1. Respondent was employed by the United States as a general
agent under the terms of the war-time standard form of general
agency agreement to manage certain phases of the business of a ship
owned by the United States and operated by the War Shipping
Administration. By an addendum to the agreement, it was also
required to arrange for the transportation of passengers as agent
of the United States. Certain women passengers and the husband of
one of them sued respondent for damages sustained through injuries
to the women resulting from the wrongful act of a member of the
ship's crew.
Held: Respondent was not liable as the owner
pro
hac vice, or as a common carrier operating the vessel, or as
the employer of the master or crew.
Cosmopolitan Shipping Co.
v. McAllister, ante, p.
337 U. S. 783. Pp.
337 U. S.
802-809.
2. Performance of such shoreside duties as issuing tickets,
maintaining the vessel in the service directed by the United
States, maintaining terminals and offices, arranging for loading
and unloading passengers, arranging for advertising, provisioning
the ship, and procuring officers and crew for hire by the master,
all as agent of the United States, did not make the general agent
liable as a common carrier to the public or anyone. Pp.
337 U. S.
805-808.
3. Petitioners argued here that respondent as an agent is
independently liable for its negligence in procuring unsuitable
crew members,
Page 337 U. S. 802
but this theory of liability was not relied upon at the trial,
instructions upon the point were not given or requested, and no
exceptions were taken by petitioner to the instructions given.
Held: In these circumstances, error cannot be urged
here as to this point. P.
337 U. S.
808.
4. There being suggestions in the complaint and evidence of
alleged liability of respondent to petitioners for respondent's own
negligence while acting s general agent, the Court of Appeals,
which reversed the trial court's judgment for petitioners, erred in
directing the trial court to enter a judgment for respondent. Pp.
337 U. S.
808-809.
5. No opinion is expressed as to the circumstances in which
respondent might be liable for its own actions as general agent. P.
337 U. S.
809.
168 F.2d 914 modified and affirmed.
A Federal District Court gave a judgment to certain passengers
and the husband of one of them against a general agent employed by
the United States to manage certain phases of the business of a
ship owned by the United States and operated by the War Shipping
Administration, for injuries sustained as a result of the wrongful
conduct of a member of the ship's crew. The Court of Appeals
reversed. 168 F.2d 914. This Court granted certiorari. 335 U.S.
810.
Modified and affirmed, p.
337 U. S.
809.
MR. JUSTICE REED delivered the opinion of the Court.
On August 3, 1945 at Old Point Comfort, Virginia, petitioners,
Mrs. Lillian A. Weade and Mrs. Roberta L. Stinemeyer, purchased
tickets and embarked as passengers
Page 337 U. S. 803
on the
Meteor, a steamboat owned by the United States
through the War Shipping Administration and operating between
Norfolk, Virginia, and Washington, D.C. The ladies retired to their
stateroom about 11:00 p.m., and, because of the warm weather,
opened both the glass and the shutter of the window which faced
onto the boat deck. During the night, the second cook of the
Meteor entered the stateroom through the open window and
raped Mrs. Weade, who was sleeping upon the lower berth. Mrs.
Stinemeyer suffered fright and shock from witnessing this atrocity.
The perpetrator of the crime was subsequently tried, convicted, and
executed.
This case involves the liability of a general agent to
passengers under a contract similar to that discussed in
Cosmopolitan Shipping Co. v. McAllister, ante, p.
337 U. S. 783,
decided this day. The agency agreement covered passenger boats
through an addendum to the contract providing for additional
services by the general agent. [
Footnote 1]
Petitioners Lillian A. Weade and her husband, instituted a civil
action for damages against respondent in the United States District
Court for the Eastern District of Virginia. The husband alleged as
his damages loss of consortium and the expenses of the
hospitalization of his wife. Petitioner Mrs. Stinemeyer brought a
separate civil action for her damages in the same court.
Jurisdiction in both actions was based on diversity of citizenship,
and the two civil actions were consolidated for trial. In addition,
Mrs. Weade filed a libel in admiralty against the United States,
which action has been continuing pending the final determination of
the present proceedings.
The complaint of Mr. and Mrs. Weade, alleged, so far as now
important, that the steamboat was operated as a common carrier by
respondent, and that petitioners
Page 337 U. S. 804
were injured through the failure of respondent to provide
adequate protection for its passengers from the personal misconduct
of its employees, and through the failure to use due care in the
selection of reliable, careful, and competent employees. The
complaint of Mrs. Stinemeyer is substantially the same as to the
specifications of negligence, though it did not assert that
respondent itself was a common carrier, but did allege that the
injury occurred through the act of respondent's employees. The
respondent's answer denied that the vessel was operated by it as a
common carrier and that the master and crew of the vessel were its
employees. The answer further alleged that the vessel was operated
by the War Shipping Administration, and that respondent only
performed certain services for the owner of the ship as general
agent in accordance with the standard service agreement.
