
    THE FLUSHING FERRY COMPANY’S CASE. The Flushing, College Point and New York Steam Ferry Company v. The United States.
    
      On the proofs.
    
    
      The steamer Flushing is chartered to the Quartermaster Department .in March, 1862, the “ war risk” to he home hy the United States, the “ marine risk north of Cajie Henry” hy the owners. In going over Hampton har, while in charge of a pilot hut in possession of the owners’ captain, and crew, she strikes an unseen obstruction, supposed to he an old wreck, and sinks. The place of the disaster is north of Cape Henry and on pilot ground. A buoy which marked the obstruction is carried away just before, andreplaced hy agents of the government just after, the accident.
    
    I. Where a vessel is in the possession of the captain and crew provided l)3r the owners, and the charterer only directs her destination, the control and responsibility must be deemed in the owners.
    II. Where a pilot, selected by the captain, is in charge of a vessel on pilot gronnd, he is the employé of the captain, and not the agent of the government, notwithstanding that the government (being the charterer of the vessel) commissioned the pilot and employs him by the month for the pilotage of government transports.
    III. If an officer of the government 'fails in the performance of a public duty, it gives the injured party no right of action against the government. Hence, the government is not liable for the wreck of a vessel in its employment, though caused by public officers having neglected to replaoe a buoy which marked a dangerous obstruction on a bar.
    
      Mr. N. P. GMpman, and Mr. T. J. Purant for tbe claimants:
    The petitioners claim $157,200 for damages done to and cost of repairing a steamship, together with the hire of the same, at 
      i the rate of $350 a day, during her employment and while undergoing repair.
    The facts of the case are as follows: On the 5th March, 1862, the petitioners entered into a written contract (copy of which is annexed to the petition) with defendants, by which the former granted, and to freight let, the steamship Flushing, to the latter, to load at New York-and proceed to such ports and places as ordered by the Quartermaster of the United States army, the owners reserving so much room only as was necessary -for the stowage of the ship's cable and material, and for the accommodation of her officers and crew.
    The ship was to be kept in good order at 'the expense of the owners.
    All port charges were tobe paid by the War Department after leaving New York.
    The war risk was to be borne by the United States, the marine risk by the owners, until under orders south of Cape Henry.
    As the hire of the vessel during the term of the contract, the United States were to pay $350 per day and furnish all fuel until the vessel should he restored to the owners, in the same order as token received, common wear and tear excepted.
    
    The contract- was to continue in force for one month, and as much longer as might be required by the War Department.
    It is proved by the testimony of Nimmo, captain of the steamship, that having taken on board at Alexandria, the Second Eeg-ular Infantry, on 27th March, 1862, they reached Fortress Monroe at about 4 o’clock on the afternoon of the 28th. At this time the vessel was in charge of one of the government pilots, selected by the captain, but commissioned and paid by the United States, and this pilot had exclusive control of the movements of the vessel; while thus directed she ran upon a sunken obstruction at the end of Hampton bar, and sank.
    At the time of the disaster there was no buoy to mark the place of danger. There had been one placed there by the United States officers, who were in exclusive control and possession of the harbor, but it had been displaced, and was replaced the day after the disaster. Had' it been there the disaster would have been avoided.
    The steamship was taken to New York for repair, which was accomplished at an expense of $37,791 63, including necessary expenses of towage, provisions, wages, &c.
    On the 15th March, 1803, she was completed, and tendered to the United States under the contract, but was refused.
    The time necessarily occupied in these repairs was three hundred and fifty-two days, which, at $350 a day, makes $123,200.
    Upon these facts, we are to consider upon which one of the , parties to the contract the cost of the disaster must legally fall.
    1. It is plain that, from the nature of the service, as well as from the expressions of the contract itself, petitioners parted with the possession and control of their vessel, which became for the time the property of défendánts.
    The contract does not import a mere obligation on petitioners to carry freight for a specific voyage, but is a letting of the whole ship to the defendants, to.be used as the latter may see fit, constituting defendants owners for the time. (See Oliver v. Greene, 3 Mass., 137; Vallijo v. Wheeler, 1 Cowp., 143; Fraser v. Marsh, 13 East., 238; Trinity Rouse v. Ciarle, 4 M. & S., 288; 3 Kent’s Com., p. #138.)
    And this relation of the parties is evident from the forms of expression also adopted in the contract itself. When, for instance, the word grant is used, does not this mean a cession and transfer of the ship 1 And this is coupled with the correlative term “ return,” the contract binding the United States to return the vessel to the petitioners when fio longer needed, which implies, necessarily, that the owners go out of possession by the terms of the contract; otherwise the word would be inapplicable, as that could not be returned to them which ivas never out of their possession.
    Again, in what condition was the ship to be returned'? The contract says, “in the same order as when received, common wear and tear excepted.” Can it be said that this obligation is fulfilled when she has been run upon a rock and returned seriously damaged ?
    If it be objected that the contract says “the marine risk is to be borne by the owners,” the reply is not difficult.
    . Does the expression “ marine risk” include the peril incurred ? However it might be under a policy of insurance, here it seems to have been used in reference to the navigation of the open ocean.
    
