
    Samuel H. Talbot v. The United States.
    
      On the JProofn.
    
    
      sohooner goes into the nitral- service under a charier-party which provides that only the war-risk shall beborne lnj the defendants and tfiat the schooner shall be discharged of charter at Hampton Hoads. While in service the naval commander at Beaufort orders that she be towed into another channel. The captain of a naval tug takes her in tow in the night-time against fhe remonstrances 
      
      of ¿he master, and runs her aground, whereby she is injured. Subsequently she is discharged at Beaufort instead of at Hampton Roads. The Navy Department pays the owners only up to the time of her discharge at Beaufort, and not for her Iwme voyage lo Hampton Roads. A receipt is given by the master in full of an account stated, lohieh extends from the date of the charter to the discharge at Beaufort.
    
    I. Responsibility on tbe one hand implies, reciprocally, discretion on tbe ■ other, and when the responsibility of marine loss, according to the charter, rests on the owners, it is in effect also agreed that thoy shall navigate their vessel by their own master and be free to effect insurance upon the usual conditions. Therefore where the defendants’ officers interfere with the lawful discretion of the master, to which the owners . are entitled, so as to avoid any policy of insurance which they may have effected, it is a breach of the contract, and the defendants are liable for all damages sustained.
    II. A receipt in full appended to an account stated for a vessel’s services, which account includes a specified period, does not constitute a settlement for services rendered subsequent to the'period specified.
    
      Mr. T. J. D. Fuller for tbe claimant :
    1. By tbe contract of charter-party tbe defendants acquired tbe right of tbe use of tbe claimant’s vessel, her tackle and apparel, officers and men, at a fixed price per month, for an indefinite period.
    2. Tbe law implies that tbe vessel should be required to perform reasonable services, not to incur any extraordinary or hazardous risks, but to be navigated according to the received, rules of experience of g'ood seamanship in tbe service of the defendants.
    3. Tbe defendants took tbe navigation of tbe vessel from tbe control of its proper master and agent of tbe claimants, placed her under the control of tlieir own agents and motive-power, and attempted to tow her at a time and in a place where injury was not only highly probable, but almost certain to follow. It did follow, and for this injury defendants are liable.
    4. The sea risks were to be borne by the claimants. This, means risks unavoidable — risks that common care and prudence, under tbe exercise of sound and intelligent seamanship, could not prevent,
    5. A fair rale to test this case would be, if this were an action against an insurance company to recover for tbe loss or damage this vessel sustained, under tbe circumstances and facts appearing in evidence, could tbe plaintiffs recover for tbe damage*! This is a most favorable way of stating tbe case for tbe defendauts. Our answer is, they could not; and the case of Williams v. New Ungland Insurance Company, Circuit Court United States, Boston, May Term, 1869, [manuscript opinion of Judge Clifford, and the authorities there cited,) is relied upon to sustain the position. The vessel was not injured by the perils of the sea. The perils of the land, in the darkness of night-time, and reckless navigation, were the approximate causes of damage. In the language of Judge Clifford, the attempt to tow this vessel through this narrow, tortuous channel, in the night-time, with the wind and tide setting across it, 11 was an unjustifiable, rash, and hazardous act of navigation, which no prudent or skillful master ivotild have undertakenI
    
    As to the facts, Commander West, of the Navy, under Admiral Porter, ordered the harbor-master of Beaufort to take the vessel from the place of her anchorage and to tow her into that harbor. The harbor-master ordered the captain of the United States steam-tug Berberry, Captain Eoundtree, to execute the order, “ and to do it by daylight,” as it would be “ almost impossible to do it in the dark.” This order Captain Eoundtree disobeyed, and the-consequence was the damage to the vessel.
    The vessel, by orders of Captain West, owing to the explosive and dangerous character of her cargo, had been anchored in a remote and out-of-the-way place, dangerous in its locality for tiie safety of the vessel. To bring her from that position into the harbor, she had to be towed through a narrow and tortuous inner channel, at low water, the tide setting across it, and a strong wind blowing at the' time. The vessel struck within from a half to three-quarters of a mile from the place where she was anchored. The master most vehemently protested against the attempt to tow his vessel through the channel after dark. The harbor-master, Chadwick, swears — and he was well acquainted with the harbor and the dangers of its navigation— “ The proper time of day to bring a vessel safely from where the Keokuk lay in safety 1 was slack-water,’ but not in the nighttime; it was impossible for any man to bring her out in the nighttime.”
    
