
    KIMBALL’S CASE. John H. Kimball et al. v. The United States.
    
      On the Proofs.
    
    
      A contract contained in a bill of lading is executed at Philadelphia, April 18,1865, between a quartermaster and the mastei• of a vessel, for carrying a freight of coal to Port Poyal at so much per ton, allowing twenty-one days for discharging, with $100 per day for demurrage. There is a further provision at the foot, signed by the quartermaster, that the government asswmes the war rislc, and there is a printed marginal note or endorsement, placed there by the Quarter
      
      master Department, not signed hy either party, that “ if, on tlie arrival of tlie vessel at tlie port of destination, the consignee should order her to another place to discharge, such 'order in all cases to he in writing.” The vessel arrives at Port Itoyal and is ordered to Key West; the master ref uses to go; the quartermaster compels him; he protests; the vessel is injured in crossing the har; she puts haclc; the coal is subsequently unloaded at Port Poyal, after considerable demurrage. The vessel is towed to Boston hy the government and repaired there hy the owners. They present all the facts to the Treasury and claim freight and repairs, hut are silent as to demurrage; the Treasury allows them only freight.
    
    I. Where a vessel, which has gone to a southern port during the rehellion with a cargo for the government, is compelled, under protest, hy a quartermaster to proceed to another port, hut is not seized nor taken from tlie possession of the master and crew, she is “impressed” into the military service within the meaning of Acts 3d March, 1849, and 3d March, 1863,(9 Stat. L.,p. 414; 12 id-.,p.736,) and is not “appropriated” within tlie moaning of the Act 4th July, 1864, (13 Stat. L., p. 381.) An injury suffered hy reason of the impressment is not “damage” done hy the army within the meaning of the last act.
    XI. Where a hill of lading provides for carrying a cargo at a fixed price per ton to an agreed port of destination, a printed marginal note, placed there hy the Quartermaster Department, (not signed hy the parties nor alluded to in the hody of the hill of lading,) providing- that “if, on the arrival of this vessel at the port of destination, the consignee should order her to another place to discharge, suck order in all oases to he in writing,” will not he construed as a part of the contract, inasmuch as it specifies no compensation, nor imports an obligation for any additional voyage. It . -will ho construed to liavo heon placed there for the convenience and protection of the defendants, if tlie master should agree with the consignee for a second voyage.
    III. Where all the facts of a case have been presented to the proper department it is sufficient to support an action, although the claimants may have mistaken their measure of damages; nor will the mistake preclude them from seeking their full measure of damages in an action, in this court.
    
      Messrs. Chisman & Sostner for claimants :
    The claimants were the owners of the bark Annie Kimball. On the 18th day of April, 1865, the Kimball received on board a cargo of coal at Philadelphia, which she undertook, by the terms of a hill of lading, to carry to Port Koyal, South Carolina, for the United States. The bark arrived duly and reported her cargo for discharge.
    The defendants being supplied with coal at Port Eoyal, would not receive it there, but ordered the master of the bark to pro-eeecl to Key West, Florida. This’ the master protested against as not within the terms of his contract, and for the further reason that at the time he was ordered out to sea it was unsafe to attempt to cross the bar at Port Royal. Notwithstanding these objections the quartermaster sent a government tug to tow the bark to sea. In the endeavor to accomplish this the bark was taken on to the bar when the tide was at ebb, and she struck heavily and ivas damaged to such an extent as to compel the abandonment of the voyage to Key West, and to make necessary some expensive repairs. The cost of these repairs is the subject-matter of this controversy.
    After the arrival of the bark at her port of destination and tender of cargo for discharge in good order, (which is conceded ivas done,) any subsequent service required of her by defendants, upon condition to which the owners did not assent, was at defendants’ risk. (The schooner Mannahasset, 3 C. Cls., p. 76.)
    If the requirements of the defendants were legal, and the bark, under the bill of lading, could be compelled to proceed to Key West, still, while in tow of a government tug, with no power to control or manage herself, and until at sea safely, the ■ defendants must be held to have assumed the marine risk.
    Since the original petition was filed, an amended petition has been filed, claiming fifty-six days’ demurrage, at $100 each day.
    The thirty days’ detention before discharge of cargo at Hilton Head, beyond the time allowed in bill of lading, are within the technical definition of demurrage and the expressed terms of the contract. (Abbott on Shipping, chap. Ill, part IV, title Charter-party.)
    The owner of a ship may have a special action for the damage resulting to him from improper detention by freighter or consignee. (Ibid., citing Horn v. Bensusan, 9 C. & P., 709. See also observation of Lord Abinger in Kell v. Anderson, 11 M. & W., 498.)
    The disaster in this case being one for which the defendants are responsible, they are bound in law to indemnify petitioner for all the direct consequences thereof.
    “When a ship is detained beyond the time limited and ascertained, the daily rate of demurrage mentioned in the charter party or bill of lading will in general be the measure of damages to be paid.” (Abbott on Shipping, title “ Demurrage,” part IV, chap. Ill, par. 3.)
    Demurrage ceases usually when the vessel is cleared out and ready for sailing, but here the vessel was not ready for sailing when cleared out and the disability was caused by the defendants. In such case the demurrage must be held to continue, or damages accrue, in the nature of demurrage, to be computed during the period of disability. {Ibid.)
    
