#### THE GULF TRANSIT COMPANY v. THE UNITED STATES.

[No. 27534.

Decided February 3, 1908.]

*On the Proofs.*

Tbe claimant’s vessel is docked in the Government dry dock at the Pensacola Navy-Yard. She is injured in consequence of the careless placing of the bilge blocks by the assistant naval constructor in charge. The claimant pays the dockage charges and brings suit for the damages caused. The right to recover depends upon the effect to be given to the rules governing the docking of merchant vessels.

*184I.Where in accordance with regulations and settled custom the officers and employees of the Government take charge exclusively of the docking of a merchant vessel and by misplacing bilge blocks injure her, the Government becomes liable as bailee.

II.Where by rules promulgated by the Secretary of the Treasury the Government is held out as willing to receive merchant vessels in its dock for the purposes of repair at prices stated, being substantially the same as those charged by private docks, the transaction is a mutual bailment, enjoining upon the officers and employees of the Government ordinary care and diligence.

III. The general rule is, as between corporations and individuals, that it is against the policy of the law to permit contracts to be made against the negligence of servants acting within the scope of their employment. This rule is applicable to carriers, warehousemen, wharfingers, elevators, storage companies, and alt corporations and persons engaged in the business of receiving and caring for the property of others.

IV. An injury to a merchant vessel while in the custody of government agents in a dry dock is not a case of an unauthorized wrong or of the misfeasance or nonfeasance of an officer, but is a cause of action based on the nonperformance of the defendants in not handling the vessel with ordinary care while in their exclusive possession and control.

V. A rule relative to the use of dry docks by merchant vessels that the Government will assume no responsibility for any damage or injury to a vessel while she is entering, leaving, or in a dock, must be limited in its application to cases where the vessel is in the custody of the owners or their agents. It can not be extended to cases where the possession and control are exclusively in the hands of the agents of the Government.

VI. The parties in such a case are not on equal terms, the owners of the vessel having no voice in the making of the rules or docking plans under which their vessel is docked.

VII.Where the officers of the Government take charge of a vessel the contract enjoins upon them the exercise of ordinary care notwithstanding that the rules of the dock may disclaim liability on the part of the Government.

*VIII.The Tucker Act*(24 Stat. L., 505) gives this court jurisdiction of claims founded “ *upon any regulation of an executive department, or upon any contract."*Where a vessel was docked under regulations forming a contract for a stipulated consideration it was a case of contract within the meaning of the statute; and the want of ordinary care on the part of the agents of the Government was a breach of the contract and a cause of action within the jurisdiction of the court.

*185IX. A reasonable construction of the regulation concerning liability will be that the Government will assume no responsibility for the acts of the owners’ agents or for the acts of third persons, or for any disaster occurring to the dock or to the vessel while in the dock. A court will not construe a contract so that one party will be wholly exempt from liability for his own acts.

X. The fact that the agents of the owners were present at the docking of the vessel and made no examination for themselves of the way it was being done, does not make the owners chargeable with contributory negligence where it was done entirely by the officers and agents of the Government and according to plans of their own making after they had refused to use plans proffered by the owners.

*The Reporters’*statement of the case:

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

I. The claimant is a corporation, organized under the laws of the State of Florida, owning and operating certain steamships between Pensacola, Fla., and other Gulf of Mexico ports, one of these steamships being the *August Belmont.*

II. Tn May,. 1904, the United States owned and operated at and in connection with the Pensacola Navy-Yard, adjacent to Pensacola, Fla., a dock in which, in addition to all necessary services to vessels of the United States, vessels belonging to private owners were docked for hire for the purpose of inspection, cleaning, and repairing, under the following regulations of which the claimant company was informed:

“ U. S. Navy-Yaed, PeNSAcola, Fla.

“ *Rules governing the docking of merchant vessels at the*navy-yard, Pensacola, *Fla.*

“1. No vessel of less than 500 tons gross register will be taken on the docks, except in case of an emergency when the local docks are not available.

“ 2. The charges for merchant vessels will be:

*“(a)*Twenty cents per gross ton for docking and undock-ing, provided that no vessel shall pay less than $150 under this head.

