
    SILLIMAN’S CASE.
    Robert F. Silliman et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants let their barges to the Quartermaster Department at an agreed rate of compensation for such periods as their services may he required. After they have been a long time in service an order of the Quartermaster-General is made known to the oivners-whieh requires that new charter-parties he executed differing in material matters from the old ones, reducing the compensation, and retroactive in effect. The owners ref use the proffered terms and demand the discharge of their vessels. The Department ref uses to discharge them or to pay the original rates, or to pay the reduced rates unless the new charters he executed. Repeated demands and refusals follow. The owners use all possible diligence-, making their demands of the Quartermaster-General and the Secretary of War, as well as of inferior officers. At length they yield to what seems to them necessity, and agree to make the new charters, doing so, however, under protest. They now insist that these xvere extorted by duress, that they were involuntarily executed under protest, and are wholly void. The new charters provide that the vessels shall he kept tight, staunch, tfc.,fit for merchant-service, at the cost of the otvners, and that they shall be returned to the owners in the same order as when -received, ordinary wear and tear, damage hy the elements, $-c., cxcepiied. They are injured by the peculiar service in which they are employed, and are not in the same order as received when returned to the owners, who now seek to recover for the injuries.
    
    I. Duress arises where one man forcibly and illegally withholds another man’s goods. It does not arise where the element of illegality is absent; ex. gr., where the Government’s officers withhold vessels which, hy the terms of their charter-parties, the Government may retain in its service as long as they may he required.
    II. Duress does not arise from the unconscionable withholding of a vessel’s wages by the officers of the Government with the purpose of compelling the owners to execute a new charter-party.
    III. Where the owners of a vessel, to avoid litigation, execute a new charter-party under the pressure of a withholding of the vessel’s wages, the new agreement must be deemed voluntary.
    
      IV. Where one covenant of a charter-party requires the owners to keep the vessel tight, staunch, &c., “ in every respect fit for merchant-service, at the cost and charge of the owners,” and places her for an unlimited time at the entire disposal of the charterers, while another requires the charterers to return the vessel to the owners “ in the same order as when received, ordinary wear and tear, damage Vy the elements, collision at sea and in port excepted,” the covenants are not inconsistent. The intent of the agreement is that the owners shall hear only the marine risks and ordinary wear and tear, the charterers the injuries caused by the service in which they put the vessel.
    
