62 F. 469 | S.D.N.Y. | 1894
The above libel was filed against the-steamship Normannia in rem, and against the Hamburg-American Packet Company, her owner, in personam. The libel alleges false representations made to the libelant by the company’s agents in London just prior to his embarkation on the Normannia on August 27, 1892, and at the time of the outbreak of cholera at Hamburg; that the libelant, who had previously bought a first-cabin ticket for passage by the Normannia from Southampton to New York, but who desired to surrender it in case she carried steerage passengers, through fear of contagion and quarantine, was induced to take passage on the Normannia at Southampton on August 27th, on the agents’ assurance that no steerage passengers were on board; whereas in fact she had 500 steerage passengers, who had embarked at Hamburg on the 25th; that in consequence of the presence of the steerage passengers, and of the outbreak of cholera among them,.
The libel also alleges various breaches of duty in the performance of the contract of carriage, viz., in receiving steerage passengers on board at Hamburg; in not properly inspecting and purifying them; in not providing sufficient medical attendance; in not properly dealing with those attached with cholera on the voyage; in not taking proper precautions against the apresid of the disease on hoard, and in not properly providing and caring for the condition and treatment of passengers who were not attacked, after the arrival of the ship in blew York.
1. For faults in the execution of the contract of carriage, and the damages accruin'g therefrom, a privilege upon the ship arises by the general maritime law'; and such a privilege is also specially given by the German Code, art. 452, § 2; Id. art. 757, § 9. But none of the alleged breaches of contract are sustained by the evidence, except the bare fact that the Xormannia took steerage passengers; and the circumstances show manifestly that this was neither a breach of the libelant’s contract of carriage, nor a breach of any duty that the Xormannia owed to him. For it had long been the custom of the Xormannia and other fast steamers of the line, to carry steerage passengers, as the libelant knew, or is presumed to have known. The libelant’s contract of carriage had been made in the ordinary course of business, by the purchase of his ticket some' time before the outbreak of cholera at Hamburg. When the ticket was purchased there were no rei>resentations, and no expectation, that steerage passengers would be excluded from the ship. Contracts for the carriage of steerage passengers on the Xormannia had been previously made as usual; they had come to Hamburg accordingly; and their legal right to transportation was precisely the same as that of the libelant. It, was doubtless the duty of the owners, upon the outbreak of cholera, at the port of departure, to take all known precautionary measures for the purification of the ship, and to prevent from embarking all persons, whether of the crew', steerage, or other passengers, who, on examination, might show reasonable probability of infecting the ship. Measures to this end were in fact taken by the owners, and there is no evidence of remissness in this particular.
On arrival at Xew York, the officers of the ship and the agents of the company seem to have been most energetic in their efforts, and liberal in their expenditures, for the health and comfort of the passengers, and the protection of the ship, and her company, against infection. Nearly $37,000 extra expenses were incurred by the company in tliis work.
2. The principal ground of the libel, however, is the charge of falsely representing that there were no steerage passengers on board the Normannia, whereby the libelant was induced to take passage on that ship, to his alleged injury and damage, as above stated. The libelant had, no doubt, a right to decline to take passage on the Xormannia, and to forfeit his passage money, if he
. 3. It is urged that the alleged false representations, being no part of the contract of carriage, but subsequent to it, and made on land, are not the subject of an action in admiralty, because not maritime. I cannot sustain this objection; for the reason, that the alleged representations were not independent of the maritime contract of carriage, but were made with evident reference to it, and made for the purpose of inducing the libelant to carry out that contract; and for the reason also that the damages which are alleged to have arisen from the false representations, arose upon the sea, in the course of maritime transportation. Though the origin of the tort, i. e., the false representations, began upon land, its consummation, effect, and damage, arose upon the water; and this locus of the damage is. sufficient to give the admiralty jurisdiction. The Plymouth, 3 Wall. 20; Leonard v. Decker, 22 Fed. 741, and cases there cited.
