By printed contract, the Oceanic steamship company agreed with
the libellants, in consideration of the passage money paid, to land
them with their luggage in New York. The contract ticket had
attached to it a "notice to passengers," printed in fine type, that
the contract was made subject to "conditions," among which were the
following:
"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
percent 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 ticket was purchased for libellants by their father, was not
examined by him, was not examined by them, and neither he nor they
knew of these conditions, nor was their attention called to them.
On the voyage, the luggage of libellants was flooded with water,
which came in through a broken porthole, from causes described by
the court in its statement of facts and opinion, and which are held
not to be an "act of God," necessarily exempting the company from
liability.
Held:
(1) That by the rule in England, the "conditions" were notices,
and nothing more, and that it could not be held as matter of law
that, whether they were regulations for the conduct of business or
limitations upon common law obligations, they constituted any part
of the contract.
(2) That the rule was not otherwise in this country.
(3) That on the evidence, the court cannot conclude that the
libellants should be held bound, as matter of fact, by any of the
alleged
Page 166 U. S. 376
conditions or limitations, as they were not included in the
contract proper, in terms or by reference.
The "act of God," which would exempt from liability under such
circumstances, is limited to causes in which no man has any agency
whatever.
Libellants, the Misses Potter and their maid, were passengers on
the steamship
Majestic, which sailed from Liverpool on
January 20, 1892, and arrived at New York on the 28th. On
disembarking, the contents of their trunks were found badly damaged
by sea water, and this libel was filed in the District Court for
the Southern District of New York to recover for the loss.
The libel alleged that the Oceanic Steam Navigation Company,
owner of the
Majestic, for a valuable consideration agreed
to carry and transport libellants, with their personal baggage, to
New York, and charged that the damage to the baggage was caused by
negligence and want of proper care. The answer admitted the
delivery of the baggage on board in good order, and its condition
on arrival at New York, but put in issued the allegations of
negligence and want of proper care. It set up certain stipulations
as contained in the ticket under which libellants took passage, by
which it was averred the ship was discharged of liability, or, in
any case, was not liable for any injury beyond the amount of
�10, and it finally alleged that the injury, if any, was
caused by the act of God or the perils of the sea, and was in
nowise caused or contributed to by the neglect or misconduct of any
of its agents or servants.
The so-called "ticket" issued to the three libellants, omitting
numbering and the display headings, was as follows:
image:a
[on the back:]
image:b
Page 166 U. S. 378
[Here followed certain unfilled blanks.]
The signature "R. Martckellell" was in writing; the other
signatures in print.
The ticket was purchased at London by direction of the father of
the young ladies, was brought to the office of his firm, and, as
was usual, was held in a particular department until given to those
for whom it was intended. He had no recollection
Page 166 U. S. 379
of having seen it, and if he did, did not examine it. One of the
libellants received the ticket in an envelope, did not look at it,
and knew nothing of its contents, and the others did not see it.
There was no proof whatever that Mr. Potter or the libellants ever
had their attention called to the notices on the back of the paper
or ever read or assented to what was printed thereon.
The injured baggage was checked from London to New York direct,
after it had been properly marked and labeled for the hold, in
accordance with an arrangement between the steamship company and
the London and Northwestern Railway for checking baggage through,
the practice of the company being to furnish its alternative labels
for passengers' baggage, indicating the place in which the baggage
should be put.
The baggage was not put in the hold proper, but stowed in
compartment No. 3 of the Orlop deck, where the mails were also.
This compartment was about 25 feet in length, had water-tight
bulkheads at each end, was ordinarily a safe place for the baggage
of passengers, and frequently so used. It had three or four
portholes on each side, considerably above the water line, closed
in the usual way, with glass, covered over with an iron protector
called a "dummy."
On the morning of January 25th, it was found that a porthole was
broken in Orlop No. 3, and that the whole compartment was flooded
with sea water. On which side of the ship the shattered porthole
was located was not shown.
The log contained this entry:
"Jany. 25th. Commenced with clear weather and a high westerly
swell. From seven to eight a.m. vessel passed through a quantity of
wood, apparently deck planking, and about eight a.m. it was found
that the after port in the mail room had been broken through by the
sea or by wreckage, and that a large quantity of water had found
its way in and damaged the mails and baggage. The broken port was
at once replaced by a spare one, and measures were taken to remedy
the damage as much as possible."
The captain testified:
"When I got up in the morning, the
Page 166 U. S. 380
first thing I saw when I came out of the chart room were some
planks, floating wreckage, that the ship had evidently passed
through in the dark, and was passing through at the time, and there
was a pretty rough sea. I saw this port after it was stove in, and
it was forced right in. The glass had broken in a great many
pieces, and the iron dummy protecting it was forced off the hinges
and turned right back -- which could not possibly have been done by
the sea alone."
