
    SHAW’S CASE. John S. Shaw v. The United States.
    
      On the Proofs.
    
    
      During the rebellion a vessel is impressed by the Quartermaster Department, loaded with army stores, and ordered doion the Mississippi. The vessel on the voyage is officered andmanned by the owners. While thus in the Government’s service she is destroyed by fire, without fault or negligence of the officers or creio. Subsequently the owners are paid for her services, and the Third Auditor, in May, 18G4, awards the owners the value of the vessel, less the insurance received from insurers. The owners bring suit on their own behalf for an undervaluation by the Auditor, and to the use of the insurance companies, for the amount withheld for insurance.
    
    Under tlie decision, of the Supreme Court in Gultman’s Case, (ante,) an owner, navigating his vessel through his own master and crew, cannot recover for her loss by fire under the Act 3d March, 1849, (9 Stat. L., § 2, p. 414,) and its amendment, (12 Stat. L., p. 743,) although the vessel, was in the military service of the Government by impressment, and the loss was without fault or negligence on the part of the owners or their representatives. The voluntary navigation of the vessel by the owners, after impressment, changes the character of the transaction from impressment to contract, and retaining control of her navigation takes the case out of the statute within the meaning of Guttman’s Case, (ante.)
    
      
      The Reporters’ statement of the ease :
    The ease was formerly tried, but a majority of the court being of the opinion that the claimant could not recover to his own nse, but might recover to the use of the insurers, it was remanded and an amendment allowed, (8 O. Cls. R., p. 488.) Since then the Supreme Court has given a construction to the statute of 1849, (Guttman’s Oase, ante.)
    This court now finds the following facts:
    On and prior to the 17th 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 by Capt. Charles Parsons, assistant quartermaster of the United States Army, for especial duty between Memphis and Vicksburgli, and was loaded with Army stores and troops, and ordered by said Parsons to proceed down the Mississippi River to Memphis, Tenn., and there report to Capt. J. V. 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 day 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, 1804, 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 tbe Government as aforesaid; 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, 1884, the Third Auditor rendered the following award in favor of the claimant:
    
      uAward No. 33. — 2d section of the act of id March, 3849.
    ‘‘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 March id, 3863, it is adjudged by me that there is due from the United States to John S. Shaw, for the steamboat Eobert Campbell, jr., of Saint Louis, Mo., burned on the Mississippi Eiver, near Milliken’s Beud, 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,) less the sum 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, ($32,000.00.)
    “To be paid to John S. Shaw, Saint Louis, Mo.
    “E. J. ATKINSON,
    “ 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 tlie claimant, and $32,000 paid Mm by the Government as aforesaid, leaving $13,000 additional on tbe 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 a 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 Insuranóe Company, and the Phoenix Insurance Company.' In each of the policies issued by. said companies, except that of the Atlantic Mutual Insurance Company, the said boat was valued at $38,000 ; and in all of said policies there wras 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 Eobert Campbell, and the losses under those policies, viz, $5,000 under each, were paid to said Eobert 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 Eobert Campbell & Co.; and the loss under that policy, viz, $5,000, was paid to said Eobert 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, wa.s 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.
    
