Tug boats were chartered to the United States for a
per
diem for each and every day of the charter period, the owner
agreeing to furnish everything for them, except coal and water,
which were to be furnished by the United States; the government had
the entire use of the boats ,and they were subject at all times to
the orders
Page 267 U. S. 282
and directions of its officers.
Held a demise, and that
the United States was not entitled to make deductions from the
owner's monthly bills for loss of service caused by short crews,
ill condition, delay in taking on supplies, and by the sinking of
one of the boats, which was raised and repaired by the owner. P.
267 U. S.
286.
8 Ct.Clms. 497 affirmed.
Appeal from a judgment of the Court of Claims allowing the
claimant, appellee, recovery of deductions made by the United
States from the bills rendered by the claimant under a charter of
tug boats.
Page 267 U. S. 285
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
This proceeding was instituted to recover the sum of deductions
made by the United States from monthly bills rendered by appellee
for the hire of tugs.
During 1917 and 1918, under informal charters evidenced by
letters, appellee hired twelve tugs to the United States for use in
and about New York Harbor. The specified price was
"for each and every day of the charter period,' and the owner
agreed 'to furnish everything for these tugs with the exception of
coal and water, which you are to furnish."
The vessels reported for service in accordance with the several
contracts, and the plaintiff rendered monthly bills
Page 267 U. S. 286
at the
per diem rate stated therein. Those for
December, 1917, were paid as rendered. Thereafter, deductions were
made which amounted in all to $24,822.48. They were based upon the
vessels' logs, kept by their captains and engineers as directed by
the Army Transport Service, and were entered if a boat reported
with a short crew, or not in condition to perform the service
required, or if too long a time was consumed in taking on supplies.
The owner saved its right through proper claims and protests.
While in the service of the United States, the
Ira M.
Hedges sank. It was raised and repaired by and at the expense
of the owner, and was subsequently used by them. One of the
challenged deductions was for loss of time incident to this
accident.
"During the time when the tugs hereinbefore mentioned were in
the service of the government, the Army Transport Service had the
entire use of the tugs, and they were subject at all times to the
orders and directions of the officers of the government, and at no
time during the period did the plaintiff have the use of, and [it]
did not in any way interfere with or direct the operations of, the
said tugs."
The United States maintain that the owner did not part with
possession, command, and navigation during the charter periods;
that the charter was for service, and not a demise, and that
consequently they rightly made deductions for the time the vessels
were not at their disposal.
Relying upon the doctrine approved in
United States v.
Shea, 152 U. S. 178, the
Court of Claims concluded that the charter amounted to a demise,
and that the deductions were not permissible. It accordingly
sustained the claim of the owner, appellee here. Accepting the
facts as found, we agree with that conclusion and affirm the
judgment.
