
    JOHN A. DONALD v. THE UNITED STATES.
    [No. 21484.
    Decided April 4, 1904.]
    
      On the Proofs.
    
    The charter party provides that the war risk shall be borne by the United States and the marine risk by the owners, and “ the time lost in consequence of any deficiency in these respects, and in making repairs to said vessel not attributable to the fault of the United States or its agents, is not to he paid for 6y the United States.” The vessel, when ordered, is “ lo proceed, icith the first good opportunity and without delay, from the port of llobile, Alabama, or elsewhere, direct to such ports and places as ordered by the proper officer of the Quartermaster’s Department, and deliver the cargo in good order and condition * * * to the quartermaster or quartermasters, or the duly authorized agent or agents of the Quartermaster’s Department, at the ports and places to which said vessel is ordered to proceed.” She is laden with fresh water, and, in charge of the owner’s master and crew, is directed to accompany the transport fleet conveying the army to Cuba. On arriving with the fleet off Siboney she is ordered to supply transports on the high seas, and during a strong wind and rough sea. The master protests against the service upon the ground that it will damage and endanger his vessel. The quartermaster, being present, insists, saying, *■ It can not be helped,” “ This has got to be done,” and assuring the master that the Government will restore the ship to her previous condition. There is no other source from which water can be obtained. The master obeys, exercising all possible skill, care, and precaution ; but the Kanawha, striking against the iron transports, is seriously injured. She is repaired at the cost of the owner, and there are negotiations with the officers of the Government as to reimbursement therefor.
    
      I.Where the owner declines to receive a vessel until repaired by the charterers, and the local quartermaster is instructed by the Quartermaster-General to agree with the owner as to the cost of repairs not due to marine risk and report the same, it does not confer authority upon him to settle the claim for damages; and such an agreement is not binding, though the owner accepts the vessel without repairs on the faith of it.
    II.Where a vessel is equipped and chartered for the purpose of supplying troops with water and agrees to deliver the water at such places as ordered, it will be presumed that the parties mutually intended the water to be supplied to soldiers on transports wherever they might be, at sea, if necessity required.
    III. Where the charter party contains no stipulation that water from a water boat shall be delivered only in the calm of the sea or in harbors, it will be presumed that such a stipulation was designedly omitted and that the water is to be delivered where wanted, although delivery be attended with risks imposed by a choppy sea.
    IV. Where the owners agreed to bear the marine risk and the charterers the war risk, injury to the vessel in the above circumstances can not be held to be a war risk.
    V.Where the charter provides that the charterers shall make such repairs as were the result of their own fault, injuries to the vessel in delivering her cargo can not be attributed to them. Nott, Oh. J., dissenting.
    
