
    LEARY’S CASE. Daniel D. Leary and others v. The United States.
    
      On the Proofs.
    
    
      A charter-party provides that "in case said vessel, while executing the order of the party of the second part, should he compelled to run any extraordinary marine risk,” then the party of the first part is to he indemnified. While at the wharf in Port Poyal she is ordered to hack out by the military harbormaster. While complying with this order she strikes a sunken, mooring-anchor, the existence of which is known to the captain, though he is ignorant of Us exact location. By coming in contact with this the steamer is sunk and sustains injury.
    
    A provision in a charter-party for indemnification, in case the vessel, “ while executing the orders” of the charterer, “ should he compelled to run any extraordinary marine risk,” does not cover an injury received while in port in hacking out from a wharf, in obedience to the order of the defendant’s harbor-master, by running on a sunken mooring-anchor, the existence of which is known to the captain, though of its exact location he is ignorant. The risk against which the charterers insured was a risk extraordinary in kind, and not in degree. The term " extraordinary ” here has not the technical meaning of a policy of insurance.
    
      Mr. If. P. Olwpman and Mr. T. J. Pur ant for the claimants:
    The petitioners, on the 19th of November, 1862, by au instrument in writing, at Port Boyal, in South Carolina, did hire to the United States their steamship Mattano.
    The United States bound themselves to pay for the use o the steamship, $250 for every day said ship might be retained under the contract.
    The United States bound themselves, in case they should compel the steamship to run any extraordinary marine risk, to indemnify the petitioners either for a total or partial loss, as tjie case might be.
    On the 12th of May, 1863, the steamship was sunk in Port Boyal harbor.
    The harbor-master, an officer of the Quartermaster’s Department, ordered the captain to move out to make room for the passenger boat, General Hunter. To this the captain objected, as the tide was very low, and a considerable breezeblowing from the north-northwest. The harbor-master rejoined by a peremptory order to remove, in endeavoring to execute which, the steamship ran upon an anchor, which tore her open and she went dowrn at once.
    This was a mooring-anchor, and had been placed there by Captain Saxton, the United States quartermaster. There had been a buoy attached to it, but it had been washed away in a gale of wind, and there was nothing to mark the place of the anchor. When the water was at high tide, there was no danger to boats passing over it.
    As soon as the steamship sank, the United States quartermaster sent for Orlando Bennett, who was there under orders from the Secretary of War with a wrecking boat, to relieve distressed vessels and remove obstructions. The quartermaster ordered Bennett to remove the steamship, as she was lying-very much in the way. Bennett lifted her off the anchor, picked up the anchor, took the steamship to the St. Helena side, put her. up on the blocks, and then his connection with her, as representing the United States, ceased.
    The cost of the service of raising the steamship was paid by the United States.
    The officers of the United States at Port Boyal considering that the United States were not liable for the consequences of the disaster, did not convene a board to assess the damages, as provided for in the charter-party.
    No notice, as required by the contract of charter-party, was' given by the United States to petitioners, of desire to put an end to the contract.
    The steamship was idle from May 12,1862, to December 10, 1863, making two hundred and fourteen; days, at $250 a day, which makes a total of $53,500.
    The difference in value between the boat before the disaster and after she was refitted, was $12,000.
    
