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

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work on the steamer, is not a passenger.'^

§ 4410. Officers and Employees for Whose Negligence Liability At-
taches. — Where the agents of a steamship company were charged with the duty
of transferring its passengers by tugs or tenders from the port of embarka-
tion, and putting them on board its ships, for which they received a commis-
sion, paying the expenses themselves, and they employed a steam tender and
two persons in charge thereof, and these persons, while plaintiff was being
transferred, assaulted him, and confined him to a room of the tender, apart
from the other passengers, the steamship company was liable in damages for
their acts."*

Negligence of Contractor in Possession of a Wharf. — A passenger on the
boat of a navigation company, lying at a wharf on premises in possession of
defendant contractors, engaged in blasting, is not prevented from recovering
for injuries caused by the negligent prosecution of such work by an agreement
between the latter and the navigation company that" the company should use
the wharf at its own peril. ^

§ 4411. Intoxicated Passenger. — Where the captain of a steamship dis-
covered a passenger lying in a drunken and helpless condition on the floor,
and, with knowledge of his helplessness, lifted him to his feet, and left him
without any support, whereupon he fell and broke his arm, the captain did
not exercise the full degree of care required by rendering assistance sufficient
in the case of a sober man, but was bound to exercise such care as he could

3. Gang plank loosened by third per- in Duhme v. Hamburg-American Packet
son.— A steamboat company is liable for Co., 77 N. E. 386, 184 N. Y. 404, 112 Am.
an injury to a passenger caused by a St. Rep. 615.

loose gang plank, though it had securely e. Stevedore required to live on ves-

fastened the plank, and there was a rea- sel.— Lambert v. La Conner, etc., Transp.

sonable opportunity for persons other q^^ 79 p^c. 608, 37 Wash. 113.

than its employees to loosen it. Croft ^^ Carpenter being returned to shore

V. Northwestern Steamship Co., o5 Pac. ^^ tug.-The Downer, 171 Fed. 571.

42. 20 Wash. 175. „ ^„ j , t u

4. Persons going on board to engage 8- . Officers and employees for whose
passage.— In re Kimball Steamship Co., negligence liability attaches. — Barrow
123 Fed. 838, reversed in Weisshaar v. ^teamship Co. v. Kane, 88 Fed. 197, 31
Kimball Steamship Co., 128 Fed. 397, 63 C. C. A. 452.

C. C. A. 139, 65 L. R. A. 84. 9. Negligence of contractor in posses-

5. Licensee on wharf awaiting passen- sion of a wharf. — Judgment, 86 Fed. 62,
gers from incoming vessel. — Order, 94 reversed in Smith v. Day, 100 Fed. 244,
N. Y. S. 1102, 107 App. Div. 237, reversed 40 C. C. A. 366, 49 L. R. A. 108.

3993 CARRIAGE OF PASSENGERS. §§ 4411-4414

to avoid an accident in the situation presented to him.!*^

§ 4412. Medical Attention.— "Upon large passenger steamers a physician
or surgeon is always employed, whose duty it is to minister to the passengers
and crew in cases of sickness or accident. Of course, this would be imprac-
ticable upon an ordinary freighting vessel, where the master is presumed to
have some knowledge of the treatment of diseases, and in ordinary cases stands
in the place of a physician or surgeon." ^^

Medical Care and Attention to Injured Passenger. — A passenger on a
vessel, injured, while on a voyage, without his fault, through the negligence of
the officers, is entitled to no less care from the ship than a seaman, and its
duty is not fulfilled by giving him such care as an ordinary unskilled person
could afl^ord him. 12 But the errors, mistakes, or negligence of a ship's doctor
in caring for a passenger are not imputable to the ship, where it was not guilty
•of negligence in selecting him.^^

§ 4413. Acts in Emergency. — Where a vessel with passengers on board
Avas sunk as the result of a collision, those in charge were bound to use the
utmost exertions in their powder to avert injury to the passengers from the
impending peril, which duty continued until the passengers were safely landed,
but the vessel is not liable for injuries resulting from errors of judgment in
the emergency on the part of those in charge who were in general competent.^'*
And where a steamer ran upon a rock in the night, it was negligence for those
in charge to permit passengers to leave in a small boat without a competent
seaman in charge, which rendered the vessel liable to one of such passengers
for the loss of his effects, and for physical injuries resulting from his ex-
posure for several hours in the open boat, with only his underclothing to pro-
tect him from the cold.^-''

