
    DOZIER’S CASE. John T. Dozier et al. v. The United States.
    
      On the Proofs.
    
    
      In 1864 the claimants’ sleamlioatis talcenfrom them and impressed into the military service, and a new crew put upon her. While in the possession of the defendants’ officers she is injured. The insurers pay ike owners for her injuries. The Quartermaster Department pays the owners for the boat’s use and service up to the time of her going on the dry-doeh. The price allowed for the use and service is fixed by the officer who certifies to the impressment. The oumers receipt in full for the amount allowed. The Quarto-master Department refuses compensation for the time the boat is undergoing repairs.
    
    I. Where injuries suffered hy an impressed vessel while in the possession and under the control of the Government are made good to the owners l>y the insurers, the owners have no right of action against the Government for the same damages.
    II. Where a vessel is taken from the owners and impressed into the military service and suffers injuries while navigated "by Government officers, the owners may recover for her use and service during the period of her repairs.
    
      The Reporters’ statement of the case:
    In this case the court found the facts to be as follows :
    In the year 1804, and while the matters hereinafter set forth were transpiring, the claimantswere the owners of the steamboat Isabella.
    On the 25th of April, 1864, the said steamboat was, by the military authorities of the United States, at Saint Louis, Mo., taken from the possession of her owners, and impressed into the service of the United States, and a new crew put on board of her, and she was sent up the Missouri Biver, wh'ere she was , employed in the service of the Government in transporting quartermaster stores, forage, and property of the United States between Fort Sully and Fort Eice, on the Missouri Biver; the latter fort being about 1,700 miles from Saint Louis.
    On the 27th of July, 1864, the said boat, without any cargo on board, left Fort Eice, bound for Saint Louis; and on the 29th of that month, in descending the proper channel of the Missouri Eiver, she struck something under water, supposed to be a rock, which broke in her bottom and damaged her much; but, by building a bulk-head around the break, she was enabled to proceed on her voyage, and arrived at Saint Louis on the 17th •of August, 1864. On the next day she was put upon the sectional dock for repairs, and remained ■ thereon, undergoing repairs, until the 6th of September following.
    ■ The whole expense of repairing the injury to said boat, consequent upon the accident with which she met on the 29th of July, was 13,972.84
    Said boat was insured in several insurance offices to the amount of $25,000, on a valuation of $36,000; and the loss resulting from said injury was adjusted by the insurers, in particular average, on the 24th of September, 1864, and two-thirds thereof, amounting to $2,560.56, paid by the insurers to John T. Dozier for the claimants, as the amount payable by the insurers on the loss.
    On the 12th of September, 1864, the claim of the owners for the use of said boat by the United States was stated by an officer of the Quartermaster Department of the Army at Saint Louis, and a voucher therefor issued in the name of John T. Dozier, in the following terms:
    
      “ The United States to John T. Dozier, Dr.
    
    
      u September 12,1864. For use and service of steamer Isabella, employed in the Quartermaster Department, transporting stores on the Missouri Biver for the command of Brigadier-General Sully, commanding northwestern Indian expedition, from April 25, 6 p. m., to August 18, 6 p. m., 1864,115 days, at $85 per day. $9,775
    “ Ninety-seven hundred and seventy-five dollars. 9,775
    “Saint Louis, Mo. Ent. B. 45.
    UI certify that the above account is correct and just; that the services were rendered as stated; and that they were necessary for the public service, as per my report of persons and articles for September, 1864.
    “ Q. J. DBAKE,
    “ Twelfth Illinois Infantry, and A. A. Q. M.v
    
