
    O. H. CLARK’S CASE. Oliver H. Clark v. The United States.
    
      On the Proofs.
    
    
      A steamboat is chartered by the Quartermaster Department for not less titan three months and until het' return to New York, at the hire of $150 a day¡ “the pay to continue until the said steamer is discharged from service in the port of New York“ the war and all other risks” to be borne by the charterers. While the vessel is still in service, but aftes' the expiration of the three months named in the charter, the Quartermaster Department orders the compensation to be reduced or the vessel discharged. JSer master, without authority from the ownws, consents to the reduction. The oioners remonstrate, but suffer the vessel to continue in sei'vice and aceept and receipt in full for the reduced rate. During a period of repairs, the owners being relieved from the running expenses, the Quartermaster Department pays only $50 a day, for which the oivners receipt in full. A cannon is placed %ipon the vessel, and she is injured by its firing. She is also, xvithout fault of her master or crew, run upon stumps ’and injured.
    
    I. Allowing a vessel to continue in the military service of the Government after the Quartermaster Department has notified the master that her wages must he reduced below the charter rate or the vesselbe discharged and acceptance of the reduced rate, accompanied by the giving of a receipt in full, will conclude the owner from recovering the agreed rate.
    II. Where a charter-party provides that the owners shall navigate the vessel and keep her tight, stanch &c., but that the charterers shall assume “ the toar and all other risks,” the latter will be liable for injuries from the vessel’s running on stumps in river-navigation, without fault of the master or crew. Being a risk incident to the navigation in which she is employed, extraneous to the vessel and independent of her condition, it is a marine risk.
    
      III. Where a vessel is chartered for freighting, the charterers are not authorized hy the contract to put a cannon aboard and use the vessel as a gun-boat. For injuries thus caused the owners may recover, notwithstanding their agreement to keep her tight, stanch, &c.
    
      The Reporters' statment of tbe case.
    Tbe court found tbe following facts :
    That, on tbe 4tb day of March, 1862, tbe petitioner was tbe owner of tbe steamer Massasoit, and continued so to be during tbe continuance of tbe charter-party; that said charter-party was executed between tbe petitioner and tbe United States on said 4th day of March, 1862, and thereunder tbe said steamer continued in tbe service of the United States until tbe 26th November, 1863; that under said charter-party tbe said steamer proceeded to tbe State of North Carolina, and was employed by tbe Government in freighting and military expeditions in tbe rivers of said State.
    Tbe petitioner was paid by tbe United States for tbe service of said steamer $160 per day, under and according to said charter, until May 6, 1863, and each of tbe payments so made was receipted for by said Barstow & Pope, in form as follows:
    [No. 223, Abstract B, June, 1863.]
    “ The United States to Oliver S. Olarh, Dr.
    
    “ May 6, 1863. For services of tbe steamer Massasoit from February 6, 1863, to March 6, 1863, and from April 6, 1863, to May 6, 1863, under charter dated March 10,1862, being fifty-eight days, as per certificate herewith — 58 days, at $160 per day ... $8, 700 00
    “ I certify that tbe above account is correct and just; that tbe services were rendered as stated; and that they were necessary for tbe public service.
    “Received, at New York, tbe 20th of June, 1863, of Capt. Francis J. Crilly, assistant quartermaster, United States Army, the sum of eighty-seven hundred dollars, in full of the above account.
    (Duplicate.)
    “O. H. CLARK,
    By his attorneys, BARSTOW & PO PE.
    “ Tr. troops.”
    
