
    CONNELL STEAMBOAT COMPANY v. THE UNITED STATES.
    
    [No. 34628.
    Decided October 29, 1923.]
    
      On the Proofs.
    
    
      Charter party; demise; contract for service. — Where the owner of certain vessels enters into a charter party with the Government to hire said vessels to the Government fully equipped and manned, some for a definite period and some for an indeterminate period to be fixed by the Government, the owner agreeing to pay the costs of operation and maintenance, except coal and water, and the Government agreeing to pay a specified rate per day of 12 hours and a greater rate per day of 24 hours, and the Government thereupon assumes complete and exclusive possession of and control over such vessels during the period of hire, it is a demise of such vessels for the contract term and not an agreement for service only, and the Government has no right to charge the owner with loss of time during the charter period.
    
      The Reporter’s statement of the case:
    
      Mr. Robert 8. Ershine for the plaintiff. Kirlin, Woolsey, Campbell, Hickox dé Keating, and Messrs. John M. Woolsey, H. H. Fleming, and John A. Kraiz were on the briefs.
    
      Mr. W. L. Cole, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    The following are the facts of the case as found by the court:
    I. The plaintiff, the Cornell Steamboat Co., is a corporation organized under the laws of the State of New York and at the times hereinafter mentioned was the owner of the tugs Ellen M. Ronan, Ira M. Hedges, 8. L. Crosby, G. W. Decker, H. D. Mould, Wilson P. Foss, R. J. Foster, Victoria, John G. Rose, Charlie Lawrence, Primrose, and John T. Welch.
    
    II. Captain N. J. Shelton on November 8, 1917, was the officer in charge of the transportation division with the general superintendent of the Army Transport Service and as
    
      such officer was authorized to contract for the hire of tugs for the use o'f the United States in New York Harbor. Bruce G. Broad was the general manager of the plaintiff company and as such was authorized to make contracts for the use of tugs belonging to the plaintiff company. On November 21, 1917, and on November 22, 1917, the plaintiff company wrote the following letters to Captain N. J. Shelton:
    * November 21, 1917.
    Captain N. J. SheltoN,
    
      No. 101¡. Broad Street, New Yorh Oity.
    
    ARMY TRANSPORT SERVICE.
    Dear Sir : We confirm our verbal arrangements of to-day to charter to you the tug Providence, engine 16" x 20", steam 155 pounds, and the tug Charlie Lawrence, engine 18" x 18", steam 140 pounds, with a single crew and everything found, excepting coal and water, which you are to furnish, at the rate of Seventy-five ($75.00) Dollars, for each and every day, per tug, beginning Seven A. M. November 22nd, 1917.
    It is understood that these two tugs are placed in service on trial for several days and if they meet with your requirements formal .charter party is to be executed for the hire of these tugs by you continually until J une 1st, 1918, at the same rate, with a privilege of renewal after that date.
    Yours truly,
    Cornell Steamboat Co., -, Manager.
    
    BGB:B
    November 22, 1917.
    Captain N. J. Shelton,
    
      No. 104- Broad Street, New Yorh City.
    
    army transport service.
    Dear Sir: The tugs Charlie Lawrence and Primrose normally burn anthracite pea coal and not bituminous coal, whicn you furnish. Their present grates are arranged for hard coal. Inasmuch as these two boats are in your service to-day, as per our letter of November 21st, on a trial basis, we suggest that we furnish the coal during this trial and charge it to you at cost to us, aboard the tug. Then if these tugs prove satisfactory and you wish to make a charter for a period of time we will change the grates for soft coal. Please advise if this is satisfactory to you.
    Yours truly,
    Cornell Steamboat Comrany, -, Manager.
    
    New York, November 1917.
    
    General Superintendent, U. S. A. T. S.
    BGB:B
    To these letters Captain Shelton replied as follows:
    To: Cornell Steamboat Company, New York City.
    Sub: Tug boats Primrose and Charlie Lawrence.
    
    1. Your favor of November 21st, offering the tug boats Primrose and Charlie Lmorence for charter to the Army Transport Service, has been received and accepted according to the conditions stated in your letter.
    2. In this connection and in reference to your letter of November 22nd, you are advised that it is agreeable to this office that you delay changing the grate bars in two- (2) tugs mentioned, and that you supply coal at cost price to the Government while these boats are undergoing trial.
    By authority of the General Superintendent, U. S. A. T. S.
    (Signed) N. J. Shelton, NJS-bkh Captain, A. Q. M.
    
