CARRIAGE BY SEA
The purpose of the ship is the carriage of goods and passengers and the
earning of freight- and passenger-money. The underlying purpose of the
maritime law is to facilitate these transactions and provide reciprocal
rights for the parties engaged in them, hence the ship will have a lien
on the cargo for its freight, demurrage and other charges; and,
correspondingly the cargo will have a lien on the ship for any damages
it may sustain by breach of the contracts of carriage. A ship is held to
a high degree of care for the cargo and the cargo-owner must be prompt
in his relations to the ship.
=1. Common and Private Carriers.=--The ship may be either a common or
private carrier of goods or of passengers. In many respects carriage by
water is only a subdivision of the general law of carriers and the more
general principles apply as well to the ship as the railroad.
The common carrier is one who offers to carry for all who may choose to
employ him. The private carrier is one who transports by virtue of a
special agreement. The private carrier appears more frequently in water
carriage than in land transportation. Most ships, for example, carrying
bulk cargoes by special arrangement are private carriers. Most passenger
ships are common carriers of passengers. Ships carrying miscellaneous or
package freight, and running over regular routes, are common carriers.
In general the distinction is by what they profess or offer to
do,--whether to carry generally for the public, or only by special
agreements.
=2. Liabilities.=--The liability of a private carrier may be more
closely limited by agreement than that of common carrier, but in general
it will be sufficient to consider his liability as that of a shipowner
carrying goods for hire. That liability is practically very stringent;
he is responsible for any damage to the goods in his charge unless he
can show that it was occasioned by the act of God or the public enemy,
subject to two important statutes,--the Limited Liability Act (Rev. St.
§§ 4282-4289, Act of June 26, 1884) elsewhere considered, and the Harter
Act of February 13, 1893, 27 S. 445. Under this last mentioned statute,
if the ship is actually seaworthy in all respects at the commencement of
the voyage, there is no liability for losses sustained by faults or
errors in her navigation or management. The general scope of the Act is
to prohibit stipulations in the bill of lading which curtail the
shipowner's liability for negligence in the proper loading, stowage,
care or delivery of the cargo and to exempt him from the consequences of
faults or errors in navigation or management if the ship was seaworthy
when the voyage began. The word "management" does not include acts of
preparing the ship for the voyage; and where she had reached her
destination and sank while being discharged on account of her unstable
condition and a broken coal port, the fault was held not to be one in
her management.
=3. Seaworthiness.=--A warranty of seaworthiness underlies all the
relations of ship and cargo. This means, primarily, that the vessel is
responsible for loss or damage to the goods if she was not in a
seaworthy condition when she commenced the voyage, and if the loss would
not have arisen but for that unseaworthiness. This liability may
frequently involve the owner personally, as when the defect is
attributable to his own fault or want of care. He is held to warrant
that she is fit to carry the cargo which she loads and with it to
encounter safely whatever perils may be reasonably expected to ensue and
assumes liability for any defects in hull, machinery or equipment, even
if not discoverable by careful examination. The ship must be fit in
design, structure, condition, and equipment to encounter the ordinary
perils of the voyage. This includes a competent master and a sufficient
crew. The test is, of course, a relative one and depends upon the facts
and circumstances involved in each particular case. A ship may be
perfectly seaworthy for a particular cargo and voyage and quite
unseaworthy for another. It is frequently said that the warranty does
not require an absolutely perfect ship and that the true criterion is
that degree of fitness which the average prudent and careful owner
requires of his vessel at the commencement of the voyage, having given
due consideration to all the circumstances which may reasonably be
anticipated to attend it.
In the case of the Caledonia, 157 U. S. 124, it appeared that the vessel
was chartered to transport cattle from Boston to Deptford. Sufficient
fodder was provided for fifteen days, a longer period than the usual
length of the voyage, being all the fodder customarily provided for such
voyages. When nine days out from Boston in smooth water, the propeller
shaft broke straight across in the stern tube. The breakage was due to
weakening of the shaft in heavy seas on previous voyages. Its weakened
and unfit condition existed when the vessel put to sea on the voyage
under consideration, but the defect was invisible and could not have
been detected by usual and reasonable means if the shaft had been taken
out and examined. No negligence on the part of the owners was proven.