The jury, as triers of fact in this civil proceeding, were
instructed as a matter of law that, by virtue of the contract,
respondent was the actual operator of the vessel as a common
carrier owing the highest degree of care to its passengers. The
trial judge further charged that, as a common carrier, this duty to
exercise the highest degree of care extended to all acts of the
carrier, and included the providing of safe accommodations and
protection for passengers, the providing of a suitable number of
watchmen, and the selection of competent, careful, and sober
employees. The jury returned verdicts for petitioners, and the
trial judge denied the motion of the respondent for judgment
notwithstanding the verdict, stating as his reason therefor:
"While the case of
Hust v. Moore-McCormack Lines, Inc.,
328 U. S.
707, is not precisely in point, it is my view that it is
controlling so far as the liability of the defendant is
concerned."
On appeal, the Court of Appeals for the Fourth Circuit reversed,
and held that, under
Caldarola v. Eckert, 332 U.
S. 155,
Page 337 U. S. 805
respondent was not the owner
pro hac vice in possession
and control of the vessel, and thus could not be liable as a common
carrier for the safety of the passengers.
Dichmann, Wright
& Pugh & Weade, 168 F.2d 914.
Under our holding today in No. 351,
Cosmopolitan Shipping
Co. v. McAllister, the instructions referred to above were
erroneous. Respondent was not the owner
pro hac vice, was
not a common carrier operating the vessel, and was not the employer
of the master or crew. The trial of the present proceeding revolved
around these questions, and did not concern the problem of
negligence on the part of respondent or of its own agents in
handling the ship or crew on voyage as an agent of the United
States, as distinguished from an employer of the master and crew or
owner
pro hac vice.
Petitioners urge in point 3 of their brief, as a ground for
upholding the decision of the trial court, that respondent, because
of the duties imposed upon it by the General Agency Agreement, was
liable as a common carrier as far as the public was concerned. In
support of this contention, they point to the duties of the general
agent to issue tickets, maintain the vessel in the service directed
by the United States, maintain terminals and offices, arrange for
the loading and unloading of passengers, arrange for advertising,
provisioning of the ship, and the procuring of officers and crew
for hire by the master. The performance of such shoreside duties,
however, does not make the agent liable as a common carrier to the
public or anyone. [
Footnote
2]
At the insistence of the Navy, the War Shipping Administration
in 1945 instituted a nightly service of two steamboats between
Norfolk and Washington. The name given to this service was the
Washington-Hampton Roads Line, and the
Meteor was one of
the two vessels employed
Page 337 U. S. 806
therein. These two vessels were assigned to respondent as
general agent by a passenger addendum to the standard GAA 4-4-42
agreement, [
Footnote 3] under
which respondent had been general agent for some twenty cargo
vessels. It will be noted that, under Article 3A(f) of the
addendum, the general agent was to arrange for the transportation
of passengers and to issue tickets for this purpose. The
Page 337 U. S. 807
ticket, which is set out in the margin, [
Footnote 4] bears the express notation that the
steamboat line was "Operated by United States of America, War
Shipping Administration," and that respondent was serving in the
capacity of an agent.
Respondent's duties were to service the ships and "to arrange
for the transportation" of passengers on them. The duty of a common
carrier, on the other hand, is to transport for hire whoever
employs it. [
Footnote 5] Here,
the contract called for the actual transportation to be carried out
by the War Shipping Administration. The respondent's duties ended
at the shore line.
Cosmopolitan Shipping Co. v. McAllister,
supra. The cases cited by petitioner holding a transportation
agent liable as a common carrier
Page 337 U. S. 808
involve situations where the actual movement of goods or
passengers was carried out by the agent. [
Footnote 6] Under the contract, respondent here was not
in any way engaged in the carriage of passengers between Norfolk
and Washington, and had never held itself out to the public as
ready to engage in such traffic. As a mere arranger of
transportation, it does not incur the liability of a common
carrier.
Apart from their reliance upon respondent's control of the
vessel on voyage under the agency contract, petitioners further
argue that respondent, as an agent, is independently liable for its
negligence in procuring unsuitable crew members. This theory of
liability was not relied upon at the trial. Instructions upon the
point were not given or requested. The court did charge that as
principal and operator of the vessel the respondent was responsible
for any tort committed by the steamship personnel and as a common
carrier was under the duty to exercise the highest degree of care
for the safety of the passengers, including the selection of
personnel. It was upon the basis of respondent's liability as
common carrier that petitioners developed their causes of action,
and, upon that theory the jury under the instructions discussed
above, returned a verdict in their favor. At the conclusion of the
trial judge's charge, counsel for petitioners stated, "If your
Honor please, we have no exceptions." Under these circumstances,
error cannot be urged as to this point.