    The tug Primrose was in the service of the Government continuously from January 1, 1918, to April 11, 1918, a period of 101 days. Six days of this time the Primrose was a 12-hour day tug at $75 per day, and the residue of the time was a 24-hour day tug at $150- per day.
    The tug Charlie Lawrence was in the service of the United States 13 days in January, 1918.
    On December 1, 1917, the plaintiff company wrote the following letter to Captain N. J. Shelton:
    December 1,1917.
    Captain N. J. Shelton,
    
      U. 8. Army Transport Service,
    
      No. lOlf, Broad Street, City.
    
    Dear Sir: This confirms our verbal arrangement to-day to charter to you the tugs John T. Welch and Ellen M. Ponan upon the terms as follows:
    Delivery at the Army Piers, Hoboken, N. J., 7 A. M. December 3rd, extent of time June 1st, 1918, extension of time after this date will be determined shortly before the expiration of the present charter, and will depend upon whether these tugs will be then available.
    The price of the John T. Welch to be Eighty ($80) Dollars per twelve (12) hour day for each and every day of the charter period.
    The price of the Ellen M. Bonan to be One Hundred and Fifty ($150) Dollars per day of twenty-four (24) hours for each and every day of the charter period.
    We are to furnish everything for these tugs with the exception of coal and water, which you are to furnish. It is agreed that these tugs now use anthracite pea coal which will be furnished by us and charged to you at cost price aboard tugs until such time as these tugs are equipped to burn soft coal. The mechanical cost of the equipment for soft coal will be paid for by us.
    It is agreed that this letter will constitute the charter party until the formal one shall be entered into.
    Yours truly,
    CorNelb Steamboat Co., -, Manager.
    
    BGB: B
    To this letter the following replies were sent:
    December 7, 1917.
    561.1
    General Superintendent, U. S. A. T. S.
    Cornell Steamboat Company, Pier Foot W. 51st Street, New York City.
    Tug Boats.
    1. Receipt is acknowledged of your favor of December 1st, regarding the tug boats John T. Welch, Ellen M. Bonan, and Ira M. Hedges, and in reply you are advised that the offers contained therein are accepted.
    (Signed) A. C. DaltoN,
    
      Golonel, Q. M. Corps.
    
    NJS/HKH
    Office of the Geheral SuperikteNDENT
    U. S. Army TraNsport Service,
    
      ¿Yeto York, December 7, 1917.
    
    561.1
    From: General Superintendent, U. S. A. T. S.
    To: Cornell Steamboat Company, Pier Ft. W. 51st Street, New York City.
    Subject: Tugboats.
    1. Receipt is acknowledged of your favor of December 1st, regarding tug boats John T. Welch, Ellen M. Bonan,
    
    
      and Ira M. Hedges, and in reply you are advised that the offers contained therein are accepted.
    (Signed) A. C. Dalton,
    Colonel, Q. M. Corns.
    
    A. W. Yaht,
    
      Colonel. Q. M. Corps.
    
    NJS
    The tug Ellen M. Ronan was in the service of the Government continuously from January 1, 1918, to April 11, 1918, a period of 101 days.
    The tug Ira M. Hedges was in the service of the Government continuously from January 1, 1918, to April 11, 1918, a period of 101 days and was during this time a 24-hour day tug at $150 per day.
    In accordance with the contract these tugs were delivered at the Army piers, Hoboken, N. J., seven a. m., December 3d.
    On December 5,1917, the plaintiff company wrote the following letter to Captain N. J. Shelton:
    December 5, 1917.
    Captain N. J. Shelton,
    
      U. 8. Army Transport Service,
    
      No. lOJf. Broad Street, City.
    
    Dear Sir : In accordance with our telephone conversation to-day, we will deliver to you at the Army Piers at Hoboken, N. J., 7 A. M., Friday, December 7th, the tug Victoria for charter. The tug Victoria- has a fore and aft compound engine 15" x 30" x 22", steam 125 pounds. Time of charter to be from date of delivery until June 1st, 1918, if it is possible for us to leave her go from our service for that length of time, and at the present time we think this is possible. If we have to take her away we think we can supply something equally as good.
    The price is to be One Hundred and Fifty ($150) Dollars per day of twenty-four (24) hours for each and every day of the charter period; we to supply everything in connection with her maintenance and operation with the exception of coal and water which you are to furnish.
    It is agreed that at the present time the Victoria burns anthracite pea coal and that we will furnish this coal to her and charge you at the cost price to us aboard the tug, until such time as we may be able to change her grate bars for the use of soft coal. We will pay the mechanical expense of changing the grate bars.
    
      It is understood that this boat is provided with a double crew.
    Yours truly,
    CorNell Steamboat Company, -, Manager.
    
