*1 TERM, 1853. King. al. v. New World see that the case, the into was. and, whether ferent controversy in looking an of Gamache was dif- cultivation this entirely include the claimed to in from that now premisés tract the must have understood that We are satisfied jury dispute. Gamache, cultivation of the be, spoken the whether question n the tract to at witnesses, was upon the any place by dif- title, or at some heirs claim place upon entirely his ferent tract. now submitted to the of the question jury, In view the for the be no reversing judgment there would propriety for the defendant.” instruction given the which were refused asked The instructions plaintiffs, by office, in the recorder’s court, all refer proceedings it is been considered. On the whole the effect of which has be affirmed. ordered that judgment
Order. heard, This cause came on to be of the re- transcript Missouri, Court of the State of and cord, was Supreme .from whereof, counsel. On consideration now here argued by court, ordered and said adjudged by judgment Court, cause, be, in this and the same is Supreme hereby affirmed, with costs. t World, The Steamboa Edward Minturn, William H. Appel Menzie, Webb, and William Claimants and G. King. lants, Frederick filed, injuries claiming compensation libel passenger Where sustained steamboat, Francisco, proceeding California, in a from Sacramento to San admiralty jurisdiction case is within the of the courts of the United States. man,” The circumstance that the awas and as such carried gratuitously, deprive right does not him of enjoyed by passen- redress gers. persons It was the carry custom to free. The master by giving passage. had to bind the boat such free principle reaffirmed, namely, asserted in How. un- that “when carriers dertake convey persons steam, public agency policy safety require they greatest possible diligence. held care theory degrees negligence, namely, cases examined relative to the three slight, ordinary, gross. required management machinery Skill proper a steam- boilers and boat; and skill, possessed, failure to exert that gross from either -because it is not inattention, negligence. The 13th passed section of the Congress, July, (5 act of on the Stat. at 7th Large, 306,) injurious escape makes negligence; prima steam evidence of facie boat, and the owners of the escape prove in order .responsibility, must there negligence. was no VOL. XVI.‘
Steamboat New
et al. evidence,
The facts in this
disprove
as disclosed
do not
On
contrary
question
show that the boat in
was one of
rival
two
boats which
“ doing
get
other;
their best” to
ahead of each
that efforts had been made to
pass;
restless,
engineer
question
the boat
constantly
watching
boat;
the hindmost
and that the owners
prove
failed
that she
quantity
they alleged.
carried
the small
of steam which
*2
This was an
from the District Court of the
a.ppeal
United
States for
Northern District of California.
It .was a libel filed
of severe
by King, complaining
personal
life,
him for
from the
.the
injury,
boiler of
disabling
the steamboat, New
World, while was
on her
passenger,
Francisco,
from Sacramento
in California.
to San
passage
The District Court
decreed for
libellant in
hun-
twenty-five
dred dollars
of the
costs;
the owners
boat
damages
to this court.
appealed
The substance of the evidence is stated in the
opinion
court.
It Avas
Mr.
argued by
Gutting,
Mr.
appellants,
Mayer, for the appellee.
Points for the appellants.
First, The steamboat
New
no relation
occupied
towards the libellant that
on her the
imposed
duty
carry
whatever, as the libellant had
safely,
any
duty
paid,
was not to
for his
compensation
pay any
transportation.
1. The master had no
impose any obligation upon
the steamboat,
without
by receiving passenger
compensation.
It was not within the
of his
Grant v. Nor
scope
authority.
10
664, 688,
Com. Bench R. Mann. G. & S.
way,
also
reported
in 2 E. Law and
15
296;
R.
Jur.
Butler v.
Eq.
Basing,
2 C. & P. 613;
Nantucket,
Citizens Bank
S. B. Co. 2
v.
Story
C. C. R.
34;
Nickerson,
v.
3
C.
475;
C. R.
Gen.
Pope
Story
Int. Ins. Co. v.
12
408;
Wheat.
Middleton v. Fowler
Ruggles,
et al. 1 Salk. 282.
2. There
benefit conferred on the steamboat whence
could result.'
any obligation
3. It
not a
case of bailment.
2;
on Bailm.
Story
§
Kent’s
vol. 2,
Comm.
on Car.
j
4.
p.
Ang.
§
4. The libellant assumed the risk of his own transportation.
5. The libellant
stands in
less favorable relation than the
steamboat’s servants, but she would not be liable to them for
of their fellow-servants.
W.
Farwell v. B. &
R. R.
Co. 4 Metc.
v.
49;
270;
Western R.
Co.
R.
Hayes
Cushing,
Coon v.
& R.
Co. 1
C. 6 Barb.
493;
R.
Seld.
S.
Syracuse U.
231;
Fowler,
v.
