times to obey him, but also of those who stand in the relation of passengers to the ship, the exercise of this power must, at the master's peril, be restricted by the necessity of the case; and while, on the ground of such necessity, he may enforce and justify orders and a course of conduct towards the passengers which would, under ordinary circumstances, be regarded as in the highest degree tyrannical, he can, even in times of danger, require no more exertion or exposure on the part of the passenger than is strictly necessary; and if he subject him to danger, or to a severity of treatment which the emergency did not justify, he will be liable to the passenger in an action for damages.11

Sec. 1161. (§ 631.) Duty of master to provide for safety, health and comfort of passengers.—On the other hand, it is the duty of the master of the vessel to attend to the preservation of the health and to the comfort of the crew and passengers, as well as to the safety of the vessel and cargo. In respect to passengers, the duty of the master is one of peculiar responsibility and delicacy, and a stipulation in their contract with him is always implied that the treatment which they shall receive, not only from him but from all those under his authority, shall be respectful; and he would fail in his duty to them if he did not himself observe in his conduct towards them those rules of civility and politeness so essential to the comfort of those con fined on shipboard, and also enforce their observance by all those in the ship's employment. And when in a case before Story, J., before referred to, it was urged that while a failure in this regard by the master of the vessel might be a breach of good manners, or an offense against strict morality, it was not a breach of duty of which the law could take cognizance or punish, it was replied that the law involved no such absurdity, and the judgment of the court was that the contract of the

11. Boyce v. Bayleffe, 1 Camp. 58; Keene v. Lizardi, 5 La. 431; 3 Kent's Com. 160, n. Master may require passenger ill with conta

gious disease to be kept separated from other passengers. The Hammonia, 10 Bene. 512.

passengers with the master was not "for mere ship-room and personal existence on board, but for reasonable food, comforts, necessaries and kindness. It is a stipulation not for toleration merely, but for respectful treatment, for that decency of demeanor which constitutes the charm of social life, for that attention which mitigates evils without reluctance, and that promptitude which administers aid to distress. In respect to females it proceeds yet further; it includes an implied stipulation against general obscenity, that immodesty of approach which borders on lasciviousness, and against that wanton disregard of the feelings which aggravates every evil, and endeavors, by the excitement of terror and cool malignancy of conduct, to inflict torture upon susceptible minds.''12 Where, therefore, while a vessel was lying in a foreign port, a seaman, in the night-time, entered the state-room of a female passenger, attempted a rape, and behaved with indecency in her presence, and, upon complaint to the master, he was immediately discharged and put ashore, it was held to be a just and legal ground for the discharge of the seaman.13 And in a case where the facts were that a passenger and the clerk of a steamer had a slight altercation about the payment of passage money, the passenger declining to pay unless the clerk would make change of a bank-note which the passenger offered, and some time afterwards the clerk made an assault upon him whilst sitting quietly in the saloon of the boat, and treated him with great indignity and outrage, it was held that the vessel and its owners were liable to the libelant in damages for such treatment by the clerk, it being a gross violation of the duty of respectful behavior due from the carrier to his passenger.14

So in bad weather, it is the duty of the master to keep the passengers under deck; and if he requires them during such weather to go on deck for food when the vessel is pitching and throwing water over the deck, the owners will be liable for an

12. Chamberlain v. Chandler, 3

Mason, 242.

13. Nieto v. Clark, 1 Cliff. 145.

14. Pendleton v. Kinsley, 3 Cliff. 416.

injury to a passenger caused by his being thrown down by a wave.15

Sec. 1162. (§ 632.) Same subject-Duty in respect of women and children.-Indeed, as to minors and female passengers, it has been said that the master stands, upon a voyage, in loco parentis to them, such passengers being comparatively helpless, and liable to imposition and mistreatment. And upon this principle, where the master of a coasting steamer suffered a notorious gambler, a passenger on his vessel, to decoy a minor, also a passenger, into playing upon a "sweat cloth," by which the latter lost a large sum of money belonging to his widowed mother, it was held that the master was liable in a suit in admiralty by the mother for the whole amount of the money so lost, with interest.16

Sec. 1163. (§ 632a.) Same subject-Duty to aid sick or disabled passengers. So where, from sickness or accident upon the voyage, the passenger becomes unable to properly provide or protect himself, it is the duty of the carrier to extend such aid and protection as the passenger's condition may require. It was so held where the passenger was a woman upon a steamship. During the night the berth above hers fell, owing to its faulty construction; the woman in the berth below, thinking that the ship was sinking, became so paralyzed with fear as to be unable to move or stand alone; being removed from her berth and left to stand without aid, she was thrown violently down by the rolling of the ship, and the carrier was held liable for not providing for her safety.17

But the errors, mistakes, or negligence of a ship's doctor in caring for sick passengers are not imputable to the ship where

15. The Prinzess Irene, 139 Fed. 810.

Whether the carrier is bound to furnish a surgeon, quaere; but if 16. Smith v. Wilson, 31 How. Pr. bound, by law or contract, must

272.