      The Reporters’ statement of the case:
    The following facts were found by the court:
    I. In 1803 the claimants were partners in trade, doing busi ness in the city of New York, under the firm-style of Silliman, Matthews & Go. At various times set forth in the petition the claimants and the defendants, by Major Yan Yliet, their duly-authorized quartermaster in the city of New York, entered into the various agreements or charter-parties annexed to and forming part of the petition for the barges A. S. Perry, R. D. Silli-man, L. P. Gardiner, and Saint Nicholas. The barges were placed in the service of the Quartermaster Department, and remained in service during the periods respectively set forth in the petition. The claimants were paid at the charter-rates up to and including the 31st October, 1863.
    II. On the 2d of June, 1863, the Quartermaster-General instructed Quartermaster Yan Yliet, at New York, that all double-decked barges then in the service and used for transporting cattle, horses, &c., should, from and after the 1st of that month, be made to conform to a standard of compensation at rates not to exceed $4 per ton per month.
    The owners of the four barges aforesaid, when notified by said Yan Yliet of said Quartermaster-General’s instructions, replied that their barges were only measured as single-deck, and that the rate of $4 per ton per month would not pay them unless they were allowed to measure the upper deck also, and that rather than accept said reduction they preferred to have their boats discharged.
    This reply of the claimants having been communicated to the Quartermaster-General, he .directed the said Yan Vliet to discharge the said barges from the service as rapidly as he could procure others upon the terms aforesaid and under a new form of charter-party prescribed by the Quartermaster-General.
    In reply to this direction the said Yan Yliet, on the 22d of July, 1863, informed the Quartermaster-General that it was impossible to obtain barges at New York at the rates indicated by the latter, taking the registered tonnage as the standard of measurement, which represented only their hold-measurement and not their actual carrying capacity; and that compensation at the rate of $4 per ton of actual carrying capacity would exceed that stipulated for in the then’ existing charter-parties.
    From July 22,1863, till December,1863, no further correspondence took place in regard to said barges, and they remained in the service as before.
    On the 10th of December, 1863, the Quartermaster-General instructed said Yan Yliet that the double-decked barges chartered by the latter must be brought within the price stated in the aforesaid letter of June 2,1863, and that no higher rate would be allowed for them from and after December 1, 1863.
    The purport of this instruction having been communicated by said Yan Yliet to the claimants, the latter, on the 14th of said December, having before them the form of the new charter-party which had been proposed by the Quartermaster-General, stated to said Yan Yliet, by letter, that rather than sign the new charter-party they had decided to have their barges returned to them, and that they would not let .them for $4 per ton per month.
    On the 28th of December, 1863, the Quartermaster-General issued a circular-letter to several quartermasters and assistant quartermasters, among whom was the said Yan Yliet, stating that no payments would be made for charter-money for services rendered and due after March 31,1863, under any other form of charter-party than that which had, on said last-named date, been prescribed by the Quartermaster-General.
    After the date of said last-mentioned letter one of the claimants, Silliman, went to Washington and demanded of the Quartermaster-General the return of said barges to the claimants at New York, when that officer replied that the Government could not spare them; and when the said Silliman remonstrated with him against their retention by the Government, the Quartermaster-General said that the Government needed the barges and would keep them, and he declined to pay the arrears then due the claimants for their services. Thereafter the claimants made repeated calls on the said Van Vliet for arrearages of money, and were informed that he was ordered not to pay them any until they had made new charter-parties.
    On the 8th of January, 1864, the claimants addressed a letter to the Secretary of War, complaining of the treatment they had received from officers under him, and stating that two of them had gone to Washington and could find no person who would modify the new charter-party so that they might accept the terms that could be agreed upon, and adding the following words:
    “ We now complain as follows, viz:
    “ 1. That we have requested that our barges be returned to New York and delivered to us, as per charter-party, and have been refused.
    “ 2. That we have ‘ certificates of service’ for November and December, 1863, and the quartermaster at New York has orders not to pay until we make new charters, and we refuse to make them as the blank charters dictate, but are willing to make some concession in price if any person can be named here to negotiate.
    “ 3. We desire to sell, if we cannot have our barges or obtain money for their use, as we cannot meet our obligations to our captains and crews without money to do it, and hope you will act favorably for us at an early date. ”
    On the 5th of March, 1864, the claimants wrote to the Quartermaster-General proposing to accept the new charter-parties from the first of the month nearest the acceptance of the same, with certain modifications.
    These modifications were accepted by the Quartermaster-General on the 19th of March, 1864, with the exception of the date offered for their taking effect, which he required should be on the 1st of April, 1863.
    ■ On the 23d of March, 1864, the claimants, by letter to the Quartermaster-General, said as follows: “ We have been paid to November 1,1863, and if we have to go back to April 1,1863, we shall have to stop payment, as we have depended on this money to keep along in our business. * * * We have been told by other parties that they dated new charters from December 1, and we can see no reason that they should be favored above us. * * * We cannot go back to April 1,1863. ”
    To this letter the Quartermaster-Gen eral replied, on the 11th of April, 1864, that all charter-parties, without exception, exe-euted to take effect December 1,1863, for vessels in the service April 1,1863, lias been required to take effect from the latter date.
    After this letter, tlie claimant, Matthews, went to Washington and had interviews with the Quartermaster-General and other officers in his office, in which he again remonstrated, as had before been done by his partner, Silliman ; to which the Quartermaster-General replied that they had laid down the rule and were determined that-nothing else should be done until the new charter-parties had been executed ; that until that was done they would keep the barges and not pay for them. Said Matthews, during this visit to Washington, finally agreed with Colonel Clary, an officer in the Quartermaster-General’s Office, to make the new charter-parties, stating that they did so under protest and yielded to necessity, and insisting, after he agreed to make them, that it was wrong to make new charter-]$irties.
    On the 16th of May, 1864, in pursuance of said Matthews’s said agreement, the new charter-parties were signed by the claimants and an officer of the Quartermaster Department, and are the same annexed to these findings, and marked bio. 19, No. 21, No. 22, and No. 23.
    The compensation therein stipulated to be paid after October 31,1863, was, from and after that date, from time to time, paid to the claimants for each of said barges, and when each payment was made the claimants, without objection or protest, gave a receipt therefor as “ in full of the above account.”
    III. During the month of March, 1863, the barge Gardiner, being on the Potomac River, and having no propelling power of her own, was compelled by the steam-vessel of the defendants having her in tow to anchor during a gale in a place near the shore. Her anchor dragging, she went on a dock and was injured. The master of the barge had remonstrated against being compelled to anchor so near the shore, but the towing-vessel refused to move the barge out. Subsequently the Quartermaster Department deducted from the monthly accounts of the barge the time she was laid up in repairing damages, to wit, for 18 7-24 days, “ lost time,” $389.36. The balance of her monthly account was paid to the claimants, who receipted for the same as “ in full of the above account.” The claimants expended in making good the above damages $1,351.15, which has not been repaid to them by the defendants.
    