Because of the breakage the voyage lasted twenty-five days and the
cattle were put on short allowance of food. In consequence they were
landed at Deptford in emaciated condition. They were sold in London on
the first market day following their arrival. The shipper of the cattle
sustained a loss due to their shrinkage in weight and to a fall in the
market which occurred during the period of delay. Chief Justice Fuller
in the opinion of the court reviewed many of the leading English and
American cases, and held:
The proposition that the warranty of seaworthiness exists by
implication in all contracts for sea-carriage, we do not understand to
be denied; but it is insisted that the warranty is not absolute, and
does not cover latent defects not ordinarily susceptible of detection.
If this were so, the obligation resting on the shipowner would be, not
that the ship should be fit, but, that he had honestly done his best to
make her so. We cannot concur in this view.
In our opinion, the shipowner's undertaking is not merely that he will
do and has done his best to make the ship fit, but that the ship is
really fit to undergo the perils of the sea and other incidental risks
to which she must be exposed in the course of the voyage; and, this
being so, that undertaking is not discharged because the want of
fitness is the result of latent defects.
The warranty of seaworthiness implies that the vessel shall be
fit for the particular service in which she is to engage. A vessel
intended to be used in river navigation is not required to be made
fit for ocean transportation. Taking into consideration the nature
of the voyage, it has been said that:
She must be so tight that the water will not reach the cargo; so strong
that these ordinary applications of external force will not spring a
leak in her or sink her; so sound that she will safely carry the cargo
in bulk through these ordinary shocks to which she must every day be
subjected. If she is capable of this, she is seaworthy; if she is not,
she is unfit for the navigation of the river. (The Keokuk, etc. _v._
Home Ins. Co., 9 Wall. 526.)
The opinion just quoted had reference to a barge in tow. The Court held
that the barge was considered as belonging to the tug, which had her in
tow, and that the warranty of seaworthiness extended to the barge
equally with the tug.
While under the act of February 13, 1893, (27 St. at L. 445, _supra_)
the owner is relieved of liability to the cargo by reason of faulty
navigation, the employment of a competent master and crew is implied in
a warranty of seaworthiness and the owner is liable under the warranty
if he fail to employ a competent personnel. In other words the relief
from liability occurs where the owner had employed competent men, but
they negligently or faultily operated the ship. Thus Justice Clifford in
Germania Ins. Co. _v._ Lady Pike, 21 Wall. 1, said:
(The vessel) must be provided with a crew adequate in number and
competent for their duty with reference to all the exigencies of the
intended route, and with a competent and skillful master, of sound
judgment and discretion, and with sufficient knowledge of the route and
experience in navigation to be able to perform in a proper manner all
the ordinary duties required of him as master of the vessel.
=4. Loading and Stowage.=--These are done in accordance with the
provisions of the contract of carriage or custom of the port at which
the cargo is taken on board. Proper loading and stowage is an important
element of seaworthiness of the ship. The cargo must be so disposed as
to keep her trim and seaworthy and also so that one portion may not
injure another. This work is frequently done by stevedores, whose
services, when employed by the ship, are now recognized as maritime and
secured by a lien on the vessel. They are, however, subject to the
master's control and he is not to take on more cargo than he thinks the
vessel can safely carry nor permit its stowage to interfere with the
general safety of the adventure. He may refuse to take on more cargo
than in his honest opinion is prudent, and must not permit any
overloading at all. A fair test is the depth which the vessel was
constructed to draw or that which the master and others of experience on
the spot believed to be proper. The shipper of goods by sea must
disclose their real character and value. He is bound to know whether
they have explosive or other dangerous qualities, and, if concealment
has been practiced by him on the shipowner, he will be liable for all
the damages sustained from their effects. In every shipment there is an
implied warranty on the part of the shipper that his goods are not of a
character to cause injury to other goods on board, unless otherwise
specially stipulated, and he is held liable for all the consequences of
its breach; if the carrier has thereby been obliged to compensate other
shippers, he may recover over against the delinquent what he was so
compelled to pay.
