CHAPTER XIII. PASSENGERS. $$ 585, 586.-The Master's Clearance, and require- The extent of the master's 476 gers. 462 $$ 587-589. The Master's § 610. Computation of 484 464 §§ 590, 591.-Rights of Pas- 466 $$ 611-614.-Provisions and Medicines. The Master's Authority over the Passengers. 509 § 585. THE safety and conduct of the ship, passengers and authority over cargo are entrusted to the master, and depend upon his skill and the passengers. judgment. And as misconduct on the part of the passengers would seriously hinder him in the performance of his duties, and might in many cases imperil or lead to the loss of all, the law invests him with a large authority over them whilst the ship is at sea. The master may lawfully require whatever is necessary for the security of the ship, the proper discipline of the crew, or the safety of all on board, not only of the ship's company, who have expressly contracted to obey him, but of those also whom he has engaged to carry to their destination, on the implied condition of submission to his rule. (a) The exercise of such a wide, almost despotic, and necessarily undefined power as this, is of course limited strictly by the exigency of the case; (b) but if (a) Abbott, 13th edit. p. 211; Boyce v. Bayliffe, 1 Camp. 58. The law is the same in the United States. Parsons on Shipping, i. 636; Angell on Carriers, 5th edit. § 623. (b) King v. Franklin, 1 F. & F. 360. necessity arise, the master may enforce and justify orders which would otherwise render him liable to civil or even criminal proceedings. In the United States, the law on this subject is similar to our own, and there, as here, the master's authority over the passenger is limited by the necessity of the case. 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; as, for instance, to work at the pumps, if the ship leaks.(c) But he would have no right to compel a passenger, in any ordinary circumstances, where such necessity did not exist, to do duty as one of the crew; and even where it did exist, he could not require more exertion or exposure than was strictly necessary and reasonable under all the circumstances. He certainly could not require the passenger to do what might be safe enough for a practised and skilled seaman, but what would be very dangerous to a landsman; as, for example, to go out upon a yard-arm and furl a sail in a tempest.(d) He may, § 586. The master has authority to exercise so much force over the passengers as is necessary for the safety of the ship and the well-being and comfort of all on board. He is not bound to wait for actual mutiny. He may arrest any movements towards it, on the part either of the passengers or of the crew. if necessary, arrest and imprison a passenger; but to justify his doing so, the passenger must have acted in a way which was calculated, in the judgment of a reasonable man, to interfere with the safety of the ship or the due prosecution of the voyage.(e) The master has a right to require and to compel the passengers to give their assistance in cases of attacks by enemies, and if a passenger refuse to obey reasonable orders, the master may confine bim, if such confinement is necessary to the discipline of the crew and the safety of the vessel.(ƒ) He may exclude a passenger from the table where the other passengers mess, if he misconduct himself at table, or if his conduct is unbecoming a gentleman in the strict sense of the word; or if he threaten the master with personal violence.(g) But to imprison a passenger for seven days in his cabin for alleged insolence to the master, is an excessive use of the master's power, and not justifiable.(h) If a master exceeds the limits of justice and moderation, he is (c) Parsons on Shipping, I. 637; The Branston, 2 Hag. 3 n.; Newman v. Walters, 3 B. & P. at 615. Aldworth v. Stewart, 14 L. T. N. S. 862; (f) Boyce v. Bayliffe, 1 Camp. 58. 454. (h) Aldworth v. Stewart, 14 L. T. N. S. 862. The extent of the master's authority over the passengers. Distinction between carriers of passengers and of goods. Liability of carriers of passengers. Liability of master and shipowner to passengers. liable to be sued in a court of common law, (i) or in the Court of Admiralty, which may award damages to the injured party.(k) The master has a lien for the passage-money upon the luggage of a passenger, and upon any other property he may have on board; but not on the person of the passenger himself, nor on the clothes which he is actually wearing when he is about to leave the vessel.(1) The Master's Duties to the Passengers irrespective of the Statutes. § 587. There is a broad distinction between the respective liabilities of carriers of passengers and common carriers of goods. Common carriers of goods, whether by land or sea, are insurers against all contingencies, except losses by the act of God or the Queen's enemies, or the inherent vice or defect of the thing carried itself. (m) Carriers of passengers are only liable for actual negligence.(n) The contract of such a carrier and the obligations undertaken by him are to take due care (including in that term the use of skill and foresight) to carry a passenger safely.(0) And "due care means, having reference to the nature of the contract to carry, a high degree of care, and casts on carriers the duty of exercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order.(0) So masters and owners of passenger ships are only liable to their passengers for the want of due care, skill and foresight to convey them safely. They are not liable for an injury which happens by mere accident, without fault on their part; (p) and it seems that there is no implied warranty on the part of the master or owners with a passenger, that the ship is seaworthy.(q) § 588. Those who hold themselves out as carriers of passengers by water are bound to receive and carry all who apply for a passage, and who offer to pay the regular fare or passage-money, as long as there is sufficient room, unless special causes for refusal exist.(r) (i) Watson v. Christie, 2 B. & P. 224; Aitken v. Bedwell, M. & M. 68; Rhodes v. Leach, 2 Stark. 