#### SHAW’S CASE. John S. Shaw *v.*The United States.

*On the Proofs.*

*A vessel is impressed, while lying at the port of Saint Louis, into the military service of the Government. While thus in the service she is lost. At the time of her loss she is inswed; the insurers pay the owner the amowni insured against. The owner applies to the Third Auditor for compensation under the*Act 3d March, 1849, *and receives an award. Subsequently he brings his action on the gromid that the award ivas erroneous and insufficient. In the progress of the case it appears that he has received the amount of his policy from the insurers. He insists on his right to recover for their use.*

Where a vessel 'which has been impressed into the military service is lost, and the insurers pay the owner the amount of certain policies on the vessel, they may maintain an action in the name of the owner, under the *Act 3d March,*1849, (9 Stat-. L., p. 414,) and the *Act*3cZ *March,*1863, (12 Stat. L., p. 743.)

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      *Mr. Joseph Gasey*for the claimant:

The claimant on the 17th day of September, 1863, was the owner of the steamboat known as the Robert Campbell, jr. This steamer was then lying at the port of Saint Louis, fully manned, equipped, and furnished. On the day named she was seized and impressed into the military service of the United States by the deputy quartermaster-general, General Robert Allen, through Captain Metcalf and Captain Parsons, assistant quartermasters. Under this seizure and impressment she was loaded on the Government account, and left the port of Saint Louis about the 25th of September, for Vicksburgh, Miss. On the way down, near Milliken’s Bend, on the Mississippi River, the steamboat took fire and was consumed. She was a total loss to the claimant. At the time of the impressment and seizure of the steamer at Saint Louis, and at the time of her destruction, she was worth to the claimant and would have brought more than $70,000 in cash. At the time of her destruction she was insured by the claimant to the amount of $25,000 in various insurance companies, which sums were afterwards paid to him. He applied to the Third Auditor of the Treasury under the act of 1849, and its supplements, for compensation for the loss of his steamboat. The Third Auditor valued the boat at $57,000, deducted the $25,000 insurance, received by the claimant, and made him an award for $32,000, which was afterwards paid, and which he received under protest.

This suit is brought in the name of the claimant to recover from the Government of the United States the additional sum of $13,000, the difference between the $57,000 at which the Third Auditor valued the boat, and her cash value at the time of loss, and also the $25,000 insurance, for the use and benefit of the companies .who paid the same.

The first question is, whether the award of the Auditor under the act of 1849, and its supplements, was conclusive upon the claimant. This point was expressly ruled the other way in the case of *David A. Bogart*v. *The United States,*2 C. Gis. R., p. 159. In that case it was very strenuously insisted and ingeniously argued by Mr. Kerr, the deputy solicitor, that the award of the Third Auditor was in the nature of a judgment conclusive of the rights of the parties. The case was heard and tried and was again reported in the 3 C. Cls. R. *490In the opinions delivered in the two trials of the same case by his honor Judge Nott, the subject is exhausted, and nothing is left for further argument in the case. I take it that the court will adhere to the position taken upon such full argument and deliberation. (See also *Acts 30th*March, 1868, and 25i7i *June,*1868,15 Stat. L/, pp. 54, 75.)

The *Act 3d March,*1849, (9 Stat. L., pp. 414,415,) provides that the owner who has suffered the loss of the property “ *shall he paid the rahie thereof,”*and in *Act 3d Mcvrch,*1863, (12 Stat. L., p. 743,) extends the same provisions to the owners of steamboats and other vessels, &c. We also think it clear that the Government is liable for the amount of the insurance. It was the value of the boat that the Government was liable for, and whether insured or not insured, they were liable to the owner or owners for it. In that view of the case, he having received the amount of the insurance from the companies, we have tc bring the action for the recovery of the value of the boat in his name, either before the Auditor or in this court. And if recovered in one place or the other, the Government officers in the one case, and the court in the other, would so control the amount recovered, and the proceeds of the judgment, that it should finally go into the hands of the parties entitled. (13 Wall. B., p. 367.)

*Mr. Assistant Attorney-General McMichael*for the defendants:

The claimant was, on September *17,1863,*owner of the steamer Bobert Campbell, jr. She was then lying at the wharf at Saint Louis. The owner was applied to by the United States quartermaster at that place to make a trip to Memphis, Vicks-burgh, and other points, with a cargo of military supplies. It is alleged by the claimant that the steamer was seized and impressed into the military service of the United States by the military authorities thereof, against the will, wishes, and interest of the claimant.

The claimant does not allege that the fire occurred from any fault of the United States, directly, or of their officers or agents. He had control of the management of the steamer, issued orders, and took civilians on board as passengers.

The claimant made application for the value of the steamer before the Departments, and the accounting officers having *491reported in. favor of allowing him $57,000, less $25;000 already paid to the claimant by the insurance companies, he accepted the $32,000 without protest, written or otherwise, so far as is ascertained, although it is asserted to the contrary by claimant’s counsel, but not proved.