In the case of Barker _v._ The Swallow, 44 Fed. 771, a small steamer, in
use in the lumber trade on the Great Lakes, took a cargo of pine boards,
laden as usual on deck. She encountered a strong wind and heavy sea,
causing her to roll badly so that a portion of the lumber slid off the
starboard side and another portion off the port side as the vessel
careened in either direction. It was conceded that it was not the usage
to lash deck loads of lumber vessels with ropes or chains, but with
ordinary safe loading the boards would be held in place by the
frictional contact of their surfaces under the weather conditions
ordinarily encountered on Lake Michigan. The libellant (owner of the
lumber) contended that too much lumber had been loaded upon the deck and
thereby made her top-heavy, and caused her to roll more than she would
have done had she not been overloaded on deck, and that the rough
weather encountered did not amount to a "tempest". The Court held
while a vessel is not liable for the loss of her deck-load when it is
lost by stress of weather, or what can be properly called "a peril of
the sea," yet, if she takes on so heavy a deck-load as to become
top-heavy, and endangers loss of the deck-load, or puts it in peril in
an ordinary wind, or anything less than a gale of wind, or such stress
of weather as is clearly unusual, it should, I think, be accounted bad
stowage and negligence. Overloading the vessel so as to render her
unmanageable, or susceptible of becoming unmanageable, by such a wind
as is shown to have prevailed on the night in question, is, I think, a
manifest negligence on the part of the carrier, and such as should not
acquit him of liability if the cargo is lost.
In this case there was testimony that the vessel had carried much
heavier deck cargo in safety, but the Court considered that this proved
no more than her good luck.
Where the particular method of stowage is determined by the shipper, and
damage results, the vessel is not liable for damage to cargo so stowed.
A distinction is also to be noted between underdeck cargo and cargo
stowed on deck. These principles are illustrated by the case of Lawrence
_v._ Minturn, 17 How. (U. S.) 100. In that case certain boilers and
chimneys were shipped aboard the _Hornet_ and stowed on deck with the
consent of their owner. The vessel encountered bad weather and began to
roll gunwale deep, shipping large quantities of water, opening seams and
endangering the safety of the underdeck cargo, as well as the lives of
those on board. After consultation with his officers and members of the
crew the master lightened ship by throwing overboard the deck cargo. The
owner of the boilers and chimneys libeled the ship. In directing the
libel to be dismissed the Supreme Court said:
It was strongly urged by the libellant's counsel that the shipper could
not be supposed to have, and should not suffer for not possessing, a
knowledge of the capacity or sufficiency of the ship; that the carrier
was bound to know that the instrument, by which he agreed to perform a
particular service, was sufficient for that service; and that, as these
carriers contracted to convey this deck-load to San Francisco, they
were obliged to ascertain whether placing it on deck would overload
their vessel. This appears to have been the ground on which the court
below rested its decree.
This reasoning would be quite unanswerable if applied to a shipment of
cargo under deck, or to its being laden on deck without the consent of
the merchant, or to a contract in which perils of the sea was not
excepted. But the maritime codes and writers have recognized the
distinction between cargo placed on deck, with the consent of the
shipper, and cargo underdeck.
There is not one of them which gives a recourse against the master, the
vessel, or the owners, if the property lost had been placed on deck
with the consent of the owner;...
The carrier does not contract that a deck-load shall not embarrass the
navigation of the vessel in a storm or that it shall not cause her so
to roll and labor in a heavy sea as to strain and endanger the vessel.
In short, he does not warrant the sufficiency of his vessel, if
otherwise staunch and seaworthy to withstand an extraordinary action of
the sea when thus laden. If the vessel is in itself staunch and
seaworthy, and her inability to resist a storm arises solely from the
position of a part of the cargo on her deck, the owner of the cargo who
has consented to this mode of shipment, cannot recover from the ship or
its owners, on the ground of negligence or breach of an implied
contract respecting seaworthiness....
The master is bound to use due diligence and skill in stowing and
staying the cargo; but there is no absolute warranty that what is done
shall prove sufficient.
In this connection, however, it should be noted that the foregoing
decision has not been interpreted to mean that where a shipper assumes
the risk of deck cargo he thereby bargains away his right to recover for
loss of such cargo if the ship were inherently incapable of carrying it.