The chief officer was called as a witness by libellants, and
testified that he was on the bridge on the morning of the 25th from
6 to 8; that they "had rough seas; a bad choppy sea;" that he "saw
one piece of wreckage; it looked like deal; it was a good sized
piece of timber; it was on the port side, away from the ship." His
evidence leaves it doubtful whether he inspected Orlop No. 3 on the
day the voyage commenced. As to whatever inspection he made, he
states: "I merely opened the water-tight door and looked in." At
first, he said that he had not made an examination of Orlop No. 3
before the 25th, since leaving port, but afterwards that he was
mistaken, and that he was down to the Orlop "the day after we left
Queenstown," and that the accident might have occurred on any one
of the intervening days. He was asked on cross-examination on
behalf of the steamship:
"What called your attention to this damage to the baggage?"
"A. The wash of the water when I opened the door. You see, it is
all in total darkness."
He was further asked and answered on cross-examination as
follows:
"Q. Were these portholes in Orlop No. 3 just as securely
protected as any of the other portholes in the hold?"
"A. Oh, yes; more so, if anything. They are examined by an
officer in Liverpool, and he signs a paper to that effect -- says
the ports are secure."
"Q. Were these ports examined on this voyage in Liverpool?"
"A. Yes, sir."
There was no other evidence as to inspection at Liverpool in
respect of the security of the ports.
Decree was entered in favor of libellants for the full amount of
damages claimed, together with interest and costs. 56 F. 244. From
this decree the steamship company appealed to the Circuit Court of
Appeals for the Second Circuit. After
Page 166 U. S. 381
the appeal was taken, a motion was made before a judge of that
court for leave to take new proofs under the rules of that court,
which was denied. Subsequently claimant moved for leave to put in
evidence certain reported cases, and this motion was denied.
The circuit court of appeals directed the district court to
enter a decree in favor of each of the libellants for the sum of
$48.67 and interest from January 25, 1892, and costs in the
district court, with costs of the appeal to the company. 60 F. 624.
Whereupon the cause was brought here by a writ of certiorari.
Afterwards diminution of the record was suggested, and a writ or
certiorari issued to bring up the transcript of the proceedings on
the application to take additional testimony, etc., and it was
transmitted accordingly; but, as the court found nothing justifying
revision in this regard, this requires no further notice.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
By the contract in this case, the steamship company agreed to
land libellants with their luggage at the port of New York, and
none of the alleged exceptions or conditions was referred to
therein. They were notices, and nothing more, and it cannot be held
as matter of law that, whether they were regulations for the
conduct of business or limitations upon common law obligations,
they constituted any part of the contract.
Such is the rule in England, where this contract between the
ship owner, a British corporation, and citizens of the United
States, was entered into.
In
Richardson, Spence & Co. v. Rowntree, (1894)
App.Cas. 217, the respondent had paid passage money for a
voyage
Page 166 U. S. 382
on appellants' steamer, and had received a ticket folded up so
that no writing was visible unless she opened it, but on which were
the words: "It is mutually agreed for the consideration aforesaid
that this ticket is issued and accepted upon the following
conditions." One of the conditions was: "The company is not under
any circumstances liable to an amount exceeding 100 dollars for
loss of or injury to the passenger or his luggage." Respondent
having brought an action against appellants to recover damages
exceeding one hundred dollars for personal injuries, certain
questions were left to the jury, in response to which they found
that she knew there was writing or printing on the ticket, but did
not know that the writing or printing contained conditions relating
to the terms of the contract of carriage, and that appellants did
not do what was reasonably sufficient to give her notice of the
conditions, and returned a verdict in her favor for one hundred
pounds. The House of Lords affirmed the judgment of the Court of
Appeal that there was evidence upon which the jury could properly
find as they did, and that judgment was properly entered for
plaintiff upon the findings.
The lord Chancellor (Lord Herschell) said:
"Now those are questions which the majority of the Court of
Appeal in the case of
Parker v. South Eastern Railway
Company, pointed out, by their judgment, ought to be left to
the jury. That was a case, in its broad features, very similar to
this inasmuch as the plaintiff there had deposited some luggage at
the luggage office of one of the railway companies, and received in
return for the deposit of the luggage a ticket on which there was
printed 'See back,' and on the back were certain conditions by
which it was sought to limit the liability of the company. The
majority of the Court of Appeal held that they could not say as
matter of law that, by reason of taking that ticket in exchange for
the goods, the plaintiff was bound by the conditions; that there
were questions to be determined by the jury, and that upon their
determination would depend the liability of the defendants."
