
    STRONG’S CASE.
    (11 C. Cls. R., 774;
    not reported in U. S. R.)
    Thomas S. Strong, appellant, v. The United States, appellees.
    
      On the ctnimantfs Appeal.
    
    
      A charter-party lets a vessel as an Army transport, she to be manned and navigated by the, owners. Army officers put a heavy Parrott gun aboard of her against the remonstrance of the. master. The firing injures the vessel. It docs not appear by the record what damages the owners suffered thereby. The charter also provides that- the owners shall keep her tight, stanch, and strong, and fit for merchant service, and that the (rovermnent shall discharge her at the port of Hew York in as good order as when chartered. Being found unfit for merchant service at Pori Royal, she is discharged there. The owners bring their action for injuries caused to the vessel by using her as a gunboat on a military expedi-diiion against the remonstrance of the master and for her wages from Port. Royal to New York.
    
    The court helow, being equally divided, renders judgment for the defendants. The claimant appeals.
    The judgment of the court helow is affirmed. The Supreme Court now holds: (1) That the Government, by the terms of the charter, had the right to put munitions of war on the vessel under the head of “stores," and soldiers under the head of “passengers”, and carry her on a military expedition; (2) That if tlie owners are entitled to damages for tlie injury caused to tlie vessel by tlie firing of tlie Parrott gun, tlie record does not sliow tlie amount; (3) Tliat if the vessel became unseaworthy from marine causes, while in service, tlie Government had the right to discharge her wherever she might be, and was not bound to discharge her at the designated port of New York.
    
      The Reporters’ statement of tlie case:
    Tbe following is tbe finding of facts by tlie court below:
    I. Tlie claimant was tbe owner of a steamer called the Ocean 'Wave; and on the 15th day of March, 1862, he chartered her to the Government of the United States by the following charter-party :
    “ This agreement of charter, made at Uew York, this fifteenth day of March, 1862, between Thomas S. Strong, owner of the good side-wheel steamer called the Ocean Wave, of the first part, and Colonel D. D. Tompkins, assistant quartermaster-general of the U. S. Army, of the second part, witnesseth:
    “ That the said party of the first part hath chartered to the said party of the second part, for the service of the United States, the good steamer Ocean Wave, now lying in the port of New York, for three calendar months, to commence on the tenth day of March instant, and longer if required, said party of the second part to have the whole and exclusive use of the said vessel, save and excepting room sufficient for the accommodation of her officers and crew, and the stowage of her provisions, stores, spare sails, rigging, chains, and all other things necessary to her equipment. (and, if a steamer, for her fuel and water): Said steamer Ocean Wave to be well found, to be kept tight, staunch, strong, and sound, victualled, manned, and provided with every necessary for efficient sea-service, conformably to general commercial usage and the requirements of the maritime laws of the United States; all at the expense of the said party of the first part. Said vessel to receive on board all such stores, wares, and merchandise as may be sent to her by the said party of the second part and as she may have the capacity to carry, and carefully stow the same, and as far as possible preserve them from damage or decay, and, at the port or ports of her destination, deliver the same to such person or persons as may be authorized to receive them, at the end of her tackle, danger of the seas, collisions, fire, and other unavoidable accidents only excepted; and to receive on board all such passenger's as said party of] the second part may send to her and as she may have accommodations for. If a steamer, her machinery, boilers, and everything pertaining thereto to be kept in perfect working order, and any time which may be lost by reason of such machinery not being in order to be deducted from the amount claimed to be due at the expiration of her charter. Said vessel to use all possible efforts to acconqilish tbe voyage upon which she is sent in Hie shortest possible time, and' any time lost by delinquency in this reject to be noted, and a deduction made for same. All officers and employees of said vessel to obey the instructions of the officers or agents of the Government whose dirty it may be to supervise and control their movements. All marine risks on the above vessel during the time she may be in the service of the United States under this charter to be borne by said party of the first part, and all war risks by said party of second part. Said steamer to be delivered to said party of first part in the port of New York at the expiration of this charter in as good condition as she now is, ordinary wear and tear, damage by the elements, bursting of boilers, breaking of machinery, excepted.
    “ No member of Congress to participate or be interested in this charter.
    “And the said party of the second part hereby promises and agrees, for and on behalf of the United States, that the said party of the first part, or his assigns, shall be paid, as full compensation for the above charter, at the rate of two hundred dollars per day, payment to be made upon the certificate of a commissioned officer, when that is practicable, and, when not practicable, upon'the affidavit of the master of the vessel; which certificate or affidavit must be clear and explicit, and such as to enable the paying officer to make the payment without danger to himself.
    “ Coal for the use of the said steamer to be furnished by said party of second part whilst in the service of the United States under this charter.
    “ lu witness whereof the parties hereunto have subscribed their names and affixed their seals.
    Done in quintuplícate the day and year first above written.
    (S’g.) “THOMAS S. STBONG. [seal.]
    (S’g.) “D. D. TOMPKINS, [seal.;
    