It may be doubtful, considering the decision of Mr. Justice Nelson in the case of The Eli Whitney, 1 Blatchf. 360, Fed. Cas. No. 4,345 (see, also, The Baracoa, 44 Fed. 102; The Electron, 48 Fed. 689), whether such false representations would sustain an action in rem; but this is now immaterial, since the owner being sued in personam has appeared in the action, and on the attachment of the vessel, has procured her release on stipulation; so that the cause is now before the court as a suit in personam, for an alleged maritime tort; and as such it is maintainable if the averments of the libel as to the wrong, and as to the damage, are sustained by the evidence.
The steamship arrived in this port on the 3d of September. Up to that time but five deaths had occurred on the ship from cholera, viz., one, a second cabin passenger, 57 years of age, and four children
On account of these various cases of cholera, and because the vessel came from an infected port, she was detained at quarantine, by the order of Dr. Jenkins, the health officer. On Sunday, September 4fh. the day after arrival, all the steerage passengers were removed 1o Swinboum Island. Their quarters on the ship were at once disinfected. Provision was made for removing the crew in two squads as fast as possible, and for disinfecting the forecastle. Ho case of cholera having appeared among the first-cabin passengers, and only one among the second-cabin passengers; and no quarantine accommodations on shore being ready for so large a number of first and second cabin passengers (about 500), these passengers remained on board the Normannia until September 10(h, when they were transferred to the steamer Stonington, in the expectation of greater security from contagion; but the conveniences on the Stonington being inadequate, the passengers were the next day again transferred to the Cepheus. for the purpose of being taken to Fire Island, a temporary quarantine station hastily procured, some 30 miles distant from Sandy Hook. The Cepheus upon her first trip thither vas unable to effect a landing there, owing to the darkness and heavy weather, and the passengers were returned the same night to the Stonington. The next day another attempt was made by the Cepheus to land the passengers at Fire Island; but so great was the prevailing excitement, that they were met by an angry and threatening mob, who prevented their landing until the following day, the 13 th September, after which the passengers were comfortably provided for until the 16th, when they were again brought to this port and discharged from quarantine, after an entire detention of 13 days.
The condition of the passengers while upon the Cepheus was wretched in the extreme. The libelant claims that through the mental and physical suffering arising from the deten (.ion in quarantine, and from the apprehension and excitement caused by the exposure of the passengers to cholera while upon the Normannia, and Ids sufferings on the Stonington and the Gepheus, he was rendered ill, and was incapacitated from Ms usual employment for a month. He claims damages for this actual loss of time, and such additional damage's for the deceit, and the mental suffering, as may be properly awarded.
The evidence shows that the libelant was traveling in company with Mr. Reid and Mr. Hawley, and that they had purchased tickets for their passage upon the Normannia some time previous. On
(A) “Smith, Sundius & Co.: Nigger stagnant [Normannia 27 August, the following axe the numbers vacant]: Gents berths 1, 21, 3 in 4 persons room G2 marks 400 one 85 second class full; instruct Beebe calling and other inquirants that refund of passage does not take place measures to secure sanitary safety of cabin passengers rigorously taken no steeragers allowed by our line fast steamers only plying Southampton and New York Nigger [Normannia takes] no passengers [to] Southampton.”
The libelant and his friends relying upon the letter sent to them by Mr. Berting as an assurance that there were no steerage passengers on the Normannia, took the steamboat train at 9 o’clock the following morning from London to Southampton, went thence by steam tender some seven or eight miles to the Normannia, and arrived on board at about 1 o’clock p. m.; they did not learn that any steerage passengers were on board until some 15 to 20 minutes after the tender had returned.