Thus the court in the Royal Sceptre, 187 Fed. 224, where the shipper
himself was the charterer and loaded the cargo on deck, said:
Pressed to its logical limit, the untenable nature of the argument
seems very plain; for if a vessel can become unseaworthy by piling up
deckload, without any liability to the owner of the same, she may
capsize as soon as her fasts are thrown off. Deck cargo at shipper's
risk does not mean such absolute surrender of all rights. The risk
assumed presupposes proper loading for deck stowage and a seaworthy
ship. It is not thought that Lawrence _v._ Minturn asserts any doctrine
opposed to this. It speaks only of a jettison; while, if even a
jettison be rendered necessary by unseaworthiness _existing at
commencement of voyage_, the ship is liable, as is shown by the summary
of decisions given in Compania De Navigacion la Flecha _v._ Brauer, 168
U. S. 120, 121.
=5. Wreck or Stranding.=--Shipwreck or disaster does not affect the
title of the owners of the cargo but the goods themselves may become
subject to superior liens for salvage and general average.[13] If the
voyage is broken up the owner may take his property wherever he can find
it, subject to such maritime liens as may have lawfully accrued and,
also, in some cases, to a claim for freight in proportion to the part of
the voyage which has been performed. In the absence of the owners, the
master is the agent of all concerned and has as much authority as the
necessities of the situation require.
In practice almost all matters growing out of a disaster are dealt with
by the underwriters. Cargoes are seldom uninsured. The owner should
promptly notify his insurers or brokers and tender an abandonment and
the underwriters will attend to the situation which develops. If the
abandonment be accepted, the shipper receives the insured value of his
goods and the insurers stand in his stead as owners. The policy will
also ordinarily protect against the loss if less than total and cover
all charges for salvage, general average, and warehousing to which the
property may be subjected. The shipper and his representatives are
entitled to a copy of the master's protest and all other information in
regard to the disaster and also to be consulted in regard to operations
for the release of the ship and cargo if they so desire.
=6. Arrival and Discharge.=--It is the duty of the consignee of the
cargo, apart from local custom or special contract, to be reasonably
diligent to ascertain when the ship arrives with his goods on board and
the master is not bound to seek him out and notify him.[14] He should,
however, report at the Custom House or make such other public
notification of arrival as is usual in the port. If the consignee does
not appear to claim and receive his goods, the master may land and
warehouse them at his expense. The master is bound to deliver the goods
to the right person, that is, the person entitled to them as owner or as
holder of the bill of lading and all outstanding bills of lading should
be taken up. They are quasi-negotiable, and, in the hands of third
parties, may become the basis of a claim for the goods.
The consignee, producing a proper bill of lading, is, of course,
entitled to inspect the goods before accepting them and the ship must
afford him the opportunity even if the instructions be not to deliver
them until paid for. If damaged, he may decline to receive them, but if
he accepts he should closely observe the provisions of his contract in
regard to notice and claim for damages. Most bills of lading contain
provisions limiting the time within which claims may be made and these,
when explicit, are enforced by the courts. Failure to present a claim in
accordance with such stipulations will usually exonerate the carrier
even if the damage was occasioned by his fault or negligence.
This subject is fully discussed by the Supreme Court in the case of
Constable _v._ National Steamship Co., 154 U. S. 51. The S. S. _Egypt_
arrived at New York from Liverpool at 1.45 P. M. and there being no room
for her at her owner's pier, was taken to the pier of the Inman Company,
where she was unladen, pursuant to a permit issued by the Collector of
Customs whereby the cargo was allowed to remain on the wharf for
forty-eight hours upon agreement by the owners of the ship that the
goods should be at the sole risk of the owners of the ship who would pay
the consignees the value of such cargo as might be stolen, burned or
otherwise lost. Notice of the time and place of discharge was then
posted upon the bulletin board of the Custom House in accordance with
the usual practice, but no notice was sent to the consignee, nor did he
have actual notice or knowledge of the arrival and unloading of the
vessel. On the night of the day of the arrival the goods were burned on
the pier upon which they had been unladen without negligence on the part
of the owners of the _Egypt_. The bill of lading contained this
provision:
The goods to be taken alongside by the consignee immediately the vessel
is ready to discharge, or otherwise they will be landed by the master
and deposited at the expense of the consignee, and at his risk of fire,
loss or injury in the warehouse provided for that purpose or in a
public store as the Collector of the Port of New York shall direct....