      
      Mr. Joseph Casey for tbe claimant:
    Tbe claim ant is a citizen of tbeUnited States, residing at Saint Louis, State of Missouri. Prior to and on tbe 17tb day of September, 1863, be was tbe owner of tbe steamboat known as the “Bobert Campbell, Junior.” This steamer was then lying atthe port of Saint Louis, fully manned, equipped, and furnished for business. On tbe day named she was seized and impressed into tbe military service of tbe United States by tbe deputy quartermaster, General Bobert Allen, through Captain Met-calf and Captain Parsons, assistant quartermasters. Under this seizure and impressment she was loaded on the Government account, and left tbe port of Saint Louis about tbe 25th of September, for Yicksburgh, Miss. On the way down, near Milliken’s Bend, on tbe Mississippi river, tbe steamboat took ñre and was consumed. She was a total loss to tbe claimant. At tbe time of the impressment and seizure of tbe steamer at Saint Louis, and at tbe time of her destruction, she was worth to tbe claimant and would have brought more than $70,000 in cash. At tbe time of her destruction she was insured by tbe claimant to tbe amount of $25,000 in various insurance companies, which sum was afterward paid to him. He applied to tbe Third Auditor of the Treasury, under tbe act of 1849 and its supplements, for compensation for tbe loss of bis steamboat. Tbe Third Auditor valued tbe boat at $57,000, deducted tbe $25,000 insurance received by the claimant, and made him an award for $32,000, which was afterward paid, and which he received under protest.
    This suit is brought in tbe name of the claimant, to recover from tbe Government of tbe United States the additional sum of $13,000, tbe difference between tbe $57,000 at which tbe Third Auditor valued tbe boat and her cash value at tbe time of loss, and also the $25,000 insurance, for tbe use and benefit of tbe companies who paid tbe same; making in all $38,000.
    Tbe impressment of tbe claimant’s boat is clearly shown and is not a matter of dispute. Tbe value of tbe boat at tbe time it was seized and lost is clearly and distinctly proved, and allowance made by the Auditor, $13,000 less than tbe lowest point of value contained in tbe proofs, leaves nothing to decide except tbe question as to whether tbe awrard of tbe Auditor, under tbe act of 1849 and its supplements, was conclusive upon tbe claimant. This point was expressly ruled the other way in the case of David A. Bogart v. The United States, (2 C. Cls. B,., p. 159.) The Act 3d March, 1849, (9 Stat. L., pp. 414, 415,) provides that the owner who has suffered the loss of the property “ shall he paid the value thereof,” and the Act 3d March, 1863, (12 Stat. L., p. 743,) extends the same provisions to the owners of steamboats and other vessels, &c. In view of the proof made in this case — the clear, unshaken decision of the court directly upon the point — we claim a judgment in this case, in the first place, for the difference between the value of the boat as proved and the amount awarded by the Auditor. We also think it clear that the Government is liable for the amount of the insurance. It was the value of the boat that the Government was liable for, and whether insured or not insured, they were liable to the owner or owners for it. In that view of the case, he having received the amount of the insurance from the companies, we have to bring the action for the recovery of the value of the boat in his name, either before the Auditor or in this court. And if recovered in one place or the other, the Government officers in the one case, and the court in the other, would so control the amount recovered, and the proceeds of the judgment, that it should finally go into the hands of the parties entitled.
    
      Mr. Joseph K. MoGammon (with whom was the Assistant Attorney-General) for the defendants.
    The facts in this case, as to possession, command, or navigation, being in the owner and not in the United States, are identical with those in Reed’s Case, (11 Wall., p. 591,) and the decision there announced should govern here. The Supreme Court says: u But where the general owner retains the possession, command, and navigation of the ship, and contracts for a specified voyage, as, for example, to carry a cargo from one port to another, the arrangement, in contemplation of law, is a mere affreightment, sounding in contract, and not a demise of the vessel, and the charterer or freighter is not clothed with the character or legal responsibility of ownership. (Donahoe v. Kettell, 1 Cliff., p. 137; The Volunteer, 1 Sumn., p. 551; The Spartan, Ware, p. 153; Grade v. Balmer, 8 Wheat.,, p. 605; Christie v. Lewis, 2 Brod. & B., p. 410.”)
    
