#### THE PLANT INVESTMENT COMPANY v. THE UNITED STATES.

[No. 22928.

Decided May 2, 1910.]

*On the Proofs.*

During tlie Spanish war the Government charters the steamer Florida, the owners retaining possession, command, and navigation of the vessel. The compensation agreed upon is per diem, and the vessel is to carry such cargo as the defendants prescribe to such ports or places as may be ordered by the proper military officers. While lying at anchor in the port of Ponce she is ordered to get up steam and go to the assistance of a vessel aground. The master protests that it would be unsafe for the Florida to perform the service. The officer in charge of the Government’s transportation service sends a naval officer aboard to take command. Against the master’s protest and under the command of the naval officer the Florida goes to the assistance of the other vessel and receives injury while rendering assistance. At a later day and while at anchor in port she is again ordered to go to the assistance of a second vessel. The master again protests, but yields obedience and goes to the aid of the stranded vessel as ordered, and the Florida thereby receives further injuries. The damages caused to the owners by the injuries and by the loss of earnings during the period of repairs amount to $8,600.

I.Where the .owners retain possession, command, and navigation of a chartered vessel the charter-party is not a demise of the vessel but a contract for service.

II.Courts are not inclined to regard a contract as a demise of the ship, if the end in view can conveniently be accomplished without the transfer of the vessel. The controlling principle rests upon an ascertainment of who retains possession, command, and navigation.

III.Where officers in the naval service of the Government take a vessel from the possession of the master against his protest and place a naval officer in command and send her to render assistance to another vessel in the service of the Government their act is tortious. No contract can be implied, and the owners are without remedy under the jurisdiction of the Court of Claims.

*375IV. Where amid like circumstances the master protests against the service as dangerous to his vessel, but nevertheless is required to undertake it and yields obedience to the order, retaining command and navigation of the vessel, the action of the Government’s officers is also tortious, and an action for injuries suffered and earnings lost can not be maintained in the Court- of Claims.

*The*Reporters’ statement of the case:

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

I. Claimant is a citizen of the United States and is a corporation existing under the laws of the State of Connecticut and is engaged in conducting a general shipping and transportation business and is the owner of the claims in question and has neither assigned nor sold them in whole or in part.

II. On the dates hereinafter set forth the following preliminary telegrams were exchanged between the claimant and defendants respecting the execution of the charter party hereinafter mentioned:

[Official telegram.]

“ Washington, D. C., *April £0,1898.*

Plant Steamship Line,

*“Tampa, Fla.:*

“ If the steamers *Mascot, Olivette,*and *Florida,*offered by you to Colonel Kimball, are chartered for thirty days, what will be the price of each per day ? If either or all the vessels are discharged before expiration of time, what will be the rate per day for the lesser number of days *%*Wire reply.

“ Ludington, *Quartermaster-GeneralT*

[The Western union Telegraph Company.]

“ Iteceived at Washington, D. C.

“ Poet Tampa, Fla., *Apl. £0, 1898.*

“ Ludington,

*“Quartermaster-General, Washington, D. C.:*

“ Steamers *Maseotte*and *Olivette*are under contract with Post-Office Department. If they can be relieved from that, we can let you have *Maseotte*at two hundred and fifty dollars a day by the month; *Olivette,*three hundred and fifty, and *Florida,*four hundred5 dollars a day by the month, Government to be responsible for ships at their valuation. All *376these ships are in use and could not, under any circumstances, be delivered until return from voyage. Prompt response requested.

“ Plant Steamship Line.”

[The Western union Telegraph Company.]

“ Received at War Department.

“ Tampa Bat Hotel,

“ *Tampa, Fla., Aptril M, 1898.*

“ Ludington,

“ *Quartermaster-General, Washington, D. 0.:*

*“*Proposed price *Mascotte, Olivette, Florida*is for bare ships. Government paying all running expenses, including crew, and to be responsible for vessels.

“ H. B. Plant.”

On the 29th day of April, 1898, claimant entered into a charter-party contract with the United States, acting by and through Maj. Chas. Bird, quartermaster, U. S. Army, and duly approved by M. I. Ludington, Quartermaster-General, U. S. Army, and G. D. Meiklejohn, Assistant Secretary of War. A copy of said charter party and extension thereof is duly set forth in and made a part of the petition filed in this cause.

