# Steamboat New World v. King

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## Dissenting Opinion

    Daniel
United States Supreme Court
57 U.S. 469
Steamboat New World v. King
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 My. 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.
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. Barbout, J., 13 Pet. 192.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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