      “ Ualess the ship herself is let to hire, and the owner parts with the possession, command, and navigation of the same, the charterer or freighter is not to be regarded as owner for the voyage; as the master, while the;owner retains the possession, command, and navigation of the ship, is the agent of the general owner, and the mariners are regarded as in his employment, and he is responsible for their conduct. (Putnam y. Wood, 3 Mass., p. 481.”) If the owner was owner for the voyage, he assumed the marine, or fire, or any other risk, other than the war risk. 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. (Leary’s Case, S C. Cls. B., p. 35.)
    The fact that the Third Auditor assumed jurisdiction of the claim presented by the claimants for the value of the Bobert Campbell, jr., is no argument why the defendants were liable for her value.
    That the steamboat was destroyed by fire while in the possession of the owner is further proved by the full payment by the insurance companies of the amounts of the policies, which policies expressly excepted the liability of the insurance companies in cases of “ war or detention, or the consequences of any hostile act of the Government or people, person or persons, of the United States.” By what rule of law or equity could these insurance companies be compelled, under the terms of the policies, to pay the amounts of the policies, if the Government or its agent impressed or held the steamboat, and, at the same time, ask indemnification from the United States after having paid the policies'? The insurance companies did not consider the Government to have assumed the command, or navigation, or possession of the steamboat, nor that the owner had parted with such command, navigation, or possession, or they would not have paid the amounts of the policies. The very terms of the policies are conclusive upon the underwriters; for the assured, on his part, makes certain stipulations, the failure to comply with which would invalidate the policy, showing that for all intents both parties recognized full possession in the owners, and, of course, the ability to comply with their share of the contract. If, on the other hand, the fire was not a consequence of an impressment on the part of the United States, nor while tlie possession, command, or navigation was in the United States, the United States are not liable for damage done to the steamboat by fire, and the insurance companies paid the policies, as in right and justice they should, and cannot now recover from the United States. The fire-risk, other than that arising from war, was in the insurance companies, and there is no allegation that war or an impressment was the causa, próxima, but that fire was the causa próxima, which in itself admits away the present claim of the insurance companies. (The lonides v. Ins. Assoc., 14 O. B., N. S., p. 259; 32 L. J., 0. P., p. 170.) The insurance companies cannot say that the steamboat Robert Campbell, jr., would not have caught fire and burned if the United States had not been under a contract of affreightment with the owner ; possession, command, and navigation being in the owner. The insurance companies are estopped by their action in paying the amounts of the policies from alleging a different set of facts from that under which they acted, especially after their silence for ten years. (Justice v. United States, 15 Wall., p. 535.) If they made a mistake in law, it cannot be remedied in this court. They had an election either to pay the steamboat-owner, and thereby acknowledge that such owner was the owner for the voyage and that the United States were not to blame for the fire, or they could have refused payment under the terms of the policies, alleging arbitrary possession and control of the steamboat by the United States, and denied their own liability. They selected the first position, and must stand by their election.' (Bodemund v. Ciarle, 46 N. Y., p. 354; Morris v. Rexford, 18 N. Y., p. 552.)
    The insurance companies having, by the terms of their policies, excluded war risks, and yet having paid the loss under these policies, have proved themselves out of court by this clear admission that their liability arose from a loss of a different character from that for which the Government is liable. The value of the steamboat in the policies was $38,000, and the court is asked to accept this as the true valuation. Where there is no fraud, the valuation in the policy is conclusive between the parties to the insurance; for they have by agreement settled the value, and not left it open to future inquiry and dispute as between themselves. (Shatoe v. Felton, 2 East, p. 109; Grade v. Insurance Company, 8 John., p. 237; Phillips v. Insurance Company, 10 Cush., p. 350.) If conclusive between the parties, why should it not be considered as the best evidence of the value of the thing insured, where a third party occupies the place of the insurers and is held responsible for the loss of the steamboat?
    The policy provided that the insurance on the steamboat should not exceed $30,000, or the policy would become void. Here is an additional proof that the value placed upon the steamboat was approximately true and correct, because why would the insurance be limited to $30,000 if the steamboat was worth $70,000, as contended by the claimant, or $57,000, as found by the Third Auditor ? The limitation of $30,000 insurance, taken in connection with the valuation mentioned in the policy, which was made at the time the insurance was effected and the fire occurred, although it may not work a legal estoppel to the proof of greater value on the part of the insurance companies, goes far to prove that the true value of the steamboat at the time of its destruction by fire was $33,000. The case of Campbell v. United States, (8 C. Cls. E., p. 240,) decided that an estimate of value of a steamboat seized by the army, made at the time, is better evidence of value than an estimate made by witnesses several years after the seizure; applied to the facts in this case, the value will be placed at $38,000 by the court.
    The insurance companies having the legal right under the ruling of the Court of Claims in other cases to commence actions in their own names, and not having taken advantage of that right until ten years after their claims accrued, are now barred by the statute of limitations.
    The defendants could not plead the statute of limitations as to the insurance companies before they became parties to the suit. The decision of the court, suggesting that judgment would be rendered for the insurance companies upon their substitution for the claimant,- was certainly not intended by the court to preclude any defense as to them when they came into court.
   Loring, J.,

delivered the opinion of the court:

The petitioner claims, for the use of certain insurance companies, $25,000, retained on the findings of the Third Auditor from the amount'found by him to have been the value of the Eobert Campbell, jr., when she was burned.

It seems, therefore, quite clear that if the Third Auditor had not jurisdiction of the case, his whole proceeding is legally a nullity and in no way binding on the United States, for they are never parties to the unlawful or unauthorized acts of their officers.

And, therefore, the first question here is, whether the case submitted by Mr. Shaw to the Third Auditor was within the j urisdiction and authority of that officer under the Act 3d March, 1849, and its amendment, (12 Stat. L., p. 743,) and as contended for the defendants at the trial in the able argument of counsel. A majority of the court think it was not.

