#### ALBERT T. LA VALLETTE v. THE UNITED STATES

[No. A-58.

Decided February 18, 1924]

*On the Proofs*

*Findings of special tribunal: condhtsvoeness.*— Where a vessel is leased by the Government upon stipulation that upon her restoration to the owner a sum shall be paid to Mm equal to the cost oí restoring said vessel to the same condition she was in when delivered to the Government, the cost oí restoration to be determined by a board of three disinterested persons, one selected by the owner, one by the Government, and the third by the two so selected, the findings of such board are final and not subject to review by the court.

*The Reporter's*statement of the case:

*Mr. Benjmnin Carter*for the plaintiff.

*Mr. W. L.*Cole, with whom was *Mr. Assistant Attorney General Robert II. Lovett^*for the defendant.

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

I. Plaintiff is a citizen of the United States and of the State of Virginia, and has always borne true faith and allegiance to the Government of the United States, and never gave aid or comfort to enemies of, or rebellion against, the same.

II. Plaintiff at all times hereinafter mentioned resided on the shore of Hampton Roads, in the State of Virginia, and was there engaged in the business of producing, buying, and selling sea foods. He owned and used in said business a certain boat named the *Sequoyah.*

III. On the 24th day of April, 1917, the plaintiff entered into a contract with one Walter McLean, commandant, fifth nhval district, for the lease tO' the United States Government of the said vessel Sequoyah, which said lease is, in words and figures, as follows:

LEASE AGREEMENT, FORM 4-O, *é/l0/l7*

Agreement made this 24th day of April, 1917, by and between A. T. La Vallette (the ownerl and the United States, *291represented by the commandant of the fifth naval district, acting under direction of the Secretary of the- Navy in pursuance of authority granted by the act of August 29, 1916.

Whereas the Government may, in case of war or national emergency, desire to use the owner’s vessel *Sequoyah*temporarily for naval purposes; and

Whereas the owner and the commandant have agreed on the terms under which said vessel may be so^ used;

Now, therefore, this agreement witnesseth that:

First. The owner hereby agrees to let and demise his said vessel Sequoyah., her engines, boilers, tackle, apparel, and equipment unto the Government to be used in such manner, for such purposes, and for such period of time as may in the discretion of the Secretary of the Navy be desirable, upon the terms hereinafter stated.

Second. Said vessel shall be delivered to the commandant by the owner immediately, with such fuel, stores, and supplies as may be on board at the time, at such place as the commandant may designate.

Third, The fair value of said vessel at the time of delivery shall be determined as follows:

(b) By taking the appraised value thereof as fixed by a board of arbitration, to be composed of three disinterested persons, one to be chosen by the owner, one by the commandant, and the third by the two so first chosen, said board to be appointed as promptly as possible, and the decision thereof to be concurred in by a majority of its members.

Fourth. The Government shall, in due course, after such delivery, pay to the owner the fair value of the fuel, stores, and supplies on board said vessel at the time of delivery, as determined by a board to be appointed by the commandant, or as may be agreed on between the paties hereto.

Fifth. The Government shall pay to the owner as charter money for said vessel for the use thereof from the time of her delivery until the return thereof to the owner the monthly sum of one hundred and fifty dollars ($150.00). and the Government reserves and is allowed the right to purchase said vessel at the appraised price as determined under this agreement paragraph (&) next hereinafter written:

(5) As shall be determined by a board of arbitration to be composed of three disinterested persons, one to be chosen by the owner, one by the commandant, and the third by the two so first chosen, said board to be appointed as promptly as possible, and the decision thereof to be concurred in by a majority of its members.

Sixth. Said vessel shall be returned to the owner at the place of delivery at a date not later than a reasonable time *292after peace is declared, and thereupon tht Government shall pay to the owner a sum equal to the cost to him of restoring the vessel to the same condition and good order in all respects in which she was at the time of delivery to the commandant, ordinary wear and tear excepted, such sum to be determined by a board of arbitrators to be composed of three disinterested persons, one chosen by the owner, one by the commandant, and the third by the two. first chosen, said board to be appointed as promptly as possible, and the decision thereof to be concurred in by a majority of its members.

Seventh. All determinations of the board of appraisal or boards of arbitration hereinbefore provided for shall be subject to the approval of the Secretary of the Navy.

Eighth. In case of loss the Government agrees to pay to the owner the value of the vessel at the time of her delivery to the commandant, determined as hereinbefore provided.

Ninth. No member of, or delegate to, Congress shall have any interest in this agreement.

Signed, sealed, and delivered on the day and year first above Avritten.

(Signed) A. T. La Vallette. [seal.]

(Signed) Walter McLeaN, [seal.]

Oomma/ndant, *Fifth Naval District.*

In presence of:

(Signed) (Signed) J. I-I. McCueN. ChaRles Webster.

IV. During the month of May, 1917, the said Walter McLean, commandant, and the plaintiff, according to the terms of said contract, each appointed an arbitrator to act under the provisions of said contract, and these two in turn appointed a third arbitrator, and said board of arbitrators thereupon examined the vessel and agreed on the sum of $6,250 as a fair value of the vessel, with the fuel and stores aboard, when she was taken by the Government, and fixed $5 per diem as the rental to be paid, and the Government took possession of said vessel, under the contract of April 24, 1917, and continued in possession of same from that day until January 29, 1919, when said vessel was redelivered to plaintiff. That during all of said time the Government paid the rental as fixed by said board at $5 per day, and plaintiff accepted . said sum as payment in full for said rental.