Said charter was terminated on the 9th day of September, 1898.

III. On May 28, 1898, while the *Florida*was engaged in transporting troops, arms, and munitions of war to the island of Cuba for the military authorities of the United States, two boats belonging to said vessel were left at Port Banes, Cuba, and turned over to the Cuban insurgents by order of Lieutenant-Colonel Dorst, of the United States Army, in command of said expedition, to enable said insurgents to convey a large quantity of stores furnished by the United States, and just landed, to a place several miles distant, where said stores could be sent into the interior by wagons, the point to which said stores were to be taken by said boats being inaccessible to the ship on account of shallow water.

IV. While on another military expedition to Cuba, between June 21 and July 15,1898, in the service of the United *377States under the terms of the charter party, three other boats belonging to the *Florida*were destroyed or rendered useless by being riddled by bullets in the course of an engagement with the Spanish military forces. Said five boats were of the total value of $574.

Y. On or about August 4, 1898, while lying at anchor in the port of Ponce, Porto Pico, with steam only on the donkey boiler, as the other was blown down to repair a joint that blew out, the captain of the *Florida*was ordered by the officers and agents of the defendant to get up steam as quickly as possible and go to the assistance of the steamship *Massachusetts,*which was aground on a reef at the entrance of the harbor. When the order was received to go alongside and assist said vessel, the master of the *Florida*protested that it was unsafe for the *Florida*to perform the service, and she would be damaged in attempting it; but the officer in charge of the defendants’ transport service sent a naval officer of the United States aboard the *Florida*to take command of it against the captain’s protest. And thereupon, under the charge of said naval officer, the *Florida*went to the assistance of the *Massachusetts*and worked on her all day under his charge, landing troops, and trying, unsuccessfully, to get her off the reef, but in endeavoring to get alongside of the *Massachusetts*to take her line, the teak rail aft on the port side of the *Florida*was broken, and also one of the stanchions.

VI. At noon the next day, to wit, August 5,1898, under the orders and charge of said naval officer of the United States, and against the protest of the captain of the *Florida*that the vessel would be damaged by the service required of her, the *Florida*was again taken alongside the steamship *Massachusetts*and the *Florida’s*port side made fast to the *Massachusetts'*port side, and then tried again to pull the *Massachusetts*off the reef; while so made fast to the *Massachusetts*a heavy sea was running, the waters were rough, and both vessels were rolling, the *Florida*pounding heavily against the *Massachusetts,*thereby greatly damaging the plates on the *Florida's*port quarter and port side and breaking the teak rail on the bow. The *Florida’s*windlass was also damaged and rendered useless by the heavy strain put upon it in trying to assist in *378getting the *Massachusetts*off the reef mentioned. By reason of the tugging thus done by it for the relief of the *Massachusetts*under the orders of the officers of the defendant the *Florida*was greatly strained and damaged throughout the whole of her structure, including the frame of the vessel ánd her machinery, to her great injury.

VII. On August 12,1898, while lying in the port aforesaid with no steam on her main boilers, the captain of the *Florida*was ordered by the officers and agents of the defendant to hurry and get up steam immediately and go to the assistance of the steamship Manitoba, which was dangerously stranded on the coast of Ponce and required immediate assistance. The captain protested against the service required and said that to force the fires and hurry the steam would greatly damage the boilers; but notwithstanding this protest the order was insisted on, and the captain was compelled to carry it out by getting up steam at once and going to the assistance of the Manitoba, taking a line from her starboard bow and pulling on her as required and ordered by the defendant’s officers in charge of the business. The obeying and carrying out of the orders aforesaid of the defendant’s officers and agents resulted in great damage to the *Florida's*boilers and furnaces.

VIII. The making of the necessary repairs to the *Florida*in order to put her in condition as good as when chartered by the United States, wear and tear excepted and the dock-age thereto, deprived the claimant of the use of said vessel for the period of fiftj>--five days, from the 9th day of September to and including the 3d day of November, 1898, during which time a fair and reasonable compensation of such vessel would have been $450 per day.

