
    WHITE’S CASE.
    Robert Cornell White v. The United States.
    
      On the Proofs.
    
    
      The owners of ihe Wyoming let her to the Quartermaster Department as a military transport under a charter which binds them to Iceep her manned and “tight, Being injured, through the fault of ihe owners’ master, repairs become neces-stauncli,” tf-c., “fit for merchants’servios, at the cost of the owners.” sary, which are put on her at the Government’s yard. The officers charge her with them and with her time then lost, and deduct the total from her earnings. The owners protest, but accept the balance. Their master having failed on one occasion to carry out the orders of the military authorities when on an expedition, the latter remove him and place another person in command, and require the owners to pay him for such services. The owners refuse until informed by a quartermaster that if they do not pay they cannot have the vessel turned over to them. They then pay without protest.
    
    I. Where, by the terms of a charter-party, the owners are to keep the vessel “ tight, staunch,” &c., “fit for merchants’ service,” they cannot recover for her services while she is laid up for repairs.
    
      II, Where the officers of the Quartermaster Department repair a military transport, ■which by the terms of her charter is to be kept “ tight, staunch,” &c., “fitfor merchants’ service, at the cost and charge of her owners,” and charge her with the same, deducting the amount from her earnings, paying over the balance and taking a receipt in full for her services, the burden of impeaching the charges is on the owners, though they may have protested against them at the time.
    III. If the military authorities remove the owners’ master from a military transport because of his neglect to carry out instructions, and appoint another in his place and require the owners to pay the latter for his services, and they do so without protest, the payment will be deemed voluntary and cannot be recovered back.
    
