
    MORGAN’S CASE. Thomas P. Morgan v. The United States
    
      On the Proofs.
    
    
      A charter-party provides that the owners shall keep the vessel tight, staunch and strong, fit for merchant service, at their own cost, and receive on hoard, when tendered, such troops, 8?e., as a quartermaster shall direct and the vessel can conveniently carry, and shall proceed direct to such ports as ordered; the “ war risk to "bo borne by tlie United States, and tlie marine risk by tbe owners.” Tint steamer is at Brazos, and is ordered to take a cargo and proceed to sea. A heavy gale is Mowing at the time, the water on the liar is temporarily low, and the steamer strikes ; she returns hut is ordered peremptorily hy the quartermaster, against the objection of the master andpilot, to proceed again to sea; she again-strikes on the har and is seriously injured.
    
    Four judges are equally divided as to tbe claimant’s right to recover upon tbe facts found; tbe fifth dissents from tbe facts found by the court and bolds that the petition should be dismissed.
    
      Mr. 2F. P. Ghipmm and Messrs. Carlisle and McPherson for tbe claimant:
    Tbis is a claim founded upon express contract in writing, and is brought by original petition.
    Tbe United States chartered from tbe claimants tbe steamer Tappahannock, at $182 25 per day; tbe claimants undertaking-bearing all running expenses except fuel, and keeping the ship' tight, staunch, strong, &c.
    While in service under this charter, the ship was ordered and compelled by a quartermaster, duly authorized to give such order, upon extra hazardous duty, in which damage must certainly and obviously result to the vessel, but the circumstances were such that the order was proper for the public service. Damage did result to the vessel such that she had to be and was docked for repairs, which was made "at the expense of claimants.
    The United States reimbursed the claimants for a portion of the repairs, but not for all, and they refuse to pay the per diem while the ship was undergoing repairs.
    This action is brought to recover the balance of the cost of repairs, and also the daily pay.
    The charter was-made March 1,1885, and provides that the Amssel shall, by the owners “be kept and maintained during the whole of the voyage, tight, staunch, strong, well and sufficiently manned, victualed, tackeled, appareled, and ballasted,” &o. The ship was put in service in the Gulf, and being at Brazos in July, 1864, she was loaded by the quartermaster there with a cargo for New Orleans, Louisiana, and placed in charge of a government pilot, and in tow of á government tug-boat, and orders given to the said pilot to take her to sea.
    There is a dangerous bar at the mouth of this harbor only to be safely crossed by vessels like the Tappahannock at high water, and when the order was given it was low water, and the danger was apparent. Both the captain and the pilot so declared, but the quartermaster ordered the tug to take the ship over, and the attempt was made. The ship struck, the hawser Xiarted, and she returned, somewhat injured, to the harbor. The captain reported this to the quartermaster, who ordered a second attempt to be made, and she was dragged over the bar after repeatedly striking, and being so much damaged that she had to proceed to New Orleans under convoy.
    Here a survey was held, and upon report of the result she was docked for repairs. In consequence of the pressing need of transports in the public service, the work was pushed night and day by two sets of workmen, and without completing the repairs she was sent to sea. She lost here, in all, twenty days, from August 5 to 25. In November she was laid up again, and her repairs completed in a permanent way; here she lost twenty-five and one-half days, from November 8 to December 4. For this time only partial payment has been made.
    I. It seems to be admitted that the government should pay for the repairs. The Quartermaster General and the Auditor both approved the payment, and only the Comptroller objected, and disallowed two amounts.
    First. He ivas not satisfied that the damage sustained on the first attempt to cross the bar should be paid for, because he was not satisfied that there was notice of the danger. We apprehend the evidence now adduced disposes of this objection. But when the quartermaster had notice of the danger he only repeated the order.
    Second. The Comptroller deducts one-third “new for old.” This is a rule derived from the law of insurance, which bears no analogy to this case, inasmuch as here the damage was directly caased not by any perils of the sea but by tlie act of tbe defendants. The allowance is made only as compensation for the improvement of the vessel, and the evidence here is that she was permanently injured, and never made so good as she was before.
    Third. A more nearly accurate rate Avould be that applied in cases of general average, where there is an element of wrong in the conduct of the party complained of. In such case the rule .is to award actual damage as the measure. In insurance cases no one is to blame, and the relation of the parties is unlike in all respects to that sustained by petitioners and defendants here.
    II. By the terms of the charter-party, the owners are entitled to the per diem so long as the vessel continues under the charter. But it is alleged that the owners covenant to keep her in good order, and that the time lost in consequence of any deficiency “in these respects is not to be paid for by the United States.” Now, no one covenants against the acts of the cov-enantee. If the defendant prevents the performance of a condition precedent which the plaintiff is ready and willing to perform, the action may be maintained as if the condition had been performed. 1 Chitty, PI. 358, and cases there stated; Young v. Preston, 4 Or., 239. But the measure of damages is different, the defendant being entitled to so much as was saved to the plaintiff by non-performance.
    III. But again. By the contract, the government expressly assumed the war risk, and in this case the damage was increased in the execution of an order requiring and compelling the vessel to encounter a danger which she would not have encountered in the ordinary course of her service, which was extra-hazardous, and which it was known the vessel could not safely encounter. All this was rendered necessary by a mili tary exigency, of which the order of the quartermaster was to the master of the vessel conclusive evidence, and which the War Department has fully admitted, by approving, and the treasury, by making payment for repairs.
    This being so, the question arises whether the government ¡bears the toar risk, when it refuses to pay anything for the loss of the ship’s services while disabled by a war risk ? The loss consists of two elements, the actual outlay of money and the suspension of accruing gains. Both are equally items of loss, for which compensation is given at law in all proper cases; and, we submit, both should be made good under the contract in question.
    