      IY. During tlie month of May, 1864,.the barge Perry being on the Potomac River, in waters not navigated by such barges before the war, but safe and suitable for barge navigation, was run into by a sailing-vessel which first struck the steam-vessel having the barge in tow, and then struck and injured the barge. At the time of the collision the barge, having no propelling power of her own, was being towed by a steam-vessel of the defendants, and the collision was without fault of the barge. During the month of September, 1864, the Perry also collided with the vessel of the defendants having her in tow, and was injured. The collision was caused by the to wing-vessel getting aground, and was without fault on the part of either vessel. The Quartermaster Department deducted from the monthly accounts of the barge the time she was laid up for repairs, to wit, for to-days, $254.97. The balance was paid to the owners, who, without objection or protest, receipted for the same as in full of the above account.” The claimants expended for such repairs $528.65, which has not been repaid to them by the defendants.
    Y. The four barges, Gardiner, Perry, Silliman, and Saint Nicholas, were not returned to the claimants in New York in the same order as when received, ordinary wear and tear, damage by the elements, collision at sea and in port excepted, as required by the terms of the new or second charter-parties. Extraordinary injuries were caused to them by the service in which they were employed by the defendants. The claimants expended for making good these injuries not attributable to ordinary wear and tear, &c.:
    Eor the Gardiner.. $367 03
    Eor the Perry. 178 39
    Eor the Silliman. 447 55
    Eor the Saint Nicholas. 920 37
    Total... 1,913 34
    YI. The certificates of service, monthly accounts, and receipts, upon which the claimants were from time to time paid, were made out and prepared by officers in or connected with the Quartermaster Depart&ent and not by-the claimants.
    YII. By official usage in the Treasury Department the accounting-officers consider a receipt given to a disbursing-officer, and purporting to be in full, as open to examination and not a bar to further claim, though given without protest.
    
      CHARTER-PARTIES REFERRED TO.
    Ho. 19.
    This charter-party of affreightment, made this first day of April, in the year one thousand eight hundred and sixty-three, between Silliman, Matthews & Co., owners of the barge or vessel called the R. D. Silliman, of New York, of the burden of 165ff registered tons, or thereabouts, at present lying in the harbor of Hew York, and commanded by D. D. Askins, of the first part, and Captain Francis J. Crilly, assistant 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 barge R. D. Silliman, to load at Hew York or elsewhere, and proceed on the voyage hereinafter mentioned. (Always reserving sufficient room for the storage 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, and 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 sufficiently manned, victualed, tackled, appareled and ballasted, and furnished in every respect fit for merchant-service, at the cost and charge of her owners. (The time lost in consequence of any deficiency in these respects not to be paid for by the United States.) And shall, on the 1st day of April, 1868, 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 when laden shall proceed, with the first good opportunity, and without delay, from the port of Hew York, or elsewhere, and proceed direct to such ports and places as ordered by the Quartermaster United States Army, and deliver cargo to the quartermaster, or duly-authorized agent of the Quartermaster Department. ' All pilotage and port-charges will be paid by the United States after leaving the port of Hew 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, when in service in waters usually navigated by barges ; otherwise by the United States. To be employed in such service as party of the second part may direct.
    In consideration whereof the said party of the second part does agree to employ the said vessel on the voyage or voyages aforesaid; aud'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 thirty-eight dollars per day for each and every day said vessel may be employed, and will 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 partin Hew York, 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; to become due, owing, and payable in the manner and form following, that is to say, payable to the order of Silli-man, Matthews, & Oo., at the quartermaster’s office of the United States at New York, 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.
    The said vessel is valued and appraised at the sum of fourteen thousand dollars; and should she be retained so loug in the service of the United States that the money paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repair the said vessel during the said time, together with a net profit of twenty-five per cent, per an-num on said appraised value) shall be equal to said appraised value, then the said vessel shall become the property of the United States without further payment, except such sum as may then be due on account of the services of the said vessel rendered under the said c harte
    And, further, if at any time during the continuance of this charter the United States shall elect to purchase the said vessel, then they shall have the right to take her at the appraised value at the date of charter, aud all money then already paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repair the said vessel during the said time, together with a net profit of twenty-five per cent, per annum on the original appraised value) shall apply on account of the said purchase.
    This charter shall go into effect at 12 o’clock in. of the 1st day of April, 1863, and shall continue in force as long as said vessel may be required by the United States War Department, but for a period of not less than thirty days. It is further agreed that should this barge remain in service after the 31st day of October, 1863, her rate of compensation shall be four dollars per ton per month for services subsequent to that date.
    Ho member of Congress shall be admitted to any share or part of this contract, or any benefit to arise therefrom.
    In witness whereof the said parties to these presents have hereunto interchangeably set their hands and affixed their seals on the 16th day of May, 1864.
    (Executed in quintuplícate.)
    (Signed) SILLIMAN, MATTHEWS & CO. [seal.]
    (Signed) E. J. CRILLY, [seal.]
    
