holding, in an action for personal injuries suffered by passengers during a voyage, that if the “provision of the contract, relieving the carrier from responsibility for the negligence of the carrier . . . can be held to be applicable, it is clearly void by reason of being against public policy”
How later courts described this case
- holding, in an action for personal injuries suffered by passengers during a voyage, that if the “provision of the contract, relieving the carrier from responsibility for the negligence of the carrier . . . can be held to be applicable, it is clearly void by reason of being against public policy”
- sea carrier cannot avoid liability for its duty to keep ship clean
Written by the judges who cited it.
The opinion
ROSS, Circuit Judge (concurring).
I concur in the judgment and in the opinion, except in such portions of the latter as hold that the question of the seaworthiness of the Oregon at the time of the voyage in question was not involved in the case, and that the evidence fails to show any negligence on the part of her owner in that regard. I agree, of course, that a carrier of passengers is not an insurer of their safety; but it is just as well settled that such carrier must exercise the highest degree of care, prudence, and foresight. I agree with the court below that the evidence in the present case shows that the Oregon was unseaworthy prior to and at the time of entering upon the voyage in question, and that the condition of her rudder, as presented when she was in the dry dock in May, 1901, was sufficient to have acquainted the owner and its representatives with that fact. It is, in my opinion, the duty of a steamship company engaged in the carriage of passengers to furnish a good, staunch, and sufficient ship for the purpose, manned by a competent crew. Such was the distinct ruling of this court at the last term in the case of The City of Rio de Janeiro (In re Pacific Mail S. S. Co.) 130 Fed. 76 , and is, as I understand it, the well-settled law. 5 Am. & Eng. Enc. of Law (2d Ed.) 632, 658, and cases there cited. And while it is true, as has been said, that such carriers, in the case of passengers, are not insurers of their safe carriage, they are bound to exercise the highest degree of care, prudence, and foresight, not only in fitting the vessel for sea, but in its navigation as well. Section 4493 of the Revised Statutes [U. S. Comp. St. 1901, p. 3058] in terms declared that:
“Whenever damage is sustained by any passenger or bis baggage from explosion, fire, collision, or other cause, the master and the owner of said vessel, or either of them, and the vessel, shall be liable to each and every person so injured, if it happens through any neglect or failure to comply with the provisions of this title, or through some known defects or imperfections of the steaming apparatus or of the hull.”