For the libelant it is contended that the company’s telegram above quoted, and the agent’s letter based upon it, were not merely untrue, but that they were intentionally misleading and fraudulent, so as to subject the defendant company to punitive damages. As bearing upon that issue, other testimony has been received of an
4. From a careful collation of all the testimony, I am satisfied that in sending the above telegram to the London office, there was no intention on the part of the company at Hamburg, or any of its officers or servants in the Hamburg office, to deceive, or to mislead, either their London agents, or any passengers who might malte inquiries of them in regard to steerage passengers on the Normannia, or desire a refund of passage money. The telegram, it must be borne in mind, was not sent in answer to any previous inquiry made by the Loudon agents; for when it was sent no such inquiry from them had been received. It was sent at about half past 11 a. m. on the 26th; and the Normannia had already left Cuxhaven the day before, with 500 steerage passengers on board. A few hours after-wards, viz., at 3 p. m. of the 2(5th, in answer to the following inquiry from the Southampton office of Smith, Sundius & Co.:
(B) ‘Will the Normannia have steeragers aboard?” the company’s reply was immediately sent as follows:
(O) “Normannia has steeragers aboard, but has bill of health.”
This was received at the Southampton office on Friday afternoon at about half past 5' o’clock.
The only telegram sent by the London agents at all on this subject, was one sent from the Leadenhall street office at about half past 11 on the 26th, by the superintendent, Sisley, which was received at the Hamburg office at 2 minutes past 2, and was as follows:
(D) “Nigger [Normannia] Jir. fisher cabin 8, attorney World’s Fair, having important business in New York fearing detention quarantine, asks if you will exceptionally refund passage, or how much enable him to proceed Umbria to-morrow; if you wire that uo steerage on board and no fear from crew, still hope to induce him to proceed Normannia. Sundius.”
—To which the company at once sent the following answer, received at London at 5:25 p. m.:
(E) “You may refund Fisher passage amount in ease you can sell cabin 8; otherwise forfeited.”
This telegram (E), considering the language of the inquiry (D), and the known habit of the Normannia to carry steerage passengers,
On the 25th, when the threatening character of the cholera epidemic first became known in Hamburg, the directors of the steamship line held a meeting there, and resolved to take no more steerage passengers for the present, but to run their fast steamers between New York and Southampton only. This had reference, however, to the vessels sailing after the Normannia, beginning with the Columbia ; for at that very time the Normannia’s 500 steerage passengers were already embarking, to be taken 30 miles below to Cuxhaven, where the Normannia then lay; and on the same day the Normannia dropped 30 miles still further down the river with her steerage passengers on board. After the meeting of the directors on the 25th, this resolution was telegraphed on the same day to the Associated Press in London for publication, stating that this service would commence with the Columbia; and a letter fully explaining this was on the same day written and forwarded to Smith, Sundius & Co., both at Southampton and at London. This letter would not be received in London, however, until the 27th. The Nor-mannia sailed on the following day, the 26th, at about noon, from her last port, 60 miles below Hamburg; the last railroad train to reach the steamer left Hamburg at about 7 a. m.
At about 11 o’clock of the 26th, Mr. Eincke, who kept the account of the passengers’ rooms, was preparing a telegram to the London office to state what rooms or berths remained undisposed of. This was in the usual course of business. While doing so, he was directed by Mr. Steinz, the office manager, to answer Beebe’s inquiry, and also to state the substance of the directors’ resolution, and of the letter sent the day before with reference to the future business of the company. Mr. Fincke thereupon incorporated in the telegram (A) the part following the statement of rooms unsold, and closed with a second reference to the Normannia (Nigger), stating that she would take no passengers from Hamburg to Southampton. The beginning and the end of the telegram referred to the Normannia; the middle portion was intended to relate only to the future business of the company, and to inform their agents of the results of the directors’ meeting in reférence to it. The telegram was not ad
