
    (5 Court of Claims R., p. 252; 13 Wall., p. 636.)
    John H. Kimball et al., Appellees, v. The United States, Appellants.
    
      On the defendants’ Appeal.
    
    
      A contract, contained in a Mil of lading, is entered into by a quartermaster and the master of a vessel at Philadelphia, April IS, 1865, for carrying a freight of coal to Fort Poyal at so much a ton, allowing twenty-one days for discharging, with $100 a day for demurrage, andan agreement at the foot that the Government assumes the war rislc till discharged. On arrival at Port Poyal the master tenders delivery of the cargo to the quartermaster who is consignee. FFe refuses to receive it, and orders the vessel to Key West; the master refuses to go, insisting that he has performed Ids contract; the quartermaster compels Jiim to proceed ; the master protests that he will hold Che Government liable and objects to sailing immediately, the tide being too loio. The quartermaster refuses delay and a Government tug talces the vessel in toiv. She is injured in crossing the bar, is towed bach, and after demurrage is unladen at Port Poyal. She is then towed to Boston by the Government and repaired by the owners. They seelc to recover the demurrage and damages for the injury. The Government denies the jurisdiction of the Court of Claims, which court decides — 1st, that the Act 4th July, 1864, employs three terms to designate those acts of the Army which are. not the subject of judicial redress, viz: “ destruction,” “appropriation,” “ damage2d, that there having been no seizure of the vessel nor eviction of the owners, master, or crew, there was no “ appropriation ” but merely an impressment or enforced■ service which entitled the owners to compensation and ■re-imbursement under the Acts 3d March, 1849, and 3d March, 1863, (9 Slat L., p. 414 ; 12 id.,p. 736;) 3d, that the injury to the vessel sprang from a marine casualty suffered while in the semce of the Government, andwas not “ damage ” intended or done by the Army within the meaning of the Act 4th July, 1864. Judgment for the claimants. The defendants appeal.
    
    I. Whoro a hill of lading provides that the Government shall pay demurrage if the cargo be not discharged within a specified time, the owners may recover in an action in the Court of Claims, although the court be re-> strioted from jurisdiction as to a part of the demand set up ill the same petition.
    
      II. Where a military officer with power to enforce his commands compels tlm master of a vessel to sail for another port with Government freight, and the master, after objecting and resisting, yields compulsory obedience, the vess'ol remaining all the time in possession of the master and crew, it is an impressment of the vessel, and not an “ appropriation by the Army” within the meaning of the Act 4th July, 1864, (13 Stat L., p. 381.)
    III. Whero a northern vessel during the rebellion was impressed in a southern port by a military officer against the consent and remonstrance of the master, who only yielded compulsory obedience, and while thus in the service of the Government was injured by being towed on a bar at low tide, (also against the remonstrance of the master,) the owners have no judicial remedy. The injury must be deemed “damage” “by the Army engaged in suppression of the rebellion” within the moaning of the Act 4th July, 1864, (13 Stat. L., p. 381,) restricting the jurisdiction of the Court of Claims, and not a marine casualty occurring under an implied contract; notwithstanding that the vessel was employed by the Government under contract to carry freight to the port where she was impressed and was seeking to discharge it at the time of the impressment; and notwithstanding that the owners are entitled to be paid for her services andre-imbursed for her injuries under the Acts 3d March, 1849, and 3d March, 1863, (9 Stat. L., p. 414; IS id., 736.)
    
    IV. The Act 4ih July, 1864, (13 Stat. L., p. 381,) declares that the jurisdiction of the Court of Claims shall not extend to claims growing out of the “ appropriation of” “ or damage to any porperty by the Army,” “engaged in the suppression of the rebellion,”- and provides for the adjustment and payment by officers of the Executive Departments of claims for supplies “ actually furnished to the Army ” “ by loyal citizens in States not in rebellion-;” the Act (list February, 1867, (14 Stat. L., p. 397,) declares that the previous act shall not be construed to authorize the settlement of claims for supplies taken or furnished when the claim “ originated ” “ in a State or part of a State declared in insurrection the Joint De-solution 23cl December, 1869, (16 Stat. L., p. 368,) declares that the Act 1867 shall not he construed so as “ to debar the settlement of claims for steamboats or other vessels” “impressed into the military service” “in States or parts of Slates declared in insurrection,” “provided the claimants ivere loyal,” “and ivere residents of loyal States,” “ and such” “ vessels were in the insurrectionary districts by proper authority.” The three acts are in pari materia. The purpose of the last was not to restore the jurisdiction of the Court of Claims, but to authorize a settlement of such claims by.Executive action.
    V. This case is distinguishable from the case of Dussell, (ante,) audit is not the intention of the Supreme Court here to impugn anything said in that case.
    
