But it is obvious that another view may be taken. The shipowner has contracted to carry a passenger to a certain place. If the ship be burned, that is incidental to the contract, and is not of its essence. If, therefore, he cannot carry him in the ship intended or named, he is now bound to carry him in another ship if that can be procured, and if he fails to do this, will be liable for damages. It will occur to the reader that this is another instance of the analogy between contracts for freight and contracts for passage; for the view just stated is little else than an application to the contract for passage, of the principle of transshipment already paid had wholly failed. It was so much money had and received by the defendants for the plaintiffs' use, and could be recovered back under the appropriate money counts. . . . . The evidence adduced showed that the defendants were joint owners of the North America, and that they had through their agent promised to transport the plaintiff on board of that steamer from San Juan del Sud to San Francisco. . . . . In this case there were three distinct concerns,on the Atlantic, on the Isthmus, and on the Pacific, - and there were different and separate owners of the steamers on the Pacific. . . . . Each made its own charge, not dependent in any manner upon the others, and there was no agreement to share any profit or loss. There was not, therefore, any partnership.". .... A similar case, founded on similar facts and raising similar questions, was decided in the same way. Bonsteel v. Vanderbilt, 21 Barb. 26. Parker, J., delivered the opinion of the court, Watson, J., dissenting. . . . . "I think the plaintiff under the proof in the cause was entitled to recover against Vanderbilt and Drew, and the only remaining question is as to the rule and extent of the damages. . . . . There was a failure of the consideration for which the plaintiff paid his money, but it was no more the fault of the defendants than of the plaintiff, that the contract was not performed. . . . . Since the verdict in this cause, all the questions which arose on the trial have been deliberately examined and decided. . . . in the case of Briggs against these same defendants. . . . . The contract was made at the time of the sale of the tickets, and the language of the ticket admits the payment of the passage-money, and expresses the nature and extent of the engagement. The ticket is more than a mere receipt. Each ticket conveyed to the plaintiff the right to a second-cabin passage in a certain steamship, on her next passage to a certain port. . . . . The defendants surely did not indemnify against the unhealthfulness of the climate, and the thousand annoyances and vexations incident to a transit across the Isthmus. . . . . No care and no foresight on their part could probably have secured to all either comfort or health on the voyage. Many of the evils were incident to the climate and country, and beyond human control; and a proposal to guarantee in the contract against most of the sufferings complained of would have been promptly declined. . . . . I think the only legal claim growing out of the transaction is the right of the plaintiff to recover against Vanderbilt and Drew the amount paid them for passage-money on the North America, with interest." .... considered in reference to contracts for freight. And it is this last view which has been taken in the latest cases, in which the earlier cases were overruled. The general rules in regard to baggage applicable to carriers by .... 1 In Williams v. Vanderbilt, 29 Barb. 491, 496, Strong, J., said: "The designation, in the ticket, of a particular ship, as the ship in which the plaintiff was to have passage, would doubtless, if the vessel had not then been lost, or a loss had been subsequently occasioned by the act of God, as the destruction of the vessel in a storm, have entitled the plaintiff to be carried in that ship, and limited the obligation of the defendant to carry to that ship. But I do not think the designation amounted to an absolute, unconditional contract to carry by that ship, from the obligation of which the defendant could not be relieved by such an act of God as aforesaid. . . . . The designation in the ticket of the vessel is a mere specification of the mode in which the duty was to be performed, and to that extent controlled the duty. . . . . And it is a rule well settled that 'where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, the law will excuse him.' (Paradine v. Jane, Aleyn's R. 27, Harmony v. Bingham, 2 Kern. 99, and cases here cited.) The substance of the duty assumed and intended to be assumed by the defendant, as a common carrier of passengers, was to carry the plaintiff to California. As such a carrier, the