The Majestic

• Decision Date: 12 March 1894
• Docket Number: 65.
• Citation: 60 F. 624
• Parties: THE MAJESTIC. v. THE MAJESTIC. POTTER et al.
• Court: U.S. Court of Appeals — Second Circuit

60 F. 624

THE MAJESTIC.

POTTER et al. v. THE MAJESTIC.

No. 65.

United States Court of Appeals, Second Circuit.

March 12, 1894

Everett T. Wheeler, for appellant.

Willard Parker Butler, for appellees.

Before LACOMBE and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

The two ladies and their maid who are the three libelants took passage on January 20, 1892, at Liverpool for New York, on board the steamer Majestic. The vessel arrived in New York on January 28th. The contents of their trunks were found to have been saturated with salt water, and to have been damaged to the amount of $2,828.50. The baggage was stowed in compartment No. 3 of the orlop deck, where the mails were also stowed. This compartment is about 25 feet in length, has watertight bulkheads at each end, and is ordinarily a safe and convenient place for the baggage of passengers. On the morning of January 25, 1892, there was a pretty rough sea and from 7 to 8 o'clock a. m. the vessel passed through a quantity of wreckage, apparently broken planks, and about 8 o'clock a. m. it was found that the after port in No. 3 had been broken, and that a large quantity of water had entered and damaged the mails and luggage. There were three port holes on each side of the compartment, which were closed in the usual way, with thick glass, and an iron cover or 'dummy,' screwed up tightly. The glass was broken in many fragments, and the iron dummy was forced from its hinges, and turned back,--an accident which could not have been caused by the sea alone. The ports are examined at the commencement of the voyage in Liverpool. The chief officer of the ship was at this compartment the day after the vessel left Queenstown. It was the custom to inspect the baggage rooms after heavy weather, and accordingly the chief officer opened the door on the morning of January 25th, and discovered, by the wash of water, that an accident and injury had taken place. The facts that the glass was splintered into many fragments, and that the iron dummy was forced from the hinges, and thrown backward, show that the accident must have been caused by a violent blow coming from the ocean. It is reasonable to infer that it was caused by an apparent and adequate cause, rather than by one which rests entirely upon surmise, and we are therefore led to conclude that a blow from one of the foating planks inflicted the injury. The district judge was of opinion, assuming that the accident was caused by wreckage, that the ship must be deemed guilty of negligence in not checking her speed when passing through material capable of inflicting such damage. If such an injury could have been anticipated, the speed should have been slackened, but it is apparent that the injury was of an extraordinary character, and that the propriety of taking precautions to avoid it would not naturally have occurred to the mind. It was an unanticipated peril of the sea.

The questions in the case which are of general importance arise upon alleged limitations of the carrier's liability which are expressed in the notice printed upon the back of the libelant's ticket. One ticket was purchased in England, and was issued to the three libelants. It was a maritime contract, for the performance of which the ship became liable, entered into by a common carrier by sea, the terms of which were expressed in writing. The portion relating to the contract was headed 'Cabin Passenger's Contract Ticket.' Then follow the words 'These directions and the notices to passengers below form part of, and must appear on, each contract ticket.' Five 'directions' which are required by the British merchant shipping act are then inserted. The undertaking or agreement of the steamship company is next printed. The part of this agreement which is important to this case is as follows:

'In consideration of the sum of £124 10, I hereby agree with the person named in the margin hereof that such person shall be provided with first-class cabin passage in the abovenamed British steamship, to sail from the port of Liverpool for the port of New York, in North America, with not less than twenty cubical feet for luggage for each person; * * * and I further engage to land the person aforesaid with their luggage at the last-mentioned port, free of charge beyond the passage money aforesaid. For and on behalf of the Oceanic Steam Navigation Company, Limited, of Great Britain.

Thomas Henry Ismay,

'Per R. Martckellell.'

The last name was written. Then follow two notices to cabin passengers, and a caution in regard to the care of their baggage and valuables. At the bottom of the face of the ticket are the words, in conspicuous, black-faced type, 'See back.' Upon the back of the ticket are the words: 'Notice to Passengers. This contract is made subject to the following conditions.' Seven important conditions are then stated. The third, fourth, and seventh are as follows:

'(3) Neither the shipowner nor the passage broker or agent is responsible for loss of or injury to the passenger or his luggage or personal effects, or delay on the voyage, arising from steam, latent defects in the steamer, her machinery, gear, or fittings, or from act of God, queen's enemies, perils of the sea or rivers, restraints of princes, rulers, and peoples, barratry or negligence in navigation, of the steamer or of any other vessel. (4) Neither the shipowner nor the passage broker or agent is in any case liable for loss of or injury to or delay in delivery of luggage or personal effects of the passenger beyond the amount of £10, unless the value of the same in excess of that sum be declared at or before the issue of this contract ticket, and freight at current rates for every kind of property (except pictures, statuary, and valuables of any description, upon which one per cent. will be charged) is paid.' '(7) All questions arising on this ticket shall be decided according to English law, with reference to which this contract is made.' The signature of Thomas Bruce Ismay, for the steam company, is printed. The father of the two young ladies who were passengers bought the ticket. Neither he nor either of the three passengers read it, or knew its contents. The father and daughters had abundant opportunity to do so. The steamship company claims that, under the third condition, it is not liable for injury to any passenger's baggage which arises from perils of the sea or from negligence in navigation of the steamer or any other vessel, and that, under the fourth condition, the amount of liability to a passenger for injury to his baggage is limited to £10, unless the value of the same in excess of that sum was declared when or before the ticket was issued and freight was paid. No declaration was made in their case. The seventh condition specifies that the contract is an English one, and has particular reference to the limitation in regard to liability for negligence.

The contract was made in London or in Liverpool, where the shipowner had a place of business, between a British corporation, which was the shipowner, and a citizen of the United States. The contract was for the transportation, upon the high seas, of passengers and their baggage, from the city of Liverpool to the city of New York; and, if the statement that it was made with reference to English law had been omitted, nothing in the contract would have indicated an intent that it was to be controlled by the law of the United States. Under such circumstances, it was an English contract and governed by the law of England. 'The general rule that the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the...