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2. Burden of proof. — 70 Fed. 268, af- by libelant of an option to take the bricks
firmed in Empire Transp. Co. v. Phila- at a certain time, on which proper action
delphia, etc., Iron Co., 77 Fed. 919, 23 C. was taken. Tweedie Trading Co. v. New
C. A. 564, 35 L. R. A. 623. York, etc., R. Co., 166 Fed. 993.

In the absence of any provision on the 3. Empire Transp. Co. v. Philadelphia,

subject in the bill of lading, a consignee etc., Iron Co., 77 Fed. 919, 23 C. C. A.

is under the duty of receiving the cargo 564, 35 L. R. A. 623, affirming decree 70

as discharged within a reasonable time, Fed. 268.

but to entitle the owner to demurrage he In a suit for demurrage for delay by

has the burden of proving that there was a cargo owner in discharging, where the

unreasonal)le delay. Tweedie Trading contract fixed no time for discharging

Co. V. Barry, 205 Fed. 721, 124 C. C. A. proof by libelant that the actual time

15, reversing decree 194 Fed. 286. taken exceeded a reasonable time casts

In the absence of a charter provision on the respondent the burden of show-
on ti e subject, to establish the liability ing a legal excuse therefor to avoid lia-
of a -harterer for demurrage on account l)ility. Tweedie Trading Co. v. Barry,
of d.'lay in loading or discharging, the 194 Fed. 286.



§ 4378 CARRIERS. 3974

expired.^ In an action for demurrage, commenced three and one-half years
after the transactions, the mere lapse of time is insufficient to bar the action, in
the absence of some special reason, such as loss of testimony.^ But where, the
owner of a vessel delayed his action for demurrage for six years, the claim' was
presumably stale.^

4. Limitation and laches.— Davis v. 5. Tweedie Trading Co. v. Thomsen &

Smokeless Fuel Co., 196 Fed. 753, 116 C. Co., 173 Fed. 710.

C. A. 381, affirming decree 182 Fed. 1004. 6. Jameson v. Sweeney, 66 N. Y. S. 494,

33 Misc. Rep. 645.



CHAPTER XXXIX.

Carriage of Passengers.

I. Nature of Liability of Vessel, § 4379.
II. What Law Governs, § 4380.
III. Statutory Regulation in General, § 4381.
IV. Regulation as to Steam Vessels, § 4382.

V. Regulations as to Dangerous Articles, § 4383.
VI. Regulations as to Immigrants and Other Passengers from Foreign Ports, § 4384.

VII. Contracts, Fares, Passage and Tickets, §§ 4385-4390.

A. In General, § 4385.

B. What Constitutes Contract and Consideration, § 4386.

C. Operation and Effect, § 4387.

D. Performance or Breach of Contract, § 4388.

E. Rescission, § 4389.

F. Actions, § 4390.

VIII. Accommodations on Vessel, §§ 4391-4398.

A. In General, § 4391.

B. Stateroom, Berth and Bedding, § 4392.

C. Food and Water, § 4393.

D. Effect of Quarantine, § 4394.

E. Delivery of Telegram. § 4395.

F. Liability for Personal Injuries, § 4396.

G. Actions, § 4397.
H. Damages, § 4398.

IX. Voyage and Discharge at Destination, §§ 4399-4401.

A. Duties and Liabilities, § 4399.

B. Actions, § 4400.

C. Damages and Recovery of Passage Money, § 4401.

X. Personal Injuries, §§ 4402-4428.

A. Care Required and Liability, §§ 4402-4416.

a. In General, § 4402.

b. Consequences Not Reasonably Anticipated from Act, § 4403.

c. With Respect to Machinery, Appurtenances and Crew, § 4404.

d. Care of Docks and Passage Ways, § 4405.

e. Personal Injuries from Want of Proper Accommodations, § 4406.
f. Acts of Other Passengers, § 4407.

g. Negligence or Misconduct of Third Party ContriI)Uting Cause, § 4408.
h. Persons to Whom Duty to Use Care Owed, § 4409.

i. Officers and Employees for Whose Negligence Liability Attaches, § 4410.
j. Intoxicated Passenger, § 4411.
k. Medical Attention, § 4412.
1. Acts in Emergency, § 4413.
m. Election to Continue Voyage against Advice of Pilot, § 4414.
n. Landing or Discharge of Passengers, § 4415.
o. Care Required of Tenant of Wharf, § 441().

