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A treatise on the law of carriers (Volume 4) online

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contract in not landing him at the mouth San Francisco," and signed, "Allen,
of a certain river examined, and held to Agent," in which the route by the steam-
show the making of a contract to land ships on both oceans and across the isth-
libelant merely as near to the mouth as mus was described and commended. The
could be done with safety. Torrey v. agent at that office sold to plaintiff, for
Kelly, 121 Fed. 542, 57 C. C. A. 604. a gross sum, three tickets, which sever-

67. Defendant owned steamships sail- ally imported that he was entitled to be
ing between New York and the eastern carried to and across the isthmus and
port of the transit route across the Isth- thence upon a particular vessel on her
mus of Nicaragua, and was part owner next voyage to San Francisco, and de-
of steamships sailing between the west- livered to him a card, signed by himself,
ern port of the transit route and San describing the route, and stating that



§§ 4400-4402

to support a refusal to direct a nonsuit in an action for landing plaintiff at a
point short of her destination ; ^9 to support a finding that it was not reasonably -
practicable for plaintiff to finish the journey to his destination or to return to
the port from which he startedJ^

§ 4401. Damages and Recovery of Passage Money.— Right to Return
of Passage Money. — Where a vessel took passengers for Kotzebue Sound, but
wholly failed to rnake the voyage, and discharged the passengers at Nome, the
sailing point, and they were not afterwards forwarded, on the failure of the
voyage, the passengers were entitled to have the return of their passage.'''^

Measure of Damages for Failure to Afford Opportunity to Land. — In
an action against a vessel for damages by reason of a failure to afford passengers
an opportunity to land on reaching their port of destination, and their carriage
to a distant port, the measure of recovery is the actual damage sustained, which
includes the fare paid, and, where the passenger returns to the port at which
he took passage, the cost of such return, together with a reasonable sum as
compensation for the loss of time necessarily resulting from the breach of the
contract."^ ^

§§ 4402-4428. Personal Injuries— §§ 4402-4416. Care Required
and Liability.— See ante, "Degree of Care Required," §§ 2290, 2342.

§ 4402. In General.— See

by water is bound to use the
and extent of the business in
sufficient and suitable vessels,
transportation, as well as in
reasonable arrangements as a
dangers, from whatever source

ante, "Carriers by Water," § 2424. A carrier
utmost care which is consistent with the nature
which he is engaged, in the providing of safe,
and other necessary or appropriate means of
the management of the same, in making such
prudent man would make to guard against all
arising, which may naturally and in accordance

passengers are speedily conveyed across
the isthmus by the Nicaragua transit.
Held sufficient to authorize a jury to
find that the defendant contracted as
principal for the prompt conveyance of
the plaintiff across the isthmus, and to
charge him with damages for a deten-
tion. Quimby v. Vanderbilt, 17 N. Y.
306, 72 Am. Dec. 469.

68. Evidence in a libel by a passenger
against a vessel for breach of contract
in not landing him as near to the mouth
of a river as could be done with safety
examined, and held to show^ that the con-
tract was complied with by the master.
Torrey v. Kelly, 121 Fed. 542, 57 C. C.
A. G04.

69. Refusal to direct nonsuit. — Plain-
tiff's evidence showed that she was an
aged lady, and was landed at a point not
her destination, by one of defendant's
steamships, on which she was a passen-
ger, on a stormy day, and was left unpro-
vided with fuel and shelter, and that she
only reached home after two days' exer-
tions, and the exposure causing serious
illness. There was evidence that the offi-
cers of the boat told her that another
boat would pick her up, and take her to
her destination, and that the other boat
refused so to do, and that she was wetted
in being landed. Held not error to re-
fuse to direct a nonsuit in favor of the

4 Car— 56

defendant in an action to recover for
such injuries. Sievers v. Dalles, etc., Nav.
Co., 64 Pac. 539, 24 Wash. 302.

70. Plaintiff purchased a ticket and was
a passenger on defendant's boat from S.
to D.; but, the defendant being unable to
carry plaintiff through to D. that winter,
under the representations of the boat cap-
tain that he would take plaintiff to a
good place to cut wood, where there was
a cabin suitable for occupancy, plaintiff
went ashore at a place on the Yukon
river in Alaska, and stayed all winter.
The cabin was not habitable, and plain-
tiff became sick. Held, in an action for
failure to carry plaintiff to D., that the
evidence was sufficient to support a find-
ing that it was not reasonably practicable
for the plaintiff to finish the journey to
D. or return to S., and hence the finding
for plaintiff was not contrary to an in-
struction that plaintiff could not recover
for the loss of time or sickness caused
by remaining on the Yukon if it was
reasonably practicable for him to return
to S. or go on to D. Sloan v. North
American Transp., etc., Co., 64 Pac. 150,
24 Wash. 221.

