#### SILAS C. EVANS ET AL. v. THE UNITED STATES.

(No. 20992.

Decided April 1, 1907.)

*On the Proofs.*

To hasten the delivery of lumber a naval constructor offers to the contractor free of charge a Government tug to tow the sailing vessel on which-the lumber will be shipped. The contractor charters a brig, it being agreed that in consideration of free towage and that the tug shall abide by instructions of the master of the brig the owners waive all rights for damages for any fault or negligence on the part of the tug from errors of navigation. While proceeding on the voyage both vessels go aground upon a shoal. The owners of the brig now seek to recover from the United States because of the error of the master of the tug.

I. Where a Government officer offered a contractor the use of a tug free of charge to tow a chartered vessel on which was lumber to be delivered by the contractor to the Government, the gift was to the contractor. There was no privity between the defendants and the owners of the vessel.

II. There having been no abatement in the price of the .lumber and the tug having been furnished free of charge the transaction was *nudum pactum.*

*288III. At the common law a stranger to a contract can neither claim a benefit nor sustain a liability under it except in certain jurisdictions where a contract is made directly for the benefit of another.

ÍV. Where a tug is to abide by the instructions of the master of the vessel which she tows and he gives none the tug is relieved from all errors of navigation.

*The Reporters'*statement of the case:

The following are the facts of the case as found by the court:

I. That the petitioners, whose names are mentioned below, and whose interests hereinafter ajijiear, were, at the times mentioned, and still are, residents and citizens of the United States, and were the owners of the brig *Robert*Dillon, her tackle, appurtenances, etc., and have at all times borne true allegiance to the Government of the United States. The ownership of said vessel is divided into ninety-sixths, of which Silas C. Evans was the owner of 3, the estate of Martha J. Robinson 4, the estate of Joseph O. Robinson 5, Catherine J. Tahnadge 6, George H. Hoyt 6, George M. Blatchford 3, John F. Luther 6, Andrew A. Brenner 6, Julia Thorpe 9, Walter Thorpe 3, Henry D. Baker 3, Jacob S. Ellis G, E. Eugene Hawkins 9, Carrie L. Tyler 3, John P. Wyatt 12, Charles G. Endicott 8, and George E. Hammond 4, the above being the parts of ownership belonging to each individual interest in said vessel.

II. In July, 1897, the Government of the United States was engaged in the repairs of the dry dock at the Brooklyn Navy-Yard, New York, and had placed orders with Johnson Brothers, of New York, for yellow-pine lumber to be used for that purpose. Johnson Brothers afterwards placed this order with Charles S. Ilirsch & Co. By reason of various unfortunate circumstances the delivery of said lumber became very difficult, and United States Naval Constructor Bowles, who was the Government officer in charge of said Government work, offered to said Charles S. Hirsch & Co. that the Government would furnish a tug free of charge to said company if it would employ a vessel to be towed to and from New York to Brunswick, Ga., to bring said lumber for the use of the Government in the construction of said repairs.

*289III. Thereupon, and on or about the 6th day of October, 1891, the master and agent for the owners of the said brig *Robert*Dillon, and on behalf of said owners, chartered said brig, then lying in the port of New York, to the firm of Charles S. Hirsch & Co. for a voyage from Brunswick, Ga., to New York to transport and deliver a cargo consisting of resawn yellow-pine lumber and boards, and said vessel owners were to receive as compensation for the delivery of said cargo at the Brooklyn Navy-Yard in the city of New York the sum of $1,450, a copy of said charter party so entered into between said parties being as follows:

“ This charter party, made and concluded upon in the city of New York the 6th day of October, 1897, between John D. Wyatt, master and agent for the owners of the brig *Robert*Dillon, of New York, of the burden of 431 tons or thereabouts, registered measurement, now lying in the harbor of New York, of the first part, and Chas. S. Hirsch & Co., party of the second part,

“ Witnesseth that the said party of the first part agrees, in the freighting and chartering of the whole of the said vessel (with the exception of the cabin and necessary room for the crew and the storage of provisions, sails, and cables), or sufficient room for the cargo hereinafter mentioned, unto said party of the second part for a voyage from Brunswick, Ga., to New York, it being understood that the vessel is to be towed by a United States Government tug from New York to Brunswick and return free of charge, and that the master of the tug abide by instructions of the master of the Dillon, as to the manner of towing, on the terms following: The said vessel shall be tight, staunch, strong, and every way fitted for such a voyage, and receive on board during the aforesaid voyage the merchandise hereinafter mentioned. The said party of the second part doth engage to- provide and furnish to the said vessel a full and complete cargo under and on deck of resawn yellow-pine lumber and boards, and to 2iay to the said party of the first part, or agent, for the use of said vessel during the voyage aforesaid the lump sum of ($1,450) fourteen hundred and fifty dollars, and vessel to be free of wharfage at both loading and discharging places, payable in cash on proper delivery of cargo at port of discharge, free of commission or discount. Charterers as well as the owners of the *Dillon*agree that in consideration of free tow-age and in view of agreement that the tug shall abide by instructions of the master of the *Dillon*they waive any and all *290rights for damages or possible claim for any fault, negligence, or failure on the part of the tug from errors of navigation or any other cause incident to the towage.

