KEENE vs. LIZARDI ET ALS., 6 La. 315

Martin, J., delivered the opinion of the court. This case, which is that of a passenger claiming from the owners of a vessel, damages for the brutal behavior towards ■ him and his wife, of the captain, mate and crew, was before us last summer, when we overruled the defendants excep^ons ^le plaintiff’s right of action against them, and remanded the case for further proceedings. 5 La. Rep. ■ The defendants pleaded the general issue, and had a verdiet and judgment. The plaintiff appealed.

He has put his case before us on a bill of exceptions to the charge of the judge, who instructed the jury “that if they considered that the law of Mexico was sufficiently proven, and that by that law, the owner of a vessel is not liable for the tortuous acts of the captain and crew, they ought to find a verdict for the defendants, otherwise for the plaintiff. This charge assumes the position, that a contract for passage on board of a vessel, is to be regulated by the law of the terminus a quo of the voyage, and the plaintiff contends, that the contract is subject to the law of the terminus ad quern.

The voyage was between Vera Cruz, in the republic of Mexico, and New-Orleans, and he has accordingly urged that the law of this state affords the only legitimate rule of decision. In the case of Malpica vs. Knonn et al. 1 La. Rep., which was a contract of freight, on a voyage between Vera Cruz and Havana, we held that the law of the terminus a quo, was to be resorted to. The decision of that case was the basis of our judgment in a subsequent one, that of Arroyo vs. Currell, id. 528, which was a contract for passage on a voyage, having the same termini.

In neither of these two cases was any notice taken of the law of the terminus ad quern. The plaintiff invoked the law of the terminus a quo, and the defendants that of their domicil. The plaintiff, in this case, considering the question as to the operation of the laws of these two places, as not settled by these cases has insisted, that contracts entered into in one country, and to be performed and complied in another, are governed by the law of the latter. This question was very attentively considered by tbis court, in the case of Depau vs. Humphreys, 8 Martin N.

S., which was that of a promissory note, made in this city, but payable in New-Yorlc, and we came to the conclusion, that although the latter place ■was to regulate the payment of the note, that of this state was to he resorted to, in order to ascertain the legitimacy of the obligation of the maker. tScts° are Either «vefand thoPiat~ ter are not divested of their' count of being tortious, or even criminal, paf‘sa“ntj'sac[)r®f p™s’e]Lrabean‘ot orbIcompeii“dt¿ rytad MbS; pishe^withVood) ¡A ¡fhlStuuncomfortable by any hand being S™nd°ifhe do not enjoy OB board that ease and comfort, for which the passage money is the consideration.

It is likely that when the matter may be considered closely, it will appear that when a contract is to be carried into execution, as to its different parts, in several places, the law of each country is to regulate it as to such parts of the contract as are to be performed in it. But it is unnecessary to enter into the examination of this question, in the present Ca.Se» It is not denied that under the law of Mexico, or that of T , , _ Louisiana, the owner is liable for the contracts of freight or passage entered by the master, and is liable for damages pn a breach of either of these, contracts.

Breaches of contracts are negative or positive, and the latte.r are not divested of their character, on account of their being tortious or even criminal. The pawnee or depositary of. a cask of wine, may become liable in damages to the owner, by a negative breach of his contract, if by this his neglect, part or the whole of the liquor leaks out; by a positive breach if he draws it out and applies it to his own use.. In tbe latter case, can any surety be may have given for his contract, escape from the liability for damages on a breach of contract, on the ground of its being the result of a tortious act?

In a contract of freight, the owner and master are liable for a breach of the contract, if the master by his neglect, suffers part of the goods to he damaged, or takes out part of them from their box or package; the act (being tortious in the latter case) will not on that account absolve the owner from his liability. . A contract of passage is broken, if a cabin passenger he not allowed' the use of the cabin, or compelled to share it with every hand on hoard. If he he not furnished with proper food, if he stipulated for it.

If his situation be rendered, uncomfortable by every hand on hoard being allowed to molest him- Female passengers stipulate further, complete-for ly tor an exemption from rude, indecent or brutal behavior * x towards them. The master is guilty of a negative breach of the contract of passage, if the passengers do not ■enjoy on board that ease and comfort for which the passage money is the consideration.

If the master forcibly drives the passengers out of the cabin ; if he compels them to lodge with the common hands; if by his rudeness, indecency or brutality, he shock the modesty of a female passenger, so as to oblige her to quit the cabin, or as to render the passage comfortless by a continued series of vexation, misery and torment, shall he, as those who are hound for the faithful performance of his contract, escape a liability and damages on the score of his conduct being tortious.

If without being guilty of any of these acts,he stimulates the mate and crew to commit them, will not the consequence he the same? If without such stimulation, he suffers them to commit those acts and neglects, to prevent them, as the result to the party injured will be the same, his right to remunerate in damages cannot be different. Female passengers further stipulate for a complete exemption from rude, indecent and brutal behavior towards The charge of the District Court appears to us to be erroneous.

It is, therefore, ordered, adjudged and decreed, that the judgment he annulled, avoided and reversed, the verdict set aside, and the case remanded, with direction to the judge not to give a charge to the jury, in contradiction with the opinion expressed in this decree. The appellees paying costs in this court.