      The Assistant Attorney General fox the defendants:
    The steamer Tappahannock went into the service of the United States on March 1,1865, under a charter-party which fixed her hire at $182 25 per day, and provided that the marine rish teas to he home hy the owners, the war rislc only being home hy the United States.
    
    On the 21th or. 25th of July following, this steamer was injured on her way out of the harbor of Brazos Santiago, Texas, by striking on the bar. She made two attempts to cross the bar — the second only being successful — and in these attempts was injured. Her repairs also were made at two separate times; ■first, immediately on her arrival at New Orleans, between August 5 and 25, and again from November 8 to December 4, all in 1865.
    First. Considering the United States as insurers.
    I. The peril here incurred was within an ordinary marine risk, such as would have been covered by a policy against “ the perils of the sea.” It was a peril not insured against by the United States; and accordingly, as' against the United States, was to be borne by the owners, even in the absence of express agreement in relation thereto. But by express agreement in this charter-party the United States were made not liable to this risk, which was to be borne bj’ the owners. (Insurance Company v. Sherwood, 14 Howard, 366; Melntire v. Bowne, 1J. B., 238.)
    II. This injury was not within the war risk, which -was to be borne by the United States. Of this term, this court has well said: “ We think that it cannot be extended so as to mean more than ‘ acts of the public enemy/ or, at the utmost, the casualties of war; and we think that it was never intended that the government should be placed on the same footing with the public enemy, or become an insurer against its own act.” (Bogert'v. United States, 2 C. Cls. B.', p. 163.)
    III. The word “risk” in this charter-party refers simply to the vessel. When the risk was to be borne by the United States, it did not include the freight money or hire; and Avhen it was to be borne by the owners, it did not include the cargo.
    
      Second. Considering- the liabilities of the United States as hirers-under this contract.
    IY. The United States agreed to pay hire for the vessel only for each and every day the vessel was “ employed.”
    This agreement does not include any time when she was disabled.
    From the establishment of the foregoing propositions, it follows, that—
    
      (a.) The per diem compensation in no view of the facts is to be allowed, as claimed.
    (&.) If it, or any portion of the same, were recoverable, then, as before suggested, there should be deducted therefrom the amount heretofore allowed “for running expenses,” to wit, $2,'281 06, as this vessel was hired, mastered, manned, and provisioned, and not as a naked boat.
    (e.) The United States were not liable for any portion of the expense of these repairs.
    Y. In this court, no admission, by an officer of the United States, of law or of legal obligation, resting upon the United States, concludes the court. The claimant’s case rests upon this theory $ and he cannot properly, in one and the same case, avail himself of this theory and its opposite.
    This court has not hesitated to recoup payments already made in order properly to adjust the accounts of a claimant. (Garrison's Case, 2 O.Cls. B., p. 382.)
    YI. It is, however, open to the defense to maintain that there has been a full adjustment and payment of this claim, which is final and conclusive upon the claimant, as it is upon the United States.
    