"My Lords, the only question that now comes before this
Page 166 U. S. 383
House is whether there was any evidence to go to the jury upon
which they could properly find the answer that they did to the last
two questions. Now what are the facts, and the only facts, bearing
upon this question which were proved before the jury? That the
plaintiff paid the money for her passage for the voyage in
question, and that she received this ticket handed to her folded up
by the ticket clerk, so that no writing was visible unless she
opened and read it. There are no facts beyond those. Nothing was
said to draw her attention to the fact that this ticket contained
any conditions, and the argument of the appellants is, and must be,
this: that where there are no facts beyond those which I have
stated, the defendants are entitled as a matter of law to say that
the plaintiff is bound by those conditions. That, my Lords, seems
to me to be absolutely in the teeth of the judgment of the Court of
Appeal in the case of
Parker v. South Eastern Railway
Company, with which I entirely agree, nor does it seem to me
consistent with the case of
Henderson v. Stevenson, in
your Lordships' House, when that case is carefully considered."
In
Henderson v. Stevenson, a ticket having on its face
only the words, "Dublin to White Haven," was given by a steam
packet company to a passenger who, without looking at it, paid for
it and went on board their steamer. The ship was wrecked, the
passenger lost all his luggage, and brought an action against the
company. The defense was that on the back of the ticket these words
were printed:
"This ticket is issued on the condition that the company incur
no liability whatever in respect of loss, injury, or delay to the
passenger, or to his (or her) luggage, whether arising from the
act, neglect, or default of the company or their servants, or
otherwise."
Judgment was given against the company and affirmed by the House
of Lords. The lord Chancellor, Lord Cairns, said, among other
things:
"It seems to me that it would be extremely dangerous, not merely
with regard to contracts of this description, but with regard to
all contracts, if it were to
Page 166 U. S. 384
be held that a document complete upon the face of it can be
exhibited as between two contracting parties, and, without any
knowledge of anything beside, from the mere circumstance that upon
the back of that document there is something else printed which has
not actually been brought to and has not come to the notice of one
of the contracting parties, that contracting party is to be held to
have assented to that which he has not seen, of which he knows
nothing, and which is not in any way ostensibly connected with that
which is printed or written upon the face of the contract presented
to him. I am glad to find that there is no authority for such a
proposition in any of the cases that have been cited."
It was held that a mere notice from the steam packet company,
without the passenger's assent, would not discharge it from
performing its duty to carry safely and securely unless prevented
by unavoidable accident.
The rule is not otherwise in this country, and is stated in
Wheeler on the Modern Law of Carriers 263 thus:
"A notice or memorandum, even though printed upon the bill of
lading or other contract of the carrier, unless referred to in the
body of the contract and thus made a part of it, is no more than a
notice, and does not form a part of the contract between the
shipper and the carrier."
In
Michigan Central Railroad v.
Mineral Springs Manufacturing Co., 16 Wall. 318, it
was held that although a common carrier might limit his common law
liability by special contract, assented to by the consignor of
goods, an unsigned notice printed on the back of a receipt did not
amount to such contract, though the receipt with such notice on it
might have been taken by the consignor without dissent. And
New Jersey Steam Navigation
Company v. Merchants' Bank, 6 How. 344, was cited
to the point that nothing short of an express stipulation by parol
or in writing should be permitted to discharge the carrier from
duties which the law has annexed to his employment.
In
New York Central & Hudson River Railroad v.
Fraloff, 100 U. S. 24,
100 U. S. 27,
this Court said:
"It is undoubtedly competent for carriers of passengers, by
specific regulations,
distinctly
Page 166 U. S. 385
brought to the knowledge of the passenger, which are
reasonable in their character and not inconsistent with any statute
or their duties to the public, to protect themselves against
liability, as insurers, for baggage exceeding a fixed amount in
value, except upon additional compensation, proportioned to the
risk."
In
Malone v. Boston ^ Worcester Railroad, 12 Gray 388,
it was ruled that there was no presumption of law that a passenger
on a railroad has read a notice limiting the liability of the
railroad corporation for baggage, printed upon the back of a check
delivered him, having on the face the words, "Look on the back,"
and that the question of notice was properly submitted to the jury
as a question of fact.
And see Brown v. Eastern Railroad,
11 Cush. 97;
Merchants' Despatch Transportation Co. v.
Theilbar, 86 Ill. 71;
Rawson v. Pennsylvania
Railroad, 48 N.Y. 212;
Wilson v. Chesapeake & Ohio
Railroad, 21 Gratt. 654.
On the evidence, we are unable to conclude that the libellants
should be held bound as matter of fact by any of the alleged
conditions or limitations. They were not included in the contract
proper in terms or by reference.
The contract was signed in writing on behalf of the steamship
company, but the notices were not. Libellants did not sign, nor
were they required to do so, nor was it contemplated that they
should.