    The rule is, that the consignee shall pay demurrage although not to blame for delay, provided the owner be not in default. (2 Parsons on Cont., book III, ch. 12, par. 4-, and note r, page 304, last edition.)
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants:
    I. When the injury to the vessel occurred she was in the prosecution of the voyage contemplated in the original contract with the United States. The injury resulted from a marine risk, and all such risks wrere assumed by the owners of the vessel.
    This injury was not within the war risk which was to be borne by the United States. Of this term the court has well said: u We think it cannot be extended so as to mean more than 1 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.” (Bocjert v. United States, 2 O. Gis. E., 163.)
    II. If the vessel was not in the prosecution of her originally intended voyage, the defendants are not liable.
    
      {a.) The injury resulted from the wrongful and tortuous act of Captain John L. Kelly; or,
    
      (b.) The claim grows out of damages to property caused by a military order; damage by a part of the army “ engaged in the suppression of the rebellion.”
    III. The claim, if any there be, arises under the Act March 3, 1849, (9 Stat. L., p. 414, § 2,) as amended by Act March 3, 1863, (12 Stat. L., p.743, § 5,) a,nd the remedy given by the former act is complete and exclusive.
    IV. Demurrage cannot be recovered, because—
    First. The vessel was discharged' of her cargo within the time allowed by the bill of lading. The contract was then at an end.
    Second. The vessel was detained by reason of an accident, against which the claimants, and not the defendants, were the insurers.
    Third. The claim was never presented to the executive department charged with the settlement of such claims.
   Nott, J.,

delivered the opinion of the court:

This is an action brought upon the bill of lading of the bark Annie Kimball. The damages grow out of injuries to the vessel caused by the defendants, and out of demurrage. They are laid, for the former, at $7,G04 41; for the latter, at $5,600.

The contract on which the action rests is contained in the. following bill of lading:

“ Philadelphia, April 18,18G5.

“ Shipped by Captain Henry Bowman, assistant quartermaster United States Army, in good order, on board the barque Annie Kimball, of Bath, Maine, whereof the undersigned is master for this voyage, now tying in port of Philadelphia, and bound for Port Boyal, South Carolina, (1,061) ten hundred and sixty-one tons (2,240 lbs. each) of anthracite steamer coal, all under deck, which I. promise to deliver in the like good order at the port of Port Boyal, South Carolina, (the damages of the seas only excepted,) unto Lieutenant S. S. Gregory, acting assistant quartermaster, or to his assigns, freight for the same, payable by the United States quartermaster at Philadelphia to the order of John H. Kimball, at the rate of $6 25 per ton, and demurrage $100 per day, allowing twenty-one (21) days for discharging.

“ In witness whereof the master of the said vessel hath affirmed to six bills of lading, all of this tenor and date; one of which being accomplished, the others to stand void.

“(Signed) D. M. HUMPHBEYS.

The United States government assumes the war risk on the passage of this vessel out to Port Boyal, South Carolina, and till discharged, the valuation being thirty-six thousand dollars, ($36,000.)

“ HENBY BOWMAN,

“Captain and Assistmt QuartermasterP

On the margin of this bill of lading was a printed note, usually attached to such instruments by the Quartermaster Department:

“ If, on the arrival of this vessel at the port of destination, the consignee should order her to another place to discharge, such order in'all cases to be in writing on the bill of lading.

“ Freight and demurrage payable only on certificate of quartermaster that the cargo has been received in good order.”

The bark was laden under this contract, at Philadelphia, and arrived with her freight at Port Eoyal on the 4th May, 1865.

