Mabry, C. J.:
There is very little disagreement about the facts of this case. That the steamship company is a common carrier, and received the fish in good condition, properly packed in ice, for transmission to New York, is not questioned on the record. It is conceded further that the shipment of the fish was without any bill of [131]*131lading, and there was no special contract in writing-fixing or limiting the liability of the company in reference thereto.
It is insisted by counsel for appellant that the referee erred in holding, on the facts of the case, that the -company was not released from liability for the loss of the fish resulting from decay, and this contention is ■based upon two theories. The first is, that the fish perished, without fault on the part of defendant, from inherent natural causes, for which the company was not liable; and the second is, that plaintiffs knew when the fish were shipped that they were to go as released goods, and that the company did not take such goods under any other conditions than that they should be released. Passing for the present the contention stated, we will first refer to the issues upon which the case was tried.
The declaration alleges that the defendant company did not take care of and safely deliver the fish, though no dangers of navigation prevented, but took so little and such bad care of them that by its negligence in not keeping them properly iced, and other negligence, they became wholly lost to the plaintiffs. The plea, 'the substance of which we have set out in the statement, is voluminous for law pleading, but it sets up the defense that the fish perished from inherent defects in consequence of an unavoidable delay caused without fault on the part of defendant by the vessel encountering a heavy north-east gale with a high and dangerous sea that loosened her rudder post at the bottom, rendering her navigation impossible, and ■that the accident to the vessel was caused by a peril of the sea. It is also alleged that the ship was withont ice sufficient to preserve the fish until the end of the voyage, and that none could be procured [132]*132in the port where she was detained in consequence of the delay. By the rule of the common law common) carriers are held to a very high and strict liability for the loss of goods received for carriage. In Packard vs. Taylor, 35 Ark. 402, S. C. 37 Am. Rep. 37, the ruléis stated as follows, viz: “The carrier’s obligation to keep and carry safely is founded on the custom of the-realm, at common law; and is independent of contract, being imposed by law for the protection of the owner,, and founded upon public policy and commercial necessity. (Chitty on Carriers, 34, 35). There may be a. special contract, also, not indeed superseding that-implied by law, which still underlies the other, but restricting or modifying it in some particular, in a manner which the courts may not consider unreasonable, or subversive of the general policy. But in the absence of any such contract, the carrier is an insurer— liable not only for negligence, but even for inevitable accident-, not occasioned by act of God.” In that case-there was no question of public enemies. At common, law the carrier’s liability transcends all questions of c-are and diligence, and he is virtually an insurer against all risks of loss or injury save those resulting directly from the act of God or the public enemy and without the intervention of human agency. This is-the rule as established by authority. Friends vs. Woods, 6 Grattan 189, S. C. 52 Am. Dec. 119; Maslin vs. Baltimore & Ohio R. R. Co., 14 W. Va. 180, S. C. 35 Am. Rep. 748; Liverpool & Great Western Steam Co. vs. Phœnix Insurance Co., 129 U. S. 397; Gleeson vs. Virginia Midland R. R. Co., 140 U. S. 435; Norris vs. Savannah, Florida & Western Ry. Co., 23 Fla. 182, 1 South. Rep. 475; Alabama Great Southern R. R. Co. vs. Little, 71 Ala. 611; Hutchinson on Carriers, section 174 et seq.; Coggs. vs. Bernard, 1 Smith’s Leading [133]*133Cases, 354 and notes, S. C. Ld. Raymond 909. When the carrier is in the line of his duty, and the loss or injury to goods in his custody for carriage is solely .attributed to the act of God or the public enemy, it is matter of defense to be pleaded and established by proof.