*“(b)*Ten cents per gross ton demurrage for each and every day that the vessel remains on the dock, the days of entering *186and leaving the dock to be counted as one day, provided that the least charge per day under this head shall be $60.

“ Under *(a)*and (5) for less than 1,000 tons gross register fractions of 100 tons will be reckoned as 100 tons; for vessels of over 1,000 tons fractions of 600 tons will be reckoned as 500 tons.

“(c) In addition to the charges under 1 and 2, charges will be made to cover any unusual preparation of the dock for receiving a vessel that may be found necessary, and for the shores and lumber will be charged a price not exceeding the market value of like material and will become the prop-ery of the Government when the vessel leaves the dock. Unusual preparations will be charged at their actual cost for labor and material to the Government.

“ 3. No vessel will be docked for less than the actual cost of the operation to the Government, anything in rule 2 to the contrary notwithstanding.

“ 4. Vessels allowed to enter the dock must furnish at their own expense such tugs as the commandant may direct to assist them in entering and leaving the dock.

“ 5. The Navy Department will undertake no work of any character on vessels permitted to use the dock.

“ 6. The United States Government will assume no responsibility for any damages or injury, leaving, or while she is in dock.

“ 7. Prior to a vessel’s entering the dock a deposit, the amount of which shall be determined by the commandant, shall be made with the paymaster of the station. This deposit shall in no case be less than the estimated cost of the docking. Any balance remaining after deducting all charges computed under rules 2 or 3, as the case may be, will be refunded after the vessel has left the dock.

“ 8. All expenses incident to the docking of the vessel shall foe paid from the part of the deposit retained by the paymaster of the station.

“ 9. Applications for the use of the dock must be made to the Secretary of the Navy, through the commandant of the station, when circumstances permit.

“ 10. The persons or corporation to whom the privilege is granted or docking a vessel shall be responsible for all damages done to the dock or other government property, other than reasonable wear and tear, by persons employed by them on the vessel, or by contractors or other persons employed by them in connection with work on the vessel in the dock, and shall pay the cost of all necessary repairs or making good damage done, in addition to other charges herein provided.

*187“11. The person or corporation for whom the work of docking is done shall provide a suitable watch to be kept on the ship while in the government dock, and shall also adopt suitable precautions, under the directions of the captain of the yard, to prevent fire occurring on board of the vessel and to extinguish it should a fire get started.

“ 1. The capacity of the steel dry dock is 10,000 tons displacement.

“ 2. The capacity of the wooden dry dock is 1,500 tons displacement.

“ F. W. Dickins,

“ Captain, *U. S.*Navy, Commandant,

*“Navy-Yard and Station.*

“ December 21, 1908.”

III. On May 2, 1904, the *August*Belmont, for the purpose of scraping and repainting the hull, was docked in said dock of the United States. In accordance with the settled custom obtaining at said navy-yard the docking and undock-ing of vessels was done entirely by the officers and employees of the United States, who took charge of the vessel at the moment it entered the dock. The vessel herein remained in said dock until May 4, 1904, and for such services and use of the dock claimant was charged and paid to the United States the sum of $2,216, this charge being calculated at rates fixed by the Secretary of the Navy and governing all docking done for private shipowners at said dock. Said rates were about the same as those charged by owners of private customs docks.

IV. In docking said vessel the bilge blocks to hold the vessel in position were so negligently placed that the weight of the vessel was thrown too much upon the blocks under the sides of the vessel instead of on the keel, upon which latter the weight of the vessel should mainly have rested, by reason of which negligent acts in so placing the bilge blocks the sides of the vessel were without any fault on the part of .the claimant, its officers or agents contributing thereto, indented in a number of places and the interior structure of the hull was thereby damaged.

Claimants’ agents were present at the docking of said vessel, and could have examined the bilge blocks before the delivery of the vessel to the dock had they desired to do so.

*188Claimants furnished for use in said docking plans of the vessel which had been provided for use at a previous docking of the same vessel at the same dock in October, 1903. The assistant naval constructor in charge refused to use said docking plans and had the dock prepared for the vessel from data obtained from measurements taken at said former docking and patterns or templates of the blocks as actually fitted to the ship at that time. Said docking of the vessel in October, 1903, had been successful.