§ 4414. Election to Continue Voyage against Advice of Pilot. — A

hasty exchange of opinions between a pilot and master of a river steamer, in
the face of immediate danger, as to the best means of avoiding such danger,
though the pilot advises the stopping of the vessel, wdiich is not done, does not
constitute a deliberate election by the master to continue the voyage against
the advice of the pilot, within the meaning of Rev. St. § 4487, so as to render
the owners absolutely liable for damages thereafter arising to the persons or
baggage of passengers, and especially w^here it was at the tmie too late to avoid
the injury which resulted.^^

10. Intoxicated passenger. — Doherty v. were few in number, that the boat was
California Nav., etc., Co. (Cal. App.), 91 sinking, and to go up to the upper deck,
Pac. 419. and remained until he supposed all had

11. Medical attention.— The Iroquois, preceded him there. Claimant did not
194 U. S. 240, 48 L. Ed. 955, 24 S. Ct. p with the others, and, becommg con-
^j^Q fused, remamed until the water entered
* 12. Medical care and attention to in- and she became wet, but was afterwards
iured passenger.— Northern Commercial assisted to the upper deck by some man
Co. V. Nestor, 1.38 Fed. 383. 70 C. C. A. who discovered her, and later was sent
C92 ashore m a boat with the other passen-

"13. The Napolitan Prince, 134 Fed. ^.e'-s- She suffered injury from the wet-

Hrjf) ting and exposure, but it did not appear

"14. Acts in emergency.— The City of that those in charge knew of her having

Boston, 1.59 Fed. 261. ''^en in the water. Held, that there was

Claimant was a passenger on petition- no negligence on the part of the vessel

er's ferryboat which was sunk as the re- i?: "^'l..''^"^^f ^d it liable for the injury,

suit of a collision in the evening. On The City of Boston, 159 Fed. 261.

discovering that the vessel was sinking, 15. The Erastus Corning, 158 Fed.

immediately after the collision the mas- 452.

tcr ran her ashore into shallow water. 16. Election to continue voyage against

A member of the crew went through the advise of pilot. — Memphis, etc., Packet

cabin on the lower deck, and notified Co. v. Overman Carriage Co., 93 Fed.

claimant and all other passengers, who 246.

§§ 4415-4418



§ 4415. Landing or Discharge of Passengers. — Safe Means of Dis-
charging Passengers. — A carrier by water must provide a reasonably safe
means of discharging its passengers/'^ must instruct and assist passengers in
their use,^^ and must sufficiently fasten the vessel while discharging passen-
gers ; 1^ and it is liable in damages for a personal injury to a passenger re-
sulting from its failure to do so.

Transferring Passenger at Night. — A carrier should take notice of the dan-
ger of transferring a passenger from steamboat to the shore at night while
the boat is in motion, and in so doing he assumes a risk of the consequences. 2**

§ 4416. Care Required of Tenant of Wharf. — The degree of care which
the law requires shall be exercised, for the protection of passengers, by a steam-
boat company plying the waters of Casco Bay with its boats, after it ceases
to be a common carrier, and becomes merely a tenant of a wharf at which it
makes landings, and over which its passengers pass in going to or departing
from its boats, is that of reasonable diligence. ^^

§ 4417. Release of Right of Action. — When a woman has been severally,
injured in getting aboard a steamer, by the alleged carelessness of the serv-
ants of the boat, in putting out an improper sort of gang plank, the fact that
she is unwilling to pay fare for her passage, and that the captain makes no
demand of fare from her, is no release of her right of action against the own-
ers of the boat for the injuries done her, unless she at the time understands
it to be so and consents that it shall be so. This is true even though the pas-
sage be one lasting two days and a half. -

Under Limited Liability Act and under Harter Act. — See ante, "Personal
Injuries," §§ 4402-4428.

§ 4418. Limitation of Liability. — See ante, "Conditions and Limitations in
Tickets," §§ 2218-2230; "Contracts, Fares, Passage and Tickets," §§ 4385-4320.

17. Safe means of discharging passen-
gers. — A gang plank consisting of a
plank 10 feet long, 16 inches wide, and
1 inch thick, with cleats nailed on one
side, but having no railing, rope, or other
guard, and which, when extended from
the deck of a steamer to a wharf, sloped
downward at an angle of about 30 de-
grees, does not furnish a reasonably safe
means for discharging passengers, nor
can its use be justified by custom; and
the vessel is liable in damages for the
injury of a passenger by falling from it
into the water. Burrows v. Lownsdale,
133 Fed. 250, 66 C. C. A. 650.