      (a.) Certainly, the adjustment of such claims provided for under the act of March 3,1.849, is an adjustment conclusive upon all parties, as appears by reference to the several sections of that act (IX, 414.) This is an act creating a right and providing a remedy; and the right and remedy are intended to be kept together.
    As Congress has, by appropriate words, conferred a certain jurisdiction upon this Court of Claims, so Congress may, by like appropriate words, confer a like jurisdiction, in certain cases, upon another tribunal or officer, and the latter grant will be as full and exclusive as the former.
    
      
      (b.) If tbe adjustment weretxncler that or tinder other statutes conferring authority upon the Third Auditor and Second Comptroller, the payment and receipt of the money found due as in full payment concludes the receiving creditor, the same being so received voluntarily. (United Slates v. Adams, 7 Wallace, 463.)
   Casey, Ch. J.,

opinion:

The damage to this vessel was caused by a marine disaster. It happened by a peril of the sea. And the question is whether the loss happening in this wray is to be borne by the United States, the hirers of the vessel, or by the claimant, the owner. This must be determined by the contract between the parties and by the nature,'character, and extent of the risks and responsibilities assumed by each. (The charter-party is here referred to and made part of the statement of facts in the case.) By this charter-party the owner agreed to keep the vessel tight, staunch, and strong, and manned, victualed, and appareled fit for merchant service at their own cost and charges; and were to receive on board, when tendered alongside the vessel, such troops, men, animals, and supplies or cargo as-a quartermaster should direct and the vessel conveniently could carry, and proceed direct to such ports and places as-ordered by the quartermaster of the United States Army, and deliver cargo to the quartermaster or proper agent. Pilot-age and port charges to be paid by the United States. All cargo to be received and delivered within reach of the vessel’s tackles. The vessel to deliver cargo in good order and condition, (the danger of the seas, fire, and navigation, and the restraints of princes and rulers being always excepted.) “ The war rislc to be borne by the United States, the marine rislc to b$ borne by the oivners.”

The compensation of the vessel was to be $182 25 per day, for every day the vessel should be employed. The United States to furnish fuel for the vessel until returned to Philadelphia. The vessel to be returned at the place named u in the same order as when received, ordinary wear and tear, damage by the elements, collision at sea and in port, bursting of boilers, and breakage of machinery excepted.”

In July, 1865, the vessel ivas at Brazos, St. lago, Texas, and having been loaded with troops and stores by the quartermaster, was ordered to New Orleans, Louisiana. The bar at the mouth of the bay leading’ to that harbor is a difficult and dang'erous one to cross. At the time of receiving orders the water upon the bar was low and the wind high; but with a pilot furnished by the United States, and in tow of a United States tug, she proceeded to the bar. On the first attempt she failed to cross it. The vessel struck, the hawser of the tow parted, and .the vessel swung round inside the bar and returned to the landing. She sustained some injuries, Avhich could, if time had been given, have been repaired in a couple of days, at a cost of f 500 or $600; but, against the opinion and judgment of the captain of the vessel and the pilots, she was ordered by the quartermaster to proceed at once to sea. In attempting the second time to cross the bar she struck heavily several times. She ■succeeded in. getting over the bar, but in such an injured and leaking condition as to be compelled to anchor just outside the bar, and put her steam pumps at work to keep her from sinking. The condition of things was reported to the quartermaster, who sent another vessel alongside of her, took off the men and stores, and took her in tow to New Orleans. Here she was put on the ways and such temporary repairs as would enable her to make a couple of trips was made in twenty days. After-., ward she was again hauled up and the repairs completed. The time lost in making these repairs both times was forty-five and a half days.

