What consti

land, apply with equal force to carriers by water. tutes 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."

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.

2 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; 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.

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,1 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; 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.

cannot require him to do what might be safe enough to a practised seaman, but would be very dangerous to a landsman; as, for example, to go out upon a yard-arm and furl a sail in a tempest.

We shall consider in our chapter on salvage when a passenger is entitled to compensation for services rendered the vessel on which he is.

If the exigencies of his position and service confer upon a master of a ship the largest authority, they impose upon him an equal duty. It is not more certain that the safety of all on board is to a great degree dependent upon the skill and care of the master, than that the comfort of the passengers is, in at least an equal degree, dependent upon his conduct. If he be tyrannical, oppressive, rude and indecent in his behavior, he makes them unhappy through the whole voyage which puts them in his power. It was intimated, in a case before Mr. Justice Story, that facts of this kind might be offences against morality, but were such as the law could not punish. But the judgment of the court was, that the law involved no such absurdity; and it was held that "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 demeanor, which constitutes the charm of social life, for that attention which

Here the plaintiff quitted her, and gave £100 for his passage home on board another ship. The only question of law arose as to the plaintiff's right to recover the £100 as a special damage. Lord Ellenborough said it was necessary the special damage should be closely connected with the trespass which was the foundation of the action. That a man may transship himself, and throw the expense of this upon another, the injury must continue down to the moment of his leaving the first ship, and he must then act with a view to the preservation of his life, or at least from a reasonable regard to his own safety. In this case, as the plaintiff had refused to obey orders given him, perhaps his confinement might be necessary to the discipline of the crew and the security of the vessel, and if so would be justifiable in law. However, when it came out that the plaintiff had been kept all night in irons upon the poop, his lordship clearly held that the defendant had exceeded the limits of his authority. He thought decidedly that the defendant was implicated in the false imprisonment, having committed an assault in aid of those who had the plaintiff in their custody. The defendant in this suit was Major Douglas, a passenger on board the Huddart, who, while they were about to put the plaintiff in irons on this occasion, held up the butt end of a musket to him in a menacing manner, and threatened to strike him.

mitigates evils without reluctance, and that promptitude which administers aid to distress. In respect to females it proceeds yet further; it includes an implied stipulation against general obscenity, that immodesty of approach, which borders on lasciviousness, and against that wanton disregard of the feelings which aggravates every evil, and endeavors, by the excitement of terror, and cool malignancy of conduct, to inflict torture upon susceptible minds." 1

A duty rests on the passenger analogous to that which the law imposes on the captain. It is certain that he must not conduct himself so as to weaken the due authority of the master or officers,

1 Chamberlain v. Chandler, 3 Mason, 242. This was a libel in the admiralty brought by the libellants, who were passengers on board the ship Pearl from Woakoo to Boston, against defendant, who was master of the ship, for damage for asserted ill treatment and injuries to them during the passage.

In Nieto v. Clark, 1 Clifford, C. C. 145, it was held that where a steward had attempted a rape on a female passenger in a foreign port, and the injured party refused to remain on board, and demanded the return of her passage-money, unless the offender was dismissed, the master was justified in immediately discharging the seaman; and the law laid down in the preceding case was fully affirmed.

In McGuire v. The Golden Gate, 1 M'All. 104, the judge said: "The proceeding in this case is a libel against the vessel for the breach of contract, arising out of assaults and batteries committed by the master and officers of the ship on two of the passengers. . . . . In this case the testimony ascertains that the illtreatment of the two passengers, the libellants, by the captain and his officers, was inflicted while in the avowed preservation of the discipline and police of the ship. They were acting directly in the employment of the owners. But, acting within its scope, they exceeded its limits, and, in analogy to the case of Sherwood v. Hall, 3 Sumn. 130, where the owner was made liable for the abuse by the master of his authority to enlist, the owners in this case must be made liable for the abuse and excessive use of the authority confided to them. . . . . In the case of The Amiable Nancy, 3 Wheat. 558, a libel was filed to recover damages for a marine

tort.

....

The court say: Upon the facts disclosed in the evidence this must be pronounced a case of gross and wanton outrage, without any just provocation or excuse. And if this were a suit against the original wrong-doers, it might be proper to go yet further, and visit upon them in the shape of exemplary damages the proper punishment which belongs to such lawless misconduct.' . . . . In this case, the libellants were steerage passengers on board the Golden Gate. They are represented to be laboring men without means, and have, therefore, filed their bill in formâ pauperis. . . . . In actions against innocent owners, while the policy of the law holds them liable for actual damages as proved, these cannot be enhanced to admonish the guilty."