5. The case of the London agents in that regard seems to me to be quite different. The evidence leaves no doubt that in answer to the repeated and urgent inquiries of the libelant, and of various other persons, the London agents undertook to procure the information desired. Mr. Berting on three successive days, at the Oock-spur street office, promised to cable to the Hamburg office for information; but notwithstanding these repeated promises, no inquiry was ever made by him, or by Ms principal, Mr. Sisley, of the Leaden-hall street office, whether the Normannia would carry steerage passengers or not; nor was any inquiry whatsoever made in the libel-ant's behalf. The only telegram sent by them was the special telegram (D, supra) sent by Mr. Sisley so late as 11:25 a. m. of Friday, the 26th, on Mr. Fisher’s account; an inquiry which Mr. Fisher succeeded in getting forwarded only after persistent efforts, which could not be frustrated by the employes with whom he first came in contact. From the language of this telegram (D), as well as from Mr. Berting’s own testimony, it is clear that up to about 2 p. m. of Friday the London agents assumed and expected that the Normannia would carry steerage passengers as usual. They had no reason to expect otherwise. They knew from the usual course of business that a large number of steerage passengers must have been booked for the Normannia., and already arrived in Hamburg before the outbreak of cholera, and would embark by the 25th; and in the absence, of information, there was no reason to suppose that any change in the company’s arrangements could be made to exclude them from the Normannia. That, the agents expected no such change, is further shown by the telegrams exchanged between themselves. About noon of Friday, the 26th, the Southampton office telegraphed to the London office as follows:
*478 (F) “Have you received' instructions from the company if any one wants refund Normannia.'1
—To which, at 12:15 Mr. Sisley replied:
(G) “Have no instructions about refund, but have contented ourselves by saying if company considers safe send steamer,-must be safe for passengers; however, expect reply from company shortly to special application we made for refund.”
Not long after, at about 2 p. m., telegram. (A) was received by Mr. Sisley, who sent it by telephone to Mr. Berting, as above stated. So far as relates to passengers or refund, this telegram was an accidental one; for it was not sent in answer to any inquiry by the agents. They were bound, therefore, to observe carefully all its language. On its face, if it did not show conclusively that ‘the passage about steeragers could not refer to the Normannia, yet it did show at least such doubt and ambiguity that the agents were hot justified in making use of the telegram as a positive assurance that the Nor-mannia had no steerage passengers.
Mr. Sisley and Mr. Berting, however, both testify that they understood this telegram to mean that the Normannia had no steerage passengers. But their conduct before and after does not suffer me to accept this explanation. During the three days previous, during which these numerous inquiries were made, they did not expect, and had no reason to expect, that the Normannia would omit steerage passengers; yet they did not state their reasonable knowledge and expectation in that regard. They made many promises daily to inquire by telegraphing to Hamburg whether the Normannia would take steerage passengers, yet never made any such inquiry; and when, in sending the Fisher telegram, a special opportunity for such an inquiry arose, it is plain that Mr. Sisley purposely avoided making this inquiry. When the accidental telegram (A) was received, though its terms were plainly so dubious as to put him on his guard, Mr. Sisley at once made use of it to assure Mr. Fisher, who happened to call at about the time it was received, - that there were positively no steerage passengers on the Normannia. He knew, and he.told Mr. Fisher, that it was not an answer to his telegram; and he promised Mr. Fisher to send him the answer which was expected to be received later in the day. At half past 5 the answer was received at Mr. Sisley’s office, which, by necessary implication, showed that steerage passengers were on board; yet this answer was never sent to Mr. Fisher, nor to the Oockspur street office. Mr. Berting, instead of sending to the libelant, at his hotel, an answer in his own words, sent a copy of a payt of the telegram (A) without the means of explanation he himself possessed, and without any suggestion of the doubts his own testimony satisfies me he had.
On the following morning, as Mr. Taylor and Senator McPherson testify, they were assured, on inquiry at the Southampton office, that no steerage passengers were on board, though express information to the contrary had been received at that office the afternoon before; and during the passage upon the tender from Southampton to the steamer, one of the London agents, or their representative, was on board, who must by that time have been perfectly informed
I am constrained to find, therefore, that the London agents did not deal frankly or honestly in regard to the inquiries made of them; that trusting if the company thought it safe to send out the steamer, it would be safe for them to send oil the London passengers, they suppressed their own reasonable knowledge and expectation, and put off and deluded the libelant and other inquirers with false promises, which they did not fulfill, and did not intend to fulfill; that the accidental telegram (A) received by the agents from the company did not warrant the assurances which they based upon it, as the agents had sufficient reason to know; and that afterwards when the facts became sufficiently known to the ageni.s both at .London and Southampton, the facts were not communicated as they had promised, and had opportunity to do, and as good faith required, but were intentionally suppressed. These findings would be sufficient to sustain an action for false representations against the agents personally; it is sufficient as against the company also, if the company is liable for the misconduct of its agents in such a matter.
