O'Regan v. Cunard Steamship Co.

Knowlton, J.

The plaintiff was sent for and the price for her passage was paid by one of her daughters, a resident of Boston. It does not distinctly appear by the report whether the daughter, in paying for the passage, acted for herself or as an agent for the plaintiff, but the case has been argued by the plaintiff’s counsel as if the plaintiff was the original contracting party acting through her daughter as her agent. It is a natural inference from the language of the report, that the daughter paid the money and made the contract in Boston as a principal, but for the benefit of her mother. Perhaps this is not very important, for if the defendant contracted with the daughter to carry the plaintiff, it would owe the plaintiff the duty to use proper care for her safety as a passenger as well as if the contract were made with the plaintiff herself.

The first question in the case is whether the contract made in Boston, or the more definite agreement subsequently made in Cork, is the contract by which the rights of the parties are to be determined. The contract made in Boston was not an agreement that the plaintiff should take passage, and that the defendant should carry her to Boston at all events. It gave an option to the plaintiff to be carried or not, as she might choose, and, if her decision should finally be adverse to coming, it bound the defendant to pay back the money less the agent’s commission. It did not state when or by what steamer the plaintiff would come, or whether she would come at all, and it could not be known whether it would ever be the duty of the defendant to carry her until she should first determine whether she wished to come. As soon as she gave the notice of her intention to embark in accordance with the terms of the original contract, she became entitled to a steerage passage on the next steamer sailing for Boston. If nothing else had occurred, her rights would have been finally fixed by the contract made in Boston; but if the parties chose, it was proper for them to make a new and more definite contract, containing provisions in regard to what before had been left indefinite and uncertain. The giving of the notice of intention to embark, the assignment of the plaintiff to a particular steamer, and the giving up of the old contract by both parties were a sufficient consideration for the making of the new one. If the plaintiff through her daughter as agent was the original contracting party at Boston, it is very clear that she could consent to give up the old contract and substitute a new one for it. If the contract made in Boston was her daughter’s contract, and not hers, it was of a kind which contemplated the use of it by her for her own benefit, as evidence of the ownership of a valuable right personal to herself. Through the original contract she was brought into the position of a person entitled to passage on the defendant’s steamer. As a person holding a ticket entitling her to a steerage passage on some steamer of the defendant, it was competent for her, before becoming a passenger, in connection with the notification of intention to embark, to enter into a new and more definite arrangement with the defendant in regard, not only to the steamer on which she should come, but also to other things affecting her interests, and to give up her rights under the original paper, and to take a new contract stating more fully the rights and duties of the parties. As the holder of a personal ticket procured and paid for by her daughter, she could do this as well as if she had bought the ticket herself. Before the making of the new contract, the plaintiff had no definite agreement with the defendant in regard to her board during the voyage, and the stipulations in regard to that and other things, with the cancellation of the old ticket, furnished a valuable consideration for the substitution of a new one. After the new one was issued and accepted, the rights of the parties were governed by it. It was made in Great Britain, and it is governed by English law. It was not a mere check, but was a contract by which the plaintiff was bound, even if she did not read it. It was her duty to ascertain its contents, if she cared to know her rights. Fonseca v. Cunard Steamship Co. 153 Mass. 553. Although the stipulation relieving the defendant from liability for injuries resulting from the negligence of its servants is against the policy of our law, it is not immoral or illegal, and it being valid in Great Britain where it was made, it will be enforced on principles of comity by our courts. Milliken v. Pratt, 125 Mass. 374. Scudder v. Union National Bank, 91 U. .S- 406. Fonseca v. Cunard Steamship Co., ubi supra, and cases there cited.

If the rights of the parties had been left to stand on a contract made in Boston to transport thither a passenger from Queenstown in Ireland on a British ship, a question would have been involved which we have no occasion now to consider.

Judgment on the verdict.