      The Reporters’ statement of the case :
    The following facts were found by the court:
    I. The claimant was in the year 1864, and afterward, the owner of a steam-vessel called Wyoming, which was built in 1853, and before entering the service of the Government, as hereinafter stated, was run between the city of Few York and Elizabethport, N. J.; and she was not built to go to sea.
    II. In February, 1864, the claimant sent said vessel from New York to Hilton Head, S. C., in charge of Charles H. Campbell, who, as claimant’s agent, executed the charter-party annexed to the petition herein as Exhibit A. Under this charter-party, the Wyoming was in the service of the Government from March 7,1864, till February 6,1866, when, at the request of the claimant, she was discharged from service and returned to him at Port Royal.
    III. When she entered the service she was tight, staunch, strong, and well and sufficiently tackled, appareled, and furnished; when she was returned to claimant, in February, 1866, she was in a bad condition, her frame being twisted and drawn out of shape, and she was shaky. After being so returned, she was taken back to New York by claimant.
    IY. In May, 1864, an expedition left Hilton Head for Ashe-poo River, under the command of Brigadier-General William Birney, and the steamer Wyoming was one of the boats of the expedition, being used as a transport. The point for the landing of the expedition was selected by General Birney after an inspection of the river and its banks, being regarded by him as the best point for the landing of troops from steamers, refer-enoe being had to the conformation of the banks and the character of the bottom of the river.
    When the expedition was moving up the Ashepoo River, Capt. John 0. Dutch, of the United States Navy, was ordered by General Birney to go on board the Wyoming, which was the leading steamer, and land the expedition at Bennett’s Point. At that time, It. S. Parker was captain of the Wyoming. He made to Dutch a verbal objection to landing at that point; but she was nevertheless landed there, broadside to the shore, and made fast, bow and stern, to objects on the shore. Another steamer-came to alongside of her, from which men and horses were passed to the shore over the deck of the Wyoming. When the Wyoming was landed, the tide was high, and long planks were passed from her to the shore.
    When she was landed, she was under the control of Dutch; but as soon as the troops aud horses were landed from her, Captain Parker resumed coutrol of her. To him General Birney gave orders to haul the Wyoming off from the shore. General Birney, after giving this order, was absent about an hour on a reconnaissance and posting the troops. When he returned, the Wyoming was lying where he had left her, but the other boats were in deep water. General Birney then repeated the order to Captain Parker to haul off into deep water, informing him that the boat would have to remain there several hours. Captain Parker did not obey this order, and about Jive hours after the landing the Wyoming was left by the water and got aground, and careened over almost upon her beam ends, in which position she lay for some before she could be got off; whereby she was strained so that some of her seams opened, aud she leaked so as to require both her pumps and a gang of men to keep her free from water. With the aid of some of the other vessels of the expedition, she was, at the return of high tide, got off, after having been some hours on the bottom, and returned with the expedition to Hilton Head. When she arrived there she was leaking badly, and she was sent bv the Governmer 1officers to the Government machine-shop on Saint Helena Isicffid, where she wa; temporarily repaired.
    V. In July, 1864, tne Wyoming was sent with another expedition, in the course of which, in some of the approaches to Charleston, she was run alongside of a wharf, and the water receded and left her aground for a time. While there a battery of artillery was taken from another steamer and landed across the Wyoming.
    YI. In November, 1864, when, on another expedition, some of the stanchions which supported her upper works were cut to get artillery out of her. This did not affect her hull, but weakened her upper works, but to what extent does not appear. At the same time, her bulwarks were taken out of her.
    YII. After her return to New York, in 1866, the claimant caused repairs to be made upon her to the amount of more than $17,000. Said repairs embraced a complete overhauling and renovation of the whole vessel and her boilers and engine. The condition of said vessel at the time of her discharge from the Government service, which made such repairs necessary, resulted from the ordinary wear and tear of the service in which she was engaged under the terms of the charter-party.
    YIII. The claimant became entitled for the services of the Wyoming during the month of August, 1864, to the sum of $5,425; against which” the officers of the Government charged the following items:
    For repairs put upon her at the Government shop. $1,257-21
    For quartermaster’s stores.... 1,140 80
    ' For commissary stores... 352 24
    For lost time, 14-Aj- days. 2, 486 45
    5,236 70
    On the 14th of December, 1864, the agent of the owner of the Wyoming addressed to the Quartermaster-General of the Army a written protest against said deductions, declaring the most of them to be unwarranted and unjust; but stating that since it was impossible for him to receive payment without the deduction, he would accept the same, with the understanding, however, that his rights to a future investigation should be in no wise prejudiced. Thereafter said agent received and receipted for the balance of $188.30, which remained of the earnings of the boat for the month of August after making said deductions. The repairs so charged against said earnings were those put upon her after her return from the Ashepoo River expedition, and the 14/T days of lost time charged were the days in which shewas laid up for those repairs.
    IX. In July, 1864, the Wyoming was'used in the transportation of troops from Beaufort and Hilton Head to John’s Island, to be used in an attack ou the rebel positions on that island, and also upon James Island. In going out of the harbor of Hilton Head there was some delay on her part, in consequence of which she failed to carry out promptly the instructions which had been given her. In consequence of this failure, Major-General Foster, then commanding the Department of the South, removed from the command of the Wyoming the captain placed on her by the claimant, and placed the vessel under the command of one Hardy, who after the return of the vessel from said expedition, under orders of the chief quartermaster of the department, turned her over to one Cannon, under whose charge she was sent to the Government machine-shop át Saint Helena Island for repairs, where she remained fourteen and a half days. The said Gannon was on her fifteen days, for which the agent of the claimant paid him $75. Before paying it, the agent refused to give Gannon anything unless he would write a receipt showing the circumstances under which' he got possession of the vessel, and told Gannon that if the Government pnt him on the vessel it should pay him. Captain Moore, assistant quartermaster, told the agent that if he did not pay Gannon he could not have the vessel turned over to him again; and thereupon the agent paid that sum. For the time covered by that payment, the claimant also paid the salary of the captain employed by him.
    
