Thе facts out of which this proceeding arose and upon which the District Court predicated fault on the part of the vessel and her owner are stated in the opinion of Judge Thaeher, reported under the titlе of The Arabic (D. C.) 34 P.(2d) 559. It is unnecessary to repeat them here. He held that the question of faulty navigation depended upon what the navigators of the Arabic knew, or should have known, of the approach of thе hurricane, because it was admitted by her master that, had he known of it, good seamanship required him to head for deeper water. Upon the evidence adduced, the judge found that, if the wireless operator Marsh had been attentive to his duties, he would have received the warning of the approaching hurricane that was broadcast from the Arlington Station on the evening of August 25th, but that he either failed to receive it оr failed to report it to the ship’s officers. The officers were also criticized for remaining indifferent to the fact that the weather bulletins broadcast from Arlington were not reported to them, and making no effоrt to obtain the information from other stations.
The appellant would have us reverse these findings of fact that the ship was at fault in not having obtained radio bulletins of the approaching hurricane; but the recоrd sustains them. Marsh, the senior wireless operator, was on watch from 8 to 12 on the evening of August 25th and from 8 to 12 on the following morning. It was during his watches that the Arlington bulletins were broadcast. He testified that reception was all right оn the night of the 25th, but very bad on the following morning. While he was positive he had received no weather reports on the 26th, he could not remember whether or not he had
It is furthеr contended by appellant that the passengers cannot recover because their injuries resulted from their own negligence in getting into positions of danger in disregard of warnings given them. See Elder Dempster Shiрping Co. v. Pouppirt,
Mrs. Clayton’s claim: She left her stateroom when water rushed in, causing her and her husband to fear they would “drown like rаts in a trap.” She went into an adjacent room, where she sat upon .a bed, holding onto the foot of it, as the Arabic had taken a serious list to port. When another great wave hit the vessel, her hold was loosеned and she was thrown across the room, sustaining injuries which confined her to a hospital for two weeks after she reached New York. It is said her injuries would have been avoided had she remained in her berth in her own statеroom; but surely there is no contributory negligence or assumption of risk when a frightened passenger under sueh circumstances leaves her cabin in search of greater safety. No orders had been issued requiring pаssengers to remain in their rooms, and the steward’s testimony that he had previously tucked her in her berth and asked her to stay there cannot be taken as a warning not to leave under any circumstances.
Mrs. Schmid’s claim: She was standing in a vestibule on B deck holding onto a rail and looking out at the storm, when a wave crashed through the door and carried her down the stairway. There is no evidence that she had been warned not to stand up or move about inside the ship. She saw many passengers sitting or lying on the floor, but at least one passenger was standing near her. The danger that a wave might crash through a closed door was not so obvious to an inexperienced passenger as to make it negligence to be where she was.
Mrs. Taube’s claim: This claim is not substantially different from that of Mrs. Schmid. She left her room on the E deck to seek a stewardess. Seeing water coming down the stairway, she became frightened and started to go up to the lifeboats on the top deck. As she reached B deck she was knocked down and injured by a wave which crashed through a door. She hаd received no warning to stay in her room.
Miss Borton’s claim: This passenger was injured by a big sea while sitting in her usual deck chair on B deck. There is testimony by numerous officers and employees of the ship that orders had beеn given to passengers to stay inside, but the testimony does not show a very well-organized scheme for keeping the passengers in, although it seems likely the orders reached most of them. Miss Borton and Williams, who was sitting beside
Miss MeCague’s claim: This young woman sustained her injuries by bеing washed under a lifeboat on the after part of the A deck. After luncheon she and her companion, Miss Hurst, had attempted to go to the forward end of the A deck. A deck steward warned them away. They then went аft, and a passenger obtained chairs for them which were placed near the skylight on the starboard side of the after end of the deck. Other passengers were on the deck and in the veranda café. The сlaimant and Miss Hurst testify that they were not warned of danger on the after end of the deck. Several witnesses for the ship testified to giving such warnings. But they could scarcely have been given in such a manner as to bring home to these inexperienced travelers an appreciation of the danger of their position. It seems far more probable that these young women did not have adequate warning than that they consciously disobeyed orders and placed themselves in a position of known danger. First Officer MacDonald, who, among others, testified to warning them, said, “I just simply passed the remark to them that they were looking for trouble if they werе going to stay there.” He did not tarry to see whether they acted upon his advice (it can scarcely be called an order). A master is in supreme command of his ship, and should make plain his orders for the safety оf passengers and see that they are carried out. Although Miss MeCague’s case is more doubtful than that of the others, we find that she too was free from contributory negligence.
Ticket clauses: At the trial appellant offered in evidence the passage tickets of the appellees. Objection was made to their admission as not within the pleadings, and leave was denied to amend. .They were received in evidence “conditionally” with the statement that the court would later rule as to them, but subsequently such ruling was reserved until the commissioner should report upon the legal effect of the ticket clauses. The appellаnt has not argued the validity of the ticket clauses on this appeal nor informed us of the particular clauses upon which it desires to rely. In so far as the ticket clauses are supposed to present a complete defense to the appellant’s liability to the appellees, they should be disposed of on the present appeal; in so far as they are relied upon as limiting the amount of reсovery for injury to baggage, their legal effect (and the failure to plead them) may be considered on the reference on damages. The clause which attempts to secure exemption from liability fоr negligence and the clause which requires notice of suit to be given within three days after landing are invalid within our decision in Oceanic Steam Navigation Co. v. Corcoran (C. C. A.)
With respect to the claims of appellees Borton, Clayton, Schmid, Taube, and Mc-Cague, the decree is modified so as to refer to the commissioner only questions as to the amount of their proximate damages; in all other respeets the decree is affirmed.