every pilot who brought a vessel in or out on Sunday, and every sailor who helped in the navigation of a ship, would be guilty of a breach of law, and could not be excused by the fact that he acted in obedience to orders. Maritime law seems nowhere to make a distinction between Sunday and other days. We know of no instance in any book or treatise on the jurisdiction of admiralty in which such a distinction is intimated, and no case in which a court of admiralty is asked to declare a capture illegal, or refuse to give damages for collision, or compensation for salvage, or wages to a sailor, on the ground that the facts on which these several claims rested took place on Sunday.

CHAPTER XIII.

ON PASSENGERS.

SECTION I.

COMMON CARRIERS AND PRIVATE CARRIERS.

ALL the books which treat of the law of carriers acknowledge the important distinction between a common carrier and a private carrier. Very different rights, duties, obligations and responsibilities attach to these two classes of carriers. We have already considered this distinction in reference to the carriers of goods; and have remarked upon the uncertainty which still rests upon the principles or the definitions which would determine between a ship that is a common carrier, and one that is only a private carrier. Language is used in some cases which would seem to indicate that every vessel, whether under canvas or steam, is a common carrier. This cannot be true, for there must be such a thing as a vessel that carries either goods or passengers for hire, under circumstances which would make her only a private carrier, by special contract. If the principles which generally define the distinction between these classes of carriers on land be applied to those on water, it would seem that no vessels are common carriers that do not ply between definite termini, having their regular routes from one place to the other, like packets, or liners, as they are sometimes called.

These principles have, however, been somewhat relaxed as to carriers on land; so far, for example, as to consider hackmen and others, who go wherever they are required to, common carriers. And the decisions in respect to carriers by water would go still further. As we have seen, this distinction is comparatively unimportant as to water carriers of goods, from the universal use of bills of lading,1 which are express contracts between the ship-owner 1 See ante, p. 250.

and the shipper of goods, and determine their rights and obligations. But passengers are not carried under bills of lading. And so far as they are concerned, we should be disposed to give the character of common carriers only to vessels which might fairly be considered as packets or liners. And we shall presently see that where passengers are carried by other vessels, it is usually under express contracts; the construction and effect of which we shall consider in another section.

A question has arisen in England whether any vessels can be considered as common carriers of passengers, where they sail from a place within the realm to one that is without the realm. If the law of common carriers be extended so far as to cover cases of vessels going from one port in a country to another port in the same country, which seems to be certain, a different case is presented when the vessel sails for a foreign country. In the English case above referred to, the vessel was a steam packet, plying between Southampton in England, and Gibraltar in Spain. The general objection was taken, that the law of common carriers was confined to the land; and then the more particular objection, that if it extended to carriers by water, it must be confined to those which went from port to port "within the realm." But the ruling of the court was with the plaintiff on both points.1

1 In Benett v. The Peninsular Steamboat Co., 6 C. B., 775, the declaration stated that on, &c., the defendants were possessed of a certain steam vessel called the Montrose, then lying at Southampton, and about to sail to Gibraltar in Spain for the purpose of carrying passengers; that the defendants were then common carriers for hire of passengers in and by the said steam vessel from S. to G.; that the plaintiff was then desirous of becoming a passenger in and on board of the said steam vessel, and then at a reasonable and proper time in that behalf tendered himself to the defendants at Southampton aforesaid to be carried by them as aforesaid, and then requested the defendants to receive him as such passenger; that the plaintiff was then ready and willing to pay the defendants all reasonable passage-money, hire and reward for being carried by them as such passenger, — of which the defendants then had notice; and that, although the defendants then had sufficient room and accommodation on board said vessel to receive the plaintiff as such passenger, and to carry him in manner aforesaid, yet the defendants disregarded their duty in that bebalf, and did not nor would receive the plaintiff as such passenger on board the said steam vessel to sail, as the same did then sail from S. to G. without the plaintiff, &c.

Third plea, that the defendants were not common carriers of passengers for hire, modo et forma, &c. The cause was tried before Wilde, C. J., at the sittings in

SECTION II.

OF THE OBLIGATIONS OF CARRIERS BY WATER, AS TO PASSENGERS.

