Krauskopp v. Ames

14 F. Cas. 855, 7 Penn. Law J. 77, 1846 U.S. Dist. LEXIS 42

Opinion

KANE, District Judge

(after stating the nature of the libel and answer). The facts as before me in proof, are these. The li-bellant was a steerage passenger from Rotterdam to the United States, on board the vessel which the respondent commanded. Among the regulations for the government of the passengers was one forbidding them to use any of the canvass, cordage, or other property of the ship, without permission. This, it is said, had been more than once broken by the libellant, and he had been reprimanded in consequence, when on the 29th of June, being on the high seas, he was charged by the captain with having taken a small piece, or rag as some of the witnesses call it, of tarred canvass, to assist in kindling the' fire, at which he was cooking his dinner. The witnesses to the transaction did not understand English, and do not speak of the reprimand which followed; they say, however, that the libellant, who speaks their language, distinctly and repeatedly denied that he had committed the offence, and they do not say that he did so in a disrespectful or threatening manner. The captain thereupon snatched the burning canvass from the fire and struck the libellant with it .several blows in the face, following up the attack as the libel-lant retreated by blows of the fist, which made his nose bleed. One of the witnesses for the defence added that at this time the libellant had a stick of fire wood in one hand and a chain-hook in the other, which he had taken up for the purpose either of defence or menace; but it is evident that he made no use of either, and it seemed most probable that he was about to employ them in the adjustment of his cooking fire. After thus striking the libellant with the fragment of canvass and with his fist, the captain retired to his cabin; and immediately returned with a small cord, with which he proceeded to whip the libellant severely. The libellant again retreated, making no defense, and crying loudly for mercy, but the beating continued till he had received, according to the different witnesses, from twelve to thirty stripes over the back, arms, and neck, when some of the passengers interfered. The libel-lant was clad in a shirt and trowsers, and the lashes were severe enough, some of them, to break the skin, drawing the blood, and leaving wounds, that were still open, according to one witness, at the end of a fortnight.

It is added in almost all the depositions on both sides that the libellant was not acceptable to those on board. He is said to have been extremely regardless of personal cleanliness, offensive in his manners, and frequently engaged in disputes and even fights with his fellow passengers. He was generally, if not universally, designated as “the Jew,” and seems to have been the object of common dislike to the passengers and inferior officers. It is not, however, in proof, that he was at anytime the aggressor, and it would seem that the gross language which he applied to the captain, though not in his presence, was provoked by the beating which he had received shortly before. I have attended to the libellant’s offensive bearing, and to his unpopularity on board the vessel, which are testified to by the witnesses, because, on the other hand, they negative the idea of partiality towards him in their representations here, and because they present the only palliation which the proofs, as I have analyzed them, enable me to find for the captain’s conduct.

Such are the facts upon which I am now to pass. They establish, beyond question, the trespass complained of, and they fail to show any legal justification on the part of the respondent. The law invests the master of a ship at sea with a high and responsible discretion. He has the absolute charge of his vessel, the absolute command of his crew, and a necessary control over his passengers. He may make proper regulations for their government, such as may ensure their safety, promote the general comfort, and preserve decent order; and these regulations he may enforce by all temperate and needful exercise of power. But here his authority over his passengers finds its limits, and he is a trespasser if he goes beyond it. He must show not only a breach of regulation before venturing to use force towards any one of them, but also that there was a clear necessity for the exercise of that degree of force. He is not to punish an infraction of mere police rules, by striking a passenger with his fist, or beating him with a rope’s end; still less is he to do this before he has exhausted all milder and less degrading means of vindicating the order of the ship. Courteous request, patience and renewed remonstrance or reprimand, and at least just so much restraint, and, if that be unavailing, just so much active force, and no more, as the exigency may call for, — these are the legitimate rights of the captain over his passengers. They are to be exercised deliberately, and with moderation, without any haste or rudeness, and after patient examination of the facts; and I have no hesitation in adding, that no punishment higher than a reprimand, should ever be inflicted on a passenger, without a conference with the other officers of the ship, and an entry of the facts on the log-book. The only exception to this rule should be that of necessity, present or imminent; resistance to “acts of violence by a prompt reaction of lawful force, as in the disorders of commencing mutiny, — cases which speak for themselves and are of unavoidable dispensation.” Lord Stowell in The Agincourt, 1 Hagg. Adm. 271. I fully adopt the language of Lord Tenterden, as cited by Chief Justice Tindall in Murray v. Moultrie, 6 Car. & P. 472, that even in the case of a mariner, (how much more in that of a passenger,) — “it is always desirable, and indeed the duty of the captain, to institute an inquiry, and have the result of it entered upon the log-book. It is his duty because, by availing himself of the advice of others, he prevents himself from acting solely on his own feelings, which may be excited, and it is his interest, because it furnishes evidence in his favor, to be used on the day of trial.”

Captain Ames, whose general good character appears to be well established, and whose conduct towards the rest of his passengers is spoken of in terms of commendation, has erred grievously m his estimate of his rights over the libellant, or he has been led away by his passions. The libellant has been injured. He may have violated the proper rules of the ship, — he may have offended much against all who were on board by gross disregard of the' proprieties of social life, — he may have been of a quarrelsome temper, or too willing to resent what he considered a sneer at his religious faith. All this does not excuse the captain’s violence towards him, and, sitting here as a judge of admiralty, it is my duty, not only to the libellant but to all who may follow him as emigrants to this country, to decree such damages as may leave no doubt of the protecting power of the law over passengers on the high seas. Considering, however, that this is not the only proceeding in which the captain may be visited for his error, (and anxious to avoid a precedent which may invite too general recourse to the admiralty in cases which, like this, are better fitted for the action of the jury), I am unwilling to mulct him in aggravated damages.

I decree for the libellant, and that the respondent do pay him one hundred dollars for his damages, together with full costs.