      Mr. John J. Weed for the claimant:
    The liability of the United States, under the charter-party in evidence in this case, is upon the covenant therein contained, that said steamer “shall be returned to the claimant 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.”
    In order to relieve the United States from liability in this action, it must be shown that the damage to said steamer, and its deterioration in value, resulted from “ ordinary wear and tear, damage by the elements, collision at sea or in port, bursting of boilers, or breakage of machinery.” The evidence' shows that such repairs as were from time to time needed upon said steamer, to make her tight, staunch, strong and sound, and fit for the service required of said steamer by the terms of the charter-party, were made by the claimant. The injuries said steamer received while in the service of the United States, under said charter-party, were not covered by the “ marine risk,” which the claimant assumed by the terms of the charter-party. By the term “ marine risk” must be held to be included only such risks as would be covered by an ordinary policy of marine insurance. The claimant was his own insurer against such losses as would be protected by such a policy of insurance. Unless it is shown, therefore, that the damage to said steamer resulted from such perils as were assumed by the claimant, under the “marine risk,” he is entitled to recover such damage in this action.
    By the terms of the usual marine-insurance policy, the insured is protected from loss by perils of the sea, fire, piracy, theft, barratry, capture, arrests and detentions, and like perils. (Parsons’s Mercantile Law, p. 440; Parsons’s Marine insurance, vol. 1, p 544.)
    The damages which this steamer sustained, and for which the United States are liable, are not covered by an ordinary policy of marine insurance. It is a universal rule that the insurers are only liable for extraordinary risks. If the property insured be lost or injured, and the loss evidently arose from an ordinary peril, as from common weather, or the oommon force of the waves, the insurers are not liable. (MoLanahanv. Union Insurance Company, 1 Pet., 170; Bullard v. Roger Williams Insurance Company, 1 Curt., 148; Coles v. Marine Insurance Company, 5 Wash. C. 0., 159.)
    This steamer, while in the service of the United States, under said charter, was under military control and subject to military orders. The master in command of her for the claimant had no election or choice as to the service in which she should be employed nor the use to which she should be subjected while under such military control. If, therefore, said steamer was injured, and sustained damage from causes not covered by the “marine risk,” or excepted from by the terms of the charter-party, and such injury or damage resulted from the acts of the officers and agents of the United States, and without the fault or negligence of the claimant or his agents, then the United States, as the charterer of said steamer, is liable for such injury or damage to said steamer resulting from such use. (Schulte &Marhley v. United States, 3 C. Cls. B., p. 56.)
    
      Although the charter for this steamer provides that “the-time lost in consequence of any deficiency in said steamer in respect to her being kept tight, staunch, strong, and well and sufficiently manned, &c., shall not be paid for by the United States,” yet if time was lost to make repairs which became necessary without the fault of the owner or master of the ship itself, (that is, if they do not arise from her original unsea-worthiuess,) and in consequence of the acts of the officers and agents of the United States, then the United States are liable to-pay for the time lost to said steamer while making such repairs. (Schultz & Marhley v. United States, 3 0.01s. R., p. 56; Parsons’s Mercantile Law, p. 63; Ripley v. Scaife, 5 B. & Cres.,p. 167; Rave-loch v. Geddes, 10 East., p. 555.)
    The payment to the claimant of the sum of one hundred and eighty-eight dollars and thirty cents, upon the amount due to the claimant for the services of said steamer for the time embraced in the certificate of service issued for the service of said steamer, from the 31st day of July, 1864, to the 31st day of August, 1864, was not a payment in full for the services of said steamer for said month, and the pro tost of the agent of the claimant who received said sum is sufficient to protect the claimant from the legal consequences resulting from the receipt by him of said sum, in full of the voucher issued for the services of said steamer during said period. A receipt in full of a debt due is not conclusive evidence of its payment, and is always open to explanation. (UnitedStates v. Reeside, 2' C. 01s. R., pp. 55, 56, 57; Opinion of Casey, 0. J., and authorities cited ; A dams v. United States, ibid., p. 87; Pratt v. Same, 3 ibid., p. 115.)
    But it may be answered to these authorities that the principles therein stated have been overruled by the Supreme Oourt in the ease of United States v. Adams, (7 Wall., pp. 463, 476.) This proposition cannot be maintained, because the Supreme Court place their decision in that case upon the ground that Adams had voluntarily submitted his claim to a commission appointed by the Secretary of War to examine certain claims against the United States resulting from contracts entered into by General Frémont and officers acting under him. In the opinion of the court there is the following language upon this question:
    “ It has been strongly argued that the receipt in full of all demands, which the board exacted from the claimant before the-delivery of the voucher or finding, was unauthorized, or if authorized, that it is no bar to that portion of the original claim rejected by the board, as it is an instrument subject to explanation ; that a receipt for a payment in full, when only part of the debt is paid, is no defense to an action for the balance; and further, that it was signed under protest.
    “In the view we have taken of the case, the giving of this, receipt is of no legal importance. The bar to any further legal demand against the Government does not rest upon this acquittance, but upon the voluntary submission of the claims to the board; the hearing and final decision thereon; the receipt of the vouchers containing the sum or amount found due to the claimant; and the acceptance of the payment of that amount, under the act of Congress providing therefor.” (7 Wall., p. 479.)
    If, therefore, the sum of $3,713.66, charged against said steamer for repairs aud lost time during the period embraced from July 31, 1864, to August 31, 1864, were repairs that the claimant was not bound by the terms of the charter-party to-make, or resulted from causes for which he was not responsible, then the deduction of said sum from said voucher, as a payment thereon, was unauthorized and unlawful, and the claimant is not concluded thereby, and he should recover in this proceeding the above amount so deducted as a payment for the services of said steamer, during the period stated in said voucher. The stipulations of this charter, which obligate the United States to return the steamer to the claimant, 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,) are equivalent to a covenant on the part of the United States to make such repairs upon said steamer, not resulting from the above-excepted causes, as would put said steamer in the same order as when taken into the service of the United States under said charter-party. It is like a covenant for repairs contained in a lease of real estate, and the measure of damages, in an action, brought upon such covenant, is the cost of making the repairs required by the terms of the covenant. (JPenley v. Waits, 7 M. & W., 601.)
    
