#### MORGAN'S CASE. Thomas P. Morgan et al., Appellants, *v.*The United States, Appellees.

(5 Court of Claims R., p. 182; 14 Wallace R., p. 531.)

*On the claimants'’ Appeal.*

*A charter-party provides that the owners shall keep the vessel tight, stmaich, and strong, fit for merchant service, at their own cost, and receive on hoard, when tendered, such troops, <fe., as a quartermaster shall direct and the vessel can conveniently carry, and shall proceed direct to such ports as ordered ; the “*war risk to lie "borne by tbe United States, and tbe marine risk by tbe owners.” *The steamer is at Brazos, and is ordered to take a cargo and proceed to sea. A heavy gale is Mowing at the time, the water on the bar is temporarily low, and the steamer strikes ; she returns, hut is ordered peremptorily by the quartermaster, against the objection of the master and pilot, to proceed again to sea. The order is given*“with a full knowledge of tbe danger;” *b at a military exigency, “*in tbe judgment of tbe quartermaster, requires tbe attempt to be made.” *She again strikes on the bar and is seriously injured. The Court of Claims is equally divided as to the claimants’ right to recover upon the facts found. Judgment for the defendants. The claimants appeal.*

I. Where a vessel, being in tbe military service of tbe Government under a charter-party, is peremptorily ordered to proceed to sea by a quartermaster who is tbe proper agent to direct her sailing, and issues bis order witb full knowledge of tbe danger, but under a military exigency, against tbe remonstrance and advice of tbe master and pilot, his interference is a tortious act, and the damage resulting to tbe vessel must be deemed to have been caused by tbe tortious act, and tbe Court of Claims to be without jurisdiction to afford relief. (See *Beyhold’s Case, post.)*

II. Where by tbe terms of a charter-party a vessel is to be navigated by tbe owners, and tbe Government is to assume her war risk, and her owners • the marine, tbe court cannot look beyond tbe proximate cause of loss to determine upon whom it shall fall. And although tbe legal agent of tbe Government, tbe quartermaster under whose orders tbe vessel is, interferes witb her navigation, by compelling .her to put to sea against tbe remonstrances of tbe master, still, if she is lost through perils of tbe sea, tbe loss must be borne by tbe owners.

*The Reporters’*statement of tbe case:

Tbe charter-party made the 1st March, 1865, between tbe owners of tbe steamer Tappahannock on tbe one side, and an *19officer of tbe Quartermaster Department on the other, provided :

“ That the said vessel now is, and shall be, kept and maintained during the whole of the voyage mentioned in this contract, tight, staunch, strong, and well and sufficiently manned, victualed, tackled, appareled, and ballasted, and furnished in every respect fit for merchants’ service, at the cost and charge of her owners. (The time lost in consequence of any deficiency in these respects not to be paid for by the United States.) And shall, on the first day of March, 1865, be ready to receive on board, whenever tendered alongside by the Quartermaster United States Army, his factors or assigns, such troops, men, animals, and supplies, or cargo, as they shall order and direct, and the said vessel can conveniently stow and carry. And when laden shall proceed, with the first good opportunity, and without delay, from the port of Philadelphia, or elsewhere, and proceed direct to such ports and places as ordered by the Quartermaster United States Army, and deliver cargo to the Quartermaster or duly authorized agent of the Quartermaster’s Department. All pilotage and port charges will be paid by the United States after leaving the port of Philadelphia. All cargo to be received and delivered within reach of the said vessel’s tackles. The said vessel shall deliver her cargo in good order and condition, (the dangers of the seas, fire, and navigation, and the restraints of princes and rulers being always excepted.) The war risk to be borne by the United States. The marine risk to be borne by the owners. ”

As to the interference of the Government in the navigation of the vessel, and the damages caused thereby, the Court of Claims found the following facts:

That under the charter-party the claimants’ vessel was, in July, 1865, at Brazos St. lago, Texas, and was, by the quartermaster there, being the duly authorized agent of the United States, ordered to receive on board certain troops and stores, and to proceed as soon as this was done to New Orleans, Louisiana. That the bar at the mouth of the harbor of Brazos is difficult and dangerous, and when the said vessel was ready to proceed on the voyage so ordered, the wind was high and the water on the bar was low, and the quartermaster, being informed of the difficulty, ordered a tug-boat to aid in taking the vessel over the bar, and in tow of this tug-boat and in charge of a pilot *20in the service of the United States the said vessel proceeded to the bar and attempted to cross, but struck, and the hawser of the tow having parted, the vessel swung round inside the bar and returned to the landing. In this attempt she received injuries which, if time could have been allowed, could have been repaired in two days, and at a cost of five or six hundred dollars. The said quartermaster again ordered the said vessel to proceed to sea. That this order was given with a full knowledge of the danger of crossing the bar, and against the judgment of both the master of the vessel and the pilot ; but the exigencies of the service, in the judgment of the quartermaster, required the attempt to be made. That the master of the vessel, under' the said order of the said quartermaster, again attempted to cross the bar in tow of the steam-tug, and under charge of the Government pilot, as before, but struck heavily and was finally dragged over the bar by the tug, aided by her own steam-power. In this attempt she sustained such damage that she was compelled to use her steam-pump to save her from sinking, and the troops and stores being discharged, she was towed to New Orleans by a Government transport.

