CHAPTER XII.

OF CARRIERS OF PASSENGERS BY WATER.

$610. THE peculiar character, in a legal point of view, of common carriers of passengers by water, renders it expedient that the subject of their duties and liabilities should be considered in a separate and distinct chapter. They are of course bound, like common carriers of passengers by land, to the utmost care and diligence, on the part of themselves and their servants, and for the sufficiency of their watercraft; and their obligation in the latter respect, or, in other words, the duty of sea-worthiness, is analogous to the duty in respect to land-worthiness, of land carriers. But in cases of personal injuries on the voyage, and in cases of injuries occasioned by collision of vessels, where the service is the transportation of goods or passengers within the limits of tide waters, the Admiralty Court has jurisdic

4

1 See Ante, § 523, § 568, et seq., § 540, et seq.

2 See Ante, § 539.

3 See Ante, § 534, et seq.

4 See Ante, § 419. That a Court of Admiralty has jurisdiction over marine torts, generally, see Ante, § 420; and over wrongs committed by the master of a ship on a passenger, on the high seas, Chamberlain v. Chandler, 3 Mason, (Cir. Co.) R. 242. In that case, there was a libel in the Admiralty against the master of a ship for ill treatment of certain passengers. No exception was interposed against the jurisdiction of the Court, but Mr. J. Story, in giving the opinion of the Court, wished it to be understood, that the point had not passed sub silentio, and that it had attracted the consideration of the Court; and he proceeded to say: "The contract itself is a maritime contract for the conveyance of passengers on the high seas, and the wrongs complained of, are gross ill-treatment and misconduct in the course of the voyage, while on the high seas, by the

tion; and indeed that tribunal is the only one, under the dominion of the Common Law, which can administer a remedy in rem (which commences with the arrest of the vessel), and hold the vessel whose master and crew have been in fault, liable for the payment of damages. It is on this account, that important questions of collision more frequently occur in Courts of Admiralty than in Courts of Common Law, though

master, in breach of the stipulations necessarily implied in his contract, of the duties of his office, and of the rights of the libellants, under the maritime law. The jurisdiction of Courts of Admiralty over torts, committed in personam on the high seas, has never, to my knowledge, been doubted or denied by the Courts of Common Law, and has often been recognised by adjudications in the Admiralty, 2 Brown, Adm. 108; 3 Bl. Comm. 106. In 4 Inst. 134, the Common Law Judges admitted, in the fullest manner, that of contracts, pleas, and quereles made upon the seas, &c., the Admiral hath and ought to have jurisdiction." The learned Judge, in expounding the law in respect to Admiralty jurisdiction in such cases as those in question, further asserted, that it made no difference in point of principle, whether an injury to a passenger by the master be direct or consequential wrong, "whether it be an assault and imprisonment or a denial of all comforts and necessaries, whereby the health of the party is materially injured, or he is subjected to gross ignominy and mental suffering." The Admiralty has been accustomed to deal with subjects of this nature from very early times. In the case of the Ruckers, 4 Rob. R. 73, a civil suit for damages was brought in the Admiralty for an assault by the master of a ship on a passenger on the high seas, and, on full consideration, the jurisdiction was sustained. On that occasion, the Court directed the records to be searched, and the Registrar reported, "that many instances were found of proceedings on damage on behalf of persons described as part of the ship's company, against officers or others belonging to the same ship, and that there were other instances of proceedings on the part of A. B. against C. D. without any specification of the capacity in which the persons stood." Sir William Scott said, "Looking to the locality of the injury, that it was done on the high seas, it seems to be fit matter for redress in this Court." See also the elaborate opinions of several of the Judges of the Supreme Court of the United States, upon the subject of Admiralty jurisdiction, in the case of the New Jersey Steam Navigation Company . Merchants Bank, 6 How. (U. S.) R. 344. See 7 Peters, (U. S.) R. 324.