      The Reporters’’ statement of the ca.se:
    The following are the facts of the case as found by the court:
    I. That the claimant, John A. Donald, was the owner of the steamship Kanawha in 1898, the vessel being tight, staunch, strong, and well and sufficiently manned, tackled, appareled, and ballasted, and furnished in every respect fit for merchant or transport service', and being classified by the American Shipmasters’ Association as Al-J for five years, being in perfect condition for sea service, with guards around her sides, protected by iron plates upon them.
    II. That in June, 1898, during the war with Spain, the vessel was chartered by the United States for use in the military service, and was used as a water boat to carry fresh water for the United States troops, the owner fitting the vessel with tanks for that purpose; the charter agreement placing the vessel under the orders and directions of the Quartermaster’s Department of the United States Army, and providing “ the war risk shall be borne by the United States, the marine risk by the owner,” and that she should be returned to her owner “ at Mobile, Ala., in the same condition as when received, ordinary wear and tear, damage by the elements, collision at sea and in port, bursting of boilers, and breaking of machinery excepted.” Which agreement is made a part of the petition as Exhibit A.
    III. That upon the execution of the said charter party the vessel was, on June 10, 1898, ordered, with filled tanks, to proceed to Tampa, Fla., at which port she arrived on June 12,1898, her master reporting, as required by said charter, to Col. Charles H. Humphreys, quartermaster, U. S. Army, in charge.
    IV. That the vessel was ordered by said Colonel Hum-phreys to sail from Tampa in company with the transport fleet carrying the troops under command of Major-General Shatter, about to sail for Cuba, and the order was obeyed.
    V. That on arriving with that fleet off Siboney and Daiquiri, on the south coast of Santiago, Cuba, the captain of the Kanawha was ordered, by said Colonel Humphreys, quartermaster, U. S. Army, to begin supplying fresh water to the transports of the fleet needing the same.
    YI. That there ivas no harbor or port shelter at that point wherein the delivery of water to transports could be carried on in safety, and the prevailing trade winds were blowing strong and fresh, constantly and continuously raising a heavy, lumpy sea off the coast where the transports were laying to.
    VII. That the transports to which fresh water was supplied from the said Kanawha were iron-hulled, with overlapping plates and projections for davits, sockets, cargo port hinges, and riveted flanges for outboard connections, which in the heavy sea then running threatened damage to the wooden hull of the said Kanawha when placed alongside of said transports for the delivery of her cargo of fresh water.
    VIII. That when the master of the Kanawha saw and recognized the danger of his said vessel from this service, he protested and objected to said Colonel Humphreys in person against being required to run the risk of damage to the Kanawha. That although the damage was being then done while said protest was being made, and in the presence of said Colonel Humphreys, it being necessary to the health of the troops, he insisted upon his orders being obeyed, saying: “It can not be helped; this has got to be done;” and he assured the master of the Kanawha that “ the Government would put the ship back in condition again.” There was no other source from which fresh water could be procured for the crews and troops and cattle upon the transports, nor any port or place where its delivery could be earned on in safety.
    IX. That while so compelled to deliver the water to the transports, the master of the Kanawha, a competent and skillful commander, exercised all the skill, care, and precautions possible to prevent damage to his vessel or to the transports.
    X. That notwithstanding all the care and precautions so exercised by the captain and crew of the Kanawha, the vessel,, while at different times delivering water to the transports, to which she was lashed for the purpose, was damaged in her hull and structure, which were battered and torn by the projections on the iron hulls of the transports, a large hole being-stove in her starboard bow, her fender guards, anchor and chain, parts of her superstructure and of the deck planking, the bow gunwale and bulwarks on starboard side being carried away, and the capstan torn out and forward bitts broken off at the deck, the boat davits torn out and boat gallows frame broken, the chain ¡slates broken, the side planking chafed and sprung, the boiler adrift and saddle broken; the thrust foundations loosened and main shafting put out of' line by the pounding received when alongside of the transports delivering fresh water.
    XI. That at the end of her charter service, on the arrival of the Kanawha at Mobile, Ala., under date of 22d September, 1898, the Quartermaster-General, War Department, issued the following order to Captain Lafitte, United States quartermaster in charge at Mobile, Ala.:
    “ On arrival of. the vessel (Kanawha) at Mobile discharge her at once, and call upon the representative of the company to go with you to examine the ship, and together fix the price, if any is to be paid, for plotting the ship in the same condition she was in when chartered Toy the Government as a water boat, reporting'cost by wire to this office for the approval of the Secretary of War.”.
    XII. That on the 29th of September, 1898, the owner wrote to the Quartermaster-General’s Office, calling attention to damage and asking for survey and repair, and he was notified of the instructions to Captain Lafitte.
    XIII. That on October 5, the quartermaster, Lafitte, wired to the Quartermaster-General that owner’s representative declined to accept delivery óf vessel until all repairs were completed, whereupon on same day the Quartermaster-General wired instructions to Captain Lafitte to “ agree with representative of owner as to cost for repairs to Kanawha not ■due to marine risk. Leave coal on board and give it to owner. * * * Report to this office by mail, timé of discharge, amount agreed upon for repairs, and what they are; prompt action desired; if owner mot willing to agree to price for repairs, wire what you think should be paid.”
    XIY. That on the 8th of October Captain Lafitte, being so advised and instructed, acted under said orders and subsequently wrote to Quartermaster-General, as follows:
    “ I respectfully-inform you that I obtained the services of Mr. James G. Terry, marine surveyor, a very reliable man, recommended to me by some of the leading business men of Mobile. I herewith inclose his communication, in which he states that the cost of the repairs will not be less than $8,000. I personally examined the vessel and found her in a very bad condition, clue to her bumping against ships while she was supplying water. In my opinion the damage amounts to fully $8,000. Mr. Drum, representative of the owner of the Kanawha, has agreed to accept that sum in full payment for damages. I informed him that I would submit the matter to you. Steamer discharged by me October 3, at noon.”
    That the report of Mr. Terry, marine inspector, referred to, was in these words:
    “ OCTOBER 8,1898.
    “ To I. de L. Lafitte,
    “ Depot Quartermaster, Mobile.
    
