
    MOTT’S CASE. John W. Mott v. The United States.
    
      On the Proofs.
    
    
      During the iear a steamer is chartered by the Quartermaster Department and used on the James Diver as a dispatch-boat. The charter provides that the “ marine risk sliall be borne by the owners.” During a dense fog, which constitutes an extraordinary peril, the Provost Marshal-General orders the steamer to carry important dispatches immediately. The master and engineer are absent. The second engineer and pilot protest against the service as extra-hazardous, but the Provost Marshal-General, having received information that the enemy is about to turn the line of the army, decides that a military exigency requires that the steamer must carry the information at no matter what cost, and must immediately undertake the trip. On the voyage the Officers exercise care and prudence, but the steamer is wrecked on a sunken canal-boat, then drifting down the river. The loss is caused by the unusual darkness and thickness of the fog. The owner brings his suit for his damages.
    
    I. Where the Government charters a vessel for military purposes in time of war, and by the charter-party the owner assumes the marine risks,” that term includes all marine risks, ordinary and extraordinary. Therefore an owner, whose vessel was wrecked by collision in a fog, cannot recover, though she was compelled by the Provost Marshal-General, in a military exigency, to undertake the voyage amid extra-hazardous circumstances, and in the absence of her master and engineer, and against the remonstrances of her other officers.
    
      II. A contract for the charter of a vessel, as a military transport, in time of war, is not to he construed as a charter for ordinary purposes in time of peace. The parties must he deemed to have contemplated the particular service contracted for, and the probable and possible exigencies that might arise. A military exigency may require extraordinary as well as-ordinary marine risks to be incurred by a vessel thus chartered.
    
      The Reporters1 statement of the case:
    The court found the following facts:
    I. On the 9th day of August, 1864, the claimant, being the-owner of the steamer Washington Irving, entered, by his. agent, George Olney, into a written agreement, or charter-party, annexed to and forming part of the petition, and the-steamer entered into the service of the United States under the charter-party. The agent had been authorized by the owner-to make arrangements and sign charter-parties for the steamer,, and she had been placed by the owner entirely under the control, of the agent.
    II. Immediately after entering the service, the steamer then, with the knowledge and assent of the agent, was assigned to special service under General Patrick, Provost-Marshal General of the Army of the Potomac, as a dispatch-boat. On the 26th of December, 1864, she was ordered by General Sharpe, assistant provost-marshal, to proceed, during a dense fog, from City Point, up the James River, to Bermuda Hundred, with important dispatches, upon dangerous service. The second engineer and pilot of the steamer, acting in the absence of the master- and’ engineer, protested against the service as extra-hazardous duty, but General Sharpe having received information that the rebels were about to turn the line of the Army, decided that the military exigency required that the steamer must carry the information at no matter what cost, and that she must immediately undertake the trip. Thereupon the officers of the boat proceeded to comply with the order. On the voyage, and while-the officers of the boat -were exercising ordinary care and prudence, the steamer was wrecked on a sunken caual-boat, which was then drifting down the river sideways and struck the steamer in her port bow. The steamer at the time was proceeding slowly and keeping a lookout, but the lookout could not see the caual-boat because of the fog. The loss was caused by the unusual darkness and thickness of the fog, which constituted an extraordinary peril. The assistant provost-marshal, General Sharpe, was the officer having immediate control of the dispatch-boat, and authorized to direct her movements.
    
      Mr. Thomas J. Durant for the claimant:
    The owner of the vessel had no control over her, as she was attached to the Provost Marshal-General’s department and under his orders, with a Government pilot on board. This distinguishes the case from Leary’s, (14 Wall., p. 607.) The special service, when the accident occurred, was compulsory, and out of the usual line of employment, since the vessel at the time was at the entire risk of the Government. The question does not turn upon the law of insurance, but upon that of the responsibility of one who has in his control the property of another, and by his fault causes damage to it. (2 Hilliard on Torts, 610, 611.) The rule of an insurance case has no applica-Dilifcy here, admitting, for the sake of argument, that an insurance case it is, as the vessel was not as good after repairs as before. The vessel ceased at no time to be in the employ of the Government while undergoing repairs; she returned to the service, without a new charter, when the repairs were finished, and by the terms of the contract of charter-party she was to remain in the service of the Government until returned, in good condition, to her owner at Washington. Daily pay was therefore due her owner during the time of her repairs. The loss of profits during repairs is clearly an element in the legal estimate of damages.
    
