
    SHAW’S CASE.
    (9 Court of Claims R., p. 388; 93 U. S. R., p. 235.)
    John S. Shaw, appellant, v. The United States, appellees.
    
      On the claimant’s Appeal.
    
    
      During hostilities, in 1863, a quartermaster notifies the owners of a steamboat that the Government requires her service, stating the compensation that will be al-loioedfor the vessel, her oreio, <fc. No objection is made, and she enters upon the service, officered, manned, and navigated by her owners. On the voyage sité-is destroyed by fire. Subsequently the owners are paid for her services at the designated rate. The Third Auditor, in 1864, decides that she toas lost in the military service while under impressment. The court beloio finds as a fact that the vessel “was impressed into the military service of the United States by Capt. Charles Parsons, assistant quartermaster,” $c., but decides that the voluntary navigation of the vessel by her owners after impressment changed the character of the transaction to contract, and their retaining control of her navigation took the case out of the statute. Judgment for the defendants. The claimant appeals. On the argument, additional facts appear in his brief relating to the impressment.
    
    I. A finding, in the nature of a special verdict, which states simply that a vessel “ was impressed into the military service of the United States by A. B., quartermaster,” is defective in not setting forth the circumstances which would enable the appellate court to determine whether the vessel was obtained by impressment or contract.
    II. The fact that a vessel remains, while performing- service for the Govern- ' ment, under the control and management of her owners, is conclusive that she is not in the military service within the meaning of the Acts 3d March, 1849, 3d March, 1863, (9 Stat. L., p. 414, § 2; 12 id., p. 743, § 5,) which assure indemnity to vessels “xohile in the military service of the United States, either by impressment or contract, except in cases tvliere the risk to which the property would be exposed teas agreed to be incurred by the owner.”
    
    
      III. Whatever the force or coercion employed to compel the owners of a vessel to place her as a transport in Government service, nevertheless, if the transaction ends in the owners’ acceding to the terms proposed by the officer when he impresses or threatens to impress, and they continue to possess and navigate hor while she is in the service, it will he held a contract of affreightment, and not an impressment.
    
      The Reporters’ statement of the case:
    There being evidence that the owners in this case yielded to superior force,'the court below found as a fact the impressment of the vessel; and the defendants asked for no additional findings. Nevertheless, as will be seen, the Supreme Court speaks of the findings as defective, and refers to the opinion of the court below and to the brief of the appellant for additional facts. The following extract contains all that relates to the impressment in the opinion referred to:
    “The fact is found that the steamer was impressed.; and, if that were all, the case would be certainly within the act of 1849 and its amendment, for in theRstatute the word ‘ impressment* is used in contradistinction to Contract,’ and this would seem to include every taking by the mere authority of the United States.’*
    The court below found‘the following facts:
    On and prior to theX17th day of September, 1863, the claimant was, and thereafter continued to be, the sole owner of the steamboat Robert Campbell,’jr., which steamboat was then lying at the wharf in the port of Saint Louis, Mo., fully manned, equipped, and furnished for business on the Mississippi River.
    On that day the said boat was impressed into the military service of the United States’byiCapt. Charles-Parsons, assistant quartermaster of the United States Army, for especial duty between Mejnphis and Yicksburgh, and was loaded with army stores and troops, and’[ordered' by said Parsons to proceed down the Mississippi River to Memphis, Tenñ., and there report to Capt. J. Y. Lewis, assistant quartermaster. The orders of said Parsons stated the terms on which the boat was employed. The boat left Saint Louis on said service about the 25th of September," 1863/officered and manned by officers and men employed by the[claimant.
    While in the said service of the Government she was, on the 28th of September, 1863, consumed by fire, and became a total loss to the claimant, without any fault or negligence on his part, or that of her officers or crew.
    At the time of her loss she was worth $70,000, and was insured for $25,000; which amount was paid to claimant by the companies in which the insurance had been effected.
    In October, 1863, the account of. the United States with said boat, for her use and service as a transport from September 17 to September 28, was allowed and paid by Brig, Gen. Robert Allen, quartermaster United States Army.
    In February, 1864, the claimant submitted to the Third Auditor of the Treasury his claim against the United States for the value of said boat at the time she was taken into the service of the Government as aforesaid 5 which value he alleged was, at the time she was so taken, $70,000.
    At the same time he claimed a balance of $859.91 as due him on account of stores lost with the boat when she was consumed, .and which he averred had been furnished by the officers of the boat for the subsistence of the crew.
    On the 25th of May, 1864, the Third Auditor rendered the following award in favor of the claimant:
    