    “ DeaR SiR: I made a careful examination of this vessel recently in the Government service, and beg to report that I found the hull badly shook up, planking very much bruised and fastenings started — chain plates and chain-plate bolts bent or broken, capstans and windlass bitts torn out,- boat stands smashed up and one lifeboat gone. To restore her to her class in the Record of American and Foreign Shipping, she would require a heavy repair at a cost of not less than $8,000.”
    XY. That Captain Lafitte, assistant quartermaster, having assured the representative of the owner that he had power to settle the claim for said damages,- which the owner’s representative had estimated would cost $15,000, the said representative of owner finally agreed to accept the $8,000 in full settlement for damages sustained, and in the belief that the said sum would be promptly paid he accepted delivery of the vessel by Captain Lafitte in the name of the owner, and patched her up and sent her to New York for repairs.
    XVI. That when the owner demanded payment of the sum mentioned in the agreement he was refused payment by the Quartermaster-General, who subsequently tendered $500, which was rejected by the owner; and that no payment has been made to the claimant for the damages done in said service to his said vessel.
    XVII. That the steamer Kanawha, while in the Government service, was insured by her owner with the Atlantic Mutual Insurance Company, and upon demand made by her owner upon that company for indemnification under the policy for the damages received while in the said service, payment was refused. The insurance company claimed the damage to the vessel was not of a nature covered by the perils of the sea, and no reimbursement for such damage was made by said company, nor does it appear any suit was brought therefor.
    XVIII. The claimant paid the sum of $13,000, or thereabouts, for the Kanawha a short time prior to the time she was chartered by the United States, and as fitted for service as a water boat she cost him about $2,000 additional, making her total cost to him the sum of $15,000. For the services of said vessel and her crew during the charter period of three months covered by her charter the claimant was paid the sum of $21,000 by the defendant.
    
      XIX. Subsequent to tlie injuries received by claimant’s vessel, as recited in the previous finding, she was thoroughly overhauled, repaired, and refitted for sea at Elizabethport, N. J., the total expense of such repairing and overhauling expended on her by her owner being the sum of $2,600.81, at the conclusion of which repairing and overhauling and on the 11th day of November, 1808, she ivas examined by the Bureau of American Shipping and a certificate of classification issued by said bureau placing her in the same registration and class she was in prior to her charter to the United States. The report of the Bureau of American Shipping relating to said vessel reads as follows:
    “ Exhibit J. A. D., No. 1. — TV. K. Oleverley, notary public.
    
    [Official number of vessel, 19304. International code signal letters, I. V. I-I. G.]
    “ RECORD OE AMERICAN AND FOREIGN SHIPPING.
    “ NEW YORK-CERTIFICATE OF CLASSIFICATION ■ — ■ AMERICAN bureau OF SHIPPING.
    “ No. 13415.
    “ New York, November 10th, 1898.
    
    “ To all to whom these presents may come:
    
    “ This certifies that the screw steamer Kanawha, of New York, N. Y., of tons register; with one deck and beams built at Bath, Maine, in the year 1881, “ June.” Repairs, c’lk’d all Apl., ’96; opened, 4, ’96; repairs, docked, 4, ’98; whereof John A. Donald is ovmer; ivas duly surveyed at the port of Mobile, Ala., April 1896, and has been entered in the “ record ” with the class _+Al-| for five (5) years, from April, 1896, subject to conditions of rules and is deemed fit to carry dry and perishable cargo in the coastwise and Gulf service.
    [seal.] “ Francis A. Martin,
    “ Of the Glassification Committee.
    
    “ Benj. F. Cutler,
    “ Surveyor.
    
    “ Walter R. Y. Jones,
    “ Secretary.”
    “ The within-named S. S. Kanawha has had the following repairs at Elizabethport, N. J., November 7th, 1898: Piston drawn; follower and rings refitted; crank-pin and cross-head brasses adjusted; valve, valve gearing, and reversing gear overhauled; shafting aligned; pumps fitted with new valves and had thorough overhaul; caulked deck. Boiler was built in 6, ’98. Repairs and examination made in accordance with rules.
    “ New York, November 11th, 1898.
    “ Walter R. Y. Jones,
    “ Secretary.”
    The above-mentioned overhauling and repairs also fitted said vessel for reinsurance and she was subsequently .rein-sured.
    
