"The Sue"

(District Court, D. Maryland. February 2, 1885.)

On a night steam-boat, plying on the Chesapeake Bay, colored female passengers may be assigned a different sleeping cabin from white female passengers.

The right to make such separation can be upheld when the carrier, in good faith, furnishes accommodations equal in quality and convenience to both alike.

In the District Court of the United States, for Maryland

    In Admiralty Libel in rem. Martha Stewart and others against the Steamboat Sue.
    A. Sterling, Jr., and Alexander Hobbs, for libelants.
    John H. Thomas, for respondent.

Opinion filed 2d February, 1885

Morris, C. J.
    This suit, (with three others of like character, by other female libelants), has been instituted to recover damages on the allegation that the libelant, who is a colored woman of unobjectionable character and conduct, and who had purchased a first class ticket for a passage on the steamboat, Sue, in August 1884, from Baltimore to a landing in Virginia, on the Potomac river, was refused first class sleeping accommodations on board, and in consequence compelled to sit up all night in the saloon, and experience great discomfort.

    The answer of the claimants of the steamboat alleges in defense that there was provided on board a sleeping cabin for white female passengers in the after part of the boat, and that a sleeping cabin equally good in every respect was provided forward on the same deck for female colored passengers, and that these libelants were told, and well knew before they came on board, that the regulations of the boat did not allow either class to intrude into the cabin of the other, that the libelants all refused to sleep in the cabin provided for the colored passengers, and preferred to remain sitting in the saloon all night rather than go into it, claiming as a matter of right to be allowed to go into the white women's cabin.

    There are two issues raised: The first one of law, the libelants denying the legal right of the owners of the steamboat to separate passengers for any purpose because of race or color. The second is an issue of fact, the libelants denying that the forward cabin assigned to them was in fact equal in comfort and convenience to the after cabin assigned to white women.

    In determining this important question of law, it is to be observed that the steamer Sue is employed on public navigable waters, and plies between the port of Baltimore and ports in the State of Virginia, and that the regulation made by her owners and enforced on board of her, by which colored passengers are assigned to a different cabin from white passengers, is a matter affecting inter-state commerce. It is, therefore, a matter which cannot be regulated by state law; and congress having refrained from legislation on the subject, the owners of the boat are left at liberty to adopt in reference thereto such reasonable regulations as the common law allows. Hall v. De Cuir, 95 U.S., 490. One of the restrictions which the common law imposes is, that such regulations must be reasonable and tend to the comfort and safety of the passengers generally, and that accommodations equal in comfort and safety must be affordable to all alike who pay the same price. The law of carriers of passengers, in this respect, is well stated in Hutch. Carr. §542 [i.e., Hutchinson on Carriers, Section 972 (§542)]. He states the results of the decisions to be that if the conveyance employed be adopted to the carriage of passengers separated into different classes, according to the fare which may be charged, the character of the accommodations afforded, or of the persons to be carried, the carrier may so divide them, and any regulation confining those of one class to one part of the conveyance will not be regarded as unreasonable if made in good faith, for the better accommodation and convenience of the passengers.

    The precise question raised in this case, viz., whether a separation of passengers as to their sleeping cabins on board a steamboat, made solely on the ground of race or color shall be held as a reasonable regulation, has not, to my knowledge, been decided in any court. There have been cases arising from separation made in respect to day travel, as to which there has been some conflict of views, and one or two cases have been cited in which such separations have been held unreasonable.
    U.S. v. Binton, 10 Fed. Rep. 789 (note);
    Gray v Cincinnati. S. R. Co. 11 Fed. Rep. 683 (note).

    These differences of opinion, I think, may be explained, in part at least, by the differences in the circumstances existing in different communities. It is in my judgement a mixed question of law and fact; and whenever it appears that facts do not exist, which give reason for the separation, the reasonableness of the regulation cannot be sustained. But the great weight of authority, it seems to me, supports the doctrine that to some extent at least, and under some circumstances, such a separation is allowable at common law, and I think it is not going too far to say that such is the decided leaning of the Supreme Court of the United States, as expressed in the opinion pronounced in Hall v. De Cuir. The Supreme Court appears to treat the question as one with regard to which reasonable usages which now exist can only be controlled by legislation, and holds that if public policy requires such legislation, it must come from Congress. It is the duty of all courts to declare the law as they find it to be, not as individual judges may think they would like it to be.

    It has been urged by respondents' counsel that the evidence shows that explicit notice was given to the libelants when they bought their tickets before going on board that they would not be allowed to use the white women's sleeping cabins, As to this there is conflict of testimony, but the conflict is immaterial, for it is admitted by libelants that they well knew of the regulations from having on previous trips on the same steamboat been denied access to the after cabin, and of course knowledge was equivalent to notice. But I think the whole issue is immaterial. The libelants paid full first class-price, and did not consent to any such regulations; and if the regulation was unlawful they could not be held bound by it even if specially endorsed on their tickets and read to them. As to the reasonableness of this regulation, I must decide upon the evidence in this case.

