course be governed by its terms, but the usage of particular trades and voyages may often influence their interpretation. Where the contract is not express, it may be evidenced by such usage. A few miscellaneous cases on this subject may properly be noticed here (g). In the case of Corbin v. Leader (h), the defendant, the master of an East Indiaman about to sail from Calcutta, on a voyage to London, by an agreement under seal, granted and let to the plaintiff the whole of the cabins and accommodations fitted up for the reception, convenience, and conveyance of passengers on board the ship; and the defendant covenanted to promote as far as in him lay the comfort and convenience of the plaintiff, and such persons as he should engage and contract with, and who should be received as passengers in and on board the said ship; in consideration whereof the plaintiff covenanted with the defendant, among other things, to pay the defendant the sum therein agreed on; and that he would in every respect support and uphold the authority and command of the defendant, and in no way interfere with the management or navigation of the ship, or with the affairs thereof. The plaintiff further covenanted, that if, in the progress of the voyage, it should be necessary for the convenience and at the request of the plaintiff to touch or put into any other intermediate port or ports, save and except St. Helena, he would bear and pay all port and other necessary charges which might be incurred thereby. The court held that this stipulation as to the payment of the charges of touching at an intermediate port, thus interwoven with the covenant of the defendant, clearly showed that stopping in the course of the voyage was a thing contemplated by the parties as conducive to the convenience of the passengers, and that the defendant was bound so to stop at the request of the plaintiff, unless it would have interfered with the safety of the vessel. In an action of assumpsit by the master of an East Indiaman, against a lieutenant in the company's service, who had been his passenger on a voyage from Madras to London, it appeared that, by an order of the Court of Directors, officers of that rank were to pay 1,000 rupees, and no more, for "their passage and accommodation at the captain's table," and this sum was paid into court. For the plaintiff, it was contended that the defendant, for the regulation price, was only entitled to swing his cot in the steerage, and that he had been allowed a cabin to himself, for which the additional payment was required. Evidence having been given that during the voyage no officers slept in the steerage, and that the defendant's cabin would have remained empty had he not occupied it, Lord Ellenborough was of opinion that there was nothing to raise an implied promise to pay more than the regular sum (i). (9) See, upon the question how far parol evidence of usage is admissible for the purpose of annexing incidents to or explaining the meaning of written contracts, the judgment of the Court of Exchequer, delivered by Mr. Baron Parke, in the case of Hutton (i) Adderley v. Cookson, 2 Campb. 15. The case of Gillan v. Simpkin was an action for money had and received, to recover passage money paid to the defendant, as master of a ship, in which he had agreed to carry the plaintiff as a passenger to Antigua. The plaintiff, who had paid the money before the commencement of the voyage, had intended to have gone on board at Portsmouth, but the luggage was shipped in the river Thames, and in proceeding round from thence to Portsmouth the ship was lost. It appeared in evidence that it is usual for the passage money to be paid in London, and that the stores for the use of the passengers were always put on board in the river. Chief Justice Gibbs, in his direction to the jury, said, "If the money had been to be paid at the end of the voyage, the defendant could not have recovered any part of it, there being an entire contract to carry the plaintiff from London to Antigua; but if the voyage was commenced, and the ship was prevented from completing it by the perils of navigation, the captain may be entitled to retain the passage money previously paid to him. The contract for this purpose may either be express, or evidenced by established usage. Here it is proved that in West India voyages the passage money is paid before the voyage commences, and it does not appear to be returned, although the voyage is defeated; on the other hand, if the ship were lost before the commencement of the voyage for which the parties had contracted, the money paid by anticipation must be returned" (j). The master of a vessel sought to recover damages from the defendant for the breach of a verbal agreement, by which he engaged two cabins on a voyage from England to Madras for a certain price. He refused to go, because the vessel, which was to have left the docks by the 10th of October, did not do so. It was proved to be the rule of the East India trade, that when a passenger refused to go, in consequence of a delay in the sailing of a vessel, he was to forfeit half the amount of the passage money agreed for. The ship did not leave the docks until the 21st of October. Chief Justice Tindal directed the jury to find for the plaintiff, with half the passage money as damages, if