      Mr. F. P. B. Sands for the claimant. Mr. William, McAdoo was on the brief:
    The Government is estopped from questioning the sufficiency of the award by accepting the fruits thereof, which relieved the Government from making the repairs. {Bur-ham v. Union Free School, etc., 48 N. Y. St. Rep., 702; Burchell v. Marsh, 17 How., 344, Grier, J., Arbitration.)
    A party to an agreement for arbitration can not accept the cause within his knowledge before it was made. (Parsons on Contracts, vol. 2, 705, note j; Hewitt v. Lehigh c& PL. R. R., 92 Atl. Rep., 320.)
    A party to an agreement for arbitration can not accept the benefit of part of the award and complain of illegality of another part. (Thornton v. McOormich, 75 Iowa, 385.)
    The Government accepted the benefit of the arbitration, Avhich relieved it from making the actual repairs and secured from the owners the acceptance of the discharge of • the vessel from the charter.
    When parties have expressly, or by reasonable implication, submitted the questions of law, as well as the questions of fact, arising out of the matter in controversy, the decision of the arbitrators on both subjects is final. It is res judi-cata. (Parsons on Contracts, vol. 2, 701, note f.)
    And the orders and arbitration in this case and the acceptance of the award concludes the Government.
    The policy of the law is to encourage and uphold the settlement of disputes by arbitrations; they are not bound to decide according to law, being. a law unto themselves. 
      (Burchett v. Marsh, 17 How., 344; Robbins v. Kelligrew, 95 N. G, 19.)
    After an award is fully made, neither of the parties without the consent of the other have any further control over it. (Parsons on Contracts, vol. 2, p. 712.)
    If principal accept, receive, or hold the beneficial result of agent’s contract, this is a ratification of the agent’s act. (Parsons on Contracts, vol. 1, 49.)
    Inconvenience or loss to one party from act of the other, or even slight benefit to the other, is sufficient consideration to bind the latter. (Chitty, 28.)
    And the owner, in accepting surrender and discharge of the vessel as part of the settlement under the arbitration, relieved the Government from the charter obligation (Art. IY of charter) of paying for the time lost or occupied in fully repairing the damages attributable with agents of the Government in order to put the vessel in the condition she was in when chartered (Art. VII), and the amount of pecuniary benefit to the Government so secured by the closing of the award and discharge from charter might well and reasonably have exceeded $1,000 or $2,000.
    A mere misapprehension of the law is no ground for disturbing the settlement of a doubtful claim. (Percy v. Hol-lister, 66 Ill. App., 594; Siegel, Cooper c& Co. v. Schenck, 67 Ill. App., 246.)
    A compromise of disputed rights, both parties being ignorant of the true state of their rights, is valid, whether the ignorance was matter of law or fact. (Trigg v. Read, 5 Hump., 529, Tenn.; Anderson v. Bacon, 1 A. K. Marsh, 48, Ky.; Morewood v. Brockman, 4 Dunn, Ky, 309.)
    An offer of compromise accepted is obligatory upon the parties. The evidence shows that by reason of the damage being occasioned by orders of the quartermaster which inevitably caused the injuries the owner lost his insurance, it being held that the injuries were not caused by the ordinary marine risk. Where the defendants’ officers interfere with the lawful discretion of the master to which the owners are entitled, so as to avoid any policy of insurance which they majr have effected, it is.a breach of the contract and the defendants are liable for all damages sustained. (S. P. Talbot 
      v. Z7. /S'., 1 C. Cls. B.., 417; see Williams v. New Eng. Ins. Go., 1869, per Clifford, J.)
    Where a contract is signed by the parties thereto its terms and provisions supersede all previous arrangements. (Gam-den B. B. v. Goal, 2 Cent., 343; Parish v. U. 8., 8 Wall., 489.)
    In other words, the vessel was subjected to use and risks not incidental to the service for which she was chartered, which was to deliver her cargo at ports or places where this could be done with safety; but such as was of a kind that involved inevitably the damages she actually received, which were inflicted under the eyes of the quartermaster by his positive orders, against the protest of the master of the vessel, but with distinct and express assurances from the quartermaster that, the delivery of the fresh water being a military necessity to save the troops and cattle from suffering and thirst, the Government would compensate the owner by making all the necessary repairs to put the vessel in the condition she was when chartered, and thus conclusively fixes upon the Government the liability and obligation to so repair the Kanawha as to put her in the same condition she was when chartered, which was the action followed with other vessels.
    This being established, the settlement, through arbitration and award, of the amount of money to lie paid by the Government instead of actually itself making the necessary repairs is final and conclusive.
    The law is settled as to compensation being due from the Government under these facts. (U. 8. v. Bussell, 13 Wall, 623.)
    The charter requirements for carrying the water from Tampa to that point were fully and completely performed by the master of the Kanawha. He was ordered by the quartermaster in charge to transfer his cargo alongside of the transports in the prevailing heavy seas, against which duty the master of the Kanawha protested, but was ordered peremptorily to do so, as it was an absolute necessity for troops and cattle — and he was assured that whatever damage the vessel sustained the Government would repair — that the water had to be delivered, although the damage was certain, and as it was being done it was seen by the officer ordering . the work to be done.
    