    BGB: B
    To this letter Captain Shelton replies as follows:
    Qeeice of the General Superintendent
    U. S. Army Transport Service,
    
      New York, December 8, 1917.
    561.15
    From: General Superintendent, Army Transport Service, New York.
    To: Cornell Steamboat Company, Pier Ft. West 51st St., New York.
    Subject: Tug Victoria.
    
    1. Acknowledgment is made of your letter of December 5th.
    2. You are advised that the Army Transport Service accepts your proposal of charter of the above tug at a charter rate of $150.00 per 24 hour day, from 7: 00 A. M. December 7,1917, to a date to be advised.
    3. It is understood that you will supply double crew and everything in connection with her maintenance and operation with the exception of coal and water, which is to be furnished by this Service.
    It is further agreed that until such time as the grate bars are changed to permit the use of soft coal, the tug will burn anthracite pea coal, to be furnished by you at cost.
    By authority of the General Superintendent.
    (Signed) N. J. Shelton,
    
      Captain A. Q. M.
    
    
      Officer in charge of Transportation Div.
    
    MJP/jlc
    The tug Victoria was in the service of the Government continuously from January 1 to March 31, 1918, inclusive.
    On December 19, 1917, the plaintiff wrote the following letter to Captain N. J. Shelton:
    December 19, 1917.
    Captain N. J. Shelton,
    
      U. S. Army Transport Service,
    
    
      No. 104- Broad Street, City.
    
    Dear Str: Your Captain Cogswell telephoned us to-day for an additional tug to report at the Army Piers, Hoboken
    
      for 2 or 3 days. This tug we understand to be only for temporary charter or use, so we have given you the tug S. D. Mould and the price will be One Hundred ($100) Dollars per day of twelve (12) hours; we to furnish everything in connection with her operation.
    Trusting this is satisfactory, we are Yours truly,
    CoRnell Steamboat Company, -, Manager.
    
    BGB:B.
    To this letter Captain Shelton replies as follows:
    Oeeice oe the General Superintendent,
    U. S. Army Transport Service,
    
      New Yorlc, December 21,1917. From: General Superintendent, Army Transport Service, 104 Broad New
    104 Broad Street, New York City.
    To: Cornell Steamboat Company, Pier Ft. W. 51st Street. Subject: Tug Boat H. D. Mould.
    
    1. In reply to your favor of the 18th inst., regarding the use of the Tug Boat II. D. Mould at Army Piers hire for two or three days, $100.00 per day, you are advised that your offer is accepted.
    By authority of the General Superintendent, A. T. S.
    (Signed) N. J. Shelton,
    
      Captain, A. Q. M.
    
    NJS/jlc
    The tug II. D. Mould was in the service of the Government ■ 23 days in January and 28 days in February, 1918.
    On December 12, 1917, the plaintiff company wrote the following letter to Captain N. J. Shelton:
    December 12, 1917.
    Captain N. J. Shelton,
    
      U. S. Army Transport Service,
    
    
      No. 101f. Broad Street, N. Y. City.
    
    Dear Sir : In accordance with our telephone conversation with you, we will charter to you the tug Wilson P. Foss, for use at the Hoboken Army Piers, for Eighty ($80) Dollars per day; we to furnish everything in connection with her maintenance and operation, with the exception of coal and water, which you are to furnish. The Foss is to operate with a single crew. The Foss will be delivered to the Hoboken Piers 7 A. M., Friday, December 14th. The time of charter will be indeterminate, but we will endeavor to keep her there during the winter months, and as long into the spring as we can spare her. When we find that we will have to have her back we will take the matter up with you and arrange the matter satisfactory to you.
    It is understood that at the present time the tug Foss burns anthracite pea coal and will charge you for such coal as she uses. We will charge you the cost of the coal aboard her until such time as we are able to arrange her grate bars for using soft coal that you furnish.
    The Foss has a single high-presure engine 16" x 20", with one boiler allowed 155 pounds of steam. Her gross tons is 58, length of keel 64' 2", beam 18' and draft about 11' aft. This boat is nearly similar in all respects to the tug John T. Welch now under charter to you at the same price. Yours truly,
    CorNell Steamboat Company, -, Manager.
    
    BGB:B
    To this letter the following reply was sent:
    New York, December 13,1917.
    
    545.01
    From: General Superintendent, U. S. A. T. S.
    To: Cornell Steamboat Company, Pier Foot W. 51st St., New York City.
    Subject: Tug boat Wilson P. Foss.
    
