The Express.
London, England, 1847-12-24 00:00:00

COURT OF COMMON PLEAS.

the lord Chisflsitiess mg • Speeded
Ivry.
BINNITT V. TEN PININSULAR AND OaxircTAL STRAN
NAVIGATION COMPANT.—LIABILITY FOR MUSING TO
CARRY A PERSON AS PASSINGS& ON BOARD O:ES Or Hal
M•SiSTY'S M•IL-FACISTS.—Mr. M. D. Rill, Mr. Petals-
dor,. and Mr. Anstey for the plaintiff ; the Attorney. Gen-
eral, Mr. Serjeant Byles, and Mr. Ogle for the defer dents.
This was an action brought by the plaintiff, a captain in
the merchant service, against the defendants to recover com-
pensation in damages for 1111lUTIEB alleged to have been done
to his character by reason of the defendants, in their capacity
of common carriers, haring, without any lawful excuse, re-
fused to carry him on a certain voyage in a vessel called the
Montrose. The defendants pleaded—first, that they did not
refuse to carry the plaintiff; secondly, that the ship which
was the subject-matter of complaint did not belong to them;
thirdly, that the defendants were not common carriers, as
alleged in the declaration ; fourthly, that the plaintiff did
not tender himself as a passenger in manner and form 113 in
the declaration alleged ; fifthly, that the defendants did not
refuse to carry him as a passenger on the voyage for which
he tendered himself ; sixthly, that the plaintiff wee not ready
and willing to pay for his passage ; seeenthly, that there
was not sufficient room on beard the y, owl at the time in
question.
The plaintiff's case was 'might to be established by the
evidence of Mr. Richard Andrews, a gentleman connected
with the company, who stated that the vessel Montrose was
announced to sail from Southampton on the 27th of
February last, and that the plaintiff went down to
Southampton on the preceding day for the purpose
securing his passage. Th 3 witness, having been
antra:tied by the company to see Captain Bennett upon
the subject, went to Southampton for that purpose, and he
told the plaintiff he had Seen informed he was desireue of
taking his passage in the Montrose. The plaintiff replied
that such was the fact, and thereupon the witness told him
that he, as the agent of the company, could not allow him to
take kin passage. The plaintiff inquired the reason, and
witness referred him for an explanation to the directors.
Upon which the plaintiff said, " but I want to go to Gibraltar ;"
and the witness answered that " that would make no dif-
ference." The plaintiff then asked the witness to give him
the refural in writing, and he did so. Some further conver.
nation took place, and the witness secured plaintiff that
the company had no ill feeling towards him although
he lead once brought en action against them. Wit.
ness acknowledged that there certainly was sufficient room
in the vessel to afford the plaintiff a purge at the time in
question.—Croes-examined:Tbo Peninsular and Oriental
Steam Navigation Company carried the mails and despatches
for government, and had done so from the period of ire
origin. A lieutenant in the navy had the charge of the
mails. The Teasel usually called at Oporto, for the purpose
of landing the mails, and, at the time in question, Oporto
was in a state of blockade. It was necessary, at that period,
for a passenger to have a passport from the Portuguese con-
sul to enable him to land at Oporto. Witnere's impression
was, that the plaintiff desired to go to Oporto as
his ultimate destination, and he (witness) was sent
by the company to Southampton, in order to prevent
the plaintiff front sailing for that place. Certain
letters were then put in to prove that, some few yens
ago, the defendants had dismissed the plaintiff front
their employ as captain, and that, upon his asking for their
reasons for so doing, they replied that they intended ne im-
putation upon his character. A letter dated 27th February
was then produced, in which it was stated by Mr. Andrews,
on behalf of the company, that they declined taking the
plaintiff " to Gib." (thus abbreviating the word Gibraltar).
The Attorney•Creneral submitted that the plaintiff ought
to be nonsnite& This was an action on the case founded
ouirzlethreeatkutirane,olf.cootmumpoon. urn.;
wchwiriliang,:fc°,7l.cr"tcLin
tract The question, therefore, was whether there was any
obligation upon common carriers to take passengers as well
r,%eods. The common carrier was employed to carry
goods
and their custom or duty was to deliver articles in-
trusted to them at all risks, " the act of God and the King's
enemies excepted." It was clear, therefore, that whatever
the common carrier was bound to take he was bound to deli-
ver ; but he was not compelled by the common law to carry
passengers. The only authority bearing upon the matter
was an American case, to be found in "Storey on Bail-
ments," p. 5131 ; but it did not appear there whether the
action was founded upon a contract or the cowmen law
duty, such as the present declaration proceeded upon. He
untended that there was no custom of the realm which
bound the company to carry passengers, although they
might be hound by their circular, which, however, did not
reader them liable in the present form of action. 'the
second point he (the Attorney. General) had to submit was,
that supposing the defendant, were to be considered is coin-
mon earriers,thete was no custom of the realm which was
applicable to the conveyance of passengers from Ragland to
foreign parts ; and there was another question of law, els.,
as to the terms of the circular issued by the company. It
was contended that the defendants, by that circular, held
themselves out to the world as common carriers. They were
in truth an incorporated company, bound to carry mails for
the government; and is was stated in the circular, according
to hie interpretation of the words, that the performance of
any contract to carry peesengers "depended upon circum-
stances connected with her Majesty's mails." The company
did not hold themselves liable for any damage or loss of
luggage, and their right to carry passengers was pdrely con-
ditional.

