
    DANIEL SHEA v. THE UNITED STATES.
    [No. 16145.
    Decided December 1, 1890.]
    
      On the Proofs.
    
    The claimant under a written contract furnishes to the defendants a vessel, the defendants paying ¡$67 a day. While under their exclusive control she collides and is rendered temporarily unfit for service. The claimant furnished another vessel, for which he pays $55 a day. The defendants refuse to pay him more. He now claims the contract price for the time when his vessel was undergoing repairs.
    
      I.Where the action is upon a charter party to recover the contract price for a period during which a vessel was undergoing repairs rendered necessary by a collision, it is not one sounding in tort, nor is the claim one for demurrage.
    II.A charter party is not required to he in any technical form nor even in writing, and it may he proved, in whatever way it has heen made.
    III. Where a vessel is to he under the exclusive control and management of the charterers, they become owners for the time and responsible for casualties then occurring.
    IV. Though the owners agree to repair a vessel in case of accident, the charterers must pay the contract price for the time so consumed, if they were in possession and control of the vessel at the time of the accident.
    V. Where a vessel is injured while under the control of the charterers and the owners substitute another vessel, they may recover the stipulated wages of their own vessel without reference to the wages paid by them for the substitute.
    
      The Reporters’ statement of the ease:
    The following are the facts of this case as found by the court:
    I. The claimant and the defendants (by Colonel Hodges, a deputy quartermaster-general of the Army) entered into a written contract, of which the following is a copy:
    Articles of agreement entered into this twenty-eighth day of May, eighteen hundred and eighty-sis, between Lieut. Colonel Henry 0. Hodges, deputy quartermaster-general, United States Army, of the first part, and Daniel Shea, of the county of New York, State of New York, of the second part.
    “ This agreement witnesseth that the said Lieut. Col. Henry C. Hodges, deputy quartermaster of U. S. Army, for and in behalf of the United States of America, and the said Daniel Shea, for himself, his heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, as follows, viz:
    “Article 1. That the said Daniel Shea shall provide and furnish to the party of the first part, whenever called upon during the fiscal year ending June thirtieth, eighteen hundred and eighty-seven, such vessels of the descriptions hereinafter given as may be required to take the place of the vessels now performing service for the U. S. Army between New York. City and Governors Island, New York; Governors Island and Sandy Hook; and New York Etarbor generally, respectively, the steamer Atlantic, Ordnance, and Chester A. Arthur; that the vessels furnished as aforesaid must each have an engineer and fireman and conform to tbe following conditions, viz: The steamer to take the place of the Chester A. Arthur must be of about the size and the character of the Chester A. Arthur, and the steamers to take the places of the Atlantic and Ordnance, respectively, must have the capacity for freight and passengers and be of the size and character of the steamer Janies Bowen; and that all the vessels, furnished must be staunch, in first class order in every respect, well equipped, and conform fully to the requirements of the law.
    “ It is further agreed that the fuel required by said vessels so furnished while in service, under this agreement, shall be supplied by the Government, and that this contract shall commence on the first day of July, eighteen hundred and eighty-sis.
    “And it is further agreed that the party of the second part shall furnish, when required, the remainder of the crew, consisting of a captain, a mate, two deck hands, and a fireman.
    “Article 3. That it is expressly agreed and understood that this contract shall be noneffective until an appropriation adequate to its fulfillment is granted by Congress and is available.
    “Article 4. That for and in consideration of the faithful performance of the stipulations of this agreement the party of the second part shall be paid, at the office of the disbursing quartermaster, U. S. Army, at New York City, as follows : The sum of sixty-seven (67) dollars per day'for each vessel employed, including the engineer and the fireman, when employed by the day, and the sum of ten (10) dollars per hour for each vessel employed, including the engineer and the fireman, when employed by the hour; and for the said remainder of the crew, when required, the sum of thirteen dollars per day.
    “Article 5. That in case of failure of the said party of the second part to comply with the stipulations of this contract, according to the true intent and meaning thereof, then the party of the first part shall have the power to hire vessels elsewhere in open market at the sole expense and charge of the party of the second part.
    “Article 6. Neither this contract nor any interest therein shall be transferred by the said Daniel Shea to any other party or parties, and any such transfer shall cause the annullment of the contract so far as the United States is concerned; all rights of action, however, for any breach of this contract by the said Dauii 1 Shea are reserved to the United States.
    “Article 7. No Member of or Delegate to Congress, nor any person belonging to or employed in the military service of the United States, is or shall be admitted to any share or part of this contract) or to any benefit which may arise herefrom.
    “article 8. This contract shall be subject to approval of the Quartermaster-General U. S. Army.
    