law required of him to provide suitable conveyances and accommodations. . . . . The plaintiff was entitled to a passage over the route, and defendant was under obligation to furnish it as soon as it could reasonably be done, notwithstanding the loss of the vessel. . . . . To hold the defendant discharged from all obligation as to the rest of the route, except, perhaps, to refund a proportion of the passage-money applicable to it, . . . . would violate the leading intention of both parties in the sale and purchase of the tickets, and inflict on the plaintiff the most monstrous injustice." .... .... On appeal to the general term, 29. Barb. 503, Smith, J., said: "It being settled, therefore, that the defendant was a common carrier from New York to San Francisco, it follows that he was bound to forward the plaintiff within a reasonable time, and when it was ascertained that one of the vessels on the Pacific was lost, it was his duty to provide another with all reasonable diligence. . . . . Did the defendant exercise all reasonable diligence in providing another vessel to take the plaintiff to California? . . . . On this question of fact the evidence was not very strong or conclusive. . . . The charge of the judge was guarded, careful, and unexceptionable, and . . . . we are not at liberty to disturb the verdict." ..... In Williams v. Vanderbilt, 28 N. Y. 217, it was held that the time the plaintiff lost by reason of his detention on the Isthmus, his expenses there, and of his return to New York, the time he lost by reason of his sickness, after he returned to New York, and the expenses of his sickness so far as the same were occasioned by defendant's negligence or breach of duty, were legitimate and legal damages which the plaintiff might recover; and that if the loss of one steamer was the act of God, it was the duty of the carrier to exercise diligence in 1 land, apply with equal force to carriers by water. What constitutes a delivery of baggage to a vessel, we have already considered; and it has been held that the owner of a vessel may contract with a passenger not to be liable unless a bill of lading is given for the baggage.2 Generally, however, no special contract is made in regard to the baggage, and the passage-money is compensation for carrying the baggage as well as the passenger.3 It has been held that if the baggage belonging to a steerage passenger is in his exclusive possession, the owners of the vessel are not liable if the baggage is stolen ; but the owner of a ship has been held liable for the loss of a trunk stolen from the state-room of a passsenger.5 On the arrival of a vessel at her port of destination a passenger should obtain his baggage as soon as practicable, but he is not obliged to expose himself in a crowd or to endanger his safety thereby." 8 The question as to what is baggage for which a passenger-carrier is liable is one of some difficulty. As a general rule, it includes only articles of a personal nature necessary to the convenience of the passenger.7 It clearly does not include merchandise; nor jewelry intended as presents for friends, nor masonic providing another vessel for the carriage of the plaintiff; and that the plaintiff could recover back the money he had paid to be carried to San Francisco, and his expenses while necessarily detained on the Isthmus, &c., if his detention and attendant circumstances alleged were justly imputable to the defendant's neglect of duty. Balcolm, J., said: "The true rule touching this question is laid down by Professor Parsons. He says: "The non-performance of a contract is not excused by the act of God, where it may be substantially carried into effect, although the act of God makes a literal and precise performance of it impossible." See also West v. Steamer Uncle Sam, 1 M'All. C. C. 505. 1 See ante, p. 184, note. Wilton v. Atlantic Nav. Co. 10 C. B. N. s. 453. The Elvira Harbeck, 2 Blatchf. C. C. 336. Cohen v. Frost, 2 Duer, 335. Van Horn v. Kermit, 4 E. D. Smith, 453. The trunk in this case was stolen two days after the vessel arrived in port, and it was held that although the owners of the vessel were not liable as common carriers, yet the burden was on them to show that they were not guilty of negligence. Nevins v. Bay State Steamboat Co. 4 Bosw. 225. 7 Van Horn v. Kermit, 4 E. D. Smith, 453; Wilton v. Atlantic Nav. Co. 10 C. B. N. s. 453. Whitmore v. Steamboat Caroline, 20 Misso. 513. But regalia used by a passenger on his travels, nor engravings. money intended for travelling expenses may be carried in a trunk;2 and generally, in considering the amount of baggage which a traveller may reasonably have, the jury may take into view his residence, business, station in life, the place from which he came and that to which he is going.3 If a passenger does not accompany his baggage, the carrier may claim compensation in advance for its transportation, or may postpone his claim until delivery and rely upon his lien for freight, or the personal responsibility of the owner, and in either case the vessel is liable as in the case of an ordinary shipment.