Ord v. Steamer Uncle Sam

This case was argued twice. The first opinion, delivered by Burnett, J.

Terry, C. J. concurring, is as follows :

This suit was brought to recover damages for the non-performance of a contract to transport the plaintiff and his family from San Francisco to Hew York. Upon the trial the plaintiff was nonsuited, from which judgment he appealed.

1. It is insisted by the counsel of defendant that there was a fatal variance between the contract alleged and that which was proved. But upon looking into the answer, there is no proper denial of the contract as alleged in the complaint. (Humphreys v. McCall, 9 Cal. 59; Curtis v. Vantine & Richards, Id. 33.)

2. The second ground relied upon to sustain the judgment of nonsuit is that the contract declared on being for the entire transportation to Hew York, there was no lion on the Uncle Sam for the breach of it, and no suit could, therefore, be sustained against the vessel.

The code provides that “ all steamers, vessels, and boats, shall be liable for non-performance or mal-performance of any contract for the transportation of persons or property, made by their respective owners, masters, agents, or consignees.” (Sec. 317.)

It will be seen that under this provision the contract for transportation must be made with the “ owners, masters, agents, or consignees,” of the vessel. It is perfectly comj>etent for the persons mentioned to make a contract for the transportation of persons or property from any one port to another; and the contract, when made, is an entirety, and must be enforced as such. The language of the clause is general, and not restricted to the single case where the entire voyage is to be performed by one vessel. If wo give the clause the construction contended; for, the logical result must be that no suit could be maintained against the vessel, unless, by the terms of the contract, that vessel was to make the entire voyage.

In this case the contract was entire, and a failure at any point was a violation of the contract, for which the vessel was liable. The contract itself was made with the agents of the owners, and they liad as much right to bind the vessel for the entire contract as for a part.

In case the defendant was only liable for the nial-performance ivhich might occur between the ports of San Francisco and San Juan del Sur, and the vessel on the Atlantic side only liable for a violation on that part of the route, who would bo liable for a violation of the contract on the Isthmus ? And if the contract had been violated on all these different portions of the entire route, then three different suits would have been necessary upon the same contract. In that case, the owners of the vessel might well complain that an entire cause of action had been split up into three different parts, to their injury.

3. The question of jurisdiction was decided by this Court in the case of Warner v. The Uncle Sam, (9 Cal. 697.)

Judgment reversed, and cause remanded for further proceedings.