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

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control of the carrier's officers or servants.^ But it is held by respectable au-
thorities that, where the carrier is a steamship company, the liability of an inn-
keeper is assumed by its contract with passengers who pay for rooms and meals
as well as for transportation. But the latest decisions of the American courts,
and the preponderance in weight of authorities and reason, is against this ex-
ception to the general rule. The latter rule prevails in New York.^^

What Constitutes Delivery. — Where plaintiff went aboard a packet boat
taking with him his carpet bag, paid his fare as a passenger, and deposited his
carpet bag with the luggage of other passengers on the deck of the boat which
was generally used for that purpose, and on arriving at his destination, the
carpet bag was missing, the delivery by plaintiff was as to the carpet bag and
the articles of ordinary baggage it contained sufficient. ^^ But where the plain-
tiff', intending to take passage on the steamboat of defendants, deposited his
trunk on board in the usual place for baggage, but without putting it in charge
of any person, or notifying any one employed on the boat of such deposit, or of
his intention to take passage, and while temporarily absent from the boat it
started, and he was left, and the trunk could not afterwards be found, there
was not a constructive delivery and acceptance of the trunk as the baggage of a
passenger, by which the defendants could be held chargeable for its loss.^^

Bagg-age Received in Advance of Time of Expected Passage. — A steam-
ship company which received a valise from one who was to sail on a future
date, but refused to check it until a ticket should be presented, at which time
the valise could not be found, is liable as a warehouseman, but not as a carrier. ^^
But such company is liable as a common carrier for the loss of baggage, de-
stroyed by fire, which, pursuant to the advice of its agent, has been sent by the
prospective passenger in advance of the time of expected passage, and which
has been received by such company at its docks in advance of such time, and
is there kept, and, for its own convenience, is not immediately placed on the
steamship on which passage was to be taken, and is destroyed while on such
docks. 1^

Baggage Forwarded under Agreement to Forward by Slow Freight.—
See post, "Baggage Detained by Customs' Officers," § 4438.

§ 4432. Duty to Provide Watchman.— A vessel carrying passengers by
water must maintain a sufficient watch to protect its passenger's effects from
theft. One man upon two decks in a large steamboat so cut up by staterooms
that it is necessary to keep walking about in order to see them at all is insuffi-
cient protection.!^' And that the watchman was not vigilant may be inferred

9 Delivery to carrier.— The Humboldt, gence; his liability being analogous to
97 Fed 656 that of an innkeeper. Judgment. 29 N. Y.

10 New York.— Where shirt studs were S. 56, 9 Misc. Rep. 25, affirmed in Ad-
taken from the cabin of a passenger on ams v. New Jersey Steamboat Co., 45
a steamship, the carrier's liability was N. E. 369. 151 N. \. 163, 34 L. R. A. 682,
that of an insurer, in the absence of neg- 56 Am. St. Rep. 616.

ligence on the part of the passenger. 11. What const-tutes delivery.— Doyle

Hart V. North German Lloyd Steamship r. Kiser, 6 Ind. 242

Co 92 N Y. S. 338, 46 Misc. Rep. 426, 12. Wright v. Caldwell, 3 Mich. 51.

affirmed in 95 N. Y. S. 733, 108 App. Div. 13. Baggage received in advance ot

279. time of expected passage. — Murray 7: In-

Where money for traveling expenses, ternational Steamship Co., 170 Mass. 166,

carried by a passenger on a steamboat, is 48 N. E. 1093, 64 Am. St. Rep. 290.

stolen from his stateroom at night, with- 14. North German Lloyd Steamship

out negligence on his part, the carrier is Co. v. Bullen, 111 111. App. 426.

liable therefor, without proof of negli- 15. Duty to provide watchman.— Where



§§ 4432-4437

from the fact that an oiler could leave his quarters below, traverse parts of a
brilliantly lighted steamboat where he had no right to be, break into a state-
room, rob a passenger, and get away without being seen.^^