W. 1.
M. &
Priestley
6. He stands in a
carried
less favorable relation than goods
under
bailment of mandate.
gratuitous
’
TERM,,
World et al. v.
carried for hire
For
stand in less favored
passengers
positions
than goods.
But
mandate
gratuitous
imposes
dili-
only
slightest
and attaches
gence,
liability only
gross negligence. Ang. on
140,174.
Car.
21;
Bailm.
Story
§
§§
7. He stands
a less favorable relation than slaves trans-
mere
motives of
gratuitously
But the
ported
carrier
humanity.
liable for
in their
only
gross negligence
carriage. Boyce
Anderson, Pet.
v.
8. In no
case has
such action been
reported
any
brought,
of action claimed.
right
Even if the libellant
Second.
to be
as a
regarded
pas
for hire,
carried
the steamboat would
senger
responsible
for
which
sence
and would not be
responsible
any injury
reason
hidden defect
happen by
any
ab
Bills,
v.
9 Metc.
Ingalls
R.
Stokes
Saltonstall,
472
New
et al. v.
steam,-
35
allowed
the lowest certificate;
She was
pounds by
another
the certificate of
She was at
40
inspector.
pounds by
the time
the accident
pounds.
only
carrying
that she carried more
that.
witness testifies
than
No
fault that
could have contributed to the
only
hap-
of the
pening
explosion.
not used to
steam.
Rosin was
generate
Haskell
is the
witness that
gives
tending
article
establish this. But he.does not swear the
saw
fire.
rosin. He admits that he did not see
was stunned
on the
any put
He.
accident,
and his recollection should not be
relied on
of two witnesses.
against
positive testimony
Mayer
Mr.
contended
-the decree
District Court
—
these reasons:
right
”
I. The
occurred within the
influence of
range
wrong
now
tide,
the
this
and was within
jurisdiction,,as
admiralty
Clarke,
court
How.
defined. Waring
Jersey
v.
Bank, 6
Steamboat Co. v. Merchants
How.
evidence of
The disaster 'is of itself primá
II.
negli-
facie
to attach
necessary
liability
gence, culpable
the
degree
is no
here
countervail that
and there
damage,
testimony
Neil, McLean, 540;
conclusion.
v.
Saltonstall v.
McKinney
Stokes,
'.40* *5 SUFREME King. al. v.
Steamboat act under it and master has bind are opinion power to of owner. the' be to have been on must deemed board appellee lawfully custom. general under.this same in all on the Whether precisely obligations respects boat, their existed in of thé-.master and his owners part, do case, fare, as in that of an not .paying passenger ordinary to determine. In and Read- Philadelphia it.necessary find Railroad v. Hbw. R. which was ing Derby,. Company a railroad, of of a on case gratuitous carriage said: carriers court powerful When convey persons undertake steam, public of agency policy dangerous should be held to the require greatest possible sáfety care transportation passengers the consideration for such And whether diligence. -and otherwise, or personal pecuniary safety to the of chance or the should not be left sport neg- cases, in such of .careless Any negligence, ligence agents- may well deserve epithet gross.” reaffirm, doctrine, desire to be understood to We of’ not on sound principles resting, public policy,'but law. that there de three negligence, theory degrees beep intro scribed duced- into the common terms slight, ordinary, gross, from some the- commentators law doubted if these terms can be- Roman law. or, fixed, in so. One Their is not meaning .usefully applied practice. described, thus capable be confounded with to being degree, only may another, but it is quite impracticable exactly varies them.' Their ac distinguish signification necessarily circumstances, to whose influence the courts have cording forced’ been until there are so real yield, many exceptions the rules can to have a said scarcely general -themselves Gowen, In Storer v. R. operation'. Supreme Maine will, of Maine care in a relieve case, Court How much given say: from the a sion depending cannot what omis party imputation . fact, will amount to question charge, necessarily the. on a of circumstances which law great variety define.” Mr."Justice exactly Story, (Bailments, 11,) § “ Indeed,, common or what more says:. matter of-fact than ordinary diligence of law.” If the law furnishes definition . of the terms can gross negligence,' ordinary negligence, be each determine, but leaves it to the applied practice, jury was, what the amount to and what omissions duty it, breach of un seem confessedly imperfect successful be abandoned. define that had better attempts duty, to. their expressed courts judges Recently several New World et al. v. of these fix attempts disapprobation degrees diligence definitions, and have legal complained impracticability Brett, them. Wilson v. 11 Meeson & Wels. applying Pickford, 443, 461, Ib. Q. Hinton Dibbin, Wylde *6 646, 651. It must be B. confessed in' defin difficulty which is in gross negligence, ing as apparent perusing cases 3 et al. v. Wood, Mason, 132, and Foster v. The Tracy Essex Bank, 479, Mass. R. alone to sufficient these justify be added that of some the ablest complaints. comment law, ators on the Roman and on the civil code of have France, of three 'repudiated wholly theory degrees diligence, unfounded in of natural useless in principles justice, practice, inextricable embarrassments' presenting, and difficulties. vol; Civil, See Toullier’s Droit 6th vol. 11th &c.; p. p. Man. &c. Du Droit Makeldey, Romain, 191, &c. But whether this term, be used or not, this gross negligence, case is one of to the tests particular which gross negligence, according been to such a case. applied settled, In the first it is the bailee must place, proportion care to