1. An order by the United States to the owners of a vessel,
during the rebellion, to get her ready, under pain of impressment,
to transport a cargo to a particular place and back, under which
order, though the owners protested against going, they got ready
the vessel and sailed with their own officers and crew,
held not to make the government owners for the voyage, but
to leave the possession with the general owners under a contract
for
per diem compensation from the commencement of the
voyage until the same was broken up, including also so many days in
addition as would have been spent if no disaster had occurred in
completing the return trip.
2. A voyage was held to have been "completely broken up" by a
vessel's being blown aground on the Missouri in July, 1865 (the
owners having then made their protest to cover insurance), she
having been swept off and totally destroyed by an ice freshet in
the river nine months afterwards. And this so held although her
engineer, a mate, and three watchmen were left to take care of her,
and a military guard sent to protect her, until a rise should occur
in the river; and though just before the boat was destroyed by the
flood and ice, her owners, and the government, in whose employ she
was, dispatched a pilot and crew to where the boat was aground to
get the boat afloat upon the rise of the river and to bring her to
her home port.
3. The government not having been owner for the voyage, the
expenses of the pilot and crew just named were not chargeable
against the United States, though both were sent by the owners of
the vessel after consultation with the quartermaster of the United
States at the port and for the purpose of protecting the interests
of the government as well as the interests of themselves.
"The claimants were, on the 1st of June, 1865, owners of the
steamer
Belle Peoria. She was then lying at her wharf in
St. Louis. The said owners were applied to by the United States
quartermaster, at St. Louis, to take a cargo of military supplies
to Fort Berthold, on the Missouri River about 1,700 miles from St.
Louis. They declined on account of the lateness of the season. They
were then ordered by the quartermaster to prepare for the trip, and
informed that in case
Page 78 U. S. 592
of refusal the boat would be impressed. They protested, but,
under the orders, got the boat in readiness, put on the cargo, and
left St. Louis on the 3d of June, 1865. The boat arrived at Fort
Berthold on the 22d of July, 1865, discharged her cargo, and
started on her return trip on the 24th of the same month. She
proceeded until the 26th, when a high wind sprung up, and she, in
attempting to land, was blown aground. All efforts to get her off
proved unavailing. After making all the effort that was deemed
advisable, and finding it impossible to get her off
until a
rise should occur in the river, the officers and crew left
her, leaving several persons in charge. The crew left her on the
31st of July, 1865, leaving on board one engineer, one mate, and
three watchmen, who were
to take care of the boat. These
remained until the 30th September. The officer in command at Fort
Rice also detailed and sent a military guard
to protect the
boat. The facts being communicated to the owners at St. Louis,
they made their protest in order to cover the insurance.
The boat remained aground until about the 15th of April, 1866, when
by an ice freshet in the Missouri River
she was swept
off and totally destroyed."
The quartermaster at St. Louis, when he seized the boat, fixed
her
per diem compensation at $272. She was paid at this
rate until the 10th day of August, 1865, being the time when
information arrived at St. Louis that she was aground, and the
captain and part of the crew returned. She was also paid, from the
10th of August to the 30th of September, at the rate of $101 per
day. This was while the engineer, mate, and watchmen remained on
board. From the 30th of September until the 30th of November, 1865,
vouchers were issued to the claimants at the rate of $80 per day,
which have not been paid. No vouchers were issued after that date.
On the 3d of April, 1866, the claimants dispatched a pilot and crew
up the Missouri River from St. Louis to where the boat was aground,
to get her afloat upon the rise of the river, and to bring her
down to St. Louis. These persons arrived at where the boat had
been aground, U.S. about the 18th day of April, 1866, and after the
boat had been destroyed
Page 78 U. S. 593
by the flood and ice. These persons were sent after consultation
with the quartermaster at St. Louis and for the purpose of
protecting the interests of the United States as well as those of
the claimants. The just and necessary expense incurred in these
efforts to save the boat amounted to $2,500.
After the destruction of the boat, the claimants applied to the
third auditor, under the provisions of the act of 1849, and its
supplements, for the payment of her value. These acts provide:
[
Footnote 1]
"That any person . . . who shall lose . . . or have destroyed by
unavoidable accident any . . . steamboat . . .
while such
property was in the service (of the United States) shall be
allowed and paid the value thereof at the time he entered the
service,
provided it shall appear that such destruction
was without any fault or negligence on the part of the owner of the
property and while it
was actually employed in the service of
the United States."