      “ In witness whereof the undersigned have hereunto placed their hands and seals the date first hereinbefore written.
    “Article 2 stricken out before execution.
    “ Henry G. Hodges, [l. s.] “Deputy Quartermaster-General, U. S. A. “ Daniel Shea. [l. s.]
    “ Witnesses:
    “Hugh Sieberg.
    “George F. Otis.
    “Approved:
    “S. B. Holabird,
    “ Quartermaster-General U. 8. Army.
    
    “ June 9,1886.”
    II. After the making of said contract, and before the expiration of the fiscal year (June 30,1887), upon being called upon by the Quartermaster’s Department therefor, the claimant provided and furnished a vessel called the James Bowen, then stanch, in first-class order in every respect, well equipped, and conforming fully to the requirements of the law, and with such part of the crew as the claimant was required by the contract to furnish, and the same was accepted and used by the defendants.
    III. On the first day of January, 1887, while in the service and under the exclusive management and control of the Quartermaster’s Department, and having an unlicensed captain or pilot, said vessel was damaged in a collision with a ferryboat, in consequence of which she was necessarily laid up for repairs until March 2, of the same year, when on the next day she resumed work. The collision occurred during a fog, and the supervising inspectors, on an investigation, found that.it was accidental, and was not due to inattention, unskillfulness, or lack of precaution on the part of the pilot. The cost of repairs was paid by the claimant. During the time said vessel was undergoing repairs the claimant, being called upon therefor, furnished another vessel under said contract, for which he paid $55 a day. During said time the engineer and fireman of the claimant were on the vessel watching and superintending the work.
    IV. About April 1, 1887, Deputy Quartermaster-General Hodges forwarded to the Quartermaster-General a voucher, of which the following is a copy:
    
      
      The United States to Daniel Shea, Dr.
    
    Place and date. Dols. Cts.
    N. Y. City, April
    1,1887.For hire of the steamer James Bowen, from January 1st to March 2d, 1837, inclusive, 61 days, at $55 per day.$3,355.00
    Engineer and fireman, 61 days, at $7.00 per day.. 427.00
    3,782.00
    “ The vessel was hired under contract of Daniel Shea, dated May 28,1886. She was damaged in collision on January 1, 1887, while in the service and under the charge and exclusive management of the Quartermaster’s Department. The period covered by this voucher is for the time the James Bowen was necessarily laid up for repairs of said damage. The contract rate for the boat, is $67 per day, including an engineer and fireman, but, in view of the Bowen being laid up, the rate is reduced to $55 per day for the boat and $7.00 for the engineer and fireman during the period. The engineer and fireman were on the boat supervising the work and watching the boat, as is customary in such cases.
    “Appropriation for fiscal year ending June 30,1887.
    “ I certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service, and are borne on my report of persons, &c., for the month of-.
    “Henry C. Hodges,
    “ Deputy Q. M. General, U. 8. A.”
    Said voucher was accompanied with a recommendation that authority be granted to pay the same, accompanied with the following explanations:
    “The facts are as stated herein. The James Bowen was under charter to the Quartermaster’s Department, and, as the Quartermaster-General is aware, was, on the 1st of January, 1887, on one of her trips between the Battery and Governors Island, run into by the Brooklyn ferryboat Atlantic.
    “ The James Bowen was at the time under the exclusive control and management of the Government, being manned and navigated by employés of the Quartermaster’s Department.
    “ In the collision the James Bowen was very badly damaged, and while undergoing repairs her owner was compelled to hire a vessel in her stead. The within claim is made for re-imbursement of that expense. I regard it as perfectly proper, reasonable, and just, and therefore recommend.its payment.
    “Henry O. Hodges,
    “ Deputy Q. M. Gen., U. 8. Army, Depot Quartermaster.
    