      The proofs are that the master would not have delivered his cargo but for the positive instructions; that it involved inevitable danger, but that there was imperative demand .and necessity for the water to prevent suffering to troops and cattle on transports and that the necessities of the occasions justified the quartermaster in ordering and the master of the Kanawha in obeying under protest as repair of the damage was assured.
    The Supreme Court, through Gray, J., in The R. G. Booth (171 U. S., 450), well decides the question involved in this case, holding that the causa causans, the proximate cause of the damage, determines the question, citing a number of strong decisions bearing directly upon the pending case.
    ' In this case, the vessel being expressly under the control and orders of the United States officers — those officers, under pressing public emergency in túne of war necessitating their immediate action — compelled service from the vessel that inevitably would and did cause the damage to the vessel, thus removing the case from the marine risk, and placing the vessel subject to assured, certain damages, declaring at the time 'that the Government would repair them!
    It is proved that the damage was not covered by the marine risk and the insurance company refused to make good the loss. {Talbot v. ü. S., 7 C. Qls. B., 417.) ■
    
      Mr. Franklin W. Collins (with whom was Mr. Assistant Attorney-General Praclt) for the defendants:
    The business contracted for was not a pleasure excursion, neither was this an ordinary errand. It was a strenuous undertaking, and the ordinary wear and tear incident thereto would be necessarily enhanced, certainly far greater than in the merchant carrying trade. The Kanawha was compensated accordingly. No uniform, invariable, or unbending-rule as to what constitutes ordinary wear and tear is possible. The duty to surrender the vessel in as good condition as when received, “ ordinary wear and tear, damage by the elements,” etc., excepted, depends on the use intended by the parties. (McAdam on Landlord and Tenant, p. 1269; McGregor v. Board of Education, 107 N. Y., 512.)
    