B. Release of Right of Action, § 4417.

C. Limitation of Liability, § 4418. '

D. Contributory Negligence and Assumijlion of Risk, § 4419.

E. Procedure, §§ 4420-4426.

a. Pleading. § 4420.

b. Evidence, §§ 4421-4423.



§§ 4379-4380 carriers. 3976

(1) Presumption and Burden of Proof, § 4421.

(2) Admissibility and Competency, § 4422.

(3) Weight and Sufificiency, § 4423.

c. Questions of Fact, § 4424.

d. Instructions, § 4425.

e. Special Verdict, § 4426.

F. Liens, § 4427.

G. Damages, § 4428.

XI. Ejection of Passengers, § 4429.

XII. Passenger's Effects, §§ 4430-4442.

A. Liability as Inn Keeper or Insurer, § 4430.

B. Delivery to and Acceptance by Carrier, § 4431.

C. Duty to Provide Watchman, § 4432.

D. Duty to Provide State Room Door with Bolts and Locks, § 4433.

E. Particular Losses for Which Vessel Liable, § 4434.

F. Passengers Entitled to Recover, § 4435.

G. Effects for Which Recovery Allowed, § 4436.

H. Contributory Negligence of Person Complaining, § 4437.
I. Baggage Detained by Customs' Ofificers, § 4438.
J. Evidence, § 4439.
K. Liens, § 4440.
L. Damages, § 4441.
M. Limitation of Liability, § 4442.

XIII. Penalties and Forfeitures for Violations of Regulations, § 4443.

XIV. Offenses Incident to Carriage of Passengers, §§ 4444-4447.

A. What Constitutes and Elements, § 4444.

B. Defenses, § 4445.

C. Indictment, § 4446.

D. Evidence, § 4447.

§ 4379. Nature of Liability of Vessel. — 111 Passenger. — A carrier by
water must take as passengers all who offer themselves, ill or well, provided it
can furnish the necessary accommodations, and the passenger is willing to pay
for what he demands ; but, where one who is ill presents herself to a common
carrier for transportation by water, it is her duty to state the fact that she is ill
and make special arrangements for her transportation as a person in need of
medical attention, and the carrier is not bound to receive her as an ordinary
passenger. 1

§ 4380. What Law Governs. — An action in an admiralty court of the
United States to recover for injuries sustained by an American passenger on a
foreign ship on the high seas is governed by the general maritime law as ad-
ministered in this country, which gives a remedy against the ship's owners
where the injur}- was due to the negligence of those in charge of her navigation, -

Locus of Tort. — The locus of a tort is determined by the place where the
injury and damage arose, rather than where the negligent act which produced
such injury was committed; and a libel to recover damages for the death by
drowning of libelant's intestate, as the result of a collision and the sinking upon
the high seas of a vessel sailing under the French flag, and on which the de-
ceased was a passenger, alleged to have been due to negligent navigation, which
does not allege that the drowning occurred upon the vessel, fails to show that

1. Ill Passenger.— Connors v. Cunard Elder Dempster Shipping, 122 Fed. 983,
Steamship Co., 90 N. E. 601, 204 Mass. reversed in 125 Fed. 732, 60 C. C. A. 500.
310. 26 L. R. A., N. S., 171, 17 Am. & See ante, "What Law Governs Relation-
Eng. Ann. Cas. 1051. ship," § 2117.

2. What law governs. — Pouppirt v.



3977 CARRIAGE OF PASSENGERS. §§ 4380-4382

the cause of action arose upon French territory, so as to render the law of
France appHcable thereto, conceding that the carrying of the French flag ex-
tended the jurisdiction of such law to the ship.^

Persons Formerly Employed on Ship— Being Returned Home as Part
of Their Compensation.— Citizens of the United States, who shipped as
horsemen on an English ship to care for horses and mules during a voyage from
New Orleans to South Africa under a contract that they should be returned free
to an American port, subjected themselves to the English law, and during the
tune of their service were to be considered and treated as British subjects; but
their terms of service ended at the end of the voyage in South Africa, the pas-
sage home being a part of their compensation, and on the voyage home they
were pasr.engers, and their rights as such were governed by the laws of the
United States."*

Limited Liability Acts.— See post, "Limited Liability Act," §§ 4494-4530.