    
      1. Your favor of December 12th, 1917, regarding price for charter, of the tug boat Wilson P. Foss is accepted under conditions named therein.
    (Signed)-,
    
      Colonel, Q. M. Corps. NJS
    MJS-bkh
    The tug Wilson P. Foss was in the service of the Government 180 days from January 2d to July 1, 1918.
    On December 31, 1917, the plaintiff company wrote the following letter to Captain John F. Cogswell:
    December 31, 1917.
    Capt. John F. Cogswell,
    
      Army Transport Service,
    
      101 Broad Street, New Yorh City.
    
    Dear Sir : In accordance with our telephone conversation of this morning, we are delivering the tug J. G. Rose, to Captain Bernard, Pier 1, Hoboken Army Piers, for charter.
    
      The tug J. G. Bose was built of steel in 1900.
    Keel 68'
    Beam 19'
    Depth of hold 8'
    Engine fore and aft surface condensing compound 13"x 29 "x 18" stroke
    Power pressure 155 lbs.
    It is agreed that we are to furnish her with a double crew for twenty-four (24) hours service and to find everything in connection with her operation, with the exception of coal and water which you are to furnish. The price is One Hundred and Fifty ($150) dollars, per day of twenty-four hours, for each and every day of the charter.
    Date of delivery, December 31, 1917.
    Date of expiration of charter, Apr. 1, 1918.
    At the time of the expiration, we will determine whether or not it is possible for us to leave her further in your service, or endeavor to replace her with some tug that will do the work as well.
    It is agreed that the tug J. G. Bose, at present burns anthracite pea coal, and that pending the time we are arranging to and installing grate bars, which will permit the burning of soft coal, we are to furnish the necessary pea coal or its equivalent, and charge you for such coal, which she may use during this period, at the cost to us aboard the tug.
    It is agreed that the tug J. G. Bose shall be allowed one (1) day in each thirty (30) to wash boiler, and that this wash boiler day shall be paid for at the foregoing rate of hire.
    It is agreed that we are both familiar with the Government and Army regulations relative to the hours of service for the tug and crew, and that both tug and crew shall be allowed the necessary time off, as has been provided, but, however it is agreed that the tug and crew are subject to the orders of the Army Transport Service for all work they may be required to do.
    Yours truly,
    Cornell Steamboat Co., -, Manager.
    
    BGB:L
    
      To this letter the following reply was sent
    WAR DEPARTMENT,
    Oeeice oe the General Superintendent,
    U. S. Army Transport Servios,
    
      New York, January 81, 1918. From: General Superintendent, A. T. S., 104 Broad Street, New York City.
    To: Cornell Steamboat Co., Pier Foot West 51st St., New York City.
    Subject: Tug J. G. Bose.
    
    1. Your proposal of December 31st, 1917, to charter the above tug to the Army Transport Service from date of delivery, December 31st, 1917, to March 31, 1918, at a rate of $150.00 per twenty-four hour day, coal and water to be furnished by this Service, is hereby accepted.
    By authority of the General Sup. A. T. S.
    (Signed) G. W. K.
    
      Gaftain, Q. M. B. O.
    
    T-NY GPID/wer
    The tug J. G. Bose was in the service of the Government 90 days from January 1, 1918-, to March 31, 1918. She was delivered in accordance with provisions of the contract.
    On December 31, 1917, the plaintiff company wrote the following letter to Captain N. J. Shelton:
    December 31*, 1917.
    Capt. N. J. Shelton,
    
      U. S. Army Transport Service,
    
    
      101¡. Broad Street, New York Oity.
    
    Dear Sir: Acting upon instructions of Marine Superintendent, Captain W. J. Bernard, Hoboken Army Piers, we are delivering to him January 1st, the tug S. L. Orosby, for one day’s charter, double crew, at $150 per day of twenty-four hours, we to furnish everything, with the exception of coal and water, which you will furnish. If we furnish this coal and water, we will charge it to you at the cost aboard tug.
    Yours truly,
    Cornell Steamboat Company.
    BGB:L
    
      To this letter Captain N. J. Shelton replied as follows:
    Office oe the General Superintendent
    Transport Service,
    
      New York, January 1, 1918.
    
    545.01
    From: General Superintendent, U. S. A. T. S., New York-City.
    To: Cornell Steamboat Co., Pier Foot West 51st St., New York City.
    Subject: Tug S. L. Orosby.
    
    Your proposal to deliver the tug 8. L. Orosby, with double crew, etc., as contained in your letter of December 31, 1917, is accepted.
    By authority of General Superintendent:
    N. J. Shelton,
    T-NY NJS-dp. Oaptain, A. Q. M.
    
    The tug 8. L. Orosby was in the service of the Government for one day in J anuary, 1918.
    On J anuary 11, 1918, the plaintiff company wrote the following letter to Captain John F. Cogswell:
    January 11, 1918.
    Capt. John F. Cogswell,
    
      U. 8. Army Transport Service,
    
    
      101¡. Broad Street, New York, Oity.
    