“ It is agreed that the lay days for loading and discharging shall be as follows (if not sooner dispatched), commencing from the time the vessel is ready to receive cargo, at least forty thousand feet per running day, Sundays and legal holidays excepted, to be furnished the vessel for loading, and to be discharged under the rules of the Maritime Exchange of the port of New York. And that for each and every day’s detention by default of said party of the second part or agent forty-five dollars per day, day by day, shall be paid by said party of the second part, or agent, to the said party of the first part, or agent. The cargo or cargoes to be received and delivered alongside, within reach of the vessel’s tackles. Stevedore at place of discharge shall be satisfactory to consignee. Charterers to have privilege of naming stevedore at place of loading at current rates. Captain agrees to load vessel with all possible dispatch. It is understood that vessel is to leave the port of New York in ballast as soon as same is loaded on board. The danger of the seas, fire, and navigation of every nature and kind always excepted.

“A commission of five per cent upon the gross amount of this charter (including demurrage) is due from the vessel to S. C. Evans & Co., upon the signing hereof.

*“*To the true and faithful performance of all and every of the foregoing agreement-, we, the said parties, do hereby bind ourselves, our heirs, executors, administrators, and assigns, and also the said vessel’s freight, tackle, and appurtenances, and the merchandise to be laden on board, each to the other in the penal sum of estimated amount of this charter.'

“ In witness whereof we hereunto set our hands the day and year first above written.

*“*J. D. Wtatt.

“ Chas. S. HiRSCi-i & Co.

“ Signed in the presence of—

“ Chas. H. Lewis.”

IY. Said Constructor Bowles was present at the time of the execution of said charter party and took some advisory part as to its contents, and particularly proposed the clause therein waiving all rights for damages on account of any fault, negligence, or failure on the part of the tug, from errors of navigation, or any other cause incident to said towage.

Y. In pursuance of the terms of the charter party, on or about the 9th day of October, 1897, the said brig *Robert**291*Dillon,*towed by the said tug *Nina,*started from New York upon the voyage called for by the charter party. The master of the brig *Robert Dillon,*Capt. John P. I'Vyatt, who by the terms of the charter party was made the master of the expedition, elected to ride in the brig rather than the tug, although invited to occupy a place in the tug, and continued on the voyage to occupy the brig, as aforesaid. While proceeding on said voyage and during the night, or very early in the morning of the 16th of October, 1897, and when said vessels had reached a point upon the Atlantic coast off Wolf Island, opposite the coast of Georgia, said vessels went aground upon a shoal which was not at that time shown upon the Government charts prepared for that purpose. The immediate cause of the grounding of the vessels was that the master of the tug did not have a correct reckoning of his location at the time.

After going aground as aforesaid the tug *Nina*made every possible effort to assist said brig, but without avail, the consequence being that the brig went into the harbor at Brunswick under sail without any assistance and was so badly damaged by the accident as to become practically a total loss.

VI. The tug *Nina*was not furnished with all of the necessary or proper equipment to enable her to perform this service, in that she did not have on board an azimuth circle nor any deviation card in connection with her compass, and was not provided with a proper chart of the coast along which said voyage was to be made.

VII. The brig *Robert Dillon*was supplied with compasses and all the necessary nautical instruments and charts for navigating the seas and making said voyage, but during the voyage in question no courses or positions were plotted by her master or anybody on board, and no observations were taken to determine the location of the ship at any time, and whether she was pursuing safe courses or otherwise. Her commander took no part whatever in navigating said voyage, though offered charge of the same by the master of the tug. At the time the accident occurred her master had gone below, and there appeared to be no sign of life on board said brig from that time until the tug *Nina*left her on the following morning.

*292VIH. The net damage sustained by the claimants by reason of the accident was $5,390.40.

IX. The accident and damage to the brig was caused by the failure and neglect of the master thereof to exercise his right to take command of the voyage and to navigate the same, as well as the want of proper nautical instruments on board the tug, as before stated.