tí. It is urged, however, that the defendant company is not liable for any such misconduct of then- English agents, because it arose;, as it is said, while; (lie; agents we;re acting wholly outside1 of the scope of their (employment; and that whatever the agents did, or undertook to do, for the* libelant, was either a mere; matter of courtesy, or else was done as agents of the libelant, and not of the respondents.
I cannot sustain this view. The agents of the1- company in London were; the ordinary channel of communication in reference to a great variety of matters pertaining to the1 transportation of passengers, which were evidently reasonably necessary in the successful prosecution of the; company’s business. The evidence1 shows that changes in passage's, after tickets had been obtained and paid for, were frequently made through correspondence between the agents and the company. Such correspondence was apparently a part of the agents’ ordinary duties. Applications of this kind were frequent. The company dealt willi the public in that way; and the public relied on the agents as the representatives of the company, as the latter well knew; and their telegram (A) to the London agents on its face furnishes evidence that the company recognized this usage, and the; duty of their agents to give information to passengers; since the telegram directed them to -'instruct Beebe;, and other inquir-ants,” on these subjects.
T find, therefore, that the1 agents in undertaking to procure the desired information and to report to the libelant and others making inquiries, were acting within the scope of their employment by the defendant company; and that their misconduct charges the principals with the actual damages caused thereby (Story, Ag. [9th Ed.]
7. It is contended, however, that the libelant suffered no damage from the misrepresentations, inasmuch as the detention of the steamer would have been precisely the same had no steerage passengers been on board. The evidence, I think, sustains the latter fact. The testimony of Dr. Jenkins, and the record of the arrival of other vessels, show that all vessels coming from infected ports, even though no cholera was on board, were detained in quarantine, usually about a week, and sufficiently to satisfy the health officer that there was no danger of contagion; and that in cases where cholera had broken out during the voyage, the vessel was held for a longer time until the period for any probable further development of cholera was passed.
Upon the Normannia, besides the cases of choiera among children in the steerage, there were, as above stated, two cases among-the crew, and one in the second cabin during the voyage; and on the day after arrival two additional cases appeared among the crew. Upon the evidence, I must find, therefore, that the detention of the Normannia’s passengers would have been the same, had no steerage passengers been on board. The presence of the steerage passengers, it is therefore urged, made no difference to the libelant. He was willing, it may be said, to take the chances of detention through the sailing of the vessel from an infected port, and of any additional detention that might come from the outbreak of cholera among the crew, or the second cabin passengers; and these chances having turned against him, he suffered no more detention than the risks that he was willing to assume actually produced; and that, therefore, no damage arose from the misrepresentations about the steerage.
The libelant, on the contrary, urges that he had a right to determine what risks he would take, and what not; and that but for the deception, and the suppression of the truth he would not have been on board; and that his embarkment was induced solely by the misrepresentations which led him into the detention he had meant to escape.