The United States Treasury having given permission for goods to remain
forty-eight hours on wharf at New York, any goods so left by consignee
will be at his or their risk of fire, loss or injury.
The Court (Brown, J.) held:
1. That the stipulation in the bill of lading that respondent should
not be liable for a fire, happening after unloading cargo was
reasonable and valid.
2. That the discharge of the cargo at the Inman pier, was not in the
eye of the law a deviation such as to render the carrier and insurer of
the goods so unladen.
3. That if any notice of such unloading was required at all, the
bulletin posted in the Custom House was sufficient under the practice
and usages of the port of New York.
4. That libellants, having taken no steps upon the faith of the cargo
being unladen at respondent's pier, were not prejudiced by the change.
5. That the agreement of the respondent with the Collector of Customs
to pay the consignees the value of the goods was not one of which the
libellants could avail themselves as adding to the obligations of their
contracts with the respondents.
=7. Freight and Demurrage.=--Freight is the price of transportation by
sea and demurrage has been called a kind of extended freight but is more
generally understood as the price of delay in loading or receiving the
cargo on the part of the shipper or consignee. Freight must be earned by
conveyance and delivery of the cargo but the ship is entitled to hold
the goods until payment is made. The contract of affreightment is very
succinctly described by Lord Ellenborough, in Hunter _v._ Prinsep, 10
East 378:
The shipowners undertake that they will carry the goods to the place of
destination, unless prevented by the dangers of the seas, or other
unavoidable casualties; and the freighter undertakes that if the goods
be delivered at the place of their destination he will pay the
stipulated freight; but it was only in that event, viz., of their
delivery at the place of destination, that he, the freighter, engages
to pay anything. If the ship be disabled from completing her voyage,
the shipowner may still entitle himself to the whole freight, by
forwarding the goods by some other means to the place of destination;
but he has no right to any freight if they be not so forwarded; unless
the forwarding them be dispensed with, or unless there be some new
bargain upon this subject. If the shipowner will not forward them, the
freighter is entitled to them without paying anything. One party,
therefore, if he forward them, or be prevented or discharged from doing
so, is entitled to his whole freight; and the other, if there be a
refusal to forward them, is entitled to have them without paying any
freight at all. The general property in the goods is in the freighter;
the shipowner has no right to withhold the possession from him, unless
he has either earned his freight, or is going to earn it. If no freight
be earned and he decline proceeding to earn any, the freighter has a
right to the possession.
Where a ship does not "break ground," that is to say, does not commence
her voyage at all, as in the case of the Tornado, 108 U. S. 342, in
which it appeared that the vessel was destroyed by fire before sailing,
the contract of affreightment is dissolved, or does not become
effective, and the shipper cannot recover freight which she did not even
begin to earn.
The lien for freight is a qualified one and will be lost by an
unconditional delivery. The same is true of demurrage but the personal
liability of the shipper or consignee will, of course, remain. The
amount of freight is usually fixed by agreement and specified in the
bill of lading.
So, also, are clauses in regard to demurrage. Strictly speaking, the
latter can only be recovered where it is expressly reserved in the
contract of carriage, but, where such stipulations have been omitted,
the same result is sometimes obtained by an action for damages in the
nature of demurrage on account of wrongful detention of the ship. The
question of whether the ship has been unreasonably delayed or wrongfully
detained is often a very confused one and its solution depends to a
great extent on the surrounding circumstances. When emergency demands
prevail and ports are crowded, the ship assumes some of the incidental
risks of delay in obtaining and discharging her cargo, and, unless the
contract is plain, can hardly insist upon more than the same treatment
as others in similar situations are obtaining. When disputes arise,
neither party should press his position to the extent of causing further
delay, as by withholding or refusing the goods. Admiralty practice
abounds in opportunities to prevent unnecessary delay by bonds or
stipulations and the parties should take advantage of these or risk the
disfavor of the court in which their litigation proceeds.