See Rule 8(1),
Supreme Court of the United States; Rule 51 of the Federal Rules of
Civil Procedure;
United States v. Atkinson, 297 U.
S. 157.
By the decision below, the trial court was directed to enter a
judgment for respondent, which had filed a
Page 337 U. S. 809
motion for judgment notwithstanding the verdict. As there were
suggestions in the complaint and evidence of alleged liability of
respondent to petitioners for respondent's own negligence while
acting as general agent, this direction should not have been given.
See Brady v. Roosevelt S.S. Co., 317 U.
S. 575. [
Footnote 7]
The decision is modified so as to eliminate the direction to enter
judgment. [
Footnote 8]
We express no opinion as to what circumstances might fix
liability upon the respondent for its own actions as general
agent.
Affirmed as modified.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, and
MR. JUSTICE RUTLEDGE dissent.
[
Footnote 1]
See note 3
infra and 46 C.F.R.Cum.Supp. § 306.44.
[
Footnote 2]
See Cosmopolitan Shipping Co. v. McAllister, ante, p.
337 U. S. 783.
[
Footnote 3]
"Whereas, the United States of America (Herein called the
'United States'), acting by and through the Administrator, War
Shipping Administration, and Dichmann, Wright & Pugh, Inc.
(herein called the 'General Agent') entered into an Agreement
(Contract WSA-4098) dated January 9, 1943 (herein called the
'Service Agreement') whereby the United States appointed the
General Agent as its agent to manage and conduct the business of
cargo vessels assigned to it by the United States; and"
"Whereas, it is desirable to have as far as practicable both
cargo vessels and passenger vessels operated under the uniform
provisions of one agreement."
"Now, Therefore: "
"The United States and the General Agent agree that passenger
vessels heretofore or hereafter allocated to the General Agent to
conduct the business of the vessels as agent of the United States
shall be governed by the provisions of the Service Agreement
modified as follows: "
"Section 1. Article 3A of the Service Agreement is hereby
amended by adding a provision following subsection (e) thereof as
follows: "
" (f) Shall arrange for the transportation of passengers when so
directed, and issue or cause to be issued to such passengers
customary passenger tickets. After a uniform passenger ticket shall
have been adopted by the United States, such passenger ticket shall
be used in all cases as soon as practicable after receipt thereof
by the General Agent. Pending the issuance of such uniform
passenger ticket, the General Agent may continue to use its
customary form of passenger ticket."
"Section 2. The vessels to which the Service Agreement will
apply be operation of this Part II, are as listed on Exhibit B
attached hereto and made a part hereof, and such additional vessels
as may from time to time be assigned to the General Agent by letter
agreement."
"In witness whereof. . . ."
[
Footnote 4]
"
I
ssued by"
"
Washington-Hampton Roads Line"
"
Operated by United States of America, War Shipping
Administration"
"
One First Class Passage"
"
Norfolk, or Old Point Comfort Va. to Washington,
D.C."
"
Subject to the Following contract: "
"This ticket is void unless officially stamped and dated."
"Baggage valuation is limited to $100 for and adult and $50 for
a child, unless purchaser hereof declares a greater valuation at
time baggage is presented for transportation and pays excess
valuation charges according to tariff rates, rules and
regulations."
"The company will under no circumstances be responsible for any
moneys or valuables unless deposited with the Purser on Steamer,
nor will they be responsible for any baggage unless properly
checked."
"This ticket is limited for passage within in thirty days from
date of sale stamped on back."
"Dichmann, Wright & Pugh, Inc., Agent."
"I. S. Walker, Gen. Passenger Agent."
[
Footnote 5]
Niagara v.
Cordes, 21 How. 7,
62 U. S. 22;
Washington ex rel. Stimson Lumber Co. v. Kuykendall,
275 U. S. 207,
275 U. S. 211;
United States v. Brooklyn Eastern District Terminal,
249 U. S. 296,
249 U. S.
305-306;
cf. Lehigh Valley R. Co. v. United
States, 243 U. S. 444;
ICC v. Delaware, Lackawanna & Western R. Co.,
220 U. S. 235.
[
Footnote 6]
United States v. Brooklyn Terminal, 249 U.
S. 296;
Union Stock Yard & Transit Co. v. United
States, 308 U. S. 213.
[
Footnote 7]
See Restatement, Agency § 358.
[
Footnote 8]
Globe Liquor Co. v. San Roman, 332 U.
S. 571;
Cone v. West Virginia Paper Co.,
330 U. S. 212.