      Atoará No. 32. — 2d section of the act of 3d March, 1849.
    “ Treasury Department,
    
      “ Third Auditor’s Office, May 25, 1864.
    “In pursuance of an act of Congress approved 3d of March, 1849, entitled ‘ An act to provide for the payment of horses and other property lost or destroyed in the military service of the United States,’ as amended and construed by the 5th section of the act of March 3d, 18.63, it is adjudged by me that there is due from the United States to John S. Shaw, for the steamboat Robert Campbell, jr., of Saint Louis, Mo., burned on the Mississippi River, near Milliken’s Bend, on the 28th day of September, 1863, while in the military service of the United States, under impressment, the sum of fifty-seven thousand dollars, ($57,000.00,)lessthesum of twenty-five thousand dollars received by him as insurance on the same, leaving payable by the United States the sum of thirty-two thousand dollars, ($32,000.)
    “To be paid to John S. Shaw, Saint Louis, Missouri.
    “ R. J. ATKINSOU,
    “ Third Auditor.”
    
    
      On the 9th of June, 1864, the amount of said award was paid to claimant by the defendants, by a draft.
    In the year 1869 the claimant applied to the Third Auditor to review the said award, and allow him the further sum of $13,859.90, which that officer refused to do; and his decision in that regard was concurred in by the Second Comptroller. The sum of $13,859.90 was, in the said application for a review, made up of the above-mentioned balance, claimed as due the claimant on account of stores lost with the boat when she was consumed, and of $13,000 on account of the value of the boat; which latter claim was made by estimating the boat’s Value at $70,000, and allowing thereon $25,000 insurance money paid the claimant, and $32,000 paid him by the Government as aforesaid, leaving $13,000 additional on the value claimed to be due. to claimant.
    The payment of the amount awarded by the Third Auditor to the claimant, as above stated, was made to him by draft payable to his order, and indorsed by him, and paid by the defendants ; but no receipt was shown to have been given by the claimant for said draft.
    At the time of the loss of said boat she was insured’ in the following insurance companies for the sum of $5,000 in each company, namely: The Atlantic Mutual Insurance Company, the Globe Mutual Insurance Company, the United States Insurance Company, the Eureka Insurance Company, and the Phoenix Insurance Company. In each of the policies issued by said eom-anies, except that of the Atlantic Mutual Insurance Company, the said boat was valued at $38,000; and in all of said policies there was a limitation of $30,000 as the total amount which was allowed to be insured on said boat.
    In the policies issued by the Atlantic Mutual Insurance Company and the United States Insurance Company the claimant was insured, but the policies stipulated that the loss, if any, should be paid to Robert Campbell, and the losses under those policies, viz, $5,000 under each, were paid to said Robert Campbell.
    In the policy issued by the Eureka Insurance Company the claimant was insured, but the policy stipulated that the loss, if any, should be paid to Robert Campbell & Co.; and the loss under that policy, viz, $5,000, was paid to said Robert Campbell & Co.
    
      In the policies issued by the Phoenix Insurance Company and' the Globe Mutual Insurance Company the claimant was insured,, the loss, if any, to be paid to himself; and the losses under"' those policies, viz, $5,000 under each, were paid to him.
    The $25,000 paid by said several insurance companies, on account of the loss of said boat, was the same sum which, in the award of the Third Auditor, was deducted from his valuation of said boat on account of insurance-money received.
    The claimant’s amended petition, praying for a recovery of the said sum of $25,000 for the use and benefit of said insurance companies, was filed in this court on the 26th of August, 1873, with the leave of the court.
    And the court find, as conclusions of law—
    1. That, on the facts therein, the Robert Campbell, when destroyed by fire, was employed by the petitioner in the performance of a contract of affreighment, then subsisting between him and the United States, and they are not liable for her value.
    2. That the claim of the petitioner against the United States, submitted by him to the Third Auditor, was not within the jurisdiction or authority of said officer, under the statute of 3d March, 1849, and his action thereon imposed no liability on the United States, and none has been assumed by them.
    