      The rule of the law is that the tenant or lessee shall so use the property as not unnecessarily to injure it.
    When the clause in said charter party, “ damage by the elements,” is construed in connection with the clause preceding it, to wit, “ ordinary wear and tear,” these two clauses together would seem to furnish a full and sufficient explanation of the injuries received by the Kanawha in connection with her services for the United States and also to establish the entire immunity of the defendant from responsibility to restore the ship to the condition she was in when originally chartered by the Government, for certainly all the damage and injury received by the claimant’s vessel were due to one or both of these causes, in which view the United States is relieved from liability.
    The relations and duties of á water boat with respect to the fleet of transports which it accompanies are identical with those of a collier, both of which are body servants of the fleet, and expected to deliver their respective cargoes to the transports composing the fleet whenever and wherever needed by them, in port or at sea, in calm or rough water, as ordered bjr the officer in charge.
    It should not be overlooked that the principal injuries received by the Kanawha while at sea off Daiquiri were due to bumping against the transport Seneca while taking on coal to fill her own bunkers, and hence to supply herself with an article of necessity for her own locomotion.
    That this was not a war risk, within the meaning of that term as defined by the courts, is clear from the decisions of this court, as well as the Supreme Court of the United States. (Bogert v. United States, 2 C. Cls. R., 162, 163; Reynolds's case, 5 C. Cls. K., 277; 15 Wall., 202; Morgan v. United States, 5 C. Cls. R., 182; 14 Wall., 531; Talbott v. United States, 7 C. Cls. R., 417; •Leary v.'United States, 8 C. Cls. R., 31; 14 Wall., 607.)
    But even if our contention that the injuries received by the Kanawha flow neither from war nor marine risk, but were due to wear and tear, goes too far for judicial acceptation, nevertheless, when the United States has shown that the injuries received are not attributable to war risk, or, rather, wben the claimant has failed to show that the injuries in question were attributable to war risk, no liability for damages resulting from any and all other risks attaches to the Government. All other risks — wear and tear, marine, ordinary, and extraordinary — are borne by the owner.
    No authorities, however, have been cited by learned counsel for claimant which sustain his contention that this was a war risk.
    The case of United States v. Bussell (5 C. Cls. K., 623; 13 Wall., 623) is not apposite.
    Claimant’s contention that a new contract and a new obligation was created by what he terms an emergency is utterly untenable, inasmuch as the charter party was in existence at the time and had been framed, as we contend, to cover every emergency, framed so that if any harm befell the Kanawha while prosecuting the work for which she was chartered, if it came from the public enemy, or, at the utmost, the casualties of war, the Government should be liable to the owner for it; but, otherwise, he only should be wholly responsible. In other words, the defendant was an insurer against war risk only, and as such insurer the United States was not liable for anything but injuries resulting from the acts of the public enemy, or, at the utmost, the casualties of war. Inasmuch as the injuries received did not result from these causes, the Government is not bound’ to recompense the claimant therefor.
    If learned counsel’s contention be correct, however, that the chartered vessel had fully and completely performed the charter dity when that which he terms a “ great emergency ” arose, then he is compelled to take refuge in one of. two alternative positions — (1) either, the quartermaster in charge in peremptorily ordering and in a sense compelling him to perform the service required, over the protest of the master of the Kanawha, thereby committed a tortious act which ousts this court of jurisdiction over an action brought therefor, or (2) anew and independent contract toas thereupon created by and between the quartermaster in charge and the master of the Kanawha; in which event the inquiry immediately arises, What authorty at- law was committed to this subordinate ■officer of the United States, either to make new contracts or modify old ones? Obviously and certainly none whatever. Section 3744 of the Revised Statutes prohibits the making and execution of contracts by this Department of the Government except in strict compliance with its provisions. (Glarh v. United, States, 95 U. S., 542; South Boston Iron Co. v. United States, 18 C. Cls. R., 166.)
    It may be added that if the head of the Department, the Secretary of War, or the Quartermaster-General were prohibited by law from making contracts with parties other than as provided for by said section, it will not be seriously contended for a moment' that the contracts of a subordinate officer of the Government which do not comply with the provisions of the statute would have any binding force or validity. Whichever1 position, therefore, the claimant takes, he is manifestly precluded from recovery.
    Was the act of the quartermaster in ordering and compelling the Kanawha to deliver water to the transports in the open sea tortious? Clearly so if contrary to the provisions of the charter party, done as it was over the objections and in spite of protestations of the master of the Kanawha, in which event this court would be deprived of jurisdiction, and the claimant’s only remedy for relief would be an appeal to Congress. This view is sustained by many decisions. A few are cited below: Gibbons v. United States, 7 C. Cls. R., 105; Morgan v. United States, 8 C. Cls. R., 18; 14 Wall. R., 53; BeyboWs case, 8 C. Cls. R., 55; ShillingeFs case, 24 C. Cls. R., 294; Langford v. United States, 101 IT. S., 341.
    Instead of being an arbitration, this was an appraisal of injuries, and the Quartermaster-General was the umpire or judge who was ultimately to pass upon the entire matter. {Great Falls case, 16 C. Cls. R., 160; 112 U. S., 645.)
    In the case at bar the parties at Mobile, who were called upon by the quartermaster’s agent, through the Quartermaster-General, to pass upon the injuries to the Kanawha and to agree upon the amount of repairs not incident to marine risk, were merely appraisers, called in to aid the judgment of the Quartermaster-General.
    The only evidence that in any way tends to show that there was even a semblance of an arbitration contemplated by the Quartermaster-General is contained within the two telegrams sent by him, of date September 29 and October 5, 1898.
    It will be noticed that no authority was given to pass upon anything but the “ cost of repairs to the Kanawha not due to marine risk,” and that he Avas directed to “ report to ” the Quartermaster-General “ the amount agreed upon for repairs and what they were.”
    We need not otherwise point out the manifold defects in this so-called arbitration and aAvard. If the argument of the learned counsel for claimant be sound, that the Government is estopped by the so-called aAvard of the so-called arbitrators, then, if the aAvard had been fifty thousand dollars or a million dollars, instead of eight thousand dollars, the Government would be unable to escape responsibility therefor; and this, too, Avithout regard to the express conditions or terms of the contract.
   Wright, J.,

delivered the opinion of the court:

Plaintiff OAvned a steamship which he fitted and equipped, for use in the United States military service at sea, as a Avater boat to carry fresh water to be supplied to the troops in transports Avhile upon the ocean. He entered into a written contract with defendant in which sendee of the ship Avas provided for at a compensation of $175 per day, in which it Avas stipulated among other things that the Avar risk should be borne by the United States, the marine risk by the owner; the defendant to furnish the necessary fuel to propel the vessel until returned to plaintiff at Mobile, Ala., in the same order as when received, ordinary Avear and tear, damage by the elements, collision at sea and in port, bursting of boilers and breakage of machinery excepted; the A^essel Avhen laden to proceed without delay to such ports or places as ordered by the proper officer of the Quartermaster’s Department and defiver the cargo to such ports and places to Avhich the A^essel is ordered to proceed.

•The vessel Avas accordingly loaded Avith fresh Avater, and in charge of the OAAUier’s master and creAv, and, as properly directed, reported to the quartermaster of the United States at Tampa, Fla., June 10, 1898, and from there Avas ordered to accompany the transport fleet conveying General Shafter’s ■army to Cuba. On the arrival of the fleet off Siboney and Daiquiri, on the south coast of Santiago, the troops .on the transports needed supplies of fresh water; there was no harbor or port shelter at that place wherein the delivery of water from the water carrier to the transports could be accomplished, and the delivery could only -be effected where the transports then lay or not at all. The transports Avere then laying to in a heavy, lumpy sea, Avhen plaintiff Avas required by the quartermaster to deliver Avater upon them for the use of the troops. Plaintiff protested to the quartermaster, insisting that to approach the transports and supply them with Avater in the conditions of the sea then existing would damage his ship. The quartermaster insisted, and assured the master that the Government would put the ship back in condition again. The Avater Avas then delivered to the troops on the transports, and in doing the work plaintiff’s ship was injured and damaged by contact with the transports in consequence of the roughness of the sea.

At the end of its service plaintiff’s ship 'arrived at Mobile, Ala:, and the quartermaster in charge at that place Avas directed to discharge her, call upon the representath'-e of the owner, and with him fix the price, if any is to be paid, for putting, the ship-in the same condition she Avas in when chartered by the Government as a Avater boat, and to report by wire for the approval of the Secretary of War. The owner declined to receive the A^essel until all repairs were completed, and the local quartermaster Avas then instructed by the Quartermaster-General to agree with the representative of the owner as to cost of repairs not clue to marine risk and report same. The local quartermaster obtained the services of a marine surveyor, and upon examination ascertained the amount of damage to the ship for the injuries so received to be $8,000, and this Avas reported to the Quartermaster-General, Avho refused payment to plaintiff.

This suit is to recover the damages so occasioned to the ship, and the first insistence is that, as the local quartermaster represented to the OAvner that he had authority to settle the claim for damages, and that the OAvner had agreed to accept $8,000, and then received the discharge of his vessel, these facts, considered together, constitute an agreement, valid and binding upon the defendant, to pay the sum agreed upon. ■The vice in this contention is that the local quartermaster had no authority to make an agreement binding upon the defendant to vary the terms of the charter party, and it is also a familiar principle that the authority of an agent to bind his principal can not be proved by the mere representations of the agent himself. So the'fallacy of this contention appears in its own statement and may be dismissed without further consideration.

There only remains for our determination the liability of the defendant, upon the contract of the parties, for the damages incurred to the vessel of the plaintiff. This may properly be done only by ascertaining the intention of the parties at the time the contract was entered into and then bj1, giving-such intention its due effect. Upon this point we think the case clears itself, and we need only look at the plain words of the contract itself, in the light of the surrounding circumstances thereby disclosed. The plaintiff fitted and equipped his ship as a water boat or tender for transports containing United States troops, for the purpose of supplying such troops with water. By his contract he undertook to deliver water at such places as ordered. At the time the contract was made no one knew when or where such delivery would be required. To accomplish the purposes of the contract it will be presumed the parties designed the water to be supplied to the soldiers whenever or wherever they might be at sea, if necessity required. The contract puts no restriction upon time or place, but such delivery to be made as ordered by the proper officer of the Quartermaster’s Department. By his contract plaintiff selected the person who would decide the time and place, and the assurance of that officer that the defendant would repair the ship did not enlarge the .terms of the contract in that respect.

