#### William H. Reed and Others *v.*The United States.

*On the Proofs.*

*The owners of a steamboat at St. Louis are applied, to, after the war, by a quartermaster of the United States, to take a cargo of military supplies to Fort Berthold, on the Missouri river. They refuse. They are then informed that in case of refusal the bout will be impressed. The owners protest, but, tinder the orders issued, get the boat in readiness, receive the cargo, and discharge it at the place of destination. On her return the boat is blown aground in a gale. The crew leave her in charge of one engineer, one mate, and three watchmen. The owners, on learning these facts, make their protest in order to cover their insurance. An ice freshet totally destroys the boat. On taking the boat the quartermaster fixed her compensation at*$272 *a day, which is paid up to the time when information was received that the boat was aground. He also pays at the rate of*$101 *a day for the time the engineer and watchmen were on board. For a portion of the*
      *133
      *remainder of the time until the destruction of the boat vouchers are issued at the rate of*$80 *a day. To recover the amount of these vouchers, and also*$80 *a day for the time for which vouchers were not issued, up to the date of the destruction of the boat, and expenses incurred in efforts to save the boat, made with the consent of the quartermaster, this suit is brought. After the destruction of the boat, the claimants, under the provisions of the act of March*3, 1849, (9 *Stat. I,.,p. 414,) apply to the Third Auditor for the payment of her value, which is fixed at*$30,000, *and paid.*

I. The United States are not liable for a *per diem*compensation of a steamboat taken for military purposes after the owners abandoned the boat and made their protest to coyer their insurance.

II. Under the *Act March 3d,*1849, (9 Stat. L., p. 414,) the UnitedStates standin the relation of insurers of a boat taken for military purposes, and fulfil that obligation by paying for her value when destroyed or lost in their service; and that payment relates back to the commencement of the accident by which'the boat is finally destroyed, and they are not liable for damages in the mean time.

III. Where payments have been made for the services of a steamboat after she has been incapacitated, and the defendants have become liable for her loss, but before her value has been fixed or paid under the *Act March*3d, 1849, (9 Stat. L., p. 414,) and the defendants do not ask that the payments be reexamined, the court will not disturb the transaction, nor treat the payments as a set-off.

IV. A claim for expenses incurred in efforts to save property taken for military purposes by an officer of the government and lost, made at the instance of such officer, is valid, and for a reasonable amount the defendants are liable.

*Mr. B. J. Afkmson*for the claimants:

I. The boat having gone into the government service, in pursuance of an order of seizure by the quertermaster in charge of river transportation at St. Louis, for a special purpose, required by the wants of the service, the quartermaster acting in the line of his duty, an implied contract was thereby created binding the government to make such reasonable compensation for the use and detention of said boat as the law would award were the action between individuals.

II. It is immaterial, so far as the right of the owners to compensation is concerned, whether the boat was constantly employed by the government or not, the owners having no control whatever over her. Their right to compensation is the same, whether the boat was actively employed or kept lying idle.

III. The evidence shows an understanding, equivalent to an agreement, between Captain Metcalf, assistant quartermaster, *134and the captain of the boat,'that reasonable compensation should be made for the boat from the time of taking until her return.

IY. The payment of the value of the boat, under the act of March 3, 1849, as amended by the act of March 3, 1863, has no relation whatever to the outstanding’ claim for compensation for per diem prior to the date when the loss happened.

Y. The vouchers for compensation, regularly issued by the proper officer in the line of his official duty, and in accordance with the uniform custom of the department in such cases, were legally and properly issued, and are *prima fade*evidence of an indebtedness of the government, and binding thereon, unless impeached for fraud or other good and valid reasons.

As to the per diem from October 1 till November 30,1865, for which regular certified vouchers were issued to claimants and accepted by them in good faith, the government is liable on the vouchers, *prima facie,*they having been issued by an authorized officer acting in the strict line of his duty, who certifies thereon that they “ are correct and just, that the services were rendered as stated, and that they were necessary for the .public service, as per my report of persons and articles for November, 1865.”