=8. Unfair Freight Rates.=--The Merchant Marine Act of June 5, 1920 (see
Appendix), forbids and makes a misdemeanor the allowance of deferred
rebate of freight to any shipper; the use of fighting ships, _i.e._,
vessels used for reducing competition by driving any carrier out of the
trade; retaliation against other shippers by refusal of space
accommodations when the same are available, and the making of any
unjustly discriminatory contract with any shipper based on the volume of
goods offered, or the making of any unjustly discriminatory charge
against any shipper in the matter of accommodations, loading and landing
or settlement of claims. The Shipping Board is authorized to investigate
alleged violations of these provisions and the Secretary of Commerce is
directed to refuse the right of entry to any ship owned or operated by a
carrier whom the Shipping Board has found to be guilty of such
violations.
=9. Passengers.=--The carriage of passengers by water is regulated by
substantially the same rules in regard to fares, tickets, special
contracts and baggage as carriage by land.
The passenger is entitled to a reasonable amount of baggage having
regard to his station in life and the character of the journey. As to
articles which he retains in his personal custody the carrier is not an
insurer but is liable only for negligence; the mere fact of loss creates
no presumption against the carrier (Clark _v._ Burns, 118 Mass. 275).
The carrier is liable for articles stolen from the passenger by its
employees (Minnetonka, 146 Fed. 509) and the conditions and limitations
as to value of baggage usually printed on the tickets are of slight
value in the courts (Majestic, 166 U. S. 375).
=10. Reciprocal Duties.=--The real differences between rules of law
applicable to land and sea travel result from their own peculiar
circumstances. Thus, the relation of passenger and ship necessarily
implies something more than mere ship room and personal existence on
board. For the time being the ship's company and the passengers
constitute a community by themselves and remote from the rest of the
world. There must be a certain amount of mutual toleration and
concession. The situation requires, indeed, not mere toleration but
respectful treatment,--"That decency in demeanor which constitutes the
charm of social life, that attention which mitigates evils without
reluctance, and that promptitude which administers aid to distress."
(Chamberlain _v._ Chandler, 3 Mason 242; Western States, 151 Fed. 929.)
The passengers must be prepared to submit on proper occasions to the
authority of the master, which may, indeed, occasionally become despotic
where the safety of the ship is involved. He may compel passengers to
work at the pumps, for example, in the face of actual danger (1 Parsons'
Shipping and Admiralty, 637) or even to risk their lives if the common
safety requires it (Boyce _v._ Bayliffe, 1 Campbell, 58). Of course this
power must be judiciously exercised and if it is overstepped the law
will afford redress. The old case of Prendergast _v._ Compton, 8 C. & P.
454, is illustrative; the defendant was master of a ship from Madras for
London, in the days when long voyages around the Cape were common. The
plaintiff was a passenger whose table manners were distasteful to the
other members of the master's table; he first attempted to correct them
by mild suggestions and remonstrances, but the plaintiff responded by
threatening to cane the master, who thereupon excluded him from the
cabin and otherwise subjected him to discipline during the voyage. On
arrival in port the plaintiff brought this action and the case affords
an interesting discussion of the subject; the question was finally left
to a jury who concluded that the master had exceeded his authority and
allowed the plaintiff twenty-five pounds as damages.
The maritime law required a high degree of care for the protection of
the passenger from personal injury. A ship must answer for such damages
as might have been avoided by the exercise of unusual diligence and
extraordinary skill. Although not technically an insurer, a presumption
against a ship will be heavy in such cases, and ordinarily damages will
follow unless it can be shown that the injury was entirely due to the
passenger's own fault.[15]
=11. Baggage.=--Passengers' baggage or luggage is in, substantially, the
same class as cargo as far as the liability of the ship is concerned.
Some cases have held that there was an exception of property which the
passenger retained in his own custody but the general rule is that this
only relieves the carrier where the passenger's own negligence
occasioned the loss; in such cases the passenger must show that the
shipowner failed to exercise reasonable and proper care. The matter is
frequently covered by express stipulations in the ticket or contract of
carriage but these will not usually be enforced in the American courts
unless reasonable and plainly agreed to by the passenger. Thus arbitrary
limitations of the value of the baggage of a steamship passenger are
void. Passengers' baggage is not limited to wearing apparel and similar
articles, although the general rule is that it must be confined to such
articles as are reasonably required for the purposes of the journey,
having in mind its general scope and the station and circumstances of
the passenger. It is not permitted to impose extraordinary liabilities
upon the ship by carrying as baggage goods of great value which should
be otherwise shipped. In a recent case recovery was allowed for the loss
of a manuscript of a manual on Greek grammar contained in the
passenger's trunk; he valued it at $5,000; the Court, however, allowed
only $500, on the theory that it was an imposition on the carrier to
place so valuable an original in his baggage when he might have carried
an equally serviceable copy.