The authorities are not entirely harmonious as to ■what causes of a natural and unexpected character are to be embraced within the exemption of the liability •stated, and, on the issues in the present case, we do not deem it necessary to go into a general discussion of this subject. The plea alleges that the ship in question was disabled by a heavy northeast gale with a high and dangerous sea, which was a peril of the isea. Issue was joined on the plea, and the referee found distinctly that the accident to the vessel was not ■caused by a peril of the sea. If the testimony shows clearly without contradiction that the detention of the vessel was caused by a peril of the sea, and defendant was without fault in any respect, the finding should have been in its favor, without reference to whether or not the peril of the sea causing the accident was an act ■of God. The plea does not allege in terms that the .accident to the vessel was caused by an act of God, but it is alleged to be a peril of the sea. The terms are not, in our judgment, synonymous. Plaisted vs. Boston & Kennebec Steam Navigation Co., 27 Maine 132, S. C. 46 Am. Dec. 587; Central Line of Boats vs. Lowe, 50 Ga. 509. In referring to the expression “act of God,” Wheeler on Modern Carriers, page 296, says: “There are other terms, such as perils of the seas, lakes, rivers and navigation and inevitable accident, frequently found in bills of lading, and used to express various causes of loss and injury, from responsibility for which the carrier is exempted, either by the oper[134]*134ation of law, or the express terms of the contract. In such cases the rule is the- same.” This author further states that the terms referred to are frequently used as synonymous with the “act of God,” but not always-so. In cases of special contracts permitted by law they, of course, would control, but in the absence of' such contracts the terms 'are not, in our judgment, synonymous. An act. of God may include a peril of the sea, but there may be perils of the sea that are not embraced in the terms “act of God,” and against-which the carrier can only escape liability by such special contract as the law permits. • For comment on the case of Colt vs. McMechen, 6 Johnson 150, S. C. 5 Am. Dec. 200, see Hutchinson on Carriers, section 178. So we need not decide on this appeal whether the cause of the accident to the vessel in question was the “act of God,” as the issue tendered by the plea and accepted by plaintiffs was whether the accident resulted, from a peril of the sea. Nor are we at liberty to disregard the plea on the ground that it is insufficient to-present a proper defense for the defendant, as it was-not objected to by demurrer, and the trial was had on the issue tendered by it. Mudge vs. Treat, 57 Ala. 1; Jones vs. Collins, 80 Ala. 108. We think the testimony in the record without any contradiction shows-that the defendant was without fault. After the accident happened it is shown that no ice could be had to-save the fish, and that they spoiled in consequence of the melting of the ice in which they were jjacked.
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Mabry, C. J.:
There is very little disagreement about the facts of this case. That the steamship company is a common carrier, and received the fish in good condition, properly packed in ice, for transmission to New York, is not questioned on the record. It is conceded further that the shipment of the fish was without any bill of [131]*131lading, and there was no special contract in writing-fixing or limiting the liability of the company in reference thereto.
It is insisted by counsel for appellant that the referee erred in holding, on the facts of the case, that the -company was not released from liability for the loss of the fish resulting from decay, and this contention is ■based upon two theories. The first is, that the fish perished, without fault on the part of defendant, from inherent natural causes, for which the company was not liable; and the second is, that plaintiffs knew when the fish were shipped that they were to go as released goods, and that the company did not take such goods under any other conditions than that they should be released. Passing for the present the contention stated, we will first refer to the issues upon which the case was tried.
The declaration alleges that the defendant company did not take care of and safely deliver the fish, though no dangers of navigation prevented, but took so little and such bad care of them that by its negligence in not keeping them properly iced, and other negligence, they became wholly lost to the plaintiffs. The plea, 'the substance of which we have set out in the statement, is voluminous for law pleading, but it sets up the defense that the fish perished from inherent defects in consequence of an unavoidable delay caused without fault on the part of defendant by the vessel encountering a heavy north-east gale with a high and dangerous sea that loosened her rudder post at the bottom, rendering her navigation impossible, and ■that the accident to the vessel was caused by a peril of the sea. It is also alleged that the ship was withont ice sufficient to preserve the fish until the end of the voyage, and that none could be procured [132]*132in the port where she was detained in consequence of the delay. By the rule of the common law common) carriers are held to a very high and strict liability for the loss of goods received for carriage. In Packard vs. Taylor, 35 Ark. 402, S. C. 37 Am. Rep. 37, the ruléis stated as follows, viz: “The carrier’s obligation to keep and carry safely is founded on the custom of the-realm, at common law; and is independent of contract, being imposed by law for the protection of the owner,, and founded upon public policy and commercial necessity. (Chitty on Carriers, 34, 35). There may be a. special contract, also, not indeed superseding that-implied by law, which still underlies the other, but restricting or modifying it in some particular, in a manner which the courts may not consider unreasonable, or subversive of the general policy. But in the absence of any such contract, the carrier is an insurer— liable not only for negligence, but even for inevitable accident-, not occasioned by act of God.” In that case-there was no question of public enemies. At common, law the carrier’s liability transcends all questions of c-are and diligence, and he is virtually an insurer against all risks of loss or injury save those resulting directly from the act of God or the public enemy and without the intervention of human agency. This is-the rule as established by authority. Friends vs. Woods, 6 Grattan 189, S. C. 52 Am. Dec. 119; Maslin vs. Baltimore & Ohio R. R. Co., 14 W. Va. 180, S. C. 35 Am. Rep. 748; Liverpool & Great Western Steam Co. vs. Phœnix Insurance Co., 129 U. S. 397; Gleeson vs. Virginia Midland R. R. Co., 140 U. S. 435; Norris vs. Savannah, Florida & Western Ry. Co., 23 Fla. 182, 1 South. Rep. 475; Alabama Great Southern R. R. Co. vs. Little, 71 Ala. 611; Hutchinson on Carriers, section 174 et seq.; Coggs. vs. Bernard, 1 Smith’s Leading [133]*133Cases, 354 and notes, S. C. Ld. Raymond 909. When the carrier is in the line of his duty, and the loss or injury to goods in his custody for carriage is solely .attributed to the act of God or the public enemy, it is matter of defense to be pleaded and established by proof.