* SECTION III. OF THE POWER AND DUTY OF THE MASTER AS TO PASSENGERS. Passage by water is so different in many respects from passage by land, that while the general principles applicable to both are essentially the same, they are importantly modified by the peculiarities of either mode of passage. In nothing is this more true, than in reference to the power and duty of the master of a ship. He must be, from the necessities of his employment, clothed with almost despotic authority over all on board his ship; for the safety of all the persons and all the property may depend upon the preservation of discipline, and the prompt obedience to every command. But, whatever be the power of the master while at sea, when he reaches shore he is always held responsible to all whom it concerns, for the excessive use of this power while at sea, and must respond in damages for any injury caused by his wrongful acts of omission or commission, of negligence, or of oppression and active wrong. The power of the master need not be, and therefore is not, so 1 Nevins v. Bay State Steamboat Co. 4 Bosw. 225. 2 Duffy v. Thompson, 4 E. D. Smith, 178; Merrill v. Grinnell, 30 N. Y. 594. Nevins v. Bay State Steamboat Co. 4 Bosw. 225. The Elvira Harbeck, 2 Blatchf. C. C. 336. Malton v. Nesbit, 1 Car. & P. 70. An action on the case. The declaration stated that the defendants were owners of the ship Apollo, and that the plaintiff took his passage in that ship from Madras to London, and paid £175 to defendant for it, and that it became his duty to carry him safely (acts of God and great in the case of passengers, as over the crew; nor would a master have any right to call on a passenger, under ordinary circumstances, to do duty as one of the crew. But a passenger on board a ship, in a time of peculiar and extraordinary exigency or peril, shares in the common danger, and may well be required to contribute to the common efforts for safety. Then it is plain, that if he works at all he would do little good and might do much harm, if he did not work with the rest in obedience to the orders which give to the efforts system and efficacy. The result is, that the master has a right to command and compel the service of a passenger, in case of actual danger from a peril of the sea; to work at the pumps, for example, if the ship leaks, or to assist in reducing sail, and the like. And the master has a similar power if an attack by an enemy be made or apprehended.2 There would seem, however, to be this limitation on the master's power. He can require no more exertion or exposure on the part of the passenger than is strictly necessary;3 and certainly king's enemies excepted), yet that by reason of the negligence of the defendants and their servants, the ship was wrecked, and plaintiff was injured by having to pay for his passage in another ship, and by having to stay for some time at the Cape of Good Hope. Evidence was given that for some hours before the wreck the ship was in Table Bay, and no soundings were made nor lookout kept. This was confirmed by many witnesses. Evidence was also given of the loss incurred by the plaintiff in consequence of the wreck of the ship. Abbott, C. J. left the case to the jury on the question of negligence or no negligence. Verdict for plaintiff. 1 See Vol. II. Chapter on Salvage. 2 Boyce v. Bayliffe, 1 Camp. 58. Boyce v. Bayliffe, 1 Camp. 58. Action for assault and false imprisonment on board the Huddart, East Indiaman, from Bombay to London; per quod the plaintiff was obliged to leave that ship and take his passage home on board another. Plaintiff was a passenger in the gunner's mess, and defendant was master of the ship. One evening, near the Cape of Good Hope, two strange sail were descried, supposed to be enemies. Defendant immediately mustered all hands on deck, and assigned to every one his station. The plaintiff, with the other passengers, he ordered on the poop, where they were to fight with small arms. This order all readily obeyed except the plaintiff, who, conceiving that he had been ill-used by the defendant sometime before, in being forbidden to walk on the poop, positively refused to go there, but offered to fight in any other part of the ship with his messmates. The defendant for this contumacy ordered him to be carried upon the poop, and there kept in irons during the whole night. Next morning no enemy appeared, and the ship arrived safe at St. Helena on the 17th June. |