§ 4433. Duty to Provide Stateroom Door with Bolts and Locks.— A

vessel engaged in carrying passengers is negligent in failing to provide the doors
of the stateroom with bolts or inside protection other than a lock which can be
operated from outside, and is not excused by the fact that such inside securi-
ties might embarrass the passengers in case of fire or sudden danger.^"^

§ 4434. Particular Losses for Which Vessel Liable. — The owners of
a steamship are responsible for the personal baggage of a passenger, unless
the loss thereof was caused by the act of God or of public enemies. ^^ Thus, a
vessel is liable for the theft of baggage by a steward,!^ and for its loss through
the misconduct of a servant in throwing it overboard.-*^

§ 4435. Passeng-ers Entitled to Recover. — Deck passengers, whose bag-
gage is not in trunks, and who keeps it in their own possession, cannot hold the
ship liable for its loss or damage. -^

§ 4436. Effects for Which Recovery Allowed.— A passenger upon a
steamship line running between ports of different nations is not restricted in his
recovery to mere wearing apparel. -^ He may recover for the loss of a manu-

§ 4437. Contributory Negligence of Person Complaining.— A vessel en-
gaged in the carriage of passengers is not liable for loss of a passenger's effects
occasioned by his negligence or the failure of a passenger to shut the front
hall and lock his stateroom does not necessarily constitute negligence, or, for

a passenger steamboat on the Great
Lakes was equipped with 343 staterooms
on two decks in two rows, with a pas-
sageway between them, the boat was
negligent in failing to provide a sufficient
watch; one man only being provided for
that purpose. Decree, 151 Fed. 929, af-
firmed in The Western States, 159 Fed.
354. 86 C. C. A. 354.

16. The Western States, 159 Fed. 354,
80 C. C. A. 354.

17. Duty to provide state room door
with bolts and locks. — Decree, 151 Fed.
929, affirmed in The Western States, 159
Fed. 354, 86 C. C. A. 354.

18. Particular losses for which vessel
liable. — Judgment, 92 N. Y. S. 338, 46
Misc. Rep. 426, affirmed in Hart v. North
German Lloyd Steamship Co., 95 N. Y.
S. 733, 108 App. Div. 279.

The defense that damage to baggage
by water entering through a broken port
was the result of an inevitable accident
is not sustained by evidence that, a short
time before the injury was discovered,
the ship, during a rough sea, passed
through some floating wreckage, there be-
ing no evidence directly tending to prove
that the port was broken by the wreck-
age, nor any attempt to show why the
ship did not steer away from it or re-
duce its speed while passing through, nor
any satisfactory proof that the ports were
properly closed when the vessel sailed

or were properly inspected afterwards.
The Majestic, 17 S. Ct. 597, 106 U. S.
375, 41 L. Ed. 1039, reversing order, 60
Fed. 624, 9 C. C. A. 161, 23 L. R. A. 746.

19. Theft by steward. — A shipowner is
liable to a passenger for the value of
jewelry stolen during the voyage by a
steward employed to perform duties
which the carrier owed to the passenger
under the contract of carriage. Decree,
132 Fed. 52, affirmed in The Minnetonka,
140 Fed. 509, 77 C. C. A. 217.

20. Misconduct of servant in throwing
baggage overboard. — That a steamship
company permitted a passenger to retain
control of his valise, and store same on
deck, did not exempt it from liability for
the misconduct of its servant in order-
ing the same to be thrown overboard.
De Felice v. Compagnie Francaise, etc.,
Cie, 82 N. Y. S. 552. 83 App. Div. 73.

21. Passengers entitled to recover, — ■
Defrier ?■. Tlie Nicaragua, 81 l^'ed. 745.

22. Wrong appeal. — Levcnsolin ?■. Cun-
ard Steanisliip Co.. 102 111. App. 421.

23. Manuscript of a manual on Greek
grammar, which a steamship passenger
liad written and of which he iiad no
copy, contained in a trunk, was a proper
part of his baggage, as affecting the
steamship company's lial)ility for loss of
the trunk. Wood 7'. Cunard Steamship
Co., 192 Fed. 293, 112 C. C. A. 551, 41
L. R. A., N. S., 371.