I. The claimant was still the owner for the voyage when the steamboat caught fire and burned, and therefore the Government is not liable for the value of the boat nor any part of it, *{Iieed*v. *The United States,*11 Wall., p. 604; *The United States*v. *Kimball,*13 Wall., 636; *Morgan*v. *The United States*; *Leary*v. *The United States,*ibid.; *Saville*v. *Gooch,*2 Barnwell & Alderson, 510; Abbott on Shipping, p. 53, art. 42,) and, consequently, the Auditor should not have allowed the $32,000.

The owner was in sole charge of the boat, so far as *fire*was concerned, and the impressment did not cause the fire, and therefore the Government is not liable for its destruction. (3 Kent’s Com., 5th ed., § 217; Story on Bailments, § 511; *Administrators*v. *Insurance Company,*11 Ohio, (Stanton,) p. 147.)

The claimant, that is, the owner of the boat, having charge of it, was bound to due diligence; and unless there be good and sufficient proof of that due diligence, he cannot recover from the Government under a war risk.

II. The claimant, although he alleges an impressment, does not prove that it was against his consent that the steamboat ultimately engaged in Government service; and he did voluntarily accept the prescribed per diem compensation, from the commencement of the trip until the destruction of the boat, and he made no claim for any additional compensation during that period; and he therefore acquiesced in the contract, and cannot hod the United States responsible for the destruction of the boat by fire. *{Reed*v. *The United States,*11 Wall., 604.)

III. The disaster was a usual marine disaster, which is covered by ordinary marine policies of insurance, and if the owner neglected to protect himself against such perils by insurance, the law makes him his own insurer, and he must bear the loss. *{Leary*v. *The United States,*5 O. Cls. B., 242; *Morgan*v. *The United States.)*

IV. If the statement of claimant’s counsel, as set forth in their brief, that the steamboat made the trip under impressment, is accepted, this court should dismiss the petition, as their jurisdiction does not extend to torts. *(Gibbons*v. *The*
      *492
      *United States,*8 Wall., 269; *Heed*v. *The United States,*11 Wall., 603; *Morgan*v. *The United States.)*

Y. If the boat was destroyed or appropriated by the army or a part of the army engaged in the suppression of the rebellion in 1863, as the claimant alleges, the court cannot take cognizance of this cause. *{Act July*4,1864,13 Stat. L., p. 381, seel; *The United States*v. *Kimball,*13 Wall., 636.)

YI. If the $26,000 insurance can be recovered from the United States at all, it cannot be in the present cause, as, in the first place, the petition does not set forth that this portion of the claim is for the use and benefit of the insurance companies that paid the $26,000 to the claimant; and secondly, it is not shown that it is with the consent of the insurance companies that this claim is made. *{Ball*v. *R. R. Co.,*13 Wall., p. 367; 11 Penn’a State B., 615; 39 Maine, 253; 37 Ill., 333; 25 Conn., 265.)

YII. The acceptance of the $32,000 by the claimant on a disputed claim in settlement with the United States for the value of the boat destroyed, is a bar to a further recovery. *{Adams’ Case,*7 Wall., 465; *Child, Pratt & Fox,*12 Wall., p. 232; *Clyde,*13 Wall., p. 35; *The United States*v. *Justice.)*

Nott, J.,

delivered the opinion of the court:

Two grounds of recovery were pressed upon the court at the trial: first, by the claimant on his own behalf for damages growing out of an erroneous assessment of damages by the Third Auditor; secondly, on behalf of insurance companies which had paid their insurance to the claimant upon his vessel destroyed while in the military service of the Government. The case of *Hall & Long*v. *The Railroad Companies,*(13 Wall. R., p. 367,) was also cited to show that insurers may sue in the name of the insured.

As to the first ground of recovery, the court is of the opinion, for reasons that will be stated when the case is finally disposed of, that the claimant is not entitled to recover. As to the second ground, a majority of the judges before whom the case was tried are of the opinion that, so far as the rights of the insurance companies are involved, a recovery may be had on their behalf if proper proof be made of the payment of the insurance and proper averments be inserted in the petition. *(Baird’s Case,*ante.) Therefore the case will be remanded to the gen*493eral docket, in order that the petition may be amended so as to show that the suit is prosecuted in part for the use of the insurers; and so that the warrant of attorney, required by Bale I, may be filed by the companies; and for evidence as to the payment of the policies of insurance.

Drake, Ch. J.,

dissenting:

I do not concur in the action of the court in remanding this case to the docket for the purpose of enabling the claimant to change his attitude and prosecute the suit for the benefit of his insurers, after his right to prosecute it for his own benefit has been denied by the court. I consider my duty discharged when I pass upon the case that was made by the pleadings and proofs, and submitted to the court for its decision. I do not consider it my duty to suggest the change of the case into a suit for other parties, much less to commit myself in advance to a decision in a particular way of a matter that has not yet been presented by the record to the court for its judgment. That, at the trial, the claimant’s counsel argued the right of the claimant to recover for the benefit of his insurers, did not, in my view, authorize the court to rule anything on that point, for the case submitted was the claimant’s right to recover in his own right and for his own benefit. Beyond the decision of that case I do not feel authorized to express any opinion.