Reybold v. United States - 82 U.S. 202 (1872)
U.S. Supreme Court
Reybold v. United States, 82 U.S. 15 Wall. 202 202 (1872)
Reybold v. United States
82 U.S. (15 Wall.) 202
The government chartered a vessel during the war of the rebellion, the owners agreeing to keep her "tight, stanch, strong, well manned," &c., and to bear the marine risks, the war risks to be borne by the government. The vessel was to proceed "with the first good opportunity to such ports and places as ordered and directed by the quartermaster of the government." On the 20th January, 1865, the vessel being then in the Potomac at Washington and the navigation considerably obstructed by ice, the quartermaster consulted her captain about her condition and capacity and was informed that she was sheathed with iron, and was of capacity to take a certain number of men and horses which the government wanted to transport. The quartermaster then ordered the captain to receive the men and horses and to proceed on the nest morning down the river to City Point. The captain made no objection to the order, because, as he testified,
"he considered it imperative as a military order, and as such obeyed it, though if he had considered that he could have used his judgment, he would not have left the wharf, as he did not consider
Having accordingly received the men and horses, he set off. In going down the river, the vessel, though "tight, stanch, strong, well manned &c.," was wrecked by the ice. Held that the risk was a marine risk, not one of war, and that though the acquiescence of the master deprived the act of the quartermaster of being a tortious act, no recovery could be had in the Court of Claims.
Reybold, owner of the steamer Express, chartered her to the government under a charter party, whereby it was agreed
"That the vessel now is and shall be kept and maintained tight, stanch, strong, and well and sufficiently manned, victualed, tackled, appareled, and ballasted, and furnished in every respect fit for merchant service at the cost and charge of her owner. And when laden shall proceed, with the first good opportunity, to such ports and places as ordered and directed by the quartermaster of the United States."
"The war risks to be borne by the United States, the marine risks to be borne by the owner."
On the 20th and 21st of January, 1865, the vessel was at Washington, the Potomac River being then frozen over from bank to bank, the ice eight inches thick, and the channel alone, in which, nevertheless, masses of ice were floating, kept open by the current and by the passage of vessels. In consequence of this condition of the river, the navigation was suspended except by government steamers and the ferry boats. On the 20th of January, the master received an order from the quartermaster to take certain men and horses on board and proceed "tomorrow morning" to a place called City Point.
Previous to giving this order, the quartermaster, in answer to his inquiries, was informed that the vessel was sheathed with iron, and was of capacity to take the men, horses &c., by the captain, who made no objection to the order, because, as he testified,
"he considered it imperative as a military order, and as such obeyed it, though if he had considered he could have used his judgment, he would not have left the wharf, as he did not consider it safe. "
Having taken the men and horses on board on the 20th, he set off on the following morning for City Point.
While the vessel was crossing the river, her hull was crushed by heavy cakes of ice, and she filled and sank. The injury in sinking did not arise from any defect in the vessel or any fault on the part of her officers or crew. The Court of Claims found as conclusions of law:
1. That the peril was within the term "marine risks," and therefore to be borne by the owner.
2. That the charter party placed the steamer in the military service of the United States in a time of war, and that the term was to be construed in reference to that service, and included risks from perils of the sea and seasons incident to that service, and its exigencies.
3. That the steamer, being in the military service, was subject to military orders necessary for the proper performance of the service.
It accordingly gave its decree for the United States. And from that decree the owner of the vessel appealed.