    The steam-boat men called as witnesses, testify that it is a regulation which has always existed on all the numerous night lines of steamers on the Chesapeake and all adjacent waters. They give various facts to justify it, and declare that, they are obliged to make it in compliance with the demand of the great majority of their passengers. It must be admitted that a regulation which a carrier may lawfully make, if reasonable, has strong argument in favor of its reasonableness, it is demanded by a great majority of the traveling public who use this conveyance. There was a time when any man on a railroad train who wanted to smoke assumed the right to do so in every car, except what was known as the "ladies car," But the demand of the majority of male passengers gradually compelled the enforcement of a regulation that there should be no smoking unless there was a car set apart for it. It has been argued that the constitutional amendments which assured to colored people all the political rights of citizens of the United States and of the states, and were intended to forever obliterate color as a distinction with regard to political rights, or necessity, made such a color distinction unlawful in carriers as against the declared public policy of the nation.

    In view of the authoritative interpretations of those amendments, I cannot so hold. It is a question which citizenship has but little to do. If it was found that naturalized citizens of English and of Irish birth or the French and German nationality interfered with each others comfort, or with the discipline of the boat, when occupying the same sleeping cabins, the court might well find that a regulation which enforced separation between them was reasonable, and therefor lawful. But to say that differences of race or color may be lawful is not to say that every such regulation can be upheld. The regulation must not only be reasonable in that it conduces to the general comfort of passengers, but it must not deny equal conveniences and opportunities to all who pay the same fare.

    This discrimination, on account of race or color, is one which it must be conceded goes to the very limit of right of a carrier to regulate the privileges of his passengers, and can only be exercised when the carrier has it in his power to provide for the passenger who is excluded from a place to which another paying the same fare is admitted, accommodations equally safe, convenient and pleasant.

    This proposition of law, I am informed, was implied by my learned predecessor, judge Giles, in a suit brought by a colored man who had been excluded from a street car. The street car company had arranged that every third or fourth car, and none other should be exclusively for colored people, but judge Giles held that this did not afford equal convenience to this class of citizens. And this leads to the important question of fact in the present case.

    The libelants testify that the forward cabin which was assigned for their use was offensively dirty; that mattresses in the berths were defaced; That sheets were wanting or soiled, and that there were hardly any berths which had pillows. That there were no blankets and no conveniences for washing. They testify that from their own knowledge the white women's cabin was clean, pleasant and inviting, and had none of those defects. They declare that on former trips they had found the former cabin so intolerable that they sat up all night; and finding it in the same condition this trip, they refused to remain in it, and being refused admission into the after-cabin again, sat up all night. In these assertions they are supported by five other persons, all colored persons, to be sure, but respectable, and all having similar opportunities of experience. They claim also that the approach to the stairway to the cabin assigned for their use was obstructed by cattle, and that there was no key with which their door could be secured, and that its location did not compare in comfort with the women's cabin aft.

    While allowing a good deal for the inflamed feelings for these libelants and witnesses, who all testify under feelings of resentment, I still am far from thinking that they have, in a reckless spirit of vindictiveness, made up this story from the whole cloth. Some things they complain of have been explained away. To a woman accustomed to a comfortable bed on shore, a night aboard ship is generally one of discomfort, and if the sufferer thinks that some one also has better quarters on board, from which she is unjustly excluded, there is no disposition to make the best of what has been provided. With regard however, to the degree of comfort and conveniences in the furnishings and cleanliness of the forward cabin, as compared with the after one, provided for the white female passengers, notwithstanding the general denials of the officers of the boat, and perhaps their intention that there should not be any material difference, there is testimony which I cannot disregard.

    Whatever the general orders of the agents and officers of the boat may have been in this respect, and however fair their general intentions as declared by them may have been, I am quite convinced that no disinterested person would have gone into the forward cabin in its actual condition in August, 1884, who had the option of the other one, irrespective of all questions of color or race. I think it was considered by the persons who actually attended to the forward cabin, that less attention to it would suffice. It appears, too that there was a stewardess to attend to the after cabin, and that she did not attend the forward one. The evidence of the ships officers admit that there was a different system in respect to this cabin in giving out bed coverings.

    The reasons given by the officers for this different system they justify by showing that the greater number of second-class colored passengers who used this cabin as compared with the smaller and more self respecting second-class white persons who used the after cabin, made a different system necessary, and also made it much more expensive and difficult to keep the forward cabin clean. I have no doubt of the truth of this, but it is no legal justification for not giving as clean and convenient a sleeping-place to a colored passenger as is given on the same ship to a first-class white passenger. If a different system was necessary for any reason, the first-class colored passenger should not be made to experience any difference in comfort on account of that system.

    It seems to be only reasonable that some proper attendant should offer to supply the things that were not in the cabin, and which were always placed ready for use in the after cabin, and not that the passenger on discovering the differences should be obliged to hunt for, and with difficulty supply, those things which the others had furnished to them without asking.

    The separation of the colored from the white passengers, solely on the ground of race or color, goes to the verge of the carriers legal right, and such a regulation cannot be upheld, unless bona fide, and diligently the officers of the ship see to it that the separation is free from any actual discrimination in comfort, attention or appearance of inferiority.

    The right to the first-class colored passenger was to have first-class accommodation, according to the standard of the after cabin on the same boat, and this, no matter what might be the difficulties arising from the greater number of second-class colored passengers. If it is beyond the power of the owners of the boat to afford this, then they have no right to make the separation. On many vehicles for passenger transportation, the separation cannot be lawfully made, and the right of steamboat owners to make depends on their ability to make it without discrimination as to comfort, convenience, or safety.

I pronounce in favor of the libelants, and sign a decree for one hundred dollars in each case.(1)

Additional NOTES:
The steamboat company took an appeal from the decision.
On July 9, 1885 the appeal was denied.

1. Vol. 22, Federal Reporter, The Sue, pp 843 - 848