#### REYBOLD'S CASE. Anthony Reybold et al., appellants, *v.*The United States, appellees.

(5 Court of Claims R., p. 277; 15 Wallace R., p. 202.)

*On the claimants’ Appeal.*

*During the rebellion a steamer is chartered by the Quartermaster Department. She is to be manned and navigated by the owners ; but the charterers are to order and direct her*movements; *and the marine risle is tobe borne by the owners, the war risle by the charterers. The Potomac being frozen from banle to bcmle, mid navigation suspended except by G-overnment vessels, the quartermaster under whose control the vessel is, acting under a military necessity, orders the vessel to receive oh board seventy-five men and*“to-morrow morning proceed to Griesboro’.” *The master malees no objeetion to the order, eonsidei-ing it imperative, and obeys it-, but, if he could have used his own judgment, he would not have left the wharf. On the voyage the vessel is destroyed by the ice. The Court of Claims decides that the peril came within the term*“marine risk” *and must be borne by the owners. Judgment for the defendants. The claimants appeal.*

In *Morgan’s Case*(ante) tliis court lield that where a vessel chartered for the service of the Quartermaster Department is compelled to proceed to sea by the peremptory order of the quartermaster under whose orders she is, against the judgment of the master, expressed to the quartermaster, and she is lost in consequence, the loss must be ascribed to the tortious act of the quartermaster, and held to be beyond tbe jurisdiction of the Court of Claims. The only difference between *Morgan’s Case*and this is,. that here the master made no objection to the order, regarding it as imperative. This difference does not help the present case, but leaves the justice of the defense clearer.*

*The Reporters1*statement of tbe case:

Tbe charter-party was substantially the same as iu *Morgan’s Gase,*(ante.) As to the orders of the quartermaster and the *56damage suffered, tbe Court of Claims found tbe following facts:

That, ou the20tb of January, I860, tbe said vessel was in tbe service of tbe United States under said charter-party, was tight, staunch, strong, and well and sufficiently manned, victualed,, tackled, appareled, and ballasted, and furnished in every respect fit for tbe said service, and was lying in safety at a wharf in tbe port of Washington, in the District of Columbia. And for protection against ice was sheathed with iron in her forward part twelve inches, and elsewhere six inches above her water-line when loaded. And this is as high as such vessels are usually ironed, and the iron was in good order.

That, on the 20th and 21st days of January, 1865, the Potomac Eiver was frozen over from bank to bank at Washington, and the ice, from six to eight inches thiek, extended on the shores about forty miles down the river. The channel only was kept open by the current and the passage of vessels, but masses of ice six or eight inches thick were floating in the channel. The weather was wet and cold, and ice was making. And in consequence of this condition of the river its navigation was suspended, except by Government steamers and the ferryboats between Washington and Alexandria.

That, on the 20th day of January, 1865, and before that, Captain E. T. Allen, assistant quartermaster of volunteers, was in command of the Army transportation on the Potomac, and had his office at the Sixth-street wharf in Washington, in view of the river, and about sixty yards from it, ánd the condition of the river was visible and known to him.

That, on the said 20th day of January, 1865, Captain Allen, acting in discharge of his official duty, issued to the master in command of said steamer Express the following order:

“ Sir : Having received on board seventy-five men, to-morrow morning proceed to Giesboro’; report to Captain L. L. Moore, assistant quartermaster; receive on board eighty horses; proceed to City Point; report to Colonel G. W. Bradley, quartermaster; land the men and horses; return to this city and report to me, unless otherwise ordered.”

And the. said order was then necessary and required for the military service of the United States.

Previous to giving said order said Quartermaster Allen was, in answer to his inquiries, informed that the Express was *57sheathed with iron, and was of capacity to take the men, horses, &c., to City Point, by the captain of the Express, who made no objection to the order, because, as he testified, he considered.it imperative as a military order, and as such obeyed it, though, if he had considered he could have used his judgment, he would not have left the wharf, as he did not consider it safe.

That, on the 21st day of January, in obedience to said order, the master of the Express was proceeding with said steamer down the river with the men, horses, &c., on board, and when about twenty-eight or thirty miles down the river, opposite Glymont and just above Indian Head, her hull was cut or crushed in by heavy cakes of floating ice, twenty-five or thirty feet abaft her wheel, on the starboard side and in her bows, and she filled and sank in about three and a half fathoms of water in two or three hours after she began to leak. And the injury and sinking of the Express were without any fault on the part of her officers and crew, who navigated the boat with due skill and care.

And we find as conclusions of law:

1. That the peril by which the steamer Express was damaged was within the term “ marine risks ” in the charter-party, and by the terms thereof was to be borne by the owners.

2. That the charter-party placed the steamer in the military service of the United States in a time of war, find the term “ marine risks *”*in the charty-party is to be construed in reference to that service, and includes risks from perils of the sea and seasons incident to that service and its exigencies.

