*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, 13 Pet. 181. But as to be the libellant was carried the steam- gratuitously, cannot, view held responsible except 2 Pet. Anderson, negligence. Boyce Story Bailm. 174. § *3 Third. There was no on the of the steam- negligence part boat. 1. The boilers were constructed. She was built properly as a first-class boat. She had been the State inspected In-' by and allowed 40 steam; U. S. spector, pounds by Inspector, and allowed 35 neither of these pounds; was inspectors fault found with the structure her boilers. Van Wart and Cook both concur in that the boilers judgment were suffi- cient. is the witness that intimates a Lightall different only opinion, he and or that was does 'that not it was to have a testify usual stay-brace, it omit it. He it merely regards “ and he measure then admits, safety,” if stay,” there, not have prevented explosion. would simply, in his made the opinion, consequence of less serious. 2. The boilers were examined. frequently carefully evidence introduced to controvert No this. 3. The and then in a man was engineer employed, charge, of skill and prudence. This not denied. steamboat was Is not 4. racing.. Mere is not itself unless competition recklessly Barbour, J., 13 Pet. 192. improperly conducted. - an 5. The was amount carrying improper.

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, 13 Peters, 181. not be as a III. the steamboat considered Although mandate, service, in case of a “common carrier” gratuitous (or is, nevertheless, there even as the under a of Bailment Law phrases it,) to have all en- obligation gratuitous undertaking, and a condition to passengers safely, ginery proper carry care scrupulous necessary responsibility proportionate so And hazardous mode justly conveyance. might for the even here, contended if that a attaches slightest liability is shown not But only by negligence. gross negligence occasion, conduct of the for the incompleteness, boat on inade- That machinery. perils passage, Neil, v. per McKinney quacy, imputes sb, McLean, 157; Hale McLean, 540; Talmadge, Maury Gordon, 13 Connect. Fellowes v. Steamboat Company, *4 Bailments, 125. 8 B. on Monroe, 415; Story of the court. Mr. Justice CURTIS the opinion delivered is a the District Court from decree of an appeal in California, United States for Northern District sitting n admiralty. The libel was that appellee passenger alleges San á to on board the on from Sacramento steamer voyage Francisco, ebb June, 1851, that, in within and while navigating neg- and of the tide, a boiler flue was exploded through flow 4Y3 et al. w. Steamboat and the scalded the steam and ligence, water. appellee grievously hot (cid:127) admits occurred explosion answer at the time in libel, and and that alleged was place appellee on and board denies that he awas injured thereby, pas- hire, or that senger consequence masters, shows it is customary steamboats to whose usual permit is persons employment boats, board of to to free of go place place charge; had been as a appellee formerly waiter employed board this and boat; before she sailed just from Sacramento he to the master a free to Francisco, San applied passage to which was and him, he came on board. granted been has master had no urged to impose on the steamboat any obligation with- receiving out compensation. But it be .cannot that the necessary compensation be. in that it should accrue to money, the owners of directly If the master acted under an boat. exercised authority usually masters of if steamboats, such exercise of must be authority to and presumed the acquiesced owners, in known e, is, to them, beneficial practice indirectly, bn must con- sidered have been exercise lawful of an incident authority to his command. that the It is custom thus to proved receive steamboat men is The owners must therefore be taken to general. have known it, and to in it, have inasmuch did not acquiesced forbid the master "to conform to it. And the fair is, that presumption the custom' is one beneficial to themselves. Any privilege ge- accorded to in a nerally tends persons to' particular employment, render that more desirable, and of course to enable employment more men obtain employer easily cheaply supply his wants. true the It is master aof like steamboat, agents, not an unlimited He is to do owner authority. agent what done usually particular employment Such result of the author engaged. general , Law, ities. Smith on-Mer. v. Norway, 559; Grant 10 Com. B. C. 688, S. L. and Eq. Nickerson, Eng. Pope Story, Citizens Bank v. Nantucket R. Co. 2 Story, R. 32. But different different do employments may confer on the usages, powers. master different qonsequently when, And as in this usage general, appears itself, owner, unreasonable tfye indirectly beneficial

'.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.