18. Libelant took passage on respond-
ent steamer for Newport News, at which
port the boat stopped in passing. On
reaching there the boat went alongside a
pier, the gangway railing was removed,
and a deck hand stepped out on the pier
and made a line fast. Libelant followed
four or five other passengers to the gang-
way, and they each stepped out on the
pier. Seeing the hand removing the line
from the cleat, libelant asked him if he
was not going to put out the gang plank,
and, being told he was not, libelant at-
tempted to step up on the pier, but lost
his balance and fell, receiving serious in-
jury between the vessel and the pier. It
appeared that the vessel stopped at an-
other pier at Newport News, which was

the usual passenger landing, but libelant
did not know and was not informed of
such fact. Held, that the vessel was neg-
ligent in impliedly inviting passengers to
land at the pier, and failing to instruct
or assist them or to provide proper fa-
cilities; that libelant under the facts
shown was not chargeable with contrib-
utory negligence which would preclude
his recovery of damages. The Ocracoke,
159 Fed. 552.

19. A steam ferryboat which, while
discharging passengers on a dock or
float, by reason of being insufificiently se-
cured swung away from the float, leaving
a space of several inches, is liable for
an injury to a passenger, who in attempt-
ing to pass from the vessel, and in the
exercise of due care, stepped into such
space, or was thrown by the lurching of
the vessel, and fell between the vessel
and dock. The City of Portsmouth, 125
Fed. 264.

20. Transferring passenger at night. —
Le Blanc r. Sweet, 31 So. 766, 107 La.
355, 90 Am. St. Rep. 303.

21. Care required of tenant of wharf.
— Bacon v. Casco Bay Steamboat Co.,
37 Atl. 328, 90 Me. 46.

22. Release of right of action. — Packet
Co. 7'. Clough (U. S.), 20 Wall. 528, 22
L. Ed. 406.



§ 4419

§ 4419. Contributory Negligence and Assumption of Risk.— A passen-
ger by water is required to exercise reasonable care for his own safety 23 and
if he fails to do so and is injured thereby his contributory negligence is a good
defense in an action for such injury. And where such contributory negligence
is the direct proximate cause of the accident, the carrier is not liable for a
failure to comply with rules of the supervising inspector ; ^-t such passenger is
bound to use a greater care in the dark than if it was light. ^-^

Instances of Contributory Negligence. — A passenger by water carriage
who stood leaning against the gate across the front of a ferryboat when
through some movement of his or lurch of the boat the gate opened and he
fell overboard and drowned,^^ and a passenger who was injured by a fall in
descending a slippery incline at a boat landing, instead of walking on a rough
gang plank or a row of cleats with which the incline was provided, 2" or by
tripping on a large rubber hose attached to a hydrant on defendant's wharf,
where the accident occurred in the daytime, and there was nothing to prevent
his seeing the hose,-^ is guilty of contributory negligence.

Instances Where Passenger Not Guilty of Contributory Negligence. —
A passenger injured by stepping into a hole in the floor of a dock while wait-
ing for a boat and who did not remain in the waiting room until the boat ar-
rived, and who deviated some 30 feet from a straight line between the waiting
room and the entrance slip to the boat,^^ and a passenger injured by falling on
the slippery deck of the steamer when stepping from the door of the saloon,
although she had taken a long step,^"^ was not guilty of contributory negli-
gence as matter of law. So also a passenger is not negligent in remaining on

23. Contributory negligence and as-
sumption of risk. — Elder Dempster Ship-
ping Co. V. Pouppirt, 125 Fed. 732, 60
C. C. A. 500, reversing 122 Fed. 983. See
ante, "Contributory Negligence," chap-
ter 24.

514. A steamer left her dock with a
barge in tow to which was attached a
3'awl made fast to the stern of the barge
by a five-foot line. A deck hand re-
mained seated in the yawl until the boat
arrived at an island where he left the
yawl and stood on the barge near the
line. Subsequently he went forward on
the barge to get water, and, while doing
so, decedent, who was intoxicated, hauled
the yawl to the stern of the barge and
boarded her, without knowledge of the
master. The deck hand, on returning,
ordered decedent out of the yawl, and,
in his attempt to do so, decedent slipped
or stumbled and was precipitated into
the river. His companion, also in the
yawl, grabbed him, but could not retain
his hold, and in spite of prompt efforts
at a rescue, he was drowned. Held, that
decedent's contributory negligence was
the proximate cause of his death, and not
the failure of the steamer to comply with
Inspector's Rule 8, § 4, providing that
every barge carrying passengers in tow,
and engaged in excursions, shall be sup-
plied with two yawl boats one of which
must be manned and towed in such a
manner as to best afford prompt relief
in case of accid'-nt or disaster, and that
the owners of 'he steamer were there-
fore not liabb: for decedent's death.
Gretschmann v. Fix, 189 Fed. 716.