71. Right to return of passage money.
— Tlic Arthur P... 1 Alaska 403.

72. Measure of damages for failure to
afford opportunity to land. — The Presi-
dent, 92 Fed. 673.

;§ 4402-4403



with the usual course of things be expected to occur J 3 g^^ ^ g}^ip jg j-jq^.
bound to the same strict responsibiHty for the safety of passengers as in the
case of goodsJ'* For instance, a carrier by water is Hable for an injury which
occurred as a result of requiring steerage passengers to come on the upper
deck to receive their food in weather so stormy as to make it dangerous J ^

No Implied Warranty of Seaworthiness. — While a carrier of passengers
by sea is bound to exercise the highest degree of care, prudence, and fore-
sight, it is not an insurer of their safety, and there is no implied warranty, as
in case of the carriage of goods, that the ship was seaworthy at the beginning
of the voyage, and whether she was technically so or not is immaterial in a
suit by passengers to recover for injuries received.'^*^

§ 4403. Consequences Not Reasonably Anticipated from Act. — A car-
rier by water is not required to guard against dangers which a prudent man
would not expect to occur naturally and in accordance with the usual course
of things,'^'^ as, for instance, where a glass upon which a passenger rested his
hand broke and cut him, the screen of which he had accidentally displaced; "^^
where little girls in playing ran against a bucket of hot gruel carried by the
steward and splashed it on a passenger sitting at the table ;'^^ where a child
was injured by placing his hand in an unprotected hawse hole;^" where a
passenger was run down and trampled upon by his fellow passengers as a
result of the striking of the steamboat against the pier;^^ or where a pas-

73. Care required and liability. — Sim-
mons V. New Bedford, etc., Steamboat
Co., 97 Mass. 361, 93 Am. Dec. 99; In-
ternational Mercantile Marine Co. v.
Smith, 145 Fed. 891. 76 C. C. A. 423.

74. Decree, Pouppirt v. Elder Dempster
Shipping, 122 Fed. 983, reversed in 125
Fed. 732, 60 C. C. A. 500.

75. Requiring passenger to receive
food on upper deck. — A steamship was
negligent in requiring steerage passen-
gers to come onto the upper deck to re-
ceive their food while crossing the ocean
in weather so stormy as to render it dan-
gerous, and is liable for the injury of a
passenger while so on deck by being
thrown down by a wave, or by reason of
the wet and slippery condition of the
deck. Decree, 139 Fed. 810, affirmed in
The Prinzess Irene, 151 Fed. 17, 80 C.
C. A. 483.

76. No implied w^arranty of seaworthi-
ness.— The Oregon, 133 Fed. 609, 68 C.
C. A. 603.

77. Consequences not reasonably an-
ticipated from act. — Kohn v. Interna-
tional Mercantile Marine Co., 180 Fed.

78. Libelant, a passenger, while on
deck during a rough sea, to escape an
unusually large wave, which washed over
the deck, stepped upon a bench and
rested his hand upon a glass ventilator
or skylight, which broke and his hand
was cut by the glass. There was a frame,
with cross-rods, over the sash, to pro-
tect the glass; but it was displaced by
libelant and fell to the deck before his
injury. Held, that the vessel was not
negligent; the injury being accidental.
The Caracas, 163 Fed. 662.

79. A boy about three years of age, a

passenger in the steerage, was scalded
while sitting at the supper table by hot
gruel splashed on his face from a bucket
carried by the steward. The evidence
was contradictory whether some little
girls playing ran against the bucket, or
whether the steward slipped upon the
floor, made wet by the drippings of a
water cooler near by. The steward was
a competent and a careful man. Held,
whichever of the above was the cause,
no fault of the ship was proved. The
Anchoria, 77 Fed. 994, decree affirmed in
83 Fed. 847, 27 C. C. A. 650.

80. Child placing hand in hawse hole.
— Plaintiff, a cliild nine years of age, a
passenger on defendants' steamship, was
standing in charge of his mother near
the rail as the' vessel approached: her
dock. In the confusion attending the
landing of the vessel, plaintiff placed his
left hand in a hawse hole through which
a heavy cable had been passed, extend-
ing to a tug, and, as the cable moved
or tightened, three of plaintiff's fingers
were crushed or ground off by the rope's
friction against the rim of the hole.
Held, that the shipowners were not neg-
ligent in failing to construct a perma-
nent guard about the hawse hole, nor in
failing to keep the passengers away from
it; the contingency of injury in the man-
ner plaintiff was injured being too re-
mote to impose a duty of guarding
against it. Kohn v. International Mer-
cantile Marine Co., 180 Fed. 495.

