Where a libel was filed, claiming compensation for injuries
sustained by a passenger in a steamboat, proceeding from Sacramento
to San Francisco, in California, the case is within the admiralty
jurisdiction of the courts of the United States.
The circumstance that the passenger was a "steamboat man," and
as such carried gratuitously, does not deprive him of the right of
redress enjoyed by other passengers. It was the custom to carry
such persons free.
The master had power to bind the boat by giving such a free
passage.
The principle asserted in
55 U. S. 14
How. 486 reaffirmed, namely that
"when carriers undertake to convey persons by the agency of
steam, public policy and safety require that they should be held to
the greatest possible care and diligence."
The theory and cases examined relative to the three degrees of
negligence, namely, slight, ordinary, and gross.
Skill is required for the proper management of the boilers and
machinery of a steamboat, and the failure to exert that skill,
either because it is not possessed or from inattention, is gross
negligence.
The 13th section of the Act of Congress passed on the 7th of
July, 1838, 5 Stat. 306, makes the injurious escape of steam
prima facie evidence of negligence, and the owners of the
boat, in order to escape from responsibility, must prove that there
was no negligence.
Page 57 U. S. 470
The facts in this case, as disclosed by the evidence, do not
disprove negligence. On the contrary they show that the boat in
question was one of two rival boats which were "doing their best"
to get ahead of each other; that efforts had been made to pass;
that the engineer of the boat in question was restless, and
constantly watching the hindmost boat; and that the owners of the
boat have failed to prove that she carried only the small quantity
of steam which they alleged.
This was a libel filed by King, complaining of severe personal
injury, disabling him for life, from the explosion of the boiler of
the steamboat
New World while he was a passenger, on her
passage from Sacramento to San Francisco, in California.
The district court decreed for the libellant in twenty-five
hundred dollars damages and costs, and the owners of the boat
appealed to this Court.
The substance of the evidence is stated in the opinion of the
Court.
Page 57 U. S. 472
MR. JUSTICE CURTIS delivered the opinion of the Court.
This is an appeal from a decree of the District Court of the
United States for the Northern District of California, sitting in
admiralty. The libel alleges that the appellee was a passenger on
board the steamer on a voyage from Sacramento to San Francisco, in
June, 1851, and that, while navigating within the ebb and flow of
the tide, a boiler flue was exploded through
Page 57 U. S. 473
negligence, and the appellee grievously scalded by the steam and
hot water.
The answer admits that an explosion occurred at the time and
place alleged in the libel and that the appellee was on board and
was injured thereby, but denies that he was a passenger for hire or
that the explosion was the consequence of negligence.
The evidence shows that it is customary for the masters of
steamboats to permit persons whose usual employment is on board of
such boats to go from place to place free of charge; that the
appellee had formerly been employed as a waiter on board this boat,
and just before she sailed from Sacramento he applied to the master
for a free passage to San Francisco, which was granted to him, and
he came on board.
It has been urged that the master had no power to impose any
obligation on the steamboat by receiving a passenger without
compensation.
But it cannot be necessary that the compensation should be in
money, or that it should accrue directly to the owners of the boat.
If the master acted under an authority usually exercised by masters
of steamboats, if such exercise of authority must be presumed to be
known to and acquiesced in by the owners, and the practice is even
indirectly beneficial to them, it must be considered to have been a
lawful exercise of an authority incident to his command.
It is proved that the custom thus to receive steamboat men is
general. The owners must therefore be taken to have known it and to
have acquiesced in it, inasmuch as they did not forbid the master
to conform to it. And the fair presumption is that the custom is
one beneficial to themselves. Any privilege generally accorded to
persons in a particular employment tends to render that employment
more desirable, and of course to enable the employer more easily
and cheaply to obtain men to supply his wants.
It is true the master of a steamboat, like other agents, has not
an unlimited authority. He is the agent of the owner to do only
what is usually done in the particular employment in which he is
engaged. Such is the general result of the authorities. Smith on
Mer. Law 559;
Grant v. Norway, 10 Com.B. 688,
S.C., 2 Eng.L. & Eq. 337;
Pope v. Nickerson,
3 Story 475;
Citizens Bank v. Nantucket Steamboat Co., 2
Story 32. But different employments may and do have different
usages and consequently confer on the master different powers. And
when, as in this case, a usage appears to be general, not
unreasonable in itself, and indirectly beneficial to the owner,
we
Page 57 U. S. 474
are of opinion the master has power to act under it and bind the
owner.