*Mr. Edward L. Owen*for the claimants. *Messrs. Owen and SPurges*were on the briefs:

1. It may be contended that claimants’ damages arose from a tort, and that therefore this court is without jurisdiction.

We submit, however, that such contention can not be sustained ; and that the liability of the United States rests upon contract growing out of the charter of the *Robert*Dillon, or under an ordinary agreement of towage.

The proofs establish that the United States was a party to the charter, agreeing to tow the brig by means of a tug furnished and officered by itself.

The charter was made for the benefit of the Government, which, through its authorized representative, took an active part in its negotiation and conclusion. In fact, the Government now seeks protection under a provision of the charter inserted at its own instance for the avowed purpose of relieving itself from liability to. the owners of the brig. (Bowles, p. 101.)

It can not affirm and rely upon the charter for one purpose and repudiate it for all other purposes. *(Compañía Bil-baína*v. *Spanish*American, *die., Go.,*146 U. S., 483, 496.)

The consideration moving to the Government for its undertaking to tow the brig was the urgent necessity for prompt delivery of the lumber. The consideration moving to the owners of the brig in fixing the amount of the charter money ivas the undertaking by the Government to tow the brig free of charge. Mutual obligations thus arose, founded on sufficient valid considerations, which each party was bound to observe toward the other.

The same result would follow should it be determined that the Government is not affected b}^ any provision of the charter to its advantage or disadvantage.

*293The situation would then be that having a vital interest in the performance of the charter, the Government agreed, independently of the charter, to tow the brig, in order to expedite that performance.

The Government is therefore bound by every obligation imposed by such agreement.

2. A party engaging to perform a towage service thereby undertakes to furnish a seaworthy tug, sufficiently manned and equipped, and efficient to perform the service; and this undertaking, like any other arising under a towage contract, is not affected by a provision for free towage. *(The Brook*lyn,, 2 Ben., 551.)

This obligation or duty arises from and is imposed by the contract or agreement of towage itself, of which it is an essential part; and a violation of that obligation constitutes a breach of the contract. In Silencer on Marine Collisions (pp. 261, 262, sec. 122) it is said: “A tug in proffering its services to another impliedly represents itself to be of sufficient power and equipment and sufficiently well officered and manned to perform the services required, and that it is 'sufficiently well acquainted with the waters through which it is required to pass to conduct the tow in safety to its place of destination.”

The same principle is declared in Marsden on Collision, fourth edition, page 221; Hughes on Admiralty, page 224; Spencer on Marine Collisions, section 122.

Assuming that the Government is entitled to whatever benefit may be derived from the charter there is no provision therein which relieves the Government from the failure to perform such obligation.

It will doubtless be urged that the Government is protected by the clause of the charter providing that:

“ Charterers, as well as the owners of the Dillon, agree that in consideration of free towage and in view of agreement that the tug shall abide by instructions of the master of the Dillon, that they waive any and all rights for damages or possible claim for any fault, negligence, or failure on the part of the tug, from errors of navigation or any other cause incident to the towage.”

*294Giving this clause full effect it lias no application whatever to the obligation to furnish a seaworthy vessel for the service, nor can it modify or restrict that obligation.

The clause has reference solely to the navigation of the tug in the performance of the towage. Relief is sought against “ errors of navigation or any other cause incident to the tow-age.” The instru'ctions of the brig’s master, obedience to which is recited as a consideration in part for the waiver by the owners of claims arising from such errors, are simply instructions as to the manner of towing, as appears by an earlier clause in the charter.

It is apparent that the parties had in mind and endeavored to provide against liability for acts arising during the performance of the service and that there was no intention or attempt to relieve the Government from its obligation to furnish a suitable instrument for the service; nor does the language of the clause admit of any such construction.

■ If it had been the purpose to exempt the Government from the consequences arising from the unseaworthiness of the tug existing at the inception of the voyage such an exemption should have been expressed in an unequivocal manner. It was not so expressed and in its absence the language “ for any fault, negligence, or failure on the part of the tug, from errors of navigation or any other cause incident to the tow-age,” contemplates and relates solely to such conditions arising during the voyage. *(The*Caledonia, 157 U. S., 124.)

A fair analogy is found in the construction of the statute of February 13, 1893, c. 105, 27 Stat., 445, commonly known as the Harter Act.

