
    GOODWIN’S CASE. Asahel Goodwin, appellant, v. The United States, appellees.
    (6 Court of Claims R., p. 146; 17 Wallace R., p. 515.)
    
      On the claimants Appeal.
    
    
      The Quartermaster Department charters a schooner, the marine risk to he home hy the owner, toho has to keep her tight, staunch, and strong, and in every respect fit for merchant-service. By stress of weather she is forced to put into Saint Thomas. The master hypothecates the vessel and cargo. The botlomry-bond is not paid, and vessel and cargo are libeled upon arrival in the port of Neio York. It is held hy the circuit court that the district court has no jurisdiction to detain a cargo belonging to the Government, and accordingly it is discharged from the marshal’s custody. The Quartermaster Department agrees with the owner on a valuation of the cargo and apportionment of the obligation of the bond, cmd pays the agreed proportion. While the vessel is in the marshal’s custody, the cargo remains on hoard, and the quartermaster requires the master to report daily. After the decree dismissing the libel upon the cargo, the vessel is unloaded and discharged. The Quartermaster Department refuses to pay the agreed wages for the vessel for the time she was in the custody of the marshal. The owner brings his suit to recover up to the time of the vessel’s discharge. The court below decides that the vessel’s detention under the libel comes within the obligation of the owner to keep her in every respect fit for merchant-service. Judgment for the defendants. The claimant appeals.
    
    Where a vessel is in the custody of the law under the libel of a court of admiralty, she is in nowise in the employment of her charterers nor subject to their control, nor are they liable for her wages at the agreed rate, though she is not formally discharged by them until after her release from the libel. Therefore the Government is not liable for the pef-dicm wages of a chartered vessel, though the cargo remains on board during the period of detention, and though the quartermaster at the port of detention requires the master to report to him daily.
    
      
      The Reporter'1 s statement of the case:
    In addition 'to tbe facts, which are stated in the opinion of the Supreme Court, the court below found, at the request of the claimant, the following specific facts:
    That the United States and the claimant, at the port of New York, assented to a new valuation of the cargo, to be made by the ordnance officers of the United States, and the Saint Thomas valuation of the cargo was reduced to $74,000. That the claimant offered to pay his or the vessel’s proportion of the general average upon the New York valuation, provided the defendants would pay their proportion, which the defendants declined to do. The proportion of the average due upon the cargo was afterward paid by the United States on claimant’s application to the accounting officers of the Treasury in 1868. That from the time of the arrival of the Othello at New York until her discharge, August 7,1866, the master of the Othello was required to report daily to the quarter-m'aster at the port of New York, and did so report. That the indorse-ments made upon the charter, under the date of August 7 and following, were made by the quartermaster, after the discharge of the Othello, without the knowledge or assent of the claimant, while the contract of charter-party was loaned to him for a wholly different purpose. The owner of the schooner Othello resided in York, Me. The vessel was detained at Saint Thomas, undergoing her repairs, forty-four days. The actual cost of the repairs upon the vessel in Saint Thomas was less than $3,000, and the balance of the amount for which the bottomry-bond was given was made up upon the expense of unlading and lading the cargo, storage, commissions, &c. The defendants claimed to have the sole and exclusive possession of the ship and cargo in New York pending the proceedings in admiralty, and the defense to,the suit was assumed by the United States, under instructions for that purpose from the War Department, through the proper channel, to the district attorney, General Yan Yliet, on two occasions, pending the suit, telegraphing to the Quartermaster-General for instructions in relation to the Othello, she being under charter at $50 per day; and the Quartermaster-General declined to give any instructions, but referred him to the district attorney for advice and instructions in the premises.
    
      
      Mr. T. J. D. Fuller, for tbe claimant, appellant :
    The controversy in New York, and the detention of the vessel by the United States, turned solely upon the question whether the vessel became, by the terms of the charter, a vessel of the United States. The Secretary maintained and kept possession of the vessel, to test the question in the courts of the United States. He could not do this without claiming and controlling the vessel. If he had discharged her, he would have defeated his own suit. When the Government is called upon to perform its contract, it should not deny, in the face of the acts of its agents, the use and control of the vessel. The vessel, for the one hundred and fifty days for which pay is claimed, was tight, staunch, and strong, and the officers performed the duty required of them, flow, then, can pay be avoided %
    
    There was no misconduct on the part of master or owner during this time; but it may be said, as it was in the court below, the master did not deliver his cargo, and therefore the United States are not liable on the charter-party. The answer is, for non-delivery of cargo, the master held a lien, to secure him for his liability for mouey expended in and about the preservation of the cargo. If this was paid or secured, he was ready and willing to deliver cargo, and retained the possession of it for that purpose only.
    The case was one for claim of general average upon the part of the owner, and the master had a lien for its payment even as against the United States. In cases of general average the master and owner may retain goods of the shipper until their share of the contribution toward average is either paid or secured. (Abb. on Slip., p. 3, chap. 8, § 17; 2 Barn. & Ores., 805-811; 3 Barn. & Aid., p. 523; 6 Rob., p. 383; 2 Browne’s Adm. Law, p. 201.) The same lien exists in regard to goods belonging to the United States. (United, States v. Wilder, 3 Sumner’s Rep., p. 308; The Jane, 1 Dod. Rep., p. 461; Pritch-ard’s Adm., p. 90.)
    If the Government finds it necessary and convenient, in the discharge of its proper functions, to make use of the instrument of a bill of exchange, it has repeatedly been ' held, it became subject thereby to the law-merchant, with all of its legal incidents. (15 Peters’s Rep., p. 377; 2 How. Rep., p. 711.)
    