=12. Personal Injuries.=--Passenger carriers by water are subject to the
same general liabilities of carriers by land. The highest degree of care
for the safety of the passenger is required of the ship and negligence
is presumed where an injury is sustained on board. It is the duty of the
vessel to protect its passengers from harm by reason of defects in
construction or acts of the ship's company or other passengers. Actions
for damages may be brought against the ship or the owner. An injured
passenger is entitled to at least the same degree of care and attention
that a member of the crew is and may have an additional claim if this is
neglected. The cases exhibit a wide range of injuries on shipboard for
which recoveries have been allowed; thus, where a sailor carelessly fell
from the foretopmast upon a passenger, a libel was sustained; so where a
passenger was thrown from his berth by the pitching of the ship in a
storm, through absence of a protecting board; so for failure to accord
to a passenger respectful treatment by the officers and crew; for
failure properly to protect exposed parts of machinery and openings in
the deck; failure to provide a sufficient supply of wholesome food;
furnishing unsanitary drinking water; and, indeed, for the negligence of
those conveying passengers to and from the ship or on excursion trips on
shore when advertised as a part of the voyage in question. The ship is
required to have a doctor on board for the care of passengers but, when
due care has been exercised in his selection, there is no liability for
his mistakes or negligence in his professional work.
Cases abound illustrative of these principles. For example the old cases
of Behrens _v._ Furnessia, 35 Fed. 798, and the City of Panama, 101
U. S. 453, in both of which passengers were injured by falling down open
hatchways, which were customarily kept closed, and the more modern case
of Dempster Shipping Co. _v._ Pouppirt, 125 Fed. 732, where the
plaintiff while on deck was struck by a beam which was being thrown
overboard. In the two cases first mentioned plaintiffs recovered
damages, it being considered that under the circumstances the ship was
negligent in leaving open and unguarded hatchways which were customarily
kept closed and over which passengers were accustomed to pass. In the
case last cited plaintiff failed to recover because it appeared that he
had voluntarily placed himself in dangerous proximity to boards that
were being swung over the side. The law is quite fully reviewed in these
cases. In the City of Panama, it was said:
Owners of vessels, engaged in carrying passengers, assume obligations
somewhat different from those whose vessels are employed as common
carriers of merchandise. Obligations of the kind in the former case
are, in some few respects, less extensive and more qualified than in
the latter, as the owners of the vessel carrying passengers are not
insurers of the lives of their passengers, nor even of their safety;
but in most other respects the obligations assumed are equally
comprehensive and even more stringent....
Passengers must take the risk incident to the mode of travel which they
select, but those risks in the legal sense are only such as the utmost
care, skill and caution of the carrier, in the preparation and
management of the means of conveyance are unable to avert.
In the case of Shipping Co. _v._ Pouppirt, the court quoted with
approval the following language from Railway Co. _v._ Myers, 80 Fed. 361:
If a passenger of mature age leaves the place which he knows has been
provided for him, and, without any occasion for so doing, or to gratify
his curiosity, goes to another, where the dangers are greater, or
places himself in a dangerous attitude, which he was not intended to
assume, or if he disobeys any reasonable regulation of the carrier, it
should be held that he assumes whatever increased risk of injury is
incurred in so doing.
=13. Loss of Life.=--Until March 30, 1920, the general maritime law did
not give any right to recover for loss of life. On that date an act of
Congress was approved, the text of which follows:
That whenever the death of a person shall be caused by wrongful act,
neglect or default occurring on the high seas beyond a marine league
from the shores of any State, or the District of Columbia, or the
Territories or dependencies of the United States, the personal
representatives of the decedent may maintain a suit for damages in the
district courts of the United States, in admiralty, for the exclusive
benefit of the decedent's wife, husband, parent, child, or dependent
relative against the vessel, person, or corporation which would have
been liable if death had not ensued.