The claim made was as follows:

First repairs.. $1,863 99

Twenty days’ time while repairs were being made.. 3,644 00

Second repairs. 5,026 81

'Twenty-five and a half days’ time. 4,647 27

Error in account...■. 215 40 .

15,397 47

This claim being submitted to the accounting- department, the Auditor and Comptroller disposed of it as follows:

One-half expense of first repairs, equitably apportioned to the United States. $931 99

Whole expense of second repairs, less one-third off, “new for old”. 3,351 21

For running expenses while laid up for repairs; that is, the wages of master and men, and cost of provisioning the vessel. (Keply, p. 33). $2,281 06

Total allowed and paid. 6,564 26

DisalloAved. 8,833 21

15,397 47

It is for this balance of $8,833 21 that this suit is brought and prosecuted.

The United Statés contend that the loss ensued from a marine risk and not from a war risk. In other words, that the damage resulted to the vessel from a peril usually covered by a marine-insurance, from which the Avar risk is excluded. To recover,, the claimant must maintain one of three propositions.

1. That the damage resulted from a Avar risk; or,

2. That the rightful and kvwful acts of the agents and officers of the United States Avere such as to haAre discharged the under-AA'riters on a marine policy from liability for the loss, and'cast it upon the United States; or,

3. That the United States are liable for the negligent, rash,, and wrongful acts-of their subordinate officers.

1st. We are to inquire whether the damage to this vessel was-the result of a “ war risk ” assumed in the charter-party by the United States. The term “ Avar risk” is an unusual one. I do* not find it in the works on in surance or adjudged cases. In the case of Bogert v. The United States, (2 C. Cls. R., 159,) this court held that the terms in a policy in which the United States were the insurers could not be extended beyond “ the acts of the public enemy” or “ the casualties of war; ” and that by its use-the United States did not insure against their oavu acts. In that case the vessel was in the service under a valued charter-party, and containing the accruing clauses, with the right to purchase at the specified valuation. During the period of the vessel’s service, to guard against the approach, or defeat the operations of the enemy, General Butler caused the vessel to be sunk in the James Biver, and it Avas held that this was not embraced within the meaning of a Avar risk, as used in the charter-party; that such an undertaking by the government is not an insurance against its- own acts, although it destroyed tbe vessel for a war purpose. To bring it within such a war risk as is assumed iu this contract, the damage must have resulted directly, or proximately at least, from some act or operations of the public enemy. Nothing of the kind exists here, and no obligation rests upon the United States growing out of that clause in the charter-party.

2d. We are next to inquire whether the circumstances proved here would relieve or discharge the underwriters in an ordinary marine policy for the loss ■, and it is not disputed seriously that the damage to this vessel resulted directly and proximately from a peril of the sea covered by such a policy. For whether there ivas such a policy or not can make no difference. The marine risk was to be borne by the owner, and if he failed to insure he became his own underwriter in the case. And it all comes back to that question whether the damage was the result of a marine risk.

I do not think that the decision turns to any extent upon the point so much discussed in the case, as to whether the ship for the time being belonged to the owner or the United States. The cases of Trinity Hause v. Clark, (4 M. & S., 288,) and New Berry v. Colvin, (7 Bingh., 190,) affirmed in the House of Lords, (1 Clark & Fin., 1283,) appear to establish the principle that the United States were pro lute vice the owners of the vessel ¡ yet I cannot see that this at all changes the aspect of the question, or varies the liability meant to be assumed by the respective parties by the terms of the charter-party. That it was a mere temporary ownership, which left a resulting and undoubtedly an insurable interest in the claimant, is quite plain and clear. But we shall arrive at the matter in a more direct manner if we suppose that the United States had assumed the entire risk, marine as well as war, and then taken out a marine policy on the vessel. Would, in such case, the acts of the quartermaster, here set up as the ground of claim, have discharged the underwriters6! It may be admitted that there was want of due caution on the part of the agent of the United States; that it was imprudent and negligent on his part to order the vessel to cross the bar at the particular time. Yet .the direct and immediate cause of the loss was the standing of the vessel on the bar, and not the order of the agent. And the maxim is, causa próxima non remota spectatur. In looking for this proximate cause, it is found to be a peril of tlie sea. The remote cause may have beeu the rashness or negligence of the agent or servant of the owner. This rule is illustrated and applied in the case of Insurance Company v. Sherwood, (14 How., 351.) The brig Emily was insured against the usual sea perils. During a voyage and near the entrance of New York Harbor the Emily, through the negligence of her crew, collided with the schooner Yirginian. The E mily herself suffered considerable damage, and inflicted still more upon the Virginian. She was libeled at the instance of the latter and compelled to pay for the injury. These damages which she was compelled to pay to the Virginian, as well as those suffered by herself, the owners of the Emily sought to recover from the underwriters. It was held that the injuries occasioned to the Emily itself by this collision were occasioned by a peril of the sea, while those to the Virginian were the direct or proximate effect of the negligence of the servants and crew of the assured. The Virginian, if she had been insured, could, under the same doctrines, have recovered from the underwriters, or from the Emily, at her option.

