
    TERRY’S CASE. Nathaniel N. Terry v. The United States.
    
      On the Proofs.
    
    
      By the terms of the charter-pm'ty a vessel is to receive pay until discharged, and to he returned to the ovmer at a designated port. She is ordered to this port with instructions to report to the quartermaster there. She does so. and her master is ordered to report daily for orders, which he does. The quartermaster orders a subordinate to discharge the vessel, which he neglects to do; the quartermas
      
      ter then, on the 23d of the month, makes a retroactive order, discharging the vessel from the service on the 11th, when he instructed the subordinate. The owners are paid up to the 11th. They bring their action for the vessel’s wages up to the time of receiving notice.
    
    Where a vessel is chartered at so much per day, until discharged by the charterer, she is to all intents and purposes in the service of the defendants until her owner or agent is informed of her discharge; and it is not ■within the power of a quartermaster to deprive the owner of the wages of the vessel by a retroactive order of discharge.
    
      Mr. Thomas J. Durant for the claimant.
    
      Mr. Alexander Johnston (with, whom was the Assistant Attorney-General) for the defendants:
    The Ocean Wave arrived in New York on the 10th of August, 1865, and was discharged from the service of the defendants as of this date, a written notice to this effect having been served on the claimant on August' 23, 1865. The claimant seeks to recover for alleged services during the interval of twelve days. The claim is founded on the failure or neglect of the defendant to serve notice of discharge on the date thereof, the 11th of August, 1865. It is clear that, if the defendants’ neglect was caused by any dereliction of duty or violation of contract, on the part of the claimant, this action cannot be sustained. (Dubois v. the Delaware Canal Company, 4 Wend., p. 2S5.) If it was the custom for chartered vessels of the Government to report daily to the quartermaster in New York, after their arrival at said port, it became the duty of the claimant to comply with and observe this custom, by reporting daily to the quartermaster. Any failure or neglect in this respect will leave the claimant remediless for losses resulting therefrom. (See 2 Parsons on Contracts, p. 537.) That such was the custom is conclusively proved by the evidence of Captain Jennings, in which he states the rule in regard to vessels arriving in New York, as follovys: u It was the custom, and was observed, that all chartered vessels should report daily at my office; the custom was universally observed; I know of no exceptions, except in this case of the Ocean Wave, where it was not observed.” And his testimony, uncontradicted and free from doubt, is sufficient and conclusive proof of this custom. (See 1 Greenleaf on Evidence, § 260a, 12th ed.) The evidence of Appleton Sturgis, a witness for claimant, betrays a knowledge on his part of this custom, and to this extent is corroborative of Jennings’ statement. By these witnesses the custom above referred to is fully-established. But the claimant failed to comply with this custom, and was thus derelict of his duty. Captain Jennings, a disinterested witness, swears positively that neither the claimant nor any agent of his reported to hitn personally between August 10 and August 23, 1865. Though this is contradicted by Sturgis, a witness interested in the result of this action, it is submitted that the positive and direct evidence of Jennings, concerning transactions occurring within the scope and line of his official duty, should have greater weight. It is therefore urged in defense that the claimant, having by his own default caused • the loss mentioned in his petition, cannot now recover the same from the defendants.
   Milligan, J.,

delivered the opinion of the court:

The steamer Ocean Wave, of which the claimant was the lawful owner, entered the service of the United States under a regular charter-party, bearing date the 22d of April, 1864, a copy of which is attached to the petition. By the terms of the charter the vessel was to receive a compensation of $200 per day for each and every day she was employed, and to be returned to the Owner at New York in the same order as when received, ordinary wear and tear, damage by the elements, &c., excepted.

On the 4th of August, 1865, the Ocean Wave was ordered to New York, with instructions to report to Geu. S. Yan Yliet, assistant quartermaster, and on the 10th she reached her destination in good order. Her arrival was reported at the Quartermaster Department to Captain Jennings, then in charge . of the office, and entered on the books of the office.

Afterward the captain of the vessel reported daily for orders to Captain Jennings, until he was informed that he need not report any more; that he had the vessel on his books, and as soon as General Yan Yliet had decided what to do with her, whether he would discharge her or buy her, he would give him notice.

While General Yan Yliet had this matter under consideration, the parties interested frequently called on him in respect to his decision; and finally, on the 23d of August, 1865, on his attention being called to the subject of discharging the vessel, he expressed surprise that Captain Jennings had not discharged her before, and soon after the following order was handed to Mr. Sturgis, who had been acting as agent of the steamer:

“Assistant Quartermaster’s Oeeice,

New York, August 23, 1865.

“ Sir : I would respectfully inform you that, in compliance with orders received from the Quartermaster-General, the steamship Ocean Wave was discharged from the service of the United States at 12 m. on the lltli instant.

“I am, sir, very respectfully, your obedient servant, “JOHN R. JENNINGS,

Captain and Assistant Quarter master.”

“Russell Sturgis, Esq.,

“ 68 South Street, New York.'’

Mr. Sturgis, either at that time or soon after, claimed compensation up to the date of the order of the vessel’s discharge.

The wages of the steamer have been paid up to the 11th of August, 1865, and this suit is prosecuted to recover them up to the 23d, the day on which the claimant had notice of her discharge.

On the facts presented a single question is raised for decision. The claimant insists on his right to recover the charter rates of his vessel up to the time the assistant quartermaster gave notice that she was discharged; and the defendants claim that the vessel was in fact discharged on the 11th day of August, as declared in the order of Captain Jennings.

By the terms of the charter party, the contract was to continue in force as long as the steamer may be required by the War Department; and for each and every day the vessel was employed she was to receive $200, and to be returned to her owner in good order in New York.

The order under which the vessel was sent to New York did not indicate the purpose for which she was sent. It was in all respects such an order as would have been given in the usual service of the ship under her charter; and when she arrived in port, her master fulfilled its requirements by reporting at General Yan Yliet’s office. No order was given for her discharge until the 23d, and up to that time the owner was not free to employ his vessel in any other service, without violating his contract and rendering himself responsible to the Government.

The vessel was, to all intents and purposes, in the service of the defendants until the owner or his agent was informed of her discharge. The contract was then ended; and it was not within the power of the quartermaster to deprive the claimant of the wages of his vessel by inserting, without notice to the claimant, an earlier date in the order directing her discharge.

Judgment will be entered for the claimant for the services of the steamer Ocean Wave from the 11th to the 23d of August, 1865, a period of twelve days, at the reduced rate of $121.50 per day, as claimed in the petition, which amounts to the sum of $1,458.

Nott, J., did not sit in this case, and took no part in the decision.  