81. The running down and trampling
upon a passenger by his fellow passen-
gers is not a consequence to be reason-
ably anticipated by the striking of the
steamboat against the pier of a draw-
bridge; it appearing that the vessel was




senger was injured by the slipping of the steward on a wet place on the floor
about the water cooler.^^

§ 4404. With Respect to Machinery, Appurtenances and Crew. — A

carrier by water is bound to see- that its officers, agents, and servants use the
utmost care and diligence in keeping the vessel constantly provided with suit-
able machinery, boats and appurtenances, and competent officers and crew
in controlling and managing the use of vessel appurtenances, and in making
all the arrangements to protect its passengers against any danger that might
reasonably be anticipated from the action of winds and seas, of the officers
and crew, or of other passengers. ^^

Apparatus or Machinery Not Part of Operative Means of Transporta-
tion. — The rule that a carrier of passengers by water, for hire is bound to exer-
cise the utmost human care, vigilance and foresight, to protect a passenger
from any injury from the machinery and appliances of the vessel, and from
the management of the same, is only applicable when applied to such of the
machinerv and appliances as constitutes the operative means of transporta-
tion, within a defective construction or negligence in management would be
likely to occasion danger to the passenger. ^^ Where a steerage passenger on
an ocean steamship was injured by the parting of a wire rope used in hoisting
ashes from the hold, while he was leaning against the jamb of a door leading
to what was known as the "stokehole fidley," watching the hoisting of the
ashes, and it was not usual for passengers to be in such position, plaintiff Was
not entitled to the exercise of the utmost human care, vigilance, and foresight
to protect him, but was only entitled to the exercise of. ordinary care to guard
him from injury.-"*

Gross Negligence in Management of Boilers. ^Skill is required for the
proper management of the boilers and machinery of a steamboat ; and the
failure to exert that skill, either because it is not possessed, or from inatten-

going very slowly, and that her colli-
sion with the pier was owing to the fact
that because of a high wind and rising
tide she had drifted out of her course.
Southern Transp. Co. v. Harper, 45 S.
E. 458, 118 Ga. 672.

82. Existence of wet place on floor
about the water cooler. — The existence
of a wet place on the floor about the
water cooler in the steerage, caused by
carelessness of passengers in^ using the
cooler, is not proof of such negligence as
will render the ship liable for personal
injuries caused by the slipping of the
steward thereon so as to spill hot gruel
upon a passenger. The probability of
such an accident is too remote to make
the failure to keep the floor constantly
dry negligence in the protection of pas-
sengers. Decree, 77 Fed. 994, affirmed
in The Anchoria, 83 Fed. 847, 27 C. C.
A. 650.

83. With respect to machinery, appur-
tenances and crew. — SininK)ns 7>. New
Bedford, etc.. Steamboat Co., 97 Mass.
361, 93 Am. Dec. 99.

Negligence in handling lines on
crowded boat. — ^A steamer running as a
ferryboat Ijetween Newport News and
Sewell's Point, one of the landings for
the Jamestown Exposition, on what was
called its "workmen's trip" early in tlic

morning, as usual on such trips carried
its full complement of 500 passengers,
who were so crowded that they were
obliged to stand close together on both
decks. Libelants, who were carpenters
working at the Exposition, stood with
many others on the bow end of the main
deck. The lines used to make fast the
boat were coiled across such part of the
deck. On reaching the landing wlien
the lines were drawn out, libelants' feet
were caught in the coils, and they were
seriously injured. They testified that
they did not sec the ropes, owing to the
crowd in which they were packed. Held,
that those operating the vessel were
chargeable with negiligence which ren-
dered it liable for the injuries in permit-
ling the passengers to crowd, without
warning, within the coils of the lines, or
in not so coiling or handling the lines
as to remove the danger; that libelants
under the circumstances were not guilty
of contributory negligence. The ,\nnie
L. Vansciver, 161 Fed. 640.

84. Apparatus or machinery not part
of operative means of transportation. —
("jangu/./.a v. Anchor Jvinc, .S9 N. Y. S.
1049. 97 App. Div. 352, affirmed in 76
N. E. 1095, 184 N. Y. 545.

85. Ganguzza v. Anchor Line, 89 N.
Y. S. 1049, 97 App. Div. 352, affirmed in
76 N. ]•:. 1095, 184 N. Y. 545.

§§ 4404-4406 carriers. 3990

tion, is gross negligence. And the owners are liable for an injury to a_ pas-
senger resulting from such negligence.'^"

§ 4405. Care of Docks and Passage Ways.— Obstructions on Decks.