It appears that the same docking plans of the vessel so furnished as aforesaid by the claimants to the defendants, and by them refused as aforesaid, were used for three subsequent dockings of the vessel at Philadelphia, Baltimore, and Newport News, and in each instance the vessel was successfully docked.

Y. As soon as said injuries became known to claimants agents having charge of the vessel, they caused a survey of the same to be made by a board composed of three persons skilled in the management and care of ships. After an examination said board reported that the hull was indented in five longitudinal sections or strakes of the same. The board at the same time also made examination of certain injuries to one strake of the hull and to the bilge keel on one side, which had not been caused by the defendants in docking but had been done by others prior thereto.

VI. On the recommendation of said board the vessel, while still in defendants’ dock, was temporarily repaired, both as to the injuries sustained in docking by the defendants’ officers and those received prior thereto as aforesaid. Such repairs were necessary to enable the vessel to perform its existing engagements.

The repairs so made consisted of the renewal of rivets, the calking of seams, and the renewing of cement where broken, the actual cost of which, including the expenses of the board of survey, was $241.37, to which should be added $300, which the court finds was a reasonable charge, if allowable, for the loss of the use of the vessel for one day, and $500 paid for one day’s docking charge — all on account of the injuries so received.

*189VII. On May 4, 1904, the commandant of the navy-yard at Pensacola, Fla., appointed, under article 422 of the Navy Begulations, a board consisting of three naval officers to as- ' certain, among other things, the probable amount of damages on account of injuries to said vessel while docking at Pensacola. Said board made an examination and reported the total estimated cost of temporary repairs to enable the vessel to proceed to sea, and of permanent repairs to put the vessel in as good condition as before docking, to be $4,200, including four days’ docking charges. This estimate did not include any estimate of the loss of earning capacity of the vessel while said repairs were being made.

VIII. Thereafter claimants employed a ship surveyor, at an expense of $75, who, on October 6, 1904, made an examination of said vessel in dry dock at Philadelphia, Pa., and prepared specifications covering all the injuries, and received bids from seven shipbuilding concerns for the repair of same. Said specifications were divided into three parts — one covering the damages sustained by docking at Pensacola, one covering the damages to 11 plates in strake B on the starboard side, and the third providing for repairs to the bilge keel on the port side.

The bid of the Newport News Ship Building and Dry Dock Company, dated November 23, 1904, was the lowest, and was as follows:

“ For the repairs to injury at Pensacola, $4,780, to be completed in nine days; for injury No. 2 to the strake in hull, $2,485, to be completed in four days; for injury No. 3 to the keel bilge, $645, to be completed in two days; and for all three injuries they agreed to make the repairs for the sum of $8,315, to be completed in nine days,” which last bid of $6,315 was accepted November 29, 1904.

IX. After said vessel left the dry dock at Philadelphia and while still pursuing her trade, she was, on Nevember 10, 1904, grounded at Tampico, Mexico, and sustained certain injuries to her propeller and other appliances connected therewith, and in order to ascertain the extent of these last injuries the vessel was docked at Baltimore, Md., November 28, 1904.

*190X. In. pursuance of the bid accepted November 29, 1904, said vessel was in December, 1904, docked at the Newport News Ship Building and Dry Dock Company’s dock and the said company at the same time repaired all four of the injuries hereinbefore mentioned, for which claimants paid said company the sum of $6,315 for repairing the first three injuries according to agreement, and $2,270 for the injuries resulting from the grounding at Tampico aforesaid, exclusive of an anchor, a cable, and a new propeller furnished to the vessel.

The agreement for the repairs resulting from the grounding at Tampico was a special arrangement by days’ work made at Newport News by the agent of the claimants with the Newport News Ship Building and Dry Dock Company after the arrival of the vessel at their dock.

XI. The ordinary expenses of operating said vessel during the years 1903 and 1904, including wages and food of the crew, supplies for the engine, water, and small incidental repairs, was $90 a day. One day was consumed in bringing the vessel from Baltimore to Newport News and another day in bringing her back to Baltimore after the repairs were completed.