The ticket was sent to the office of the father of two of the
libellants, and was forwarded or handed to one of them in an
envelope. It was not seen by her until taken up in the middle of
the ocean, nor by either of the others at all. The attention of
neither of them was called to the notices, nor in any way to the
ticket, nor had either of them read it, or read any of the printed
matter, in fine type, by which the contract for passage was
surrounded. The father of the two young ladies had directed passage
to be engaged, and it is true that he had been in the habit of
using such tickets himself in crossing, but there was no evidence
that his attention had ever been particularly called to them. He
had never read them, and he had no idea that the limitations
contended for had ever been claimed to have been imposed
thereby.
Page 166 U. S. 386
We quite agree with Lord O'Hagan in
Henderson v.
Stevenson, that
"when a company desires to impose special and most stringent
terms upon its customers in exoneration of its own liability, there
is nothing unreasonable in requiring that those terms shall be
distinctly declared and deliberately accepted."
But while we hold that libellants were not subjected to these
alleged conditions and limitations, and that therefore the Court of
Appeals erred in its conclusion that each of them was limited in
recovery to �10, a limitation which we must say does not
strike us as exactly reasonable in view of the "twenty cubical
feet" of luggage for each, which the company had expressly
contracted to carry, the question still remains, on the doctrine of
implied exceptions, whether the injury here was by the act of God,
for which the company was not liable. The burden in this respect is
on the carrier.
Clark v.
Barnwell, 12 How. 272;
Transportation Co. v.
Downer, 11 Wall. 129;
The Edwin I.
Morrison, 153 U. S. 199;
The Caledonia, 157 U. S. 124.
The act of God, said Chancellor Kent (vol. 2, p. 597), means
"inevitable accident, without the intervention of man and public
enemies" and again (vol. 3, p. 216) that
"perils of the sea denote natural accidents peculiar to that
element, which do not happen by the intervention of man, nor are to
be prevented by human prudence."
A "
casus fortuitous" was defined in the civil law to be
quod damno fatali contingit, cuivis diligentissimo possit
contingere. It is a "loss happening in spite of all human
effort and sagacity." The words "perils of the sea" may indeed have
grown to have a broader signification than "the act of God," but
that is unimportant here.
Judge Shipman in the Court of Appeals quotes from 1 Parsons on
Shipping 255, the definition there given of the "act of God," and
the reason for it, as follows:
"The 'act of God' is limited to causes in which no man has any
agency whatever, because it was never intended to raise, in the
case of the common carrier, the dangerous and difficult question
whether he actually had any agency in causing the loss; for if this
were
possible, he should be held."
We think it quite clear that the damage complained of cannot
Page 166 U. S. 387
be held to have been the result of such inevitable accident. The
evidence was wholly unsatisfactory as to any inspection of the
porthole before the vessel left Liverpool. What the chief officer
says in that regard, in answer to leading questions, is manifestly
not of his own personal knowledge, but on the assumption that such
inspection had taken place, because it should have, which could
have been established, yet was not, by calling the person whose
duty it was to make it. Whether the ports were properly closed when
the vessel sailed was not made out, nor was any such inspection of
the compartment, after she sailed, proven, as, if the ports were
not properly closed, would have detected the fact. The two or three
feet of water in the mail room, Orlop No. 3, was perhaps not more
than might have been taken in during the first four or five days of
the voyage if the port were not securely fastened and partially
open. As remarked by the district judge, whether the covers to all
of the ports in the mail room, where this baggage was placed, were
screwed down tight, or whether some of them were left open for
light or any other purpose, was not affirmatively shown. The theory
of the defense was that the breaking of the port was caused by
floating wreckage, and while that might possibly have been so,
there was no evidence directly tending to establish it as a fact.
If it had been shown that when the vessel sailed, the ports were in
proper condition and properly closed, and that this was their
condition on the day before the accident was discovered, that would
have presented a different question. The captain testified that the
iron dummy was turned back in a way which could not have been done
by the sea, but he admitted that his memory was treacherous after
the lapse of time, and the log stated that the port was broken
"either by the sea or by wreckage," while the chief officer, who
was on the bridge, as the captain was not, said that between 6 and
8 that morning, he saw only one large piece of wreckage, which was
"a good sized piece of timber," "on the port side, away from the
ship."
And, as Judge Brown held, if the wreckage referred to was of a
kind adequate to force open an iron cover properly constructed and
firmly screwed down over the port, then it devolved
Page 166 U. S. 388
upon the company to show why the ship did not steer away from
the wreckage or slacken speed while passing through it, and this
was not attempted. In our opinion, the steamship company failed to
show that the accident was one which could not have been prevented
by human effort, sagacity, and care, and we perceive no reasonable
ground for disagreeing with the judgment of the district court upon
the facts.
The order of the circuit Court of Appeals is reversed, and
the decree of the district court affirmed, with costs.