      
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants:
    As to the deductions for repairs, and time lost for fepairing. The charter-party provided that the owners should keep the vessel “tight, staunch, strong,” &c., and “the time lost in consequence of any deficiency in these respects not to be paid for by the United States.” Theinjuries which rendered therepairs necessary not having resulted from a risk assumed by the Government, these provisions of the charter are conclusive against this branch of the case.
    As to repairs done after discharge. There is no evidence in the case of any specific damage which rendered these repairs necessary. If, as is claimed, the injuries suffered by the vessel resulted from the performance of services in compulsory obedience to military orders, the claimant has no judicial remedy. (Kimball’s Case, 13 Wall., p. 636.)
    Granting that the vessel was injured in the manner alleged by the claimant, he has no cause of action against the Government. (Morgan’s Case, 14 Wall., p. 531; Leary’s Case, id., p. 607.)
   Drake, Oh. J.,

delivered the opinion of the court:

On the 7th of March, 1864, the claimant chartered the steamer Wyoming to the United States, at Port Boyal, S. 0., and the charter-party contained a stipulation in these words :

“And thereupon the party of the first part, and his heirs, executors, administrators, and assigns, doth hereby covenant 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 furnished in every respect fit for merchants’ 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.”

By the further terms of the charter-party the vessel was to be used in the military service of the United States, under the orders of the quartermaster of the United States Army.

The claimant alleges three causes of action:

I. That, through the misuse of the vessel by the military authorities, and the incompetencv and unskillfulness of the pilots and other officers placed upon her by the officers of the United States, agaiust the protest of the claimant’s agent, the steamer was injured and sustained damage, beyond what would ordinarily happen to a vessel employed in the service for’which she was chartered, in the sum of $50,000.

In support of this part of his demand the claimant showed in evidence that after the discharge of the Wyoming from the Government service he caused her to be repaired at New York, and expended in such repairs more than $17,000, but failed to prove that the repairs were made necessary by usage which amounted to a breach of the charter-party; and the court, therefore, found that “the condition of the vessel at the time of her discharge from the Government service, which made such repairs necessary, resulted from the ordinary wear and tear of the service in which she was engaged under the terms of the charter-party.” This finding leaves no foundation for this part of the claimant’s demand.

II. The second cause of action rests upon the acts of the officers of the Government in making certain deductions from the pay for the Wyoming’s services during the month of August, 1864.

