Exceptions are taken to the libel on tbe grounds:
1. That no maritime lien has been shown upon which to base an action in rem against the vessel;
2. That the libel sets up a personal and not a maritime tort;
3. That it does not appear that the ship’s surgeon and purser were acting for the master or in the ordinary exercise of their duties as such officers in doing the acts complained of;
4. That no freighting- contract is alleged, the! breach of which would render the vessel liable in rem;
5. That there is a misjoinder of actions ex contractu and ex delicto;
6. That the facts on which the libellants seek to charge said vessel are insufficient to so charge it, in that the said vessel was. incapable of doing the acts and things charged against it;
1. That respondent cannot be charged on the facts stated,, in that the acts and things set forth are stated to have been done by the said vessel and not by this respondent, and generally
8. That the libel does not state sufficient facts to constitute a cause of action, and that it appears from the libel that this court is without jurisdiction to hear and determine this cause under any law or statute now in force in the United States or this District, and that the same is- uncertain, ambiguous and unintelligible.
In regard to the first and fourth exceptions, the contracts and torts of the master and owners are in numerous cases, including contracts of affreightment, a lien on the vessel. It is admitted that a contract to carry passengers is a freighting contract. The second allegation is a complete answer to the fourth exception.
In support of the second exception, it is contended that the acts complained of amount to a trespass on the libellants as if *11it was charged that they were removed from their state-room by force and arms. Even if the words of the libel include an assault, it is a mere circumstance, the libel also complaining of the failure on the part of the vessel to carry out the agreement under which the libellants started on the voyage, the resulting loss of baggage and thei injury to the feelings of the respondents, physical suffering and humiliation caused by their removal from tlieir state-room to the steex*age. These allegations clearly bring the case withixi the class of maritime torts so far as they charge tortious action on the part of the ship.
As “to the conteixtion of the fifth exception, that there is a xnisjoinder of actions ex contractu and ex delicto, the authorities clearly recognize the right of parties to join in one libel, causes of action arising ex contractu and ex delicto where such causes are so united that the same evidence.will apply to all, which is evidently the status of the case before the court.
The case of Borden v. Hiern, et al., Fed. Cas. 897, No. 1655, allowing this practice, is quoted with approval in 1 Cyclopedia of Law and Procedure, 849, and the rule adopted not only as a right but as a duty of parties.
The third exceptioxx must be allowed. The xnaster represents the ship and is in entire control. Acts of the ship’s -subordinate officers which axn nut in the line of their obvious axxd regxxlar duties should be coixxiected by proper averments with the master’s authority to make the ship liable.
The sixth and seventh exceptions are based substantially on the same quality of pleading, to-wit: that the libel alleges that the vessel exxtered into this contract with the libellants and the vessel failed to .perform it, and that the owner cannot be nxade liable upon sxxch allegations. This manner of pleading is unxxsxxal, and though probably not fatal, should be amended.
The general exceptions under number eight are overruled.
The libellants may have until December 19th, 1903, to amend their libel.