      Captain and Assistant Quartermaster.
    
    Signed, sealed, and delivered in the presence of—
    (Signed) W. L. Talman.
    (Signed) Geo. W. Robinson, Jr.
    Ho. 21.
    This charter-party of affreightment, made this first day of April, in the year one thousand eight hundred and sixty-three, between Silliman, Matthews & Co., owners of the barge or vessel called the L. P. Gardiner, of Hew York, of the burden of 154ff registered tons, or thereabouts, at present lying in the harbor of Hew York, and commanded by H. Silliman, of the first part, and Captain Francis J. Orilly, assistant quartermaster United States Army, for the Gnited 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 barge L. P. Gardiner, to load at Few 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, and 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 sufficiently manned, victualed, tackled, appareled, and ballasted, and furnished in every respect fit for merchant-service, at the cost and charge of her owners. (The time lost in consequence of any deficiency in these respects not to be paid for by the United States.) And shall, on the 1st day of April, 1S63, 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 when laden shall proceed, with the first good opportunity, and without delay, from the port of Few York, or elsewhere, and proceed direct to such ports and places as ordered by the Quartermaster United States Army, and deliver cargo to the quartermaster, or duly authorized agent of the Quartermaster’s Department. AH pilotage, and port-charges will be paid by the United States after leaving the port of Few 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, when in service in waters usually navigated by barges; otherwise by the United States. To be employed in such service as party of the second part may direct.
    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 forty dollars per day for each and every day said vessel may be employed, and will 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 Hew York, 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; to become due, owing, and payable in the manner and form following, that is to say, payable to the order of Silliman, Matthews & Co., at the quartermaster’s office of the United States at Hew York, 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.
    The said vessel is valued and appraised at the sum of fourteen thousand dollars; and should she be retained so long in the service of the United States that the money paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repair the said vessel during the said time, together with a net profit of twenty-five per cent, per an-num on said appraised value) shall be equal to said appraised value, then the said vessel shall become the property of the United States without further payment, except such sum as may then be due on account of the services of the said vessel rendered under said charter.
    And, further, if at any time during the continuance of this charter the United States shall elect to purchase the said ves-» sel, then they shall have the right to take her at the appraised value at the date of charter, and all money then already paid and due on account of said charter, deducting therefrom the actual cost of running and keeping in repair the said vessel during the said time, together with a net profit of twenty-five per cent, per annum on the original appraised value, shall apply on account of the said purchase.
    This charter shall go into effect at 12 o’clock m. of the 1st day of April, 1863, and shall continue in force as long as said vessel may be required by the United States War Department, but for a period of not less than thirty days. It is further agreed that should this barge remain in service after the 31st day of October, 1863, her rate of compensation shall be four dollars per ton per month for services subsequent t<? that date.
    Ho member of Congress shall be admitted to any share or part of this contract, or any benefit to arise therefrom.
    In witness whereof the said parties to these presents have hereunto interchangeably set their hands and affixed their seals on the 16th day of May, 1864.
    [Executed in quintuplícate.]
    (Signed) SILLIMAH, MATTHEWS & GO. [SEAL.]
    (Signed) E. J. CRILLY, [seal.]
    