17. Smith . Packet Co., 86 N. Y. 408, citing Sheridan v. Railroad Co., 36 N. Y. 39.

use reasonable care and diligence in his selection. Laubheim Steamship Co., 107 N. Y. 228.

v.

it is not shown that the ship's owners were negligent in selecting him.18

Sec. 1164. (§ 633.) Passenger must conduct himself properly. But the treatment of the passenger due from the master and those under his command may depend in a great degree upon the passenger's conduct during the voyage. If he conducts himself in a manner calculated to weaken the due authority of the master or officers, or interferes with the management of the vessel, or exposes his fellow-passengers, or any person on board, to annoyance or unnecessary inconvenience, the master may coerce him into better behavior, or remove him from the society of those whom he annoys. But he must not interfere to this extent with his passengers on slight grounds, but only where grave reasons for so doing exist, and then he must go no further than is necessary to the proper discipline of the ship, and to secure the comfort of other passengers. Where the complaint was that the plaintiff had been excluded from the cuddy of the ship and from certain parts of the deck, and the justification pleaded was that the plaintiff had been guilty of ungentlemanly conduct, Tindall, C. J., charged the jury that "it would be difficult to say, if it rested here, in what degree want of polish would, in point of law, warrant a captain in excluding a passenger from the cuddy. Conduct unbecoming a gentleman, in the strict sense of the word, might justify him; but in this case there is no imputation of the want of gentlemanly principle. The third ground is the threat used by the plaintiff that he would cane the defendant. . . It is important to consider this, as, if it did operate on the mind of the defendant at the time of the exclusion, I cannot conceive that such conduct would not justify that exclusion. A man who had threatened the commanding officer of the ship with person

18. The Napolitan Prince, 134 Fed. 159; O'Brein v. Steamship Co., 154 Mass. 372, 28 N. E. Rep. 266, 13 L. R. A. 329; Allan v.

Steamship Co., 132 N. Y. 91, 30 N. E. Rep. 482, 28 Am. St. Rep. 556, 15 L. R. A. 166, reversing 55 Hun, 611, 8 N. Y. Supp. 803.

al violence would not be a fit person to remain at the table at which he presided. "19

Sec. 1165. Duty to furnish berths. If a berth is a reasonable and proper accommodation on a steamship, the rier will be liable if it fails to inform the passenger when he purchases his ticket that all the berths for that trip are disposed of 20 The carrier must also serve the public without discrimination and sell its tickets and accommodations in the order of application. Thus if it refuses one passenger a berth on a steamship, and later furnishes a berth to another, it will be liable to such passenger for any resulting damage.21

Sec. 1166. (§ 634.) How far carrier by water bound by schedule as to leaving.-How far the advertisements of the carrier, as to his time of departure upon the contemplated journey, amount to contracts between him and the passenger in land carriages, and how far he can be made liable for a non-compliance with his public undertaking in this respect, has been already noticed.22 In respect to the delay in its departure by a ship upon a contemplated voyage after the time at which it was advertised to sail, or at which it was to sail according to its contract with the passenger, it has been held that any material delay, especially if it can be shown that time was regarded as an essential part of the contract, will subject the ship and its owners to a liability for damages at the suit of the aggrieved party.23

Sec. 1167. Same subject-Carrier by water not bound to deliver telegrams addressed to passengers.-In the absence of

19. Prendergast v. Compton, 8 Car. & P. 454; Noden v. Johnson, 16 Q. B. 218, 2 Eng. L. & Eq. 201. 20. Patterson v. Steamship Co., N. Car. 53 S. E. Rep.

224.

Exch. 395; Cobb v. Howard, 3 Blatch. 524; Yates v. Duff, 5 Car. & P. 369. Where the ticket expressly states that the voyage shall be direct, and a material deviation is made, the passenger is

21. Patterson v. Steamship Co., entitled to damages for the delay

supra.

22. Ante, §§ 1104-1107.

23. Cranston v. Marshall, 5

and at least for the price of the ticket. De Colange v. The Marquax, 37 Fed. Rep. 157.