— Where a structure on the promenade deck of a passenger vessel, consisting
of a chain box extending on both port and starboard sides from deckhouse
to rail, covering a necessary part of the steering gear, was common in vessels
of the size and age of the vessel, and had long been well known on vessels
used for passenger traffic, negligence of the owner could not be predicated on
the construction of the vessel, though there was evidence that a sloping cover
for the steering chain would have been less dangerous.''*' Where a passenger
came on board during daylight, and went to her stateroom, a few feet from
such an obstruction, and then left the stateroom, and went to the other side
of the deck, near the corresponding obstruction, where she remained for some
hours, the failure of the owner to warn the passenger of the obstruction was
not actionable negligence, and it was not liable for injuries sustained by her
by stumbling over the obstruction near her stateroom before 8 p. m. of a clear,
mild day, when the sun set at about 7 :30 p. m.^^

Unguarded Hole in Dock. — A carrier by boat is negligent towards its pas-
sengers in leaving unguarded a hole in the floor of its dock two feet long and
four inches wide.^^

Injury Caused by Slipping. — A steamship company is liable for injury to a
passenger, caused by a mat slipping as she entered a doorway, where the mat
was too small to fit properly into its place. ^*^

Degree of Care in Washing Deck. — The degree of care appropriate to boil-
ers or to the sufficiency of the hull of a steamship is very different from the
degree of care required with reference to the washing of the decks, and where
a passenger on a steamship was injured by slipping and falling while walking
on the wet deck, which she claimed was not kept in proper condition, the
court, in an action to recover for the injury, properly refused to charge that
defendant owed the plaintiff "very great care," and charged that it was bound
to exercise reasonable care under the circumstances.^^

Accident Not Reasonably to Be Anticipated. — See ante, "Consequences
Not Reasonably Anticipated from Act," § 4403.

§ 4406. Personal Injuries from Want of Proper Accommodations. —

See ante, "Accommodations on Vessel," §§ 4391-4398.

Acts of Officers or Crew. — It is the duty of a vessel to protect a passenger
from harm or injury through the acts of employees and a failure to do so
renders it liable for the resulting damages. ^2 Thus, a carrier is liable for an
injury caused by a seaman negligently falling upon a passenger.^"

86. Gross negligence in management 92. Acts of officers or crew. — The
of boilers.— The New World (U. S.), 16 Western States, 151 Fed. 929.

How. 469. 14 L. Ed. 1019. 93. Seaman falling on and injuring

87. Obstructions on decks. — Savage v. passenger. — A seaman on respondent's
New York, etc., Steamship Co., 185 steamship, being required to go aloft.
Fed. 778, 107 C. C. A. 648. instead of using the standing ladder in

88. Savage v. New York, etc.. Steam- the side rigging, which was reasonably
ship Co., 185 Fed. 778, 107 C. C. A. 648. safe, and which he had used on previ-

89. Unguarded hole in dock.— White ?"S occasions, unnecessarily climbed the
V. Seattle, etc.. Nav. Co., 78 Pac. 909, 36 Joretopmast backstay, a wire rope three-
Wash. 281, 104 Am. St. Rep. 948. fourths of an mch in diameter and while

__ _ . , , ... ,, , at work thereon slipped and fell on the

90. Injury caused by slipping.— Mohns ,ieck, killing himself and falling upon and
V. Netjierlands-Amencan Steam Nav. seriously injuring libelant who was a
Co., 182 ted. .323. passenger. Held, that the injury was the

91. Degree of care in washing deck. — result of the seaman's negligence, and
Pratt V. North German Lloyd Steam- that respondent was liable therefor,
ship Co., 184 Fed. 303. 106 C. C. A. 445, Ramjak z.'. Austro-American Steamship
33 L. R. A., N. S., 532. Co., 186 Fed. 417, 108 C. C. A. 33{).