      On tbe 9fch day of May, 1863, Herman Biggs, lieutenant-colonel and quartermaster, by letter dated u Chief Quartermaster’s Office, Eighteenth Army Corps, New Berne, N. 0., May 9,1863,” addressed to “ J. L. Crane, captain steamer Massasoit,” stated that in consideration of the length of time the Massasoit had been under charter to the United States he thought it but just that her charter price should be reduced from $150 to $100 per day, and Colonel Biggs requested an answer before the Massasoit left the port. And on th e 10th day of May, 1863, said Crane, by letter dated New Berne, N. C., May 10, 1863, stated to Colonel Biggs that, for the reason above stated, the owner of the Massasoit would consent to reduce the price to $125 per day, the Government taking the war risk as before. The letter of Colonel Briggs to Captain Crane was not communicated by him to the petitioner, and Captain Crane had no special authority from the petitioner to alter the charter-party of the Massasoit.
    Under said charter-party, made March!, 1862, the petitioner was paid by the United States for the services of the Massasoit at the rate of $125 per day, from May 6 to August 6,1863, and from September 25, 1863, to November 26, 1863; and each of the several payments so made was receipted for in form before stated.
    The petitioner was informed by Mr. Barstow of the reduction in the rate of compensation for the Massasoit, and directed him to have her sent home, and Mr. Barstow wrote to Captain Crane to that effect. But it was not shown that such requirement was communicated to the United States by Captain Crane or otherwise. The petitioner and Mr. Barstow objected to Captain Stinson, of the quartermaster’s office in New York, to the reduction of the compensation of the Massasoit from $150 to $125 per day.
    After the charter-party, dated March 4,1862, was executed, instructions were given by the Quartermaster-General for the reduction of the compensation of vessels employed under charter-parties in the service of the United States, and the execution of new charter-parties at reduced rates. And owners of vessels were written to that their vessels would be discharged unless new charter-parties were adopted by them at the reduced rates. Whether or not the petitioner was written to otherwise than is above shown was not proved. Orders were issued to the several quartermasters having in charge chartered vessels to discharge them unless their owners would accede to the terms proposed; that is, new charters.
    While the said vessel was employed in the rivers of North Carolina, in military expeditions and freighting, from August 6, 1862, to February,. 1863, she got ashore and was run on the stumps, by which she was injured and her planks and timbers started, and she was sent to New Berne for repairs, and there temporary repairs were made upon her. On January 22 she was sent to Washington, N. 0., with a cargo of coal and two 32-pounder guns. At Washington she was put on the ways and repaired temporarily, as there were no means of making permanent repairs. The repairs made were made by the Government and at its cost. In making these repairs at Washington twenty days of the services of the Massasoit were lost, and for these twenty days the per Mem compensation was not paid. The claimant, by Captain Crane, entered a written protest against the non-payment. Subsequently $50 per day, the estimated cost for wages and provisions, was paid by the Government for twenty days. And, therefore, an account was stated and receipted for, in the form before stated.
    For service in the military expeditions in which she was employed in the rivers of North Carolina a cannon was put on board of her, by orders received through the officers of the Quartermaster Department, and against the objection made by her master to officers of the Quartermaster Department and to other officers commanding the expedition up the rivers. The Massasoit was not built for a gun-boat nor intended nor adapted to such service. In these expeditions the cannon was fired on the enemy; grounding on the stumps, as before stated, injured the bottom of the Massasoit and started her planks and timbers, and firing the cannon shook the boat in every part, started the oakum out of her seams, and shook down her joiner-work, and she was caused to leak, and in August, 1863, she was carried to New York for repairs, and there repairs were put on her amounting to $3,500, as shown in the bills annexed. Said repairs were rendered necessary by the damages sustained by the boat in the Government’s service, and they were correct and just, and paid by the petitioner.
    On the 26th day of November, 1863, the charter-party, a copy of which is annexed to the petition, was executed between the petitioner and the United States. And under said charter-party the Massasoit continued in the service of the United States from said 26th of November until 25 th May, I860, inclusive, when she was discharged from said service. On the 23d December, 1863, B. E. Clary, colonel and quartermaster, by letter dated Quartermaster-General’s Office, Washington, D. C., December 23,1863, instructed Maj. S. Yan Yliet, quartermaster United States Army, New York City, N. Y., that the compensation of the Massasoit was to be reduced to $80 per day from January 1,1864. On December 29,1863, Messrs. Barstow & Pope, in a letter of that date to Colonel Clary, stated to him that they had received notice that the pay of the Massasoit must, from January, 1864, be reduced from $125 to $80 per day; that the tonnage of the Massasoit was 211 tons; and that they would make no objection to the reduction to 45 cents per ton, which they understood was now the rate. On January 16,1864, Lieutenant-Colonel Biggs, by letter dated chief quartermaster’s office, Fortress Monroe, January 10, 1874, informed General Meigs, at Washington, that General Butler had ordered that the compensation of the Massasoit should be reduced to $100 per day, and that in all cases where a reduction in price had been ordered he had been directed to notify the owners, and in case the terms were not acceded to to discharge the vessel. From January 15,1864, to May 30, 1865, the Massasoit was paid at the rate of $100 per day, and the several payments therefor were receipted for, as shown in the form before stated.
    On the 8th of March, 1864, Stewart Walker,, by letter dated quartermaster’s office, New York, March 8,1864, informed the petitioner that he was instructed by the Quarternaster-General to have a clause inserted in the charter-party of the steamer Massasoit, making the date of its going into effect April 1,1863, instead of November 26,1863, as therein expressed, and Mr. Clark was requested to call at the office to sign the required clause or notify Major Walker of his non-acceptance of the proposal.
    On the 14th of March, 1864, the writing following was made:
    