      Mr. Joseph Casey for the appellant:
    The case is distinguishable, in all its facts and findings, from the cases upon the authority of which it is ruled by the Court of Claims. These distinguishing facts and findings are:
    1st. “ The said boat was impressed into the military service of the United States.”
    2d. She was impressed “ for especial duty between Memphis and Yicksburgh, and was loaded with Army stores and troops, and ordered by the impressing officer to proceed down the river.”
    3d. While under this impressment, and on this voyage, she was destroyed by fire, without any fault or negligence of the claimant or any person employed by him.
    These findings appear to me absolutely conclusive of the case; because, if the boat was “in the military service of the United States by impressment,” and was destroyed “ by inevitable accident, without fault or neglect of the owner or his agents,” then the very ease is presented which the act of 1849 contemplates.
    That there might be no mistake that steamboats and railroad engines and cars were included in such list of property, Congress passed the Act March 3, 1803. (12 Stat. L., 743, § 5.)
    The case of Heed v. The United States, (11 Wall., 591,) and Stuart v. The United States, (18 Wall., 84,) were both cases of transportation of military supplies to the Indian country to the troops stationed on the frontier. In the latter case the service was performed under a written contract, full, definite, and specific in its provisions. It, with the nature and character of the service it stipulated for, showed that the property used in the transportation was in no sense in the military service of he United States.
    In each of these cases the management, direction, and con trol of the property was left to the untrammeled will of the owners, except as to the cargo and destination. In this case, it is true, the officers and crew employed by Shaw remained on the boat, and navigated her for the United States; for your honors will see by the order of Captain Parsons that he expressly states that their wages and subsistence are to be paid by the United States.
    By the account as settled at the Treasury Department our position is maintained and fortified. The United States credits Shaw for fuel found on the boat and consumed while in their service, and debits him with passage-money received by him frqpi civilians during the trip, showing, with the other facts, most conclusively, that all parties considered the boat in the possession and military service of the United States.
    That the same captain and crew were retained, paid, and subsisted by the United States did not alter the facts of absolute possession and control by the Government.
    The case of Bussell (13 Wall., 623) is very strongly in our favor. And the reasoning of his honor, Mr. Justice Clifford, in announcing the judgment of the court, is as applicable and relevant to this case as it was to the facts in that.
    The facts of impressment and use, as his honor clearly shows, create an obligation to pay, from which an implied promise arises, and to enforce which the Act of 1849, and those constituting and organizing the Court of Claims, were enacted.
    
      
      Mr. Assistant Attorney-General Smith fov the United States, appellees:
    The use of this steamboat for military transportation must be assumed to have been through a contract between the Government and the owner, or else the Court of Claims had no jurisdiction, since it is not authorized to award damages for torts, whether in the form of an “impressment” or any other application of force by a military officer. (Iteed v. The United States, ■11 Wall., 603.) As Mr. Shaw retained the possession, 'navigation, and command of the boat, the arrangement, in contemplation of law, was a mere affreightment, sounding in, contract, and not a demise of the vessel. (Reed v. The United States, 11 Wall,, 600, 601, and cases there cited; The United States v. Russell, 13 Wall., 633.) If Mr. Shaw was a contractor for the use of his boat as a transport, then neither he nor his property was “in the military service of the United States” within the meaning of the statutes aforesaid. (See the opinion of this court in Guttman’s Case, 9 O. Cls. R., 60, 68-71.)
    The acceptance of the $32,000 was an adjustment of a disputed claim, and bars any further recovery. (The United States v. Adams, 7 Wall., 463; The United States vl Child, 12 Wall., 232; The United States v. Clyde, 13 Wall., 35; The United States v. ■Justice, 14 Wall., 535; Savage v. The United States, 92 United States; Sholes v. State, 2 Oband., (Wis.,) 182; Callcins v. State, 13 Wis., 389; Marvin v. Treat, 37 Conn., 96.) The claimant ■could not re-open the question of liability, at any rate, until he restored the $32,000 received, and put the parties in statu quo ante. (Farmers’ Banlev. Groves, 12 How., 51; Potter v. Monmouth Insurcmee Company, 63 Maine, 440; Bisbee v. Sam, 47 Maine, 543, and cases there cited.)
    Claimant cannot retain the $32,000 improperly paid him by ■award of the Third Auditor, and then try liis luck for the rest of his alleged claim.
   Mr. Justice Field

delivered the opinion of the court:

If we could import into the findings of the court the facts stated in its opinion and in the brief of appellant’s .counsel, this case would be presented for our consideration with much greater completeness than at present. It would then clearly appear that what is .termed an impressment of the vessel of the claimant into the military service of the United States was only a notice to its captain from the assistant quartermaster at Saint Louis that the Government would require its service for a trip to Memphis, Vicksburgh, and other points, accompanied with a statement of the per diem compensation which would be allowed for its use, and for the subsistence of the men in addition to their wages, and fuel for the vessel, to which notice and service no objection was made by the captain or the claimant. It would also appear that the claimant entered upon the service with alacrity, and that, in conformity with the terms designated as compensation, his account was rendered to the United States and paid. Under these circumstances the transaction could only be treated as a voluntary arrangement, notwithstanding the peremptory tone on the part of the assistant quartermaster-general, with which the negotiation with the captain was opened-.

In Reed v. The United States, (11 Wall. R.,) the same military officer' at Saint Louis, the assistant quartermaster, in June, 1865, applied to the owners of another steamer to transport supplies from that port to Port Berthold, on the Missouri, but they declined the service on account of the lateness of the season. He then ordered them to prepare for the trip, informing them that in case of refusal the vessel would be impressed. They protested, but under the orders given put the boat in readiness, received the cargo, and performed the service required. With the order to prepare for the trip, the assistant quartermaster, as in this case, fixed the per diem compensation for the use of the vessel, which appears to have been satisfactory to the owners, for it was received by them without objection. Upon this state of facts the court held that, though the owners originally objected to the service, they in fact rendered it as a matter of contract upon the compensation fixed by the assistant quartermaster; and that the vessel having grounded on its return trip, and been destroyed while thus grounded by an ice-freshet, no liability for its value attached to the United States under the Act 3d March, 1849, (9 Stat. L., p. 414, § 2,) or the amendatory Act 3d March, 1863, (12 id., p. 743, § 5.) The fact that the steamer remained, in performing the trip required, under the control and management of its owners, was considered as conclusive that it was not in the service of the United States within the meaning of those acts; and that a vessel could only be regarded as in snob service when let to the Government, and the owners had parted with its possession, command, and management. So long as the owners retained the possession, command, and management of the steamer the United States were only charterers of the same upon a contract of affreightment, and liable as such, and were not clothed with the character or responsibility of ownership. And it was also held that the adjudication of the Third Auditor in allowing, in supposed conformity with the acts mentioned, for the value of the vessel lost, could not have any influence upon the decision of the court.

The facts stated in the opinion of the Court of Claims and by the appellant’s counsel in his brief bring the present case fully within the reasoning and authority of Reed v. The United States. And although the findings in the record are defective in not stating the particulars of the contract, and it is found that the steamer was impressed into the military service, yet it distinctly appears that the terms upon which the vessel would be employed were stated at the time by the assistant quartermaster, and that the vessel while performing its service was manned by officers and men engaged by the claimant; that is, that the vessel was in his possession and under his command and management, and not in the possession or under the command and management of the United States; and that his account with the Government for its use and service as a transport until its destruction by fire was allowed and paid. We must therefore hold, as was held in the case cited, that whatever the force or coercion may have been which attended the original impressment, as it'is termed, the transaction ultimately ended in a contract of affreightment upon the terms stated by the assistant quartermaster. As charterers of the vessel under such a contract, the United States were not liable to the claimant for its loss, and, of course, could not be to the insurance companies which were subrogated to his rights. (Macardier v. The Chesapeake Insurance Company, 8 Cranch, 39; The Schooner Volunteer, 1 Sumner, 551; The Brig Spartan, 1 Ware, 153; Donohue v. Kittel, 1 Clifford, 138.)

Judgment affirmed.

Mr. Justice Miller dissented.

Mr. Justice Strong did not take part in the decision.  