On the 6th May, Captain John L. Kelly, the quartermaster-in charge at Port Eoyal, ordered the captain of the Annie Kim-ball to “ get under way and sail to Key West.”

The master of the bark objected to this order. He addressed to the quartermaster a protest, and notified him that •he should hold him responsible for “ all losses, damages, and expenses that might occur or be sustained.” He also orally refused to obey the order, saying that he had performed his contract, that the voyage was finished, and that he ivas ready to. deliver the cargo. The captain of the port, who brought the-order, replied that if the master would not go “ they woidd put. in another master and send the vessel to Key West without him.”

On the morning of the 8th May, the government tug Achilles was sent to tow the Annie Kimball to sea. The master again objected to going. He also remonstrated against going then “for the reason that it was not safe, as the tide had ebbed about two hours, and there would not be water enough on the bar to take the vessel safely over.” The master of the tug replied that he “ had orders from the quartermaster to tow the Annie Kimball to sea that morning; that he should do so, and must proceed with his work.”

When the bark started the tide had been running out about two hours; there was, moreover, a heavy swell, and the two rendered it dangerous to cross the bar with a vessel drawing so much water. The bark struck several times in going out. She leaked badly after striking, and it was found necessary to bring her to anchor. Between 7 and 8 o’clock in the evening, to prevent her sinking, she was towed back and run ashore with six feet of water in her hold.

From the 8th May to the 24th June the bark seems to have been detained by the defendants’ agents. On that day she was discharged by the quartermaster; and he certified that. u the detention of the vessel was owing to no fault of the master or crew.”

It had been reported to the quartermaster at Port Eoyal by the captain of the port that it “ was not safe to send the vessel north without a tow and steam-pumps.” She apparently waited for these till the 11th July. On the 18th she reached Boston, whither the tow seems to have taken her.

How long the vessel was detained at Boston by the repairs, and whemshe was returned to the owners, is not shown. Neither does it appear when the master and crew were discharged, nor the amount of their wages. The cost of the repairs is clearly and satisfactorily proven to have been $7,604 41, and that the money was expended strictly in making good the vessel’s injuries.

The first objection inteiqmsed to a recovery goes to the jurisdiction of the court. It is insisted that the injury to the vessel was caused bjr ua part», “of the army engaged, in the suppression of the rebellion? Of such cases jurisdiction is expressly withheld from this court by the Act 4th July, 1864, (13 Stat. L., p. 381.)

We cannot sustain the objection. Laying aside for the moment the claim for injury, it appears that the vessel did discharge her freight at Port Royal; that it was accepted there by the defendants; that the freight was not discharged until the 24th June; and that the quartermaster then certified by endorsement on the bill of lading: “ The detention of the vessel was owing to no fault of the master or crew?

For this detention the bill of lading expressly provided. Twenty-one days for discharging the freight were specifically allowed; for detention beyond that period the defendants were to pay $100 a day. A .previous injury or temporary appropriation by the army could not relieve the defendants from this obligation of- their contract. To this extent we thinlc there can be no question but that the court has jurisdiction.

As to the remaining branch of the case, growing out of the injuries suffered by the vessel, we are of the opinion that there was an impressment but notan “appropriation.” The quartermaster did not seize the vessel, did not take possession of her, did not evict the owners nor their agents, her master and crew. What be did was to compel them to undertake with their vessel an enforced service. This did not divest the property, but left the vessel in the custody of her owners, though in the service of the government; and it entitled them to the benefits of the Acts 3d March, 1849, (9 Stat. L., p. 414,) and 3d March, 1863, (12 id., p. 736.) So far as this phase of the question of jurisdiction is concerned, it was considered and determined in the recent decision in liussell’s Case, p. 121, ante.

It may still be said, however, that the claim grows out of “ damage to property by the army,” or “ apart of the army engaged in the suppression of the rebellion.”

This statute, “ to restrict the jurisdiction of the Court of Claims,” employs three terms to specify those acts of the army which are not the subject of judicial redress. They are “destruction,” appropriation,” damage.” As to the first, there confessedly was no destruction of the vessel by any one. As to the second, though a term of the “broadest import,” including “all taking and use of property by the army or navy, in the course of the war, not authorized by contract with the government,” as recently held by the Supreme Court in Filor’s Case, (9 Wallace, p. 45,) it still looks to the acquisition of property. It is, as was said in Waters’s Case, (4 C. Cls. R., p. 393,) on the authority of Worcester, “ to tahe from another to one’s self.” As to the third term, there was here “ damage to” the vessel, but it was not done by the army. It sprang from amarine casualty, suffered while the vessel was in the service of the defendants. That service w'as enforced, and the injury, moreover, was induced by the specific interference of the quartermaster with the navigation of the vessel 5 yet the damage was neither intended nor done by the army, and was not of that kind which could bring the case within the inhibition of the act.