      Captain and Assistant Quartermaster.
    
    Signed, sealed, and delivered in the presence of—
    (Signed) W. L. Talman.
    (Signed) Geo. W. Robinson, Jr.
    Ho. 22.
    This charter-party of affreightment, made this first day of April, in the year one thousand eight hundred and sixty-three, between Silliman, Matthews & Go., owners of the barge or vessel called the St. Hicholas, of Hew York, of the burden of 211|-| registered tons, or thereabouts, at present lying in the harbor of Hew York, and commanded by James Lynch, of the first part, and Captain Francis J. Crilly, assistant 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 barge St. Hicholas, to load at Hew 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, and 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 sufficiently manned, victualed, tackled, appareled, and ballasted, and furnished in every respect fit for merchant-service, at the cost and charge of her owners. (The time lost in consequence of any deficiency in these respects not to be paid for by the United States.) And shall, on the 1st day of April, 1863, 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 or direct, and the said vessel can conveniently stow and carry. And when laden 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 deliver 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 when in service 'in waters usually navigated by barges; otherwise by the United States. To be employed in such service as party of the second part may direct.
    In consideration whereof the said party of the second part does agree to employ the said vessel on the voyage or voyages aforesaidj 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 fifty dollars per day for each and every day said vessel may be employed, and will 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 when 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 Silliman, Matthews & Co., at the quartermaster’s office of the United States at New York, 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.
    The said vessel is valued and appraised at the sum of seventeen thousand dollars; and should she be retained so long in the service of the United States that the money paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repair the said vessel during the said time, together with a net profit of twenty-five per cent, per an-num on said appraised value) shall be equal to said appraised value, then the said vessel shall become the property of the United States without further payment, except such sum as may then be due on account of the services of the said vessel rendered under the said charter.
    And, further, if at any time during the continuance of this charter the United States shall elect to. purchase the said vessel, then they shall have the right to take her at the appraised value at the date of charter, and all money .then already paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repair the said vessel during the said time, together with a net profit of twenty-five per cent, per annum on the original appraised value) shall apply on account of the said purchase.
    This charter shall go into effect at 12 o’clock m. of the 1st day of April, .1863, and shall continue in force as long as said vessel may be required by the United States War Department, but for a period of not less than thirty days. It is further agreed that should this barge remain in service after the 31st day of October, 1863, her rate of compensation shall be four dollars per ton per month for services subsequent to that date.
    Ho member of Congress shall be admitted to any share or part of this contract, or any benefit to arise therefrom.
    In witness whereof the said parties to these presents have hereunto interchangeably set their hands and affixed their seals on the 16th day of May, 1864.
    [Executed in quintuplícate.]
    (Signed) SILLÍMAH, MATTHEWS & 00. [SEAL.]
    (Signed) F. J. CRILLT, [seal.]
    ' Captain and Assistant Quartermater.
    
    Signed, sealed, and delivered in the presence of—
    (Signed) W. L.-Talman.
    (Signed) Geo. W. Robinson, Jr.
    Ho. 23.
    This charter-party of affreightment, made this first day of April, in the year one thousand eight hundred and sixty-three, between Silliman, Matthews & Co., owners of the barge or vessel called the A. S. Perry, of Hew Tork, of the burden of 213§§ registered tons, or thereabouts, at present lying in the harbor of New York, and commanded by James Weaver, of the first part, and Captain Francis J. Crilly, assistant 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 barge A. S. Perry, 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, and agree to and with the said party of the second part that the 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 sufficiently manned, victualed, tackled, appareled, and ballasted, and furnished in every respect fit for merchant-service, at the cost and charge of her owners. (The time lost in consequence of any deficiency in these respects not to be paid for by the United States.) And shall, on the 1st day of April, 1863, be ready to receive on board, whenevertenderedalongsidebytheQuartermaster 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 when laden 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 deliver 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 when in service in waters usually navigated by barges; otherwise by the United States. To be employed in such service as party of the second part may direct.
    
