By Safi Jimba
General Principle of Liability (II)
An accident caused by roughness of the sea in the absence of extraordinary circumstances is not one due to an “Act of God”.
- Otegbe v. Littel and A. Lemomu v. Little
(1907) 1 N.L.R. 70
Full Ct -Nicoll C. J. and Winkfield and Pennington JJ.
The Plaintiffs were claiming damages for breach of contract to safely carry and deliver baskets of Kola nouts from Salt Pond to Lagos. The goods were being carried in a surfboat, but the sea was rough and there was a strong wind and the boat capsized, so that the baskets of kola nuts fell into the sea and were lost. Both actions were dismissed by the divisional court, saying, inter alia:
“Now as to the question what is an ‘Act of God’, which will negate the defendant’s liability. Cockburn C. J. in Nugent v. Smith [(1876) 1 C.P.D. 423 (C.A.); 45 L.J.Q.B. 697 had laid this down. Speaking of inevitable accident at sea, which comes under the term ‘Act of God’ he adopts the following language:
‘The phrase “perils of the sea”, whether understood in its most limited sense, as imputing a loss by natural accident peculiar to that element, or whether understood in its more extended sense as including inevitable accidents occurring upon that element, must still in either case be understood to include such losses only to the goods on the board as are of an extra-ordinary nature, or arise from some irresistible force or inevitable accident, or from some overwhelming power, which cannot be guarded against by ordinary exertions of human skill and prudence. Hence it is that if the loss occurs by a peril of the sea, which might have been avoided by the exercise of any reasonable skill or diligence, at the time when it occurred, it is not deemed to be, in the sense of the phrase, such a loss by the perils of the sea as will exempt the carrier from liability, but rather a loss by the gross negligence of the party… in other words, all that can be required of the carrier is that he shall do all that is reasonably and practicably possible to ensure the safety of the goods. If he uses all the known means to which prudent and experience ravellers ordinarily have recourse he uses all that can be reasonably required of him, and if under such circumstances, he is overpowered by storms or other agency, he is within the rukle which gives immunity from the efforts of such vis major as Act of God’