his or loss which is to be sustained injury likely on his improvidence Bailments, any part.” Story § It is also settled that if the or occupation employment one skill, the failure to skill, exert that needful either requiring because is not inattention, or from possessed, gross negli- Heath, J., Thus in Blackburne, Shields v. H. Bl. 161, gence. “ If a man to a to a attend him in disorder says, applies surgeon reward, a for and the treats him there is surgeon improperly, liable to an tlm action; surgeon would also be liable for such if he undertook negligence surgeon gratis to attend a sick because his situation skill person, implies in And Lord that an omis- declares surgery.” Loughborough use sion to he controverts skill is Mr. Justice gross negligence. Story, although Pothier, doctrine of ren- any negligence ders a his between work, want of may bailee for the loss occasioned gratuitous responsible fault, and also the Jones, distinction made William Sir and an to undertaking do cany undertaking admits that the there is exists when a yet responsibility due or skill, an omission to exercise it. And the same Porter, Millaudon, be said of Mr. Justice Percy 75. This Martin, rule is also qualification recognized Stanton et al. v. al. Hawks, Bell et That and ma. boilers hinery proper management Indeed, skill, must be admitted. requires act of 30,1852, and unusual Congress precau- great August tions are taken all from this persons exclude employment skill who do not to exercise it. an omission That possess al. Hew World extent, the to. frightful endangers, faithfully, vigilantly human numbers of awful and limbs beings, lives great our of steam of life in explosions destruction country by boilers doWe not hesitate therefore to de- but too painfully proves. or of such boilers, the care clare that management consequence skill is for which necessary, probable the most disastrous is to' kind, and loss of is injury negligence be deemed and the owners rendering culpable negligence, in case even gratuitous carriage liable damages., of boilers and Indeed, flues, as to or passenger. steamboats, of steam board Congress dangerous escape all such cases from the terms, has, operation in clear excluded proved rule requiring gross negligence lay or an action person foundation of damages property. 7, 1838, of thé act of Stat. at section July (5 thirteenth suits and actions That in all Large,' against 306,) provides: or of steamboats for injury arising persons proprietors property' steamboat, 'from the of the boiler of collapse bursting of steam, of a or other the fact of such flue, dangerous escape shall be taken steam bursting, collapse, injurious escape *7 as sufficient to the pri'md defendant, full charge facie he or those in his with until shall show negligence, employment, . that him or those in his no has- been committed by negligence employment.” and is therefore incum- section; This case it falls within has been com- bent on to that . thé'claimants prove mitted those their employment. by ' ? the disaster It that Have hap proved appears they Benicia; above that another steamer a short distance pened called the Wilson G. a of a mile then about Hunt, quarter the boat first at World, astern of the and .that New arriving ' to The Benicia passengers. pilot fifty got twenty-five the boats the knows whether- racing, Hunt he were hardly says best, is confirmed the their and this both were by .but doing to boats were assistant who the always supposed pilot, says at Benicia fast the first boat comedown as from gets .as possible; at a And adds that to twenty-five passengers. fifty ” “ to the Hunt the attempted pass particular place slough called World, on board the New the a New World. Fay, ” “ occasions, before swears, that on reaching slough two failed; that World, the Hunt the New and to attempted pass in the habit of contend to his had been these boats knowledge their for the both were and on this occasion doing ing mastery, best. the New The fact Hunt that the attempted pass witnesses, .“the is two of respondents’ slough” denied by two pre do not Fay, they testimony meat "World, al. New Haskell, another about vieras attempts. passenger, says, ten I was at before explosion minute's standing looking his excited, we saw run engineer evidently engine, by little out at the boat to a window to look behind. He ning this ten or fifteen times in time.' short The very repeated assistant one master, clerk, fireman, engineer, engineer, pilot, werd World, the steward New examined on behalf and of them, the claimants. No one save denies the pilot, were boats With the fact racing. .exception and the silent on the engineer, they pilot wholly subject. were not We pilot racing. says engineer says: little strife had some between us the Hunt as to who to Benicia first. There was made get agreement first. we should I think it was a before.” two go trip the master Considering says nothing any agree it ment, that does not to have been known appear boat, board either that this witness and the person pilot connected both with directly responsible negHgence and that the fact of sworn charged, racing substantially World, two on board the New passengers pilot assistant Hunt, and is not denied the master pilot World, the is cannot avoid the that the fact conclusion And proved.