      If tbe detention, of tbe ship for repairs bad been owing to ordinary causes, and had tbe owners been liable for tbe cost of them, still tbe time of tbe detention would have been a legal charge upon tbe defendants. *(See Ripley et al. v. Schaife, 5 Barn. & Cress., p. 107; 11 Johnson’s Com. Law Rep., p. 1S8.)
    The case is still stronger here, where tbe disaster arose from an extraordinary peril incurred through tbe negligence of defendants.
    
      The Assistant Attorney General for tbe defendants:
    
      The marine risk of the steamer was to be borne by the owners until under orders south of Cape Henry.
    It is alleged that, in tbe execution of this charter-party, said steamer, in endeavoring to cross Hampton bar, (which is inside, and therefore not south of Cape Henry, in tbe meaning of tbe charter-party,) on tbe 28th March, 1862, struck .on an unseen obstruction and sank, and so remained sunken until September 1 following, when tbe claimants succeeded in raising her. It was not until tbe 14th’of March, 1863, that tbe vessel was so repaired as to be ready to resume her service, and then, upon notice of such readiness, tbe Quartermaster Department refused to employ her.
    This petition now seeks to recover—
    1. Tbe expenses of repair, about...$34,000
    2. Hire from tbe sinking, March 28,1862, to tbe completion of repairs, March 14,1863, 352 days, at $350 per diem... 123,200
    First, as to tbe liability of tbe United States to pay these expenses.
    Suppose tbe injury to have been within tbe marine risk. Then, clearly, tbe second party of the charter-party is not liable; for tbe marine risk inside of Cape Henry, where this injury was received, was to be borne by tbe other party. (Ar-nauld on Insurance, vol. 2, p. 799, ed. 1850, § 297; Rotter v. Suffolk Insurance Company, 2 Sumner, 197.)
    This proposition of law, however, is not necessary to tbe defendants’ exemption from liability for this loss; tbe only liability assumed by tbe United States in this charter-party being that of “ tbe war risk.” This phrase has receiyed a construction from this coiut in Bogert’s case, (2 O. Cls. R., 163.)
    
      Beyond “the war risk,” tbe United States, by the terms of the charter-party, assumed no obligations as insurers. Nor were they owners for the voyage. The charter-party did not give them control and navigation of-the ship.
    Where the charter-party leaves the ownership for the voyage would not be doubtful if this court were called upon to adjudicate this question as novel, and without the line of precedent decisions. The general owners would be held to be owners for the voyage; then, as now, the decisions hold them. (McIntyre v. Botone, 1 Johns., 238; Rooe et al. v. Qrovermcm, 1 Crunch, 214.)
    There remain two other points, which, as alternatives, may be urged in behalf of the claimants, as making their claim good notwithstanding the objections which have been made against its validity.
    1. That the loss was occasioned by the want of the buoy, which it was the duty of the defendants to maintain on the bar where the steamer struck.
    2. That the loss occurred through the fault of the United States pilot, then in charge of the vessel.
    This last point, however, seems to be made of no force by the testimony of the master of the steamer. He testifies that he selected the pilot, and that he was satisfied with the selection ; the selected pilot was aeareful, skillful man acquainted with Chesapeake Bay and thereabouts. Thus, no fault is imputed to him by the evidence, and there is no' necessity for discussing the wide questions of law which would be raised, if upon sufficient ground of facts the claimants’ counsel were to urge the liability of the government for damages occurring through fault of a so-called government pilot.
    Whether the United States can be held liable to judgment in this court, in this case, for damages occurring through want of a buoy where one before had been maintained by the United States, is a question open for argument, and also a question exceedingly wide.
    Against the existence of this liability, the following propositions are stated:
    1. The Quartermaster G-eneral or Secretary of War had no authority, by law, over the matter of light-houses, beacons, or buoys, and no power to make in relation to them any contract binding upon the United States.
    