The claim was allowed and her value, as of the time of her
taking, June 1, 1865, fixed at $30,000, and which amount was paid
to the claimants. The accounting officers rejected the claim for
the
per diem compensation from September 30, 1865, until
April 15, 1866, when the boat perished, including the vouchers
until November 30, 1865. The accounting officers also rejected a
claim for $5,401.41, alleged to have been expended in efforts to
save the steamboat.
This suit was brought to recover the amount of these vouchers
and the
per diem compensation of the boat from November
30, 1865, to April 15, 1866, and also the expenditure made in
efforts to save the boat, making together the sum of
$21,161.41.
The court decided that the claimants were not entitled to
recover the amount of the vouchers up to the 30th of November,
Page 78 U. S. 594
1865, nor for the
per diem compensation of the boat
from November 30, 1865, till the 15th of April, 1866, but were
entitled to recover the $2,500, in efforts expended to save the
boat.
From this decision both parties appealed, the claimants, because
they did not have compensation for the use and detention of the
boat from the 30th September, 1865, when engineer, mate, and
watchmen left the boat, until the 15th of April, when she was
"swept off and totally destroyed." The United States appealed,
because they were charged with this $2,500 expenses.
Page 78 U. S. 600
MR. JUSTICE CLIFFORD delivered the opinion of the Court, both in
the appeal by Reed and the cross appeal by the United States.
I
. IN THE APPEAL
Affreightment contracts are of two kinds, and they differ from
each other very widely in their nature as well as in their terms
and legal effect.
Charterers or freighters may become the owners for the voyage
without any sale or purchase of the ship, as in cases where they
hire the ship and have by the terms of the contract, and assume in
fact the exclusive possession, command, and navigation of the
vessel for the stipulated voyage. But where the general owner
retains the possession, command, and navigation of the ship and
contracts for a specified voyage -- as, for example, to carry a
cargo from one port to another -- the arrangement in contemplation
of law is a mere affreightment sounding in contract, and not a
demise of the
Page 78 U. S. 601
vessel, and the charterer of freighter is not clothed with the
character or legal responsibility of ownership. [
Footnote 2]
Unless the ship herself is let to hire and the owner parts with
the possession, command, and navigation of the same, the charterer
or freighter is not to be regarded as the owner for the voyage, as
the master, while the owner retains the possession, command, and
navigation of the ship, is the agent of the general owner and the
mariners are regarded as in his employment and he is responsible
for their conduct. [
Footnote
3]
Courts of justice are not inclined to regard the contract as a
demise of the ship if the end in view can conveniently be
accomplished without the transfer of the vessel to the charterer,
but where the vessel herself is demised or let to hire, and the
general owner parts with the possession, command, and navigation of
the ship, the hirer becomes the owner during the term of the
contract, and if need be he may appoint the master and ship the
mariners, and he becomes responsible for their acts. [
Footnote 4]
On the first day of June, 1865, the assistant quartermaster of
the United States, stationed at St. Louis, applied to the
plaintiffs, as the owners of the steamboat
Belle Peoria,
to transport a cargo of military supplies from that port to Fort
Berthold, but the owners of the steamboat declined on account of
the lateness of the season. He then ordered them to prepare for the
trip, and informed them that in case of refusal, the steamboat
would be impressed. They protested, but under the orders given, got
the boat in readiness, put the cargo on board, and on the 3d of
June, 1865, left St. Louis for the place of destination, where the
steamboat arrived
Page 78 U. S. 602
on the 22d of July following, when she discharged her cargo and
on the 24th of the same month started down the river on her return
trip. She proceeded for two days in safety, when a high wind
"sprung up," and in attempting to land she was blown ashore and
grounded. All efforts to get her off proved unavailing, and
believing it impossible to do so until a rise should occur in the
river, the master, most of the other officers, and crew decided to
return, leaving on board the mate, one engineer, and three watchmen
to take care of the boat, aided by a military guard detailed and
sent from Fort Rice by the officer in command at that post.
