the orders of such officer, if the damage result from obedience. to positive orders from him; but if the orders be such as to leave the master and crew a discretion under the circumstances, the owners are answerable for the injury occasioned by the negligence of their servants.' 1 Hodgkinson v. Fernie, 26 L. J. (C. P.) 217, but see Fletcher v. Braddick, 2 N. R. 182. U Statute and 305 To regulate the conveyance of passengers, and to ascertain and enforce the public duties which are binding on owners and masters who engage in this description of traffic, the legislature have passed successively several general statutes,' the latest of which is the 18 & 19 Vict. c. 119. But that act applies, with some few exceptions, only to "voyages from the United Kingdom to any place out of Europe, and not being within the Mediterranean Sea," and all but exclusively to "passenger ships," i.e., ships carrying more than thirty passengers, or a greater number of passengers than in the proportion of one statute adult to every fifty tons of her registered tonnage, if a sailing vessel, or one to every twenty-five tons of her registered tonnage, if a steamer.' Most of the other cases of passenger traffic, no small proportion of the whole, remain still as they were at common law, subject to stipulation between the parties and to the effect of general usage between the ports, when such usage or stipulations modify the general common law rights of the passenger, owner, or master, respectively. But any right of action to which any one within the provisions of the statute 1 5 & 6 W. 4, c. 55; 5 & 6 Vict. c. 107 ; 8 & 9 Vict. c. 14; 10 & 11 Vict. c. 103; 11 & 12 Vict. c. 6; 12 & 13 Vict. c. 33; 14 Vict. c. 1; 15 & 16 Vict. c. 44. 2 18 & 19 Vict. c. 119, § 4, 15, 48, 96, 99, 100, 101. 3 Ibid. § 3, 4. is entitled at common law, is not taken away or abridged by the statute.' When the contemplated voyage is to be of considerable THE CONTRACT. duration, the contract usually is in writing, and, within the Passengers' Act, must be in the prescribed form,' stating the ship's name and tonnage, the day of sailing or embarkation, the voyage from terminus to terminus with the intermediate ports to be touched at (if any), the passage money, the part of the ship, cabin or steerage, to which the contract applies, with a dietary scale which is commonly annexed and incorporated by reference. No stamp, however, is requisite." If the time of sailing be of the essence of the contract, the TIME OF Sailing. passenger is absolved from his obligation by delay of the ship, and entitled to damages with a return of the passage money; but if it be matter of representation merely, delay, when it is not unreasonable, can be no breach of the contract, and refusal to go with the ship may even subject the passenger to forfeiture under a usage of the port in that particular trade. In the following case it was held that there was a warranty as to the time of sailing. A. in Ireland received, upon application, a letter from the defendants, agreeing to carry him and his family, for a sum named, to Australia, and on the fly sheet of the letter appeared a printed circular, headed, "Emigration to Australia," and stating that "ships will be dispatched on the appointed days (wind and weather permitting) for which written guaranties will be given." A list of ships was given in the same document, and The Asiatic, one of them, was appointed to sail from London on the 15th of August, and from Plymouth on the 25th. It was stated in the same circular, "Passengers from Ireland can readily join at Plymouth. A deposit of one-half the passage money to be paid at the time the berths are engaged, the balance to be paid prior to granting the embarkation order." A. engaged berths on board The 1 18 & 19 Vict. c. 119, § 58. * 18 & 19 Vict. c. 119, § 71, and in the case of steerage passengers, this section is applicable to any ship intended for a voyage that is within the act. See the Time of Sailing by Statute. Embarkation : and Sailing. Asiatic, and paid the deposit, but received no written guaranty. The ship, in fact, did not reach Plymouth till the 3rd of September, but the state of the wind or weather had not been such as to account for the delay, and A. sailed by another vessel. In an action he recovered the deposit money and damages for the expense occasioned him at Plymouth by the detention, on the ground that there was here a warranty of the time of sailing.' On the other hand, where the defendant had engaged a passage by a ship advertised to sail for the East Indies on the 10th of October, and afterwards refused to go with her because she did not sail till the 21st, the jury, under the direction of Tindal, C. J., found that the delay was not unreasonable, and that the time of sailing was matter of representation only; and the captain, under proof of a custom in the East India trade, recovered half the passage money as damages for the defendant's breach of contract.2 The form of contract under the statute gives, for cabin passages the day of sailing, but for steerage passages the day of embarkation; and the cabin passenger's rights thereon are chiefly at common law. The steerage passenger, however, is entitled by the statute to be received on board before six o'clock in the afternoon of the day of embarkation, or in case of refusal or neglect on the part of the ship, to recover the money paid by him, and damages, not exceeding 101. And if the ship, whether a passenger ship or otherwise, do not actually put to sea, and proceed on her voyage before three o'clock in the afternoon of the next day, he is to receive from the ship subsistence money at the rate of one shilling and sixpence per day for each statute adult during the first ten days' delay, and three shillings every subsequent day; but if he is maintained on board as though the voyage had commenced, he is to receive nothing for the first two days of the ten, and nothing for any day of the delay if he is so maintained and the delay be unavoidable. and not attributable to the act or default of the owner, charterer, or master." 1 Cranston v. Marshall, 5 Exch. 395. 3 18 & 19 Vict. c. 119, § 48. For unreasonable delay, even in the absence of any fixed time for sailing, there is a right of action at common law,' which is expressly saved by the statute." 3 4 return of If a passage by the particular ship is not provided according PASSAGE MONEY. to the contract, there is, at common law, a right to a return of Payment and the passage money and damages; if it merely becomes impossible, and that through no fault of the parties, e.g., by the previous destruction of the vessel, there is a total failure of consideration, and the money is returnable; but if the destruction does not happen until after the voyage specified in the contract is begun, although the passenger has not gone on board, the failure of consideration being partial under a contract which is entire, the passage money cannot be recovered back. The statute, however, gives the owners of a passenger ship the option of sending steerage passengers by an equally eligible ship to sail for the same port within ten days after the day of embarkation named in the contract, paying them subsistence money in the meantime, after the rate already mentioned, otherwise such passengers are entitled to a return of all money paid by them and damages besides, not exceeding 101. each. Such a passenger if relanded at the request of the emigration officer on account of his own sickness, or the sickness of any member of his family, and left behind, is entitled to a return of the passage money for himself and any of his family so left." The previous payment of the whole of the passage money, Payment, a conif required, is an express condition of the statutory rights of dition precedent. a steerage passenger under the contract. At common law, Per Alderson, B., Ellis v. Thompson, 3 M. & W. 456; Sansom v. Rhodes, 8 Scott, 544; Yates v. Duff, 5 C. & P. 369. 218 & 19 Vict. c. 119, § 58. 3 So by statute, in regard to steerage passengers limiting the damages to 101., 18 & 19 Vict. c. 119, § 48. Per Gibbs, C.J., Gillan v. Simpkin, 4 Camp. 241. Ibid. The declaration was for money had and received, "But if the money had been to be paid at the end of the voyage, the defendant could not have 7 Ibid. § 46. 8 Ibid. § 48. |