§ 4381. Statutory Regulation in General. — Congress has power to pro-
vide for the better security of the lives of passengers on board vessels. ^

As to Failure of Pilot, Engineer, Mate or Master to Observe Regula-
tions.— Under Rev. St., § 4413 (U. S. Comp. St. 1901, p. 3020), which pro-
vides that every pilot, engineer, mate, or master of any steam vessel who neg-
lects or v.illfully refuses to observe the regulations established pursuant to § 4412
shall be liable for all damages sustained by a passenger by such neglect, a re-
covery is only authorized against pilots, engineers, mates, and masters, as dis-
tinguished from owners.*^

§ 4382. Regulation as to Steam Vessels. — The provisions of act Cong.
Tan. 18, 1897, c. 61, 29 Stat. 489 (U. S. Comp. St. 1901, p. 3029), that all ves-
sels above 15 tons burden carrying passengers and propelled by gas, fluid, nap-
tha, or electric motors are subject to the provisions of Rev. St., § 4426 (U. S.
Comp. St 1901, p. 3029), relating to inspection, and requiring engineers and
pilots therefor, and declaring that all vessels so propelled, without regard to
tonnage, are subject to section 4412 (page 3020) and so much of sections 4233
(page 2893) and 4234 as the board of supervising inspectors shall deem applica-
ble and practicable for such navigation, do not regulate to steam vessels em-
ployed in inland navigation."

Inspection. — Where a steamship had a portion of her guards torn away
by a collision with a bridge pier, but an examination by competent men disclosed
no injury to her hull or machinery, and only slight repairs were necessary, and
she had been regularly inspected and pronounced stanch and seaworthy only

3. Locus of tort. — Rundell v. La Cam- with coal for transportation, having on
pagnie Generale Transatlantique, 100 Fed. board the master with his family, is not
655, 40 C. C. A. 625, 49 L. R. A. 92. a "barge carrying passengers" within the

4. Persons formerly employed on ship meaning of § ,4452. Rev. Stat., which re-
^Being returned home as part of their quires that such a barge while in tow of
■compensation. — The European, ]20 Fed. a steamer, shall be provided with "fir'*
776, 57 C. C. A. 140. buckets, axes, life preservers and yawls.'

5. Statutory regulation in general. — -See Transportation Line v. Cooper, 99 U. S.
ante, "Interstate and International Com- 78, 25 L. Fd. 382.

merce. Part VI. A remission by the secretary of thr

The Act of 7th July, 1838 (5 Stat, at L., treasury under § 5294 of the Revised Stat-

304).— See Waring v. Clarke (U. S.), 5 utes of penalties.— The Laura, 114 U. S.

How. 441, 12 L. Kd. 22G. 411, 29 L. VA. 147, 5 S. Ct. SSI.

The number and mode of carrying pas- Liability of vessel, owner and master.

sengers on lioard a mercliant vessel is — See Tlie Strathairly. 124 U. S. 558, IJl L.

regulated l)y the Federal Statutes. Rev. F.d. 5S0, s S. Ct. (lOO.

Stat., §§ 4252, 4270, inclu.<ive. The Strath- 6. As to failure of pilot, engineer, mate

airly, 124 U. S. 558, 31 L. I'.d. 580, 8 S. or master to observe regulations. — Beck

Ct. 609. _ V. Johnson, 169 Fed. 154.

Paraphernalia for preserving life and 7. Regulations as to steam vessels. — •

extinguishing fires. — A canal l)oat laden Beck v. Jolinson, 169 Fed. 154.