    
      On the 6th of April, 1887, the Quartermaster-General called upon the deputy quartermaster-general for further particulars and received the following reply:
    “ New Yoke Depot oe the
    “ Quartermaster’s Department,
    “ Houston Street, Cor. Greene,
    “ New York City, April 28th, 1887.
    “ To the Quartermaster-General V. 8. Army, Washington, D. G.:
    
    
      " General: I have the honor to acknowledge receipt of your communication of the 6th inst. in relation to the claim of Dan’l Shea, and in reply beg to report as follows:
    “ 1. The damage done to the steamer James Bowen was as follows: Hull and decks stove in and otherwise damaged, boiler shifted and connections and machinery, etc., broken, and the vessel opened below the water line, so that she had to be run ashore to save her. The cost of repairing her was $7,312.34, of which the Government is asked to pay but $686.69. The bills for this amount ($159.69, $100.00, and $427.00) are forwarded herewith.
    “The last-named is attached to the formal voucher for the hire of this boat. The explanation of the item for $100.00 is given in paper marked No. 2. I regard the bills as just and proper, and recommend that they be paid.
    “ 2. I personally visited the James Bowen shortly after she was docked and while the work on her was in progress. She was run into on January 1st, 1887, and at once laid up for repairs, The work was pushed forward and completed on the 2d of March, and she resumed her work in place of the quartermaster’s boat Atlantic on the morning of March 3d, 1887. She was necessarily laid up for the required repairs, therefore, from January 1st to March 2d, 1887, inclusive, as I believe from the affidavit of the party who performed the bulk of the work, which is inclosed herewith, and also frequent inquiries made by me while the work was in progress.
    “3 and 4. The James Bowen was under charter to and employed by the Quartermaster’s Department at the time of the collision under the contract of Daniel Shea, dated May 28th, 1886. Immediately after the collision the contractor was called upon to furnish another vessel under this contract. He furnished the steamer E. H. Webster, one of his own boats. That vessel, although a very staunch, good boat, was not entirely satisfactory for the service, and, upon search, the Joseph Stick-ney was found and put on the duty by the contractor. The E. H. Webster was on duty from January 1st to 4th, inclusive, and the Joseph Stickney from January 5th to March 2d, 1887. During this time the James Bowen was undergoing repair of the damage done in the collision. As the James Bowen was at the time wholly in charge and under the management and control of the Quartermaster’s Department, I was under the opinion, and am still, that the department was bound to save the contractor from loss on account of the damage and to pay for her time under the contract until restored to her owner upon completion of the repairs.
    “ With this in view she was reported on my report of persons and articles for January at the contract rate, viz, $67 per day, including an engineer and a fireman. Upon further reflection, however, I concluded to allow for the Bowen’s time only at the rate which her owner was obliged to pay for the vessel put in her stead. One of these, the E. H. Webster, was his own, and was in service, as before stated, from January 1st to 4th, and the other, the Joseph Stickney, was hired by him at $55.00 per day, and was in service from January 5 to March 2d. So the matter
    stands thus:
    “ The E. JEL Webster was in service from Jan’y 1st to 4th, and the Joseph Stickneyfrom January 5th to March2d, and has been paid for. The James Bowen was laid up from January 1st to March 2d, inclusive, and her time has not been paid for, but I recommend that her owner be paid at the rate of $55.00 per day for the vessel. I inclose herewith a voucher covering the time, as well as the item for an engineer and a fireman, embraced in Shea’s claim in article 1 of this letter. If the Quartermaster-General desires, supplementary reports of persons and articles covering this service will be prepared and forwarded immediately.
    “Yery respectfully, your ob’t servant,
    “Henry C. Hodges,
    “ Lieut. Gol. and, Deputy Q. M. General, U. S. A.,
    