      “As’t Q’rm’r Gen’l.
    
    “ In presence of—
    (S’g’d) “John H. Conner.”
    II. In pursuance of this charter-party, the said steamer went from New York into the waters of North Carolina, where she was employed in the service of the United States, under the orders of the chief quartermaster of the military forces in North Carolina, until some time in February, 1863. She was used in transporting stores and men.
    TTT. In the month of December, 1862, said steamer was at New Berne, on theNeuse Biver, in North Carolina, and by the orders of Quartermaster Slaight, of the United States military forces,, she was required to go, with six other boats, on an expedition up that river, which was ordered by General Foster, command-' ing the department. Before starting on this expedition the quartermaster sent lumber on board of her, and caused her deck to be strengthened, under the superintendence of a naval officer, by putting stanchions under it and by sheathing it. The day after tins was done she was ordered alongside of one of the naval artillery boats, and a 30-pound Parrott gun and its carriage, such as are used on naval vessels, together with ammunition for the gun, were put on board of her. At this time a commodore told the captain of the Ocean Wave that the boat was to go up the Neuse Biver, without saying for what purpose. The captain protested against her going up the river, and objected to her being used as a gunboat, and he told the commodore that he supposed she was to be used as a gunboat, and that she was not fit for that sendee, nor fit to bear the heavy piece of artillery she had on her, and that she was hired for another service and this was out of the line of transport service. The commodore said, “You have to go.” After taking the Parrott gun aboard the Ocean Wave returned to New Berne, and took on board seventeen artillerymen, with their small-arms and provisions for the expedition. Fifty bales of hay and two hundred bags of oats were also put on the boat, which were piled around her pilot-house and engine. She left New Berne to go up the Neuse Biver, and at the time of doing so she was under the control of Colonel Manchester, of the Maine artillery, who commanded the expedition, and remained onboard of her till she got about seven miles above New Berne, when he went on board of the Ellison, the leading boat of the expedition, and a lieutenant from a naval gunboat came on board the Ocean Wave and took command of her. The expedition went up the Neuse Biver about fifty miles without molestation. At that point there was a fort occupied by a rebel force, so situated upon a short bend of the river that, owing to the sharpness of the point and the narrowness of the channel, only one of the boats at a time could get the range of the fort. When the fort was reached two boats where ahead of the Ocean Wave, the Ellison being the first* They reached there between sundown and dark. A shot from the fort struck the Ellison’s smoke-stack, and she returned the fire three times; after which, at dark, she hauled back below the point, where the other boats were. When the morning came it was ascertained that the fort had been evacuated, and the river having fallen about twenty inches during the night, and there being only six feet of water in the channel, Colonel Manchester gave orders to back down the river, the Ocean Wave being too long to turn. The Ellison and Port Royal, two Army transports, were put one on each side of the Ocean Wave, nnd the three boats were backed down about three miles to a place in the river where they were turned, and then proceeded head first down the river toward New Berne. About twelve miles above that place a volley of musketry was fired into the Ocean Wave by a large bod3r of rebels on the shore, which caused the manning- of the Parrott gun on her, and by the time it ivas manned another volley was received. Their fire was then returned by the gun on the Ocean Wave, which was fired eleven times in quick succession. After the firing of that gun began the rebels ceased firing. The gun was about even with the rail of the gunwale, and the concussion of its firing swept off the bulwarks and netting in the track of the explosion. In passing a sharp turn in the river the gun was trained a little aft of the beam, aixd the effect of the firing then was to start the joiner-work, and to break in some of the panels of the doors, and to take a part of the rail off'. Just after making that turn in the river the boat struck an overhanging tree, which took off a part of the wheel-house, and swept off both of the flag-staffs, and all the awning-stancliions, and did other damage; after which she, passed on down the river, and was not again fired upon by the rebels, nor were the rebels again seen; but at different points, ns she passed down, her gun was fired to keep the enemy back, if there were any more on the line of the river. On the way down the Ocean Wave was used to pull off a gunboat which had grounded. About three miles above Now Berne it was necessary for the Ocean Wave to pass through a part of the river where there were snags and logs, and her starboard wheel ran over one of them and ivas very much broken, but she proceeded on down about a quarter of a mile, where she ran upon a snag on the port side, Avliioli broke a hole in her bottom about the size of a man’s hat, and caused her to sink there, where she lay till the next day, when, with the help of steam-pumps, which were sent to her from New Berne, after lightening her by taking 'off her a large quantity of baled hay and oats and the gun, she •was pumped out and the hole in her bottom stopped, and she -was taken to New Berne, where she was temporarily repaired by the Government. Duiing the whole time of that expedition the Ocean Wave was managed by a pilot placed on her by the Government officers, and he belonged in that neighborhood and was familiar with the river, and when the boat struck the snags he had charge of her.
    IV. After the Ocean Wave had performed the service set forth in the next preceding finding, she was sent, by order of the quartermaster-general of General Foster’s forces, to Beaufort, N. C., as a rendezvous for an expedition to Hilton Head, S. 0. At that time she was in an impaired condition, not fit for the trip. She was in a condition to be injured by ordinary service; but the exigency of the service demanded that she should make that trip, and her captain did not object to her doing so. She went from New Berne to Beaufort. At Beaufort the quartermaster-general ordered her to take on board ammunition and provisions for General Foster’s expedition to Hilton Head. Her captain told the quartermaster-general that she was not then in a seagoing condition; who replied that he could not spare her, and there was no time to put her in sea-going order. In going from Beaufort to Hilton Head it was necessary to make the outside passage by sea, and the Ocean Wave was not fit to go outside, and was hardly fit to run inside. She, however, went with the expedition, and arrived at Hilton Head, where, on the ICth of February, 1863, she passed under the charge of the chief quartermaster of the Department of the South on the staff of General Hunter. By him she was used in the Government service until March 4,1863, when she was condemned by the Government inspectors, and discharged by the chief quartermaster of General Hunter’s forces, by the following written order:
    “Chief Q. M. Office,
    “10th ArMY Corps, Dept. South,
    “ Port Boyal, 8. <7., March 4, 1863.
    “Captain W. W. Vathill:
    “ Sir : Your steamer being out of order and condemned by the Government inspectors, you are discharged from the service of the Government, and can leave this port when you please.
    “Respectfully,
    . “J. J. EL WELL, uLt. Gol. and, Q. M. 10th Army Corps.”
    