That the steamer, being by the charter-party in the military service, was subject to military orders necessary for the proper performance of that service.

*Mr. Edward Fitch*for the claimants, appellants:

1. It was the clear intent and meaning of the covenants and stipulations, contained and expressed in the charter-party, that the master should see to and control the navigation of the vessel and direct her motions. The quartermaster could “ order and direct” the freight to be carried, and the “ports and places ” at which it should be delivered$ in other words, her destination and employment. The owners maintained control, through the officers and crew, over the mode of her navigation, and were alone responsible for the negligence or unskilfulness *58of .the officers and *seamen.*— Fenton *y. The Dublin Steam Paclcet Company,*(1 Per. & Dew., 103, 8 Adol. & El., 1836 ;) *Quarman*v. *Bennett,*(6 Mee. & W., 409;) *Martin*v. *Temperly,*(7 Jurist, ■ 250;) *Sooer. 6-overman,*(1 Cranch,214;) *MarcardineY. Chesa-pealce Ins. Co.,*(8 Crunch, 29;) *Cracia*v. *Palmer,*(8 Wheaton, 605;) *The Ship Nathaniel Hooper,*(3 Sumner, 576;) *Molntyre*v. *Brown,*(1 John., 229-;) *Seed*v. *The United States,*(11 Wallace, 581.)

2. Upon the master devolved the duty of determining when the *“*good opportunity ” mentioned in the charter-party presented, and it was the clear right of the owners that he should be permitted freely to perform that duty. Independent of any provision in the charter-party, the right and duty of determining when the state of the weather and other conditions affecting navigation are suitable for the commencement of the voyage appertain to the office of master of the vessel. ££ The master must commence his voyage without delay as soon as the weather is favorable.” *“Biot he must on no account sail out during tempestuous*weather.” By most of the ancient marine ordinances the master is required before he hoists sail to consult his mate,.pilot, and others of the crew, as to the wind and weather. But such consultation is not required by the law of England, according to which the entire management of the ship is intrusted to the master. The same is true as to the law of the United States. Abbott on Shipping, Part 4, chapter *5,*page 351, (original,) and cases and ordinances cited in note thereto.

3. The order of Quartermaster Allen deprived the master of the steamer of the right to judge whether the “ good opportunity ” mentioned in the charter-party existed. It defined and specified the time for the commencement of the voyage. “ *Tomorrow) morning*” was the point of time named for the departure of the vessel, without regard to the state of the weather or the condition of the river. Indeed, from the facts found, it appears that the order was given, and the time for the departure of the vessel was fixed, by the quartermaster, with full knowledge of the dangerous condition of the river and with reference to it. The order substituted the command of the quartermaster for the judgment of the captain. The departure of the vessel at that time, in face of apparent danger, was an unskill*59ful and negligent act of navigation, for which the United States, and not the owners, are responsible.

4. The order of the quartermaster was a military order, issued by a military officer of the United States a acting in discharge of his official duty” in time of war. Obedience to it could not be refused. It must be regarded as of the same effect as if given by the President. Opinion of Clifford, Justice, in *Williams*v. *The*N. *T. M. M. Ins. Oo.,*(United States circuit .court of Massachusetts, May term, 1869 5) *The Venice,*(2 Wall, 276.)

But the United States are'estopped from alleging that the master should not have obeyed it. They cannot be permitted to complain because the master did what they, by their duly authorized agent, commanded him to do. His act was their act, for he was acting within the scope of his authority. Nor can the fact that the master obeyed without objection relieve them from the responsibility of the order and its consequence. To object was no part of his duty. Besides, the court below have found that he “ made no objection to the order because,” as he testified, “ he considered it imperative as a military order, and as such obeyed it, though if he had considered he could have used his judgment he would not have left the wharf, as he did not consider it safe.”

5. By the term “ marine risk,” as used in the charter-party, was evidently intended such risk from marine dangers and perils as the vessel would be subjected to while making her voyages under and in pursuance of the contract, that is, while controlled and navigated by the master and crew chosen by the owners. It was not intended that the United States could substitute some other person, by them chosen, in place of the master, and still continue the responsibility for the marine risk upon the owners. Nor was it intended that they could override the judgment of the master by military command, and cast upon the owners the risk from marine perils thereby incurred. The responsibility of the owners expressed by the term marine risk, in that connection, was limited to marine risks incurred by the vessel while under the control of the master and crew, and the United States could not extend or increase that responsibility by military orders. When the United States substituted the order of the quartermaster for the judgment of the master of the vessel regarding that act, and sent *60tbe vessel out of a port of safety iu face of a known peril, by which she was lost, they relieved the owners of the risk and took the responsibility.