The bill for those services amounted to $5,425; from which those officers deducted the following items :

For repairs put upon'the Wyoming at the Government shop.. $1,257 21

For quartermaster’s stores.-. 1,140 80

For commissary stores... .... 352 24

For lost time, 14^ days. 2,486 45

5,236 70

Against these deductions the agent of the claimant protested, declaring the most of them to be unwarranted and unjust; but stating that since it was impossible for him to receive payment without the deduction, he would accept the same, with the understanding, however, that his rights to a future investigation should be in no wise prejudiced. He did not specify which of the items he deemed unwarranted and unjust, nor did he indicate in what respect he considered any of them objectionable; but satisfied himself with the general terms stated, and then received the balance of $188.30, which remained due after the deductions were made.

It might be questioned whether a vague and general protest like that is a sufficient foundation for an attempt to set aside a settlement such as was made in this case; but as that question was not raised at the trial we will not discuss it here.

As-to the items of $1,257.21, for repairs, and $2,486.45, for lost time, there was no attempt by the claimant to disprove them, nor did he make any effort to show that they should not have been deducted from the earnings of the Wyoming, except on the ground of his general complaint against the usage of the boat on the Ashepoo River expedition, and in regard to that we have found that the condition of the boat when she returned from that expedition, which necessitated those repairs, was not the result of bad treatment of her by the Government officers, but of the failure of her captain to remove her from the bank of the Ashepoo River when ordered to do so; that the repairs were necessary to keep her from sinking; that the claimant had no facilities for making the repairs; aud that he was, therefore, compelled to ha.ve them made by the Government;. On the facts thus found we can see no cause of action whatever for the recovery of the $1,257.21.

As to the item for time lost, the charter-party expressly stipulated that “ time lost in consequence of deficiency ” on the claimant’s part in keeping the boat “tight, staunch, and strong,” should not be paid for by the Government; and it was therefore entirely proper that a deduction should be made of the stipulated wages for the time the boat was'laid up for repairs.

As to the items of $1,140.80, for quartermaster’s stores, and $352.24, for commissary stores, which were deducted from the earnings of the boat, it is sufficient to say that the claimant does not in his petition allege that they were not furnished to the boat by the Government, "nor does the court find anything in regard to them except that they were deducted from the amount due for the services of the boat. ÍTo evidence was offered to prove that they were unjustly deducted. There is, therefore, no ground for a recovery by the claimant of either amount.

III. The last cause of action set forth in the claimant’s petition is for $75, which he was obliged, by the Government officers, to pay to a captain put by them on the boat, in the place of his own captain, removed by them.

In regard to this, the facts, as found by the court, are that the claimant’s captain failed on one occasion to carry out promptly the instructions given him by the military authorities, when on a military expedition, and that in consequence thereof the commanding general of the Department of the South removed that captain from the command, and placed the vessel in charge of another captain, whose wages for the time he served in that capacity the claimant was required to pay, and did pay, without protest. His agent merely refused to pay it unless the captain appointed by the military authorities would write a receipt, showing the circumstances under which he got possession of the vessel. This demand, however, he aban doned, and paid the amount when informed by a quartermaster that if he did not pay it he could not have the vessel turned over to him. On these facts there is no ground for any claim against the Government. The payment was voluntary on the part of the claimant’s agent, and the money is not recoverable in this action.

No one of the causes of action set forth by the claimant has been sustained, and his petition, therefore, is dismissed.

Nqtt, J.,

dissenting:

I dissent from the judgment of the court upon the following points:

1. The Supreme Court has decided, with respect to these charter-parties, that they “ let only the use of the vessel,” the Government being “a mere contractor for a designated service,” the owners “retaining” “ command,” “possession,” and “ control over the navigation,” with all“ the duties and, responsibilities of owners” unchanged. (Leary’s Case, 8 C. Cls. R., p. 31 ; 14 Wall., p. 607.) If there be any principle of maritime law well settled, it is that the owners are entitled to the discretion of their master, and that when a ship leaves port the master is to be considered, for almost all purposes, the owners. Evicting him from the ship is, to all legal intents, evicting them.

