the return of the vessel.

payable until the end of the stipulated term and | of the first part shall have the power to bire vessels elsewhere in open market at the sole expense and charge of the party of the

[No. 396.]

Submitted Jan. 8, 1994, Decided March 5, 1894. second part.

APPEAL from a judgment of the Court of Claims, in favor of Daniel Shea, against the United States, for the amount due for the hiring of a vessel. Affirmed.

The second and third findings are as follows: 2. "After the making of said contract, and before the expiration of the fiscal year (June 30, 1887) upon being called upon by the [180 quartermaster's department therefor, the claimant provided and furnished a vessel called the Statement by Mr. Justice Brewer: James Bowen, then staunch, in first class order The facts of this case are stated in the find- in every respect, well equipped, and conformings of the Court of Claims. The first is that ing fully to the requirements of the law, and on May 28, 1886, the petitioner entered into a with such part of the crew as the claimant was contract with the Deputy Quartermaster Gen-required by the contract to furnish, and the eral of the Army for and in behalf of the United States, the important articles of which are as follows:

same was accepted and used by the defendants. 3. "On the first day of January, 1887, while in the service and under the exclusive management and control of the quartermaster's department, and having an unlicensed captain or pilot, said vessel was damaged in a collision with a ferryboat, in consequence of which she was necessarily laid up for repairs until March 2 of the same year, when, on the next day, she resumed work.

"The collision occurred during a fog, and the supervising inspectors, on an investigation, found that it was accidental and was not due to inattention, unskillfulness, or lack of precaution on the part of the pilots. The cost of repairs was paid by the claimant.

"Article 1. That the said Daniel Shea shall provide and furnish to the party of the first part, whenever called upon, during the fiscal year ending June thirtieth, eighteen hundred and eighty-seven, such vessels of the descriptions hereinafter given as may be required to take the place of the vessels now performing service for the U. S. Army between New York City and Governor's Island, New York, Governor's Island and Sandy Hook, and New York 179] Harbor generally, respectively, the steamers Atlantic, Ordnance and Chester A. Arthur; that the vessels furnished as aforesaid must each have an engineer and fireman, and During the time said vessel was undergoconform to the following conditions, viz: The ing repairs, the claimant, being called upon steamer to take the place of the Chester A. Ar- therefor, furnished another vessel under said thur must be of about the size and the char contract, for which he paid $55 a day. Duracter of the Chester A. Arthur, and the steam- ing said time the engineer and fireman of the ers to take the places of the Atlantic and Ord-claimant were on the vessel watching and sunance, respectively, must have the capacity perintending the work." for freight and passengers and be of the size and character of the steamer James Bowen; and that all the vessels furnished must be staunch, in first class order in every respect, well equipped, and conform fully to the requirements of the law.

"It is further agreed that the fuel required by said vessels so furnished while in service, under this agreement, shall be supplied by the government, and that this contract shall commence on the first day of July, eighteen hundred and eighty-six.

"And it is further agreed that the party of the second part shall furnish, when required, the remainder of the crew, consisting of a captain, a mate, two deck hands and a fireman.

*

*

*

64

There is no express finding that any sum was ever paid to the petitioner on account of this contract. It appears however, from the fourth finding, that, on April 1, 1887, the Deputy Quartermaster General forwarded to the Quartermaster General a voucher, of which the following is a copy:

The United States to Daniel Shea, Dr.
Place and date.

N. Y. City, April
1, 1887.

Dols. Cts.

*which voucher was accompanied with [181 a recommendation that authority be granted to pay the same, and the following explanation:

"The facts are as stated berein. The James Bowen was under charter to the quartermas ter's department, and, as the Quartermaster General is aware, was, on the 1st of January, 1887, on one of her trips between the Battery and Governor's Island, run into by the Brook

"Art. 4. That for and in consideration of the faithful performance of the stipulations of this agreement the party of the second part shall be paid, at the office of the disbursing quartermaster U. S. Army, at New York city, as follows: The sum of sixty-seven (67) dollars per day for each vessel employed, including the engineer and fireman, when employed by the day, and the sum of ten (10) dollars per hour for each vessel employed, including the en-lyn ferryboat Atlantic. gineer and the fireman, when employed by the hour; and for the said remainder of the crew, when required, the sum of thirteen dollars per day.