In the case of Waters v. The Merchants’ Louisville Insurance Company, (11 Peters, 213,) the Supreme Court of the United States there review'the whole law upon the subject, and the principle established is, that “ a loss whose proximate cause was a peril insured against is within the policy, although remotely caused by the negligence of the master and crew.” In that case, the fire Avliich was the cause of the explosion, and by which the vessel' was totally destroyed, was alleged in the plea to have been caused by the negligence and unskillfulness of the master and crew, and it was held to be insufficient to discharge the underwriters. The same was held in The Columbia Insurance Company v. Lawrence, (10 Pet., 507.) This same doctrine is firmly established in England, by the cases of Bishop v. Pentland, (7 B. & C., 219,) Haldworth v. Wise, (7 ibid., 794,) citing Shore v. Bentall, by Lord Tenterdon, (in ante, p, 789.) Bask v. The Royal Insurance Company, (2 B. & Ald., 82.)

In Cullen v. Butler (5 M. & S., 461, Phil. Ins., § 1052) it was held that the liability of the owner of a vessel for the loss of the cargo by the fault of his master and crew does not necessarily exonerate the underwriters. Both may be liable at the same-time. The negligence of the master and crew may make the owner liable. The loss by a peril insured against fixes that of the underwriter. And it is an established rule that “ if the damage can be accounted for by the perils of the sea, it will be. presumed to have so happened, unless it is proved to have been caused by culpable misconduct. Potter v. Suff. Insurance: Company, (2 Sumn., 197.) (Phillips on Ins., § 1053.) Hale v. Washington Insurance Company, (2 Sto., 176.) Where the vessel was insured against fire it was held that the owners were entitled to recover, where the master and crew set her on fire to prevent her falling into the hands of the enemy. Gordon v. Rimmington, (1 Camp., 123, see note.) (Phillips on Ins., § 1095.) In Radman v. Wilson (14 Mees. & W., 476) the loss occurred from stranding through the carelessness and unskillfulness of the crew, but this did not defeat a recovery on the policy. The Court of Exchequer Chamber in this case reaffirm the doctrines of Walker v. Maitland (5 B. .& Ald., 171) and Bishop v. Pentland, (7 B. & C., 219.)

A case that in some respects resembles the present one is found in Caruthers v. Sydebotham, (4 M & S., 77.) There, the loss occurred from the negligence and mistake of a duly commissioned public pilot. But it was held this did not affect the question. The vessel having perished from the immediate-operation of a peril insured against, the owner was entitled to. recover from the underwriters. (Phillips Ins., § 1058.) Now it appears to me that if this vessel had belonged absolutely to the United States, and had been insured by them, and she had been injured from the causes and in the manner detailed in this record, the underwriters would be liable under a policy against .the perils of the sea. The mistake or carelessness of the quartermaster in ordering the vessel to proceed at an improper time ought not to have any other or greater effect than the negligence or carelessness of the pilot or master would have in crossing the same bar at a proper time, but in such a careless, unskillful, and negligent way as to cause the damage to or loss of the vessel. The one has the same effect as the other, neither more nor less. The same result happens in each case. And the remote cause of the result in both cases is the improper,, mistaken, or negligent conduct of the servant or agent of the owner.