    V. In consequence of this discharge the Ocean Wave was taken by her captain back to New York, where she arrived on the 30th of April ,1803. The great length of time taken to go from Hilton Head to New York was mainly owing-to the bad weather, which required the boat to lie by at different places, and to the necessity for her stopping on the way to take in coal.
    VI. After her return to New York she was immediately put in hand for repairs, and was generally repaired throughout, at the expense of her owner. The whole amount paid by him for repairs was $5,125.70. The repairs were so far completed on the 9th of June following that she was again put to service by her o wner in the waters of Long Island Sound. During the period of her repairs her master and crew were retained in her service and employed in assisting.
    VII. For all the time the Ocean Wave was in the Government service, namely, to the date of her discharge at Port Eoyal, her owner was paid the contract price for her services.
    
      Mr. Thomas J. Durant for the appellant:
    It is altogether inconsistent with the terms of this contract that the United States made this transport into a gunboat, armed her with a Parrott gun, sent her on a hostile expedition, and employed her in actual offensive operations, as a war-vessel, against the enemy. {Ciarle!s Case, 9 G. Gis. E., 377.)
    During this entire trip the charter-party was set aside, and the United States used the Ocean Wave not as charterers, but as owners; and are liable, therefore, for all the resulting damages.
    Hence it seems quite proper to hold the Government liable for strictly compensatory damages in these cases. This we understand to be the rule announced by this court in. Corliss v. United States (91 U. S. E., 321).
    The Government having taken the Ocean Wave out of the possession and control of the owner and his agents; having armed, equipped, manned, and officered her, and employed her as a part of the naval armament of the United States, and engaged her in actual hostile operations, it seems nothing more than just, if any damage resulted to the vessel from this employment, the United States should liquidate and pay the same.
    But it is manifest that the Ocean Wave was permanently injured from the treatment to which she had been subjected, and that the “temporary repairs” put upon her by the United States entirely failed to make her seaworthy.
    
