In August, 1865, at the close of the rebellion, A. chartered a
vessel to the United States, at a fixed sum per day, to carry
military stores from Wilmington, North Carolina, to the City of New
York, A. warranting her to be then "tight, staunch, and strong,"
and agreeing that while in the service of the government, she
should be kept so, and that the time lost by her not being so
should not be paid for by the government, "the war risk to be borne
by the United States,
the marine risk by the owners." On
her voyage, she sprung a leak and put into the Island of St.
Thomas, raised money there on a bottomry bond, and with it was
repaired. Arriving in New York, and the bottomry bond not being
paid, the vessel and cargo were libeled by the holder of the bond,
attached by the marshal, and retained by him from the 10th of March
to the 30th of July, a space of one hundred and forty-four days,
when a decree was made against the vessel, and the cargo was
liberated. The vessel was discharged from the service of the United
States on the 7th of August following.
On a suit in the Court of Claims by A. to recover the
per
diem of $50 a day for the one hundred and forty-four days,
during which the vessel was detained by the marshal,
held
that the United States was not liable for a
per diem
during that term; that the detention was incident to the "marine
risk," which the owner had expressly assumed, and that, the United
States not having been blameworthy, there was nothing to shift the
burden from the party on whom the contract placed it.
Appeal from the Court of Claims, in which court one Goodwin, who
had chartered a schooner to the United States at a fixed
per
diem sought to recover the
per diem during one
hundred and forty-four days in which, under the circumstances
hereinafter mentioned, the vessel had been detained by the marshal
of the United States on a libel filed against her.
The Court of Claims dismissed his petition, and Goodwin took
this appeal.
MR. JUSTICE SWAYNE stated the case, and delivered the opinion of
the Court.
The charter party out of which this controversy has arisen
Page 84 U. S. 516
is dated on the 26th of August, 1865. It stipulates, among other
things (1), that the schooner was then, and while in the service of
the government should be kept, "tight, staunch, and strong" at the
cost of the owners, and that the time lost by the deficiency in
these respects should not be paid for by the United States. "The
war risk to be borne by the United States, the marine risk by the
owners." (2) The United States agreed to pay $50 per day for the
time the vessel was engaged in their service.
On the 17th of November, 1865, pursuant to the charter party,
the schooner left Wilmington, in North Carolina, for the port of
New York, laden with ordnance and ordnance stores. On her way, she
sprung a leak and was compelled to bear away and put into the port
of St. Thomas, in the West Indies, for repairs. There the captain
executed a bottomry bond, binding the vessel and cargo, and
amounting, principal and interest, to $17,399.71. Having received
the necessary repairs the vessel left St. Thomas on the 26th of
January, 1866, and reached New York on the 13th of February
ensuing. There, the bottomry bond not being paid at maturity, the
vessel and cargo were libeled in the district court, and, on the
10th of March they were attached on that proceeding. The district
court dismissed the libel. An appeal was taken to the circuit
court. That court affirmed the decree as to the cargo but reversed
it as to the vessel, and finally decreed against the latter for the
amount due on the bond. The vessel was held by the marshal under
the attachment from the 10th of March until the 30th of July. She
was discharged from the service of the United States on the 7th of
August.
A claim was made against the United States in general average.
It was adjusted and paid to the satisfaction of the owners. All the
per diem compensation claimed has also been paid except
that for the time the vessel was in the hands of the marshal.
Whether the claim for general average, and that for the time lost
by the vessel in deviating from her course, going to St. Thomas,
there awaiting repairs, and going thence to her port of destination
were not
Page 84 U. S. 517
covered by the marine risk she had assumed are questions not
before us, and which we need not therefore consider.
The claim of
per diem compensation for the time the
marshal held the vessel is the only ground of controversy between
the parties, and it is the only subject open for examination in
this case.
During that time she was in the custody of the law she was in no
wise in the employment of the United States nor subject to their
control. She did not, and could not render them any service while
thus held.
The United States had not stipulated to pay in such a
contingency. On the contrary, the detention was incident to the
marine risk which the owners had expressly assumed. It was a fruit
of that peril. The United States are not blameworthy and not
responsible. The contract puts all such burdens upon the shoulders
of the owners. Those burdens cannot be shifted and thrown upon the
other party.
Judgment affirmed.