3991 CARRIAGE OF PASSENGERS. §§ 4406-4408

Disrespectful Treatment of Passenger. — It is the duty of a vessel to ac-
cord to a passenger respectful treatment by its officers and servants, and dis-
respectful treatment by a master of a woman passenger, on her making com-
plaint that she had been assaulted and robbed in her stateroom, may properly
be considered in aggravation of the damages.^'*

Assaults on Passengers. — A steamship company must protect its passengers
from assaults by its servants, though outside the scope of their employment.
And where a steamship employee renews an assault on a passenger after hav-
ing been ordered below, the company is liable, though the passenger volun-
tarily engaged in the prior difficulty.'*'^

False Arrest and Imprisonment. — Where a passenger on a steamship was
arrested by a watchman, without justification, dragged down the saloon stair-
way by the collar, pushed inside the freight room, and kept there in custody
of another watchman for an hour, the shipowners are liable in admiralty as
for a false arrest and imprisonment.^"

§ 4407. Acts of Other Passengers. — It is the duty of a vessel to protect
a passenger from harm or injury through the acts of other passengers, and a
negligent failure to do so renders it liable for the resulting damages. '•^''' It
has the power to make reasonable regulations as to the places which passen-
gers may occupy and as to their conduct while on board, and is bound to use
the utmost skill and care of prudent men in taking precaution to prevent any
passengers from being injured by the ignorant, negligent or reckless acts of
other passengers. ^^ For instance, the carrier is liable for an injury caused
by the falling of a suspended boat which was broken from its fastenings by
the careless acts of other passengers ; ^^ and for injuries caused by permitting
passengers to carelessly use firearms on shipboard.^

Consequences Not Reasonably Anticipated. — See ante, "Consequences
Not Reasonably Anticipated from Act," § 4403.

§ 4408. Negligence or Misconduct of Third Party Contributing
Cause. — If a carrier by water fails in his duty, he is responsible for the con-
sequences of his negligence, although the negligence or misconduct of the third
party contributes to the injury.- As, for instance, where a passenger was in-

94. Disrespectful treatment of passen- sengers, which may reasonably be antic-
ger. — The Western States, 151 Fed. 929. ipated. Simmons v. New Bedford, etc.,

95. Assaults on passengers.— Marks v. Steamboat Co., 97 Alass. 361, 93 Am.
Alaska Steamship Co. (Wash.), 127 Pac. Dec. 99.

1101. 1- Careless use of firearms by passen-

96. False arrest and imprisonment.— gers.— A carrier of passengers by water
Ragland v. Norfolk, etc.. Steamboat Co., 's bound to exercise the utmost vigilance
163 Fed. 376. ^"d care in maintaining order on its ves-

97. Acts of other passengers. — The

sel and to protect its passengers against

Western States, 151 Fed 929. ' '"{"''^ ^^^ l'^^ careless use of firearms or

other violence from whatever source

98. Simmons v. New Bedford, etc., arising, which could reasonably have
Steamboat Co., 97 Mass. 361, 93 Am. i^ggn anticipated in view of all the ex-
D^c. 99. isting circumstances and the number

99. The owners of a steamboat, man- and character of the persons on board;
aged and navigated by their servants for and where the officers permitted passen-
the carriage of passengers for hire, on gers to discharge firearms on board in a
the side of which hangs a small boat reckless manner the owner is liable to a
suspended over a part of a deck where passenger injured thereby without his
it is proper for passengers to be, are fault or negligence. Northern Commer-
bound to use the utmost care, consistent cial Co. z'. Nestor, 138 Fed. 383, 70 C.
with the nature and extent of their busi- C. A. 523.

ness, to keep this boat so secured as to 2. Negligence or misconduct of third

guard against injury by its falling upon party contributing cause. — Simmons v.

any passenger from any cause, including New Bedford, etc.. Steamboat Co., 97

careless or irregular acts of other pas- Mass. 361, 93 Am. Dec. 99.

§§ 4408-4411 CARRIERS. 3992

jured by a gang plank which was loosened by the act of a third person. ^

§ 4409. Persons to Whom Duty to Use Care Owed. — Persons Going
on Board to Engage Passage. — The liabiHty of a steamship for the safe car-
riage of persons whom she undertakes to convey on board from the shore in
her boats as passengers is the same whether such persons had previously en-
gaged passage or were going on board for that purpose.'*

Licensee on Wharf Awaiting Passengers from Incoming Vessel. — A
steamship company owxs no duty to persons on its pier waiting for passengers
from an incoming vessel, except to have the pier in a reasonably safe condi-
tion and to exercise ordinary care in docking the vessel, so as to render it
reasonably safe for persons to remain on the pier.-"*

Stevedore Required to Live on Vessel. ^ — Where plaintiff, a stevedore, was
injured while the vessel was passing through a drawbridge, and his duties re-
quired him to live on the vessel, his employment being continuous while the
boat was en route, he was not entitled to the care required of the owner of the
vessel with reference to passengers, but only to that required as to servants.^'

Carpenter Being Returned to Shore on Tug. — A ship carpenter employed
on a steamer, being taken by a tug to New York after the completion of his

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 165 of 214)