White v. United States, 11 Ct. Cl. 578

White v. United States

11 Ct. Cl. 578 | SCOTUS | 1875

Lead Opinion

Drake, Oh. J.,

delivered the opinion of the court:

On the 7th of March, 1864, the claimant chartered the steamer Wyoming to the United States, at Port Boyal, S. 0., and the charter-party contained a stipulation in these words :

“And thereupon the party of the first part, and his heirs, executors, administrators, and assigns, doth hereby covenant and agree to and with the said . party of the second part, that the said vessel now is, and shall be kept and maintained during the whole of the voyage mentioned in this contract, tight, staunch, strong, and well and sufficiently manned, victualed, tackled, appareled, and furnished in every respect fit for merchants’ service, at the cost and charge of her owners. The time lost in consequence of any deficiency in these respects not to be paid for by the United States.”

By the further terms of the charter-party the vessel was to be used in the military service of the United States, under the orders of the quartermaster of the United States Army.

The claimant alleges three causes of action:

*587I. That, through the misuse of the vessel by the military authorities, and the incompetencv and unskillfulness of the pilots and other officers placed upon her by the officers of the United States, agaiust the protest of the claimant’s agent, the steamer was injured and sustained damage, beyond what would ordinarily happen to a vessel employed in the service for’which she was chartered, in the sum of $50,000.

In support of this part of his demand the claimant showed in evidence that after the discharge of the Wyoming from the Government service he caused her to be repaired at New York, and expended in such repairs more than $17,000, but failed to prove that the repairs were made necessary by usage which amounted to a breach of the charter-party; and the court, therefore, found that “the condition of the vessel at the time of her discharge from the Government service, which made such repairs necessary, resulted from the ordinary wear and tear of the service in which she was engaged under the terms of the charter-party.” This finding leaves no foundation for this part of the claimant’s demand.

II. The second cause of action rests upon the acts of the officers of the Government in making certain deductions from the pay for the Wyoming’s services during the month of August, 1864.

The bill for those services amounted to $5,425; from which those officers deducted the following items :

For repairs put upon'the Wyoming at the Government shop.. $1,257 21

For quartermaster’s stores.-. 1,140 80

For commissary stores... .... 352 24

For lost time, 14^ days. 2,486 45

5,236 70

Against these deductions the agent of the claimant protested, declaring the most of them to be unwarranted and unjust; but stating that since it was impossible for him to receive payment without the deduction, he would accept the same, with the understanding, however, that his rights to a future investigation should be in no wise prejudiced. He did not specify which of the items he deemed unwarranted and unjust, nor did he indicate in what respect he considered any of them objectionable; *588but satisfied himself with the general terms stated, and then received the balance of $188.30, which remained due after the deductions were made.

It might be questioned whether a vague and general protest like that is a sufficient foundation for an attempt to set aside a settlement such as was made in this case; but as that question was not raised at the trial we will not discuss it here.

As-to the items of $1,257.21, for repairs, and $2,486.45, for lost time, there was no attempt by the claimant to disprove them, nor did he make any effort to show that they should not have been deducted from the earnings of the Wyoming, except on the ground of his general complaint against the usage of the boat on the Ashepoo River expedition, and in regard to that we have found that the condition of the boat when she returned from that expedition, which necessitated those repairs, was not the result of bad treatment of her by the Government officers, but of the failure of her captain to remove her from the bank of the Ashepoo River when ordered to do so; that the repairs were necessary to keep her from sinking; that the claimant had no facilities for making the repairs; aud that he was, therefore, compelled to ha.ve them made by the Government;. On the facts thus found we can see no cause of action whatever for the recovery of the $1,257.21.

As to the item for time lost, the charter-party expressly stipulated that “ time lost in consequence of deficiency ” on the claimant’s part in keeping the boat “tight, staunch, and strong,” should not be paid for by the Government; and it was therefore entirely proper that a deduction should be made of the stipulated wages for the time the boat was'laid up for repairs.

As to the items of $1,140.80, for quartermaster’s stores, and $352.24, for commissary stores, which were deducted from the earnings of the boat, it is sufficient to say that the claimant does not in his petition allege that they were not furnished to the boat by the Government, "nor does the court find anything in regard to them except that they were deducted from the amount due for the services of the boat. ÍTo evidence was offered to prove that they were unjustly deducted. There is, therefore, no ground for a recovery by the claimant of either amount.

III. The last cause of action set forth in the claimant’s peti*589tion is for $75, which he was obliged, by the Government officers, to pay to a captain put by them on the boat, in the place of his own captain, removed by them.

In regard to this, the facts, as found by the court, are that the claimant’s captain failed on one occasion to carry out promptly the instructions given him by the military authorities, when on a military expedition, and that in consequence thereof the commanding general of the Department of the South removed that captain from the command, and placed the vessel in charge of another captain, whose wages for the time he served in that capacity the claimant was required to pay, and did pay, without protest. His agent merely refused to pay it unless the captain appointed by the military authorities would write a receipt, showing the circumstances under which he got possession of the vessel. This demand, however, he aban doned, and paid the amount when informed by a quartermaster that if he did not pay it he could not have the vessel turned over to him. On these facts there is no ground for any claim against the Government. The payment was voluntary on the part of the claimant’s agent, and the money is not recoverable in this action.

