Steamboat New World et al. v. King. and, in looking into the case, we see that the controversy was whether this cultivation of Gamache was not on an entirely different tract from that now claimed to include the premises in dispute. "We are satisfied that the jury must have understood the question to be, whether the cultivation of Gamache, spoken of by the witnesses, was at any place upon the tract to which his heirs now claim title, or at some place upon an entirely different tract. In this view of the question submitted to the jury, there would be no propriety in reversing the judgment for the instruction given for the defendant." The instructions asked by the plaintiffs, which were refused by the court, all refer to the proceedings in the recorder's office, the effect of which has been considered. On the whole it is ordered that the judgment be affirmed. Order. This cause came on to be heard, on the transcript of the record, from the Supreme Court of the State of Missouri, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court, in this cause, be, and the same is hereby affirmed, with costs. THE STEAMBOAT NEW WORLD, EDWARD MINTURN, WILLIAM MENZIE, AND WILLIAM H. WEBB, CLAIMANTS AND APPELlants, v. FreDERICK G. KING. Where a libel was filed, claiming compensation for injuries sustained by a passenger in a steamboat, proceeding from Sacramento to San Francisco, in California, the case is within the admiralty jurisdiction of the courts of the United States. The circumstance that the passenger was a "steamboat man," and as such carried gratuitously, does not deprive him of the right of redress enjoyed by other passengers. It was the custom to carry such persons free. The master had power to bind the boat by giving such a free passage. The principle asserted in 14 How. 486, reaffirmed, namely, that "when carriers undertake to convey persons by the agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence. The theory and cases examined relative to the three degrees of negligence, namely, slight, ordinary, and gross. Skill is required for the proper management of the boilers and machinery of a steamboat; and the failure to exert that skill, either because it is not possessed, or from inattention, is gross negligence. The 13th section of the act of Congress, passed on the 7th of July, 1838, (5 Stat. at Large, 306,) makes the injurious escape of steam primâ facie evidence of negligence; and the owners of the boat, in order to escape from responsibility, must prove that there was no negligence. VOL. XVI. 40 Steamboat New World et al. v. King. The facts in this case, as disclosed by the evidence, do not disprove negligence. On the contrary they show that the boat in question was one of two rival boats which were "doing their best" to get ahead of each other; that efforts had been made to pass; that the engineer of the boat in question was restless, and constantly watching the hindmost boat; and that the owners of the boat have failed to prove that she carried only the small quantity of steam which they alleged. THIS was an appeal from the District Court of the United States for the Northern District of California. It was a libel filed by King, complaining of severe personal injury, disabling him for life, from the explosion of the boiler of the steamboat, New World, while he was a passenger, on her passage from Sacramento to San Francisco, in California. The District Court decreed for the libellant in twenty-five hundred dollars damages and costs; and the owners of the boat appealed to this court. The substance of the evidence is stated in the opinion of the court. It was argued by Mr. Cutting, for the appellants, and by Mr. Mayer, for the appellee. Points for the appellants. First, The steamboat New World occupied no relation towards the libellant that imposed on her the duty to carry safely, or any duty whatever, as the libellant had not paid, and was not to pay any compensation for his transportation. 1. The master had no power to impose any obligation upon the steamboat, by receiving a passenger without compensation. It was not within the scope of his authority. Grant v. Norway, 10 Com. Bench R. Mann. G. & S. 664, 688, reported also in 2 E. Law and Eq. R. 337, and 15 Jur. 296; Butler v. Basing, 2 C. & P. 613; Citizens Bank v. Nantucket, S. B. Co. 2 Story C. C. R. 32, 34; Pope v. Nickerson, 3 Story C. C. R. 475; Gen. Int. Ins. Co. v. Ruggles, 12 Wheat. 408; Middleton v. Fowler et al. 1 Salk. 282. 2. There was no benefit conferred on the steamboat whence any obligation could result. 3. It was not a case of bailment. Story on Bailm. § 2; Kent's Comm. vol. 2, p. 558; Ang. on Car. § 4. 4. The libellant assumed the risk of his own transportation. 5. The libellant stands in a less favorable relation than the steamboat's servants, but she would not be liable to them for negligence of their fellow-servants. Farwell v. B. & W. R. R. Co. 4 Metc. 49; Hayes v. Western R. R. Co. 3 Cushing, 270; Coon v. Syracuse & U. R. R. Co. 1 Seld. 493; S. C. 6 Barb. 231; Priestley v. Fowler, 3 M. & W. 1. 6. He stands in a less favorable relation than goods carried under gratuitous bailment of mandate. Steamboat New World et al. v. King. For passengers carried for hire stand in less favored positions than goods. But the gratuitous mandate imposes only the slightest diligence, and attaches liability only to gross negligence. Ang. on Car. 21; Story on Bailm. §§ 140, 174. 7. He stands in a less favorable relation than slaves transported gratuitously from mere motives of humanity. But the carrier is only liable for gross negligence in their carriage. Boyce v. Anderson, 2 Pet. 156. 8. In no reported case has any such action been brought, or right of action claimed. Second. Even if the libellant were to be regarded as a passenger carried for hire, the steamboat would only be responsible for negligence, and would not be responsible for any injury which should happen by reason of any hidden defect in the absence of negligence. Ingalls v. Bills, 9 Metc. R. 1; Stokes v. Saltonstall, 13 Pet. 181. But as the libellant was to be carried gratuitously, the steamboat cannot, in any view of the case, be held responsible except for gross negligence. Boyce v. Anderson, 2 Pet. 156; Story on Bailm. § 174. Third. There was no negligence on the part of the steamboat. 