      Whafc are, under these facts, the legal relations between the petitioners and the United States, and what are the liabilities, if any, of the latter ? -
    These relations are the same as if the parties were both private individuals. (United States v. The Bank of the Metropolis, 15 Peters, p. 392 ; Leming’s Gase, 1 0. Cls. R., p. 190; Jones’ Gase, ib., 383; Gurtis’ Gase, 1 0. Cls. R., p. 152.)
    By the expressions of the contract, “ the whole of the said vessel was to be at the sole use and disposal of the United States,” who furnished only the coal, everything else, crew and provisions, being furnished by the petitioners, who were to have no control whatever either of the movements, the employment, or the lading of the vessel; the petitioners completely parted with their possession during the term of the contract. (Abbott on Shipping, p. 365, x 289.)
    Thus the contract was not one merely for the transportation of goods, but a letting of the ship — a contract which, in law, makes the charterer the owner during its continuance. (Brink-water v. Brig Spartan, 1 Ware’s Reports, pp. 157 and 158; Christie v. Lewis, 2d Brod. & Bing., 428, (6 Johnson’s Com. L. Rep., p. 183;) Grade v. Palmer, 8 Wheaton, pp. 632, 633; 3 Kent’s Com., p. 138; McIntyre v. Brown, 1 Johnson, p. 239.)
    The United States were liable to all the duties, responsibilities, and losses incident to that character.
    The express provision of the contract would alone fix the liability of defendants in this case, as it says : u In case the vessel, while executing the orders of the United States,- should be destroyed or damaged, by being compelled by the United States to run any extraordinary marine risk,” the petitioners were to be indemnified.
    What was meant by “being compelled?” Simply obeying an order; for, as the contract placed the defendants in possession, every order was a compulsion.
    ' When the water was low, as it was when the order to move was given, there was danger of collision, and it was unusual to back out in low water.
    The risk was caused by their own negligence. The sunken anchor was at first properly indicated by a buoy. To have failed to place such buoy on it first would have been negligence, making the guilty party liable in damages. The neglect to restore it when washed away was equally a fault, entailing similar liability.
    
      “ Negligence consists in tbe omitting to do something which a reasonable man would do.” (1 Hilliard on Torts, page 122; Thompson and others v. The Northeastern Bailway Company, 2d Best & Smith, p. 106; Eng. Com. Law Eeports, yoI. 110, p. 105.)
    Where the danger was created by the wrongful act of the defendant, they would be liable, even had petitioners voluntarily exposed themselves to it. (See Clayords v. Bethiciclc, 11th Adolphus and Ellis, N. S., p. 439; 64 Eng. Com. Law Rep., p. 437.)
    “ The amount which would have been received had the contract been kept, is the measure of damages, if the contract be broken.” [Alder v. Keighley, 15th Mason & Welsby, p. 120,' (119.) See ffadley v. Buxendale, 9th Welsby, Harlstour & Gordon, Excheq. Rep., p. 354; see Pym v. G. N. Bailway Co., 2d Best & Smith, 110 Eng. Com. L. Rep., p. 763.)
    
      The Assistant Attorney General for the defendants :
    There is no evidence in this case which shows that this claim has at any time been presented to the proper, or indeed to any, executive department for payment. No notice or information whatever was communicated to the officer whose duty it would have been to convene the board of survey provided for in the charter-party.
    The evidence clearly shows that the master of the Mattano knew that the “ anchor had been lost,” and that he did not make any objection to attempting to back out on that account.
    As to the law of the case—
    I. The United States did not become general owners for the voyage, under this charter, and did not even hire the room for the accommodation of the crew, or the stowage of the cables and provisions. (The Phoebe, Ware R., 268; McIntyre v. Bonne, 1 Johns., 238; ffooe etal. v. Groverman, 1 Crunch, 214.)
    They assumed merely the liabilities of insurers against an extraordinary marine risk, incurred by compulsion of their officers.
    II. The disaster, in this case, was not caused by a danger which was without an ordinary and within an extraordinary marine risk. (Barrow v. Bell, 4 Barnwell & Cresswell, 736.)
    
      
      (a.) Had tbe master attempted to back out of bis own free motion, bis action would not have been negligent or unskillful, so far as danger from tbe anchor was involved. Accordingly, under an ordinary insurance, tbe underwriters would have been liable for tbis loss; tbis even under tbe rule of law most favorable to tbe underwriters, wbicb rule lias subsequently been enlarged in favor of tbe insured in England and in the United States. (JBuslc v.' The Royal Exchange Ass. Company, 2 Barn. & Aid., p. 82; Columbia Ins. Co. v. Lawrence, 10 Peters, 517, 518 ; Waters v. Louisville Ins. Company, 11 Peters, 220, 224.)
    ÍII. Tbe charter-party provided only one method by wbicb damage to tbe steamboat should be ascertained, of wbicb method tbe owners neglected to avail themselves. They never, even unseasonably, applied for a board of survey. They thus deprived tbe charterer of “the only mode of ascertaining” tbe amount of damage known to tbe law. (Arnould, p. 842.)
    IV. Tbe hiring of tbe Mattano terminated with her sinking. It was merely “ for tbe purpose of plying,” &c.; and when she became incapable of performing tbis purpose, it ceased. (Abbott on Shipping, 526, (406;) Lewis et al. v. The Elizabeth and, Jane, Ware’s Beports, 36; The Eaton, ib., 508; Reed’s Case, 4 0. Gis. B., p. 132.)
    V. Tbe extent of indemnity for wbicb the special agreement of tbis charter-party made tbe United States liable is limited, by tbe terms of tbe provision relating thereto, to tbe value of tbe vessel. (Arnould, p. 686; also, p. 290. See, also, p. 842.)
    