No one of the causes of action set forth by the claimant has been sustained, and his petition, therefore, is dismissed.

Dissenting Opinion

Nqtt, J.,

dissenting:

I dissent from the judgment of the court upon the following points:

1. The Supreme Court has decided, with respect to these charter-parties, that they “ let only the use of the vessel,” the Government being “a mere contractor for a designated service,” the owners “retaining” “ command,” “possession,” and “ control over the navigation,” with all“ the duties and, responsibilities of owners” unchanged. (Leary’s Case, 8 C. Cls. R., p. 31 ; 14 Wall., p. 607.) If there be any principle of maritime law well settled, it is that the owners are entitled to the discretion of their master, and that when a ship leaves port the master is to be considered, for almost all purposes, the owners. Evicting him from the ship is, to all legal intents, evicting them.

It is not to be disputed that a military officer in a military exigency might have taken the vessel; but the taking would be like *590the impressment of any other property, by right of eminent domain, and not by virtue of a contract which provided that he should not take her, and that the owners should retain u command,” 11 possession,” and 11 control over her navigation.” It may also be conceded that for any damage done to the vessel during the period of impressment, the court is without jurisdiction to afford relief. But the decision of the court goes to an entirely distinct subject, and is in effect that, by virtue of the terms of this contract, which retained for the owuers “ command,vu possession,” and “ control over the navigation,” they might be evicted from their own ship and made to pay her additional running-expenses occasioned solely by their eviction.

The charter-party gave no such right to the charterers in terms, and the decisions of the Supreme Court, as I understand them, determine that it gave no such right by implication. The only right which the charter-party gave to the charterers was this, that if the vessel’s services, while she was navigated by her owners, through their master, did not please them, they might discharge her at any time. Therefore, it appears to me evident that the Government could not charge the vessel, under the contract, with the services of a master whom they had no right, under the contract, to intrude into the “ command” of the vessel.

But if any doubt remained in my mind, it would be removed by the fact that the services of this employé of the Government were not rendered during the exigency, but “ after the return of the vessel from the expedition.” It is manifest that if the military officers had a right under the contract to retain command and possession of the vessel a single day after her return from the expedition, they had a right, under the contract, to retain “command,” “possession,” and “control of her navigation” as many years as they chose to keep her in the service; which is a right the Supreme Court has decided belonged, under the contract, to the other party.

‘2. I also dissent from the conclusion of the court that the payment of this Government employé’s services was voluntary, for the reason that it is expressly found by the court that the owners did not pay until the quartermaster in possession notified them that if they did not they could not have their own vessel turned over to them again.

Payment to recover possession of one’s own property, illegally *591withheld, is payment under duress of goods, according to all the authorities; and the decision in this case, I think, is expressly in contradiction of the principle laid down in the Boston Bank Cases, (10 C. Cls. R., 519;) that while the Government cannot be held liable for the wrongful acts of its officers,11 neither can the Government set up the torongful acts of its officers to relieve itself from its lawful liabilities.” In this case its lawful liability is the agreed compensation of the vessel, and the wrongful act which it sets up is the illegal action of its quartermaster in compelling the owners to pay the Government’s debt. ,

3. I also dissent from the conclusion which the court has reached on the following finding of fact:

“Till. The claimant became entitled for the services of the Wyoming during the month of August, 1864, to the sum of $5,425; against which the officers of the Government charged the following items:

For repairs put upon her at the Government shop.. $1,257 21

For quartermaster’s stores..... 1,140 80

For commissary stores..... 352 24

For lost time, 14^ days. 2,486 45

5,236 70

“On the 14th of December, 1864, the agent of the owner of the Wyoming addressed to the Quartermaster-General of the Army a written protest against said deductions, declaring the most of them to be unwarranted and unjust; but stating that since it was impossible for him to receive payment without the deduction, he would accept the same, with the understanding, however, that his rights to a future investigation should be in no wise prejudiced. Thereafter said agent received and receipted for the balance of $188.30, which remained of the earnings of the boat for the month of August, after making said deductions. The repairs so charged against said earnings were those put upon her after her return from the Ashepoo-River expedition, and the 14^ days of lost time charged were the days in which she was laid up for those repairs.”

The ground of my dissent is that neither the pleadings, nor the evidence, nor the findings of the court aver that any such articles were ever furnished or any such repairs were ever made. To be available to the defendants in this suit, they clearly must be the subject of either set-off or payment in kind, and neither is alleged by the defendants, nor shown by the evidence, nor found by the court. All that is found is that the quartermaster “charged” them to the owners, and that the owners denied *592their liability for them. The Supreme Court decided in Henry’s Case (9 C. Cls. R., p. 22) that a finding that a mustering-officer “alleged,” in the proper exercise of his official duty, a regiment to be in such plight as to numbers that he could not legally muster in the claimant, was no finding of the fact $ and the finding in this case, that a quartermaster “charged”- a party with goods as sold and delivered is, I think, no better.