
    MITCHELL’S CASE.
    (10 C. Cls. R., 604; 96 U. S. R., 162.)
    Ann E. Mitchell, executrix, appellant, v. The United States, appellees.
    
      On the elaimant’s Appeal.
    
    
      The Quartermaster Department charters the Star of the South “for a voyage to. New Orleans and return.” She is narngated by the owners. The wages are 
      $450 “for each and every day said vessel may be employed.” The charier is to “ continue in force as long as said vessel may be required by tlie United States War Department.” On her return the quartermaster in charge endorses on her charter, “Tlie services of tlie above vessel being required for a second voyage to New Orleans, slie is kept in continuous service from tbe date of tbe discharge of her cargo, on tlie 13th October, 1863.” After eight days, during which the vessel remains ready for service, she is discharged. The owners are paid for the voyage. They seek to recover for the eight days she ivas kept in continuous service hy the quartermaster.
    
    The court below, being4 equally divided, renders judgment for tlie defendants. The claimant appeals.
    The judgment of the court below is affirmed.' Tlie Supreme Court now holds: (1) That the vessel was in effect discharged by her return to port and did not continue in service till a formal discharge was given; (2) That slie was to be paid only while “ employed,” and was not employed after her return to port; (3) That tlie quartermaster's indorsement on the. charter, that she “ is kept in continuous service,” did not continue her employment nor entitle her to wages.
    
      The Reporters’ statement of tbe case:
    Tbe facts not baring been set forth in the Reports of this court nor in the United States Reports, are now inserted here. The following is the charter-party of the vessel:
    “This charter-party of affreightment, made this fourteenth day of September, iu the year one thousand eight hundred and sixty-three, between Samuel L. Mitchill, owner of tbe steamer or vessel called tbe Star of the South, of New York, of the burthen of 9(>0 registered tons, or thereabouts, at present lying in the harbor of New York, and commanded by Capt. M. S. Woodhull, of the first part, and Map Stewart Van Vleit, quartermaster, United States Army, for the United States, of the second part, witnesseth: That the said party of the first part does and doth hereby grant and to freight let, and the said party of the second part-does and doth hereby'to freight take, the said steamer Star of the South, to load at New York, or elsewhere, and proceed on the voyage hereinafter mentioned (always reserving sufficient room for the stowage of the vessel’s cables and materials, and accommodation of the officers and crew, and, if a steam vessel, for necessary supply of coal). And thereupon the party of the first part, and his heirs, executors, administrators, and assigns, doth hereby covenant, grant, aiid agree, to and with the said party of the second part, that the said vessel now is, and shall be kept and maintained, during the whole of the voyage mentioned in this contract, tight, staunch, strong, and well and sufficient^ maimed, victualled, tackled, appar-elled, and ballasted, and furnished in every respect fit for merchants’ service, at the cost and charge of her owners (the time lost iu consequence of any deficiency in these respects not to be paid for by the United States), and shall, on the 14th day of September, 1803, be ready to receive on board, whenever tendered alongside by the quartermaster, United States Army, his factors or assigns, such troops, men, animals, and supplies, or cargo, as they shall order and direct, and the said vessel can conveniently stow and carry; and, whenladen, shall proceed, with the first good opportunity, and without delay, from the port of New York, or elsewhere, and proceed direct to such ports and places as ordered by the quartermaster, United States Army, and deli ver cargo to the quartermaster or duly-authorized agent of the Quartermaster’s Department. All pilotage and port charges will be paid by .the United States after leaving the port of New York. All cargo to be received and delivered within reach of the said vessel’s tackles. The said vessel shall deliver her cargo in good order and condition (the dangers of the seas, fire, and navigation, and the restraints of princes and rulers being always excepted.) The war risk to be borne, by the United States; the marine risk to be borne by the owners. For a voyage to New Orleans and return.
    “In consideration whereof the said party of the second part does agree to employ the said vessel on the voyage or voyages aforesaid; and that, as a freight or hire of the said vessel during the term of this contract, he will pay, or cause to be paid, the full and just sum of four hundred and fifty dollars per day for each and every day said vessel may be employed, and wiil furnish all fuel necessary for the navigation of the said vessel, if a steamer, until the said vessel is returned to the said party of the first part in New York, in the same order as Avhen received, ordinary wear and tear, damage by the elements, collision at sea and in port, bursting of boilers, and breakage of machinery excepted. To become due, owing, and payable in the manner and form following; that is to say, payable to the order of Samuel L. Mitchill, at the quartermaster’s office of the United States, at New York City, monthly, upon presenting certificates of the duly-authorized agent of the Quartermaster’s Department that the said vessel has faithfully performed her part of this contract.
    ##**#*#
    
      'This charter shall go into effect at twelve o’clock m. of the 14th day of September, 1863, and shall continue in force as long as said vessel may be required by the United States War Department.”
    The case was heard on the following facts found by the court below:
    The steamer Star of the South made the voyage, stipulated for in said charter-party, from New York to New Orleans and return; and on her return to New York lier cargo was discharged on the 13th. of October,-1863. .
    After tlie completion of said voyage, Oapt. 13. Stimson, assistant quartermaster at New York, indorsed upon said charter-party the following’ order:
    “ The services of the above vessel being required for a second voyage to New Orleans, she is kept in continuous service from the date of the discharge of her cargo, on the 13th October, 1863.”
    In pursuance of this order, said vessel made a second voyage from New York to New Orleans and back, completing it by unloading her cargo at New York on the 22d of November, 1863, on which day the said charter-party was, by order of said Stimson, suspended, and continued so suspended until the 30th of November, 1863. Dining the period of such suspension the said steamer performed no service for the Government, but was manned and equipped and ready for such service.
    On the said 30th of November she was taken into the service of the Government again, under another charter-party.
    For the two voyages from New York to New Orleans and back, as above stated, the claimant was paid the price stipulated in said first-named charter-party up to November 22,1863; and he was also paid the stipulated price for the services of said steamer from November 30 to December 30, 1863.
    (And at the request of the claimant the court below found the following additional facts:)
    Stimson had no power to discharge the steamer.
    The control of suspended vessels was not within the power of the United States quartermaster’s office at New York, of which office Stimson formed a part.
   Mr. Justice StboNG-

delivered the opinion of the Supreme Court, February 25, 1878.  