25. H the place where plaintiff alighted
from a coach on a ferryboat and stepped
into an open chute was dark, she was
bound to use greater care than if it was
light. Weill V. New York, 132 N. Y.
S. 609, 147 App. Div. 634.

26. Claimant's intestate, while a pas-
senger on petitioner's ferryboat, crossing
East river from Manhattan to Brooklyn,
stood leaning against the gate across the-
front end of the boat, near the end where
the gate was fastened by being let into-
a four-inch groove at the side rail, when
through some movement of his or a
lurching of the boat the end of the gate
was pulled out from the groove and he
fell overboard and was drowned. The
evidence showed that the gate was in
good repair and that similar gates had
been used by petitioner on its boats for
many years without accidents. There
was also a conspicuous sign near by
warning passengers to keep "hands off
the gates." Held, that petitioner was
not guilty of negligence which rendered
it liable for the death, but that it was at-
tributable to the negligence of the de-
ceased. The Southside, 155 Fed. 364.

27. Plant Inv. Co. v. Cook, 85 Fed.
611, 29 C. C. A. 377.

28. Strutt V. Brooklyn, etc., R. Co., 45
N. Y. S. 728, 18 App. Div. 134.

29. Instances where passenger not
guilty of contributory negligence. —
White V. Seattle, etc., Nav. Co., 78 Pac.
909, 36 Wash. 281, 104 Am. St. Rep. 948.

30. Gillum V. New York, etc., Steam-
ship Co. (Tex. Civ. App.), 76 S. W. 232.




the hurricane deck after the captain of the boat has given general orders to
the passengers on that deck to go below, where he does not hear such orders,
and has no information that they have been given. ^^

Assumption of Risk by Voluntarily Taking- Position of Danger. — A pas-
senger who voluntarily leaves a place of safety on a ship without necessity,
and goes to a part of the ship where there is danger, of which he has knowl-
edge, or which is obvious, assumes the increased risk therefrom, and he can
not 'recover from the ship or its owners for an injury so received because he
was not given warning, which, under such circumstances, was unnecessary. ^2

Assumption of Risk of Insufficient Accommodation. — Where a company
operating a passenger steamship has an unusually large passenger list, much
larger indeed than the ordinary sleeping facilities of the steamer could ac-
commodate, thereby creating an emergency to meet which the officers
offered passengers who insisted upon going on the boat under the circum-
stances, cots or mattresses, instead of the steamship's usual sleeping facilities,
a passenger who accepts such offer is chargeable with knowledge that it is a
mere makeshift for the occasion, has opportunity equal with the steward to
inspect the condition of the mattresses and if he chooses to take it, rather than
sit up, assumes whatever risk its condition may involve. ^^

Last Clear Chance. — In an action by a passenger against a carrier by water

31. Evers v. Wiggins Ferry Co., 92 S.
W. 118, 116 Mo. App. 130.

A passenger on a boat, who is directed
by the collector of fares to go upon the
hurricane deck, and accordingly goes
there and finds a great many other pas-
sengers on the deck, and is not ordered
to go below, and fails to hear any order
to go below given to passengers gener-
ally, is rightfully upon the hurricane
deck, although it is not constructed or
designed for the accommodation of pas-
sengers. Evers V. Wiggins Ferry Co.,
92 S. W. 118, 116 Mo. App. 130.

32. Assumpsit of risk by voluntarily
taking position of danger. — Decree.
Pouppirt V. Elder Dempster Shipping,
122 Fed. 983, reversed in Elder Demp-
ster Shipping Co. V. Pouppirt, 125 Fed.
732, 60 C. C. A. 500.

Libelant was one of three passengers
on a freight vessel on which he had been
for some three months. Before making
port on the return voyage, the crew were
engaged in tearing down a temporary
structure built on the deck for the hous-
ing of cattle on the outward voyage and
throwing the timbers over the side. Af-
ter being on the bridge with the other
passengers watching the work for the
greater part of a day, libelant toward
evening went upon the deck and stood
near the rail where the men were at
work, and while there he was struck and
injured by a long timber which had been
shoved over the rail endwise in the usual
manner until it overbalanced, the motion
of the ship causing the upper end to
swing forward when the other end struck
the water. Held, that the proximate
cause of the injury was the act of libel-
ant himself in going without necessity
to a place of danger, and that the offi-
cers of the ship were guilty of no negli-