I have here treated the matter as if the servant or agent of this owner had been the person who was guilty of the negligence that remotely caused the damage. Even in that case I? have shown, I think, from the well-considered judgments of the highest courts in England, adopted and recognized in all their length and breadth by the Supreme Court of the United States, that an ordinary marine policy would cover the loss in this case; that the alleged imprudent, careless, or reckless order of the quartermaster would not defeat a recovery thereon. If this be so, the actual case here presented is much stronger than that. Here the fault or negligence, or whatever else you may term it, was not that of the owner, his agent or servant; nor was it that of any other person for whose conduct he was responsible, no more than he was responsible for the negligent or reckless conduct of the master or crew of another vessel by which his own should have been injured; It is very plain, therefore, that the proximate cause of the damage to the claimant’s vessel was a peril covered by an ordinary marine policy. And this being so, he must look to that source, if he has such a policy, for his indemnity, or, if he neglected to take it out, he must bear the loss himself; for I can find nothing in these facts that would have precluded him from recovering on such .a policy, or that would have discharged or in any wise relieved the underwriters.

Thus we have seen that the damage to this vessel was not occasioned by a war risk. It was purely a mariné disaster. There was no such conduct on the part of the quartermaster as would change its character or preclude a recovery on a policy against loss. What grounds then remain to the claimant upon which he can base a recovery against the United States in this case 9 None, other than the reckless or negligent conduct of the defendant’s quartermaster at Brazos St. lago. There is nothing in. this charter-party besides, upon which a recovery could be predicated. The United States do not in any case guarantee the competency, skill, or care of their officers or agents. In their contracts and dealings with individuals none such is implied. I doubt much whether any officer, as the law now stands, could, even by express stipulation, impose such a liability on the United States as is here set up. Such an engagement would be against public policy and void. It would require an express enactment of Congress to authorize any one to assume such an obligation on behalf of this government. It is to all intents and purposes an action on the case for a marine tort, or for negligence of defendant’s servants; and, whether one or the other, two fatal objections lie against its maintenance : first, we have no jurisdiction of such causes of action$ and, secondly, if we had, the United States are not liable on them.

This case cannot be distinguished in principle from that of Reybold v. The United States, decided at the present term. There the vessel, serving under a similar charter-party, was ordered by the quartermaster to proceed down the Potomac Báver while it was full of floating ice, and she was lost in the attempt to make the voyage. And it was held by a majority of the court that she perished from a marine risk incident to and growing out of the service in which she was engaged and for which she was chartered j that the marine risk was especially assumed by the owner in reference to the particular military service the boat was held to perform and the military orders to which she was by the contract expressly made subject; that these were the terms and conditions of her service, and for which she was paid. There is nothing in the facts of this case which varies the application of the principle or shakes its soundness, as stated and applied in the opinion of Judge Loring, in the case referred to.

That principle, applied here, is conclusive against the claimant’s right of recovery; and therefore judgment is to be entered for the defendants, and that the petition be dismissed.

' Loring, J.,

concurring :

I think that the evidence shows that after the first attempt to cross the bar the master of the vessel reported his damage to the quartermaster, and told him “ he was unable to proceed on his voyage without assistance /’ that this was substantially his proposal, to go to sea with assistance, and must have been so understood by the quartermaster. The evidence then shows that the assistance was rendered in the Dudley Buck, and that, towed by her, the master then proceeded on his voyage without any further objection made to the quartermaster. I think these facts do not show that the vessel was taken from the control of the master, or that his action or discretion were overruled by the officers of the United States.

Nott, J.,

dissenting:

The court bas determined as a fact in the case that Assistant ■Quartermester Scott, on the 25th July, 1865, at Brazos, Texas, issued an ordinary written sailing order to the captain of the Tappahannock requiring him to have his vessel “ready tomorrow morning at 5 o’clock to be piloted across the bar,” and also that there was neither objection on the part of the captain, nor compulsion on the part of the quartermaster. I agree that the injury resulting from the vessel’s sailing under this order and amid these circumstances was a marine risk, to be borne, according to the terms of the charter, by the owners; and that so far, the case comes within the ruling in the recent case of Reybold.