    Dear Capt. Cogswell : Acting upon the request of Capt. W. J. Bernard, Marine Supt., at Hoboken, we will have a double crew on the tug B. J. Foster tonight, so that her rate from this time on until such time as she is singled down again,, and in your service, will be $150 per day, you to furnish the fuel, the same as the other doubled crew tugs. In
    In addition we will deliver to him to-morrow upon his request, the tug W. E. Baldwin, single crew to work at $75 per day, you to furnish the fuel.
    Yours truly,
    Cornell Steamboat Company, BGB: L -, Manager.
    
    
      To this letter the following reply was sent:
    Office of the General Superintendent,
    U. S. Army TraNsport Service,
    
      New York, Jcunuary %5, 1918. From: General Superintendent, A. T. S., Hoboken, N. J.
    To: Cornell Steamboat Company, Pier Ft. West 51st St., City.
    Subject: Tug B. J. F osier.
    
    1. Your proposal of January 11th to charter the above tug at a rate of $150.00 per twenty-four hour day, from January. 12th, 1918, to a date to be advised, is hereby accepted.
    By authority of the General Superintendent.
    (Signed) W. B. Baker, Director of Marine Operations.
    
    GHD/mb
    The tug B. J. Foster was in the service of the Government continuously for 197 days from January 6, 1918, to July 1, 1918.
    On January 26, 1918, the plaintiff company wrote the following letter to G. H. Dalzell:
    JANUARY 26, 1918.
    G. H. Dalzell, Esq.,
    
      % Army Transport Service, Hoboken, N. J.
    
    Dear Sir: In accordance with instructions of marine superintendent, Capt. W. J. Bernard, we delivered to you to-day, January 26th, the tug Charlie Lawrence, to work as long as you may need her, at the rate of $75 per day, we to furnish everything in connection with her operation with the exception of coal and water. If we furnish this coal and water we will charge it to you, at cost aboard the tug.
    In addition, upon instructions of Capt. Bernard, we will deliver to you to-morrow, January 27th, the tug G. W. Decker, to work double crewed for such time as you may need her at the rate of $150 per day, you to furnish coal and water, and if we furnish the coal and "water it will be charged to you at the cost aboard the tug. Please understand that the Charlie Lawrence operates with a single crew. Very truly yours,
    Cornell Steamboat Company,
    -, Manager.
    
    BGB: L
    
      To this letter the following reply was sent:
    OeTUCE OK THE GENERAL SUPERINTENDENT,
    U. S. Army Transport Service,
    
      New Yorle, January $7, 1918.
    
    545.01
    From: General Superintendent, IT. S. A. T. S., New York City.
    To-: Cornell Steamboat Co., Pier Foot West 51st St., New York City.
    Subject: Tug Geo. W. Decker.
    
    Your proposal to deliver the tug George W. Deeher with double crew, etc., as contained in your letter of January 26th, is accepted.
    By authority of general superintendent.
    N. J. Shelton, Captain, A. Q. M.
    
    T-NY NJS-dp.
    The tug G. W. Decker was in the service of the Government four days in January, 1918.
    III. All of the tugs hereinbefore enumerated reported for service in accordance with the contract. The plaintiff company rendered its bills monthly and for a full monthly period at a rate per day stated in the contract. The defendant paid the bills as they were rendered for the month of December, 1917, and thereafter for each month refused to pay the full amount claimed and deducted therefrom the various sums shown in the table found on page 114 of the record, making a total deduction of $24,822.48. The deductions made were in conformity with the logs of the vessels. Said logs were kept by the captains and engineers of the boats and "were directed to be kept by the marine superintendent, Army Transport Service, who had charge of the boats, and these logs were made off on blanks furnished to the captains and engineers of the boats by the aforesaid marine superintendent.
    It appears that these deductions were made if a boat reported with a short crew or not in condition to perform the service required and if too long a time was consumed in the opinion of the officer in charge when taking on supplies. The plaintiff received due notice of the aforesaid deductions and rendered its bills for the full service, setting out the deductions and protesting their allowance and accepting the decreased payments under express protest in each instance.
    IV. The tug Ira M. Hedges, while in the service of the Government and under its control, sank while towing a barge of coal from Perth Amboy, N. J., to the Erie Basin Dry Dock. The plaintiff was notified of this accident and at its own expense raised the vessel, repaired it, and it was subsequently used by the defendant. A deduction was made for loss of time due to this accident.
    V. During the time when the tugs hereinbefore mentioned were in the service of the Government the Army Transport Service had the entire use of the tugs and they were subject at all times to the orders and directions of the officers of the Government, and at no time during the period did the plaintiff have the use of and did not in any way interfere with or direct the operations of the said tugs.
    VI. The plaintiff rendered its bills for the use of these tugs for January, February, April, March, May, and June, 1918. Its bills for service amounted to the sum of $125,438, it was paid $100,615.52, leaving the balance which has not been paid $24,822.48.
    
