required to be licensed as officers, and penalties are attached for their employment and service without proper license.' By section 4399 of the Revised Statutes every vessel propelled by steam in whole or in part is a steam vessel within the meaning of this title." The statute gives a separate penalty for every violation of the Act, and a direct remedy in admiralty against the vessel for the recovery of the penalty; and any admiralty court in which the vessel may be has jurisdiction.'

A system of examinations is provided for, and an oath must be taken before the granting of the license; and boards of inspectors are given power to investigate acts of incompetence and misconduct of these licensed officers. But these and similar provisions do not create any new or other officers on shipboard than existed before the passage of the acts. An indictment under U. S. Revised Statutes, § 4438, which provides that it shall be unlawful to employ any person, or for any person to serve, as a master, chief mate, engineer, or pilot on any steamer, who is not licensed by the inspectors, need not charge that the employment was with knowledge that the employé had not been licensed as the statute required. Section 4441 provides that the inspector shall examine the applicant for license as an engineer, and also requires the engineer when employed on a vessel to place his certificate of license in some conspicuous place in such vessel, where it can be seen by passengers at all times. Inspectors or the United States have authority to issue a license to the master of a steamship to act as pilot between Boston and Havana.'

A steamboat employed by a railroad company to transport passengers on Jamaica Bay, Long Island (which is an inlet of the Atlantic Ocean entirely within the state of New York), in connection with a railroad forming a part of the railroad system of the whole country, is engaged in interstate commerce to an extent sufficient

1United States v. Huff, 13 Fed. Rep. 632.

Joslyn v. Nickerson, 1 Fed. Rep. 137.

Pollock v. The Sea Bird, 3 Fed. Rep. 573, citing The Missouri, 3 Ben. 508; 9 Blatchf. 433; United States v. The Queen, 4 Ben. 237, 11 Blatchf. 416.

4U. S. Rev. Stat. §§ 4438, 4452.

United States v. Huff, 13 Fed. Rep. 632, 633.

United States v. Sims, 9 Fed. Rep. 443.

U. S. Rev. Stat. § 4443; Joslyn v. Nickerson, 1 Fed. Rep. 133.

to bring her within the provisions of sections 4465 and 4469 of the Revised Statutes, prescribing penalties for steamers carrying more passengers than allowed by their certificates of inspection.'

$93. Remedy by Action for Penalty for Carrying Excess of Passengers.

The provision of the Passenger Act of August 2, 1882, § 1, relating to excess of passengers, cannot be enforced against the master of a vessel by a civil proceeding in admiralty. An action for the penalty need not be prosecuted in the name of the United States. The United States is not a necessary party to a suit for recovery of the penalty under United States Revised Statutes, 34465, which penalty is imposed for taking on board of any steamer a greater number of passengers than is stated in the certificate of inspection. Where a libel charges a vessel with having carried a certain number of passengers in excess of the number allowed by law, a penalty will be awarded only for the number charged in the libel, although the evidence shows that a greater number was carried."

The Secretary of the Treasury may remit claims of informers," and of the United States, to penalties and forfeitures incurred, under sections 4465 and 4469 of the Revised Statutes, for carrying a greater number of passengers than the certificate of inspection permits; and such remission will operate as a full discharge.' It is not, however, a power to pardon. The general proposition that the power to pardon is subject to such a limitation is well supported by authorities."

'The Hazel Kirke, 25 Fed. Rep. 601.

The Scotia, 39 Fed. Rep. 429.

Hatch v. The Boston, 3 Fed. Rep. 807.

Pollock v. The Sea Bird, 3 Fed. Rep. 573; The Laura M. Starin, 11 Fed.
Rep. 177.

The Columbia, 39 Fed. Rep. 617.

U. S. Rev. Stat. § 5294.

The Laura, 8 Fed. Rep. 612.

Pollock v. The Laura, 5 Fed. Rep. 133.

"Howell v. James, 2 Strange, 1272, 3 Coke, Inst. 236-238; United States v. Harris, 1 Abb. U. S. 110; United States v. Lancaster, 4 Wash. C. C. 66; Shoop v. Com. 3 Pa. 126; Rowe v. State, 2 Bay, 565; Pollock v. The Laura, 5 Fed. Rep. 136.

$94. Proceeding in rem for Penalty for Excess of Passengers.

Proceedings in rem may be maintained in the district court for the penalty provided by United States Revised Statutes, § 4465, for taking on board a steamer a greater number of passengers than that stated in the certificate of inspection.