The appellee must be deemed to have been lawfully on board under
this general custom.
Whether precisely the same obligations in all respects on the
part of the master and owners and their boat existed in his case as
in that of an ordinary passenger paying fare we do not find it
necessary to determine. In
Philadelphia & Reading
Railroad Company v. Derby, 14 How. 486, which was a
case of gratuitous carriage of a passenger on a railroad, this
Court said:
"When carriers undertake to convey persons by the powerful but
dangerous agency of steam, public policy and safety require that
they should be held to the greatest possible care and diligence.
And whether the consideration for such transportation be pecuniary
or otherwise, the personal safety of passengers should not be left
to the sport of chance or the negligence of careless agents. Any
negligence in such cases may well deserve the epithet of
gross."
We desire to be understood to reaffirm that doctrine as resting
not only on public policy but on sound principles of law.
The theory that there are three degrees of negligence, described
by the terms slight, ordinary, and gross, has been introduced into
the common law from some of the commentators on the Roman law. It
may be doubted if these terms can be usefully applied in practice.
Their meaning is not fixed or capable of being so. One degree, thus
described, not only may be confounded with another, but it is quite
impracticable exactly to distinguish them. Their signification
necessarily varies according to circumstances, to whose influence
the courts have been forced to yield until there are so many real
exceptions that the rules themselves can scarcely be said to have a
general operation. In
Storer v. Gowen, 18 Me. 177, the
Supreme Court of Maine said:
"How much care will in a given case relieve a party from the
imputation of gross negligence, or what omission will amount to the
charge, is necessarily a question of fact, depending on a great
variety of circumstances which the law cannot exactly define."
Mr. Justice Story, Bailments, § 11, says: "Indeed, what is
common or ordinary diligence is more a matter of fact than of law."
If the law furnishes no definition of the terms "gross negligence"
or "ordinary negligence" which can be applied in practice, but
leaves it to the jury to determine in each case what the duty was
and what omissions amount to a breach of it, it would seem that
imperfect and confessedly unsuccessful attempts to define that duty
had better be abandoned.
Recently the judges of several courts have expressed their
Page 57 U. S. 475
disapprobation of these attempts to fix the degrees of diligence
by legal definitions and have complained of the impracticability of
applying them.
Wilson v. Brett, 11 Meeson & Wels. 113;
Wylde v. Pickford, 8
id. 443, 461, 462;
Hinton v. Dibbin, 2 Q.B. 646, 651. It must be confessed
that the difficulty in defining gross negligence which is apparent
in perusing such cases as
Tracy v. Wood, 3 Mason 132, and
Foster v. Essex Bank, 17 Mass. 479, would alone be
sufficient to justify these complaints. It may be added that some
of the ablest commentators on the Roman law and on the Civil Code
of France have wholly repudiated this theory of three degrees of
diligence as unfounded in principles of natural justice, useless in
practice, and presenting inextricable embarrassments and
difficulties.
See Toullier's Droit Civil, 6th vol. 239
&c.; 11th vol. 203 &c., Makeldey, Man. Du Droit Romain 191
&c.
But whether this term "gross negligence" be used or not, this
particular case is one of gross negligence according to the tests
which have been applied to such a case.
In the first place, it is settled that "the bailee must
proportion his care to the injury or loss which is likely to be
sustained by any improvidence on his part." Story on Bailments §
15.
It is also settled that if the occupation or employment be one
requiring skill, the failure to exert that needful skill, either
because it is not possessed or from inattention, is gross
negligence. Thus, Heath, J., in
Shields v. Blackburne, 1
H.Bl. 161, says,
"If a man applies to a surgeon to attend him in a disorder for a
reward, and the surgeon treats him improperly, there is gross
negligence, and the surgeon is liable to an action; the surgeon
would also be liable for such negligence if he undertook
gratis to attend a sick person, because his situation
implies skill in surgery."
And Lord Loughborough declares that an omission to use skill is
gross negligence. Mr. Justice Story, although he controverts the
doctrine of Pothier that any negligence renders a gratuitous bailee
responsible for the loss occasioned by his fault, and also the
distinction made by Sir William Jones between an undertaking to
carry and an undertaking to do work, yet admits that the
responsibility exists when there is a want of due skill or an
omission to exercise it. And the same may be said of Mr. Justice
Porter in
Percy v. Millaudon, 20 Martin 75. This
qualification of the rule is also recognized in
Stanton v.