    Petitioners claim for the damages $3,000. The opinion of the two Government surveys was that $2,000 would repair her. The mate, Grant, Captain Chadwick, and two other experienced ship-builders, Small and Leighton, swear she was damaged from $4,000 to $5,000.
    
      
      Mr. Alexander Johnston for the defendants.
   Notx, J.,

delivered the opinion of the court:

On. the 2Gtk of October, 1804, the schooner Keokuk went into the naval service of the United States, under a charter-party containing two provisions, which form the basis of the litigation. The first is, “that the war risk is assumed by the United States, and no other than toar risk is assumedthe second, that the schooner was uto he discharged of charter-party at Hampton Roads when services are no longer required.”

On the 25th of December, 1804, the commander of the naval station at Beaufort ordered the naval harbor-master to have the “ Keokuk towed out of Beaufort Channel around to Moorehead Channel.” Whereupon the captain of a naval tug, against the remonstrances of the master, took the schooner in tow, in the night-time, with her sails unbent, with a difficult and dangerous channel before Mm, in places only 150 feet wide, and in a few minutes succeeded in running her aground.

On the 14th February, 1865, at Beaufort, instead of Hampton Boads, Bear-Admiral Porter ordered the schooner’s discharge. The Ordnance Bureau of the Navy Department treated this discharge at Beaufort as conclusive, and did not pay the owners for any subsequent time; that is to say, did not allow them for the length of the voyage from Beaufort to Hampton Roads. At the time of this payment an account was made out in the usual form for the services of the schooner “ as per charter-party ,” for a period extending from the date of her charter to the date of her discharge; and the usual receipt was given “ in full for the above hill.”

As to the schooner’s injuries it is contended that only the war risk was assumed by the defendants, and that these injuries were the result of a marine disaster to be borne by the owners. As to the schooner’s right to be discharged at Hampton Boads and not at Beaufort, it is said that the payment and receipt were a settlement, final and conclusive, for her services.

It is undoubtedly true that the injuries of the schooner do not come under the term “ war risk,” and that the responsibility of marine loss, according to the charter, rested on the owners. But responsibility on the one hand implies, reciprocally, discretion on the other. When the owners contracted that they would bear the marine risk, it was in effect also agreed that they should navigate their own vessel by their own master, and bo free to effect insurance upon the usual conditions. The act of the defendants’ officer in towing the schooner at the time and in the manner he did was an interference with the lawful discretion of the master, to which the owners were entitled; and it would have avoided any policy of insurance upon the vessel which they might have effected. Williams v. New England Insurance Company. (United States Circuit Court, Boston, May Term, 1860, per Clifford, J.)

This case is plainly distinguishable from Beybold’s, (5 C. Cls. It., p. 277,) as there the master was navigating his vessel without interference and without compulsion.

The objection that the payment and receipt constitute a settlement, final and conclusive, for all of the vessel’s services, seems hardly sustained by the terms of the account stated. It does not purport to be a settlemént.including all of the vessel’s service, but simply a payment for a specific period. Service subsequent to that period cannot be affected by the payment or receipt. The defendants paid at the charter-rate up to the time of the vessel’s discharge at Beaufort; they have not paid for the voyage back from the place of actual discharge to the place of agreed discharge. During that return voyage the vessel was constructively in their service, and for it the claimants arc entitled to recover at the charter-rate.

The evidence as to damages is not clear or satisfactory, and it may be that the claimants are justly entitled to recover considerably more than we feel authorized to award to them. Taking the survey of the naval board as a guide, we fix the repairs of the vessel at $1,500; her .permanent depreciation in value at $500; and the service of her voyage from Beaufort to Hampton Bo ads at $128.

The judgment of the court is that the claimants recover the sum of $2,128.  