they thought that the time of sailing was matter of representation, but not an essential part of the contract, and that, under the circumstances, the ship had sailed within a reasonable time (k). Where emigration agents and owners of ships sailing to Australia, in answer to an application respecting a passage, sent a circular to the plaintiff, which stated that certain ships would be despatched on appointed days (wind and weather permitting), for which written guarantees would be given; and the plaintiff engaged a berth on board the Asiatic, which was named to sail from London on the 15th of August, and from Plymouth on the 25th, and paid a deposit, but no written guarantee was given; it was held, that the statement in the circular was not a mere representation, but a warranty that the Asiatic would sail on the days appointed, and that as she did not (j) 4 Campb. 241; and see Leman v. (k) Yates v. Duff, 5 Car. & P. 369. Gordon, 8 Car. & P. 392. sail until ten days after, the plaintiff was justified in taking a passage on board another vessel, and entitled to recover from the defendants the amount of the deposit, and the expenses he had been put to, by the delay (1). In an earlier case, in which the plaintiff sought to recover passage money on an implied assumpsit pro rata itineris peracti, it appeared that he had contracted to carry the defendant, his family, and luggage from Demerara to Flushing; and that in the course of the voyage, and within four days' sail of Flushing, the ship was captured by an English ship of war, and brought to England. The ship and cargo were libelled in the Court of Admiralty, and proceedings were pending against the ship, but the defendant and his family were liberated, and his luggage restored to his possession. The court was of opinion, that if the ship had been restored, the action might have been maintained, but that as the result of the proceedings in the Court of Admiralty might be the condemnation of the ship, and decree of her freight to the captors, it was premature while that suit was pending (m). The executors of an East India captain, who had died in the East Indies before the commencement of the homeward voyage, brought an action against the chief mate of his ship, on whom the command had devolved, to recover the amount of the sum he had received from the passengers brought home in the ship, for their passage and entertainment during the voyage. It was contended for the plaintiff, that the passage money must belong to the representatives of the captain; for the defendant, that he was entitled to the whole, because he had the actual command during the voyage. "If," said Mr. Justice Bayley, "there be no usage on the subject, I think the law is, that where the captain has contracted to carry passengers, and dies, his representatives are entitled to the benefit of the contract, and may maintain an action for the passage money. If the mate lays out money in purchasing stores for such passengers, he is the agent of the representatives for that purpose, and may oblige them to repay him. But where, after the death of the captain, the mate contracts to carry passengers on the homeward voyage, he is himself entitled to the benefit of the contract, and may retain the whole of the passage money. If for the entertainment of such passengers he has any part of the stores laid in by the captain, for so much he must account to the captain's representatives" (n). In an action against a captain of a ship for not furnishing good and fresh provisions to a passenger on a voyage, Lord Denman said, in his address to the jury, "I think the result of the evidence is, that the captain did not supply so large a quantity of good and fresh provisions as is usual under such circumstances. But there is no real ground of complaint, no right of action, unless the plaintiff has really been a sufferer; for it is not because a man does not get so good a dinner as he might have had, that he is therefore to have a right of action against the captain who does not provide all that he ought; you must be satisfied that there was a real grievance sustained by the plaintiff" ("). (1) Cranston v. Marshall, 5 Exch. 3.)5, E. & W. L. D. 1851, p. 793. (m) Mulloy v. Backer, 5 East, 316. (n) Siordet v. Brodie, 3 Campb. 253. (0) Young v. Fewson, 8 Car. & P. 55. An action was brought by a captain in the army against a captain of the ship Bolton, to recover damages for the breach of a contract, by which he undertook to convey the plaintiff as a cuddy passenger on a voyage from Madras to London. The plaintiff complained, among other things, that the defendant did not treat him as a cuddy passenger, but excluded him from the cuddy, and from walking on the weather side of the ship. The defence was, that the conduct of the plaintiff was vulgar, offensive, indecorous, and unbecoming, and that he had threatened to cane the defendant. Upon these grounds of defence, Chief Justice Tindal observed, "There is some evidence that the plaintiff was in the habit of reaching across other passengers, and of taking potatoes and broiled bones with his fingers. It would be difficult to say, if it rested here, in what degree want of polish would, in point of law, warrant a captain in excluding a passenger from the cuddy-conduct unbecoming a gentleman, in the strict