1. The boilers were properly constructed. She was built as a first-class boat. She had been inspected by the State Inspector, and allowed 40 pounds of steam; by the U. S. Inspector, and allowed 35 pounds; and by neither of these inspectors was any fault found with the structure of her boilers. Van Wart and Cook both concur in judgment that the boilers were sufficient. Lightall is the only witness that intimates a different opinion, and he does not testify that it was usual to have a stay-brace, or that it was negligence to omit it. He merely regards it as "a measure of safety," and he then admits, that the "stay," if there, would not have prevented the explosion. It would simply, in his opinion, have made the consequence of the explosion less serious. 2. The boilers were frequently and carefully examined. No evidence is introduced to controvert this. 3. The engineer employed, and then in charge, was a man of skill and prudence. This is not denied. 4. The steamboat was not racing. Mere competition is not of itself negligence, unless recklessly or improperly conducted. Barbour, J., 13 Pet. 192. 5. The steamboat was not carrying an improper amount of Steamboat New World et al. v. King. steam. She was allowed 35 pounds by the lowest certificate; 40 pounds by the certificate of another inspector. She was at the time of the accident carrying only 23 pounds. No witness testifies that she carried more than that. This is the only fault that could have contributed to the happening of the explosion. 6. Rosin was not used to generate steam. Haskell is the only witness that gives evidence tending to establish this. But he does not swear the article he saw was rosin. He admits that he did not see any put on the fire. He was stunned by the accident, and his recollection should not be relied on against the positive testimony of two witnesses. Mr. Mayer contended that the decree of the District Court was right for these reasons: I. The wrong occurred within the range and "influence" of the tide, and was within the admiralty jurisdiction,,as now by this court defined. Waring v. Clarke, 5 How. 441; New Jersey Steamboat Co. v. Merchants Bank, 6 How. 341. II. The disaster is of itself primâ facie evidence of negligence, culpable to the degree necessary to attach liability for the damage, and there is no testimony here to countervail that conclusion. McKinney v. Neil, 1 McLean, 540; Saltonstall v. Stokes, 13 Peters, 181. III. Although the steamboat may not be considered as a "common carrier" in case of a gratuitous service, (or mandate, as the Law of Bailment phrases it,) there is, nevertheless, even under a gratuitous undertaking, an obligation to have all enginery in proper condition to carry passengers safely, and a responsibility proportionate to the scrupulous care necessary in so hazardous a mode of conveyance. And it might be justly contended that a liability attaches here, if even for the slightest negligence. But gross negligence is shown not only by the conduct of the boat on the occasion, but by the incompleteness, for the perils of the passage, of the machinery. That inadequacy, per se, imputes gross negligence. McKinney v. Neil, 1 McLean, 540; Maury v. Talmadge, 2 McLean, 157; Hale v. Steamboat Company, 13 Connect. 319; Fellowes v. Gordon, 8 B. Monroe, 415; Story on Bailments, 125. Mr. Justice CURTIS delivered the opinion of the court. This is an appeal from a decree of the District Court of the United States for the Northern District of California, sitting in admiralty. The libel alleges that the appellee was a passenger on board the steamer on a voyage from Sacramento to San Francisco, in June, 1851, and that, while navigating within the ebb and flow of the tide, a boiler flue was exploded through neg Steamboat New World et al. v. King. ligence, and the appellee grievously scalded by the steam and hot water. The answer admits that an explosion occurred at the time and place alleged in the libel, and that the appellee was on board and was injured thereby, but denies that he was a passenger for hire, or that the explosion was the consequence of negligence. The evidence shows that it is customary for the masters of steamboats to permit persons whose usual employment is on board of such boats, to go from place to place free of charge; that the appellee had formerly been employed as a waiter on board this boat; and just before she sailed from Sacramento he applied to the master for a free passage to San Francisco, which was granted to him, and he came on board. It has been urged that the master had no power to impose any obligation on the steamboat by receiving a passenger without compensation. But it cannot be necessary that the compensation should be in money, or that it should accrue directly to the owners of the boat. If the master acted under an authority usually exercised by masters of steamboats, if such exercise of authority must be presumed to be known to and acquiesced in by the owners, and the practice is, e. bn indirectly, beneficial to them, it must be considered to have been a lawful exercise of an authority incident to his command. It is proved that the custom thus to receive steamboat men is general. The owners must therefore be taken to have known it, and to have acquiesced in it, inasmuch as they did not forbid the master to conform to it. And the fair presumption is, that the custom is cne beneficial to themselves. Any privilege generally accorded to persons in a particular employment, tends to render that employment more desirable, and of course to enable the employer more easily and cheaply to obtain men to supply his wants. It is true the master of a steamboat, like other agents, has not an unlimited authority. He is the agent of the owner to do only what is usually done in the particular employment in which he is engaged. Such is the general result of the author. ities. Smith on Mer. Law, 559; Grant v. Norway, 10 Com. B. 688, S. C. 2 Eng. L. and Eq. 337; Pope v. Nickerson, 3 Story, R. 475; Citizens Bank v. Nantucket Steamboat Co. 2 Story, R. 32. But different employments may and do have different usages, and consequently confer on the master different powers. And when, as in this case, a usage appears to be general, not unreasonable in itself, and indirectly beneficial to the owner, we 40. |