Bell, 2 Hawks 145.
That the proper management of the boilers and machinery of a
steamboat requires skill must be admitted. Indeed, by the Act of
Congress of August 30, 1852, great and unusual precautions are
taken to exclude from this employment all persons who do not
possess it. That an omission to exercise this skill
Page 57 U. S. 476
vigilantly and faithfully endangers to a frightful extent the
lives and limbs of great numbers of human beings the awful
destruction of life in our country by explosions of steam boilers
but too painfully proves. We do not hesitate, therefore, to declare
that negligence in the care or management of such boilers, for
which skill is necessary, the probable consequence of which
negligence is injury and loss of the most disastrous kind is to be
deemed culpable negligence rendering the owners and the boat liable
for damages even in case of the gratuitous carriage of a passenger.
Indeed, as to explosion of boilers and flues or other dangerous
escape of steam on board steamboats, Congress has in clear terms
excluded all such cases from the operation of a rule requiring
gross negligence to be proved to lay the foundation of an action
for damages to person or property.
The thirteenth section of the Act of July 7, 1838, 5 Stat. 306,
provides:
"That in all suits and actions against proprietors of steamboats
for injury arising to persons or property from the bursting of the
boiler of any steamboat, or the collapse of a flue, or other
dangerous escape of steam, the fact of such bursting, collapse, or
injurious escape of steam shall be taken as full
prima
facie evidence sufficient to charge the defendant, or those in
his employment, with negligence until he shall show that no
negligence has been committed by him or those in his
employment."
This case falls within this section, and it is therefore
incumbent on the claimants to prove that no negligence has been
committed by those in their employment.
Have they proved this? It appears that the disaster happened a
short distance above Benicia; that another steamer called the
Wilson G. Hunt was then about a quarter of a mile astern
of the
New World, and that the boat first arriving at
Benicia got from twenty-five to fifty passengers. The pilot of the
Hunt says he hardly knows whether the boats were racing,
but both were doing their best, and this is confirmed by the
assistant pilot, who says the boats were always supposed to come
down as fast as possible -- the first boat at Benicia gets from
twenty-five to fifty passengers. And he adds that at a particular
place called "the slough," the
Hunt attempted to pass the
New World. Fay, a passenger on board the
New
World, swears that on two occasions before reaching "the
slough," the
Hunt attempted to pass the
New World
and failed; that to his knowledge these boats had been in the habit
of contending for the mastery, and on this occasion both were doing
their best. The fact that the
Hunt attempted to pass the
New World in "the slough" is denied by two of the
respondents' witnesses, but they do not meet the testimony of Fay
as to the two
Page 57 U. S. 477
previous attempts. Haskell, another passenger, says,
"About ten minutes before the explosion, I was standing looking
at the engine, we saw the engineer was evidently excited by his
running to a little window to look out at the boat behind. He
repeated this ten or fifteen times in a very short time."
The master, clerk, engineer, assistant engineer, pilot, one
fireman, and the steward of the
New World were examined on
behalf of the claimants. No one of them save the pilot denies the
fact that the boats were racing. With the exception of the pilot
and the engineer, they are wholly silent on the subject. The pilot
says they were not racing. The engineer says:
"We have had some little strife between us and the
Hunt
as to who should get to Benicia first. There was an agreement made
that we should go first. I think it was a trip or two before."
Considering that the master says nothing of any such agreement,
that it does not appear to have been known to any other person on
board either boat, that this witness and the pilot were both
directly connected with and responsible for the negligence charged,
and that the fact of racing is substantially sworn to by two
passengers on board the
New World and by the pilot and
assistant pilot of the
Hunt and is not denied by the
master of the
New World, we cannot avoid the conclusion
that the fact is proved. And certainly it greatly increases the
burden which the act of Congress has thrown on the claimants. It is
possible that those managing a steamboat engaged in a race may use
all that care and adopt all those precautions which the dangerous
power they employ renders necessary to safety. But it is highly
improbable. The excitement engendered by strife for victory is not
a fit temper of mind for men on whose judgment, vigilance,
coolness, and skill the lives of passengers depend. And when a
disastrous explosion has occurred in such a strife, this Court
cannot treat the evidence of those engaged in it and
prima
facie responsible for its consequences as sufficient to
disprove their own negligence, which the law presumes.