Under the provisions of that act if an owner exercises diligence to make his vessel seaworthy he shall not be responsible “ for loss resulting from faults or errors in navigation or in the management of said vessel.” The “ faults or errors in navigation or in the management of said vessel ” relate to the control and conduct of the vessel during the voyage, and do not affect the obligation to furnish a seaworthy vessel at the inception of the voyage. *(The Carib*Prince, 170 U. S., 655; *Knott*v. *Bottany*Mills, 179 id., 69.)

The principles declared in the cases cited, as affecting the obligation of carriers to furnish a seaworthy vessel, are *295directly applicable to those undertaking a towage service, and for reasons equally potent. And so in the case at bar there is no unequivocal exemption from liability for the unseaworthiness of the tug at the inception of the voyage, and the clause in question affects only conditions arising during the voyage itself. *(The Undaunted, supra; The Ratata, supra.)*

Defective compasses and the absence of necessary equipment render a vessel unseaworthy; and so also does an incompetent mate or crew, or a master who is not familiar with the wáters through which the voyage is to be prosecuted. *(The Webb,*14 Wall., 406, 416; *Richelieu, &c., Navigation Co.*v. *Boston Marine Ins. Co.,*26 Fed. Rep., 597, affirmed, 136 U S., 408, 426-429; *The Giles Loring,*48 Fed. Rep., 468; *The Lady Pike,*21 Wall., 1; *The: Margaret,*4 Otto, 494; *The Hercules*81 Fed. Rep., 218, 225.)

The Government furnished the tug *Nina,*and assignéd her officer in command; and in this the claimant had no voice.

The paramount duty was to furnish a seaworthy tug, and this meant not only one staunch in hull and machinery, but one properly equipped with efficient compasses and all the necessary aids to navigation. The commanding officer should have been one familiar with the coast and with the approaches to and the entrance to Brunswick Harbor.

In all of these respects the Government failed; the tug did not have suitable or proper compasses; she was deficient in other necessary aids to navigation, and her commanding officer and pilot were unfamiliar with the coast and had never had experience in such a service. There was, therefore, a breach at the very inception of the contract; and that breach establishes claimants’ right to recover any damages which resulted therefrom.

That vessels should be supplied with proper charts, the want of which would impose responsibility, has been held in *Trinidad Shipping and Trading Co.*v. *Frame, Alston*& *Co.*(88 Fed. Rep., 528) and *Atlee*v. *Packet Company*(21 Wall., 389, 396).

The evidence clearly establishes the *Nina*was not properly manned and equipped for the service. .She was, therefore, unseaworthy and the officer in charge was incompetent — ■ *296shown to be unfitted for the duty before him. Dougherty being selected by the Government, the claimants having no voice in the choice, the Government therefore alone was responsible for his qualifications. *(The Express,*3 Cliff., 462, and cases cited.)

3. The duty imposed upon the brig was to follow the guidance of the *Nina,*to keep as near as possible in her wake, and to conform to her directions. In this she was to exercise reasonable skill and care. *(The*Margaret, 4 Otto, 494, 495; *The*Express, 3 Cliff., 462, 468; *The*Stranger, Brown’s Adm., 281, 284.)

Unless there was apprehension of danger the master of the brig was not called upon to take any active part in the navigation of the vessel. The clause in the charter placed no obligation on the master of the brig. Tie had the right to give instructions, but he was not bound to do so.

Captain Wyatt is not to be judged by the wisdom which comes from retrospect, but by the situation as it was at the time, aiid unless there was palpable fault on his part he can not be condemned for not having done something which was not done. *(Killiens Adm.*v. *Long Island R. R. Co.,*35 U. S., 215, 219; *The Nevada,*106 U. S., 154, 157; *The Favorita,*18 Wall., 598, 603.)

The Government having so completely violated the contract, it will not do now to attempt to shift the responsibility therefor.

*Mr. Franklin W. Collins*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

BaRNEy, J.,

delivered the opinion of the court.

In the year 1897 the Government was engaged in the repair of its dry docks at the Brooklyn Navy-Yard, and had entered into a contract with Johnson Brothers to furnish lumber for that purpose. Afterwards Johnson Brothers placed an order with Charles S. Hirsch & Co. to furnish this lumber. Some unavoidable delays occurred in the procuring of the lumber, which caused the Government officials to offer to Charles S. Hirsch & Co. the free use of a Government tug for the purpose of towing a vessel to and return from Brunswick, Ga., *297laden with lumber to enable said company to comply with the contract mentioned. Thereupon, and on the, 6th day of October, 1897, Charles S. Hirsch & Co. entered into a charter party with the claimants to bring a cargo of lumber from Brunswick, Ga., to the Brooklyn Navy-Yard. This charter party is set out in full in the findings and appears to be in the usual form of such undertakings, with exceptions which will be noted and the discussion of which is deemed necessary in the decision of-this case. These exceptions are: (1) Charles S. Iiirsch & Co. agreed to furnish free of charge a Government tug for the towing of the brig *Robert*Dillon, to be used by the claimants on the voyage; (2) “ the master of the tug was to abide by the instructions of the master of the *Dillon*as to the manner of towing; ” (3) in consideration of free towage and the fact that the tug was to abide by instructions of the master of the Dillon, the claimants agreed to waive “ any and all right for damage or possible claim for any fault, negligence, or failure on the part of the tug from errors of navigation or any other cause incident to the towage.”