516. (k) The Enchantress, 1 Hag. 395; The Ruckers, 4 C. Rob. 73; Chamberlain v. Chandler, 3 Mason, 242. (l) Wolf v. Summers, 2 Camp. 631; per Lawrence, J. As to master's lien see ante, § 293. (m) Mors v. Slue, Sir T. Raym. 220; Coggs v. Bernard, 1 Smith's L. C., 9th edit. 241; Trent Navigation v. Wood, 3 Esp. 127. See also § 301, ante. (n) Christie v. Griggs, 2 Camp. 79; Crofts v. Waterhouse, 3 Bing. 319; Readhead v. Mid. R. Co., L. R. 4 Q. B. 379; Blower v. G. W. R., L. R. 7 (0) Per Montague Smith, J., Readhead v. The Mid. R. Co., L. R. 4 Q. R. at 381, 393. (p) Angell on Carriers, 5th edit. § 521. (q) Readhead v. Midland R. Co., L. R. 4 Q. B. at 391; but see Parsons on Shipping, i. 641, where the learned author apparently uses the word "warranty in a sense other than that usually attributed to it by English lawyers. (r) Parsons on Shipping, i. 611; Angell on Carriers, 5th edit. §§ 525, 612. But the master would be justified in refusing to accept as a passenger, a person who might endanger the other passengers by a contagious disease, or annoy them by his drunkenness, or by his disreputable conduct, or vulgar habits ; (s) or who refused to obey the reasonable regulations of the ship, or who had a design to injure the owners and master in their business.(t) But it would seem that if a passenger, who might have been refused a passage on account of his bad reputation, character, or habits, has been received on board as a passenger, he cannot afterwards be expelled, as long as he is guilty of no impropriety on board; nor can he be treated with such insult or contumely as would compel him to leave the ship. And if the master does so expel him or treat him, the shipowners and master will be liable.(u) considerate treatment. § 589. Passengers on board a ship are entitled, independently Protection and of any statutory provision or special contract, to protection and to kind and considerate treatment on the part of the master. They are, on the other hand, bound to conform in all respects to the regulations and discipline of the vessel on which they have embarked.(x) In the words of Mr. Justice Story, "the contract of the passengers with the master is not for mere ship room and personal existence on board, but for reasonable food, comforts, necessaries, and kindness. It is a stipulation, not for toleration merely, but for respectful treatment, for that decency of demeanour which constitutes the charm of social life, for that attention which mitigates evil without reluctance, and for that promptitude which administers aid to distress."(y) It is therefore the duty of the shipowners and master to supply the passengers with suitable accommodation by day and night, and with sufficient and wholesome food, but if reasonable care has been taken to make proper provision, the law will make allowance for the difficulties which necessarily appertain to all transport by water, and will not hold the owners or master liable for an unexpected inferiority in or deficiency of provisions.(2) If a dietary scale, such as is required by the statute, is not Food. incorporated into the contract, the passenger is entitled to such food as is reasonable for him as a cabin or steerage passenger respectively, in quantity, quality, and regular supply. But the plaintiff must have suffered real injury from a neglect to supply, (8) As to the statutory power of the master of a home-trade passenger steamship to refuse or remove passengers who are drunk or misconduct themselves, sec post, § 626. (t) Parsons on Shipping, i. 614-618; Angell on Carriers, 5th edit. §§ 525, 612. (u) Coppin v. Braithwaite, 8 Jur. 875; Parsons i. 618. 3 (x) Maude & Pollock, p. 692. (z) Parsons on Shipping, i. 625; and Passage money. When pas to entitle him to maintain an action. "It is not because a man does not get so good a dinner as he might have had, that he has therefore a right of action against the master."(a) Rights and Liabilities of Passengers under their Contract, irrespective of the Statutes. § 590. With respect to passage-money, the rights and liabilities (b) of passengers are governed by the same principles as those which regulate ordinary contracts. Where a passenger is induced to enter into the contract by representations which are fraudulent, that is to say, false within the knowledge of the party making them, the contract is void, even though the misrepresentations are not embodied in the contract. Where a representation is not fraudulent, but only untrue in point of fact, its untruth forms an excuse for the non-performance of the agreement on the part of the passenger, provided it relates to a matter which forms an essential part of the contract. (c) Thus the master of a ship sought to recover damages from a passenger for breach of a verbal agreement, by which he engaged two cabins on a voyage from England to Madras. Statements were made to him by the shipowner, that the ship would sail on a particular day, but she did not do so, and consequently the passenger refused to go. The jury were directed, that if the day fixed was not understood by the parties to be of the essence of the contract, and the ship sailed within a reasonable time, the shipowner was entitled to recover, according to the usage of that particular trade, one-half the passage-money.(d) § 591. Where the passage-money, though payable at the place of destination, becomes due at the commencement of the voyage, and not conditionally on the prosperous termination thereof, it will be payable notwithstanding the loss of the ship and all on board during the passage. (c) If a passage by the particular ship senger entitled is not provided according to the contract, the passenger has, at common law, a right to a return of the passage-money and to damages.(f) Where the ship is lost before the commencement of the voyage contracted for, there is a total failure of consideration, and the passage-money, which has been paid in anticipation, may be recovered.(g) But if the ship is not lost until after the voyage to a return of the passage money. (a) Per Lord Denman, C.J., in Young v. Fewson, 8 C. & P. 55. (b) As to their rights and liabilities under the statutes, see infra, §§ 593-624. (c) Maude and Pollock's Shipping, 693; Moens v. Heyworth, 10 M, & W. 147. (d) Per Tindal, C.J., Yates v. Duff, 5 C. & P. 369; and see Cranston v. Marshall, 5 Ex. 395. (e) Moffat v. The East India Co., 10 East, 468. (f) Maclachlan, 4th edit., p. 338. (g) Gillan v. Simpkin, 4 Camp. 241. As to the rights of passengers of emigrant ships to recover back their passage-money when left behind, see 18 & 19 Vict. c. 119, s. 48; infra, § 616. |