§§ 4382-4385 carriers. 3978

three months before, the fact that no reinspection was apphed for after the ac-
cident does not constitute a faiUire to comply with Rev. St., § 4417 [U. S.
Comp. St. 1901, p. 3024], regarding inspection, which will render her owners
liable for injuries to passengers or their effects under § 4493 [U. S. Comp. St.
1901, p. 3058], creating such liability, wdiere they have failed to comply with
any of the provisions of that title, when it is not shown that any injury in fact
resulted which impaired the strength or safety of the vessel.^

As to Officers and Crew.— Under Rev. St., § 4463 (U. S. Comp. St. 1901,
p. 3045), providing that no steamer carrying passengers shall depart from
any port unless she shall have in her service a full complement of licensed offi-
cers and full crew sufficient at all times to manage the vessel, etc., not only must
the vessel have a full complement of licensed officers and adequate crew with
reference to all the exigencies of the intended route, but the officers and crew
must be competent for any exigency that is likely to happen.^

§ 4383. Regulations as to Dangerous Articles. — Gasoline Contained
in Tank of Automobile. — Under Rev. St., § 4472, prohibits passenger steam-
ers from carrying as freight certain articles, including petroleum products or
other like explosive fluids, except in certain cases and under certain restrictions.
By Act Feb. 20, 1901, c. 386, 31 Stat. 799 [U. S. Comp. St. 1901, p. 3050], the
section was amended by adding the following provision : "Nothing in the fore-
going or following sections of this act shall prohibit the transportation by steam
vessels of gasoline or any of the products of petroleum wdien carried by motor
vehicles (commonly known as automobiles) using the same as a source of mo-
tive power: Provided, however, that all fire, if any, in such vehicles or auto-
mobiles be extinguished before entering the said vessel and the same be not
relighted until after said vehicle shall have left the same. * * *" Under this
provision gasoline contained in the tank of an automobile being transported on
a steam vessel was carried as freight, within the meaning of the statute; that
an automobile in which the motive power was generated by passing an electric
spark through a compressed mixture of gasoline and air in the cylinder, caus-
ing intermittent explosions, carried a fire wdiile the vehicle was under motion
from its own motive power; and that the carrying by a steam ferryboat of such
a vehicle; which was run on and off the boat under its own power, was a viola-
tion of the statute. 1^

§ 4384. Regulations as to Immigrants and Other Passengers from
Foreign Ports. — Delivery of List of Passengers to Collector. — Section
4266, Rev. Stat. U. S., requires the master of any vessel arriving in the United
States from any foreign place to deliver a list of all passengers taken on board
at any foreign port to the collector of the district in which such vessel shall ar-
rive. ^^

Obligation to Carry Persons Applying for Passage. — Where a ship acts
as a common carrier, its obligation is the same as other carriers. ^-

§§ 4385-4390. Contracts, Fares, Passage and Tickets.— See ante,
"Fares, Tickets, Special Contracts, Transfers, etc.," chapter 22.

§ 438 5. In General.— Contracts for Carriage of Passengers.— A con-
tract for the transportation of passengers by a steamship on the ocean is a mari-

8. Inspection.— The Longfellow, 104 collector.— The Strathairly, 124 U. S. 558,
Fed. 360, 45 C. C. A. 379. 31 L. Ed. 580. 8 S. Ct. fi09.

9. As to officers and crew. — Northern 12. Obligation to carry persons apply-
Commercial Co. v. Lindblom, 162 Fed. ing for passage.— Pearson v. Duane (U.
250, 89 C. C. A. 230. S.), 4 Wall. 605, 18 L. Ed. 447. As to

10. Gasoline contained in tank of auto- right to refuse to carry a party to a port
mobile. — The Texas, 134 Fed. 909. from which he has been banished by rev-

11. Delivery of list of passengers to olutionists, see Pearson v. Duane (U. S.),

4 Wall. 605, 18 L. Ed. 447.



3979 CARRIAGE OF PASSENGERS. §§ 4385-4389

time contract, and there is no distinction in principle between it and a contract
for the Hke transportation of merchandise. ^^

§ 4386. What Constitutes Contract and Consideration. — ^^■here plain-
tiff's husband purchased a ticket for her involving transportation over defend-
ant's line, and thence by steamship to destination, defendant agreeing to wire
for a stateroom on the steamship, such agreement was a part of the contract of
carriage, which inured to plaintiff's benefit, and was not nudum pactum.^"* The
provisions of § 2 of the Harter Act, Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U.
S. Comp. St. 1901, p. 2946], do not apply to passenger tickets.