It appears from the evidence that fourteen days of said fifty-five days’ delay for which compensation is claimed was paid by the owners or insurers of the steamship Miami, with which vessel the claimant’s vessel collided. The sum of $8,660.50 was expended by the claimant herein for repairs and renewals to said vessel made necessary by the injury she received while under charter to the defendant.

*379
      *Mr. Abram B. Serven,*for the claimant. *McGowan, Ser/ven Mohan*and *Clarence R. Wilson*were on the brief.

In considering the liability of the United States for the repairs put upon the *Florida,*it should be first noted and continually borne in mind that the contract or charter-party was a contract of hiring by which the United States became the owner of the *Florida*while she was in the service of the United States under the terms of the charter-party. The United States was clothed with the character and legal responsibilities of ownership. *(Reed*v. *United States,*11 Wall., 591; *United States*v. *Shea,*152 U. S., 178.)

While the *Florida*was thus in the full possession and control of the United States, and while in the military service of the United States under the terms of the charter-party, she was subjected to ill usage, and was used for purposes for which she was not adapted, and which were not contemplated by the charter-party, which ill usage resulted in damage to her, and made necessary all the repairs now claimed for.

The work which the *Florida*was called upon to perform was in violation of the charter-party.

It appears upon a careful reading of the charter-party that the *Florida*was chartered for general transport service. She was chartered “ for a voyage or voyages hereinafter mentioned and for such longer time as she may be required in the military service of the United States,” and on the second of May, 1898, she was to “ be ready to load and receive on board at Port Tampa, Fla., or elsewhere whenever tendered alongside by the quartermaster, United States Army, or his agent, only such troops, persons, animals, and supplies, or ■cargo, as he shall order and direct * * * and when so ladened shall proceed * * * from the port of Port Tampa, direct to such ports and places as ordered by the proper officer of the Quartermaster’s Department, and deliver the cargo in good order and condition * * * .”

It was provided by the third article, that all cargo shall be received and delivered within reach of the ship’s tackle, and by the fourth article it was agreed that the vessel shall be kept and maintained while in the service of the United States, tight, stanch, strong, etc., and furnished in every respect fit for merchant or transport service.

*380By the seventh article of the charter-party the United States agreed to return the vessel to the company at Port Tampa, Fla., in the same order as when received; “ ordinary wear and tear, damage by the elements, collisions at sea and in port, bursting of boilers and breaking of machinery excepted.”

From a reading of the whole instrument, with particular reference to the articles just quoted, it appears that the *Florida*was chartered only for transport service. Obviously such service does not include the wrecking, towing, and light-ering work of the character which the *Florida*was called upon to perform. No testimony and no argument is necessary to convince the court that a merchant vessel, constructed for use in the usual merchant service for the transportation of passengers and freight, is not built for towing and wrecking, and the court is aware that such work ordinarily would tend to injure her. Therefore, when the charterer wrongfully, and in violation of the terms of the charter-party, puts a vessel to such use he should be held liable for the resulting damage.

The liability of the United States in a case very similar to the present was discussed at length in the briefs in the case of the *New Orleans-Belize Royal Mail and Central American Steamship*Company, Limited, v. *The United*States, No. 22541, now pending in this court. We refer the court to our brief in that case, pages 18-33.

Cases similar to the present are *Schultz and Markley^s ease*(3 Ct. Cl. B., 56) ; *Clark*v. *United States*(9 Ct. Cl. B., 381); *Talhotfs ease*(7 Ct. Cl. B., 417).

In the cases cited, as in the present case, the liability of the United States was based upon the abuse of the vessel chartered.

*Mr. Frederick Be C. Fqust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

1. Counsel contend (1) that this charter party was a contract of hire by which the United States became the owner of the *Florida*while she was in the service of the Government, clothed with the character and all the legal responsibilities of ownership and liable accordingly to respond under *381the contract for all 'damage to the vessel resulting from ill usage, and further, (2) that her enforced use amounted to an appropriation for which compensation must be made. Citing *Reed*v. *The United States*(11 Wall., 591); *United States*v. *Shea*(152 U. S., 178); *United States*v. *Russell*(13 Wall., 623); and *Mitchell*v. *Harmony*(13 How., 85).

Both of these contentions, however, are not only wholly untenable under the admitted facts in this case, but both are directly opposed to the law as laid down by the Supreme Court of the United States in the very cases upon which plaintiff’s counsel rely.