      “ New York, March 14, 1864.
    
      “ Major S. Yan Yliet,
    
      u Chief Quartermaster United States;
    
    
      a Sir : We are authorized by O. H. Clark to assent to your inserting in the charter of the steamboat Massasoit a clause dating charter of said boat April 1, 1863, instead of November 26, 1863.
    “ Respectfully, your obedient servants,
    “BARSTOW & POPE.”
    The purpose of said writing was to authorize the Government to compute the earnings of said boat, in reference to her purchase, from April 1,1863, instead of from 26th November, 1863.
    J£r. Thomas J. Durant for the claimant:
    On the 4th of March, .1862, the petitioner hired his steamer Massasoit to the defendants, by a contract in writing, “ for the space of time not less than three months and until the return of said steamer to New York,” and at the price “ for every day employed of $150, payable monthly, the pay to continue until the said steamer is discharged from service in the port of New York.” The Massasoit continued in service under this charter-party until the 26th November, 1863, when that contract was put an end to and a new one made. For 149 days of the service the petitioner only received $125 a day, making a short payment to him under the charter in question of $3,725.
    No inference of acquiescence can be drawn from the act of the agent of the owner in receiving the amounts which were paid him. They were received only after he had refused, as well as the owner, to accept the reduction,- after he had protested against it; after he had demanded the return of his vessel,, which demand was not complied with; and when he took the amounts; and because he “ understood he was either to receive what they offered or get nothing.”
    The contract of charter-party bound the defendants to employ the steamer for the space of three months or more, and the pay of $150 a day was to continue until the said steamer was discharged from service in the port of New York. Pay is due until the vessel is discharged; she was not discharged at or during the time his pay is docked; therefore she must be paid for that time. It is no answer to say, as the Quartermaster-General does, that she was during the time undergoing repairs, since those repairs were necessitated by the damage she received in the defendants’ service, and the defendants had, by an express stipulation in the charter, agreed to bear “ the war and all other risks.”
    As to the origin of the damage which rendered the repairs necessary, see the testimony of James L. Crane, the master of the steamer, who testifies to the entries on her log-book. The witness says the stumps injured her bottom severely, causing her to leak, starting her planks and timbers, &c.; says there was time lost in making the repairs these damages rendered necessary. The time lost was about twenty days, and was the result of the damages sustained while the boat was in the service of the G-overnment, compelled finally to cometo New York for more permanent repairs.
    It appears that the time lost in those temporary repairs in North Carolina was twenty days. Now, while making them, she was always in the service of the defendants, since, by the contract, that service could be put an end to in no other way than by her discharge in New York.
    Under the general principles of law applicable to cases of this sort the defendants continue to be liable for the repairs of the vessel while she is undergoing repairs.
    Where a ship was chartered for £200 sterling a month, and in proportion for any longer time she might be employed, on a voyage from St. Thomas to St. Domingo, thence to Liverpool and London, to be kept tight, stanch, and strong at the owner’s expense; and where the vessel needed repairs at St. Domingo, which occupied twenty-eight days; and having been driven by stress of weather into Liverpool, where she was again repaired, keeping her ten days; and where the owner demanded pay for the whole time, including the thirty-eight days occupied in repairs, and this the charterer was obliged to pay in order to obtain possession of his goods, and the charterer brought assumpsit to recover back the amount thus paid, the jury, under the instruction of the lord chief justice, found for the defendant. On a motion for a new trial, Abbott, C. J., said: “I am of the opinion that the plaintiffs were entitled to pay the whole sum demanded for freight, and, consequently, that they cannot recover any part of the money paid by them on that account. There is in the charter-party an express stipulation for the payment of freight from a certain day for six months certain, and so much longer as the vessel shall be employed by the plaintiffs. There not being any other stipulation for the ease of repairs, I think that the ship was in the employ of the plaintiffs while the" repairs were going on, and that they were liable to pay freight during that period.” Bayley, J.: “ The construction contended for depends entirely upon the use of the equivocal word £ employment.’ The law would imply a stipulation on the part of the owner to keep the vessel in repair, and therefore the introduction of that undertaking into the charter-party does not affect the question. But the payment of freight is to commence from a certain day, and so continue until her arrival into dock at the homeward port of discharge. That shows the understanding to have been that the vessel should be considered in the employ of the plaintiffs, and that they should pay freight during the whole period of her absence from this country.” Littledale, J., concurred. (Ripley v. Seaife, 5 Barn. & Ores., p. 167.)
    A similar ruling was made by Ellenborough, O. J., in Same-lock v. Oeddes' and others, in 10 East, p. 555; and by Loring, J., in Schultz & Marldey’s Case, (3 C. Cls. R., p. 56.)
    The defendants held toward the owner two different relations — that of employers of the vessel and. that of his underwriters — their obligation in these two capacities are quite distinct, because, liable to pay for the repairs, they are none the less liable to pay for the hire. During the time lost in making the repairs the petitioners had no control of her.
    As to w'iat is claimed in the third count: We find that the steamer was employed by the defendants for purposes entirely foreign to those for which she was adapted by her construction, and for which, by the charter-party, she was bound to serve. She was constructed entirely for commercial purposes. The charter-party destined her to be employed only for such, but when they took possession of her, the defendants used her as a gun-boat, mounted her with cannon, and engaged in actual and active fighting with her. By these means she was greatly damaged.
    