Claimants’ master mechanic expended for traveling expenses, hotel, telegraph, and telephone bills the sum of $131.48 in connection with the repairs made to said vessel at Newport News, which amount was refunded to him by claimants. It is not shown that these expenses or any part of them were the result of the injury to the vessel at the Pensacola Navy-Yard.

XII. The items connected solely with the first three repairs are:

Cost of temporary repairs, including expenses of board of survey- $241.37

I.oss of use of vessel one day at Pensacola_ 300.00

One day’s docking charge at Pensacola, on account of the injury to vessel- 500. 00

Fee for surveyor and drawing specifications_ 75.00

Contract price for the three repairs at Newport News_6,315. 00

Total. 7,431.37

*191and if this amount is prorated on the basis of the bids for the *three*injuries, if repaired separately, the amount charge-, able to the Pensacola injury is $4,488.55.

The items in which the *four*injuries should participate are: Nine flays loss of use of vessel while in dock at Newport

News at $300 per day-$2,700.00

and if this amount is prorated on the basis of the separate bids for the first three injuries and the actual cost of the repairs to the fourth injury, the amount chargeable to the Pensacola injury is $1,267.65, making a total chargeable to the Pensacola injury of $5,756.20.

*Mr. Benjamin Carter*for the claimant:

In this court by *Brooke’s*ease, 2 C. Cls. R., 180, and Grant's, 5 C. Cls. R., 72, and in the Supreme Court by *Smoot’s*ease, 15 Wall., 36, it was settled that in matters of contract, as distinguished from acts of sovereignty, the liability of the United States is the same as that of private contractors. And this rule applies as well to implied as to express undertakings of the United States. *(Smith*v. *The United States,*94 U. S., 214; *Glark*v. *The United States,*95 U. S., 539; Grant’s case, *supra.)*

Here we have the simple case of the United States doing in an unworkmanlike and destructive manner a thing which it, by implication, had contracted to do in a workmanlike and safe manner. It must so far make its undertaking good as to pay for the injury done by its bad workmanship.

*Mr. Malcolm A. Coles*(with whom was *Mr. Assistant AU torney-General John Q. Thompson)*for the defendants:

1. The case, if not one arising out of the negligence or tortious acts of the government’s agent’s, is manifestly not one of implied contract, but one of express contract, which express contract will be found to have arisen out of the acceptance by the claimant’s agent of the terms and conditions of the docking regulations, which contained the express provisions and conditions under which docking work would be done at the defendants’ yard for the benefit of private or merchant vessels.

*192Before discussing this case in its true attitude as an express contract between the parties hereto, the phases of the case suggested in the brief of claimant’s counsel will be adverted to. Considered in the light of a complaint arising out of the alleged negligence on the part of the officers of the United States, this case would be practically without standing in this court.

In the absence of special statutes referring such cases to this court to ascertain and determine, the court is without jurisdiction to consider cases arising out of the errors or wrongs of officers of the United States, inasmuch as the United States is not liable for injuries caused by the negligence of its officers or agents, except as it consents to be, and this consent must be by special legislation, in the nature of a ratification of the act and relative to the particular case referred. *{The St. Louis and Mississippi Valley Transportation Company*v. *The United*States, 38 C. Cls. B., 251; 33 C. Cls. K., p. 264; 184 U. S., 247; 37 C. Cls. B., p. 550; *Washington Loan and Trust Company et al.*v. *The United*States, 39 C. Cls. B., 152.)

It is respectfully submitted that the record in this case fails to show any acts of negligence on the part of the officer of the United States who had charge of the docking of this vessel at the Pensacola Navy-Yard which would involve the United States in any financial liability on account of any injury resulting from said docking. -

Negligence is the failure to do what a reasonable and prudent person would have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in .omission or commission. The duty is dictated or measured by the exigencies of the occasion. (Wharton on Negligence, sec. 1 and notes cited.)

Ordinary negligence is a relative term, to be judged by the nature of the subject to which it is directed. (12 Wall., p. 251.)