    “ Depot Quartermaster.”
    May 17,1887, the Quartermaster-General transmitted the claim and voucher to the Third Auditor of the Treasury for adjudication and settlement by the accounting officers.
    Y. November 29,1887, the Auditor reported against allowing and paying the claim on the alleged ground that “ the boat was wholly under the control of the owner and his agents and employés, and if the injury had been due to the negligence of any one connected with the management of the James Bowen, and not due to the ferryboat (with which the collision occurred) the United States could not be charged with that negligence.” The Second Comptroller on the same day concurred with the Auditor in disallowing the claim, and it has not been paid.
    <M
    
      Mr. Franklin H. Mackey for the claimant.
    
      
      Mr. FelixBrannigan (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    1. The rule is familiar that where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwitstanding accident or inevitable necessity, because he might have provided against it by his contracts. (P-urdine v. Jane, Aleyn, 26, 27; Bulloole v. Dounnet, 6 T. B., 650; Hill v. Sughrue, 15 M. & W., 253; Balcer v. Hodgson, 3 M. & S., 267; Ford v. Cotesworth, L. B. 4 Q. B., 134.)
    The claimant recognized his obligations when he furnished another vessel to take the place of the damaged one and by repairing the latter at his own or insurer’s expense, and the defendant fulfilled its obligations by paying the 'claimant the value of the service rendered by the substituted vessel. So that whether we view this matter as a suit on a charter party or on a contract of bailment for hire, of which this court may take jurisdiction, the defendant has complied with its stipulations.
    The defendant did not in said contract undertake any responsibility beyond that which may be implied by the law of bailment. (Ciarle v. United States, 95 IT. S., 542.)
    No misuser of the vessel or neglect in its management is alleged in the petition; and it is a well-known principle that if the thing hired is lost or injured by casualty without fault or neglect of the bailee the latter is not liable for the loss or injury.
    2. If the petition presented a cause for relief in a court of admiralty this court would still be without jurisdiction of the matter set forth.
    In such case, it would be a suit for the recovery of consequential damages growing out of a marine tort. (The TorJcsMremcm, 2 Hagg., 30 note; The Betsey Caines, ib.; The Floides, 3 Hagg., 367.)
    But the allegations are not sufficient to set forth such a cause of action. It is not alleged that the collision or damages complained of were caused by any unskillfulness, neglect, or misuser of the defendant, and the alleged charter party contains no covenants in respect to damages or detention. And even though we should admit as evidence the papers and correspondence offered for claimant, they would not make out a case ex contractu against the defendant.
    