      The finding is, briefly, almost sententiously, “she is in an impaired condition, not fit for the trip ” to Hilton Head. She, however, made the trip outside without accident. The United States officer, when told of her unfitness for sea, said “he could not spare her, and there was no time to put her in sea-going order.” The exigencies of the situation will alone palliate the violation ■of all law. Inter arma silent leges.
    
    The Government still continued to use the Ocean Wave until she was discharged at Port Eoyal, March 4, 3863, being out of order and condemned by the Government inspectors. Entirely disregarding the provisions of the charter-party, the discharge took place at Port Eoyal; and the captain had to take his steamer to New York the best way he could, in an unseaworthy condition, in bad weather, and under the necessity of stopping on the way to take in coal, and the passage lasted fifty-six days. The language of the contract is: “ Said steamer to be delivered to the party of the first part in the port of New York, at the expiration of this charter, in as good condition as she now is, ordinary wear and tear, damage by the elements, bursting of boiler, breaking of machinery, excepted.”
    
      Mr. Assistant Attorney-General Smith for the United States, appellees:
    The parties contracted that the United States should have “ the whole and exclusive use ” of tire Ocean Wave for the term •of her charter. (lieed v. The United States, 11 Wall., 591; Leary v. The United States, 14 Wall., 607.)
    There was no express limitation as to the nature of that use, nor was any implied from tlielanguage employed, butthe reverse. 'The exposure to war risks was contemplated, andtliesetheUnited States assumed.
    If the claimant’s counsel is right in assuming the “ charter-party was set aside,” then the forcible seizure of the vessel was a tort (Gibbons v. The United States, 8 Wall., 269), for which this suit cannot be maintained.
    Moreover, if it was an impressment of the vessel, outside of the charter, it was an “ appropriation of or damage to property by the Army or Navy,” &c., which ousts the jurisdiction of the Court of Claims (Act Lily 4,' 1864, c. 240, § 1,13 Stat. L., 383.) •Of the language of that act this court said, per Field, J.: “ The term appropriation is of the broadest import; it includes all taking and use of property by the Army or Navy not authorized by contract with the Government.” (Filor v. The United States, 9 Wall., 49 5 The United States v. Kénhall, 13 Wall., G30. 045; Morgan v. The United States, 14 Wall., 531, 534.)
    Claimant’s covenants to keep the Ocean Wave tight* stanch,, strong, sound, and provided with every necessary for efficient sea-service, to keep her machinery, boilers, and everything pertaining thereto in perfect working order, had all been violated, and for this reason she was discharged at Hilton Head.
    The contract Avas abandoned by the United States for a legal cause which had not been procured or occasioned by them. This distinguishes the present case from that of Reed’s, Avhere-per diem for reasonable time to return was alloAved. (Goodwin A', lhe United States, 17 Wall., 517.)
   Mr. Justice Harlan

delivered the opinion of the Supreme-Court, February 11, 1878:

In this action upon a charter-party, executed March 15,1SG2. between Strong and the United States, for the use of his steamer Ocean Wave, he asks judgment for the amount he expended in repairing her after she had been discharged from the seivice of the Government, and also for per diem compensation, at the rate-fixed in the contract, for the time occupied in taking her from Port Royal, South Carolina, to New York, and in repairing her.

The Court of Claims Avas equally divided upon the question of his right to recover, and his petition was dismissed.

By the terms of the charter-party the G overnment avus entitled to the whole and exclusive use of the steamer during the term she was in its service. To the extent of her capacity, it was the duty of Strong to receive and transport all the “passengers”' and the “ stores, wares, and merchandise ” which the GoATernment might send to her. Her use was not limited to any particular waters, and as it was clearly within the contemplation of the contracting parties that she would be employed in aid of" the military forces then engaged in the war for the maintenance of the Union, sending her to the waters of North Carolina and' there employing her for the transportation of stores and men AAras clearly authorized by the charter-party. Munitions of war-AArere “stores” and soldiers “passengers,” Avithin the meaning of that instrument.