    
      
      Findings of the Court of Claims.
    
    
      ■ III. The bark Annie Kimball arrived at Port Royal with the freight .specified in the bill of lading on the 4fch May, 1865, and immediately tendered the freight to the consignee, the defendants’ quartermaster. The quartermaster, on the 6th May, refused to receive the same, and ordered the master of the bark to proceed with it to Key West, and report to the quartermaster at that port, which additional service the master of the Annie Kimball refused to perform, and notified the quartermaster that the owners would hold the defendants liable for all damages if such service was enforced. On the 8th May the master of the Annie Kimball was compelled to undertake the additional voyage, and was notified by the quartermaster that in case of refusal he would be taken from' the vessel and another master be substituted and sent in command of the vessel. The master then protested at being compelled to sail at the time specified by the quartermaster for the reason that it was not safe, as the tide had ebbed about two hours, and there would not be water enough on the bar to take the vessel safely over. The delay requested was refused. The vessel was taken in tow by a Government tug. She struck violently on the bar off Port Royal by reason of the low water, it being near the ebb, and sprung a leak. Being severely injured, she was towed back and beached to prevent her from foundering.
    IY. After the injury to the vessel, she was detained by the defendants’ delay in discharging her freight at Port Royal until the 24th June, 1865, the detention being owing to no fault of the master or crew.
    Y. The vessel was then further detained at Port Royal by her injuries received as aforesaid, and by the necessity of having a tow and steam-pump in her disabled condition from and including the 25th June until the 11th July. She was then towed by the defendants to Boston, which port she reached on the 18th July, I860, when her crew was discharged. The damages suffered by tbe claimants for the loss of tbeir vessel’s service and her expenses was the sum of $100 per day, making the sum of $5,300.
    YI. The claimants paid for the repairs of the bark at Boston the sum of $7,604.41, and this amount was expended strictly in making good the vessel’s injuries.
    
      Mr. Solicitor General Bristow and Mr. Assistant Attorney Genrol Sill for the appellants.
    
      Messrs. Ckipman, Peck and Surant for the claimants.
    
      
       It is to he regretted that this part of the legal question is not noticed in the opinion of the court, although in the court below the case turned on the implied contract created by the Act 3d March, 1849.
    
    
      
       The distinguishing circumstances seem to bo that in Russell’s Case there was impressment without injury to the vessel, and the action was for her services under an implied contract; in this case impressment followed by injury to the vessel, and the action was for damages for the injury. The statutory question, in the former suit was one of “ aj>xwopriation ” hy the Army ; in this; one of “ damage.” In neither case did the court notice the Act 1849, which has been supposed to establish an implied contract in cases-of impressment and to indicate the measure of damages therefor.
    
   Mr. Justice Swayne

delivered the opinion of the court:

This is an appeal by the United States from the judgment of the Court of Claims.

On the 18th of April, 1865, the United States contracted with the bark Annie Kimball to convey a cargo of anthracite steamer coal from Philadelphia to Port Boyal, in South Carolina. The United States agreed to pay freightage “ at the rate of $6.25 per ton, and demurrage $100 per day, allowing twenty-one days for discharging.” In the margin of the bill of lading was the following memorandum: Freight and demurrage payable only on the certificate of the quartermaster that the cargo has been received in good order.”

The vessel arrived at Port Boyal on the 4th of May, 1865. The master immediately tendered the delivery of the cargo to the quartermaster, who was the consignee. He refused to receive it, and ordered the master to proceed with the vessel and cargo to Key West. This the master refused to do, and notified the quartermaster that the owners would hold the United States responsible for damages if the order was enforced. The master protested against being, compelled to sail immediately, upon the ground that the state of the tide would render his departure then unsafe. Permission to delay was refused. The vessel was towed by a Government tug. She struck violently on a bar off Port Royal, was severely injured, and sprung a leak. She was towed back and beached to prevent her from foundering. She was detained at Port Boyal, by the delay of the authorities of the United States in discharging her cargo, until the 24th of June. The quartermaster certified that the cargo was received in good order, and that the detention of the vessel was owing to no fault of the master or crew. The vessel was unavoidably further detained at Port Royal until the 11th of July. She then left, a G-overnment tug towing her, for Boston, where she arrived on the 18th of that month. Her crew were thereupon discharged.

The twenty-one days specified in the contract for the delivery of the cargo expired on the 24th of May. The Court of Claims found that the damages which the appellees had sustained by the loss of the vessel’s service, and her expenses, was $100 per day, making an aggregate of $5,300, and that they had expended at Boston, in repairing the injuries to the vessel, the sum of $7,604.41.