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 the statute the word “ impressment ” is used in contradistinction to contract, and thus would seem to include every taking by the mere authority of the United States.

But the facts are also found, that, at the time of the impressment, the officer making it contemplated paying a price for the services of the boat, and stipulated and offered it then, and the owner accepted this price, and, for all the time the boat was in the service, received it and receipted for it. The owner was not obliged to do this, and, by doing it, he converted the imprlfesment into a contract, to be performed by him and paid for by the Government; and that was the status of the steamer when she was destroyed by fire. She was in the possession of her owner and navigated by his master and crew and performing his contract for the transportation of stores, and was therefore in the service of her owner, like any other chartered vessel performing a contract of affreightment, as decided by the Supreme Court in Russel's Case and in Reed's Case.

Now, the Supreme Court decided in Guttman's Case, and we therefore have held at this term, in transportation contracts, that, where the owner of teams remained in possession of them, using them to perform the transportation he had contracted to perform for a price stipulated, in the teams were his service and not in the service of the United States, and that if the teams were destroyed, the case was not within the statute of 1849. Now, this is a like case, and the only difference is that the means of transportation here was a steamer instead of ox or mule trains, and if the case is not within these statutes, then the United States never authorized — were never liable for — the action of tbe Auditor, nor for $70,000 found by him to be the value of the vessel, nor for any part of it. They were mere strangers to the submission to the Auditor, and are in. no way estopped or affected by his judgment or anything done under it.

Then it was contended for the defendants that the Robert Campbell, jr., being, when burned, in the possession of her owner, performing his contract, she was at his risk; and in this we concur. He who undertakes the performance of a contract undertakes the risk of it, and it was never held that freighters, who put goods on board of a vessel to be carried by her for the freight-money, were thereby her insurers for the voyage.

Nott, J.,

dissenting:

It has been decided by the Supreme Court that where the officers of the Executive Departments have given a construction favorable to the Government for a long time to a statute, and Congress has regulated its appropriations accordingly, there the true construction of the statute is no longer an open question. It seems to me (though I confess the Supreme Ooflrt may be of a different opinion) that it is a poor rule which will not work both ways. I also think that a statutory construction favorable to claimants by the executive officers should be even more binding upon the Government than one which is strictly conducive to its own interests.

The statute now under consideration has always been held by the auditing officers of the Treasury to embrace just such cases as the one now before us. The fact of this construction is sufficiently evidenced by the cases which have been before this court. Reed's Case, (4 C. Cls. R., p. 132.) The auditing officers, at the same time, have never extended their favorable construction to cases like that of Guttman, the distinction made at the Treasury apparently resting on the fact that in the one case there was an implied contract springing out of a threatened impressment, which the owner did not voluntarily seek, and which was sought and compelled by the Government, while in the other case the contractor voluntarily sought and obtained an express contract, in which he inserted no clause of liability on the part of the Government. The distinction made between the cases, in other words, was, that when the officers of the Government forced an implied contract upon the owner, they in- effect made it the mselves according to the terms of the statute; but when the owner voluntarily entered into an express contract, he in effect made it himself, and left it open to the construction which would be given to it as between any other two parties. The construction now given to the statute by this court, upon the authority of Guttman’s Case makes the broader distinction, that when the owner retained the possession of his vessel and discretion as to her immediate control or navigation, the risk remained with him, as though it were a case of express contract. If the question were an open one, I am inclined to think that this would be the better construction.

But the construction given by the Treasury to the statute in effect made the Government assume the relation of an insurer of a boat thus used for military purposes. The consequence has been that the o fficers of the Government, when estimating / the compensation which they thought proper to allow, have taken into consideration this character of insurer on the part of the Government, and have fixed the compensation at a lower rate than -they would have allowed if the owner had been his own insurer.

This court has held the same, (Reed’s Case, above cited,) and Congress has year after year appropriated money to give effect to the awards of the Auditor for such damages. I may add, that the same construction has been given by different Attorneys-General to the statute, and that in the recent argument of ex-Attorney-General Evarts, before the Judiciary Committee of the House of Representatives in regard to the Alabama claims, he cites the opinion of Ex-Attorney-General Hoar as to this identical claim for the steamer Robert Campbell, jr., relying upon it as sufficient authority for the subrogation of an insurance company in a right of action against the Government. What all parties have thus united in regarding as the true construction of the statute had better be left, I think, undisturbed, even though the construction is less philosophical and less clear than the one which the judiciary would give.  