Nor was it an unauthorized use of- the vessel to send her up the Neuse Elver, with other boats, on the expedition ordered in December, 18C2, by General Foster,- of the Federal forces.. Before starting, a 30-pound Parrott gun and its carriage, such as-are used on naval vessels, together with ammunition for the gun, and seventeen artillerymen, with their small-arms, and provisions for the expedition, were put on board. The presence of the artillerymen on the vessel was not inconsistent with the terms of the charter-party. In reference to the gun, it is claimed by Strong that the vessel had not the capacity to bear safely such a heavy piece of artillery, and, consequently, that such a use of her was prohibited by the charter-party. Her captain objected at the time to the gun being placed on her, but his objections were disregarded. It is not stated in the findings whether the gun was placed on the vessel for her protection or for offensive operations against the rebels. But it is found that after she had left the vicinity of the rebel fort, the reduction of which seemed to be the object of the expedition, the gun was used to meet an attach of rebel infantry, who fired from the shore into the vessel. The concussion of the firing “ swept off the bulwarks and netting in the track of the explosion,” and one of the effects was u to start the joiner-work, and to break in some of the panels of the doors, and to take a part of the rail off.” Upon the same occasion she struck an overhanging tree, which took off a part of the wheel-house, and swept off" both of the flag-staffs, and all the awning-stanchions. Proceeding down the river, and when three miles above New Berne, she struck a snag and sank. She was raised and taken to New Berne, and there “ temporarily repaired by the Government.” Casualties such as striking trees and snags and sinking were clearly marine risks, which the owner expressly assumed, and the fact that, during the expedition when they occurred, the vessel was managed by a pilot placed on her by the Government officers, cannot affect the rights of the parties. The captain does not appear to have made any objection to such a pilot, nor is it claimed that the latter was negligent or unskillful in the discharge of his duty. On the contrary, he belonged in the neighborhood and was familiar with the river. In regard to the claim for damages resulting from the firing of the gun, we remark that if such use of the vessel were conceded to be in violation of the charter-party, we should be unable to ascertain from tlie record tbe amount of those damages. How far they were met by the temporary repairs made by the Government upon the return of the vessel from the expedition is not stated. When she reached New York, after having been discharged from service, it is stated in the findings that she was “generally repaired throughout.” What portion of these general repairs was chargeable to the injuries occasioned by the marine risks which the owner assumed, and what portion, if any, was chargeable to the injuries caused by war risks which the Government assumed, cannot be determined from the record.

The only question which remains to be considered is that arising on the asserted liability of the Government for the per diem compensation for the time spent in taking the vessel from Port Royal and in repairing her in New York. The charter-party, it is true, expressly provided that she “was to be delivered to the owner in the port of New York, at the expiration of the charter, in as good condition” as she was at its date, “ordinary wear and tear, damage by the elements, bursting of boilers, breaking of machinery, excepted.” In view of this stipulation, was the Government, under the facts established, relieved from the duty of delivering her in New York % We think it was. By the terms of the charter-party-the owner was bound, at his own expense, to keep the vessel tight, stanch, strong, and sound, and her machinery, boilers, and everything pertaining to her in perfect working order, and to provide her with everything necessary for efficient séa-service. Any time which might be lost by reason of the machinery not being in order was to be deducted from the amount claimed to be due at the expiration of the charter. Now, it appears that on the 4th March, 1863, the vessel was out of order and condemned by the Government inspectors, and for those reasons was discharged at Port Royal from the service of the Government. It does not appear that this condemnation was improper or unjust. It is not pretended that she was at that time fit for efficient sea-service. The agreement of the Government to pay $200 per day for the use of the vessel was upon the condition — whether precedent or concurrent is immaterial — that the o wner would keep her in good order. His neglect of that duty, by reason of which she became unsafe and Avorthless for the purposes for which she had been hired, authorized the Government to abandon the contract and discharge her from its sendee. Its obligation to deliver her at New York was concurrent only Avith bis to keep ber in proper condition, and inasmuch as sbe was out of order and unfit for use, it bad tbe riglit to discharge ber at Port Royal, and was relieved from tbe duty of delivering ber to him at New York. His refusal to execute tbe contract gave tbe Government tbe option to rescind it.

Judgment affirmed.  