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

MR. JUSTICE DAVIS delivered the opinion of the Court.

This case is interesting because of certain novel views which this Court is asked to sustain.

Page 71 U. S. 615

Two questions arise in it: 1st, was the conduct of Pearson justifiable? 2d, if not, what should be the proper measure of damages? It is contended, as the life of Duane was in imminent peril in case of his return to San Francisco, that Pearson was justified, in order to save it, in excluding him from his boat, notwithstanding Duane was willing to take his chances of being hanged by the Vigilance Committee.

Such a motive is certainly commendable for its humanity, and goes very far to excuse the transaction, but does not justify it. Common carriers of passengers like the steamship Stevens are obliged to carry all persons who apply for passage, if the accommodations are sufficient, unless there is a proper excuse for refusal. [Footnote 1]

If there are reasonable objections to a proposed passenger, the carrier is not required to take him. In this case, Duane could have been well refused a passage when he first came on board the boat if the circumstances of his banishment would, in the opinion of the master, have tended to promote further difficulty should he be returned to a city where lawless violence was supreme.

But this refusal should have preceded the sailing of the ship. After the ship had got to sea, it was too late to take exceptions to the character of a passenger, or to his peculiar position, provided he violated no inflexible rule of the boat in getting on board. This was not done, and the defense that Duane was a "stowaway," and therefore subject to expulsion at any time, is a mere pretense, for the evidence is clear that he made no attempt to secrete himself until advised of his intended transfer to the Sonora. Although a railroad or steamboat company can properly refuse to transport a drunken or insane man, or one whose character is bad, they cannot expel him, after having admitted him as a passenger, and received his fare, unless he misbehaves during the journey. [Footnote 2] Duane conducted himself properly on the

Page 71 U. S. 616

boat until his expulsion was determined, and when his fare was tendered to the purser, he was entitled to the same rights as other passengers. The refusal to carry him was contrary to law, although the reason for it was a humane one. The apprehended danger mitigates the act, but affords no legal justification for it.

But, the sum of four thousand dollars awarded as damages, in this case, is excessive, bearing no proportion to the injury received. Duane is entitled to compensation for the injury done him by being put on board the Sonora, so far as that injury arose from the act of Pearson in putting him there. But the outrages which he suffered at the hands of the Vigilance Committee, his forcible abduction from California and transportation to Acapulco, the difficulties experienced in getting to New York, and his inability to procure a passage from either Acapulco or Panama to San Francisco, cannot be compensated in this action. The obstructions he met with in returning to California were wholly due to the circumstances surrounding him, and were not caused by Pearson. Everyone, doubtless, to whom he applied for passage, knew the power of the Vigilance Committee, and were afraid to encounter it, by returning an exile, against whom the sentence of death had been pronounced.

Pearson had no malice or ill will towards Duane, and, as the evidence clearly shows, excluded him from his boat, in the fear that if returned to San Francisco, he would be put to death. It was sheer madness for Duane to seek to go back there. Common prudence required that he should wait until the violence of the storm blew over and law and order were restored.

This course he finally pursued, and he did not return to California until February, 1860. If he believed, when expelled from the Stevens, that Pearson had done him a great wrong, he certainly did not when he filed the libel in this case, for the 12th article is as follows:

"That when libellant was so banished from the State of California, as aforesaid, by the said Vigilance Committee, he was threatened with the penalty of death should he ever

Page 71 U. S. 617

return to said state; that libellant was aware that said committee had caused to be executed a number of persons without color or warrant of law or right, and that the said committee had the power and ability to put in execution their threats, and libellant believed and had reason to believe from the conduct of said R. H. Pearson as aforesaid, and the treatment he received from the hands of said Vigilance Committee, and their threats as aforesaid, which were well known to said Pearson, that should he return to said state, his return, if attempted or if successful, would be impeded and resisted and his life put in peril and jeopardy, which belief existed up to the time of his departure from New York to California."

This is the sworn statement of Duane that his life was in peril if he returned to California at an earlier day, for the conduct of Pearson, to which he refers, was predicated on a corresponding belief.

It is true this article in the libel was introduced by way of excuse for not having sooner brought the suit, but the admissions in it are proper evidence for all purposes. If so, it is clear that the legal injury which Duane suffered at the hands of Pearson can be compensated by a small amount of money. On a review of the whole case, we are of opinion that the damages should be reduced to fifty dollars.

It is ordered that this cause be remitted to the Circuit Court for the District of California with directions to enter a decree in favor of the appellee for fifty dollars. It is further ordered that each party pay his own costs in this Court.

Order accordingly.

[Footnote 1]

Jencks v. Coleman, 2 Sumner 221; Bennett v. Dutton, 10 N.H. 486.

[Footnote 2]

Coppin v. Braithwaite, 8 Jurist 875; Prendergast v. Compton, 8 Carrington and Payne 462.

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