The brig in tow of the tug proceeded to Brunswick without special incident until within about 20 miles of its destination, when both vessels ran upon a shoal — the tug first and the brig a little later — causing such damage to the brig as to constitute practically a total loss. The findings show that this accident was caused partly by the fact that the tug was not properly equipped with the necessary nautical instruments and partly by the fact that the master of the brig did not exercise his right to navigate the voyage, his vessel being properly equipped for that purpose.

It is contended by the claimants that the Government was in fact a party to the charter party, though not so in terms, and that the accident was caused by the failure of the Government to furnish a properly equipped tug for the purpose of towage, while on the part of the Government it is contended that it was not a party to the contract and was in no way privy to the same; and, also, that in any event the accident was primarily caused by the failure of the master of the brig to take any part in'the navigation of the expedition, though authorized and directed so to do by the charter party, *298being freely offered that privilege and having on board all of the necessary nautical instruments for that purpose; in other words, that the claimants, by the terms of the charter party, undertook to navigate the voyage and • were alone responsible for its safe conduct. These two propositions will be discussed in their order:

I. Was there any privity of contract between the Government and the claimants ? If so, and without taking into consideration the second proposition, it was. bound to deliver to the claimants a tug properly equipped for the purposes contemplated by the charter party. (2 Parsons on Contracts, 126; *Sturgis*v. Boyer, 24 Iiow., 110; *Ins. Co.*v. Austin, 69 N. Y., 470.)

We can not see, however, how the charter party imposed any obligations whatever on the part of the Government. True, it was anxious that the lumber should speedily be procured for the completion of its dry docks, and was so anxious that it ivas willing to give the free use of one of its tugs to aid in that purpose. But this was the same solicitude, differ- - ing only in degree, which every, individual has that material shall be seasonably supplied for the construction of a work in which he is engaged. Charles S. Hirsch & Co., for Johnson Brothers, had engaged to perform this service, and to expedite it the Government was willing to allow that company the free use of one of its tugs. This gift was to Hirsch & Co. and not to the claimants, who doubtless received a smaller sum for the voyage than they would if they had furnished their own towage; and it was Hirsch & Co. who agreed to furnish the tug and not the Government.

It could not be contended that the Government would be liable to the claimants for damages if it had failed entirely to furnish any tug under the charter party, because it never agreed with them to do so; and, for that matter, it is very doubtful if Hirsch & Co. could have complained of any such failure on the part of the Government, because the promise to that company was entirely *nudum factum.*In short, the contract was between the claimants and Hirsch & Co., and they were the only parties to the contract. At the common law it was the rule that a stranger to a contract could neither claim any benefits nor sustain any liability under it. An ex*299ception to this rule is recognized in many jurisdictions in cases where a contract is made directly and expressly for the benefit of another. But it is needless to say that this case has none of the features necessary to bring it within this exception ; and if it did, the Government alone could take'advantage of it. *•(National Bank*v. *Grand*Lodge, 98 U. S., 123; *Jefferson*v. *Asch,*53 Minn., 446 — 25 L. R. A., 257, and note; *Burton*v. *Hanson,*36 Kans., 246.)

There appears to be no uncertainty or ambiguity in the provisions of the charter party, and it contains nothing whatever showing that the Government is to receive any benefit or incur any liability under it. We are not called upon to reform it, hence evidence to vary its terms is not permissible.

II. As we have already disposed of the case adversely to the claimants, a discussion of the second question is hardly necessary, and will only be briefly referred to.

An examination of the charter party clearly shows that it was agreed that the master of the brig should have the direction of the voyage. The tug was expressly relieved from all errors of navigation because *it was to abide by instructions'of the master of the brig.*The findings show that the'brig was fully equipped with all necessary nautical instruments for the purposes of the voyage and the tug was not. If the master of the brig had exercised his authority under the charter party, as was offered to him to do, doubtless no accident would have occurred.

For the reasons given the petition is dismissed.