Sec. 2. That the recovery in such suit shall be a fair and just
compensation for the pecuniary loss sustained by the persons for whose
benefit the suit is brought and shall be apportioned among them by the
court in proportion to the loss they may severally have suffered by
reason of the death of the person by whose representative the suit is
brought.
Sec. 3. That such suit shall be begun within two years from the date of
such wrongful act, neglect, or default, unless during that period there
has not been reasonable opportunity for securing jurisdiction of the
vessel, person or corporation sought to be charged; but after the
expiration of such period of two years the right of action hereby given
shall not be deemed to have lapsed until ninety days after a reasonable
opportunity to secure jurisdiction has offered.
Sec. 4. That whenever a right of action is granted by the law of any
foreign State on account of death by wrongful act, neglect, or default,
occurring upon the high seas, such right may be maintained in an
appropriate action in admiralty in the courts of the United States
without abatement in respect to the amount for which recovery is
authorized, any statute of the United States to the contrary
notwithstanding.
Sec. 5. That, if a person die as the result of such wrongful act,
neglect, or default as is mentioned in section 1 during the pendency in
a court of admiralty of the United States of a suit to recover damages
for personal injuries in respect of such act, neglect, or default, the
personal representative of the decedent may be substituted as a party
and the suit may proceed as a suit under this Act for the recovery of
the compensation provided in section 2.
Sec. 6. That in suits under this Act the fact that the decedent has
been guilty of contributory negligence shall not bar recovery, but the
court shall take into consideration the degree of negligence
attributable to the decedent and reduce the recovery accordingly.
Sec. 7. That the provisions of any State statute giving or regulating
rights of action or remedies for death shall not be affected by this
Act. Nor shall this Act apply to the Great Lakes or to any waters
within the territorial limits of any State, or to any navigable waters
in the Panama Canal Zone.
Sec. 8. That this Act shall not affect any pending suit, action, or
proceeding.
It will be observed that this act places loss of life on the high seas
in the same category as personal injuries. The suit is to be brought by
the personal representative of the decedent for the benefit of the
decedent's wife, husband, parent, child or dependent relative. It would
appear that if there are no such persons an action could not be
maintained. This would seem to exclude a right of action where the
decedent leaves only creditors or heirs of more remote degree than those
enumerated. Nearly all the states have statutes providing for recovery
on account of loss of life at sea and these statutes have hitherto been
enforced in the admiralty courts. Section 7 provides that the federal
act shall not affect rights of action or remedies for death provided by
state laws. The act is broad enough in terms to include a right of
action for the death of seamen, but there is another statute covering
such cases (see Chapter V, § 6, _supra_).
The act does not affect the right of the owners of a ship to limit their
liability. Claims for loss of life when properly _payable_ under the act
would apparently be included among claims to be paid out of the limited
liability.
The act does not enlarge the responsibility of the owners. Whether they
are responsible _in personam_, or whether the vessel is solely
responsible _in rem_ depends on the privity or knowledge of the owner,
as discussed in Chapter VIII, § 9 _infra_.
REFERENCES FOR GENERAL READING
_Carriage of Goods by Sea_, T. G. Carver. London, 1909; Stevens and
Sons, Ltd.
_Law of Carriers_, E. P. Wheeler. New York, 1890; Baker, Voorhis & Co.
_Maritime Law_, Albert Saunders. London, 1901; Sweet & Maxwell, Ltd.
Fitzgerald, 212 Fed. 678.
Wildcroft, 201, U. S., 378.
Sumner _v._ Caswell, 20 Fed. 249.
Dan, 40 Fed. 691.
Harlem, 27 Fed. 236.
Hattie P., 63 Fed. 1015.
Manitoba, 104 Fed. 145.
Majestic, 56 Fed. 244.
Normania, 62 Fed. 469.
Kensington, 183 U. S. 263.
[13] See p. 181.
[14] Prior to the advent of steam navigation this was not the rule. A
carrier, in order to discharge his liability, was obliged to deliver the
cargo upon the usual wharf of the vessel, and give actual notice to the
consignee, if he were known.
[15] See § 2, this chapter, _infra_.