      Besides, it would appear from the report of the United States local inspectors of steam vessels that these officials after full investigation of the collision failed to discover any “inattention, unskillfulness, or lack of precaution on the part of the pilots in charge of either boat,” and they “ exonerated both pilots from blame.”
    It is a well-known doctrine that “ When marine damages are occasioned by unavoidable accident, or where there is a reasonable doubt as to which vessel is to blame for a collision, the loss or consequential damages ensuing therefrom must be borne by the party upon whom the loss or damages have fallen.” (The Morning Light, 2 Wall., 556; The Bbenezer, 2 W. Bob., 206; The Virgil, ib., 205.)
    And see the four possibilities stated bydjord Stowell in his judgment in the Woodrop-Sims, 2 Dod., 85.
    If there be fault or want of care on both sides, or without fault on either side, neither party can sue the other. Kent (5th ed.), 231. .
    Hence the rule as to restitutio in integrum, upon which the claimant seems to rely, can not be applied in the case at bar, in the absence of proof that the Bowen was to blame for the collision.
    In the case at bar as the defendant did not enter into any -covenant to repair or to pay for detention of the vessel hired, or to insure her in any manner, and as she was at all times properly managed, any loss or damage consequent of the collision must be borne by her owner.
    3. The remedy of the claimant, if any, can not be given by this court, whether it be by an action at law or proceeding in admiralty, for the suit would be clearly one of tort, either for trespass on the case or marine damages.
    If the former, the proof of wrong or neglect is on the claimant. (Tourtellot v. Bosebrook, 11 Met., 460; Parker v. Adams, 12 Met., 415; Adams v. Inhab. of Carlisle, 21 Pick., 146; Bice v. Montpelier, 19 Vt., 471; Kennard v. Burton, 12 Ship., 39; Moore v. Mayor of Shreveport, 3 La. Ann., 645; Thorogood v. Bryan, 8 C. B., M. G-r. & Scott, 114; Luck v. Seward, 4 Car. & P., 106; Luxford v. Large, 5 ib., 421; Sills v.Brown, 9 ib., 601; Davis v. Garrett, 6 Bin., 716; Butterfield v. Forrester, 11 East, 60; Tracy v. Swartivout, 10 Pet., 81.)
    And the same rule applies to marine torts. In either case the action can not be maintained against the Government. The injured party has his remedy against the vessel or the master or the person who caused the injury. (The Amiable Nancy,. 3 Wheat., 546; The Atlantic and Ogdensburg, 1 Newb., 156; H. M. 8. Inflexible, Swabey, 204; The Athol, 1 W. Bob., 381; The Sebe, 2 W. Bob., 530; The Blade Prince, 1 Lush., 568; The Clarence, 3 W. Bob., 285; Nicholson v. Mouneey, 15 Bast, 384; The Rhode Island, 2 Blatch., C. 0., 113.)
    But this is not a marine cause. The Bowen was not engaged in the business of commerce and navigation between ports and places in different States; she was merely acting as a ferryboat, and collided with another ferryboat in a harbor. (United States v. Ferryboat Pope, 1 Newb., 256; United States v. James Morrison, ib., 253; Jones v. The Goal Barges, 3 Wall., jr., 53; Bucldey v. Brown, ib., 202; Genessee Chief v. Fitzhugh, 12 How., 443; Thadcarey v. The Farmer of Salem, Gilp., 524; Harris v. Nugent, 3 Or. 0. 0., 649.)
    The action, statements, and opinions of the deputy quartermaster-general, set forth in the petition and the exhibits thereto, are not evidence of any liability on the part of the defendant. The case attempted to be set up in the petition being one of damages for a supposed tort, the matter was as entirely outside of the jurisdiction of the War Department as it is outside the jurisdiction of this court. No question of law has been more firmly decided by the courts than the proposition that a claim for unliquidated damages is not a subject for settlement in the executive branch of the Government.- (Garmidc et al. v. United States, 2 O. Ols. B., 126; Winnisimmet Go. v. United States, 12 O. Ols. B., 319 ; MeEee v. United States, 12 0. Ols. B., 504, 556; Lippitt v. United States, 14 O. Ols. B., 148; Green et al. v. United States, 18 O. Ols. B., 93 ; Power v. United States, 18 O. Ols. B., 263, 275; McClure etal. v. United States, 19 0. Cls. B., 25, 179; Dennis v. United States, 20 O. Cls. B., 121; Hart v. United States, 16 O. Cls. B., 459; Dunbar v. United States, 19 0. Ols. B., 493; Brannen v. United States, 20 O. Ols. B., 223; Pitman et al. v. United States, 20 O. Ols. B., 254; State of Illinois v. United States, 20 0. Ols. B., 342; Hodge y. United States, 20 O. Ols. B., 354; Pope v. United States, 210. Ols. B., 52; Dennis Y. United States, 23 O. Ols. B., 324; United States v. lAppitt, 100 U. S. B,, 663; Ford Y. United States, 116, U. S. B., 213; 
      United States v. McDougalVs Adm’r, 121, U. S. R,, 89; Finn v. United States, 123 U. S., 231.
    Opinions of the Attorney-General: Yols. iy., 327, 627 ; V, 29 j yi, 516; xm, 164; xiv, 24,183; xy, 39.
    Until the passage of the act of March 3,1887 (24 Stat., 505, chap. 359), the jurisdiction of claims against the United States for unliquidated damages was alone vested in the Court of Claims, and before the establishment of that court there was no remedy in such cases except by an appeal to Congress. (Rev. Stat., sec. 951 — set-off; United States y. Barlcer, 1 Pa., 157; United States v. Lent, 1 Pa., 417; UnitedStates v. Martin, 2 Pa., 68; United States y. Collier, 3 Bl., C. C., 326; _United States y. Duval, Gilp., 356; United States v. Ingersoll, Crabbe, 135; United States y. Gil'es, 9 Cr., 212; Walton v. United States, 9 Wheat-., 651; United States y. Robeson, 9 Pet., 319; United States V. Rawhins, 10 Pet., 125; Emerson?s heirs y. Hall, 13 Pet./ 409; United States y. Buchanan, 8 How., 83.)
    In face of these decisions it must be held that the attempt to settle the damages complained of by means of the alleged voucher of the quartermaster was. ultra vires, and that no implied contract arises from that action or upon the alleged voucher.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant entered into a written contract wherein it was agreed that he should provide and furnish to the defendants, whenever called upon during the fiscal year ending. June 30, 1887, such vessels, of the description specified, as might be required to take the.place of other vessels then performing service for the United States Army between New York City and Governor’s Island; and that the vessels furnished should be staunch, in first-class order in every respect, well equipped, and should conform fully to the requirements of the law. The defendants, on their part, agreed to furnish the fuel required for the vessel, and