The authorities are not entirely harmonious as to ■what causes of a natural and unexpected character are to be embraced within the exemption of the liability •stated, and, on the issues in the present case, we do not deem it necessary to go into a general discussion of this subject. The plea alleges that the ship in question was disabled by a heavy northeast gale with a high and dangerous sea, which was a peril of the isea. Issue was joined on the plea, and the referee found distinctly that the accident to the vessel was not ■caused by a peril of the sea. If the testimony shows clearly without contradiction that the detention of the vessel was caused by a peril of the sea, and defendant was without fault in any respect, the finding should have been in its favor, without reference to whether or not the peril of the sea causing the accident was an act ■of God. The plea does not allege in terms that the .accident to the vessel was caused by an act of God, but it is alleged to be a peril of the sea. The terms are not, in our judgment, synonymous. Plaisted vs. Boston & Kennebec Steam Navigation Co., 27 Maine 132, S. C. 46 Am. Dec. 587; Central Line of Boats vs. Lowe, 50 Ga. 509. In referring to the expression “act of God,” Wheeler on Modern Carriers, page 296, says: “There are other terms, such as perils of the seas, lakes, rivers and navigation and inevitable accident, frequently found in bills of lading, and used to express various causes of loss and injury, from responsibility for which the carrier is exempted, either by the oper[134]*134ation of law, or the express terms of the contract. In such cases the rule is the- same.” This author further states that the terms referred to are frequently used as synonymous with the “act of God,” but not always-so. In cases of special contracts permitted by law they, of course, would control, but in the absence of' such contracts the terms 'are not, in our judgment, synonymous. An act. of God may include a peril of the sea, but there may be perils of the sea that are not embraced in the terms “act of God,” and against-which the carrier can only escape liability by such special contract as the law permits. • For comment on the case of Colt vs. McMechen, 6 Johnson 150, S. C. 5 Am. Dec. 200, see Hutchinson on Carriers, section 178. So we need not decide on this appeal whether the cause of the accident to the vessel in question was the “act of God,” as the issue tendered by the plea and accepted by plaintiffs was whether the accident resulted, from a peril of the sea. Nor are we at liberty to disregard the plea on the ground that it is insufficient to-present a proper defense for the defendant, as it was-not objected to by demurrer, and the trial was had on the issue tendered by it. Mudge vs. Treat, 57 Ala. 1; Jones vs. Collins, 80 Ala. 108. We think the testimony in the record without any contradiction shows-that the defendant was without fault. After the accident happened it is shown that no ice could be had to-save the fish, and that they spoiled in consequence of the melting of the ice in which they were jjacked. If was also shown that the vessel was in good condition,, properly equipped for the usual hazards of the voyage, and skillfully navigated, and that her rudder post was-knocked out of its position by a very severe and. unusual northeast gale with high and dangerous seas. That the cause of the accident was a peril of the sea,. [135]*135we have no doubt, and as there is no conflict in the evidence on this point, the finding of the referee can not be sustained. This conclusion disposes of the appeal, and if -the case is to stand upon the issues made, nothing further need be said in reference to the other contention, but it may not be amiss to say that we do not consider that there is any sufficient plea setting up the defense that the fish were shipped as released goods. The burden is upon the carrier to set up and maintain such a defense. Railroad Co. vs. Manufacturing Co., 16 Wall. 318.
The second ^plea sets up only that the fish were carried at owner’s risk of damage arising from natural causes, and that they perished from such causes. This is not alleging a special contract of release from common lawr liability, or duty arising under the contract of affreightment. At common law the carrier was not liable under the exceptions above mentioned when the loss arose from the nature and inherent character of the property carried, such as the natural decay of perishable articles, when handled with care and transported in proper time. Maslin vs. Baltimore & Ohio R. R. Co. supra. On the evidence before us, independent of any other ground of defense, or exemption of liability, we would not be disposed to disturb the finding on the ground that the loss of the fish was not caused by inherent natural causes. That fish are liable to natural decay by reason of' inherent causes is evident, but the undisputed evidence before us is that a/hen properly iced they will keep at least two weeks, and further, that the usual time for the defendant’s steamers to go from Jacksonville to New York was from four to five days. The vessel could not, of course, without legal excuse, delay the voyage until the fish [136]*136■spoiled, and set up their perishable nature as a defense.
The judgment of the court below is reversed.