50 Ga. 509 | Ga. | 1873
There is, doubtless, a distinction between an “act of God” and an “ unavoidable accident.” The former covers only natural accidents, such as lightning, earthquakes, tempests, and the like, and not accidents arising from the negligence or act of man: 2 Kelly, 349; Campbell vs. Morse, Harper’s Reports, 468; 2 Dana., 430; 4 Stew. & Port., 382; and, doubtless, it was the intent of the parties here to go further than to protect the carrier against the “ act of God,” since he was not liable for that in any event. But to make out the case of an exemption for a carrier, against either the “ act of God,” or “ unavoidable accident,” there must be a vis major — the interfering cause must be irresistible. The very words “ unavoidable accident ” imply this. If by any care, prudence or foresight, the thing could have been guarded against, then it is not “unavoidable.”
It seems absurd to say that it was not possible to have avoided the breaking of this chain or rod. It ought to have been made stronger — it ought to have been tested. The case is one of a simple failure to have a good vessel. This was, doubtless, an accident, and were that the only word used in the agreement, the carrier would be excused; but the words are far stronger than this. As we understand the words, they mean an irresistible cause, standing exactly on the footing of an act of God, except that it is the product of human agency.
We are clear this is not such an accident as was “ unavoidable.” It was negligence in the carrier to have so frail a “guard” in so important a place. He might just as well claim that any other simple accident was “ unavoidable.”
Judgment affirmed.