In cases founded on the negligent acts of officers or agents of the United States, referred to this court by statutes indicating the legal relief intended, the liability assumed is that *193which would attach at common law. And even then the act complained of must be one for which the principal would be liable at common law or no recovery could be had. *(Walton et al.*v. *The United*States, 24 C. Cls. R., p. 372; *Washington Loan and Trust Company*v. *The United States,*39 C. Cls. R., p. 152.)

Considered in, the light of a contract, this case would be in the nature of a bailment at common law.

When a bailee of a steamboat accepts the same without objection he takes it subject to all visible defects. He is bound to the exercise of ordinary care and diligence, but if an injury to the boat results from unknown or hidden defects he is not liable. (Yol. 3, Meyers Fed. Decs, on Bail-ments, p. 18.)

The contract between the bailor and the bailee is one of ordinary business, from which both derive a benefit or profit or convenience. In the performance of such a contract under such circumstances it is obvious that the bailee can only be held responsible for the use of ordinary care and common prudence. If he exercised the common vigilance which the generality of mankind take of their own property, it will protect him from liability. In the absence of an express agreement for extraordinary care the law implies nothing strained or unreasonable; it is satisfied with the usual and ordinary care incident to the custody of another’s goods. (Lawson on Bailments, sec. 40, p. 81.)

The contention that the responsibility of the Government is the same as the liability of an individual is subject to numerous limitations. Contracts are made through the agency of government officers the scope of whose authority and the manner of its execution are restricted and regulated by statutes, which, as public laws, everyone is bound to know at his peril. *(St. Louis Hay and Grain Company*v. *The United States,*37 C. Cls. R., 281.)

Persons entering into contracts with officers of the United States are bound to know the restrictions imposed upon them by the acts of Congress in relation thereto. *Sanger & Moody*v. *The United States,*40 C. Cls. R., 47.)

*194It is well settled that where contracts are required to be in writing and signed by the parties, as prescribed by the Revised Statutes (sec. 3744), no action can be maintained for the defendant’s breach unless the requirements of the statute have been complied with. *(St. Louis Hay and Grain Company*v. *The United*States, 37 C. Cls. R., 281.)

From the foregoing it will be seen that this case can have no standing here when considered either as the negligent or tortious act of an officer of the United States, or in the light of an implied contract.

2. It is properly a case which should be determined by the terms and conditions of the express contract entered into between the parties hereto, namely, the provisions of the docking regulations, which are shown to have been known to the officers of the claimant company and accepted by them on .previous occasions as well as the one here in question (pp. 9-10; p. 50, X. As. 2-4; pp. 105-106, As. 10-14; p. 114, As. 52-54).

The existence of an express contract excludes the probability of an implied contract. *(Hartman*v. *The United States,*40 C. Cls. R., 133.)

Where a party enters into an agreement which is similar to the conditions of a previous contract between the same parties he can not question the previous construction of the terms of the contract, but is presumed to have accepted them. *(Cranford c& Hof man*v. *The District of*Columbia, 29 C. Cls. R., 376.)

A complete contract, binding under the statute of frauds, may be gathered from writings and telegrams between the parties so connected as to fairly constitute one paper relating to the contract. *(Ryan*v. *The United States,*136 U. *S-,*68.)

Parties who contract on a subject concerning which known usages prevail incorporate such usages by implication into the contract, if nothing is said to the contrary. *(Hostetter*v. *Park,*137 U. S., 30.)

Peelle, Ch. J.,

delivered the opinion of the court:

The claimant’s right to recover depends upon the force and effect to be given to the rules governing the docking of mer*195chant vessels at the Pensacola Navy-Yard and the action of the government officers thereunder.

The rules under which the claimant company was permitted to dock its vessel, of which its officers in charge were advised, among other things provide:

> “ 4. Vessels allowed' to enter the dock must furnish at their own expense such tugs as the commandant may direct to assist them in entering and leaving the dock.

> “ 5. The Navy Department will undertake no work of any character on vessels permitted to use the dock.

