
    RADOVICH’S CASE. Marco N. Radovich v. The United States.
    
      On Demurrer.
    
    
      The claimant is owner of the steamer Diana, which, under a coasting license, plied up and down the river Mississippi. After Admiral Farragut had passed the rebel forts near the mouth of the Mississippii, asid ivas approaching New Orleans, the claimant, then with his boat lying at New Orleans, cut her loose from her 
      
      moorings, floated down the river until he could get up steam, and under that force met Admiral Farragut, and claimed his protection of his property and person, and tendered to him the services of himself and boat for the Government's use. These areaecepted, and the boaiispmtinto the service of the Government, with the intent shortly thereafter to return her to the claimant. The boat is retained and turned over to the commander of the land forces at New Orleans, who appoints a captain and uses her as a transport. She is afterward converted into a gunboat and so used until she is destroyed in an engagement with the rebel forces. To the petition alleging these fuels and claiming compensation for the boat, the defendants demur.
    
    When the owner of a steamer voluntarily tenders her use to the commander of the fleet of the United States, and she is received with the expectation of returning her to her owner, hut is retained as a transport and converted into a gunboat, and finally destroyed in an action with the enemy, it is not a case of land capture, nor of maritime prize, nor of tortuous taking, and therefore the claimant is entitled to a hearing, and a judgment of the court on the facts.
    
      Mr. T. J. I). Fuller and Messrs. Ohipman & Jlosmer for claimant:
    Tbe petitioner avers that be tendered to Captain Farragut tbe service of bimself and boat, for tbe use and benefit of tbe United States, and that Captain Farragut, being in need of such a steamer, accepted bis offer, and took her into tbe public service, intending to restore her to the owner-in a short time after. Upon this state of facts, doés there not arise an implied contract of hiring f Tbe only element lacking to make it an express contract of hiring, is a fixed price. That element tbe law supplies, in the absence of an express one, and fixes it to be u subh a sum as a jury, under all the circumstances, shall judge to be reasonable.” (See 10 JBingbam, p. 376; ibid., p. 482; 4 C. B., p. 837.)
    The property being of such a character, and so situated as not to fall within tbe category of land captures in time of war, tbe modes of acquiring title by one belligerent against another belligerent in that mode may be laid out of view, as wholly irrelevant.
    Tbe .United States (independent of tbe alleged implied contract of hiring) cannot make title to Ike Diana under tbe claim of maritime prime, as tbe steamer never was libeled in a prize court, or any decree of condemnation passed divesting tbe owner of bis title. (Kent’s Com., vol. 1, pp. 96 and 97, first edition.)
    
      1. It being no land capture.
    2. It being no prize by condemnation.
    3. It being a case of using by mutual consent.
    4. It cannot be considered a trespass.
    5. An implied case of hiring results logically from the facts alleged in the petition, which the' demurrer admits.
    
      The Assistant Attorney General for the defendants.
   Milligan, J.,

delivered the opinion of the court.

This case stands on demurrer, which, for all the purposes of the question now presented, must be taken as admitting the averments in the petition. The claim is for the use and value of the river steamer Diana, of which the claimant avers he was the master and owner, and which was regularly enrolled under a coasting license, and plying in a regular coastwise trade up and down the Mississippi River. In April, 1862, after Admiral Farragut had passed the rebel forts, and approached the city of New Orleans, in command of the fleet of the United States Navy, the claimant, with the view of seeking the protection of the United States Government, cut his steamer from her moorings at New Orleans, without waiting to get up steam, floated down the river until steam was made, and then applying that force to his boat, met Admiral Farragut and claimed his protection for his person and property, and tendered to him the service of himself and boat for his and the Government’s use, which was accepted, and the boat put into the service of the United States, with the intention shortly thereafter to return it to the claimant. Under this arrangement, he retained the steamer until the 1st of June, 1862, when the service of the said boat being still required by the Government, she was turned over to Major General B. F. Butler, then commanding the military land forces of the United States at New Orleans, and a captain of his appointment placed in charge of the steamer, aud used by his orders as a transport and tug to October 1, 1862, when she was converted into a gunboat for war purposes, on the rivers and bayous of Louisiana, and so continued to be used by him until the 23d of March, 1863, when the boat was destroyed in an engagement with the rebel forces.

The ease thus made in the petition is claimed to be a case of implied contract. It is not a case of land capture; and possibly not of maritime prize, for want of regular condemnation; nor is it’ a case of tortuous taking. Tlie surrender was voluntary, and tbe acceptance and use of the boat without compensation to the claimant. -On these questions, however, some of which are of grave importance under our peculiar legislation, as well as the question which may arise on the proof, whether the surrender was to avoid an inevitable result, and in fraud of the Government’s right of capture, we express no authoritive opinion. The case made in the petition, in our judgment, is of sufficient importance to entitle the claimant to a full hearing-on the merits, and we therefore overrule the demurrer, and order the case to the general docket for proofs. 
      
       Kent’s Com., eighth ed., 109, 110.
     