§ 4387. Operation and Effect. — Laws Applicable — Harter Act^^^ —
Loss of Ticket. — If carriers by steamboat require passengers to buy tickets be-
fore going on board, and to deliver them up on landing, the loss of a ticket by
a passenger falls on him, and not on the carriers, and it is his duty on landing
to pay the amount of the fare.^^

§ 4388. Performance or Breach of Contract. — Notice of Intention to
Embark. — The sending of eight days' notice of intention to embark, as required
by steamship passenger tickets to secure passage, is a condition precedent to se-
curing passage ; and, unless compliance therewith is shown, a complaint for re-
fusal to transport should be dismissed.^' Where an embarkation slip, sent to
plaintiff in Russia prior to the receipt of a ticket entitling her "to passage to
Iowa, required her to notify defendant steamship company of her intention to
sail fourteen days in advance of the sailing date, or berths would not be re-
served, plaintiff's failure to give such notice was no defense to an action against
the steamship company for the negligence of its agent in failing to promptly mail
plaintiff's ticket to its agent at the port of embarkation, resulting in delay to
plaintiff's damage. ^^

Passenger's Taking Passage Prevented by Government Inspector.—
The holder of a steamship ticket can not recover in tort from the steamship com-
pany by reason of the vessel leaving before the agreed time, by which the ticket
holder is prevented from taking passage thereon, when such act is the result
of the act of the government inspector, under Rev. St. U. S., § 4465, which de-
clares that it should not be lawful for any steamer to receive more passengers
than stated in its certificate of inspection, in refusing to allow the vessel to re-
ceive any more passengers. ^^'

Liens against Vessel for Breach of Contract. — There can be no maritime
lien against a vessel for breach of a contract of carriage where she never in fact
entered on the performance thereof, and neither the libelants nor their baggage
were ever received on board, or placed in the care or control of the master.-^

§ 4389. Rescission. — Right of Passenger to Rescind Contract of Coin-
age before Sailing. — rassengcrs who have paid their i)assage on a vessel can
not be held to their contract, Ijut are entitled to rescind and recover their passage

13. Contracts for carriage of passen- 17. Notice of intention to embark.^
gers. — Tlic Moses Taylor (U. vS.), 4 Wall. Rabinowitz v. Cuiiard Steamship Co.
411, IS T.. I'.d. :VM, 32 How. Prac. Ai\{). (App. Term), 119 N. Y. S. 625.

14. What constitute contract and con- 18. Zahron v. Cunard Steamship Co.,
sideration.— Central, etc., R. Co. v. 151 Towa 345, 131 N. W. 18. .34 L. R.
Knif?ht. 3 Ala. App. 436, 57 So. 253. A., N. S., 751.

15. Laws applicable— Harter Act. — La 19. Passenger's taking passage pre-
BourH^o^ne, 144 I-'ed. 781, 75 C. C. A. 647, vented by government inspector. -Hus'h-
affirmed in Deslions v. La Compagnie son v. Winthrop vStcanihoat Co., 181
Generale Transatlantique, 28 S. Ct. 664, Mass. 325, 64 N. E. 74, 58 L. R. A. 432.
210 U. S. 05, 52 L. Ivl. 073. 20. Liens against vessel for breach of

16. Loss of ticket. — Standish v. Narra- contract. — The l'.ii.i;enc, 87 Vq(\. 1001, 31
Ransett Stcamshii) Co., Ill Mass. 512. 15 C. C. A; 345, reversing decree 83 Fed. 222.
Am. Rep. 66.