> “ 6. The TJ. S. Government will assume no responsibility for any damage or injury to a vessel, her crew, or appurtenances while she is entering, leaving, or while she is in dock.

> “ 9. Applications for the use of the dock must be made to the Secretary of the Navy, through the commandant of the station, when circumstances permit.

> “ 10. The persons or corporation to whom the privilege is granted of docking a vessel shall be responsible for all damage done to the dock or other government property, other than reasonable wear and tear, by persons employed by them on the vessel, or by contractors or other persons employed by them in connection with work on the vessel in the dock, and shall pay the cost of all necessary repairs or making good damage done, in addition to other charges herein provided.”

Under the settled custom prevailing at said navy-yard the docking and undocking of vessels was done entirely by the officers and employees of the United States, who took charge of the vessel at the moment it entered the dock; and, in accordance with that custom, the officers and employees of the United States took charge of the docking of the claimant’s vessel, and in doing so the bilge blocks placed to hold the vessel in position were so negligently placed that the weight of the vessel was thrown too much upon the blocks under the sides of the vessel instead of on the keel, upon which latter the weight of the vessel should have mainly rested. By reason of the negligence of the officers and employees of the Government in so placing the bilge blocks the interior structure of the vessel was damaged. Hence this action.

The navy-yards of the Government are under the control of the Secretary of the Navy; and whatever orders, rules, or regulations are issued by the commandants thereof are pre*196sumed to be with the approval of the Secretary of the Navy. And if such orders, rules, or regulations be not in conflict with acts of Congress they have the force of law. *(United States*v. Symonds, 120 U. S., 47, 49; *United States*v. *Eaton,*144 U. S., 677, 688.)

By the rules promulgated the Government was held out as willing to receive merchant vessels of a prescribed tonnage in its dock for the purpose of repair at the price therein stated, being the same substantially as that charged by private docks. This makes the transaction a mutual bailment, enjoining upon the officers and employees of the Government— the bailee — ordinary diligence in the execution of the contract.

The general rule — founded on the right of the master to select his own servants — is, that as between corporations and individuals it is against the policy of the law to permit contracts to be made against the negligence of their servants while acting within the scope of their employment. *(Hexamer*v. Webb, 101 N. Y., 377; *Merchants' National Bank*v. *State National Bank,*10 Wall., 604; *Frankfort Bank*v. *Johnson,*24 Me., 490; *Kimball*v. *Cushman,*103 Mass., 194.) This rule is applicable to common carriers, warehousemen, wharfingers, elevators, storage companies, and all other corporations or individuals engaged in the business of receiving and caring for the property of others either for the purpose of hire or for the performance of work thereon, and places them in the class of mutual benefit bailments requiring ordinary diligence of the bailee. *(Lincoln*v. *Gray,*164 Mass., 537; *Zell*v. *Dunkle,*156 Pa. St., 353.) And it has been held that “When a Government enters into a contract with an individual it deposes, as to the matter of the contract, its constitutional authority and exchanges the character of a legislator for that of a moral agent, with the same rights and obligations as an individual.” (3 *Hamilton's Works,*518; *United States*v. *Bank of Metropolis,*15 Pet., 377, 392, cited in *Southern Pacific Co. case,*28 C. Cls. R., 77, 105.)

This is not the case of an unauthorized wrong inflicted upon a citizen by an officer of the Government, nor for the misfeasance or nonfeasance of such officer, for which the *197Government would not be responsible *(United States*v. *Cumming,*130 U. S., 452, 455; *German Bank*v. *United States,*148 U. S., 573, 579), but is a cause of action based on the nonperformance of the defendants through their agents in not handling the vessel with ordinary care while in their exclusive possession and control. In the construction of this contract the claimant contends that it is entitled to have applied the rules applicable as between corporations and individuals. *(United States*v. *Gurney,*4 Cranch, 333, 341; *Hunter*v. *United States,*5 Pet., 170, 185; *United States*v. *Bostwick,*94 U. S., 53, 66; *United States*v. *Smith,*94 U. S., 214, 217, and the *Sinking Fund cases,*99 U. S., 700, 719.)

