuse arises wholly out of the misconduct of the defendants' servants who wrongfully refused to perform their duty, and thus deprived the defendants, for the time, of the ability to send forward the property; and the question is, whether the defendants' case can be separated from that of the engineers, so that it can be held that though the latter were culpable, their employers, the defendants, were without fault and consequently

39. Blackstock v. Railroad Co., 40. 17 N. Y. 362. 20 N. Y. 48, 75 Am. Dec. 372.

not responsible to the plaintiff. is respondeat superior."41

The maxim in such cases

While this is true, however, yet where former employees have "struck," have repudiated their contract of service, severed their relation as servants and assumed toward their former employer an attitude of active hostility, they can no longer be regarded as servants within this rule, and if the carrier has other servants ready and willing to perform who are prevented from doing so by the "strikers," the carrier will not be responsible for a delay thereby occasioned though the "strike" was planned while the "strikers" were on duty.42

So the fact that the carrier has recently reduced the wages of his employees will not justify or excuse a mob, composed of indiscriminate persons, in delaying the goods nor render the carrier liable for such delay.43

Neither is the carrier liable, if not himself in fault, for delays caused by rioters.44

Sec. 658. (§ 335.) Carrier must complete carriage when cause of delay rumored.-Obstructions and accidents, how

41. Story on Agency, Denny v. The Manhattan Co., 2 Denio, 115; s. c. in error, 5 id. 639; Blackstock v. Railroad, 20 N. Y. 48; Read v. Railroad, 60 Mo. 199; Pittsburgh, etc. R. Co. v. Hazen, 84 Ill. 36.

308; a mob or strike might be a sufficient defense, it would seem that it ought to be made to appear that the mob or strike existed without the fault of the defendant, and the facts should be stated so that the court may determine from them whether the mob or strike was such as occasioned an unavoidable delay." Railroad v. Bell, 13 Ky. L. Rep. 393.

42. Geismer v. Railroad Co., 102 N. Y. 563, 55 Am. Rep. 847; Haas v. Railroad Co., 81 Ga. 792; Railroad Co. v. Georgia Fruit & Vegetable Exchange, 91 Ga. 389, 17 S. E. Rep. 904; Railroad Co. v. Tisdale, 74 Tex. 8, 11 S. W. Rep. 900; Railroad Co. v. Hollowell, 65 Ind. 188; Railway Co. v. Bennett, 89 Ind. 457; Railway Co. v. Johnson (Tex. Civ. App.), 15 S. W. Rep. 121; Little v. Fargo, 43 Hun, 233; Bartlett v. Railway Co., 94 Ind.

The shipper should receive notice from the carrier of the delay. Alabama, etc., R. Co. v. Brichetto, 72 Miss. 491.

43. Pittsburgh, etc. R. Co. v. Hollowell, 65 Ind. 188; Lake Shore, etc. R'y Co. v. Bennett, 89 Ind. 457.

44. Gulf, etc. R'y Co. v. Levi, 76 Tex. 337, 13 S. W. Rep. 191 (overruling 12 S. W. Rep. 677); Bart"Though the delay occasioned by lett v. Railway Co., 94 Ind. 281.

281.

ever, which will excuse delay in the carriage of the goods, do not put an end to the contract to carry. The utmost indulgence the carrier can claim from them is delay beyond what would otherwise have been a reasonable time for their carriage and delivery to the consignee. As soon as the impediment to their transportation is removed, he must proceed with them, and complete the performance of his contract without further delay. In the meantime, he must exercise care and diligence in taking care of the goods, and may, if it should be necessary for their preservation, unload and store them.45

The burden of proof is on the carrier to show that he exercised due care to transport the goods within a reasonable time after the impediment was removed, and the question as to what was a reasonable time is for the jury.46

Sec. 659. (§ 336.) Same subject.-A remarkable instance of the application of this law to the case of the carrier is furnished by the case of Hadley v. Clarke.47 A vessel had taken a cargo on board, under a contract to deliver at a foreign port. Before she sailed for the port of destination, an embargo was laid upon all ships bound to that port, in consequence of which she was obliged to suspend her voyage. She retained the cargo on board for two years, and the embargo not having been taken off, she then unloaded it. Two months afterwards the embargo was removed, and the owner of the cargo sued the carrier for a breach of contract in not carrying the goods. The court of king's bench, at the head of which was Lord Kenyon, held that both parties were innocent, and that whatever their decision might be, one of them must suffer; and that neither being in fault, the case must be determined upon strict principles of law. 45. Bowman v. Teall, 23 Wend. 476, 21 L. R. A. 117, 34 Am. St. 306; Vicksburg, etc. R. R. v. Ragsdale, 46 Miss. 458; Bennett v. Byram, 38 id. 17; Lowe v. Moss, 12 Ill. 477; Evans v. Hutton, 5 Scott N. R. 670; Spann v. Transportation Co., 33 N. Y. Supp. 566, 11 Misc. 680; Railroad Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. Rep.

Rep. 579; Railroad Co. v. Lewis (Tex. Civ. App.), 23 S. W. Rep. 323, citing Hutch. on Carr. (live stock).

46. Burnham v. Railroad Co., 81 Miss. 46, 32 So. Rep. 912. 47. 8 T. R. 259.