#### BOWLEY'S CASE. J. E. Bowley *v.*The United States.

*On the Proofs.*

*The G-ovsrnmcnt charters a steamer at Boston for voyages specified, at*$350 *a day. She is ordered to Fortress Monroe and is then ordered to' New York to coal, and thence to Boston for discharge. On the return voyage she is compelled to put into New Haven by stress of weather, and is detained there by an injury likely to have been caused by heavy seas. Thirty-seven days are thus spent on the voyage. The Navy Department deeming thirty-one sufficient, refuse to pay for more. The owners bring suit for the remainder. On the trial, the defendants offer to prove that the charter-party, though bearing date the 5lh December, was not executed till the 6th. But it appears that the vessel’s service began on the 5th.*

I. Where a charter-party is not for time specified, but for voyages specified, the rule is that the owners are bound only to due diligence amid the cir-*188cumstanoes in whicli the voyages are made, although the compensation is an allowance *per diem;*and if the charterer alleges a want of this diligence, the burden is on him to prove it.

II. Where the Government charters a vessel for voyages specified, at an agreed compensation per day, and the vessel is detained by an injury likely to have been caused by heavy seas to which she was exposed, it will not be presumed, in the absence of evidence, that there was any defect in the vessel or fault in her management.

III. It is immaterial that a charter-party was executed subsequent to its date when it appears that the vessel’s service began on the day of the date.

*The Reporters'*statement of the case:

The following facts were found by the court:

On the 5th day of December, 1861, a charter-party was executed between the petitioner and the United States, by which *they*chartered the steamer George Shattuck, then lying at the Eastern Avenue wharf iu Boston, in the State of Massachusetts, to proceed to Charlestown navy-yard and there take a cargo of Government stores and proceed to New York with the same, and from thence to Hampton Roads or elsewhere, as the United States Navy Department may elect, in consideration o the sum of $350 per day.

In performance of this agreement the George Shattuck, on said 5th day of December, proceeded from her wbarf iu Boston to the navy-yard at Charlestown and there took on board the Government stores furnished to her, and on the evening of the 7th of December proceeded under orders to New York, and thence to Philadelphia, thence to Fortress Monroe, thence to Norfolk, thence to Beaufort, thence to Fort Fisher, and again to Fortress Monroe, and thence to New York, and thence to Boston, where she arrived and was discharged from the charter-party on the 10th day of January, p. m.

When the agreement for the charter-party was made, it was arranged between the parties that a bilge-injection should be put into her at the navy-yard in Charlestown, and this was done, and it was not shown that it interfered with her loading or delayed her departure on her outward voyage. At Fortress Monroe, on her last arrival there, the United States supplied the steamer with coal only sufficient to take her to New York, and ordered her there to take in more coal.

*189Sbe arrived at New York on Monday, the 2d day of January, which, because the 1st of January fell upon a Sunday, was kept as a holiday, and for this reason the United States did not supply the steamer with coal till Tuesday afternoon, and at so late an hour that the loading of the coal was not completed till after dark and by lamp light.

On Wednesday morning the steamer proceeded from- New York bound for Boston. The day was stormy and the wind increased, and in the Sound blew a gale from the northeast with a heavy sea and thick with snow, making it unsafe to run j and the steamer made New Haven Harbor and anchored within it. From the violence of the wind she dragged her anchor, and another was let go and held her.

On Thursday morning, and as soon as the storm abated, the steamer attempted to proceed on her voyage, but on backing her to«get her head round the wheel came off the shaft and disabled her.

She was then towed up the harbor and run aground, so that when the tide left her the shaft and wheel could be got at and the necessary repairs made. These were delayed by the fact that work could only be done upon her for about an hour at a time at low tide. The wheel was got on to the shaft, new cross-pieces wore procured to be forged, and the ne'cessary repairs made with reasonable dispatch by Sunday night, and on Monday the steamer sailed for Boston and arrived there Tuesday afternoon.

The steamer was in the employ of the Government thirty-seven days, and the voyages she made under the orders of the Government were made with due diligence, and without delay caused by any defect in the steamer or fault in her management.

Subsequently the steamer was paid for thirty-one days only, and further payment was refused on the ground that no delay had been caused by any person acting under the authority of the Navy Department, and that thirty-one days was an ample allowance for a voyage from Boston to Fortress Monroe and back.

*Mr. S. K. Bond*for the claimant.

*Mr. Assistant Attorney-General MeMichael*for the defendants.

*190Loeing, J.,

delivered the opinion of the court:

In this case the charter-party is not for a time specified, but for voyages specified, and in such cases the rule is, that the owners are bound only to due diligence in the circumstances in which the voyages are made; and if the charterer alleges a want of this diligence he must prove it. The burden of proof, therefore, is on the United States.

The charter-party is dated December 5, 1881, and it pro- ' vides that *11*there shall be paid for the charter' of said steamer the sum of $350 per day, to continue until the said steamer shall return to the port of Boston and the said agent be notified that the said charter has ceased. ” The evidence shows that the charter terminated the 10th January, p. in., and this makes thirty-seven days of service. And' it is for the defendants to show why that number of days should not be paid for.

The defendants objected that the charter-party was' not signed till the 0th of December, and therefore the number of days should be counted from that date. If the evidence offered is admissible, we think it immaterial. The evidence shows that the agreement for the charter was made on the 5th December, and that on that day the vessel entered on her employment under the charter-party by proceeding from her wharf in Boston Harbor to Charlestown navy-yard. And when the charter-party was signed, its date was made on the 5th day of December, and this was the mutual declaration of the parties that it was to operate from then, and according to its tenor.

The evidence showed that a bilge-pump was put into her after the charter was agreed upon. But it also showed'that this was contemplated and arranged for when the agreement was made, and therefore it cannot be objected to now. Besides, it was not shown that this in any way interfered with the loading or coaling of the steamer or delayed her proceeding on her outward voyage, on which she did proceed as soon as she received her sailing-orders.

It was objected that thirty-one days was time enough for a voyage from Boston to Fortress Monroe and back. But the evidence-showed that the vessel was ordered on and performed intermediate voyages. Moreover, because the United States could not furnish at'Fortress Monroe the coal required fora passage thence to Boston, the steamer was ordered tó New *191York to get more coal; and the evidence is that she took coal there as soon as the United States furnished it and left in due season afterward.

The evidence also showed that by stress of weather the steamer was obliged to put into New Haven Harbor, and was there disabled in getting under way by her wheel coming off’ the shaft; and the evidence is that this damage might be produced by heavy seas, and it was shown she had encountered these. The circumstances, therefore, do not show any defect in the steamer or fault in her management.

Then it was shown that the work of repairing the steamer was done with as much dispatch as the untoward circumstances in which she was placed permitted, and that as soon as she was repaired she proceeded to Boston and arrived there at a reasonable time.

On these reasons we think- there was no delay that can be attributed to any fault in the vessel or her management. And it is only such delay that can authorize the withholding of any part of the stipulated price.

On the facts stated the court find that the claimant is entitled to recover from the United States on said charter-party for six days’ service of the steamer George Shattuck, at $350 per day, amounting to the sum of $2,100, for which judgment will be certified.