Thu Pairs.

The learned Judge maid he would reserve these point* for
the oensideratioa of the court above.
The Attorney General thee addrewed the jury for the de-
fendants, contending that the question of fact was a very
simple one. Did the plaintiff tender himself, or did he wish
to go as he professed—a passenger to Gibraltar? Upon
this matter he was weaned that the verdict would
be in favour of the defendants, and such verdict
would dispose of the whole case ; but if, on the
contrary, they should decide in favour of the plaintiff,
what damages would he be entitled to under the circum-
stances ? The company wee as the jury had heard from
their circular, an incorporated company established for the
conveyance of her Majesty's mails and despatchel to India
and other parts. They were bound by the terms of this cir-
cular, and were also subject to the control of the Admiralty.
He therefore urged that although they might be common
carriers they wre not ordinary common carriers, but their
vessels were originally designed for the conveyance of her
Msjesty's mans. It was true they were at liberty If they
liked to carry passengers, in order to eke out the expenses
attendant upon their duties ; but they were not bound to do
so. It was, however, part of their duty to conduct their
affairs in • spirit of amity with the British government, and
if they had reason to behre—as he felt assured they had—
that Captain Bennett was not ping to Gibraltar but to
Oporto, and for a purpose not sanctioned by government, it
was incumbent upon them to send • person to Southampton
to prevent him from carrying out his object. Captain
Bennett sought to recover damages for injury done
to his character. He (the Attorney.Generel) con-
tended that there was no such ground for com-
plaint. Captain Bennett might, as had bean stated, have
been long in the mercantile service, and he might also have
distinguished himself as an officer; but nevertheless it would
appear that in the year 1847 he wan an active agent of Don
with m, assisting to carry out his objects,
acting helium in various matters connected with his position
en this emiley. In this state of things he applied to the
Portage= cowl-general for • passport, end it was refused
him. • isomeminisation was made to the company, and they
emplo a gentleman to proceed to Southampton to p
Capt. &emelt been sailing in one of their ships.. Oporto
was at the thmills• state of blockade, and it war evident that
the plaintiff incited to proceed thither, if he should clawed
obUftfwg lort. Supposing under dmilar circum-
stances tbo ddani were to allow &person to go to Franco
the whale agamladmight be involved in a war. The °out-
gry"
won
to
wry* ree
.zrit_tomoshorttheir
eOeotasddlifflleaaa of affair. And the groundu of the prerrto 'nnttdeefene:
was this: the plaintiff had tendered himself as •
ri to Gibraltar, whereas it was perfectly clear
tat design was to go to Oporto ; but if in
point of fact he really did wish to go to Gibraltar, and
not to Oporto, it was not pretended that be had sustained
any mercantile lass, or that he had suffered any serious
damage. The only ground of complaint was that the de-
fendants, by their conduct, had injured the plaintiff's cha-
racter and reputation, and in this respect he (the Attorney-
General) submitted that he could not maintain the present
action.
The company's charter was then put in, proving that they
were incorporated for the purpose of carrying her Majesty's
mails.
Francisco Ignatius Valise*, consul-general of Portugal in
this country was then called, and he stated that previous to
the 27th of February last, the plaintiff applied at his office
fur • purport, and he refused to give him one. The plaintiff
asked the reason why, and witness told him that he gave no
reasons, but he could not give him a passport. At the same
time he informed him that he might perhaps succeed in ob.
tinning one from the Portuguese minister, or from Lord
Palmerston at the Foreign-offiee. The plaintiff replied that
it was very strange that the Portuguese consul would not
grant him a passport, and witness answered that that was
his own burners. On the plaintiff's quitting the office,
witness immediately mot • menage to the Portuguese
minister from whom he had previously received directions
not to give a passport to Captain Bennett. Witness knew
Don Miguel by tight, and had seen him and the plaintiff
together. Don Miguel was now in this country he believed,
and at the time in question be was living at Canonbury
'Pottage, Islington.
John Webb, a " walk's= "to the New River Company,
stated that he knew Captain Bennett, and that in the month
of February last he lived at Canonbury Cottage. Witness
had ern • person at the cottage whom the people called
" Don, the King," but he did not know him by name. He
believed he wssliving with Captain Bennett. Mr. Bennett
was absent for some time, and during that period entries,
never saw " Don, the King."
Antonio Ferreira mid he was agent " for his country and
for Don Miguel." He knew Captain Bennett, and in the
month of February last Don Miguel was living with him
(Bennett). About the middle of March Captain Bennett
left Riegiread, and weeatimat three or four weeks. Upon
Ws return he taid wham that he had been to Oporto, and
that he went dine{ hies Ueda" fa a twudl vestaL Don