Information that the steamboat was aground reached the owners at
St. Louis on the 10th of August, 1865, but she remained aground
until the 15th of April of the next year, when she was swept off by
an ice-freshet in the river and totally destroyed. When the
assistant quartermaster ordered the owners to prepare for the trip,
he fixed the
per diem compensation of the boat at $272,
which appears to have been satisfactory to the owners, as they were
paid at that rate to the time they received information of the
disaster, and they have presented no claim for any greater
allowance for that period of time. They were also paid at the rate
of $101 per day from the said 10th of August to the 30th of
September in the same year, covering the period, as stated in the
finding, that the mate, engineer, and the three watchmen remained
on board after the master and the rest of the officers and crew
returned. Vouchers were also issued to the plaintiffs at the rate
of $80 per day from the 30th of September of the same year to the
30th of November following, but those vouchers have never been paid
or recognized, and the plaintiffs sued the United States for the
amount of those vouchers and for compensation for the use of the
steamboat at the same rate from the time the last voucher was
issued to the time when the steamboat was swept off from the place
where she was grounded by the ice-freshet in the river and totally
destroyed.
Although the plaintiffs objected to the order of the
quartermaster at the time it was given, still it is quite
evident
Page 78 U. S. 603
that they ultimately consented to perform the service as matter
of contract, and that they were content to receive the
per
diem compensation fixed by the assistant quartermaster at the
time he gave the order. Abundant confirmation of that view is
found, if any be needed, in the fact that they voluntarily accepted
the prescribed
per diem compensation from the commencement
of the trip to the 10th of August following, when they received
information of the disaster, which was at the time when the master
and all the steamboat's company, except the mate, one engineer, and
three watchmen, returned to the port of departure, and that the
plaintiffs make no claim for any additional compensation during
that period. Compulsion is not set up by the plaintiffs, and if it
was, the theory could not be supported, as the jurisdiction of the
Court of Claims does not extend to torts. They have also been paid
for the value of the steamboat, and also a
per diem
compensation of $101 per day from the 10th of August to the 30th of
September, which is the date when the mate, engineer, and the three
watchmen also left the steamboat and returned to St. Louis. No
additional compensation is claimed for that period, but they claim
for the amount of the vouchers issued at the rate of $80 per day
for the two months next succeeding that period, and at the same
rate from the end of that period to the 15th of April in the
following year, when the steamboat was swept off by the ice-freshet
and was totally destroyed.
Judgment was rendered for the claimants for certain moneys, not
involved in this appeal, which were expended by them in efforts to
save the steamboat, but the petition, so far as respects the
per diem compensation, was dismissed, and the claimants
appealed to this Court.
Throughout the litigation, the plaintiffs have prosecuted their
claim as a matter of contract, and it is quite clear that it could
have no other foundation in the court where the suit was brought,
and of course it must depend upon the proper application of the
principles of commercial law to the facts of the case as found by
the Court of Claims.
By the terms of the contract, they were to carry the cargo
Page 78 U. S. 604
of military supplies from the port of St. Louis up the Missouri
River to Fort Berthold for $272 per day during the voyage,
including the return trip as well as the trip to the place of
destination, in full compensation for the entire services. By
necessary implication, the plaintiffs were to victual and man the
steamboat and keep her in a seaworthy condition, and in
contemplation of law they retained the possession, control, and
navigation of the steamboat, as the master was one of their own
selection and the crew were in their own employment, and they were
responsible for their conduct. Steamers require fuel as a means of
creating motive power, and it is quite obvious that it was the duty
of the plaintiffs to supply the steamboat with fuel for that
purpose as well as provisions for the officers and crew, and that
the master was their agent and not the agent of the charterers.
Well founded doubts cannot be entertained upon that subject, and if
those conclusions of fact are correct then it follows as a
conclusion of law that the plaintiffs, as the general owners of the
steamboat, were also the owners for the voyage and that the true
relation of the United States to the adventure was that of a
charterer for hire and shipper of the cargo. [
Footnote 5]
Through the assistant quartermaster at St. Louis, the United
States put the cargo on board the steamboat, at a fixed
per
diem compensation during the round trip, for transporting the
military supplies constituting the cargo to the place of
destination, the steamboat having the right to take a return cargo
from other shippers or to return in ballast, at the election of her
owners. She performed the trip up the river and delivered the cargo
in good condition and started on the return trip, the United
States, as the charterers, having no further interest in the voyage
except that the steamboat should return to the port of departure
without delay. All sea risks were unquestionably upon the owners of
the steamboat, as they were the owners for the voyage as well as
the owners in fact, and the record shows that they must have so
understood their own rights, as the statement
Page 78 U. S. 605
in the record is that when they received information of the
disaster, "they made their protest in order to cover the
insurance."
Suggestion may be made that the act of the United States in
paying for the value of the steamboat after she was swept off by
the ice-freshet and destroyed is inconsistent with the theory that
they were merely the charterers for hire, and that the plaintiffs
were the owners for the voyage as well as the owners in fact, but
the adjudication of the third auditor cannot change the rights of
the parties in respect to any matters not within his jurisdiction.
