The European

120 F. 776 | 5th Cir. | 1903

PARDEE, Circuit Judge

(after stating the facts as above); After a careful examination and full consideration of the evidence, we agree with the learned district judge in holding that the libelants, citizens of the United States, by shipping as horsemen on an English vessel, subjected themselves to the English law, and that for and during the time of the shipment they were'to be considered and treated as British subjects. But we are unable to apply this further than for the shipment which was a voyage from the port of New Orleans to South Africa. As we view the case, the voyage ended in South Africa, and the passage home which was contracted for was a part of the compensation. The voyage ended, the libelants were free; and, while they were brought home under contract, they were brought not as enlisted men, shipped seamen, but as passengers. This is a fair construction of the shipping articles, and a proper view to be taken under the circumstances.

We are also of opinion that the libelants on their return home were not only passengers, but were passengers within the meaning of and entitled to the protection of the act of Congress to regulate the carriage of passengers by sea, approved August 2, 1882, 22 Stat. 186 [U. S. Comp. St. 1901, p. 2931], which was enacted for the purpose of protecting emigrant passengers and all passengers other than cabin passengers taken on board at any port or place of a foreign country to be brought to any port or place in the United States.

We agree with the District Court in the finding that under the circumstances and the special arrangements shown to have been made under which the libelants were taken on board the European they were not entitled to complain of the quarters and accommodations furnished, because the evidence clearly shows that the same quarters and accommodations, to all intents and purposes, were furnished the libelants that were furnished the horsemen regularly on board the steamer European; in fact, the evidence shows that the quarters were the best that could have been furnished under the circumstances, and were all that the master agreed to furnish prior to their going on board; and we find that from the actual quarters furnished the libelants on board the European suffered very little, if any, hardship or damage.

The finding of the District Court that bad and improper food was furnished is sustained by the weight of the evidence, so that practically the only question arising on this appeal is whether the libelants recovered sufficient in the lower court to pay the damage or damages resulting from bad and improper food furnished on the voyage. The judge a quo, in fixing these damages, considered that, if the cause of action had arisen on the outward trip, the matter would have been covered by the English law, which, in the absence of special damages, allows seamen one shilling per day for bad food; and he says that, while this provision of the English law was not operative on the return voyage, when the libelants were passengers, yet that such provision in a case like this, where no special damages have been shown, might well be considered in fixing the amount of damages. In other words, in fixing the amount of damages, the learned judge considered the English law in cases somewhat like, but seems to have overlooked, the American law, which we think more particularly bears upon the subject. Section 4 of the passenger act of 1882, 22 Stat. 188 [U. S. Comp. St. 1901, p. 2935], provides with regard to passengers — the category in which we are bound to place the libel-ants — as follows:

“Sec. 4. — An allowance of good, wholesome and proper food, with a reasonable quantity of fresh provisions, which food shall be equal In value to one and a half navy rations of the United States, and of fresh water, not less than four quarts per day, shall be furnished each of said passengers. Three meals shall be served daily, at regular and stated hours, of which hours sufficient notice shall be given. If any such passengers shall at any time during the voyage be put on short allowance for food and water, the master of the vessel shall pay to each passenger three dollars for each and every day the passenger may have been put on short allowance, except in case of accidents, where the captain is obliged to put the passengers on short allowance.”

We have always recognized in this court that in appeals in admiralty we would not disturb the amount of damages allowed by the District Court where it is a matter of discretion, and to increase or diminish would, in effect, be a mere substitution of our judgment; but that where the District Court has proceeded upon a wrong rule, or, in allowing damages, has overlooked some important element proper to be considered, we are at liberty to review and determine the amount of damages which, under our views of the case, ought to be allowed. The judge a quo, in fixing the amount of damages to be allowed, considered the English law, and thereon seems largely to have based his judgment. He makes. no reference to the law of the United States, quoted above, which we think should be considered, if not control, in assessing damages for bad and improper food furnished to passengers who come within the purview of said law. The evidence shows that there was sufficient and proper food on board the ship, and no sufficient reason is given why bad and improper food was served, nor any reason given why the libelants should have been put upon a short allowance. There is evidence strongly tending to show that some of the bad and improper food furnished was disgustingly bad, too bad for any but starving persons to eat; and there is also evidence tending to show that the libelants suffered from starvation, nausea, diarrhoea, weakness, and loss of flesh. In fact, the proof with regard to the quality of food served is such that, if the court is to allow any damage at all therefor, it would seem that it ought to allow up to the statutory provision of our law in cases where passengers are unnecessarily put upon short allowance. While furnishing bad and improper food to a passenger is not technically the same as putting the passenger on a short allowance of food, we think it is substantially equivalent.

As noticed above, the provision for putting a passenger on a short allowance of food under the passenger act of. 1882 is $3 per day. We gather from the evidence that the libelants were not furnished bad and improper food on the whole voyage, nor on every day of the whole voyage; that there were days on which it is admitted by all of the libelants that proper and sufficient food of the kind was furnished. While this is the case, as shown from the evidence, we think it is properly inferable from all of it that at least on 15 days of the voyage bad and improper food was furnished. Our conclusion, therefore, is that in assessing the damages in this case the libelants should be allowed $3 per day for 15 days, which makes the sum of $45 to each libelant.

For these reasons the decree of the District Court is amended by increasing the sum to be recovered by the libelants from $15 each to $45 each, from a total of $210 to a total of $630, and, as thus amended, the decree appealed from be affirmed; and it is so ordered. The costs of appeal to be paid by the appellee.