      Mr. Alexander Johnston ( with whom was the Assistant Attorney-General) for the defendants:
    On the 9th day of August, 186-1, the claimant chartered to the Government his steamer Washington Irving, for as long as she might be required by the War Department. The claimant .agreed to keep the vessel “tight, staunch, strong, andtoett and sufficiently manned.” The United States assumed the war risk, and the claimant the marine risk. She was a small vessel, and used as a dispatch-boat.
    The accident to the steamer resulted from a marine risk. She was engaged in precisely the business for which'she was lured, carrying dispatches; and she was hired to „carry dispatches in time of war, when there was no time to wait for good weather. The charter-party was made with reference to the existing state of affairs. In fact, the state of war caused the chartering of the vessel. The claimant violated his contract to keep the vessel “ well and sufficiently manned.” She was without a captain or an engineer. DeGroat, a young man of twenty years, second engineer, was in charge. The fact that a pilot was on board, whose wages were paid by the Government, has no significance. There was necessarily a pilot on board; and the Government had agreed to pay “ all pilotage and port-charges.” The term “ Government pilot,” so freely used in this and similar cases, means nothing more than a pilot paid by the Government, or who holds a license as a pilot. So far as relates to the claim for repairs, there has been a settlement. The claim was presented to the proper Department, and was settled upon prineiples which have long (if not always) governed that Department, and the claimant received payment according to the settlement. As a matter of law, nothing .should have been allowed him.
   Boeing, J.,

delivered the opinion of the court:

By the charter party the owners assumed the “ marine risks;” and these, for this class of cases, are of two kinds, viz, ordinary and extraordinary; and they are distinct enough to be the ¡subjects of express and distinctive stipulation, as they were in Leary’s Case, (14 Wall., p. 607.) In that case the United States assumed expressly “ the extraordinary marine risks,” and the ¡Supreme Court decided as follows: uThe term extraordinary is there used to distinguish an unusual risk, which the vessel ■might be compelled to run by the order of the Government, from those risks which would be covered by an ordinary marine policy, ¡and which might be expected to arise from the service an which the vessel was engaged.”

By this decision ordinary risks are one thing, and extraordinary risks are another; and the owner may, as in Leary’s Case ■contract as to ,the one or the other; and if he intends to confine his .contract to one or the other he must specify which, and if he does not.so intend to confine his contract, but to assume both, he may undoubtedly do so, and that intent will be necessarily implied, if liis language includes both, by specifying both, or by using terms which in their proper signification include both. And that this charter-party does, for it used the words “ marine risks,” and these, in their proper signification, include all marine risks incident to the service, because they specify or except none. And for this reason the same words “ marinerisks,” in a charter-party for a freighting voyage in the merchant service, include all marine risks incident to that service.

And a contract is to be construed in reference to its own subject-matter and circumstances, and not in reference to the different subjects-matter and circumstances of other contracts. And this contract was made with the Government in time of war and to be performed in it; and by the arrangement between the parties the boat was to be employed in carrying military dispatches flagrante hello. This is a very different service from that of a freighting-vessel in a time of peace, on a contract between individuals 5 and therefore it is not obvious why the words in a contract for the one service should be ruled by their meaning in a contract for the other service and confined to its different circumstances. The parties here must have contemplated the particular service they contracted for and its probable and possible exigencies ; and it was certain that a military exigency might require extraordinary as well as ordinary risks to be incurred for the due performance of the service; and if in such case they used words which in their proper signification covered both, the legal implication would seem to be that they meant to include both.

But however this may be, the owners assumed “ the marine risks,” and the proximate cause of the injury was a marine risk, and a usual marine risk incident to navigation, for it was a sunken canal-boat floating in the river. And in the case of Morgan v. The United, States, (14 Wall., p. 531,) the Supreme Court, after stating that a marine risk was “ the proximate cause” of the loss, said: “We cannot proceed further, and consider whether the war did not create the exigency which com-X>elled the employment of the vessel.” And in that case the vessel was required by a military order to cross the bar a second time after she had struck once, and in a high wind and sea, and against the judgment of her master and of the pilot on board. And it was held that, as the proximate cause of the loss was a marine risk, and the owners had assumed the marine risks, the defendants were not liable.

And we think the case last cited determines this case on all its points; the proximate cause of loss was a marine risk, incurred by a military command, and before suit the United States had paid for a part of the consequences of the injury sustained, as they did here,- and the decision of the Supreme Court decided that that did not make the United States liable in the suit.

And in Morgan’s case there was a pilot on board, as there was here.

In the facts found it is stated as follows: “ That the steamer was, on the occasion of the accident laid in the petition, in charge of a Government pilot, provided by the United States.” And it was so stated because such was the language of the witness. But we understand by it that the pilot was provided by the United States to act in his function of pilot, and not otherwise, and because this dispatch-boat was to be used on pilot-ground, and in a service requiring constant and instant readiness, and with no purpose whatever of taking the boat from the actual possession of its owners and their master; and if, because of the temporary absence of the master , and his first engineer, the pilot was in any other than his professional charge, it was as representing them, and not as taking possession of the vessel for the United States, for which he had no authority from the United States.

The Supreme Court held in Leary'’s Case that stipulations in a charter-party that the general owners should keep the vessel in good condition and receive goods at the request of the United States, and refuse to receive goods without their assent, &c., furnished conclusive evidence that the possession and control of the vessel had not passed to the Government, but had been retained by the owner. There are the like stipulations in the charter-party in this case, and we think their effect is in no way modified by the facts found.

Nott, J., was al suit when this case was decided.  