[
Footnote 6] Whether that
adjudication was correct or incorrect is not a question in this
case, and it is only referred to as showing that it cannot have any
weight in the decision of the case before the Court.
Freight, it is said, cannot be earned unless the voyage is
performed and the cargo is delivered; but the voyage in this case,
so far as respects the cargo, was performed and the cargo was duly
delivered to the consignees, and to that extent the freight was
earned; but the plaintiffs were entitled, under the contract, to
the same
per diem compensation during the return trip in
case it was performed without unnecessary delay, and it may be that
the United States could not have claimed any deduction from the
agreed compensation if the interruption in the voyage had been only
a temporary one, and the master, when the cause of interruption had
been removed or overcome, had proceeded with the steamboat to the
return port.
Whatever repairs became necessary in consequence of the disaster
would have been a charge to the steamboat or her owners, but it may
be that the plaintiffs would have been entitled to the agreed
compensation for the days spent in executing the repairs as well as
for the days actually spent in the return trip, but it is not
necessary to decide those questions in this case, and the Court
does not express any decided opinion upon the subject. [
Footnote 7]
Page 78 U. S. 606
But the interruption in the voyage was not merely a temporary
one of any proper sense of the term. On the contrary the voyage was
completely broken up, as fully appears from the fact that the
master and all the crew ultimately abandoned the steamboat, leaving
her where she was stranded, and that she remained there until the
15th of April of the next year, when she was swept off by the ice
freshet and became a total loss. Broken up as the voyage was by the
perils of navigation, no doubt is entertained that the plaintiffs
were entitled to the agreed
per diem compensation to that
time and to such further allowance at the same rate and for such
additional time as it would have required for the steamboat to have
completed the return trip. They had performed the whole of the
stipulated service for the United States and had delivered the
cargo to the assignees, and were proceeding on the return trip in
good faith, when the voyage was broken up by causes beyond their
control and without any fault on their part or on the part of the
master or crew
Unless a carrier assumes the risk of all contingencies, he is
not liable because he fails to perform what is rendered impossible
by the perils of the sea. Such events as are known as the accidents
of major force, or fortuitous events, or the acts of God, always
constitute an implied condition in every such engagement. [
Footnote 8] Neither party is at liberty
to abandon the contract without the consent of the other or without
legal cause, and such cause must not be one procured or occasioned
by the fault of the party who relies upon it. [
Footnote 9]
Different views have been expressed by different courts as to
the effect of a temporary interruption of a voyage upon the rights
of the owner of the ship and the shipper or charterer, but the rule
seems to be well settled that when the voyage is broken up by a sea
peril, that neither the shipper nor the charterer is in general
liable to the shipowner beyond the time when the peril occurred;
but that rule is more particularly applicable in cases where the
transportation of
Page 78 U. S. 607
the cargo is not complete, and it cannot be applied at all to
the case before the court without considerable qualification.
[
Footnote 10]
Reasonably construed, the contract gives the plaintiffs the
agreed
per diem compensation from the commencement of the
voyage until the same was broken up, including also so many days in
addition as would have been spent, if no disaster had occurred, in
completing the return trip. Apply that rule to the case, and it is
clear that the judgment of the court below must be affirmed, as the
United States, upon the most liberal computation, have paid more
than the contract would entitle the plaintiffs to demand. Payment
was made to the time when the mate, engineer, and three watchmen
returned home, and the plaintiffs have no right to claim anything
more.
Judgment affirmed.
II
. IN THE CROSS APPEAL
Supplies for the military service were transported by the
appellees from St. Louis up the Missouri River to Fort Berthold, as
more fully explained by the court in the case just decided. They
were the owners of the steamboat
Belle Peoria, and it
appears by the findings in the court below that the assistant
quartermaster at that station, on the 1st day of June, 1865,
applied to them to take such a cargo and transport it to that
place. Objections were made by the owners of the steamboat, as
explained in the preceding case; but they put the cargo on board,
and on the 3d of the same month started on the upward trip, and it
appears that they made the trip in safety, delivered the cargo to
the consignees, and without any unnecessary delay started on the
return trip. Two days after they started on the return trip the
steamboat encountered a high wind, and while those in charge of her
were endeavoring to land she was blown aground and became fast. All
efforts to get her off proving
Page 78 U. S. 608
unavailing, the officers and crew, except the mate, one
engineer, and three watchmen, left her and returned to the port of
departure. By the findings, it appears that the mate, one engineer,
and three watchmen remained on board to the 30th of September of
the same year, when they also left the steamer and returned.