1 Abbott on Shipp. (5th Am. Ed.) 282, et seq., 300, et seq.

they have occurred in both. The Admiralty jurisdiction also extends, in cases of collision, alike to foreign and domestic vessels, and whether both be foreign or both be domestic. In a case in the Court of Admiralty in England, between two foreign vessels, which had come into collision on the Kentish coast, an appearance was given under protest, denying the jurisdiction of that Court, by the owners of one of them. The Court held, that causes of collision were communis juris, and had no doubt of its jurisdiction to entertain the suit, and, if necessary, to compel security to be given for costs.1

§ 611. It is proposed to consider, first, the duties and liabilities of common carriers of passengers by water, in respect to the treatment, accommodation, &c. of the passengers, as those duties and liabilities have been the subjects of adjudication under the jurisdictions of the Common Law and of the Admiralty; and, secondly, the rules established under each jurisdiction, which furnish grounds of responsibility or excuses for damage, in case of accidents which have arisen from improper navigation and collision of vessels.

$612. First. The frequent and increasing intercourse by water, between different portions of the extensive territory of the United States, and the present very great extent of the intercourse between the United States and distant foreign countries, has rendered that branch of the law which relates to passenger-ships and vessels of the utmost importance. That it is the duty of the owners and masters of vessels, who hold themselves out as carriers of passengers, to receive all persons who apply for a passage, provided they are unexceptionable in character, &c. and the fare be tendered, we have shown to be unquestionable. And every

1 Ibid. 314; The Johann Friederich, 1 W. Rob. R. 35.

2 Ante, § 525, et seq.

person taking passage is presumed to contract, in respect to accommodations, &c. during the voyage, (in the absence of a special agreement,) in reference to the usage of the particular voyage. In all cases of commercial usage, the law presumes that the parties contracting did not mean to commit to writ ing the whole of their contract by which they intended to be bound, but that they contracted on the understanding that established usage should explain what is left doubtful.

$ 613. In an action against the captain of a ship for not furnishing good and fresh provisions to a passenger on a voyage, Lord Denman said, in his address to the jury: "I think the result of the evidence is, that the captain did not supply so large a quantity of food and fresh provisions as is usual under such circumstances. But there is no real ground of complaint, no right of action, unless the plaintiff has really been a sufferer; for it is not because a man does not get so good a dinner as he might have had, that he has, therefore, a right of action against the captain, who does not provide all that he ought; you must be satisfied that there was a real grievance sustained by the plaintiff." 2

$ 614. In the case of an express contract between a passenger and the master, the rights of the parties will of course be governed by its terms; for any commercial usage, however well established, can be of no efficacy to defeat the plain meaning expressed by the parties. There have been several cases at Common Law of particular contracts in respect to a passage by sea, of the use of which we shall here avail ourselves, as they have been collected and set forth by Lord Tenterden, in his valuable treatise on the law relative to merchant-ships, &c.3

1 Ante, § 533; Abbott on Shipp. (5th Am. Ed.) 284.

2 Young v. Fewson, 8 C. & Payne, R. 56.

3 Abbott on Shipp. ub. sup., 284, et seq.

615. In the case of Corbin v. Leader,1 the defendant, the master of an East Indiaman about to sail from Calcutta, on a voyage to London, by an agreement under seal, granted and let to the plaintiff the whole of the cabins and accommodations fitted up for the reception, convenience and conveyance of passengers on board the ship, and the defendant covenanted to promote, as far as in him lay, the comfort and convenience of the plaintiff and such persons as he should engage and contract with, and who should be received as passengers in and on board the said ship; in consideration. whereof, the plaintiff covenanted with the defendant, among other things, to pay the defendant the sum therein agreed on; and that he would in every respect support and uphold the authority and command of the defendant, and in no way interfere with the management or navigation of the ship, or with the affairs thereof. The plaintiff further covenanted, that if in the progress of the voyage it should be necessary, for the convenience and at the request of the plaintiff, to touch or put into any other intermediate port or ports, save and except St. Helena, he would bear and pay all port and other necessary charges which might be incurred thereby. The Court held, that this stipulation as to the payment of the charges of touching at an intermediate port, thus interwoven with the covenant of the defendant, clearly showed that stopping in the course of the voyage was a thing contemplated by the parties, as conducive to the convenience of the passengers, and that the defendant was bound so to stop at the request of the plaintiff, unless it would have inter fered with the safety of the vessel.

616. In an action of assumpsit, by the master of an East Indiaman against a lieutenant in the Company's service, who had been his passenger on a voyage from Madras to London, it appeared that by an order of the Court of

1 Corbin v. Leader, 10 Bing. R. 275.