Before the commencement of this suit the United States paid the amount due, according to the terms of the contract, for freight, but refused to pay anything more.

The Court of Claims held that the appellees were entitled to recover the sums above mentioned, making an aggregate of $12,904.41, and gave judgment accordingly.

So far as the thirty days’ demurrage, extending from the 24th of May to the 25th of June, is concerned, the judgment is. clearly correct. The certificate of the quartermaster brings the case within the terms of the contract. The appellees were as-much entitled to this compensation as to the amount stipulated to be paid for freight. The right to both rests upon the same foundation, and the appellants might as well have refused to pay the latter as the former. This item amounted to the sum of $3,000.

The allowance of the residue of the damages, and of the-amount expended for repairs, involves other considerations, and requires a separate examination.

The order to the master to proceed to Key West was certainly not authorized by; the contract. That imposed no such obligation. No rate of freight for this voyage had been agreed upon, and no such stipulation had been entered.into. The contract expired upon the delivery of the cargo at Port Royal. It is silent as to anything further. It may be safely assumed that nothing beyond this was in the contemplation of either party when the vessel left Philadelphia. The Court of Claims held that the conduct of the quartermaster was not an appropriation, but the impressment of the vessel. The duress, the major: vis, the resistance of the master and his compulsory obedience,, are clearly developed in the findings in the record.

We think the view of the court below upon this subject was-the proper one 5 but did that entitle the appellee to recover for the damages and repairs here under consideration?

The first section of the Act July 4th, 1864, declares that the-jurisdiction of the Court of Claims shall not extend to “ any claim against the United States growing out of the destruction or appropriation of, or damage to, any property, by the Army or Navy, or .any part of the Army or Navy, engaged in the suppression of the rebellion, from the commencement to the close thereof.” The second and third sections i>rovide for the adjustment and payment, through the Quartermaster-General, the Commissary-General, and the Third Auditor of the Treasury, of' all claims of loyal citizens in States not in rebellion, for quartermaster stores and subsistence furnished to the Army. (13 Stat.. L., 381.)

The Act February 21st, 1867, (14 Stat. L., 397,) declares that the act of 1864 shall not be construed to authorize the settlement of any claim for supplies taken or furnished for the use of the armies of the United States, nor for the occupation of, or injury to, real estate, nor for the appropriation or destruction of, or damage to, personal property, by the military authorities or troops of the United States, “where such claim originated during the war for the suppression of the southern rebellion in a State or part of a State declared in insurreetionP

The Eesolution of the 23d of December, 1869, (16 Stat. L., 368,) provides that the act of 1867 shall not be so construed as “to debar the settlement of claims for steamboats or other vessels, taken without the consent of the owner pr impressed into the military service of the United States during the late Avar, in States or parts of States declared in insurrection, provided the claimants Avere loyal at the time their claims originated, and remained loyal thereafter, and Avere residents of loyal States, and such steamboats or other vessels were in the insnrrectionary'districts by proper authority.”

The act of 1864 took away the jurisdiction of the Court of Claims as to all the cases there specified. The act of 1867 forbade the payment of the claims which it described, while the resolution permitted the settlement of those within the category which it laid down and the qualifications prescribed in the proviso. The Eesolution refers expressly to the act of 1867, and that act to the act of 1864. They are in pari materia, constitute a common contest, and must be construed together. This case, in the aspect of it we are considering, is clearly within the body of the resolution. Whether it is also within the requirements of the proviso is not disclosed by the findings in the record. They are silent upon that subject. If the appellees can bring themselves within both they will be entitled to be paid, but not, we think, by the instrumentality of the Court of Claims.

The purpose of the resolution, obviously, was not to enlarge or restore the jurisdiction of that court, but to remove the bar which the act of 1867 had been held to create. That bar affected not the court, but the officer of the Army and of the Treasury, whose duty it would otherwise have been to adjust and liquidate such demands. When the restriction was removed, the jurisdiction and authority of those officers, and not of the court, were revived. The phrase “ settlement,” used in the resolution, has reference to executive and not to judicial action. The context of the two acts and the resolution point clearly to this construction of the- latter. The remedy of the appellees, if they are entitled to any, must be sought at the hands of the executive or legislative department of the Government. The judicial department is incompetent to give it.

In our opinion the Court of Claims erred in taking jurisdiction of either of the claims outside of the contract. The United, States v. Bussell, heretofore decided at this term, is clearly distinguished by its controlling facts from the present case. It is not intended to impugn anything said by the court in that case.

The judgment of the Court of Claims is reversed, and the cause will be remanded with directions to enter a j udgment in conformity to this opinion.  