gence which rendered the owners liable
therefor. Decree, Pouppirt v. Elder
Dempster Shipping, 122 Fed. 983, re-
versed in 125 Fed. 732, 60 C. _C. A. 500.
33. Assumption of risk of insufficient
accommodation. — Libelant's intestate pur-
chased tickets for passage, meals, and
berths for himself, wife, and daughter on
respondent's steamship from a lake port
in Canada. On presenting them he was
told that berths could not be furnished,
not having been reserved, and the vessel
having an extraordinary number of pas-
sengers, owing to its being the close of
the summer season, when an unusual
number of passengers v/ere returning
from the lake resorts. He insisted on
going, and was then told that if he
would accept a cot or mattress for him-
self, his wife and daughter would be fur-
nished with a berth. He accepted the
offer, and the officers procured a num-
ber of mattresses from a dealer, one of
which he took, and on which he slept.
On reaching port the next morning, he
was taken with a chill, which developed
into pneumonia, from which he died a
few days later. Suit was brought under
the Canadian statute giving a right of
action for wrongful death, it being al-
leged the death was caused by the damp-
ness of the mattress; no claim being
made on the ground of breach of con-
tract. Held that, under the facts shown,
respondent was not chargeable with neg-
ligence, the officers of the vessel having
done all that was reasonably possible to
meet an extraordinary emergency, but
that in accepting the accommodations of-
fered, with knowledge of the conditions
existing, deceasd assumed whatever risk
was involved. Van Anda v. Northern
Nav. Co., Ill Fed. 765, 49 C. C. A. 596,
55 L. R. A. 544.

3997 CARRIAGE OF PASSENGERS. §§ 4419-4421

for personal injuries, where the injured party was guilty of contributory neg-
ligence, such negligence will not defeat the action when it is shown that the
defendant might, by the exercise of reasonable care and prudence, have avoided
the consequences of the injured passenger's negligence. ^^

§§4420-4426. Procedure— § 4420. Pleading.— A petition for an in-
jury to a passenger caused by the falhng of a gang plank, alleging that the
plank was negligently supported on defendant's boat, and was not properly
fastened thereto, is sufficiently definite and certain. ^^

Failure to Furnish Accommodations. — A complaint, in an action for per-
manent injuries to plaintiff's health, which alleges that because of defendant's
failure to furnish him, as a passenger, sufficient wholesome food and clean,
warm quarters, with bedding, during his journey across the ocean, he suffered
great pain from cold and hunger, and became sick ; that by reason of said
suffering his health has been permanently injured; that he has lost the power
of hearing in both ears, and been rendered entirely deaf for the balance of his
life, states a cause of action. ^^

§§ 4421-4423. Evidence— § 4421. Presumptions and Burden of
Proof. — See ante, "Presumptions and Burden of Proof," §§ 2837, 2853.

Burden of Proof of Negligence Generally.— In an action by a passenger
against a carrier by water for a personal injury, the burden of proving neg-
ligence is on the plaintiff'. Thus, in a libel in admiralty for the wrongful death
of a passenger, libelant must affirmatively prove that the owners of the vessel
were negligent, whereby their decedent was killed. ^"^ And where a ship car-
penter employed on a steamer, while being taken by a tug to New York after
completion of his work on the steamer, fell into a hatch in the after deck of the
tug, he could not recover without showing negligence on the tug's part.^^

Burden of Proof of Contributory Negligence or Freedom Therefrom. —
In New York in an action for personal injury by a passenger against a carrier
by water, the plaintiff must show that he was free from contributory negli-
gence.^^ And in a libel in admiralty for the wrongful death of a passenger,
libelant must affirmatively prove that decedent was free from contributory

Presumption of Negligence from Proof of Happening of Accident. —
In an action against a carrier by a passenger for personal injuries while the
burden is upon the passenger suing to maintain the affirmative of the issue,

34. Last clear chance. — Where the offi- Judgment, In re Kimball Steamship Co.,
ccr in charge of a boat sent ashore from 123 Fed. 838, reversed in Weisshaar v.
a ship to bring off passengers stated that Kimball Steamship Co., 128 Fed. 397, 63
she was overloaded, and requested some C. C. A. 139, 65 L. R. A. 84.
of the passengers to get out and wait 35. Pleading.— See ante, "Pleading,"
until he could return, but, on their refusal §§ sg^g, ggSo. See Croft v. Northwestern
to do so made no further attempt to Steamship Co., 55 Pac. 42, 20 Wash. 175.
exercise his authority, but started, car- r,o t^ -i ^ r • u j •
rying 18 persons and a quantity of bag- f • ^^^^"'"^ J° f"^"^^^ accommodations,
gage, whereas the boat's capacity was 14 T^l'^^\.\- -^ w Line Steamship Co.,
persons, and made no effort to return ^^ ^^^^ ^^^' ^' ^"'''^^'- ^'^S.

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