      Mr. Eurant in reply:
    Marine insurance is only for extraordinary risks; for ordinary risks tbe insurers are not liable. Here tbe risk was extraordinary within tbe well-settled meaning of that term in policies of insurance, and tbe defendants are liable under all tbe decisions. (2 Sumn. B., p. 197; 3 Wash. B., 159; 8 Peters, B., 557.)
    On the question of ownership, be cited 4 M. & S. B., p. 288.
   MilligAN, J.,

delivered tbe opinion of tbe court:

Tbis case arises on a charter-party entered into on tbe 19th day of November, 1862, by and between H. E. Borckner, agent of D. D. Leary, owner of tbe steamboat Mattano, (then lying in tbe harbor of Port Boyal, South Carolina,) and Captain C. E. Fuller, assistant quartermaster in the United States Army. The original petition stands in the name of Daniel D. Leary, Arthur Leary, and George Leary; the latter two of whom, as alleged in the amended and supplemental petitions, were at the date of the charter-party, and ever since, joint and equal owners of the steamer with the petitioner, D. D. Leary ; and judgment is therefore sought for the equal benefit of all.

The vessel went into the service of the United States on the day on which the charter-party bears date, and she has been paid at the chartered rates — $250 per day up to the 3d of May, 1803.

The claim, as set forth in the petition, is rested on the injuries which resulted to the vessel while moving, under the orders of the quartermaster, at Port Eoyal, expenses of repairs, loss of wages, &c.

The damages claimed may be more specifically set out as follows:

Costs and charges for repairs... $19,847 15

Expenses of master, mate, engineer, and crew.... 2,790 00

Seduction in value of vessel. 20,000 00

Loss of earnings from May 12 to December 10,1863.. 53,000 00

95,637 15

The facts necessary to a decision of this case are found to be:

On the 19th of November, 1862, a charter-party was regularly entered into between the claimant, D. D. Leary, and C. E. Fuller, quartermaster in the United States Army, which contains the ordinary stipulations found in similar charters of affreightment, except as hereinafter shown. The vessel was to be kept by the party of the first part “ tight, stanch, well-fitted, tackled, and provided with every requisite, and with men and provisions necessary,” and to be at the sole use and disposal of the party of the second part during the existence of the charter, for which she was to receive $250 per day while she was retained under the charter.

Added to these ordinary stipulations, it was further agreed : “In case said vessel, while executing the order of said party of the second part, should be destroyed or damaged by a hostile force from any quarter, or by being compelled by the party of tbe second part to run any extraordinary marine risk, then the party of the first part is to be indemnified; that is to say, in case of loss, her yalue is fixed at $26,000; and in case of damage, the amount is to be ascertained by a board of survey, which shall be convened on her arrival at Port Royal, South Carolina, or other friendly port, at the expense of the said party of the second part.”

The vessel went into the service of the United States on the day of the date of the charter-party, and shortly before the disaster complained of she had come up from Fort Pulaski to Port Royal for commissary stores, and had been lying in the harbor for two days in a gale of wind. The waters were perfectly familiar to the captain, and on the 12th of May, 1863, the acting harbor-master ordered the Mattano to make room for the General Hunter. The captain objected to going out,' as the tide was very low, and a considerable breeze blowing from the north-northwest. To this objection the harbor-master replied, “he had been there too long not to obey orders; that he knew the General Hunter must have the berth, and to back out.” In executing this order the vessel struck on a sunken mooring-anchor, a short distance from where she was lying in the harbor. There was no unskillfulness in managing the boat. The captain says: “ I knew there was an anchor somewhere there, but I supposed we were a long way outside of it. When I first went to Port Royal this anchor had a buoy attached, but it got adrift, and there was nothing at that time to indicate where the anchor was, and there had not been for a long time. I had no idea that the anchor was where it-was, and I supposed when the boat struck it had struck a wreck. The anchor was deeply imbedded in the sand, and the fluke ran through the bottom of the boat. She filled and went down in fifteen minutes.”

