UNITED STATES SUPREME COURT DECISIONS ON-LINE

S. agreed with a Deputy Quartermaster-General, who acted on behalf of the United States, to provide and furnish whenever called upon during the coming fiscal year, such vessels as might be required for a specified service in the harbor of New York. Each vessel was to have an engineer and fireman, the remainder of the crew to be supplied by the United States when required, and the fuel to be supplied by them. The payment, if employed by the day, was to be at the rate of $67 per diem for each vessel. The government was to have the management and control of the vessels while in its service. Under this contract, S. furnished a vessel called the Bowen on the requisition of the quartermaster, which was accepted by the government, and went into its service. While in government employ, a collision occurred whereby the Bowen was so damaged that it had to be laid up for repairs for 61 days. During the most of this time, S., at the government's request, furnished another vessel called the Stickney, which was accepted. He hired this vessel, paying $55 a day, and received from the government the contract price of $67 for its use. When the Bowen resumed service after the completion of the repairs, S. claimed compensation for it for the 61 days at the rate paid by him for the Stickney. Held that the contract was one for hiring, and not for service, and that the government, during its possession of the vessel, was a special owner, and bound to pay rent for it until returned to S.

The facts of this case are stated in the findings of the Court of Claims. The first is that on May 28, 1886, the petitioner entered into a contract with the Deputy Quartermaster General of the Army for and in behalf of the United States, the important articles of which are as follows:

"ARTICLE 1. That the said Daniel Shea shall provide and furnish to the party of the first part, whenever called upon during the fiscal year ending June thirtieth, eighteen hundred and eighty-seven, such vessels of the descriptions hereinafter given as may be required to take the place of the vessels now performing service for the U.S. Army between New York city and Governor's Island, New York, Governor's Island and Sandy Hook, and New York harbor generally, respectively,

Page 152 U. S. 179

the steamers Atlantic, Ordnance, and Chester A. Arthur; that the vessels furnished as aforesaid must each have an engineer and fireman and conform to the following conditions, viz.: the steamer to take the place of the Chester A. Arthur must be of about the size and the character of the Chester A. Arthur, and the steamers to take the places of the Atlantic and Ordance, respectively, must have the capacity for freight and passengers, and be of the size and character, of the steamer James Bowen, and that all the vessels furnished must be staunch, in first-class order in every respect, well equipped, and conform fully to the requirements of the law."

"It is further agreed that the fuel required by said vessels so furnished while in service under this agreement shall be supplied by the government, and that this contract shall commence on the first day of July, eighteen hundred and eighty-six."

"And it is further agreed that the party of the second part shall furnish, when required, the remainder of the crew, consisting of a captain, a mate, two deck hands, and a fireman. . . ."

"* * * *"

"ART. 4. That for and in consideration of the faithful performance of the stipulations of this agreement, the party of the second part shall be paid at the office of the Disbursing Quartermaster, U.S. Army, at New York City, as follows: the sum of sixty-seven (67) dollars per day for each vessel employed, including the engineer and the fireman, when employed by the day, and the sum of ten (10) dollars per hour for each vessel employed, including the engineer and the fireman, when employed by the hour, and for the said remainder of the crew, when required, the sum of thirteen dollars per day."

"ART. 5. That in case of failure of the said party of the second part to comply with the stipulations of this contract according to the true intent and meaning thereof, then the party of the first part shall have the power to hire vessels elsewhere in open market at the sole expense and charge of the party of the second part."

The second and third findings are as follows:

"2. After the making of said contract, and before the expiration of the fiscal year (June 30, 1887), upon being called

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upon by the Quartermaster's Department therefor, the claimant provided and furnished a vessel called the James Bowen, then staunch, in first-class order in every respect, well equipped, and conforming fully to the requirements of the law, and with such part of the crew as the claimant was required by the contract to furnish, and the same was accepted and used by the defendants."

"3. On the first day of January, 1887, while in the service and under the exclusive management and control of the quartermaster's department, and having an unlicensed captain or pilot, said vessel was damaged in a collision with a ferryboat, in consequence of which she was necessarily laid up for repairs until March 2 of the same year, when, on the next day, she resumed work."

"The collision occurred during a fog, and the supervising inspectors, on an investigation, found that it was accidental, and was not due to inattention, unskillfulness, or lack of precaution on the part of the pilots. The cost of repairs was paid by the claimant."