*293V. On January 29, 1919, three persons were named, one by the Government, one by the plaintiff, and a third one by these two, as a board to determine the amount of money that the Government must pay plaintiff to equal the cost to him of restoring the vessel to the same condition and good order in all respects in which she was at the time of delivery to the commandant, ordinary wear and tear excepted, as provided in section six of the contract. And said board, after an examination of the vessel, on January 30, 1919, found that the sum of $1,176 was the sum necessary for saicl work, and this award was afterwards approved by the Secretary of the Navy.

There is no satisfactory proof of any misconduct or negligent performance of their duties by the members of the board.

The plaintiff then let said vessel to one Mr. Bickford for towing barges, sand diggers, etc., who immediately after delivery to him b3>- the plaintiff made a half day’s trip towing a barge and dredge with satisfactory performance. The vessel was then put on a marine highway by plaintiff, where about a week was spent in cleaning its pipes and other parts of its machinery, examining connections, etc. After this overhauling the vessel was again put in operation and remained in the possession of Mr. Bickford until the 5th or 6th day of March, 1919, when, while towing a boat and a barge up the James River, the vessel took fire and was completely destroyed.

There is no satisfactory evidence of how the fire occurred or the cause of it. The crew were not on the boat, but were on the barge at the time the fire began.

About the date of the destruction of saicf vessel plaintiff notified the Navy Department that he was not satisfied with the award that had been made him by the board as the amount necessary to recondition said vessel, and he thereafter refused to accept said amount, but finally accepted $882, or 75 per cent of said award, and files this suit in the sum of $9,118, which he claims is clue him.

VI. The Government, during' the time it had possession of said A’essel, had repaired all injuries to the hull and when she was delivered to the plaintiff the hull seemed to be in as good condition as it was when the Government took it over.

*294Graham, -Judge,

delivered the opinion of the court.

This suit grows out of a claim for remuneration for damages for injury done to a vessel while in the possession of the defendant under lease. The defendant leased the vessel from the plaintiff under a contract which, *inter*alia, provided:

Sixth. Said vessel shall be returned to the owner at the place of delivery at a date not later than a reasonable time after peace is declared, and thereupon the Government shall pay to the owner a sum equal to the cost to him of restoring the vessel to the same condition and good order in all respects in which she was at the time of delivery to the commandant, ordinary wear and tear excepted, such sum to be determined by. a board of arbitrators to be composed of three disinterested persons, one chosen by the owner, one by the commandant, and the third by the two first chosen, said board to be appointed as promptly as possible, and the decision thereof to be concurred in by a majority of its members.

During the period defendant had the vessel in its possession, defendant paid the rental agreed upon in the contract and continued in possession of the vessel until January 29, 1919, when it was redelivered to the plaintiff. On that day three persons, as provided in the contract, one named- by the plaintiff, one by the defendant, and a third by these two, Avere chosen as a board to determine the amount of money that the Government must pay the plaintiff to cover the cost to the plaintiff of restoring the Aressel to the same condition and good order in all respects in AAdiich she Avas at the time of delivery to the defendant, ordinary wear and tear excepted, as provided in the contract.

The board, after an examination of the vessel on January 30, 1919, found that the sum of $1,176 was necessary to restore the A^essel to its original condition, and this award Avas afterwards approved by the Secretary of the Navy. Thereupon the plaintiff took possession of the vessel and delivered it into the possession of one Bickford, to Avhom it had been leased by him, and, after it had been used by the former for a while with satisfactory results, it was put on a ship railway and some time spent in overhauling it, *295including all of its machinery and connections. Thereafter it again passed into the possession of the lessee, who began operating it, and while doing so the vessel took fire from some cause undisclosed, and was burned.

The plaintiff about this time notified the -defendant that he would not accept the award of the board and finally accepted $882, or 75 per cent of said award, and filed his suit in this court on March 12, 1921, claiming damages to the boat in the sum of $10,000 and seeking to recover $9,118, the difference between the former sum and the $882 received.

In view of the fact that there is no evidence that the fire which destroyed the boat was due to any negligence or misconduct on the pai't of the defendant, the claim here for damages for the value of the boat can be dismissed without further discussion.

The findings of fact show that the board of award properly performed its duties in making the award and fixing the sum which was necessary to. put the vessel in as good repair and condition as it was at the time it Avas received into its possession by the defendant. The board Avas regularly chosen and constituted as provided in the contract. It was the tribunal chosen by the parties to make a decision upon this question of fact, and its decision is binding upon the plaintiff. It awarded the plaintiff the sum of $1,176, of Avhich sum the plaintiff has received $882.

Judgment should be entered in favor of the plaintiff for the difference between these sums, namely, $294, and it is so ordered.

Hat, *Judge;*Doavotct, *Judge;*Booth, *Judge;*and Cami>-belu, *Chief Justice,*concur.