Nothing is said in the stipulations of the contract that water should be delivered in the calm of the sea or in harbor's, or port shelters. If such a stipulation had been contained in the contract, we can well see how in the exigencies of >var and wave the objects of the contract could have been wholly defeated, and the troops on the transports deprived of the' use of the water provided for their necessities. It will be presumed that such a stipulation was designedly omitted, and, that being true, it follows that it was the intention of the parties that the water was to be delivered as it was, although attended with risks imposed by a choppy sea. Plaintiff, by the express stipulation of his contract, assumed marine risks, and that burden should be considered in the light of the service to be performed, including the danger incident to the delivery of water to the transports at any place directed b}r the proper officer. The defendant assumed only war risk, and there' can be no just pretense that the injury to plaintiff’s ship was incident to any act of war.

By proper interpretation of the contract the only repairs the defendant agreed to make were such as were necessary as a result of its own fault, or the negligent acts of the soldiers, or such as might be occasioned by belligerent operations, offensive or defensive. No injuries of such description occurred. The injuries that did occur, and which occasioned the damages complained of, were but the ordinary wear and tear incident to the service upon which plaintiff voluntarily entered and which was required of him by his contract, and from which that instrument exempts the defendant from liability.

In conformity to the views we have expressed, the petition DÍ the plaintiff will be dismissed.

Nott, Ch. J.,

dissenting:

,. 1. The charter party was drawn and prepared by the charterers. “ Its doubtful expressions should therefore, according to a well-known rule, be construed most strongly against the party who uses the language.” (Garrison v. United States, 7 Wall., 688.) And where such “ an instrument is susceptible of two constructions — the one working injustice and the other consistent with the right of the case — that one should be favored which- upholds the right.” (Noonan v. Bradley, 9 Wall., 374.)

2. The charter party contemplates two classes of risks, and only two, and accordingly provides that “ the war risk shall be borne by the United States; the marine risk by the owners.”

3. By the use of the well-known term “ marine risk ” the charter party imports those risks which may be guarded against and covered by marine insurance.

4. There is nothing in the charter party which directly or by implication deprives either the owners or the insurers of their legal and customary right, viz, the master’s duty “ to exercise the highest prudence as well as skill to guard against loss.” (The Portsmouth, 9 Wall., 682, 684.)

5. The charter party .gave to the charterers no right to destroy the owners’ policy of insurance by interfering with the master’s discretion. Marine risk implies marine discretion. If the owners were responsible for the one they were entitled to the other.

6. The contractual right of the charterers was to withhold the vessel’s per diem compensation during the period of delay and hold the vessel responsible for losses on the cargo directly attributable to an unreasonable refusal to deliver it.

7. The contractual rights of the owners secured to them an option. They might refuse to obey the order, and disobeying, take the risk of losing the ship’s wages and having her discharged from the service, or they might take the risk of complying and injuring their vessel.

8. The action of the master in laying his vessel alongside of the transports was not the act of the owners but of the charterers as completely as if they had taken the master off his vessel and put one of their own officers in command.

9. The vis major was not the wind and the waves, but the guns of a fleet and an overwhelming military force having, in a military emergency, unlimited discretion.

10. The, emergency ivas want of water for troops, coupled with the fact that the adjacent harbors were in the possession of the enemy.

11. The responsible officer who sent the vessel nearly to destruction virtually impressed it with a resulting implied contract under United States v. Russell (13 Wall., 623). He was justified by the emergency, and correctly recognized the legal situation when he assured the master that the owners should be recompensed for inevitable injury to the vessel. a point of view bis action was interfering with tbe navigation of tbe vessel and was a “ fault” “ attributable to the United States or its agents.” (Charter party, Art. IV.)

12.. The injury to the vessel was not a marine risk. It was a risk not contemplated or provided for by the charter party. But if it was contemplated by the charter party it was either a war risk, incident to the adjacent coast being under the control of the enemy, or it was “ attributable to the fault of the United Sta tes or its agents ” in forcibly compelling the master to seek inevitable disaster.

The claimant should recover for the actual expenses of repairing the vessel, and for her wages, less her running expenses, during the period of repairs.  