The rules are silent as to whether the docking of merchant vessels shall be done by the officers of the Government in charge of the dock or by the owners of vessels. If done by the owners of such vessels or their agents, then the provision against the nonassumption of liability by the Government is a reasonable one; but when done by the officers of the Government, as in the present case, the provision is an unreasonable one. If, however, the provision applies in the latter case and the Secretary of the Navy has not exceeded his authority in adopting the provision, still it can not be so construed as to excuse the officers of the Government having to do therewith from the exercise of ordinary care; and if not, then who shall suffer for their negligence, the Government, who employs them, or the claimant, whose vessel in an unseaworthy condition seeks a place of safety for repair to enable her to continue her commercial engagements?

The parties were not on equal terms, and the owner of the vessel had no voice in the making of the rules, and, in the present case, no voice in the docking plans under which the vessel was docked.

When the officers of the Government took charge of the vessel the contract enjoined upon them the exercise of ordinary care in docking the same, notwithstanding the provision referred to; hence failure to exercise such care was negligence on their part.

Now, shall the court hold that although the contract enjoined upon the officers of the Government the exercise, of *198ordinary care they could disregard it to the detriment of the claimant because of the provision referred to ?

True, the Government, by virtue of its sovereignty, can not be sued without its consent, but by section 1 of the act of March 3, 1887 (24 Stat. L., 505), the Court of Claims is given jurisdiction to hear and determine “ all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States, or for' damages, liquidated or unliquidated, in cases not sounding-in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable.”

That statute, therefore, in express terms gives the court jurisdiction to hear and determine all claims founded upon “ any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States.” The vessel was docked under the regulations forming the contract, without which she could not have been docked in the government yard; the consideration stipulated for was paid by the owners of the vessel and accepted by the Government; the care and attention impliedly promised on the part of the defendants was not given. Therefore the injury to the vessel through want of ordinary care on the part of the officers of the Government in the execution of the contract was a breach, thereby giving the owners a right of action for the damages arising therefrom.

The claim, therefore, is one founded upon the contract, but for which there would be no right, as the action rests on the conventional duty created by the contract and not for breach of duty imposed by law independent thereof.

The claim being founded upon the contract the claimant may, under the statute cited, maintain an action thereon to have its rights determined. When Congress conferred upon this court jurisdiction to hear and determine claims founded upon contract it evidently meant such contracts as would be enforcible between corporations and individuals under like conditions.

*199It has likewise been assumed on the part of the Govern-, ment that the rules, which make the contract, expressly exempted the defendants from liability for the acts or inaction of their agents, and the sixth rule does say that “ the United States will assume no responsibility for any damage or injury to a vessel, her crew, or appurtenances while she is en-, tering, leaving, or while she is in dock.”

But this does not mean, and can not be construed to mean, that the defendants need not perform their part of the contract by exercising ordinary diligence and skill in disposing of the vessel while it was in their hands. A much more reasonable construction will be to say that the Government will assume no responsibility for the acts of the owners’ agents, or for the acts of third persons, or for any disaster occurring to the dock or to the vessel while in dock; but to hold that this rule authorized the government’s agents to do what they pleased with a vessel would, in effect, be to construe a contract so that one party should be wholly exempt from liability for his own nonperformance or for defective performance. This would clearly be against public policy and needs no citation of authorities to support it, but see the case of *Morningstar*v. *Cunningham,*(110 Ind., 328). And this principle applies, though there may be a “ special agreement for ordinary neglect; that is to say, for the want of ordinary diligence.” *(Christianson*v. *American Express*Co., 15 Minn., 270; *Wyld*v. *Pickford,*8 Mees. & Wells., 443.)

But it is not necessary to go so far; the rules, as we have seen, do not go to the extreme length of exempting the defendants from liability for their own failure to carry out their own part of the agreement, and they should not be so construed. The whole of the case is this: The claimant employed the defendants to dock the vessel at a stipulated price, and paid for it; the defendants, failing to exercise ordinary care and skill, neglected to perform as they had agreed to, and are, therefore, liable for the direct damages resulting, from their breach of contract.