*Messrs. Carlisle and McPherson*and *Mr. H. P. Chisman*for the claimants, appellants:

I. Under the terms of the charter-party the United States were, pro *hac vice,*the owners of the vessel. *Trinity House v. Ciaría,*(4 M. & S., 288;) *Belcher*v. *Capper,*(4M. & G., 502,541;) *Hewherry v.*Colvin, (7 Bing., 190 ,• 1 Clark & Fin., 283, 297;) *Lander*v. *Clarice,*(1 Hall, 355.)

II. The United States were bound to pay the per diem unless the owners were in default. 1 Oh. PL, 358; *Young*v. *Preston,*(4 Or., 239.)

III. As for the expense of repairs, the liability rests upon the ground of the use made of the vessel beyond that stipulated for in the charter-party. But this is a small item.

*Mr. Assistant Attorney-General Hill*for the United States, appellees:

Under the charter-party in this case, the Government insured the owner against the war risk, and without any stipulation the *21marine risk would be borne by the owner of the vessel, as the Government were not the owners for the voyage, and would not be responsible therefor. The fact that these two phrases are in juxtaposition in the contract, limits the responsibility of the Government strictly to losses arising from the circumstance of its being engaged in war, and of the vessel’s being engaged in the military service.

Such being the case, it is submitted that it is not difficult to decide within which class of perils the peril falls, which caused the injuries in this case. The fact that the Government was at war had no more to do with the loss than that it may have created the exigency which compelled the vessel to proceed to sea at all hazards; and such an exigency of the public service might have required a vessel, chartered as this was, to proceed to sea, notwithstanding the state of the wind and tide, if the Government had been at peace. It was, at most, only the remote cause of the loss, and cannot, therefore, be considered by the court. This being a marine risk, the loss occasioned by it must be borne by the owner, notwithstanding that the vessel was ordered by the quartermaster to proceed to sea. *Reed*v. *The United*States, (11 Wallace, 591.)

The case of the claimant rests solely upon the contract of affreightment. If, contrary to that contract, the vessel was compelled to proceed to sea, under circumstances which were not justifiable, either the action of the Government officers was tortious, or else it was an appropriation of the vessel by the Government; and in neither case can any action be maintained in the Court of Claims. *United States*v. Kimball, (13 Wallace, 636.)

Mr. Justice Davis

delivered the opinion of the court:

These claimants cannot recover, on the ground that the injuries to their vessel were occasioned by the tortious act of the quartermaster at Brazos in compelling their master, against his better judgment, to proceed' to sea; nor would their condition be improved if the vessel had been actually impréssed into the service of the United States, for in neither case would the Court of Claims have jurisdiction. *Reed*v. *The United States,*(11 Wallace, 591;) *The same*v. *Kimball,*(13 id., 636.)

Congress has wisely reserved to itself the right to give or *22withhold relief where the claim is founded on the wrongful proceedings of an officer of the Government.

The case, therefore, rests wholly on the contract of affreightment, and the inquiry is, which of the parties to it must bear the loss caused by the stranding of the claimants’ vessel on the bar at the -mouth of the harbor of Brazos. The stipulations in the contract applicable to this subject leave no room for doubt how the question should be answered. The United States, being in a state of war, found it necessary to- hire the injured vessel for the purpose of transporting troops and munitions of war to different ports and places, and entered into a contract with her owners to carry this purpose into effect. The vessel was to be officered and manned by the owners, who agreed at all times to keep her in repair and fit for the service in which she was engaged. In no sense were the United States the owners of the vessel, for they had nothing to do with her management, and only reserved to themselves the right to say how she should be loaded and where she should go. In the condition of things then existing it became necessary to make provision for two classes of perils. This was done; the United States assuming the war risk, while the owners of the boat agreed to bear the marine risk. If, therefore, the stranding of the boat in going over the bar was owing to a peril of the sea, her owners, and not the Government, must bear the loss. That the high wind and low stage of water were the efficient agents in producing this disaster are too plain for controversy. They were the proximate cause of it, and in obedience to the rule *“ causa próxima non remota spectatur*” we cannot proceed further in order to find out whether the fact of war did not create the exigency which compelled the employment of the vessel. If it did, it was known to the owners when the charter-party was formed, who, with this knowledge, became their own insurers against the usual sea risks, and must abide the consequences of their stipulation.

There is a certain degree of hardship in this case growing-out of the peremptory order of the quartermaster to proceed to sea, but this is outside of the contract, and, if worthy of being considered at all, must be addressed to another department of the Government.

The judgment of the Court of Claims is affirmed.