      
       Appealed.
    
   Hay, Judge,

delivered the opinion of the court:

This is a suit by the plaintiff to recover from the United States the sum of $24,822.48, alleged by the plaintiff to be due it on account of deductions made by the United States from the hire of certain steam tugs chartered by the Government from the plaintiff for certain periods of time from November, 1917, to June, 1918.

The contract is set out in letters which were written by the parties. These letters are set out in full in the findings of the court. In the letter of the plaintiff of December, 1917, the following occurs: “ It is agreed that this letter will constitute the charter party until the formal one shall be entered into.” On December 7, 1917, the defendant in a letter of that date accepted the proposition of the plaintiff. All the boats hired by the Government were hired upon the same terms, and it was provided in the contract that the per diem hire should be paid to the plaintiff for each and every day of the charter period. These tugs were hired by the Government for different periods of time, and the time of hire of each tug is set out in the findings of the court.

The tugs reported for service in accordance with the contract. The plaintiff rendered its bills monthly and for a full monthly period at a rate per day stated in the contract. The defendant paid the bills as they were rendered for the month of December, 1917, and thereafter refused to pay the full amount claimed and deducted therefrom various sums, which sums make up the amount of the plaintiff’s claim. The deductions were made in conformity with the logs of the vessels. These logs were kept by the captains and engineers of the boats, and were directed to be kept by the marine superintendent, Army Transport Service, who had charge of the boats, and these logs were kept on blanks furnished by the marine superintendent, an officer of the defendant.

During the time when these tugs were in the service of the Government the Army Transport Service had the entire use of the tugs and they were subject at all times to the orders and directions of the officers of the Government, and at no time during that period did the plaintiff have the use of and did not in any way interfere with or direct the operations of the said tugs.

The United States defends this suit upon the ground that the owner did not part with the possession, command, and navigation of the tugs during the period of the charter, but that it retained possession and command and performed the specific service for which the tugs were let. It is claimed that the charter was for service and not a demise, and consequently that the Government had the right to make the deductions for the time the tugs were not at its disposal.

The well-established law is that when a ship is let to hire, and the owner parts with the possession, command, and navigation of the same, the charterer is to be regarded as the owner for the period of the charter, and consequently can not charge the owner of the ship with time lost during the charter period. The decision in each case depends upon the facts and circumstances surrounding the transaction, but the possession, management, and control of the vessel seem to be.the vital facts upon which the decision must rest.

In Reed v. United States, 11 Wall 591, 601, the court said: “ * * * but where the vessel herself is demised or let to hire, and the general owner parts with the posession, command, and navigation of the ship, the hirer becomes the owner during the term of the contract, and, if need be, he may appoint the master and ship the mariners, and he becomes responsible for their acts.”

In Leary v. United States, 14 Wall. 607, 610, the court said: “ The question as to the character in which the charterer is to be treated is in all cases one of construction. If the charter party let the entire vessel to the charterer with a transfer to him of its command and possession and consequent control over its navigation, he will generally be considered as owner for the voyage or service stipulated.” And in the same case, page 611: “All the cases agree that entire command and possession of the vessel, and consequent control over its navigation, must be surrendered to the charterer before he can be held as special owner for the voyage or other service mentioned.”

In the case of United States v. Shea, 152 U. S. 178, Mr. Justice Brewer, in speaking for the court, delivered a learned opinion in which he discussed very fully the question, and at. some length reviews the cases bearing on the question in issue here.

On page 189 he says: “No technical words are necessary to create a demise. It is enough that the language used shows an intent to transfer the possession, command, and control.” As particularly bearing on the facts which the court has found in this case, Mr. Justice Brewer says, p. 190: “ That the time for which the vessels were to be employed might be limited by the wishes of the Government does not affect the question as to whether, while so employed, they were to be under its exclusive control and management. A demise may be for a day as well as for a year and may be> terminable at the will of the lessor.” And again: “We think little significance is to be attached to the provisions in reference to furnishing a crew or supplying fuel. They were matters of detail affecting the price to be paid, but throwing no particular light on the question of hiring or control. If it be said that the clause requiring the Government to fur-unnecessary case was a demise, may also, in like maimer, be said that the further clause as to the petitioner’s furnishing a crew was unnecessary if he was to retain the management and control. Any possible inference from one clause may be set off against a different inference from the other, but neither of them destroys the significance of the operative words of transfer nor outweighs that of the action of the parties in the execution of the contract.”