We consider the testimony of the assistant engineer and fireman,
who are the only witnesses who speak to the quantity of steam
carried, as wholly unsatisfactory. They say the boiler was allowed
by the inspector to carry forty pounds to the inch, and that when
the explosion occurred they were carrying but twenty-three pounds.
The principal engineer says he does not remember how much steam
they had on. The master is silent on the subject, and says nothing
as to the speed of the boat. The clear weight of the evidence is
that the boat was, to use the language of some of the witnesses,
doing its best. We are not convinced that she was carrying only
twenty-three pounds, little more than half her allowance.
Page 57 U. S. 478
This is the only evidence by which the claimants have endeavored
to encounter the presumption of negligence. In our opinion, it does
not disprove it, and consequently the claimants are liable to
damages and the decree of the district court must be
Affirmed.
MR. JUSTICE DANIEL dissented.
MR. JUSTICE DANIEL.
From the opinion of the majority of the judges in this case I
dissent.
That the appellee in this case has sustained a serious injury
cannot, consistently with the proofs adduced, be denied, and it is
probable that the compensation which has been awarded him may not
be more than commensurate with the wrong inflicted upon him or
greater than that for which the appellants were justly responsible.
But the only question in my view which this Court can properly
determine relates neither to the character nor extent of the injury
complained of, nor to the adequacy of the redress which has been
decreed. It is a question involving the power of this Court to deal
with the rights or duties of the parties to this controversy in the
attitude in which they are presented to its notice.
This is a proceeding under the admiralty jurisdiction, as vested
in the courts of the United States by the Constitution. It is the
case of an alleged marine tort. The libel omits to allege that the
act constituting the gravamen of the complaint did not occur either
infra corpus comitatus nor
infra fauces terrae.
It will hardly be denied that the rule of the admiralty in England,
at the time of the adoption of the Constitution, confined the
jurisdiction of the admiralty within the limits above referred to,
or that the admiralty never had in England general or concurrent
jurisdiction with the courts of common law, but was restricted to
controversies for the trial of which the
pais, or local
jury, could not be obtained. Having on a former occasion
investigated extensively the origin and extent of the admiralty
powers of the federal courts,
See New Jersey Steam Navigation
Company v. Merchants Bank, 6 How. 344, it is not
now my purpose to do more than to refer to that examination and to
maintain my own consistency by the reassertion of my adherence to
the constitutional principles therein propounded -- principles by
which I am constrained to deny the jurisdiction of this Court and
of the circuit court in the case before us.
It is true that the libel in this case alleges the injury to
have been committed within the ebb and flow of the tide, but it is
obvious that such an allegation does not satisfy the
description
Page 57 U. S. 479
of an occurrence which to give jurisdiction must be marine or
nautical in its character and locality. Although all tides are said
to proceed from the action of the moon upon the ocean, it would be
a
non sequitur should the conclusion be attempted that
therefore every river subject to tides was an ocean.
It to my view seems manifest that an extension of admiralty
jurisdiction over all waters affected by the ebb and flow of the
tide would not merely be a violation of settled and venerable
authority, but would necessarily result in the most mischievous
interference with the common law and internal and police powers of
every community. Take one illustration which may be drawn from
subjects within our immediate view.
In the small estuary which traverses the avenue leading to this
courtroom, the tides of the Potomac regularly ebb and flow,
although upon the receding of the tide, this watercourse can be
stepped over. Upon the return of the tide, there may be seen on
this water numerous boys bathing or angling, or passing in canoes.
Should a conflict arise amongst these urchins originating either in
collision of canoes or an entangling of fishing lines or from any
similar cause, this would present a case of admiralty jurisdiction
fully as legitimate as that which is made by the libel in the case
before us. Yet the corporate authorities of Washington would think
strangely no doubt of finding themselves, by the exertion of a
great national power designed for national purposes, ousted of
their power to keep the peace, and to inflict upon rioters within
their notorious limits the discipline of the workhouse.
I am opposed to every assumption of authority by forced
implications and constructions. I would construe the Constitution
and the statutes by the received acceptation of words in use at the
time of their creation, and in obedience to this rule, I feel bound
to express my belief that in the present and in all similar cases,
this Court has no jurisdiction under the Constitution of the United
States.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
district of California, and was argued by counsel. On consideration
whereof, it is now here ordered, adjudged, and decreed by this
Court that the decree of the said district court in this cause, be,
and the same is hereby affirmed with costs and interest at the same
rate per annum that similar decrees bear in the courts of the State
of California.