Art. 5. That in case of failure of the said party of the second part to comply with the stipulations of this contract, according to the true intent and meaning thereof, then the party

"The James Bowen was at the time under the exclusive control and management of the government, being manned and navigated by employés of the Quartermaster's department.

In the collision, the James Bowen was very badly damaged, and while undergoing repairs her owner was compelled to hire a vessel in her stead. The within claim is made for re

imbursement of that expense. I regard it as
perfectly proper, reasonable and just, and
therefore recommend its payment.
Henry C. Hodges,
"Deputy Q. M. Gen. U. S. Army, Depot
Quartermaster."

That on April 6, 1887, the Quartermaster General called upon the Deputy Quartermaster General for further particulars, and received in response a letter, copied at length, the latter part of which is as follows:

been due to the negligence of any one connected with the management of the James Bowen, and not due to the ferryboat (with which the collision occurred) the United States could not be charged with that negligence. The Second Comptroller on the same day concurred with the Auditor in disallowing the claim, and it has not been paid."

*On these facts thus found the Court [183 of Claims decided as a conclusion of law that the plaintiff was entitled to recover the sum of $4087.

Messrs. J. E. Dodge, Assistant Atty. Gen., and Conway Robinson, for appellant:

When the party enters into that which on the face of it appears to be an agreement, though they are words of present demise, yet, if you collect on the face of the instrument the intent of the parties to give a future lease, it shall be an agreement only.

Christie v. Lewis, 2 Brod. & B. 436; Morgan v. Bissell, 3 Taunt. 72.

"The James Bowen was under charter to and employed by the quartermaster's department at the time of the collision under the contract of Daniel Shea, dated May 28th, 1886. Immediately after the collision the contractor was called upon to furnish another vessel under this contract. He furnished the steamer E. H. Webster, one of his own boats. That vessel, although a very staunch, good boat, was not entirely satisfactory for the service, and, upon search, the Joseph Stickney was found and put on the duty by the contractor. The E. H. Webster was on duty from January 1st to 4th, inclusive, and the Joseph Stickney from January 5th to March 21, 1887. During Saville v. Campion, 2 Barn. & Ald. 511. this time the James Bowen was undergoing re- Where the general owner, etc., contracts to pair of the damage done in the collision. As carry a cargo on freight, for the voyage, the the James Bowen was at the time wholly in charter party is considered as a mere affreightcharge and under the management and control ment, sounding in covenant, and the freighter 182] of the quartermaster's department, *I is not clothed with the character or legal rewas under the opinion, and am still, that the de-sponsibility of ownership. partment was bound to save the contractor from loss on account of the damage and to pay for her time under the contract until restored to her owner upon completion of the repairs.

"With this in view she was reported on my report of persons and articles for January, at the contract rate, viz: $67 per day, including an engineer and a fireman. Upon further reflection, however, I concluded to allow for the Bowen's time only at the rate which her owner was obliged to pay for the vessel put in her stead. One of these, the E. H. Webster, was his own and was in service, as before stated, from January 1st to 4th, and the other, the Joseph Stickney, was hired by him at $55 per day, and was in service from January 5th to March 2d. So the matter stands thus:

"The E. H. Webster was in service from January 1st to 4th, and the Joseph Stickney from January 5th to March 2d, and has been paid for. The James Bowen was laid up from January 1st to March 2d, inclusive, and her time has not been paid for, but I recommend that her owner be paid at the rate of $55 per day for the vessel. I enclose herewith a Voucher covering the time, as well as the item for an engineer and a fireman, embraced in Shea's claim in article 1 of this letter. If the Quartermaster General desires, supplementary reports of persons and articles covering this service will be prepared and forwarded immediately."

On May 17 the Quartermaster General transmitted the claim and voucher to the Third Auditor of the Treasury for adjudication and settlement.

The 5th finding is that on "November 29, 1887, the Auditor reported against paying the claim on the alleged ground that the boat was wholly under the control of the owner and his agents and employés, and if the injury had

The whole instrument contains matter of contract and covenant only.