that for and in consideration of the faithful performance of the stipulations of this agreement the party of the second part [the claimant] shall be paid, at the office of the disbursing quartermaster, U. 8. Army, at New York City, as follows: The sum of $67 per day for each vessel employed, including the engineer and fireman, when employed by the day, and the sum of $10 per hour for each vessel employed, including the engineer and the firemen, when employed by the hour; and for the said remainder of the crew, when required, the sum of $13 per day.”

Within the time specified by the contract the claimant, being so called upon, provided and furnished a steam-vessel called the James Bo wen,which was accepted by the defendants’ officers, and was thereupon put into the public service. While so employed under the exclusive management and control of said officers, having a captain or pilot not licensed as required on all vessels excepting public vessels of the United States, vessels of other countries, and canal-boats (Revised Statutes, §§ 4400, 4438), said steamer collided with a ferry-boat and was so damaged that she was laid up for repairs sixty-seven days, during “which time the claimant provided and furnished another vessel for which he paid $65 a day. The cost of repairs was paid by the claimant, and the vessel was put into the public service again upon their completion, and within the fiscal year specified in the contract.

The claim is for the contract price of $67 a day for sixty-one days the vessel was undergoing repairs.

The industrious counsel for the defendants insists that the case presented is one sounding in tort, for consequential damages resulting from a collision, of which neither this court nor the accounting officers have jurisdiction,-and he cites numerous authorities on the subject of liability in cases of collision. He also urges that the damages complained of are in the nature of demurrage, on which subject he also refers to many adjudicated cases.

In our opinion the case is not one sounding in tort and there is no question of demurrage 'involved. The action is simply one of contract founded upon a written agreement between the parties, of which the court has undoubted jurisdiction, and is to be determined upon the true interpretation of the written instrument which is in the nature of a charter party, and is subject to the rules applicable to an instrument of that character.

It is true that the written contract declared on has not all the usual formalities of a charter-party, and is not technically drawn as such. A charter-party is not required to be in any technical form nor even in writing, and it may be proved in whatever way the parties choose to make it. (Parsons on Maritime Law, chap, vm, section I.) Like all other contracts, its meaning, force, and effect, when a controversy arises, are to be determined by the court upon the language employed in connection with the subject-matter, the surrounding circumstances, and the acts of theparties. (Gibbons Case, 15 C. Cls. R., 174; Otis Case, 19 C. Cls. R., 467; and Otis Case, 20 C. Cls., R., 315.)