      By parity of reason, as well as by weight of authority, if the United States enter into a contract of charter-party, or make a maritime contract, why should it not be governed by maritime-law applicable to such contracts 1 To this effect held Lord Stowell and Judge Story in the cases cited in Dodson and Sumner’s Reports. The vessel might as well have been discharged on the 1st of March as on the 7 th of August. How the United States can work out the problem, that they may retain the vessel and control the conduct of the master, and then refuse to pay for the use of the vessel, remains to be seen. The claimant bases claim upon the contract for so long a time as the United States War Department required the use of the vessel for any purpose. The alleged mistake of the master constitutes no defense, to the claim and suit. The detention of the vessel in New York arose, not from the mistake of the master, but from the mistake of the Secretary of War, in retaining the use and possession of the vessel, to litigate in the courts the question whether she was a United States ship of war, and whether the Government was her owner. Judge Nelson decided that the hire and use of the vessel was a matter of contract resting in covenant.
    
      Mr. Assistant Attorney General Sill for the United States* appellees:
    The material facts in this case are very simple. The vessel was let to the United States under a charter-party, whereby the United States were to bear the war risk and the- owners the marine risk. And, under it, there can be no doubt? that the owner retained possession and control of the vessel, and that the charter was not a demise of it to the United States. (Reicl v. The United States, 7 O. 01s. R., p. 196 j Leary v. The United States, 8 O. Gis. R., p. 31. The Othello, 5 Blatch. 0. 0., 342.)
    It is plain that the circumstances which forced the Othello to put into Saint Thomas were within the marine risk which the owners had assumed. (Morgan v. The United States, 8 O. 01s. R., p. 18;) Leary v. The United States, ibid. p. 31; Rey-nold v. The United Statés, 8 G. Gis. R., p. 55.
    The claimant seeks to recover compensation for the one hundred and fifty days during which the vessel was detained on ac■count of the process in admiralty on a bottomry-bond which did not bind the Government, and which was rendered necessary in respect of the vessel because of perils of the sea, of which the claimant had assumed the risk. Her detention resulted ■from no default of the Government, and the Government was not bound to aid in her redemption.
   Mr. Justice Swayne

delivered the opinion of the court:

The question presented for our consideration is, whether the United States are liable to the appellantfor the hire of theschooner Othello, at the rate of $50 per day, for the time for which, according to the findings of the Court of Claims, such payment has not been made.

The charter-party out of which this controversy has arisen is dated on the 26th of August, 1865. It stipulates, among other things, (1) that the schooner was then, and while in the service •of the Government should be, keptu tight, stanch, and strong,” at the cost of the owners, and that the time lost by any deficiency in these respects should not be paid for by the United States} “ the war risk to be borne .by the United States, the marine risk by the owners.” (2) The United States agreed to pay $50 per day for the time the vessel was engaged in their ■service.

On the 17th of November, 1865, pursuant to the charter-party, the schooner left Wilmington, in North Carolina, for the port of New York, laden with ordnance and ordnance stores. On her way she sprung a leak, and was compelled to bear away and put into the port of St. Thomas, in the West Indies, for repairs. There the captain executed a bottomry-bond, bind-ingthe vessel and cargo, and amounting, principal andinterest, to $17,399.71. Having- received the necessary repairs, the vessel left St. Thomas on the 26th of January, 1866, and reached New York on the 13th of February ensuing. There, the bot-tomry-bond not being paid at maturity, the vessel and cargo were libelled in-the district court, and on the 10th of March they were attached on that proceeding. The district court ■dismissed the libel. An appeal was taken to the circuit court. That court affirmed the decree as to the cargo but reversed it as to the vessel, and finally decreed against the latter for the ■amount due on the bond. The vessel was held by the marshal under the attachment from the 10th of March until the 30th of

July. She was discharged from the service of the United States on the 7th of August.

A claim was made against the United States in general average. It was adjusted and paid to the satisfaction of the owners. All theper-cZim compensation claimed has also been paid, except that for the time the vessel was in the hands of the marshal. Whether the claim for general average, and that for the time lost by the vessel in deviating from her course, going to St. Thomas, there awaiting repairs, and going thence to her port of destination, were not covered by the marine risk she had assumed, are questions not before us, and which we need not, therefore, consider.

The claim of per-diem compensation for the time the marshal held the vessel is the only ground of controversy between the parties, and it is the only subject open for examination in this case.

During that time she was in the custody of the law; she was in nowise in the employment of the United States nor subject to their control. She did not, and could not, render them any service while thus held. •

The United States had not stipulated to pay in such a contingency. On the contrary, the detention was incident to the marine risk, which the owners had expressly assumed. It was a fruit of that peril. The United States are not blameworthy, and not responsible. The contract puts all such burdens upon the shoulders of the owners. Those burdens cannot be shifted and thrown upon the other party.

The judgment of the Court of Claims is affirmed.  