Sec 309

It may happen, however, that a person who contracts to do a particular thing, does it in such a way as to encounter an obstacle which prevents the performance. When two or more ways are open to him, he improvidently takes one in which the difficulty is encountered; or he delays action so that he meets a risk he would otherwise have avoided. In such cases the casus is no defence. This is the rule in the Roman law,1 and in our own.2 If a ship, for instance, collides with another in port through the violence of a storm, no negligence being im-putable, this is casus; but if she is negligently moored or anchored, so that she is cast loose unnecessarily, then her loss is to be charged to those by whom she was thus left exposed.3 If the casus by which goods are destroyed while in the course of transportation could have been avoided by the exercise, on the part of the carrier, of the diligence usual to good business men of his class, then it constitutes no defence to a suit for a breach of the contract of carriage.4 But it is not enough, to overcome the defence of casus, to say that the casus might have possibly been avoided. Such excessive precautions as would make transportation impracticable a carrier is not required to adopt. This duty is satisfied if he take such precautions as are in the long run most conducive to the safe management of the business in which he is concerned.5 - The rule before us is applicable to all cases in which a party by unnecessary delay puts it out of his power to perform a promise. Hence, a party who agrees to have his life insured within a 'certain time is not, if he has unduly delayed his application, relieved from his agreement by the fact that his health became so bad before the expiration of the time that his life was uninsurable.1

Casus no defence when negli-gently encountered.

1 L. 22, D. de neg. g. (3, 5); L. 10, sec 1, de L. Rhod. (14, 2).

2 Story's Eq. Jur. sec 105; Bis'pham's Eq. 175; Caffray v. Darby, 6 Ves. 496; Hadley v. Clark, 8 T. R. 259; Davis v. Garrett, 6 Bing. 716; Parker v. James, 4 Camp. 112; Bailiffs of Romney Marsh v. Trinity House, L. R. 5 Exeh. 208; Converse v. Brainard, 27 Conn. 607; Beebe v. Johnson, 19 Wend. 500; New-Brunswick St. Co. v. Tiers, 4 Zab. 697; Hand v. Baynes, 4 Whart. R. 204; Davis v. Davis, 6 Ired. Eq. 418; Helm p. Wilson, 4 Mo. 41; Vail v. R. R., 63 Mo. 230; Nashville, etc. R. R. v. David, 6 Heisk. 261; Seigel v. Eisen, 41 Cal. 109. That a party cannot recover on a loss imputable to himself, see sec 312, 603-4, 716, 747, 901. 3 L. 29, sec 2, D. at Leg. Aq.

4 Nugent v. Smith, L. R. 1 C. P. D. 423; Denny v. R. R., 13 Gray, 481; Hoadley v. N. Trans. Co., 115 Mass. 304; Hubbard v. Harnden's Ex. Co., 10 R. I. 244; Michaels v. R. R., 30 N. Y. 564; Austen v. Steamboat Co., 43 N. Y. 75; Bostwick v. R. R., 45 N. Y. 712; Morrison v. Davis, 20 Penn. St. 175; Read v. R. R., 60 Mo. 199; Pruitt v. R. R., 62 Mo. 528. See as to casus generally, Wh. on Neg. sec 553 et seq.

5 Railroad Co. v. Reeves, 10 Wall. 176; Denny v. R. R., 13 Gray, 481; Morrison v. Davis, 20 Penn. St. 171.