6. The order of the quartermaster worked a deviation within the plain meaning of that term as defined and used in reference to marine insurance. It is a perfectly well-settled rule of law, that the vessel must not deviate from the proper course of the voyage. But the principle on which this prohibition rests extends to all other things which enter as elements into.the calculation that determines the amount of premium. The result of this is that, although deviation in the law of insurance originally meant, no doubt, only a deviation from the course of the voyage, it is now always understood in the sense of any material departure from or change in the risks insured against, without just cause. (Parsons on Marino Insurance, chap. 1, vol. 2, page 1.)

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

The loss of the Express was occasioned by the state of the navigation of the river; and the fact that the Government was at war, although it may have been one of the reasons why the vessel was ordered to cross the river in the then state of navigation, was too remote a cause to bring the loss within the war risk, which was the only one that the Government had *assumed.*— Reed v. *The United*States, (11 Wallace, 591;) *United States*v. *Kimball,*(13 id., C36.)

*

In the construction here given by the Supreme Court to its decision in *Morgan’s Case,*no reference is made to the fact that there the “ *order ivas given with a full hnoxoledge of the danger,”*but under a military exigency which “ *in the judgment of the quartermaster required the attempt to be made.”*It is to be regretted that tbe Supreme Court has not pointed out the distinction between *Morgan’s Case*and its decision in *Russell’s,*(7 C. Cls. R., p. 227,) where the similar act of a quartermaster was held to be valid and not tortious.

Mr. Justice Davis

delivered the opinion of the court:

This case is in only one particular different from that of *Morgan et al.*v. *The United States,*decided at the last term, (ante, p. 18.) Both were contracts of affreightment, with stipulations that the United States should bear the war risk and the owners the marine risk. The hiring in each case was for a particular purpose, the transportation of troops and munitions of war from place to place, as the necessities of the service might require; and although the United States were empowered to direct the manner of loading the vessels and their points of destination, yet the owners retained the control and management of them, and agreed to keep them in good repair and fit for the service in which they were engaged. In each *61«ase tbe loss sued for was occasioned by tbe perils of tbe sea, and in both tbe effort bas been, notwithstanding tbe express terms of .tbe contract that tbe owners were their own insurers against sucb risks, to shift tbe responsibility upon tbe United States.

It was insisted in *Morgan’s Case*that tbe owners were relieved and tbe Government chargeable because tbe master was compelled to proceed to sea by tbe peremptory order of tbe quartermaster, when, in bis judgment expressed to that officer, tbe state of tbe wind and tide rendered it hazardous to do so;.but we held, as in several previous cases, *(Reed*v. *The United*States, 11 Wallace, 591; *United States*v. *Kimball,*13 id., 636,) that, if this were so, it was outside of tbe contract, a tortious act of tbe officer, and therefore not within tbe jurisdiction of tbe Court of Claims.

In tbe present case tbe master made no objection to tbe order requiring him to proceed on bis voyage, and this constitutes tbe only difference between tbe two cases. This difference, however, instead of helping tbe cause of tbe claimant, makes tbe justice of tbe defense still clearer. It was tbe business of tbe master to know whether tbe navigation of tbe river was dangerous or not, and naturally be would be better informed on sucb a subject than a quartermaster of tbe United States. How are we to know, in tbe absence of proof, that tbe order would have been given, or, if given, not withdrawn, bad tbe master stated that, in bis opinion, in tbe state of tbe river, it was unsafe to attempt to make tbe voyage? Why not speak of tbe danger when be, told tbe quartermaster, in reply to an inquiry on tbe subject prior to. tbe order being given, that Ms vessel was sheathed with iron and bad capacity to take tbe men and horses to City Point? This was tbe time to have spoken, as tbe object of tbe inquiry was plainly to ascertain whether or not tbe boat, if she bad tbe requisite capacity, was in a condition to withstand tbe masses of ice which were floating in the channel of tbe river. It is very clear -that upon tbe information, which was given in tbe absence of any objection to tbe proposed voyage, tbe officer of tbe Government bad tbe right to suppose, in tbe judgment of tbe master, it could be safely undertaken. It is no excuse to say that tbe master at tbe time knew it was unsafe to leave tbe wharf, but said nothing because be considered tbe order a military one, and, as *62such, to be obeyed. It is true, by the terms of the contract of affreightment, he was subject to the orders of the quartermaster; but this contract did not require him to sail out of port during such tempestuous weather as would necessarily jeopardize the safety of his boat. If obedience to an order given under such circumstances' had been demanded after proper objection, it would have been 'a tortious act on the part of an officer of the G-overnment. In such a case, if relief is to be afforded, it must come from Congress, for the Court of Claims has no power to entertain a suit based on a consideration of this character. If, however, the master chose to obey the order without objection, and in the course of the voyage the steamer commanded by him is lost or injured by a peril of the sea, her owners can have no just cause of complaint against the Government, and must abide the consequences of their stipulation.

In every aspect of the case, the judgment of the Court of Claims should be affirmed.