    
      On tbe 20tli of September, 1864, the amount of said voucher was paid by the assistant quartermaster of the army to said John T. Dozier, who signed a receipt therefor, as follows:
    “Deceived, at Saint Louis, Mo., the 20th of September, 1864, of Col. William Myers, assistant quartermaster United States Army, the sum of ninety-seven hundred and seventy-five dollars and cents, in full of the- above account.
    (Duplicate.)
    “JNO. T. DOZIEB.”
    The price allowed for the use and service of said boatwas fixed by the officer who signed the voucher. The said Dozier at first refused to accept that price, but afterward received it. It does not appear that his receipt of the money was accompanied with any protest against the amount allowed as insufficient for the use and service of the boat.
    While said boat was in the service of the United States, during the period stated in the aforesaid voucher, all the expenses of running her were paid by the United States, and they amounted to $125 per day. It does not appear that, during the time said boat was oh the dock undergoing repairs, she was of" any expense to her owners on account of her care or.management.
    Upon the foregoing facts the following conclusions of law were announced:
    1. As to the time the boat was in the service of the Government, and the price per day which should be paid for her use- and services, the receipt of John T. Dozier is conclusive upon the claimants, and debars any further recovery for such use and service from April 25 to August 18,1864, both inclusive.
    2. The claimant, having been paid by the insurers for the damage sustained by the boat from the accident of the 29th of July, is not entitled to recover compensation therefor from the defendants.
    3. For the seventeen days that the boat was on the docks at Saint Louis, undergoing repairs, viz, from August 19 to September 6, 1864, both inclusive, the claimant is entitled to re cover the sameper-diem compensation as was allowed her during her actual use by the Government.
    
      Mr. John J. Weed for the claimant.
    
      
      Mr. Alexander Jolmson (with whom was the Assistant Attorney-General) for the defendants.
    The claim for a per diem while the vessel was repairing is in the nature of a claim for demurrage. Demurrage, properly-speaking, is a matter of contract. A man may contract to pay for the time a ship is detained in loading or unloading, and render himself liable to pay, no matter what may cause the detention; or he may make such a contract as will exclude any given cause of detention. In other words, an owner and a charterer of a ship may make whatever contract they wish as to demurrage, and such contract is binding. But in all cases of demurrage there must be an express contract, and the right to recover on such a contract does not depend upon any question of fault or negligence, unless there is a reservation to that effect in the contract.
    In the absence of an express agreement as to demurrage, there is an implied contract that the charterer of the ship or the consignee of the goods will not unreasonably detain the ship. An action will lie for the breach of this contract; but to sustain such action it must be alleged and proved that the detention occurred by the fault or negligence of the defendant.
   Drake, Oh. J.,

delivered the opinion of the court:

1. The ground taken in the first conclusion of law needs no enlargement. The decisions of the Supreme Court in cases involving the same question leave no room for questioning the conclusive force of a receipt given by a party in full for a claim where he has knowledge of all the facts and receives the money without protest or demur.

2. The second conclusion seems equally plain. The claimants were not entitled to double compensation for the injury done to their boat by accident of the 29th of July. The boat was fully insured, and they resorted to the insurers for compensation for that injury, and obtained it. That is all they had a right to, and they cannot exact from the Government remuneration on that account.

3. As to the third point, it seems to us but simple justice that, when the Government b.y military force takes a vessel from the possession of her owners and places her in the Gov-eminent service, the owners should be paid for her until the Government returns her to them in a fit condition for use. The owners, in this case, lost seventeen days’ use of their vessel, not through any default of their own, nor through an accident happening to her while they had possession and control of her, but through an accident which occurred while they were forcibly depossessed of her, and while she was in the service of the Government, and when she was where, if they had obtained possession of her, she might not have been. If she had been wrecked and lost by that accident, the claimants would, uuder the Act March 3, 1849, (9 Stat. L., p. 414,) and the Act March 3,1863, (12 Stat. L., p. 743,) have had a right to recover of the Government her value. Equally, as it seems to us, are they entitled to continuation of th eper-diem compensation during the time the vessel was on the docks undergoing repairs.

Judgment will, therefore, be rendered in favor of the claimants for $1,445, being for seventeen days’ detention of the Isabella on the docks, at $85 per day.  