I am also of the opinion (though it is not the resolution of the court) that the “ Joint resolution relating to steamboats and other vessels owned in the loyal States” (23d December, 1869, Stat. L., p. —) restored to this court jurisdiction of “claims for steamboats or other vessels taken without the consent of the owner, or impressed into the military service of the United States during the late war in States or parts of States declared in insurrection, provided ‘ that the claimants were loyal at the time their claims originated, and remained loyal thereafter, and were residents of loyal States, and such steamboats or other vessels were in the insurrectionary districts by proper authority.Without discussing the point ! refer to the opinion in Waters’s Case, (4 C. C1s. R., p. 389,) wherein the true construction to be given to the original Act 4th July, 1864, (13 Stat. L., p. 381,) is considered.

Assuming jurisdiction of the case we give this construction to the bill of lading: That it was a contract of affreightment for a single voyage; that the marginal note, printed and placed there by the defendants, was a condition imposed by them for their own benefit in a certain con tin gency; that it specified no compensation for a second voyage, and did not import an obligation requiring* the owners to undertake one, but merely provided for the convenience and protection of the defendants that if any additional voyage was agreed upon between the consignee on the one hand and the master on the other, the agreement should ube in writing on the bill of lading.” We think that a contract to carry freight to a specified port, at an agreed price, cannot be stretched by this marginal note into an obligation to carry the freight to any other port for an undetermined compensation. Therefore we are of the opinion that the owners were entitled to have their vessel discharged and restored to them upon the completion of this voyage, and that the defendants are liable for all damage and injury resulting from this non-compliance with this their agreement.

The case is thought by the majority of the court not to involve the question of marine insurance on which the court was recently divided in Morgan’s Case, because here the voyage was ended, the contract performed, and the owners entitled to have their vessel discharged before this marine disaster happened. It is also thought to be precisely similar to the case of Shultz & Markley, (3 C. Cls. R., p. 56,) because in both cases the casualty was brought about by service beyond the agreed duties of the vessel undertaken against the objection of the master, enforced by a military officer when the ow*ners had fully performed all that their contract required. It is, perhaps, unfortunate that that case was then considered so clear as to require no opinion beyond a statement of the facts, and that the principle upon which it went was implied in a single sentence: “The machinery of the Tallaca broke down because it was strained and weakened by the service enforced upon her by the United States in towing vessels under the circumstances stated, and. thereby the petitioner was subjected to the delay and cost of the repairs, with which the United States are to be charged.”

' To that part of the claim which is for demurrage an objection is raised, also, by the Assistant Attorney General “that it was never presented to the executive department charged with the settlement of such claims.” The subject of the objection has been under advisement in another case, wherein the decision of the court will shortly be announced; but in the case now under consideration it appears that the cause of action, i. e., the injury suffered by the vessel and all the facts and circumstances therewith connected, were distinctly placed before the. Third Auditor and Second Comptroller. It is true that the owners, in apparent ignorance of their legal rights, limited their demand to the repairs, nor asked aught for demurrage; but we regard this second part of the case as a part of the cause of action, going to the measure of damages. If the accounting officers considered the cause of action and rejected it, it is immaterial whether the claimants demanded all the damages they might be entitled to recover or not; if they submitted all the facts of their case to the proper executive department it is not a fatal objection that they failed to present with those facts the correct legal theory for a recovery.

The measure of damages in this case we think to be the same as that awarded in Shultz & Markley, viz: 1st. The cost of making the vessel whole. 2d. The contract rate of condensation (which is here demurrage) up to the time that the crew were discharged. 3d. The same condensation, less the wages and expenses saved to the owmers while they were necessarily deprived of the use of their vessel, during the period of the repairs.

As to the first, we find'it to be $7,604 41; as to the second, we fix the period as beginning on the 26th .May and continuing till the vessel’s arrival in Boston on the 18th July, a period of fifty-three days. As to the third, the claimants have offered no evidence either as to the duration of the time or the amount of the wages and expenses saved to them.