      2. Tlie contract between tba-fc department and tbe claimants, exhibited in this' case, contained no agreement to that effect, express or implied.
    3. The statutes making provision for the discharge of this function of sovereignty, by means of a light-house board, raise no such contract. (Deming’s Oase, 1 C. Cls. B., 191 ,• Jones & Brown?8 Case, 1 O. Cls. B.., 384, Act 31 Augtcst, 1852, 10 Stat. L., 119.)
    4. The case does not show that through any defect in the legislation of the defendants, was this buoy out of place at the time of the alleged loss. Accordingly, it does not show that whatever negligence or tort there may have been in this matter, was not the negligence or tort of one of the agents of the defendants unauthorized by the principal, and for which the principal is not liable. (Gibbons v. United States, 8 Wall., 269.)
    5. For a defect in the legislation of Congress, the United States would certainly not be liable to judgment in the Court of Claims. (Deming’s Case, 1 C. Cls. E., 191.)
    
      
       This case was decided at the preceding term, but the opinion was withheld too late for publication in the fifth volume.
    
   Boeing, J.,

delivered the opinion of the court: .

The material facts are that the steamer Flushing was chartered by the Quartermaster Department in March, 1862, and the war risk was to be borne by the United States, and the marine risk north of Cape Henry by the owners. On the 28th of March, 1862, iu going over Hampton bar, in charge of a pilot, the steamer struck an unseen and hidden obstruction, supposed to be a wreck, and sunk. On September 1st she was raised by her owners and carried to New York, and repaired there by March, 1863, and not before; and her repairs amounted to $37,791 63, and the owners claim this amount, and also the sum of $123,200, making in all $160,997 63.

In this case the vessel was lost by a marine risk north of Cape Henry, and that is the description in the charter-party of the risks to be borne by the owners.

Bub it is claimed that the steamer was in the possession of the United States by the effect of the charter-party, and by the pilot, at the time of the disaster, as he was commissioned and paid by the United States,, and was their agent.

The steamer was in tbe possession of the captain and crew provided by the owners, and the United States only directed her destination. This is the 'circumstance that, by the general rule, decides temporary ownership between the charterer and owners, and there is nothing in the case to qualify it.

The pilot was selected by the captain, who, on pilot ground and, in the place he was, was bound to take a pilot, who was thus the employé of the captain for a special service^ which had no more relation to the temporary ownership between charterer and owner than the possession of the vessel by a painter or rigger, in the exereise of his vocation, would have had.

Uor is it material that the pilot was commissioned and paid by the month by the United States. On the Atlantic coast all pilots are commissioned by the United States, or by the States, under the sanction of the United States laws. And this is to ■ secure competent persons for the employment, and to exclude others. It is a measure of public safety; but every captain employs which pilot he pleases, and the pilot is then the em-ployé of the captain for that service,,' and nothing more. He is the agent for. nobody and represents nobody.

It was claimed that the United States were in default because a buoy which had been placed on the obstruction which caused the disaster was carried a way just before and replaced just after the disaster. But if any officers of the United States have failed in' the performance of a public duty, that gives the petitioners no right of action here, and makes no contract with them, express or implied, and the United States are not liable for the defaults of their officers.

And it was said that the owners, on the 15th March, 1863, a year after the disaster, tendered the vessel to the United States in continuance of her service. But no such tender was proved.

The judgment of the court is that the petition be dismissed.

Pegk, J., did not sit at the hearing of this case, nor take any part in the decision.  