§§ 4389-4391 carriers. 3980

aiioney, where, before sailing, the vessel is reported in the press as rotten and
unsafe, and they are justified by their information and her appearance in be-
Jieving her so, though she may in fact have been staunch and sea worthy. 21

§ 4390. Actions — Affidavit of Defense. — In an action by a steamship
company to recover passage money, an affidavit of defense is sufficient which
avers that the defendant contracted for a particular stateroom, but that the
company refused to permit her to occupy it ; that the stateroom for which she
contracted was a comfortable one, but that she was compelled to occupy a room
at the stern of the vessel near the machinery; that the said room was most
uncomfortable; that the motion there was very great, and the rattle of the
machinery there was such as to prevent her from sleeping; that in consequence
of the discomforts of the room, and the disturbance occasioned by the move-
ment and noise of the machinery, defendant was able to sleep but very little
■during the entire voyage, and in consequence suffered nervous sickness, causing
her much pain and suft'ering, which continued the entire voyage, and after her
arrival in this country. -

Issues and Venue. — In an action against a steamship company for refusal to
transport passengers, evidence that defendant was not permitted under the im-
migration laws to transport such persons could not be presented under a gen-
eral denial, because the terms of their tickets constituted at most a warranty or
a condition subsequent, breach of which must be separately pleaded.-^

Sufficiency of Evidence. — In a suit against a steamship company for its
refusal to transport emigrants, and for taking away their tickets purchased for
them by plaintiff, evidence is insufficient to show that they duly presented them-
selves for transportation, where it tends rather to prove the contrary, and to show
that they were rejected or refused, not by defendant, but by a physician at the
place where they proposed to embark.-^

§§ 4391-4398. Accommodations on Vessel. — See ante, "Accommoda-
tions and Duties during Transit," §§ 2490, 2524.

§ 4391. In General. — It is the duty of the owners of a vessel to provide
f:uitable accommodations for her passengers -"* and to keep her in a clean condi-
tion. ^^^ And the vessel is liable for a violation of the implied agreement to fur-
nish reasonable accommodations -" and for overcrowding and sickness result-
ing therefrom.-^ But a person rightfully on board who is not a passenger is not

21. Right of passenger to rescind con- being overcrowded in unclean and badly
tract of coinage before sailing. — The ventilated quarters. While the obtaining
Guardian, 89 Fed. 998. of an inspector's certificate permitting the

22. Affidavit of defense. — North Ger- vessel to take more passengers than she
man Lloyd Steamship Co. v. Wood, 18 actually carried may relieve her from
Pa. Super. Ct. 488. prosecution for the statutory penalty for

23. Issues and venue. — Rabinowitz v. carrying an excessive number, it does not
Cunard Steamship Co. (App. Term), 119 relieve her from liability to passengers
N. Y. S. 625. for a violation of her implied agreement

24. Sufficiency of evidence. — Rabino- to furnish them with reasonable accom-
witz V. Cunard Steamship Co. (App. modations. Decree, The Valencia, 110
Term), 119 N. Y. S. C2.5. Fed. 221, affirmed in Pacific Steam Whal-

25. Accommodations on vessel. — The ing Co. v. Grismore, 117 Fed. 68, 54 C.
Oregon, 1.33 Fed. 609, 68 C. C. A. 603. C. A. 454.

26. Duty tO' keep vessel clean. — The 28. Where a steamship company having
Oregon, 133 Fed. 609, 68 C. C. A. 603. accommodation for and authorized to

27. Pacific Steam Whaling Co. v. Gris- carry only 375 steerage passengers sells
more, 117 Fed. 68, 54 C. C. A. 454. tickets to and receives 475 such passen-

A steamship is liable in damages to gers, and by reason of such overcrowd-
passengers who, although they were sold ing the passengers are delayed and in-
second-class tickets, were given only the jured, the company is responsible for
accommodations of steerage passengers, such damage, since such crowding beyond
and who suffered great discomfort from the point at which the passengers could
lack of proper food and water and from be safely carried is a breach of the con-



3981 CARRIAGE OF PASSENGERS. §§ 4391-4392

entitled to demand passenger's accommodations, although he is entitled to de-
mand the exercise of ordinary care towards him on the part of the vessel and
crew. - '

Permission of Inspector to Overcrowd Vessel. — When permission of in-
spector was obtained to crowd a vessel beyond the limit of accommodation pro-
vided for passengers, such permission is not a defense to an action for damages
to passens^ers sustained by reason of such overcrowding.^*^*

Inspection Certificates and Indorsements Thereon. — An indorsement on
an inspector's certificate that a steamship had been provided with accommoda-



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