The judgment of the court is that the claimants recover twelve thousand nine hundred and four dollars, ($ 12,904 41.)

Casey, Ch. J.,

dissenting:

In my opinion tlxe marginal note was a part of the contract. That gave the United States the right to order the vessel to another port to discharge her cargo. And in that light the going out of the harbor was but a continuance of the voyage, under the stipulated terms of affreightment, contained in the bill of lading. By these terms only the war risk was to be borne by the United States, and, as a matter of course, the marine risk by the owner. The injury in this case resulted solely from a peril of the sea, as its proximate cause. There is, therefore, nothing in the contract upon which the United States can be held liable for these damages. If liable at all, it must be upon some other ground.

If, on the other hand, as the majority of this court holds, the marginal note is no part of the contract, and the voyage was ended, then the action of the quartermaster at Hilton Head was totally unauthorized. Being illegal, and without any right or authority, the United States are in no manner responsible for anything growing out of such acts. It was simply a trespass on the part of the officer. And for the mistake, neglect, misfeasance, or malfeasance of their agents and officers the United States are not liable. Sto. on Ag., § 307 United States v. Kirlcpatrieh, (9 Wheat., 249;) United States v. Van Zandt, (11 Wheat., 187;) Dox v. The Postmaster General,. (1 Pet., 318;) United States v. Nichols, (12 Wheat., 509;) United States v. Boyd, (15 Pet., 208;) United States v. Buchanan, (8 How., 103;) Commonwealth v. Baldwin, (1 Watts, 54.)

If even the United States were liable for the wrongs and injuries inflicted upon individuals by their agents and officers,, this court has no jurisdiction to entertain and try such a case.

On every ground, I think, the judgment should be for the defendants.

Lobing-, J.,

dissenting:

I concur in so much of the opinion of the majority of the court as finds that the marginal endorsement on the bill of lading was not a part of the contract, but I dissent from their conclusion.

The petitioners in this case make two claims: First. For damages for injuries to their vessel. Second. For demurrage.

The contract in this case is not, as the documents from the-department assume, a charter-party, by which a vessel is let to the hirer, like a house to its lessee; but it is a bill of lading only, and that is merely a contract for the carriage of goods from one place to another. And it gives to the shipper of the goods no possession or control of the vessel, and neither places her in his service nor subjects her to his orders. And in this respect it is immaterial whether there are a dozen shippers, each with his separate bill of lading for his separate goods, or whether there is, as here, a single shipper and a single bill of lading. And in this case the only right of the United States, and the only duty of the owners, was that the coals should be carried from Philadelphia to Port Royal, and delivered there according to the tenor of the bill of lading.

Under the bill of lading the coals were carried to Port Royal and the United States refused to receive them there. The owners had then performed their contract as carriers, and earned their freight; for they had done all that they were bound to do under the bill of lading, and they had a perfect right to put the coals ashore and store them there at the cost and risk of the United States.

Then the vessel, against the objections and protest of the master, who represented the owners, was taken from the disposition and control of the master and owners, and into the service of the United States, by their military authorities. And thus the rights and powers of ownership, and their free enjoyment, were taken from the claimants by the United States and appropriated to themselves for' such time as they pleased. And for the reasons I stated in the case of Russell v. The United States, I think that this was uan appropriation” by the army, within the statute of July 4th, 1864; and that the claim for damages for such appropriation and all its consequences are removed from our jurisdiction.

As to the claim for demurrage: The bill of lading allowed the United States twenty-one days for discharging cargo at Port Royal, and subjected them to the payment- of $100 per dayfor any delay in discharging beyond the twenty-one days. The vessel arrived at Port Royal May 4, I860; so that the twenty-one days would have expired on the 26th day of May, and before that time no claim for demurrage could begin. Put the vessel was impressed or appropriated by the officers at Port Royal, on the 8tb day of May; and sucb taking I think, on the.evidence and in the circumstances, was lawful and the exercise by the United States of their right of eminent domain. But it was inconsistent with the contract of the bill of lading, and with its provisions for discharging the coal there within twenty-one days, and its relations of the parties; and it therefore necessarily determined that contract, and made a new relation of the parties from the taking; for therefrom the owners were entitled to, and the United States were liable for, an indemnity under the constitutional provision. So that the facts, I think, preclude any claim for demurrage under the bill of lading, for that was annulled before shell claim could arise on it.

On the whole case I think the defendants entitled to judgment.  