      la 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 thirty-eight dollars per day, for each and every day said vessel may be employed, and will furnish all fuel necessary for the navigation of the said vessel, if a steamer, until the said vessel is returned to the' party of the first part in hTew York 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, to become due, owing, and payable in the manner and form following, that is to say, payable to the order of Silliman, Matthews & Co., at the quartermaster’s office of the United States at Uew York, 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.
    The said vessel is_ valued and appraised at the sum of fifteen thousand dollars; and should she be retained so long in the service of the United States that the money paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repair the said vessel during the said time, together with a net profit of twenty-five per cent, per an-num on said appraised value) shall be equal to said appraised value, then the said vessel shall become the property of the United States without further' payment, except such sum as may then be due on account of the services of the said vessel rendered under the said charter.
    And, further, if at any time during the continuance of this charter the United States shall elect to purchase the said vessel, then they shall have the right to take her at the appraised value at the date of charter, and all money then already paid and due on account of said charter (deducting therefrom the actual cost of running and keeping in repair the said vessel during the said time, together with a net profit of twenty-five per cent, per an-num on the original appraised value) shall apply on account of the said purchase.
    This charter shall go into effect at 12 o’clock m. of the 1st day of April, 1863, and shall continue in force as long as said vessel may be required by the United States War Department, but for a period of not less than thirty days. ' It is further agreed that should this barge remain in service after the 31st day of October,, 1863, the rate of compensation shall be four dollars per ton per month for services subsequent to that date.
    No member of Congress shall be admitted to any share or part of this contract, or any benefit to arise therefrom.
    In witness whereof the said parties to these presents have hereunto interchangeably set their hands and affixed their seals on the 16th day of May, 1864.
    [Executed in quintuplícate.]
    (Signed) SILLIMAN, MATTHEWS & GO. [SEAL.]
    (Signed) E. J. CRILLY, [SEAL.] '
    
      Captain and Assistant Quartermaster.
    
    Signed, sealed, and delivered in the presence of—
    (Signed) W. L. Talman.
    (Signed)' Geo. W. Robinson, Jr.
    
      Mr. Thomas J. Durant, for the claimants,
    argued at length that the new charter-parties were not voluntary agreements by the claimants either in fact or in law; that they were extorted by the forcible and illegal withholding of the vessels; and that the old charters continued in force so long as the Government, elected to retain the vessels. He distinguished this case from Clyde's (7 O. Gis. E., 262) by the fact that there the owner did not demand the discharge of his vessel, but voluntarily left her in the service at the reduced rate. He also maintained that this case came within the principle laid down by this court in Clyde's Case, (5 O. Gis. R., 134.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The letters written by claimants before and after the conversation of Silliman and Matthews with the Quartermaster-General show that there never was an unequivocal demand for the vessels, but that almost up to the 16th May, 1864, there were negotiations between plaintiffs and the Government in which each sought to make the best terms- possible, and which culminated in the contracts signed and sealed on that day. There was nothing that could be called duress. The contracts were acquiesced in until the vessels were discharged 40by receipts in fall without protest; there was no protest at the time of the execution of the contract. The case is on all fours with that of Glade, (13 Wall., 35; 7 O. Gis. R., 2G2.)
   Nott, J.,

delivered the opinion of the court:

The claimants in this case let their barges to the Quartermaster Department at an agreed rate of compensation for such periods as their services might be required for Government transports. After the barges had been a long time in service order of the Quartermaster-General was made known to the owners, in December, 1863, which required that new charter-parties should be executed differing in several material matters from the old ones, reducing the compensation, and retroactive in effect. The owners refused the proffered terms and demanded the discharge of their vessels. The Department refused to discharge them and refused to pay the original rates, and, moreover, refused to pay the reduced rates unless the new charters were executed. A protracted correspondence and relocated demands and refusals followed. The owners used all possible diligence, making their requests and demands of the Quartermaster-General and the Secretary of War as well as of inferior officers. At length, in May, 1864, finding all efforts to procure either payment or a return of their, vessels fruitless, they yielded to what seemed-to them necessity and agreed to make the new charters, doing so, however, under protest. They now insist that these new charters were extorted by duress of their property; that they were involuntarily executed under protest, and are wholly void. The suit is brought upon tlie original charter-parties, and the owners seek to'recover the difference of compensation, and also for certain marine casualties, as to which the defendants were insurers under the first charters but not under the second.