^Referring to the first of these contentions, it may be conceded that where a contract of charter constitutes a complete demise of the vessel to the Government sufficient to divest ownership during the contemplated voyage or service, the United States is liable to respond in damages for abuse or ill usage of the ship as upon an implied contract. But where the contract constitutes a mere hiring of the use of the vessel to do certain work, the owner retaining command and possession and control over its navigation, and the vessel is wrongfully diverted for purposes other than that for which she was chartered, and is injured thereby, the diversion is clearly a tort, for which no action can be maintained in this court.

This distinction between contracts of hire and contracts of service is clearly set forth in *United States*v. *Shea*(152 U. S., 186), where a principle directly opposed to that now contended for by the plaintiff was reexamined and affirmed. *{Leary*v. *United*States, 14 Wall., 607, 610.)

See also *Donahoe*v. *Kettel,*Fed. Cases, 3,980; *Drinkwater*v. Spartan, Fed. Cases, 4,085; *The*Nicaragua, 71 Fed., 725; *The*Natchez, 73 Fed., 267; *Morgan*v. *United,*States, 14 Wall., p. 531; *Reybold*v. *United*Stales, 15 Wall., 205.

In the case at bar, as we have seen, the plaintiff’s action is based not upon the terms of the charter party, but upon alleged wrongful uses outside of and in violation of the terms of such charter against which the master of the *Florida*then and there protested.

*382This action, therefore, is clearly one sounding in tort. *(Schillinger*v. *United*States, 155 U. S., 167; *United States*v. *Berdan Arms*Go., 156 U. S., 566.)

2. It is urged as a second proposition that the work done by the *Florida*in salving property of the United States, under the imperative orders of responsible military officers and against the protest of the master of the ship, was virtually an appropriation of property for which the United States is liable. This contention, however, is open to the same objection as that heretofore discussed. As has already been stated, the Supreme Court, in *Reynold*v. *United States (supra),*held that demand by a responsible government officer of obedience by a master of a chartered vessel to an order after proper objection that its execution would be dangerous to his vessel is a tortious act. Moreover, the present action is not one of salvage.

As to the alleged use of this vessel constituting virtually an appropriation of private property for public use, it is only necessary to point to the conceded facts that she was under charter at an agreed per diem rate; that her owners were paid said per diem rate for every day during which the appropriation is said to have occurred, and that the property was subsequently returned by the Government and accepted by the plaintiffs. Under the conceded facts, therefore, there was certainly no appropriation of the plaintiff’s property in a constitutional sense.

The cases cited by the plaintiff *(United States*v. *Russell,*13 Wall., 623, and *Mitchell*v. *Harmony,*13 How., 85) are not in point, for they both relate to the fundamental doctrine that just compensation must be paid for private property taken by military officers for public use in time of war. In this case, however, the property was already in the service of the Government at a price fixed by the parties for an agreed service, and compensation has been paid therefor.

Booth, J.,

delivered the opinion of the court:

This is a suit to recover damages for the alleged ill us© and abuse of a chartered steam vessel. The claimant, a Connecticut corporation, on April 29, 1898, entered into a charter *383party with the defendant concerning the transportation of troops and supplies to be used in the war with Spain. The vessel, the Florida by name, used for this purpose, was a vessel of little over 1,700 registered tons, of somewhat limited carrying capacity, being usually employed by the claimant in the transportation of freight and passengers in southern ■waters. While lying at anchor in the port of Ponce, P. It., she was ordered to afford assistance to the steamship Massachusetts, at the time aground at the entrance of the harbor. The captain of the Florida protested against the order and the service, and thereupon the command of the vessel was assumed by a United States naval officer acting under orders, and the service performed. Services of a similar character and under almost exactly the same circumstances were subsequently required of the officers in command of the vessel when the steamship Manitoba became dangerously stranded on the coast of Ponce. The result of this extraordinary and unusual use to which this comparatively small vessel was put caused her serious injury and damage, requiring the expenditure of a large sum of money in repairs and the loss of considerable time in making the same. The record presents the usual question, most always quite difficult to determine : Was the charter party a demise of the vessel or a contract for service? The language of the charter party is not unusual and in no way specifically and expressly indicates that any other than the usual construction should obtain in determining the rights of the parties thereunder.