We have no doubt that it was the intention of the parties that the defendants should take such vessels as they required the claimant to provide and furnish and to keep the same to the end of the fiscal year specified, or at least for such time during that year as the exigencies of the Government required the vessels. After acceptance of the vessel by the defendants they could not have surrendered her and freed themselves from further liability until the end of the fiscal year, or at least until her use was no longer required during that time, and the claimant could not have withdrawn her during the same period. The defendants became the owners of the vessél for the time being. This is clear from the fact that they assumed the exclusive management and control of her, and they put her back into the public employment as soon as the repairs were completed and during the fiscal year mentioned in the contract.

In Leary v. The United States (14 Wall., 607) Mr. Justice Field, speaking for the Supreme Court, said:

“ There is no doubt that under some forms of a charter-party the charterer becomes the owner of the vessel chartered for the voyage or service stipulated, and consequently becomes subject to the duties and responsibilities of ownership. Whether in any particular case such result follows must depend upon the terms of the charter-party considered in connection with the nature of the service rendered. The question as to the ’ character in which the chaterer is to be treated is, in all case, one of .construction. If the charter-party let the whole vessel to the charterer with a transfer to him of its command and possession and consequent control over its navigation, he will generally be considered as owner for the voyage or service stipulated.”

When a vessel under charter is laid up for repairs in consequence of damage by collision the rights and liabilities of the parties as between themselves has been long well settled. The owner must pay the cost of repairs and the charterer must pay the contract price for the time the vessel is undergoing repairs, provided he is in possession, command, and control over its navigation, as in the present case, at the time of the collision

As early as 1809 in Haveloch vs. Geddes (10 East., 555), which was an action upon covenants in a charter-party to pay for the hire of a vessel, Lord Ellenborough, in his opinion, laid down the rule of law thus :

“ The question, then, is whether, because the plaintiff has undertaken to keep the vessel tight, etc., the defendants have the right to deduct anything out of the freight they have to pay in respect of the time which may be taken up in making good such defects as may occur during the period for which the vessel is hired % And we are of the opinion they are not.
“From the accidents to which ships are liable it was in the ordinary course of things to expect that this ship might want repairs in the course of her voyage; and when the defendants were making their bargain they should have stipulated to deduct for the" time which might be exhausted in making those repairs if they meant to make that deduction.
“ Without such a stipulation we think the true construction of the charter party is, that whilst those repairs are going on the ship is to be considered as in the defendants’ service, and the defendants liable to continue their payments.”

This decision has been frequently cited with approval by other courts, and the rule has been adopted and followed by the Second Comptroller of the Treasury as applicable to cases in which the United States are the chartérers. (2 Digest of Decisions of Second Comptroller, secs. 1019, 1020.)

In the case of Leary vs. The United States, above cited, the defendants (The United States) were held not liable for the payment of the per diem after the collision and while the vessel was undergoing repairs, because by the contract the hiring was by the day at “ $250 a day for each-day that it might be retained under the charter.” No time was specified directly nor by inference for the continuation of the hiring, the vessel was not in the exclusive management and control of the defendants when the collision occurred, and the owner resumed possession and took her from Port Royal, in South Carolina, to New York, where the repairs were done, and she was no longer required nor retained by the defendants under the charter.

The voucher drawn and returned by the deputy quartermaster general and transmitted to the accounting officers by the Quartermaster’s Department allowed only $55 a day, because that was the price paid by the owner for use of another vessel to take the place of the James Bowen while that vessel was laid up for repairs. That might be the proper measure of compensation if this were an action for damages suffered by the claimant in consequence of the acts of defendants, but it is an action on a contract and the claimant is entitled to receive the contract price, which is $67 a day. What he paid for the use of a substitute boat has no more to do with the measure of damages than has the cost to him of the injured vessel.

The claim seems to have been rejected by the accounting officers on the alleged ground that “ the boat was wholly under the control and management of the owner and his agents.” This was a mistake of fact now clearly established by the findings. Had the' real fact been then made to appear we may assume that those officers would have adhered to the former decisions of their offices.

Judgment will be entered for the claimant for the sum of $4,087.  