By an elaborate argument the claimants’ case has been likened to that of Clyde, (5 C. Cls. R., 134,) and it has been urged that the decision which this court then rendered is applicable to the present case. The principle of that decision was that where the defendants, by the terms of a charter-party, possessed the right of discharging a vessel at any time, and the Quartermaster-General issued an order which required that the vessel’s compensation be reduced or she be discharged, the order became ingrafted upon the charter-party from the time that notice of it was given to the owner. If he left his vessel in the service after notice, it was held that he consented to the reduction as effectually as though it had been indorsed on the charter-party and mutually executed; but if notice was not given to him and he was left in ignorance of the order, there being nothing for him to assent to, no alteration was thereby effected, and the charter-rate of compensation remained unchanged. In Clyde’s case no new agreement was executed by the owner, and the only question was as to when he consented to an alteration of the original instrument; in this case the owners executed a new agreement, and, if it was their voluntary act, it is decisive of their rights. In short, they assented to everything or to nothing.

Conceding everything that the learned counsel for the owners has claimed as matter of fact; conceding that the Government officers refused to pay the agreed compensation; that they refused to discharge the vessels from its service; that they refused to pay the reduced compensation unless the new charter-parties were executed; and that the owners yielded solely to this pressure of property withheld- and compensation refused, it by no means follows that the harsh treatment which effected an undesired result was what the law knows as duress. Duress arises where one man forcibly and illegally withholds another man’s goods. In this case of withholding, the element of force was present, but the element of illegality was wanting. What the Government was legally bound to do was, not to return the vessels, but to pay their wages. The fact that the Government possessed an all-controlling power of retention, superior to all legal remedies, and the reasonableness of the claimants’ demands, and the perseverance with which they sought to procure payment of the money due to them or a return of their property, combine to mislead the mind into the belief that the compulsion was that which the law defines as duress, and the agreements such as the law regards as involuntary. But if the case be brought to the test of comparing it to a similar transaction between two ordinary persons, it will be found that the vessels were always rightfully in service by the terms of the original charter-parties, and that their retention was never in any sense illegal nor by virtue of the right of eminent domain. Let it be supposed that.such a person had chartered these vessels and demanded a redaction of the agreed rates, and had done all the other compulsory acts complained of; what remedy would the owners have had against him that they did not have against the Government? Tile non-payment of the wages would not have voided the charters; the owners would not have been able to replevin the vessels; demanding the discharge of the vessels would not have created new relations between the parties. All that the owners could have done would have been to sue the delinquent charterer for the money he owed them. In like manner these claimants, in December, 1863, might have done precisely what they have done now; they might have brought an action on the original charter-parties to recover the agreed wages. Bub instead of pursuing their remedy at the proper time they entered into new agreements, which they then preferred to the delays and uncertainties of litigation. It is manifestly too late for them to pursue that remedy now. This much of their demand comes clearly within the decision in Mason's Case, (6 C. Cls. R., 57,) and cannot be sustained.

It follows from this that the liability of the defendants for the injuries sustained by the barge Perry, in 1864, must be determined by her second charter-party, which provided that the marine risk should be borne by the owners “when in service in loaiers usually navigated by barges, otherwise by the United States-." The injury was confessedly one of marine risk, but the waters of the Potomac had not been navigated by such barges before the war, though they were safe and suitable for barge-navigation. We are of the opinion that the charter-party intended to draw a distinction of substance, and that the intent which it ambiguously expresses was that when the barge should be taken into waters not safe and suitable for barge-navigation, such as on her voyage from Hew York to the Potomac, the marine risk should be borne by the charterers, but that when in waters suited to her size find structure it should be borne by her owners. Upon this construction of the insurance clause the claimants cannot recover.

As to the barge Gardiner, it is sufficient to say that the injury occurred under the original charter-party, which provided that the marine and all other risks” should be borne by the defendants.

As to the last item of damage, the deterioration of all the barges while in service, it arises under the new charter-parties, which provided that the barges should be returned to the owners in isfew York “ in the same order as when received, ordinary xoear and tear, damage by the elements, collision at sea and in port excepted.” There are two prior covenants in the charter-party ; the one that the barges “ should be kept and maintained during the whole of the voyage,” &c., “ tight, staunch, strong, and well and sufficiently manned, victualed, tackled, appareled, and ballasted, and furnished in every respect fit for merchant-service at the cost and charge of their owners;” the other that the marine risk should be borne by the owners, while the war-risk was to be borne by the defendants.