Marcardier v. Chesapeake Ins. Co. 12 U. S. 8 Cranch, 48, 49 (3: 483, 484); Clarkson v. Edes, 4 Cow. 476, 477; Leary v. United States, S1 U. S. 14 Wall. 611 (20: 756).

In the present case, the implied contract is such as arises upon a simple bailment for hire, and the obligations of the parties are those which are incidental to such a bailment.

As negligence is not attributable to the employés of the government in this case, the loss of the vessel must fall on the owner.

Clark v. United States, 95 U. S. 542 (24: 519). Where a collision takes place by inevitable accident, or without blame being imputable to either party, the loss rests where it falls, and must be borne by the party on which it happens to light.

1 Parsons, Ship. & Adm. 525; Shaw v. United States, 93 U. S. 239 (23:881); Merrill v. Arey, 3 Ware, 217; Ames v. Beldon, 17 Barb. 517.

The fact of the vessel having an unlicensed captain or pilot is wholly immaterial, for it in no way caused or contributed to the accident.

The Blue Jacket v. Tacoma Mill Co. 144 U. S. 389, 390 (36: 477, 478); Clark v. The Farra gut, 77 U. S. 10 Wall. 334 (19: 946); Peters v. The Dexter, 90 U. S. 23 Wall. 69 (23: 84; Shirley v. The Richmond, 2 Woods, 58; The Buckeye, 11 Biss. 94; The Tillie, 13 Blatchf. 518.

The government could not in any possible way be held for or responsible for, the injury or damage which resulted from the collision.

Where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding accident or inevitable necessity, because he might have provided against it by his contract.

Ellis v. Atlantic Mut. Ins. Co. ("The Tornado") 108 U. S. 352 (27: 751); McKee v. Hechsher, 10 Daly. 393; The B. F. Bruce, 50 Fed. Rep. 123; The Mary Riley v. Three Thousand Rail

road Ties, 38 Fed. Rep. 255; Goodwin v. United | connection with the action of the parties thereStates, 84 U. S. 17 Wall. 517 (21: 669); Mit- under. Was this a contract of hiring or for chell v. United States, 96 U. S. 163 (24: 703); service? In Reed v. United States, 78 U. S. 11. Wilkinson v. Dalferes, 27 La. Ann. 380.

This is not a marine cause. The James Bowen was merely acting as a ferryboat, and collided with another ferry boat in a har

bor.

United States v. The Wm. Pope, 1 Newb. Adm. 259; United States v. The Jumes Morri son, 1 Newb. Adm. 253.

A claim for unliquidated damages is not a subject for settlement in the executive branch of the government.

Dunbar v. United States, 19 Ct. Cl. 493; Dennis v. United States, 20 Ct. Cl. 120.

Wall. 591, 600 [20: 220], it was said by Mr.
Justice Clifford, speaking for the court:

"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 genThe departments have no cognizance of eral owner retains the possession, command, claims for unliquidated damages founded on and navigation of the ship, and contracts for neglect or breach of duty of public officers. a specified voyage, as, for example, to carry a Pitman v. United States, 20 Ct. Cl. 255; cargo from one port to another, the arrangeBrannen v. United States, 20 Ct. Cl. 223; Mc- ment in contemplation of law is a mere afClure v. United States, 19 Ct. Cl. 180; Pope v. | freightment sounding in contract and not a United States, 21 Ct. Cl. 50; Gibbons v. United demise of the vessel, and the charterer or States, 75 U. S. 8 Wall. 274 (19: 454); Morgan freighter is not clothed with the character or v. United States, 81 U. S. 14 Wall. 534 (20: 739); legal responsibility of ownership. . . . Courts Pope v. United States, 14 Ct. Cl. 446; 19 Ct. of justice are not inclined to regard the conCl. 693. tract 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.

Messrs. Franklin H. Mackey and John W. Butterfield, for appellee:

The agreement between Hodges and Shea was a charter party pure and simple.