A contract to relieve from responsibility for negligence diminishes the motive for the performance of duty and takes from the public the security it would otherwise have and is, *200therefore, against public policy. *(Telegraph Co.*v. *Griswold,*37 Ohio St., 301, and authorities there cited.)

That the officers and employees of the Government were negligent in docking the vessel in the way it was done seems clear, and the court has so found. Now, to hold, under the regulations prepared by the Secretary of the Navy — in which the claimant had no voice — that the Government is not responsible for the breach of contract on the part of its officers and employees resulting in damage to the claimant, would be putting a premium on the negligence of such, officers and employees in the discharge of their duty to the public as well as to the individuals dealt with. This as between corporations and individuals would be against public policy, and we are aware of no authority which would justify the court in excepting the Government from the operation of that rule.

In the case of the *World's Columbian Exposition Co.*v. *Republic of France*(96 Fed. Rep., 687), involving the question of the construction of a regulation promulgated by said company to the effect that while the corporation would take reasonable precaution for the preservation of exhibits it would “not be responsible for any damage to, or for the loss or destruction of an exhibit, resulting from any cause,” the court said: “ We have no doubt of the validity of the exempting clause here in question, to the extent, at least, of any negligence not chargeable to the board of directors or managing officers of the exposition company, and not of a distinctly gross or wanton or willful character.” But as such negligence was not charged in any count of the declaration in that case, the court reversed *the*judgment below.

From the language used we think it may fairly be inferred that had the loss been charged as a result of the negligence of the board of directors or managing officers of the exposition company, or to the gross, wanton, or willful negligence of the employees, the result would have been different. Though the court in that case said there was at most a bailment for the benefit of both parties we think the transaction falls short of a mutual benefit bailment in this, that the exposition company was not engaged in the business for remuneration beyond what was necessary to defray the expenses of the exposition, and for that reason the relation *201between the exposition company and the exhibitors more pearly approximates a bailment for the sole benefit of the bailor than a bailment for mutual benefit.

Nor can we hold that, because the agents of the claimant company were present at the docking of its vessel and made no examination for themselves, they are therefore chargeable with contributory negligence. The docking was done entirely by the officers and agents of the Government, as set forth in the. findings, and, too, by measurements and plans of their own making, they having refused to use the plans for docking the vessel provided by the claimant company, although the vessel had been successfully docked by said plans at Philadelphia, Baltimore, and Newport News. The Government having elected to prepare and use-docking plans of its own, the claimant company might have been chargeable with contributory negligence had its officers or agents interfered with the docking or secured changes in the Government docking plans, especially after the plans submitted by the claimant company had been rejected. But whether the injuries resulted from defective plans or from failure to follow correct plans is immaterial since the injuries resulted from the want of ordinary care on the part of the officers of the Government at a time when they, had assumed for the defendants entire control and responsibility for the safety of the vessel.

Having reached the conclusion that the Government is liable for the injuries to the vessel so caused by the nonperformance of its officers and employees in the execution of the contract, the final question is, What items of expense charged, as set forth in the findings, are recoverable?

The rule is that the injuries for which a recovery may be had must result proximately from the negligent acts charged; that is to say, the injuries must result from the natural and continuous sequence of the negligent acts' complained of.

Applying the rule stated, we have set forth in Finding XII the items chargeable directly to said acts, and prorated the bid of $6,315 upon the basis of the three bids for the separate injuries set forth in Finding VIII, by which it is shown that the injury so sustained at the Pensacola dock is *202$4,488.55, or $1,291.45 less than the separate bid for said injury, exclusive of the charge for nine days’ loss of time of the vessel while undergoing repairs at the Newport News dock amounting to $2,700, which latter amount we have also prorated upon the basis of said three bids and the amount paid by special arrangement ($2,270) for injuries resulting from the grounding of the vessel, as set forth in Finding X. By this method the fair and reasonable proportion of the amount chargeable to the injuries at the Pensacola dock is $1,267.65, which amount added to the $4,488.55 makes $5,756.20. The other items claimed for, as set forth in Finding XI, do not appear to the court to come within the rule announced and are excluded.

Judgment will be entered in the claimant’s favor for $5,756.20.