Claim was made by the present appellees, in the case just
decided, for compensation for the service performed in addition to
what they had received; but it is unnecessary to enter into any of
those details, except to say that the boat remained aground until
the 15th of April of the following year, when she was swept off by
an ice freshet, and was totally destroyed. Before that occurred,
however, the owners of the steamboat dispatched a pilot and crew up
the river to the place where the steamboat was aground, to get her
afloat and bring her down the river, but the steamboat had been
swept off and destroyed three days before they arrived at the place
of the disaster. Expenses of course were incurred for the wages of
the pilot and crew, and for provisions and transportation, and the
court below found that those expenses amounted to the sum of
$2.500, and for that sum the Court of Claims rendered judgment for
the appellees, and the United States appealed to this Court.
Apart from what appears in the opinion delivered in the other
appeal, the only facts found by the court below in support of the
claim are what is exhibited in the following statement:
"These persons, meaning the pilot and crew, were sent, after
consultation with the quartermaster at St. Louis, and for the
purpose of protecting the interests of the United States as well as
those of the claimants."
Unless the United States, in contemplation of law, were the
owners of the steamboat for the voyage, they had no property
interests in the stranded steamboat, as the cargo had, two days
before the disaster occurred, been safely discharged at the place
of destination and duly delivered to the consignees. They were not
owners for the voyage, as the court has just decided, so that if
the statement is founded
Page 78 U. S. 609
on that theory it is error, and entitled to no weight; and if
not founded on that theory, it does not appear to rest on any
substantial foundation, as the court has decided in the other
appeal that the appellees, as the general owners and owners for the
voyage, assumed all risks from sea perils for the entire trip.
Temporary delays, if any had occurred, might have increased the
per diem compensation which the United States had agreed
to pay; but the voyage had been broken up and frustrated more than
six months before the pilot and crew were sent to the place of the
disaster for the purpose of getting the steamboat afloat. Suppose,
however, that it could be admitted that the United States had some
property interests in the steamboat, still the admission would not
benefit the appellees, as it is perfectly clear that the assistant
quartermaster had no authority to bind the United States in any
such arrangement. He did not attempt to make any contract, and
nothing of the kind can be inferred from the finding of the court,
even if it be competent for this Court to make inferences to
support the judgment, which is not admitted. All that is found is
that the owners of the steamboat consulted with the quartermaster
before they dispatched the pilot and crew to the scene of the
disaster, which falls very far short of evidence to prove a
contract, even if the quartermaster had been invested with
authority for any such purpose. Viewed in any light, the record
does not show any legal foundation for the judgment.
Judgment reversed and the cause remanded with directions to
dismiss the petition.
[
Footnote 1]
Acts of March 3, 1849, and March 3, 1863; 9 Stat. at Large 415;
12
id. 743, § 5.
[
Footnote 2]
Donahoe v. Kettell, 1 Clifford 137;
The
Volunteer, 1 Sumner 551;
The Spartan, Ware 153;
Gracie v.
Palmer, 8 Wheat. 605;
Clarkson v. Edes, 4
Cowan 470;
Taggard v. Loring, 16 Mass. 336;
Christie
v. Lewis, 2 Broderip & Bingham 410.
[
Footnote 3]
Putnam v. Wood, 3 Mass. 481.
[
Footnote 4]
Sherman v. Fream, 30 Barbour 478;
Reeve v.
Davis, 1 Adolphus & Ellis 312;
Frazer v. Marsh,
13 East 238;
Marcardier v. Chesapeake
Insurance Co., 8 Cranch 39; 1 Parsons on Shipping
278;
Campbell v. Perkins, 4 Selden 430.
[
Footnote 5]
Saville v. Campion, 2 Barnewall & Alderson 510.
[
Footnote 6]
9 Stat. at Large 415.
[
Footnote 7]
Abbott on Shipping 43;
Hawkins v. Twizell, 5 Ellis
& Blackburn 883;
Havelock v. Geddes, 10 East 555.
[
Footnote 8]
The Eliza, Davies' Admiralty 318.
[
Footnote 9]
Clark v. Insurance Co., 2 Pickering 108.
[
Footnote 10]
Palmer v. Lorillard, 16 Johnson 352.