In the case of Plant Investment Go. v. United States, 45 C. Cls., 874, 885, Judge Booth, speaking for the court, says: “ The decision in each case depends upon the peculiar facts and circumstances' surrounding the transaction, and in consequence thereof it is difficult to determine with great accuracy into which class a charter party falls. In the class of cases relating to the charter of merchant vessels, wherein the parties are engaged in water transportation for profit, it seems reasonably certain that the courts have not hesitated to construe the charter party a demise of the vessel. It would not be accurate to say that in some instances vessels chartered for transportation of troops and munitions of war have not likewise been considered as a demise. In fact, always so held where nature of the service and attainment of the object of the voyage render the charterers’ absolute command and control necessary.”

Subjecting the facts in this case to the decisions cited in so far as the charter party is concerned, it is a contract not for service but is a demise of the tugs.

From the moment that these tugs were turned over to the Army Transport Service in pursuance of the contract they were under the absolute command and control of the officers of that service. The court finds as a fact that these tugs were subject at all times to the orders and directions of the officers of the Government, and that the plaintiff did not interfere with or direct the operations of the tugs. The very nature of the service to be rendered was such as to require these tugs to be absolutely under the control and subject to the orders of the officers of the Army Transport Service. The action of the parties in the execution of the contract showed that the plaintiff surrendered the possession; command, and control of the tugs to the officers of the Government; that this surrender was required and expected; and that the officers of the Army Transport Service took charge of the tugs, navigated them, controlled them, and had absolute possession of them.

Under the law and the facts we are of opinion that the Government had no right to make the deductions complained of. A judgment will be entered for the plaintiff in the sum of $24,822.48. It is so ordered.

Graham, Judge; DowNey, Judge; and Campbell, O'hief Justice, concur.

Booth, Judge,

dissenting:

My inability to assent to the foregoing judgment rests upon a belief that the transaction involved was a mere contract for service and not a demise of the boats. The numerous letters and acceptances which make up the contract nowhere expressly characterize it as either a contract for service or a demise of the boats; so under the decisions of the Supreme Court the question must be determined by an examination of the contracts and the conduct of the parties thereunder, always giving a construction adverse to a demise of the boats when the issue is doubtful, the courts uniformly leaning toward a contract for service rather than a. demise of the vessel. Leary v. United States, 14 Wall. 607; United States v. Shea, 152 U. S. 178; Reed v. United States, 11 Wall. 591; Donald v. United States, 39 C. Cls. 357.

The rule of law applicable to an ascertainment of the difference between a contract of affreightment and a demise of a vessel is that if the control, possession, command, and navigation of the vessel passes to the charterer, and he becomes. pro hac vice the owner of the same, then the transaction is a demise of the vessel, otherwise it is a mere contract for service. In one instance the parties contemplate a lease of' the vessel and all that goes therewith, casting full responsibility on the owner pro hac vice. In the other, the owner engages to perform a stated service with his vessel for a stated rate of pay.

The findings disclose, first, that the service to be rendered was a per diem towage service, to be paid for by the day,. for a stated period of time. It may not be successfully contended that as to the twelve-hour boats the Government assumed any responsibility for them during the night. At the close of the twelve-hour day they must of necessity be within the ownership of the plaintiff company: Such a contract and such a service is directly in conflict with the idea of a demise of the boats. Second, the plaintiff company agreed to furnish everything for the boats except coal and water, mvi even coal was to be furnished by the plaintiff, i. e., loaded upon the tugs at the cost of the defendant. Furnishing everything included the crew, the one essential element of navigation. Assuredly it is manifest that the defendant had no primary authority or jurisdiction over the crew. The defendant could do no more than direct the commander what cargo to take and where to go to discharge it. The defendant was without authority to enforce discipline with respect to the crew, and could not discharge a member thereof or supply a vacancy therein. One, if not the most serious, complaint of the defendant was lack of sufficient and competent crews. The plaintiff company at no time refused to acknowledge this responsibility. It is nowhere disputed that the plaintiff company employed and paid the crews and that the crews navigated the boats in accord with their judgment and experience as navigators. If the defendant was the owner of the boats fro hae vice, this one stipulation of the contracts is obviously contrary to the usual ones, wherein a demise of a vessel has been held.

An examination of the cases discloses that in cases of a demise of the vessel the owner parts with all control over the same, and he is as effectually dispossessed of the vessel, for the time being, as if he had sold the same. The charterer becomes responsible for all that happens during the life of the charter party and is vested with all the authority and power of an owner.