Section 4469 of the Revised Statutes provides that the penalty shall be a lien on the vessel, to enforce which a suit in admiralty lies by proceedings in rem. A verdict and judgment against the owners, to charge them personally with the penalties incurred is not conclusive against their vendees in a subsequent suit in rem to enforce against the vessel the lien for the penalties. The libel need not allege that libelant was a passenger, or that he was an informer, or that he sued as such; nor need it set out the names of the passengers taken on board.' It is sufficient if it sets forth the offense in the words of the statute which creates it, with sufficient certainty as to the time and place of its commission.*

Section 4469 of the Revised Statutes authorizes a bond to be given to secure the judgment as in other cases. Nor will the bringing of an action of debt against the master and owners of the boat, and prosecuting the same to judgment, release the lien given by Revised Statutes, § 4469. Such lien was not devested by a sale to a bona fide purchaser. It is not necessary that the vessel should have been attached, before the filing of the libel to enforce the statutory lien. That the libelant did not proceed against the vessel until the recovery of the judgment, in the personal action against the master and owners, did not constitute laches. Where the claimant pleaded, in his answer to a libel filed under the Revised Statutes, § 4465, an oral permission to carry additional passengers on excursions, under Revised Statutes, 4466, which requires that the permission should be in 'Hatch v. The Boston, 3 Fed. Rep. 807; The Arctic, 11 Fed. Rep. 177.

The Boston, 8 Fed. Rep. 628.

Pollock v. The Sea Bird, 3 Fed. Rep. 573; Pollock v. The Laura, 5 Fed. Rep. 133.

United States v. The Neurea, 60 U. S. 19 How. 94, 15 L. ed. 532.

'The Laura M. Starin, 11 Fed. Rep. 177.

'Hatch v. The Boston, 3 Fed. Rep. 807.

writing; this defense could not avail the claimant, and that part of the answer must be stricken out upon exception as immaterial."

In a suit for carrying of unlawful number of passengers, it appearing that the persons were intruders against the will of the officers of the boat, and that the boat moved from her landing to another convenient place to avoid a crowd of people who it was feared might force their way upon her and endanger her, the penalties were not incurred.'

$95. Prohibition of Dangerous Articles on Passenger Vessels.

In an action to recover penalties for the violation of Revised Statutes, 4472, which prohibits the carrying of petroleum and other dangerous articles upon passenger vessels, except refined petroleum which will not ignite at a temperature of less than 110 degrees, where the latter has no other practicable mode of transportation, although there was an all-rail route over which the petroleum might have been transported, yet, if the rates charged for transportation by rail were so high as to amount to a prohibition of the traffic in that article, it was held that it was not a practicable mode of transportation within the meaning of the section. The word practicable in that section, is used in a commercial or business, and not in a mechanical sense. Gunpowder, nitro-glycerine, etc., and loose hay, cotton or hemp are forbidden to be carried under penalties.*

The remedy given by section 4493 for an injury to an employé on a steam vessel is merely cumulative and does not exclude the right to any other remedy for such injury which may be given by the general admiralty law."

Pollock v. The Laura, 5 Fed. Rep. 134.

Poor v. The Geneva, 26 Fed. Rep. 647.

3 United States v. Wise, 7 Fed. Rep. 190, 6 Fed. Rep. 41.

'U. S. Rev. Stat., §§ 4472-4476.

CHAPTER XVII.

PASSENGER ELEVATORS.

§ 96. Proprietor as a Carrier of Passengers, and his Responsibility.

§ 97. Proprietor's Responsibility for Defects in Construction.

§ 98. Responsibility for Manufacturer's Negligence.

§ 99. Duty of Proprietor of Elevator to Inspect its Condition.

§ 100. Proprietor Liable only for Neglect of Imposed Duty to Person

Injured.

§ 101. Presumption of Negligence in Case of Injury from Elevator. § 102. Contributory Negligence-Comparative Negligence.

§ 103. Statutes Regulating the Use of Elevators.

§ 96. Proprietor as a Carrier of Passengers and his Responsibility.

The proprietor of a passenger elevator is a carrier of passengers subject to the same responsibilities as to care and diligence to secure safety as are carriers of passengers by stage coach or railway. The rule as to the degree of care required, and as to the onus of proof in case of injury from giving way of machinery, applicable between a common carrier of passengers and his passengers, is applicable as between the owner and manager of a passenger elevator and the passengers in it.' A proprietor of an elevator for carrying passengers, who used the elevator in lifting persons vertically to the height of forty feet, is a carrier of passengers and subject to the same responsibilities.' The same degree of responsibility must attach to one controlling and running an elevator. Persons who are lifted by elevators are subjected to great risks to life and limb. They are hoisted vertically, and are unable, in case of the breaking of the machinery, to help themselves. The person running such elevator must be held to undertake to raise such persons safely, as far as human care and foresight will go. The law holds him to the utmost care 'Goodsell v. Taylor, 4 L. R. A. 673, 41 Minn. 207. Treadwell v. Whittier, 5 L. R. A. 498. 80 Cal. 574. 308