Pearson v. Duane,
71 U.S. 605 (1866)

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U.S. Supreme Court

Pearson v. Duane, 71 U.S. 4 Wall. 605 605 (1866)

Pearson v. Duane

71 U.S. (4 Wall.) 605


1. Although a common carrier of passengers by sea, as a master of a steamship, may properly refuse a passage to a person who has been forcibly expelled by the actual though violent and revolutionary authorities of a town under threat of death if he return, and when the bringing back and landing of such passenger would in the opinion of such master tend to promote further difficulty, yet this refusal should precede the sailing of the ship. If the passenger have violated no inflexible rule of the ship in getting aboard the vessel, have paid or tendered, himself or through a friend, the passage money, and have conducted himself properly during the voyage, the master has no right, as matter of law, to stop a returning vessel, put him aboard it, and send him back to the port of departure. And if he do so, damages will be awarded against him on a proceeding in admiralty.

2. However, where a person who had been thus banished from a place got on board a vessel going back to it, determined to defy the authorities there and take his chance of life, and the captain, who had not known the history of the case until after the vessel was at sea -- on meeting a return steamer of a line to which his own vessel belonged -- stopped his own and sent the man aboard the returning one, to be taken to the port where be embarked, such captain -- not acting in any malice but acting from a humane motive and from a belief that the passenger, if landed at the port where his own vessel was going, would be hanged -- in such a case the apprehended danger mitigates the act, and the damages must be small. Accordingly, in such a case this Court, on appeal from a decree which had given four thousand dollars damages, modified it by allowing but fifty dollars, with directions, moreover, that each party should pay his own costs on the appeal.

3. In a case such as above described, a passenger is entitled to compensation for the injury done him by being put on board the return vessel so far as that injury arose from the act of the captain of the other vessel in putting him there. But he is not entitled to damages for injuries that he suffered from obstructions which he afterwards met with in getting to the place from whence he had been expelled and where he wanted to return, and which injuries were not caused by this act, but were owing to the fact that all to whom he afterwards applied for passage to that place knew the power and determination of the authorities there and were afraid to carry him back.

In the month of June, 1856, the steamship Stevens, a common carrier of passengers of which Pearson was master, on her regular voyage from Panama to San Francisco, arrived at the intermediate port of Acapulco, where Duane got on

Page 71 U. S. 606

board, with the intention of proceeding to San Francisco. He had, shortly before this, been banished from that city by a revolutionary yet powerful and organized body of men called "The Vigilance Committee of San Francisco" upon penalty of death in case of return. This committee had, in the fore part of June, against his will, placed him on the Golden Age, a steamer in the harbor of San Francisco, destined for Panama, with directions that he should be conveyed beyond the limits of California, and he was forcibly carried to the Mexican port of Acapulco. The presence of the Stevens afforded the first opportunity to get back, which he was anxious to embrace, being willing to encounter the risk to which his return might expose him. Duane went openly on the boat at the public gangway and talked freely with some of the officers and passengers. It is not certain that the master knew of his being aboard until after the ship got to sea, but no directions had been given for his exclusion, and although he was without a ticket or money to buy one, yet a passenger who had the means offered to pay the purser his fare, who declined receiving it.

It was usual for those persons who wished to secure a passage to procure a ticket at Acapulco, but there was no imperative rule of the ship requiring it, and the customary fare was often paid to the purser after the boat had left the port.

There was no evidence that Duane would have been excluded had the master been aware that he was on board before he left Acapulco, for it was quite clear that the circumstances of his banishment were unknown at that time.

The master, Pearson, was aware that the Vigilance Committee were in control of San Francisco, and ascertained in some way that Duane had been expelled by them from California, and if he returned would be in danger of losing his life. Having learned this, he resolved to put Duane aboard the first down ship he met and send him back to Acapulco. The steamer Sonora, commanded by Captain Whiting and one of the same line of steamers of which Pearson was master, very soon came in sight and was stopped. Whiting informed

Page 71 U. S. 607

Pearson that he had orders not to carry back any banished person, and that Duane would certainly be executed if he returned, and advised that he should be sent to the Sonora, and he would endeavor to persuade him to go on with him.

Thereupon Duane was transferred to the Sonora and landed at Acapulco. The transfer was effected without any personal indignity to Duane, who at first resisted, but was induced to yield to superior force by friendly counsels.

Duane did not return to California until the month of February, 1860. The Vigilance Committee no longer existed, and he then filed a libel in admiralty for damages in the District Court of the Northern District there, setting forth essentially the facts above stated; that having been expelled as he was from the Stevens, all efforts to get aboard vessels going to San Francisco were unavailing; that he went thus to Aspinwall, in the Republic of New Grenada, to try and get passage thence to San Francisco, but that a line of steamers previously existing there and on which he expected to go had been discontinued, its last vessel having set off two or three days before his arrival. That finally, through charity, he obtained a passage to New York, in which city he was without money or means, his character and reputation blasted and himself a dependent on charity for subsistence, and was for several months confined in the hospital there, physically unable to attempt the voyage to San Francisco until February, 1860.

By the 12th article of his libel, he assigned as a reason for delay in bringing his action the state of things in San Francisco, the numerous executions there by the Vigilance Committee, and his own belief that if he returned, his life would be put in jeopardy -- a belief which, he alleged, "existed up to the time of his departure from New York to California."

The answer, besides a defense from lapse of time, asserted that the libellant was not "a good or law-abiding citizen of San Francisco," and that he had "secretly and without any right or authority so to do, got on board of the Stevens and

Page 71 U. S. 608

remained secreted on board as a stowaway," and that the defendant, in sending the libellant back on the Sonora, had been influenced by humane motives.

The district court decreed in favor of Duane, with $4,000 damages, a decree affirmed in the circuit court. Appeal.

Page 71 U. S. 614

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