*Mr. T. JS. Talbot,*(with whom was the *Assistant Attorney General,)*for the defendants:

• The claimants present the following case in the allegations of their petition and of their evidence:

Their steamer Belle Peoria, at St. Louis, Missouri, June 1,1865, was, by Colonel L. S. Metcalf, assistant quartermaster at that city, ordered and taken into the service of the United States, and sent 1,700 miles up the Missouri river, “for the transportation of supplies to Fort Berthold.” On her return, and about 250 miles down, she went ashore, while attempting to land in a storm, July 24 or 26. The water in the river was falling; and after efforts for a week to get her off, the captain abandoned the attempt for the season, or until the next spring; and with all the officers and crew, save 'five, who should take care of the boat, left her, reaching St. Louis August 10. The rest of the crew left the steamer on the 10th of September and reached St. Louis on the 30th of the same month. The vessel *135was totally lost in tlie breaking np of tbe ice, April 15,1866; and tbe United States bave paid for ber value.

Her bire to August 10 was paid for at tbe rate of $172 per day; after that, to September 30, at tbe fate of $101 per day. November 13 tbe facts were first reported to tbe chief quartermaster at St. Louis, and ber pay was stopped. Tbe petition seeks to obtain pay from October 1, 1865, to April 15, 1866, inclusive, at tbe rate of $80 per diem.

1. To these facts tbe law applicable is as follows :

I. This is a claim for demurrage, and tbe delay being caused not by tbe act of tbe hirer, tbe claim cannot be sustained. *(.Douglass*v. Moody, 9 Pick., 551; *Abbott on Shipping,*pp. 383 and 393, citing *Jameison and others*v. *Laurie,*6 Bro. P. 0., 472, 2d ed.)

H. Neither tbe payment for tbe steamer, whether required or otherwise, nor any protection afforded to ber by tbe military, or aid afforded by tbe assistant quartermaster at St. Louis to tbe efforts to recover ber, create or admit any liability for this demurrage.

III. Neither does tbe payment of ber hire to September 30 create or admit such liability. Such payment was made in ignorance of facts. It does, however, cover tbe whole time required for ber return voyage, which is tbe fullest extent to which demurrage could be awarded.

Casey, C. J.,

delivered tbe opinion of tbe court:

Tbe claimants in this case were, on tbe 1st day of June, 1865, tbe owners of a side-wheel steamboat called Belle Peoria. She was then lying at ber wharf in tbe city of St. Louis. Tbe owners were applied to by Colonel Metcalf, United States quartermaster at St. Louis, to take a cargo of military supplies to Fort Berthold, on tbe Missouri river, about 1,700 miles from St. Louis. They declined, on account of tbe lateness of tbe season. He then ordered them to prepare for tbe trip, and informed them that in case of refusal tbe boat would be impressed. Tbe owners protested, but, under tbe orders, got tbe boat in readiness, put on tbe cargo, and left St. Louis on tbe 3d day of June, 1865.

She arrived at Fort Berthold on tbe 22d day of July, 1865, discharged ber cargo, and started on ber return trip on tbe 24th *136of tbe same month. She proceeded until the 26th, when a high wind sprung up, and she, in attempting to land, was blown aground.' All efforts to get her off proved unavailing. After making all the effort that was deemed advisable, and finding it impossible to get her off until a rise should occur in the river, the officers and crew left her, leaving several persons iii charge.

The crew left her on the 31st of July, 1865, leaving on board one engineer, one mate, and three watchmen, who were to take care of the boat. The officer in command at Fort Eice also detailed and sent a military guard to protect -the boat.

The facts being communicated to the owners at St. Louis, they made their protest, in order to cover the insurance. The boat remained aground until about the 15th of April, 1866, when by an i&e-freshet in the Missouri river she was swept off and totally destroyed.

Captain Metcalf, on seizing the boat, fixed her per diem compensation at $272. She was paid at this rate until the 10th day of August, 1865, being the time when information arrived at St. Louis that she was aground and the captain and part of the crew returned. She was also paid from the 10th of August until the 30th of September at the rate of $101 per day. This was while the engineer, mate, and watchmen remained on board. From the 30th of September until the 30th of November, 1865, vouchers were issued to the claimants at the rate of $80 per day, which have not been paid. No vouchers were issued after that date. The amount of these vouchers, together with compensation at the same rate of $80 per day until the time of the destruction of the boat on the 15th of April, 1866, is claimed in this suit, being an aggregate of $15,760.