sense of the word, might justify him, but in this case there is no imputation of the want of gentlemanly principle. With respect to the threat used by the plaintiff, that he would cane the defendant,' it is important to consider whether it was heard by the defendant before he gave the order for the exclusion of the plaintiff from the cuddy. If it did operate on the mind of the defendant at the time of the exclusion, I cannot conceive that such conduct would not justify that exclusion. A man who has threatened the commanding officer of a ship with personal violence would not be a fit person to remain at the table at which he presided" (p). It has been decided that the master of a ship has a lien on the luggage of a passenger for his passage money, but not on the clothes which he is wearing when about to leave the vessel (9). The following condition in a passage ticket, "the ship shall not be accountable for luggage, goods, or other description of property, unless bills of lading have been signed therefor," has been held to protect the owners of a ship from liability for the loss of a passenger's luggage, although the ship was lost with it on board through the neglect of the master (r). 3. Passenger Acts. Breaches of contract and injuries like to those complained of, in the cases which have been cited, the common law of personal actions was found adequate to repress. Experience, however, proved that the ignorance and the credulity of indigent persons requiring cheap modes of conveyance, and seeking new fortunes beyond the seas, often placed them at the mercy of men who, familiar with the dangers of navigation, were willing to brave all risks in the prospect of gain, and the legislature has, by various statutes applicable to different trades and voyages, interposed to protect unwary emigrants from the fraud and cupidity of unprincipled shipowners. Security for the sea-worthiness of the ship-a due proportion between her (p) Prendergast v. Compton, 8 Car. & P. 454. The report sets out in a special plea the acts of misbehaviour imputed to the plaintiff. (q) Woolf v. Summers, 2 Campb. 631. (r) Wilton v. The Atlantic Royal Mail Company, 10 C. B. (N. S.) 453. tonnage and the number of her passengers-the preservation of their health during the voyage-and an adequate supply of water and provisions for their use, were the principal objects to be attained, and these it was not found easy to reconcile, with a just consideration for the important interests which it had become necessary to regulate, and the small ability of those for whom protection was required. It has been proved, unhappily, by the continued recurrence of disasters (r), appalling to humanity, and too surely traced to evils which legislation might remove, that if much good has been effected by the enactments which we are about to consider, much yet remains to be done. In the reign of Geo. 3, an Act (s) was passed, which, after reciting that in various parts of the United Kingdom several persons had been seduced to leave their native country under false representations, and had suffered great hardships on shipboard for want of water and provisions, and other necessaries, and of proper accommodation on their passage, proceeded to establish general regulations for the carriage of passengers to foreign parts. Other provisions were made in the same reign for regulating the carriage of passengers to and from the United Kingdom to Newfoundland and the coast of Labrador (t), the United States (u), and the British colonies in North America (x); and these enactments may be considered the groundwork of subsequent legislation on this subject. All these statutes were repealed by the 4 Geo. 4, c. 84, "for regulating the carriage of passengers from the United Kingdom to foreign parts;" and this Act having also, about two years afterwards, been repealed by the Act for the consolidation and amendment of the laws relating to the customs, the 6 Geo. 4, c. 116, "for regulating vessels carrying passengers to foreign parts," was passed. By the 9 Geo. 4, c. 21, further provisions were introduced to regulate the carriage of passengers from the United Kingdom to the continent and islands of North America; which Act was repealed by the 5 & 6 Will. 4, c. 55, "for regulating the carriage of passengers from the United Kingdom." The last-mentioned Act was repealed by the 5 & 6 Vict. c. 107, which, as well as the 8 & 9 Vict. c. 14, the 10 & 11 Vict. c. 103, the 11 & 12 Vict. c. 6, the 12 & 13 Vict. c. 33, the 14 Vict. c. 1, and the 15 & 16 Vict. c. 44, have been superseded by the Passengers Act, 1855, 18 & 19 Vict. c. 119; which, with a reservation of the provisions of 16 & 17 Vict. c. 84, relating to the passage of natives of Asia or Africa, and passages between the (r) During 1834, no fewer than seventeen ships, with passengers on board, bound for Quebec, were wrecked on the passage, seven hundred and thirty-one emigrants losing their lives in consequence, while many more lost most part of their property, and were reduced to the greatest distress. Emigrants to Quebec are mostly taken out in ships engaged in the timber trade; and it is well known that, speaking generally, these are a very inferior class, it being the usual practice to turn worn-out ships, unfit to (t) 53 Geo. 3, c. 36; 56 Geo. 3, c. 83. |