It is further shown that the anchor had been placed there by order of Captain Saxton, quartermaster, to moor the large ocean steamers to, and the winds and tides had carried off the buoy that marked its locality.

At the time the accident occurred the tide was low, but the wind was blowing very little.

. Soon after the wreck the captain and crew on board abandoned the vessel, and refused to have anything more to do •with her.

Captain Moore, the acting quartermaster, immediately thereafter sent the Derigo, a wrecking steamer in the service of the government, to raise her. , After two days’ unsuccessful effort, she was ordered off, having injured the cabin and hull of the Mattaho in attempts to raise her.’ Soon after, Captain Bennett was sent there by the United States quartermaster, who succeeded in lifting the wreck, at a cost of $12,000 to the government. He floated her into quiet water and made slight repairs on her hull, and afterward she was taken to Beaufort, and there temporarily repaired by her owners, and thence to Brooklyn navy yard, where she was converted into a tug-boat, and afterward as such again placed in the service of the United States, at $100 per day, under a new charter-party dated the 2d of May, 1864.

There is no evidence that any part of the claim set up in the petition has ever been paid, or even presented to the proper department for payment. The wreck occurred on the 12th of May, 1863, and the repairs on the boat were completed on the 10th of December, 1863.

The question, under the facts of this case, presented for decision, is confined to very narrow limits. The whole case turns on the construction to be given to the clause in the charter-party providing for indemnity, in case the vessel is compelled to run “any extraordinary marine risk.” What does this phrase mean? Are we to give it a technical interpretation, or such as its plain language imports? Certainly, the latter is the rule. The charter is the law of the case, and the light in which it was understood by the contracting parties is always the true rule of its, interpretation. The charter-party declares that the vessel was chartered, “ for the purpose of plying in the harbor of Port Boyal, South Carolina, or any other service that the party of the second part may designate.” But if the vessel, while executing the orders of the party of the second part, should be destroyed or damaged by a hostile force from any quarter, or by being compelled by the party of the second part to run any extraordinary marine risk, then the party of the first part shall be indemnified.

It cannot, we think, be doubted, that the risk against which the government undertook to indemnify the owners, was a risk extraordinary in hind, and not in degree. The vessel was to be employed in the waters of Port Boyal, where she would be comparatively safe from the extraordinary perils of the sea, and the dangers of the war. But if she were ordered into any other service, in which extraordinary marine risk was inherent and inseparable from the service, such, for instance, as among the Florida reefs, or in southern and blockaded rivers, or exposed to rebel batteries, the United States were bound to indemnify the owners for any damage or loss the vessel might sustain while executing these orders in such, dangerous navigation.

' The exposure to which she was subjected by the order of the harbor-master, to back out of her berth in the harbor of Port Boyal, involved no such extraordinary marine risk as is contemplated in the charter. There is no evidence to convince us that the state of the tide or the condition of the wind presented any serious obstacle to the execution of the order. The anchor on which the vessel was wrecked was the only difficulty, and its existence was as well known to the captain as to the harbormaster. It might have been negligence in the quartermaster in suffering it to remain in the harbor without a buoy to mark its locality, but the government is not liable for the negligence or misfeasance of its officers ■, nor would it have excused the underwriters from liability on an ordinary marine policy.

The disaster was a usual marine disaster, which is covered by ordinary marine x>olieies of insurance, and not such extraordinary marine risk as is contenrplated by the charter-xmrty; and if the owners neglected to x>rotect themselves against such perils, by insurance, the law makes them their own insurers, and they must bear the loss. They cannot east their own negligence on the shoulders of the government, and comx>el it to bear losses it never assumed.

The petition must be dismissed.  