Miguel need tovisit him at this time, but be had ceased to
lies with him. Dan Miguel arrived in this country on the
2nd of February ; Captain Bennett having gone no Rome
to fetch dim.—Cross-examined: There was a civil war in
Portugal at the time in question. Witness was not the
agent for what was called the liberal party. He had lived
1 in this country about eighteen years.
Signor Vanzetti' recalled: If the plaintiff had received a
passport witness would have known it. It would have been
Neely him or the Portuguese minister. According to the
route taken by the company's vessel., Captain Bennett
might have landed at Vigo, Oporto, or Lisbon. A passenger
might land in a Portuguese port without a passport, but be
would be always eked if he had one.
Mr. Hill replied, and contended that the defence set up
was by no means creditable to the Peninsular and Oriental
Steam Navigation Company. It was, indeed, a very harsh
mode of proceeding to refuse to convey an Englishman to a
foreign country, simply because, in secordaece with the ge-
neral feeling of kindness and hospitality displayed towards
foreigners throughout this realm, he had shown some degree
of sympathy for an exiled prince, and bad been seen
ocessionally in his compeer. It was net proved that the
plaintiff had been in any way connected with the political
affairs of Portugal, and although it might be true, aa the
Attorney-General had expressed it, that the defendant.
were, to a certain extent, under the control of the Admi-
ralty, there was no authority by which an Englishman was
prevented from travelling to any country he might think
proper to visit upon his own private business.
The Chief Justice, in summing up, said that upon the
question as to the duties of the company it spire and to him
that they were common carriers, and be should hold this
opinion for the purposes of to day, subject of course to the
judgment of the full court. With regard to the first issue
rained by the pleadings, there seemed to him no doubt that
the plaintiff was entitled to a verdict, and also upon the
second issue. Upon the third plea, which involved the
querion of law just mentioned, the verdict, he thought,
should be entered for the plaintiff. Upon the sixth plea,
which stated that the plaintiff was not ready and willing to
pay for his passage, the jury would may whether or not they
entertained any doubt upon that subject. If they were not
satisfied that the plaintiff was ready and willing to pay,
they must find for the defendants, as the company was not
bound to take any one as a passenger who was not prepared
to pay the sum demanded. Upon the seventh plea, also,
the plaintiff was entitled to their verdict, as the plain-
tiff's witness had proved that there was " sutheient
room" in the vessel to convey the plaintiff 111 a passenger.
They had therefore only to consider the fourth and fifth
pleas—that the plaintiff did t of tender himself as • pas.
Gensler toGibralter, end that the defendants did sot refuse to
carry him as a passenger on the voyage for which he ten-
dered himself. Upon the sulject of the fourth plea
the jury would observe that it involved no question am to the
plaintiff's ultimate intention, and although it was matter
entirely for their consideration, he fat hound to say he
could see no ground upon which the defendants were en-
titled to a verdict on that issue. To the fifth plea the letter
produced by the company's agent afforded a complete
answer. It appeared to him, therefore, that the plaintiff
was clearly entitled to a verdict on all the issues raised upon
this record. The defence was, that the plaintiff was a per-
son taking an inter, et in a political quarrel with a foreign
power, and that his object in wishing to leave this country
was in some way connected with that political matter.
Therefore, it was said the defendants were jnstified in re-
fusing to carry the plaintiff, but it was perfectly clear that
there was an entire absence of any interference oa the
part of the government in connexion.' with that re-
fusal; and it appeared to him (the learned judge) that the
company was notconnected with the B ritish governmen t except
for the purpose of carrying the mails. But their position
in reference to the government had nothing to do with the
present case. The question was presented to the jury in
this form. Here was a public company, holding themselves
out as carriers, refusing to take a person on board one of
their vessels because: they suspected he was mixed up with a
political quartel. le this there might be some ground for
the interfersice of the Portuguese government, but it did
not appear that there was any interference whatever on the
pert of the British government. The grounds upon which
the defendants justified their refusal to convey the plaintiff
as a passenger were not supported, he thought, by anything
in the conduct of the plaintiff, and there was so evidence of
his being concerned in the political quarrel referred to, ex-
cept the fact of his living in the same house, for a certain
time, with Don Miguel, and of his having gone to Oporto.
Supposing the jury should be of opinion that the plaintiff
was entitled to a verdict, they would consider whether the
allegation that the plaintiff desired to go to Oporto for the
purpose of mixing himself up with a foreign power afforded
ground for aggravation instead of mitigation of da-
mages. He (the Chief Justice) could see no distinc-
tion between the present company and a railway company in
reference to this point, and his opinion was that the latter
had just as much right as the former to speculate upon the
intentions—political or otherwise--of persons wishing to be
carried by their conveyances. He, therefore, considered
that any person who complained of being unjustly and im-
properly treated under the circumstances mentioned per-
formed' public service by bringing his case before a jury,
and the jury could only decide in hie favour by giving him
fair and reasonable damages.
The jury returned a verdict for the plaintiff—Damages,
202/.