      Mr. Alexander Johnston (with whom was t\\e> Assistant Attorney-General) for the defendants:
    . The claimant assented to the reduction. First, by the direct act of the master of the vessel, in writing such assent to Lieutenant-Colonel Biggs. The vessel had served out her time, and was liable to be discharged at any time. The master’s authority to make an arrangement or a contract by which the vessel would be retained in the service is beyond question; and the owner is bound to the performance of every lawful contract made by the master, (Ab. on Sh., p. 124;) second, by voluntarily leaving his vessel in the Government service and receiving the reduced rates. .
    It appears from claimant’s testimony that these repairs were completed on the 24th day of February, 1883; but for some reason, not apparent from the record, the deduction of time was between March 6 and April 5,1863. The deduction was "for thirty-two days; but afterward, on the 30th of December, 1864, tlie matter was settled by allowing full rates for twelve of these days, and $50 por day as running expenses for the other twenty days. With this settlement the claimant manifested no dissatisfaction until the filing of his petition in this case. The defendants are not liable for the claim set up in this count, because they are not liable for the hire of the vessel when not employed. As insurers, they have fully discharged all their liability in the matter by repairing the vessel and making good to the claimant his loss occasioned by his vessel being idle while repairing. The claimant, knowing the established rule of the Government no,t to pay the per diem of a vessel while repairing, conformed to this rule, fully settled this claim on the basis offered, and received payment upon such settlement.
    After being a year and a half in the Government service in southern waters, the vessel “ had permission to come to New York tomaketlie repairs.” There is no proof of any specific damage which rendered these repairs necessary. The damages proved had been repaired previously by the Government. Captain Crane swears that the repairs made in New York “ were rendered ''necessary by the damages sustained by the boat in the Government service.” Sneden, the ship-builder who made the repairs, testifies that “ the damage done to the boat at that time was caused by the general use of the boat and the business she was in in the South.” Anthony, a ship-carpenter, testifies: “ I did not know what caused the damage; she looked to me as though she had been pretty well wrecked in some way or other. She had had hard usage. She looked as though she had been in a heavy sea-way or something.” The defendants were only liable as insurers; and as insurers they were not liable for anything but injuries resulting from extraordinary casualties. “There must be something fortuitous, accidental, andnotneces-sarily arising from the ordinary course of the voyage, to make the underwriters liable.” (Arnould Mar. Ins., p. 691, and cases there cited.)
   Lobing, J.,

delivered the opinion of the court:

The petitioner claims, first, for reductions made during the continuance of the two charter-parties on which he sues in the •per-diem compensation stipulated in them. But the evidence , showed that,, after the several reductions were made and known to the petitioner, he continued his vessel in the service of the United States and receipted for the reduced payments made to him as payments in full; and this we think is evidence of his assent to the reductions. On the facts found he had his election to demand the release of his vessel and withdraw her from the service altogether or to continue her in the service at the reduced rates; ahd he elected the latter.

The petitioner claims, secondly, to be paid the per-diem compensation of $150 per day for twenty days’ service lost to him while his vessel was being repaired by the United States at Wilmington, N. 0. The evidence shows that the master of the vessel demanded payment at the charter rate for these twenty days, and protested against the non-payment at the time; but the evidence also showed that subsequently the matter was arranged betwmen the United States and the petitioner, for it showed that an account was stated between them, specifying the loss of twenty days’ service, in which the petitioner was allowed for these $1,000, being at the rate of $50 per day for running expenses, and he receipted for the payment of the amount allowed him as a payment in.full for the twenty days’ service and the account. The evidence showed, therefore, an account stated, and the payment of the balance found receipted for as payment in full.

Then the petitioner claims theper-diem compensation of $150 for fifty-three days’service lost in sending the vessel to New York for repairs, for repairing her there, and returning her to the service in North Carolina, and on the facts that the repairs were made necessary by the injuries to the vessel sustained in her running on stumps in navigating the rivers of North Carolina and in firing the cannon placed on board of her.-

As to the former injuries, it is not shown or suggested that her running on the stumps was from any want of care or skill on the part of her officers and crew, and it was a risk incident to the navigation in which she was employed and- extraneous to the vessel and independent' of her condition and was therefore a marine risk, in the strictest sense of those words, as they have been construed and applied ever since the law of maritime insurance existed; and in the charter under which the vessel was then employed the United States assumed all u the iva-r and all other risks,” and therefore these.

As to the injuries sustained by the use of the cannon put on board of her by the United States: The vessel was chartered for freighting, to which she was adapted, and she was • not adapted nor chartered for a gun-boat. The United States, therefore, were not authorized by the contract to put and use a cannon on board of her for firing on the enemy without the assent of her owner, and they were expressly notified of his dissent by the objection and protest of her master; and as the. act of the United States was unauthorized, it was an abuse of the-vessel, in violation of the contract, and they are liable for its consequences; and the injuries thus sustained were specified' and proved in the evidence.

Then the facts find that the repairs put on the vessel in New York were made necessary by the injuries sustained from the causes above stated; that they were made with reasonable dispatch ; and that the amount claimed for them in the petition, viz, $3,500, was reasonable, and paid by the petitioner.

On these grounds we adjudge that the petitioner was entitled to recover the cost of the vessel’s repairs in New York, and the per-diem compensation of $125 per day, which she was then earning, for the fifty-three days lost from her service by her repairs in New York, less $50 per day for the cost of her running expenses, saved during that time. This amount of $50 per day was paid by the United States as the cost of her running expenses while she -was repairing at Wilmington, and is therefore adopted as the allowance for her running expenses, while repairing at New York.

Drake, Oh. J.,

dissenting:

I do not concur in the judgment of the court allowing the claimant for the fifty-three days’ detention of the vessel while, she was undergoing repairs, and for the cost of snob repairs; because I hold that the necessity for repairs came from the general wear and tear of the vessel, and not from any bad usage by the Government, nor from any risk which the Government, in the charter-party, assumed.

The claimant, in the charter-party, engaged that the vessel should be “ kept tight, stanch, well-fitted, tackled, and provided with every requisite, and with men and provisions, necessary for such a voyage.” This imposed on him the obligation to make all repairs, the necessity of which resulted from the general wear and tear of the service for which she was chartered.

The Government assumed the war risk and all other risks, and thereby became an insurer, 1, against war damage to the vessel; and, 2, against all other risks which an insurance company would insure against; ueither of which includes general wear and tear.  