It is not to be disputed that a military officer in a military exigency might have taken the vessel; but the taking would be like the impressment of any other property, by right of eminent domain, and not by virtue of a contract which provided that he should not take her, and that the owners should retain u command,” 11 possession,” and 11 control over her navigation.” It may also be conceded that for any damage done to the vessel during the period of impressment, the court is without jurisdiction to afford relief. But the decision of the court goes to an entirely distinct subject, and is in effect that, by virtue of the terms of this contract, which retained for the owuers “ command,vu possession,” and “ control over the navigation,” they might be evicted from their own ship and made to pay her additional running-expenses occasioned solely by their eviction.

The charter-party gave no such right to the charterers in terms, and the decisions of the Supreme Court, as I understand them, determine that it gave no such right by implication. The only right which the charter-party gave to the charterers was this, that if the vessel’s services, while she was navigated by her owners, through their master, did not please them, they might discharge her at any time. Therefore, it appears to me evident that the Government could not charge the vessel, under the contract, with the services of a master whom they had no right, under the contract, to intrude into the “ command” of the vessel.

But if any doubt remained in my mind, it would be removed by the fact that the services of this employé of the Government were not rendered during the exigency, but “ after the return of the vessel from the expedition.” It is manifest that if the military officers had a right under the contract to retain command and possession of the vessel a single day after her return from the expedition, they had a right, under the contract, to retain “command,” “possession,” and “control of her navigation” as many years as they chose to keep her in the service; which is a right the Supreme Court has decided belonged, under the contract, to the other party.

‘2. I also dissent from the conclusion of the court that the payment of this Government employé’s services was voluntary, for the reason that it is expressly found by the court that the owners did not pay until the quartermaster in possession notified them that if they did not they could not have their own vessel turned over to them again.

Payment to recover possession of one’s own property, illegally withheld, is payment under duress of goods, according to all the authorities; and the decision in this case, I think, is expressly in contradiction of the principle laid down in the Boston Bank Cases, (10 C. Cls. R., 519;) that while the Government cannot be held liable for the wrongful acts of its officers,11 neither can the Government set up the torongful acts of its officers to relieve itself from its lawful liabilities.” In this case its lawful liability is the agreed compensation of the vessel, and the wrongful act which it sets up is the illegal action of its quartermaster in compelling the owners to pay the Government’s debt. ,

3. I also dissent from the conclusion which the court has reached on the following finding of fact:

“Till. The claimant became entitled for the services of the Wyoming during the month of August, 1864, to the sum of $5,425; against which the officers of the Government charged the following items:
For repairs put upon her at the Government shop.. $1,257 21
For quartermaster’s stores..... 1,140 80
For commissary stores..... 352 24
For lost time, 14^ days. 2,486 45
5,236 70
“On the 14th of December, 1864, the agent of the owner of the Wyoming addressed to the Quartermaster-General of the Army a written protest against said deductions, declaring the most of them to be unwarranted and unjust; but stating that since it was impossible for him to receive payment without the deduction, he would accept the same, with the understanding, however, that his rights to a future investigation should be in no wise prejudiced. Thereafter said agent received and receipted for the balance of $188.30, which remained of the earnings of the boat for the month of August, after making said deductions. The repairs so charged against said earnings were those put upon her after her return from the Ashepoo-River expedition, and the 14^ days of lost time charged were the days in which she was laid up for those repairs.”

The ground of my dissent is that neither the pleadings, nor the evidence, nor the findings of the court aver that any such articles were ever furnished or any such repairs were ever made. To be available to the defendants in this suit, they clearly must be the subject of either set-off or payment in kind, and neither is alleged by the defendants, nor shown by the evidence, nor found by the court. All that is found is that the quartermaster “charged” them to the owners, and that the owners denied their liability for them. The Supreme Court decided in Henry’s Case (9 C. Cls. R., p. 22) that a finding that a mustering-officer “alleged,” in the proper exercise of his official duty, a regiment to be in such plight as to numbers that he could not legally muster in the claimant, was no finding of the fact $ and the finding in this case, that a quartermaster “charged”- a party with goods as sold and delivered is, I think, no better.  