In *Reed*v. *United States*(11 Wall., 601) the court said:

> Unless the ship herself is let to hire, and the owner parts with the possession, command, and navigation of the same, the charterer or freighter is not to be regarded as the owner for the voyage, as the master, while the owner retains the possession, command, and navigation of the ship, is the agent of the general owner and the mariners are regarded as in his employment and he is responsible for their conduct.

The above rule, predicated upon a long line of decisions, taken in conjunction with another and correlative one, “ that courts of justice are not inclined to regard the contract as a demise of the ship if the end in view can conveniently be accomplished without the transfer of the vessel,” make it extremely *384difficult to construe a charter party, in the absence of express words to the contrary, as other than a contract for service. Except as to the rule above stated, in the construction of a contract of affreightment, the same rules applicable to the ascertainment of the intention of the parties to any written contract obtain. *(Reed*v. *United States,*supra, and cases cited on p. 601; *Beleher*v. *Caffer,*11 Law J. C., p. 275.) Claimant contends that the phraseology of the charter party, technically construed, indicates an intention to demise the vessel. It is true the words employed, viz, “ grant and let,” “ take,” “ take the steamship Florida,” are appropriate words of demise, and constitute an essential element in arriving at the intention of the parties to the charter party, but the controlling principle, the fundamental and definitive conclusion, rests upon an ascertainment of who retains the possession, command, and navigation of the vessel. *(Leary*v. *United States,*14 Wall., 610.) The authorities sustaining this proposition are too numerous for citation.

Subjecting the facts before us to the decisions cited in so far as the charter party is concerned, it is a contract for service and not a demise of the vessel. In the preliminary negotiations pending the execution of the charter party the claimants on April 20 and 21,1898, wired the defendant respecting the compensation for the vessel. It will be observed that the message of April 21, 1898, expressly defines the conditions of the offer of the preceding day. This offer was declined by the defendant, as the subsequent charter party shows, thus indicating a clear intention to escajie responsibilty for the vessel and running expenses, including the crew, the charter party providing for increased compensation and decreased responsibility.

The charter party provided that the vessel should be officered and manned by the owners, and they further agreed to maintain her at their expense during the continuance of the contract. The compensation agreed upon was per diem.

At the time of the execution of the charter party the defendants were engaged in war with Spain. The Florida was one of many passenger and freight vessels chartered to convey troops and supplies to Cuba and Porto Rico, the charter *385party expressly limits her use to such a purpose. It is obvious that the defendants intended, and the claimants did not expect, any other use of the vessel. The defendants had neither the time nor purpose to engage in transportation enterprises; they were alone concerned in the immediate and safe dispatch of their troops and munitions of war into enemy territory. The vessel was not to be refitted and equipped with armament, nor in any wise employed in military maneuvers.

There was nothing in the nature of the service, or the object of the voyage which required the vessel to be absolutely under the control and subject to the orders of the charterers. She was to take such cargo as the defendants prescribed to such ports and places as ordered by the proper military officers and there discharge the same. The transaction was a simple one of transportation from place to place, cargo limited and identified, responsibility for crew and vessel, except war risk, expressly repudiated. The command and navigation rested with the claimants’ officers furnished and paid by it, and possession rested with them as evidenced by the captain’s protest against the performance of the service resulting in her injury. *(Donald*v. *The United*States, 39 C. Cls. R., 357.)

No one of these circumstances standing alone would be sufficient to determine the character of the transaction; taken together, however, and keeping in mind the judicial injunction to follow the construction, if conveniently possible of contract of service, we think the construction herein in harmony with the cases cited on the briefs. There is an apparently endless chain of authorities upon this subject. The rules of construction applied are firmly established and inflexible. The decision in each case depends upon the peculiar facts and circumstances surrounding the transaction, and in consequence thereof it is difficult to determine with great accuracy into which class a charter party falls. In the class of cases relating to the charter of merchant vessels, wherein the parties are engaged in water transportation for profit, it seems reasonably certain that courts have not' hesitated to construe the charter party a demise of the vessel. *386It would not.be accurate to say that in some instances vessels chartered for transportation of troops and munitions of war have not likewise been considered as a demise. In fact always so held where nature of the service and attainment of the object of the voyage renders the charterers’ absolute command and control necessary. *(The*Volunteer, 1 Sum., 551; *Desty on Shipping and*Admiralty, pp. 204-205.)