Clarkson v. Edes, 4 Cow. 470; Marcardier v. Chesapeake Ins. Co. 12 U. S. 8 Cranch, 49 (3:43); Spring v. Gray, 31 U. S. 6 Pet. 151 (8: 352); 1 Parsous, Maritime Law, 237.

If the owner retain possession, command, and navigation, and lets merely the capacity or burden of the vessel, it is not a true char ter party, but a mere contract of affreight

ment.

Donahue v. Kettell, 1 Cliff. 135; Leary v. United States, 81 U. S. 14 Wall. 607 (20: 756); The Erie, 3 Ware, 225.

Such a charterer is liable for the time consumed in repairs if the vessel is injured while in bis control.

Hardlock v. Geddes, 10 East, 555; Ripley v. Scaife, 5 Barn. & C. 167; Abbott, Shipping, 43, 218; 1 Parsons, Maritime Law, 259; Flanders, Shipping. $ 531, 532.

TheJames Bowen," until discharged by the proper oflicer, must be considered to all intents and purposes as in the government's employ.

Terry v. United States, 9 Ct. Cl. 233; Fogg v. United States, 5 Ct. Cl. 264; Smith v. United States, 9 Ct. Cl. 237.

In order to know what the contract means, we must look to the intention of the parties in making it and their understanding of it.

Scott v. United States, 79 U. S. 12 Wall. 444 (20: 438); Southwestern Mut. L. Ins. Co. v. Gridley, 100 C. S. 616 (25: 747); Wolsey v. Chapman, 101 U. S. 755 (25: 915); Oates v. First Nat. Bank of Montgomery, 100 U. S. 239 (25: 580); Jones v. New York Guaranty & 1. Co. 101 U. S. 626 (25: 1034); Read v. Merchants Mut. Ins. Co. 95 U. S. 30 (24:349);

186] *Mr. Justice Brewer delivered the opinion of the court:

This case turns upon the construction to be given to the contract of May 28, 1886, taken in

And subsequently, in Leary v. United States, 81 U. S. 14 Wall. 607, 610 [20: 756], Mr. Justice Field thus discussed the question:

"If the charter party let the entire vessel to the charterer with a transfer to him of its command and possession and subsequent [187 control over its navigation, he will generally be considered as owner for the voyage or service stipulated. But, on the other hand, if the charter party let only the use of the vessel, the owner at the same time retaining its command and possession, and control over its navigation, the charterer is regarded as a mere contractor for a designated service, and the duties and responsibilities of the owner are not changed. In the first case the charter-party is a contract for the lease of the vessel; in the other it is a contract for a special service to be rendered by the owner of the vessel. . . . All the cases agree that entire command and possession of the vessel, and consequent control over its navigation, must be surrendered to the charterer before he can be held as special owner for the voyage or other service mentioned. The retention by the general owner of such command, possession, and control is incompatible with the existence at the same time of such special ownership in the charterer."

See also Hooe v. Groverman, 5 U. S. 1 Cranch, 214 [2: 86], in which these words in the charter party, "doth grant and to freight let... the whole tonnage of the vessel," were held the operative words, and indicating in connection with other language a contract for service rather than a demise of the vessel. Marcardier v. Chesapeake Ins. Co. 12 U. S. 8 Cranch, 39

[3: 481], in which Mr. Justice Story, speaking and that they were liable to pay freight during for the court, said: "A person may be owner that period." for the voyage, who, by a contract, with the See also Spaford v. Dolge, 14 Mass. 66, in general owner, hires the ship for the voyage, which a vessel was hired to make a certain and has the exclusive possession, command, voyage "at the rate of three dollars a ton per and navigation of the ship. Such is under-month, and so in proportion for a less time as stood to have been the case of Vallejo v. Wheeler, Cowp 143. But where the general owner retains the possession, command, and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter party is considered as a mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership." Gracie v. Palmer, 21 U. S. 8 Wheat. 605 [5: 696]; McIntyre v. Boune, 1 Johns. 229; Hallet v. Columbian Ins. Co. 8 Johns. 272; Clarkson v. Edes, 4 Cow. 470; 1 Parsons, Maritime Law, chap. 8, p. 232, § 2.