To the majority of the court it seems clear that these covenants are not inconsistent with each other, and that due effect should be given to all. The owners may well have said, when they let their vessels, “We are willing to warrant their seagoing qualities and to assume such risks as can be covered by marine insurance, but you propose to take our vessels for an unlimited time under your own control, to send them we know not where, and to employ them in the transportation of we know not what; they may be hacked by soldiers, and stamped and gnawed by horses, and'jarred by artillery. Since you acquire . the right to send them where you please and use them as you please, and we surrender the right of rejecting a cargo or employment which might be injurious to them, you must assure us that they shall be returned to us in as good condition as you received them, ordinary wear' and tear and marine casualties and disasters excepted.” The contingencies anticipated by the contracting parties for the most part arose. When a marine disaster brought a vessel within the owners’ covenant to keep her tight, staunch, and strong, and in every respect fit for merchant-service, her time lost thereby was deducted from her earnings and her repairs were charged to her owners. Conversely, if the barges were not returned to their owners in the same order as when received, ordinary wear and tear and marine disasters excepted, the defendants should be held liable under their covenant.

The judgment of the court is that the claimants recover of the defendants the sum of $3,653.S5.

Losing, J.,

dissenting:

The questions are, whether the petitioners waived the first charters, or authorized such conclusion by the defendants. I think both questions are negatived by the protest.

Every case of protest involves a submission to terms required, as well as a reservation of legal rights, and notice of this to the other party, and it is only the submission to terms required that makes the necessity for the protest, or any occasion for it. • Thus, where an excise officer, at the common law, or a collector, under the statute, demands more than is due, and the other party pays what is demanded under protest, such payment is a submission to the terms required, but the protest that accompanies it prevents the officer, or the law, from receiving such submission to the terms required as an acceptance of them, and is a notice that the party paying does not thereby waive his legal rights, but will enforce them; and in the case at bar the execution of the second charters under protest, and the subsequent conformity to them, in receiving, &c., and receipting in full for the money payable under them, &e., was but such submission to terms required, with express notice to.the defendants that the petitioners did not accept them in lieu of the terms in the first charters, and would enforce their rights under those.

If the petitioners could have possessed themselves of their barges, upon the Government’s non-compliance with the first charters, then their leaving them in the possession of the Government under the second charter would have been an acceptance of the latter in lieu of the former, for if¡ would have been an election of the petitioners between alternatives $ but the petitioners had no such right and no such election, for they claimed under the first charters, and those entitled the United States to hold the barges during their pleasure, and gave the petitioners no right of re-entry or repossession of the barges for non-payment of the hire, but only a right of action for the hire as it accrued; so that in December, 1863, the petitioners’ only legal demand was for the hire then due, and this they were free to sue for at any time within the statute of limitations. So it was afterward their right to sue for each monthly payment as it became due, or to avoid such a vexatious multiplicity of suits, and await the determination of their contract, and then sue in one suit for all their legal rights under it. This latter course the petitioners adopted, and notified the defendants of it by their protest. In all this 1 think there was no avoidance of litigation, but an express declaration of the purpose of it, for a protest means that, and notifies the other party of it.

Where a debtor refuses to pay the amount due and tenders a less sum the creditot may receive the sum tendered under protest, and afterward sue for and recover the balance; because the protest notified-the debtor the balance would be claimed of him, and he made his payment of the less sum with that knowledge. I think the same principle governs this case. The con: trolling subject of the parties’ consideration was the monthly hire, and the charters were only means for that, and the United States refused to pay the hire stipulated in first set of charters and tendered a less sum in the second, and the conformity of the petitioners to those second charters was merely their receipt of the less sum under protest, which notified the defendants this claim would be made on them. The petitioners, it is truej received the benefit of the less sum paid them from the time of its receipt, and that is always the case where a debtor tenders less than was due, and is, under a protest, sued for the balance.

As I think the petitioners’ execution of and conformity to the second charters consistent with their protest, I think the effect of that was to preserve the petitioners’ rights under the first charters, and that those Should make the measure of their recovery.  