But the court also has found the fact that after the first injury suffered in attempting to cross the bar under that sailing-order, the quartermaster did peremptorily require the captain to proceed to sea forthwith against his, the captain’s, objections. The justification of this compulsion was a military necessity; and the action of the quartermaster may be best stated in his own words:

“ I gave the second order for the Tappahannock to proceed on her voyage, and my order was imperative. The exigency of the service required me to give this second order. These damages were sustained on her second attempt to proceed on her voyage. These orders were given by virtue of my office of quartermaster. I assumed the responsibility of giving the second order in consequence of orders received by me; and that if any damages were sustained by the vessel, I do not consider the officers of this vessel to blame.”

Upon these facts and upon the clause of the charter-party which declares, “ The war risk to be ‘borne by the United States ; the marine risk to be borne by the oivners,” the case has been elaborately argued, and, I must add, greatly obscured by the too much learning that has been thrown around it.

These charters of vessels in the government’s military service separated, by this insurance clause, all the risks that could assail a vessel into two classes: the one consisting of risks incident to military operation; the other of risks incident to navigation. The government, assumed the responsibility of such risks as might arise from the war’s dangers into which they might bring the vessel: the owners assumed the responsibility of such as might result from tlieir navigation of then-own vessel.

These several responsibilities implied reciprocal rights. Each party’s covenant related to his own acts, and undertook no responsibility for the acts of the other. The owners could not thrust the vessel into battle against orders and recover of the defendants, if she were lost, under their covenant against the war risk; the government could not compel the vessel to run on a reef and then say that her wreck came within the express terms of the owners’ marine risk. When the charter required that the vessel should be kept tight, staunch, and strong u at the cost and, charge of the owners,” and provided that u the time lost in consequence of any deficiency in these respects is not to he paid hy the United States,” it settled on the one hand the owners’ liability, and on the other their discretionary power. Should the defendants interfere with the master’s navigation of the vessel .they could not say that the resulting injury of their interference was a part of the owners’ marine risk. Marine risk implied marine discretion. If the defendants would exercise that discretion, they should, pro hac nice, assume the risk.

But would not such a construction, it might be asked, relieve the owners from the duties of the charter-party ? Might not the master allege, if he chose, that the voyage designated was too dangerous, the wind too high, or the tide too low, and remain in port ? Not so. The charter rate covered two elements, services and risk. When the vessel was ordered to sail she had a choice; to proceed and take the risk, to refuse and forego the pay. In this case the master, when he received the sailing-order, elected to take the risk. For that day’s service the vessel became entitled to her pay, and for that day’s loss the owners became liable for her damages. But when the master learnt by the first casualty the real danger of then crossing the bar, he elected not to take the risk. Under that election the vessel should have remained in port until the danger was past; and the owners should have forfeited her pay until she was ready to resume her service. This construction of these charters secures to the defendants their just rights, and holds the owners under a sufficient penalty to the performance of the vessel’s proper work.

Among tbe other learned obscurities of tbe case is that of tbe law of insurers and insured. Brought down to an analysis it means nothing more than this: if the owners had insured the vessel against perils of the sea, &'c., then they might have recovered against the insurer; and if they did not insure their vessel then it was their own fault, and they must be held to be insurers themselves. This is a good deal as if a person, sued for tortiously taking a vessel, were to answer that the owners ought to sue the insurers, because the vessel was or should have been insured against piracy. Nothing can be plainer or simpler than that if the defendants caused the injury they are responsible for the damage. The reasoning that would transfer that responsibility from an offending party to an innocent insurer cannot accord with the justice of the law.

The owners’ case does not depend upon the insurance clauses, either for or against them. It comes within the principle in Schultz & Markly, (3 C. C1s. R., p. 56,) where all the judges were agreed that the owners should recover the contract rate of compensation.

The more I reflect upon it the more I am of the opinion that if a vessel in the government service on Lake Erie under one of these charters had been compelled by a quartermaster to pass down the Niagara River and over the falls, against the remonstrance of her master, the owners should not be held liable for the loss as a marine risk.

PeoK, J., concurred in this opinion.

Milligan, J., concurred with the opinion read by the Chief Justice.  