The first of these may be stated thus: Every common carrier of passengers by water, is bound to receive and carry all who offer,

London, Michaelmas term, 1847. It appeared that the defendants were the proprietors of certain steam vessels, one of which was advertised, by circulars issued by defendants, to sail every ten days from Southampton for Corunna, Vigo, Oporto, Lisbon, Cadiz and Gibraltar, — the circulars giving the times of starting and the terms upon which passengers were to be conveyed to those places respectively, and goods also if there was room for them; that the plaintiff went to Southampton on the 27th of February, 1847, for the purpose of taking his passage by one of the defendants' vessels, called the Montrose, but that in consequence of some communication which had been made to the defendants by the Portuguese consul, their agent refused to allow him to take a passage, although it was admitted that there was plenty of room.

On the part of the defendants it was submitted that the third issue ought to be found for them, for that the common-law liability of carriers did not extend to carriers of passengers or to extra-territorial carriers; and that the company's circulars imported a limited and not a general undertaking to carry passengers. The lord chief-justice left it to the jury to say whether or not the evidence satisfied them that the defendants carried on a business of common carriers for hire. The jury found in the affirmative, and a verdict was accordingly entered for plaintiff on that issue, with leave to the defendants to move to enter the verdict thereon for them if the court should be of opinion that this was not the fair legal inference from the evidence.

Maule, J., said: "The allegation of duty is idle. The declaration states, not that the defendants were common carriers, according to the custom of England, or from one place to another within the realm, but that they were common carriers for hire from Southampton to Gibraltar in Spain. The third plea denies that the defendants were common carriers for hire as alleged in the declaration; issue is taken upon that, and the jury have found they were such common carriers."

Wilde, C. J., said: "It seems to me that there is no ground for setting aside the verdict. The question is, Can a man be a common carrier' of passengers from a place that is within the realm to a place without it. Mr. Justice Story, in the very able treatise that has been referred to, defines a common carrier to be a person who does just what the defendants in this case are proved to have done. . . . . I see no reason for holding that common carriers' must of necessity mean persons employed to carry within the realm and according to the custom. It seems to me that this declaration and the issue taken upon it by the third plea may be understood in a sense that will make the whole con

unless special causes for refusal exists. That this is the law as to common carriers on land, is a familiar and well-established principle. But this rule of law has been regarded as equally and unquestionably applicable to common carriers by water. It was so regarded in the English case just above cited; in an interesting American case by Story, J.,2 and in a case in Michigan; 3 and sistent, that the question was properly left to the jury and that the verdict was right.”

Coltman, J., said: "This declaration, when it calls the defendants 'common carriers,' does not mean to allege that they are carriers within the realm, and according to the custom of the realm, but that they are persons who were in the habit of conveying passengers for hire from England to certain places beyond the . . . I think the question was correctly left to the jury."

seas....

Maule, J., held the same. . . . . "As soon as you establish the termini, the only question raised by the third plea is whether the defendants actually did those things which Dr. Story defines as the duties of a common carrier. It was suggested by the attorney-general that the liabilities of common carriers of goods differ from those incurred by common carriers of passengers. But whatever the law may be, I think the allegation here can only mean that the defendants were common carriers of passengers in the sense in which Dr. Story speaks of common carriers of goods. Common carriers would not cease to be common carriers although their common-law liabilities should be abrogated by act of parliament. I think the question was properly left to the jury, and properly found by them." V. Williams, J. "I am entirely of the same opinion." Rule discharged.

1 Angell on Carriers, 4th edit. §§ 524-531, 590, 612. 3 Parsons on Contracts, 225, et seq.

Jencks v. Coleman, 2 Sumner, 221.

Day v. Owen, 5 Mich. 520. The action was case against defendant as a common carrier. The first count in the declaration alleged that the defendant was the owner of the steamer Arrow, plying between Detroit and Toledo, and that the plaintiff applied on board of said steamboat for a cabin passage from Detroit to Toledo, and offered to pay for the same, which was averred to be a usual mode of conveyance of passengers upon said boat; that although there was room, the defendant refused to give the plaintiff a cabin passage, whereby the plaintiff was put to great expense, trouble, and delay, and obliged to travel in the night a hundred miles out of his way to reach Toledo. A second count alleged that the defendant was a common carrier by water, of passengers in and by the cabin and deck of said steamboat, for the conveyance of travellers in said cabin or upon said deck, as such travellers might desire, for reasonable hire and reward, which was greater in case conveyance was required in the cabin than in case it was required upon the deck; that the defendant was proprietor of said cabin, said deck, and all parts of said vessel; that plaintiff went on board said boat and demanded to be carried in said cabin to Toledo; but although he tendered the greater hire and reward, and the vessel was ready to start, and said cabin was not full of passengers, and there was no ground for refusal, yet defendant refused to carry