\§ 4437-4439



instance, where it was necessary to leave the door open for ventilation,-^ where
the passenger closed the door and went for a key to the room,^-^ or where the
steward entered the room between the time the passenger left the room and
the theft, and failed to secure the porthole or lock the door.-^

§ 4438. Baggage Detained by Customs Officers. — Where baggage trans-
ported by a carrier by water is taken into the possession of the customs of-
ficers of a port, and destroyed by fire while detained by them, the carrier is not
liable for its loss.^'^ In such case the property is not in the possession or under
the control of the carrier at the time of its loss, and the parties must be pre-
sumed to have contracted with the common knowledge of the necessity for cus-
toms, detention and inspection, and the burden is on the passenger to make pro-
visions for the passage of his baggage beyond the borders of the foreign terri-
tory if nondutiable. The carrier is wholly powerless to prevent its seizure and
detention and can not be held liable for its destruction, while in the possession
of a foreign government, by a fire which it did not occasion, which it could not
by any possible action of diligence, have prevented.-'^

§ 4439. Evidence. — There are many instances in actions against carriers
by water in which the court's applying the general rules as to weight and suffi-
ciency of evidence, have passed upon the sufficiency of the evidence to sustain
a point in controversy ; for instance, the evidence has been held sufficient to
show delivery of the baggage to an authorized agent of the carrier,^^ negli-
gent stowage of trunks,2<^ that the complainant's baggage was stolen on the

24. Contributory negligence of person
complaining. — Where a passenger had
not finally retired for the night at the
time her stateroom was entered and her
jewelry stolen, but she was expecting the
purser, so that she could place the jewels
in his charge, and it was necessary that
the door should be left open for ventila-
tion, her failure to shut and bolt the
same was not contributory negligence.
The Minnetonka, 132 Fed. 52, decree af-
firmed in 146 Fed. 509, 77 C. C. A. 217.

25. A passenger on a steamship, hav-
ing been assigned to a stateroom, placed
therein a traveling bag containing $200
in $2 bills, locked the bag, closed the
door of the stateroom, and went for a
key to the room, none having been given
him, returned to the room, and found
that the money was stolen during his ab-
sence. Held, that the passenger was not
negligent. Lincoln v. New York, etc..
Steamship Co., 62 N. Y. S. 1085, 30 Misc.
Rep. 752.

26. Any negligence of a steamship pas-
senger in leaving the porthole of his
stateroom open and the door unlocked
when he left the room did not defeat his
right to recover of the steamship com-
pany for articles taken from the room.
where the steward of the steamship had
in the meantime been in the room; it
being his duty, if necessary to protect the
passenger's goods, to have closed the
porthole and locked the door. Judgment,
92 N. Y. S. 338, 46 Misc. Rep. 426, af-
firmed in Hart v. North German Lloyd
Steamship Co., 95 N. Y. S. 733, 108 App.
Div. 279.

27. Baggage detained by customs' offi-
cers. — Parker v. North German Lloyd
Steamship Co., 76 N. Y. S. 806, 74 App.
Div. 16, following Howell v. Grand Trunk
R. Co., 92 Hun 423, 36 N. Y. 544.

Plaintiff traveled on defendant's
steamer from New York to Germany,
and on arrival directed that his trunks be
forwarded to an interior town in Eng-
land. Defendant's agent gave a receipt
stating that the trunks were received
from such steamer "for transfer by slow
freight" to plaintiff, via London, to the
address given by him. The agent for-
warded the trunks in the usual way, and
on their arrival in England they were de-
tained at the custom house, where they
were destroyed by fire. Held that de-
fendant was not responsible for the de-
struction of the trunks. Parker v. North
German Lloyd Steamship Co., 76 N. Y.
S. 806, 74 App. Div. 16.