"During the time said vessel was undergoing repairs, the claimant, being called upon therefor, furnished another vessel under said contract, for which he paid $55 a day. During said time, the engineer and fireman of the claimant were on the vessel watching and superintending the work."

There is no express finding that any sum was ever paid to the petitioner on account of this contract. It appears, however, from the fourth finding that on April 1, 1887, the Deputy Quartermaster General forwarded to the Quartermaster General a voucher, of which the following is a copy:

The United States to Daniel Shea, Dr. Dols. Cts.

Place and date

N.Y. City, April

1, 1887 . . . For hire of the steamer James Bowen

from Jan'y 1st to March 2d, 1887,

inclusive, 61 days at $55 per day . . . . $3,355.00

Engineer and fireman, 61 days, at $7.00 . 427.00

---------

$3,782.00

clubjuris

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Which voucher was accompanied with a recommendation that authority be granted to pay the same, and with the following explanation:

"The facts are as stated herein: the James Bowen was under charter to the Quartermaster's Department, and, as the Quartermaster General is aware, was, on the first of January, 1887, on one of her trips between the Battery and Governor's Island, run into by the Brooklyn ferryboat Atlantic."

"The James Bowen was at the time under the exclusive control and management of the government, being manned and navigated by employees of the Quartermaster's Department."

"In the collision the James Bowen was very badly damaged, and while undergoing repairs her owner was compelled to hire a vessel in her stead. The within claim is made for reimbursement of that expense. I regard it as perfectly proper, reasonable, and just, and therefore recommend its payment."

"Henry C. Hodges"

"Deputy Q. M. Gen. U.S. Army, Depot Quartermaster"

That on April 6, 1887, the Quartermaster General called upon the Deputy Quartermaster General for further particulars, and received in response a letter, copied at length, the latter part of which is as follows:

"The James Bowen was under charter to, and employed by, the Quartermaster's Department at the time of the collision under the contract of Daniel Shea, dated May 28th, 1886. Immediately after the collision, the contractor was called upon to furnish another vessel under this contract. He furnished the steamer E. H. Webster, one of his own boats. That vessel, although a very staunch, good boat, was not entirely satisfactory for the service, and, upon search, the Joseph Stickney was found and put on the duty by the contractor. The E. H. Webster was on duty from January first to 4th, inclusive, and the Joseph Stickney from January 5 to March 2, 1887. During this time, the James Bowen was undergoing repair of the damage done in the collision. As the James Bowen was at the time wholly in charge and under the management and control of the Quartermaster's Department, I was

Page 152 U. S. 182

under the opinion, and am still, that the department was bound to save the contractor from loss on account of the damage, and to pay for her time under the contract until restored to her owner upon completion of the repairs."

"With this in view, she was reported, on my report of persons and articles for January at the contract rate, viz., $67 per day, including an engineer and a fireman. Upon further reflection, however, I concluded to allow for the Bowen's time only at the rate which her owner was obliged to pay for the vessel put in her stead. One of these, the E. H. Webster, was his own, and was in service, as before stated, from January 1 to 4, and the other, the Joseph Stickney, was hired by him at $55.00 per day, and was in service from January 5 to March 2. So the matter stands thus:"

"The E. H. Webster was in service from January 1 to 4, and the Joseph Stickney from January 5 to March 2, and has been paid for. The James Bowen was laid up from January 1 to March 2, inclusive, and her time has not been paid for, but I recommend that her owner be paid at the rate of $55.00 per day for the vessel. I enclose herewith a voucher covering the time, as well as the item for an engineer and a fireman, embraced in Shea's claim in article 1 of this letter. If the Quartermaster General desires, supplementary reports of persons and articles covering this service will be prepared and forwarded immediately."

On May 17, the Quartermaster General transmitted the claim and voucher to the Third Auditor of the Treasury for adjudication and settlement.

The fifth finding is that on

"November 29, 1887, the auditor reported against paying the claim, on the alleged ground that the boat was wholly under the control of the owner and his agents and employees, and if the injury had been due to the negligence of anyone connected with the management of the James Bowen, and not due to the ferryboat (with which the collision occurred), the United States could not be charged with that negligence. The Second Comptroller on the same day concurred with the auditor in disallowing the claim, and it has not been paid. "

Page 152 U. S. 183

On these facts thus found, the Court of Claims decided as a conclusion of law that the plaintiff was entitled to recover the sum of $4,087. clubjuris

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