- increases the burden which certainly greatly act of has thrown on the claimants. Congress those in race possible managing engaged use all that care and all those which adopt precautions renders But dangerous they employ safety. necessary isit strife The excitement highly improbable. engendered for ment, a fit of mind for on men whose victory temper judg coolness and skill the lives de vigilance, passengers And when disastrous such a occurred in pend. strife, this court cannot treat the evidence of those engaged it, to primd for its as sufficient responsible consequences, facie their own the law disprove presumes. We consider and fire- assistant testimony engineer man, who are the witnesses who speak quantity *8 carried, steam as boiler the wholly unsatisfactory. They say inch, allowed the -was to the inspector pounds carry forty and that when the but occurred, were they carrying does not The twenty-three pounds. principal engineer says remember is silent how much steam on. had The master they the of the boat. subject the says speed nothing was, to use of the evidence is the clear-weight the We witnesses, some of best. are the its language doing that, not convinced she was pounds, twenty-three carrying only little than more half her allowance. Nejr al. v. is the This which the only claimants have en- encounter the deavored presumption In our (cid:127) it; it does not .and the disprove opinion consequently claimants n are liable to the decree of the damages, District Court must affirmed. DANIEL dissented. Mr. Justice Justice DANIEL. Mr. From the of the of the opinion in this case majority judges
I dissent. in this That the case has appellee sustained a serious injury cannot, with the adduced, be consistently proofs denied, and it that the is may upon which has been compensation awarded probable him more not be than commensurate with the inflicted wrong him, or than greater that for which the appellants But the question in justly responsible. view which my determine, court can this relates neither to the charac- properly of the ter nor extent of, the complained nor to injury adequacy which has redress been decreed. It is a question involving this court to deal with the duties rights to this attitude in which controversy parties pre- notice. sented to its is a under the as vest proceeding admiralty jurisdiction, ed the courts States in. United It Constitution. case of tort. marine omits to libel alleged allege the act of the did gravamen constituting complaint, either comitatus, occur corpus not nor terree. infra fauces infra be denied that rule will of the hardly admiralty Eng time at the of the land, the Constitution, confined adoption within the above limits referred admiralty jurisdiction that the never had in to, or or con admiralty England general the courts law, with of common but current jurisdiction to controversies for the trial of pais, restricted which the local could not be obtained. on a former occasion in Having jury, and extent of the extensively origin vestigated powers admiralty courts, of the federal Steam Jersey Navigation (see Bank, 6 v. Merchants is not now How. it Company 344,) my do more to refer to and to examination, than purpose maintain own ad reassertion my consistency my herence to constitutional therein principles propounded, am I constrained to jurisdiction principles by deny before us. Court, court in the ease Circuit to have It is true that the case libel the injury alleges tide, been committed within the ebb flow that such an does obvious description allegation satisfy *9 Steamboat'New World al. an -occurrence of which jurisdiction'must marine or give tides, its character and from all nautical locality. Although said action of the moon proceed ocean, it upon be a sequitur non should the conclusion.be attempted therefore river to tides anwas subject ocean. every seems manifest, view that an extension of my admiralty over waters all affected the ebb and of flow the jurisdiction tide, would not be a violation of settled venerable merely ^and but would result in the most authority, necessarily mischievous interference with the common law internal and police Take one illustration powers every community. may be drawn from within our immediate view. subjects In the small which traverses the avenue estuary leading room, this court tides Potomac ebb and flow, regularly the tide this although upon watercourse can receding of over. the return' the tide Upon there stepped seen on this water numerous boys bathing angling, passing canoes. Should a conflict arise these amongst urchins, originat- either in collision of canoes ing or an of a case entangling fishing lines, or cause, from similar this would present admiralty by as that jurisdiction which made fully legitimate libel the ease before bs. Yet authorities corporate would think no Washington doubt them- strangely finding selves, national the exertion of a national great designed power ousted of their purposes, keep peace, to inflict rioters their limits, within notorious upon discipline workhouse. I am forced opposed im- assumption every authority by and constructions. I would construe the plications Constitution statutes the received of words in use at acceptation the time of their creation, and in I rule, obedience to this feel bound to that, belief ánd in the in all similar express present my ' eases, this court under Constitution jurisdiction the United States.
Order. came on to be heard cause re- transcript cord, District Court the United States Northern California, District of and was counsel. argued by On whereof, ordered, nowhere consideration adjudged, decreed court, that the decree of the said District Court in this cause, be, affirmed, same is with costs and hereby interest, at the same rate annum that similar decrees bear per in the courts of the State of California.