28. Parker v. North German Lloyd
Steamship Co., 76 N. Y. S. 806, 74 App.
Div. 16, following Howell v. Grand Trunk
R. Co., 92 Hun 423, 36 N. _Y. S. 544.

29. Delivery to authorized agent. —
Where an immigrant suing for loss of
baggage claims that the baggage was
taken from her hotel in a foreign port by
a representative of the steamship com-
pany, who gave no check or receipt, that
the baggage was in fact shown to be
placed on board the steamship is suffi-
cient prima facie to prove delivery to an
authorized agent. Haaga v. Austro-
Americana Line, 173 111. App. 35.

30. Negligent stowage of trunks. — Li-
belants were passengers on a transat-


carriage: of passengers.

§§ 4039-4041

steamship during the voyage,^! by an employee of the ship,^^ and the value of a
manuscript contained in the passenger's trunk. ^^ Qn the other the evidence in
an action against a steamship company for jewelry taken from plaintiff's state-
room, has been held not to show plaintiff guilty of negligence.^^

Delivery of Baggage in Damaged Condition. — Proof that a passengei's
baggage was delivered to a vessel in good condition, and was damaged by sea-
water at the end of the voyage, is sufficient to establish the negligence of the

§ 4440. Liens. — As regards liens upon a vessel for breach of a contract
of aft'reightment, there is no distinction in principle between a contract for the
transportation of a passenger with his baggage and one for the transportation
of merchandise, and, by analogy with the rule in the latter case, no lien arises
for loss of baggage unless at the time of such loss either the passenger had been
received on board, or his baggage had been put into the custody or control of the

§ 4441. Damages. — Where Indian curios, having no market value in the
usually accepted sense, taken on board a transatlantic steamship by a passenger

lantic steamer, and their trunks, consti-
tuting their baggage, with those of other
passengers, were broken to pieces, and
the contents destroyed during the voy-
age. The vessel encountered unusually
rough weather on the passage, and rolled
lieavily. A witness for libelants, who en-
tered the compartment where the bag-
gage was stowed immediately on the
opening of the hatch at the end of the
voj^age, testified that he examined care-
fully, but could find no evidence that the
trunks had been lashed or otherwise se-
cured against movement in rough
weather, and the compartment was not
filled. Held that, in the absence of any
evidence on the subject from claimants,
such testimony was sufficient to support
the libelants' contention of negligent
stowage. Decree, 88 Fed. 331, affirmed in
The Kensington, 94 Fed. 885, 36 C. C.
A. 533, which is reversed in 22 S. Ct.
102, 183 U. S. 263, 46 L. Ed. 190.

31. Theft of baggage. — Smith v. North
German Lloyd Steamship Co., 142 Fed.
1032, afifirmed in 151 Fed. 222, 80 C. C.
A. 574.

32. Libelant and her traveling compan-
ion purchased ocean steamship tickets,
and, after eating their first meal on
board, libelant placed her jewels in a
hand bag, and at once went to the pur-
ser's room to place the bag in his care.
She was unable to obtain admittance, and
finally notified the steward of her desire,
who promised to inform her as soon as
the purser returned. Libelant waited in
her stateroom until 12 o'clock at night,
when her room was entered by a man in
steward's uniform, who seized the bag
and fled. Libelant immediately notified
the officers of the ship, but the bag was
not again found. Held, that the facts es-
tablished a cause of action for theft by
the ship's servants, for which it was lia-
ble. The Minnetonka, 132 Fed. 52, de-

cree affirmed in 146 Fed. 509, 77 C. C.
A. 217.

33. Value of manuscript. — On libel
against a steamship company for loss, of
a passenger's trunk, evidence held to
show that manuscript contained in the
trunk was worth $500. Wood v. Cunard
Steamship Co., 192 Fed. 293, 112 C. C.
A. 551, 41 L. R. A., N. S., 371.