I do not think the mere circumstance that he would “not have been on board” but for the false representations, would be sufficient to make the defendant liable for whatsoever might happen to the libelant’s injury while on the ship on which the representations had induced him to embark, if the injury was not proximately related to, and did hot naturally grow out of, the subject-matter of the mis-' representations. Had the libelant, in this instance, suffered no detention through cholera, or quarantine, but had been injured through a collision with another ship, or by some accident on the Uormannia itself, in no way connected with the presence of steerage passengers, it surely would not have been claimed that the defendant, if not otherwise in fault, would have been responsible to the libelant for such damages, merely because steerage passengers wore
To recover damages for a tort, they must be proxinmfely, and naturally, connected with, and flow from it; they must be such as might be within the contemplation of (lie parties as a natural consequence of the wrongful act. as distinguished from a merely accidental result. Smith v. Bolles, 132 U. S. 125, 130, 10 Sup. Ct. 39; Railroad Co. v. Reeves, 10 Wall. 176. The subject-matter of the inquiry, and of the deceit, in this case, was the presence or absence of steerage passengers on the Vormaunia as related to cholera contagion and consequent detention of ihe vessel in quarantine. If no cases of cholera had appeared among the steerage passengers, and the detention of the vessel had arisen solely from the other conditions and circumstances proved, I think this libel must have been dismissed; for the reason that though the deceit was established, no damage would be shown to have resulted from it.
But in this case, cholera did appear among the steerage passengers: it appeared among them first, and chiefly. If the ship might have been detained for the .same period bad no steerage passengers been aboard, it is equally 1 rue that the detention would have been just the same had there been no cholera except in the steerage. Cholera in the steerage was at least as much a cause of the detention, as cholera in the second cabin and among the crew. The detention was, in fact, due to both alike. The damage in this case, therefore, did happen in part directly from the subject-matter of the deceit, and not wholly from an independent cause, such as a cyclone, or a, collision; and as the presence of steerage passengers, and of cholera among them, was certainly a contribuí ing cause of the damage, that is sufficient to make the defendant liable.
Although the detention of the vessel, moreover, might have been the same bad no steerage passengers been on board, still there is no doubt, I think, (hat the alarm and excitement produced both on the ship, and on shore, when ihe facts became known, were mainly due to the cholera among the steerage passengers. The facts concerning cholera on the ship were carefully suppressed dining the voyage. It was not until arrival, and upon the receipt of the ISTew York newspapers, that the passengers discovered, as one of the witnesses (.Senator McPherson) states, that “they had a perfect Vesuvius of cholera on board.” Beyond the single case in the second cabin, bad there been no cholera except the few cases among the crew, the alarm among the passengers, as well as the general excitement and apprehension would have been much less. 1 cannot, therefore, acquit the respondents on the ground that the presence of steerage passengers made no difference to the libelant, and was not one of the proximate causes of the damage.
8. The same rule that limits damages to the natural and proximate results of the wrong, requires the exclusion of a considerable part of the libelant’s claim. Aside from some indisposition during the two
As the vessel was from an infected port, however, she would have been detained a week in any event, though she had had no cholera, and though no steerage passengers had been on board. The first week’s detention must, therefore, be deducted as independent of the misrepresentations. The distressing incidents, moreover, so graphically described by the witnesses, which arose after the removal of the passengers from the Yormannia on September 10th in the expectation of improving their condition, cannot be charged against the Yormannia; (1) because the removal of the passengers was not the Yormannia’s act, and (2) because the incidents which followed were not produced by the steerage passengers, nor were they the1 natural results of the removal, nor such as might have been expected to flow from it; but they arose from wholly independent and fortuitous causes, not to be anticipated. I must, therefore, exclude those painful incidents, and the mental suffering that attended them, as direct subjects of compensation, and also their effects in contributing to the libelant’s subsequent disability for work. How much of the subsequent two weeks’ disability should be ascribed to causes occurring before the removal from the Yormannia, and how much from what occurred afterwards, is mostly a matter of surmise; the testimony of the libelant seems to lay chief stress upon the latter cause.
Excluding, therefore, such elements of damage as are not properly attributable to the presence of steerage passengers, I think $500 will be a proper compensation for the libelant’s loss of time, and for his suffering, so far as legally récognizable. Prom this sum is to be further deducted the price of a return ticket, say $100, which would have been lost if the libelant had not returned upon the Yormannia; since he evidently would have had no legal claim upon the company for its return. There remains $400, for which a decree may be entered in favor of the libelant, with costs.