They also claim the sum of $5,401 41, for expenses incurred in the spring of 1866 in sending a crew up the’ river, from St. Louis, to make efforts to save the boat. The proof shows that this crew was sent with the knowledge and consent of the quartermaster, and was done to protect the interests of the United States as well' as those of the claimants. This crew left St. Louis on the 3d of April, and arrived at where the boat had been about the 18th of the same month. The boat had been destroyed about the 15th of April, some three days before their arrival. They did not return to St. Louis until the 3d day of June, and charge for the whole intermediate time. While they *137were only 15 days in going up, they occupied 45 days getting back. Tbe wages charged appear to us unreasonable and extravagant, and not justified by anything in the nature or character of the services rendered; nor do the proofs show that they were either customary or reasonable charges.

After the destruction of the boat, the claimants applied to the Third Auditor, under the provisions of the act of 1849, for payment of her value. This claim was allowed, and her value fixed at $30,000, and which amount was duly paid to the claimants. The claim for the per diem compensation, from' September 30 until the time when the boat perished, including the vouchers'until November 30, 1865, was rejected, as well as the claim for money expended in efforts to save the boat.

We do not think the United States were liable for per diem compensation of the boat after the claimants abandoned her aground in the river, and especially after they made their protest on the 14th of August, 1865. Yet they have been paid until the 30th of September, 1865. This is probably the date when the engineer, mate, and watchmen left the boat. After that time the boat was wholly in the charge of the United States until she perished, and at their risk. She perished from the accident wdiich then befell her as the proximate cause. The United States, under the acts of Congress, stood in the relation of insurers of the property to the claimants. They have fulfilled that obligation by paying for her loss and destruction. When they did so it related back to the commencement of the accident and continuing peril by which she finally perished. They are not liable to demurrage in the mean time. For that already paid after the 10th of August, 1865, there has been no set-off pleaded by the United States, and no claim put in for reclamation by the United States. It was allowed and paid by the quartermaster in charge of the business, and his accounts have been settled and allowed by the accounting departments. We do not think, under these circumstances, that these settlements ought to be disturbed. The whole matter was before them, and they exercised their best judgment upon the matter, and the government do not ask us to overhaul them. The only valid ground of claim, so far as we can see, that is presented in the case, is that for the expenditures made in efforts to save the boat. These efforts having been undertaken partly at the instance of the officers of the United States, and solely for their *138benefit, it is but just and seasonable that the United States should reimburse the claimants for any fair and proper expenditure made in that behalf. The time spent in the expedition, the wages of the persons sent, and the whole expenditure, was, in our judgment, unreasonable and extravagant; and while there is no precise and definite evidence in the record by which we are enabled to make a close and exact calculation of what would have been a fair and reasonable expenditure under the circumstances, yet there is proof that enables us to approximate to that amount, and thus to do substantial justice in the case. This amount we have fixed at $2,500, and for this sum we direct a judgment in favor of the claimants. '

LOKING, J.,

concurring:

Upon the facts I find in this case, the vessel was not contracted for, but was impressed into the service of the United States, under their right to take private property for public use. This entitled the petitioners, and subjected the United States,, to the indemnity limited by the Constitution; and this could not be altered by any subsequent contract, expressed or implied, between the quartermaster and the owners; for, if they could alter it at all, they might subject the United States to more as well as less than an indemnity; and I think the evidence shows no contract.

The indemnity would include the loss of the claimants by the destruction of their vessel, which has been paid for and settled; and also their loss by the detention of the vessel from their employment up to the time of her destruction, April 15,1866. For this detention they claim $15,760 as the unpaid balance due them for the detention of the vessel from October 1,1865, to April 15, 1866, at the rate of $80 per day; and on the evidence I think the claim is just. It is removed from our jurisdiction by the act of July 4, 1864.