34. Hart v. North German Lloyd
Steamship Co., 92 N. Y. S. 338, 46 Misc.
Rep. 426, affirmed in 95 N. Y. S. 733, 108
App. Div. 279.

35. Delivery of baggage in damaged
condition. — Weinberger v. Compagnie
Generate Transatlantique, 146 Fed. 516.

36. Liens.— The Priscilla, 114 Fed. 836,
52 C. C. A. 470.

By the custom of a steamship com-
pany, it received at its pier baggage sent
there by passengers intending to take
passage on its vessels, and kept the same
until claimed by the passengers. By the
rules of the company, the passenger was
required to present a ticket, and have
his baggage checked, before it was re-
ceived on board a vessel. Libelant sent
baggage to the pier, where it was re-
ceived; and he subsequently purchased a
ticket for one of the company's vessels,
which he presented to the baggage mas-
ter, but his baggage could not be found.
Prior to such time the company had no
notice to whom the baggage belonged, or
when or by what vessel it was to be
shipped. Held, that whatever the liabil-
ity of the company, as carrier or ware-
houseman, libelant had no lien for the
loss of the baggage on the particular ves-
sel for transportation upon which he af-
terward contracted, but which at the time
of the loss had not entered on perform-
ance of the contract, which would suj)-
port an action in rem in a court of ad-
miralty. The Priscilla, 114 Fed. 836. 52
C. C. A. 470.

^§ 4441-4444 carriers. 4012

for transportation from New York to Havre and paid for as extra baggage,
were lost on the voyage through the sinking of the vessel, their value in New
York, as shown by the opinions of experts, was properly taken as the measure
of damages for the loss in a suit against the owners of the vessel.^'^

§ 4442. Limitation of Liability. — See ante, "Conditions and Limitations in
Tickets," §§ 2218-2230; "Contracts, Fares, Passage and Tickets," §§ 4385-4390.

§ 4443. Penalties and Forfeitures for Violations of Regulations. —

A court of admiralty may, in the exercise of a judicial discretion, refuse to im-
pose on the owner of a steamship the penalty prescribed by Rev. St., § 4465
[U. S. Comp. St. 1901, p. 3046], for carrying more passengers than the number
allowed by the vessel's inspection certificate, where, because of extraordinary
conditions existing, such imposition would be inequitable. A steamship which
left San Francisco for Seattle a few days after the destruction of the former
city by earthquake and fire is not subject to the penalty prescribed by Rev. St.
§ 4465 [U. S. Comp. St. 1901, p. 3046], for carrying more steerage passengers
than the number allowed by her inspection certificate, nor liable to such passen-
gers in damages for the inconvenience and privation resulting to them from the
overcrowding and from a shortage of water, where the excess of passengers
was due to the confusion caused by the destruction of the city and the com-
pany's ofifice and occurred notwithstanding its efiforts to prevent it, and the short-
age was due to the company's inability to procure water or sufficient coal for
its condenser in San Francisco, and to bad weather which prolonged the voy-
age. ^^

§§ 4444-4447. Offenses Incident to Carriage of Passengers— § 4444.
What Constitutes and Elements. — Under Rev. Stat., § 5344 (U..S. Comp.
St. 1901, p. 3629), which provides that every captain on any steamboat or
vessel, by whose misconduct, negligence, or inattention to his duties on such
vessel the life of any person is destroyed, etc., shall be guilty of manslaughter,
intent or malice is not an element of such ofifense, and proof that accused was
the captain of the vessel ; that he was guilty of misconduct, negligence or inat-
tention to his duties thereon; and that by reason thereof human life was de-
stroyed, is sufficient to sustain a conviction. ^^