In the case of *Propeller Company*v. *The United States*(14 Wall., 670), a case somewhat similar to the present, the Supreme Court held that the optional clause of purchase contained in the charter party vested in the defendants an equitable interest in the vessel. It is true the court said, “ The agreement between the plaintiffs and the United States was not a mere contract of affreightment,” but the controversy did not involve that issue, and the case turned on the measure' of damages due because of defendants’ express assumption of the war risk. The theory of a demise is predicated upon temporarily absolute title, ownership *pro hae vice,*with its attendant responsibilities and liabilities. We think that there is nothing inconsistent with the doctrine of an equitable interest in the *res*as distinct from the interest conveyed by a demise of the vessel.

In *Reed*v. *United States*(supra), where the owner of a vessel under direct threats of impressment was directed to get her ready for a voyage for the transportation of military supplies, the Supreme Court declined to construe the contract other than one of simple affreightment. The language used by the court in the case of *Donahoe*v. *Kettell*(7 Fed. Cases, p. 878) referring to charter parties for the transportation of troops in time of war as falling unmistakably into the class of cases wherein the transaction is held to be demise, will hardly be claimed as decisive. It was used by way of illustration, is clearty *obiter*so far as the case was concerned, and its use in the case rests upon the sentence preceding it, and when considered with the previous statements of the learned justice simply upholds the well-established rule as to the construction to be given charter parties.

Taking the charter party as a whole, considering the circumstances under which it was made, the uses for which the *387vessel was needed, and the respective situations of the parties at the time, we think it falls within the class of contracts for service and not for hire and the liability of the defendants is limited to contracts of the former class. *(Reybold*v. *United*States, 15 Wall., p. 202.)

A second proposition advanced by claimants goes to the covenants of the charter party irrespective of the question heretofore considered. Clause VII of the charter party provides as follows:

> “ The United States will furnish all the fuel necessary to propel the vessel, if a steamer, until the said vessel is returned to the said company at Port Tampa, Fla., in the same order as when received; ordinary wear and tear, damage by the elements, collision at sea and in port, bursting of boilers and breakage of machinery excepted.”

The findings show that the defendants did not return this vessel in accordance with the provisions of Clause VII, and were this jurisdiction one wherein a litigant might waive a tort and sue in assumpsit the above contention would be exceedingly efficacious. The findings show that the injury suffered by claimants’ vessel was due to the unlawful acts of defendants’ agents, which were tortious in character, performed despite the protest of the captain in charge of the vessel, by a naval officer detailed for the particular purpose, and in disregard of the express covenants of the charter party.

The case of *Schultz*v. *United States*(3 C. Cls. R., 56) cited in support of claimants’ contention was decided without an opinion in January, 1868, and for some reason never appealed. The case of *Reed*v. *United States*(4 C. Cls. R., 132), decided by this court about one year later, wherein the court followed the decision in the Schultz case (supra), was reversed by the Supreme Court in 1870, and hence the citation is valueless. In the case of *Clark*v. *United States*(9 C. Cls. R., 377) the charter party expressly provided for the assumption of “war and all other risks.” In *The Meteor case*(10 C. Cls. R., p. 248), the jurisdiction of the court was by special legislation, and the special act conferring the same limited and defined the scope of the inquiry and the extent of the liability. The United States having declined to recog*388nize its liability for the tortious acts of its agents, except in special cases and in specific instances, the claimants are without relief on this contention under our general jurisdictional act. *(Morgan*v. *United States,*14 Wall., 531.)

A small item for the loss of five boats, about which there is no serious controversy, is clearly proven, and the defendants having assumed the war risk are liable therefor.

Other questions are discussed in the briefs of counsel. Under the opinion of the court their consideration is unnecessary. The questions of demurrage and military seizure fall within the above conclusions and are disposed of by the opinion.

Judgment will be awarded the claimants for five hundred and seventy-four dollars ($574). It is so ordered.

Howry, J., did not hear this case and took no part in the decisión.