Nothing militates more strongly against the plaintiff’s contention than the fact that it, through its own crews, navigated the boats between the points necessary to perform the required service, free from the jurisdiction and authority of the defendant. The crews were the agents of the plaintiff and not the defendant.

Third. The plaintiff company assumed and performed the duty of keeping the boats in condition during the time mentioned in the contract. Once in every thirty days it expressly covenanted to “ wash the boilers to maintain operating efficiency.” The plaintiff installed at its own expense, during the contract period, a fire-extinguishing apparatus and added an additional member to the crews. Surely, if the defendant was lawfully in possession as owner, this burden would have been cast on it. Operating efficiency was no concern of the plaintiff company if the defendant was operating the boats as owner thereof. If the defendant took the boats over and was operating them, the duty of keeping them in repair and good order belonged to it, and the cases só hold.

Fourth. The parties themselves have by their own conduct construed the contracts as one for service and not as a demise of the vessels. The Ira M. Hedges sank while towing a barge of coal from Perth Amboy, N. J., to the Erie Basin Dry Dock, and the plaintiff company, at its own expense, raised and repaired her. Such a manifestation of ownership and the assumption of the responsibilities of ownership indisputably stamp the transaction as a direct and unequivocable acknowledgment that title and possession of the boats remained in the plaintiff company. No claim is made in this suit for the expense incurred in this respect, and whatever may have been said or done at this time the plaintiff company did as set forth above, and paid the damages incident to the event. The available cases, without exception, in charter parties construed as a demise of a vessel hold that in cases of collision and sinking the fro hac vice owner is responsible for the losses occasioned thereby. Plant Investment Co. v. United States, 45 C. Cls. 374.

The Hedges was in the physical possession of the plaintiff company during the whole period of her reconditioning. She was of no service to the defendant for a little over fifty-four days out of the charter party time, at a per diem expense of $150 a day, or more than $8,100, being in actual use but twenty-six days out of the full time required. While this is the most aggravated incident of the entire transaction, it necessarily impresses as a clear recognition by the plaintiff company of its legal liability under the contracts to assume the burdens of tlie actual navigation of the boats. The defendant was in urgent need of tug service, the war required the use of every available instrumentality to get the Army overseas, and it is not to be presumed that it would have allowed, under the contracts, this degree of remissness if both the opportunity and the power and authority existed to forestall it. It might have taken over the boats as it did other shipping facilities, and thereby left no doubt as to the character of the transaction. However, in my opinion, it pursued the opposite course and simply employed the vessels for a stated per diem service and a stated per diem rate of pay, without the assumption of title and the correlative responsibilities of an owner fro Kao vice.

Finding Y, if I correctly understand it, is simply intended to disclose the service rendered by the boats, i. e., that while engaged in the service contracted for the defendant had the use of the boats and gave explicit orders as to what towage they were to do, and of course, while so engaged, they were under the exclusive orders of the defendant. The plaintiff could not avail itself of the boats during this period in any other towage service without violating its contracts. The decided cases, however, do not hold facts of this nature as determinative of the issue involved. It is self-evident that under a contract for service the defendant would necessarily have the direction of the boats, and under the terms of the contracts they were subject at all times stated in the contracts to its orders. They were employed by the defendant to do such towage service as it directed. These facts, however, do not convert a contract for service of the boats into a demise of the same. The mere giving of orders as to what barges should be towed, when they should be towed, and by what boats, from point to point, is not in law sufficient to characterize the transaction as taking that measure of control over the boats contemplated in a demise of the same.

The plaintiff’s crews nmigated the boats during all the period of time covered by the contracts. The boats were in the possession of crews employed and paid for by the plaintiff; agents of the plaintiff operated the boats; they directed their course from point of departure to destination through the waters of the harbor; they, as agents of the plaintiff, were responsible for the safety of the boats and cargo aboard. No one might contend that the defendant assumed responsibility for the safe navigation of a boat, when it was without authority to select or discharge the crew which was to navigate it. As was said in Pollock v. Oleveland Shipbuilding Co., 56 Ohio St. 655:

Navigation is the science or art of conducting a ship from one place to another, and the science or art of ascertaining the position and directing the course of vessels, especially at sea, by astronomical operations or calculations; a nautical science or art; shipping.” ‘ -

Towage service by tugboats is not the kind of marine service usually involving a demise of tugboats. The very nature of the service itself does not, unless especially contracted for, suggest a taking over of the boats themselves. In the ordinary course of business it would be considered a hired service and no more. The cargo transported is usually aboard a transport of the charterer, and the service of the boats is limited to towing the same from point of embarkation to point of discharge. The crew of the tug navigates the same, and the crew of the transport navigates it in keeping with the tug’s course.  