Failure to Maintain Fire Drill and Provide Extinguishing Apparatus.—
Under Rev. Stat., § 4471 (U. S. Comp. St. 1901, p. 3049), which provides for
the maintenance of a steam fire pump and two hand pumps with pipes, one on
each side of the vessel, to convey water to the upper decks to which suitable
hose shall be attached and kept in good order at all times and ready for imme-
diate use, and the United States Inspectors' rule 5, § 15, which provides for a
fire drill at least once a week, and § 4482 (U. S. Comp. St. 1901, p. 3054),
requires good life preservers in sufficient numbers, kept in accessible places for
immediate use, it is the statutory duty of the captain to maintain an efficient fire
drill, to see that the proper apparatus for extinguishing fire is provided and
maintained in proper order, and to exercise ordinary care to see that the life
preservers are in fit condition for use.'^'^

Failure to Post Station Bill Assigning Crew to Quarters.— Where a sta-
tion bill posted on a vessel assigning the crew to quarters in case of fire re-
ferred to the crew by number instead of names, but the members of the crew

37. Damages.— La Bourgogne, 144 39. What constitutes and elements. -
Fed. 781, 75 C. C. A. 647, affirmed in Van Schaick v. United States, 159 Fed.
Deslions v. La Compagnie Generale 847, 87 C. C. A. 27, 14 Am. & Eng. Ann.
Transatlantique, 28 S. Ct. 664, 210 U. S. Cas. 456. . . ^ ^ .„ j
95, 52 L. Ed. 973. 40. Failure to maintam fire drill and

38. Penalties and forfeitures for viola- provide extinguishing apparatus.— \'an
tions of regulations.— The Charles Nel- Schaick v. United States, 159 Fed. 847,
son, 149 Fed. 846. 87 C. C. A. 27, 14 Am. & Eng. Ann. Cas.


4013 CARRIAGE OF PASSENGERS. §§ 4444-4447

Avere not numbered, the posting of the bill did not constitute a compliance with
the law requiring the posting of a station bill assigning the crew to quarters in
case of iire.'*^

§ 4445. Defenses. — In a prosecution of the captain of a vessel for man-
slaughter, due to his negligence, misconduct, and inattention to duty in the per-
formance of certain duties imposed on him by law, it is no defense that the
government inspectors had failed in their duty to properly inspect the vessel and
its safety appliances, and had wrongfully issued a certificate of inspection."* 2

Failure to Maintain Station Drills. — Where an excursion steamer in New
York Harbor had been inspected early in May, 1904, and was ready for navi-
gation about May 15th, she having been out but nine times prior to June 15th,
when she was lost by fire, it is no excuse for the captain's failure to maintain
fire drills as required by Inspectors' rule 5, § 15, that he had had no time or op-
portunity therefor, or that his crew was composed of raw material, and was
constantly changing."* ^

§ 4446. Indictment. — An indictment against the master of a vessel trans-
porting immigrants to a port of discharge within the United States, charging
that there were no sufficient tables and seats provided for the use of such pas-
sengers, in violation of Act Cong. Aug. 2, 1882, c. 374 [U. S. Comp. St. 1901,
p. 2931], though objectionable for failure to allege in what respects the insuffi-
ciency consisted, was not fatally defective, but the charge should be made more
•definite and certain by a bill of particulars or by a new indictment. ■*■*

§ 4447. Evidence. — In a prosecution of the captain of a vessel for miscon-
duct and inattention to duty resulting in loss of life from fire starting in the
forward hold of the vessel, it must be presumed that the life preservers orig-
inally furnished were sufficient, but evidence that they had been on the vessel
from nine to thirteen years and only most supercilious tests had been made dur-
ing this period, that many went to pieces as soon as taken from the racks, that
others which were adjusted proved inadequate, as persons wearing life pre-
servers were seen going down below the surface of the water and when brought
up were dead, is sufficient to justify a finding that the captain was negligent in
failing to provide, preserve, and inspect necessary life preservers. •*'''

Negligence and Inattention to Duty. — Where an excursion steamboat was

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