APPEAL and cross appeal from the Court of Claims, in the claim of Reed and others; the case, as found by the said court, being this:
'The claimants were, on the 1st of June, 1865, owners of the steamer Belle Peoria. She was then lying at her wharf in St. Louis. The said owners were applied to by the United States quartermaster, at St. Louis, to take a cargo of military supplies to Fort Berthold, on the Missouri River, about 1700 miles from St. Louis. They declined on account of the lateness of the season. They were then ordered by the quartermaster to prepare for the trip, and informed that in case of refusal the boat would be impressed. They protested, but, under the orders, got the boat in readiness, put on the cargo, and left St. Louis on the 3d of June, 1865. The boat arrived at Fort Berthold on the 22d of July, 1865, discharged her cargo, and started on her return trip on the 24th of the 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 in 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. These remained until the 30th September. The officer in command at Fort Rice 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 ice freshet in the Missouri River she was swept off and totally destroyed.
The quartermaster at St. Louis, when he seized 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 to 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. On the 3d of April, 1866, the claimants dispatched a pilot and crew up the Missouri River from St. Louis to where the boat was aground, to get her afloat upon the rise of the river, and to bring her down to St. Louis. These persons arrived at where the boat had been aground, about the 18th day of April, 1866, and after the boat had been destroyed by the flood and ice. These persons were sent, after consultation with the quartermaster at St. Louis, and for the purpose of protecting the interests of the United States, as well as those of the claimants. The just and necessary expense incurred in these efforts to save the boat amounted to $2500.
After the destruction of the boat, the claimants applied to the third auditor, under the provisions of the act of 1849, and its supplements, for the payment of her value. These acts provide: [1]
'That any person . . . who shall lose . . . or have destroyed by unavoidable accident any . . . steamboat . . . while such property was in the service (of the United States), shall be allowed and paid the value thereof, at the time he entered the service. Provided, it shall appear that such destruction was without any fault or negligence on the part of the owner of the property, and while it was actually employed in the service of the United States.'
The claim was allowed and her value, as of the time of her taking, June 1st, 1865, fixed at $30,000, and which amount was paid to the claimants. The accounting officers rejected the claim for the per diem compensation from September 30th, 1865, until April 15th, 1866, when the boat perished, including the vouchers until November 30th, 1865. The accounting officers also rejected a claim for $5401.41, alleged to have been expended in efforts to save the steamboat.
This suit was brought to recover the amount of these vouchers, and the per diem compensation of the boat from November 30th, 1865, to April 15th, 1866, and also the expenditure made in efforts to save the boat, making together the sum of $21,161.41.
The court decided that the claimants were not entitled to recover the amount of the vouchers up to the 30th of November, 1865, nor for the per diem compensation of the boat from November 30th, 1865, till the 15th of April, 1866, but were entitled to recover the $2500, in efforts expended to save the boat.
From this decision both parties appealed. The claimants, because they did not have compensation for the use and detention of the boat from the 30th September, 1865, when engineer, mate, and watchmen left the boat, until the 15th of April, when she was'swept off and totally destroyed.' The United States appealed, because they were charged with this $2500 expenses.
Mr. William Lawrence, of Ohio, for the claimants:
I. As to the appeal by the claimants: The facts as found show that the implied contract was, to pay for a round trip, which means all the time necessary to make it, or until it became impossible.
From September 30th, 1865, when the engineer, mate, and watchman left the boat, until she was destroyed by an ice freshet, April 15th, 1866, she was guarded by a government military guard detailed by the officer in command at Fort Rice. The object of this was, to return the boat to St. Louis the next spring. The boat was blown aground July 26th, 1865. Such officers and crew as were not necessary to guard the boat, left her, because there was no hope of getting the boat off until the next spring, and it was desirable to save expense. Up to this time, from June 1st, the government paid the full per diem compensation of $272, fixed by the quartermaster. Why pay for this part of the return voyage if it was not agreed that all should be paid for and no matter how long it might require, as long as any voyage was possible?
From August 10th to September 30th, during which time one engineer, one mate, and three watchmen of the crew remained aboard, and the boat aground, payment was made at the rate of $101 per day. Here was a reduction in the per diem-a modification of the original contract-because more of the crew were discharged. Why was a reduced per diem paid? Still, because the agreement, to pay until the boat returned to St. Louis in the spring, or the voyage was abandoned as impracticable, continued.
From September 30th to November 30th, 1865, quartermaster's vouchers were issued to the plaintiffs, at the rate of $80 per day. The quartermaster was the officer charged with the duty of providing transportation, and his vouchers prove that his contract was a continuing one till the return of the boat; a matter then contemplated as certain to take place in the spring. That arrangement could not be terminated except by mutual consent, and it never was terminated until the boat was destroyed.
The boat was destroyed and the voyage rendered impossible April 15th, 1866, and not before. The right of the owners to recover the value of the boat from the government, depended by the statutes applicable to the case (those of March 3d, 1849, and March 3d, 1863), on the fact that it was then 'actually employed in the service of the United States.' Under these acts the third auditor allowed the claim of $30,000 for the value of the boat as of the time of her taking, June 1st, 1865, and the claim was paid by the government. This allowance and payment necessarily found the fact that the boat was actually employed in the service of the United States on the 15th April, 1866, and the government is now estopped from controverting that fact. If the boat was in the actual service that day it had been in like service during all the previous time, and the facts show it was in such service under contract for pay.
When the captain and most of the crew, abandoning all hope of bringing the steamer to St. Louis during the current season, left her to lie aground till the next spring, there was no purpose to abandon the return voyage, but the purpose was to resume it as soon as the rise of the river made it practicable. All this was with the sanction of the government, and the boat left in charge of government officers and soldiers, to the end that the return trip might be completed next spring. The facts determined by the Court of Claims show that it 'was impossible to get her (the boat) off until a rise should occur in the river.'
The justice of this claim is clear. The court takes judicial notice of climate and rivers. The court know that the plaintiff's boat could have navigated the rivers south of St. Louis, and it is presumed would have earned freight from September 30th, 1865, to April 15th, 1866. The plaintiffs, when applied to by the quartermaster, on June 1st, to go from St. Louis, 1700 miles up the Missouri River, to Fort Berthold, 'declined on account of the lateness of the season.' They knew that the treacherous sands of the Missouri, and hazardous gales and receding waters, would probably, as they did, leave them aground for the winter, and deprive them of safer trade, and pay which required no quartermaster's vouchers, no auditor's adjustment, no Court of Claims, no lawyer's fees, and none of this almost endless delay. And having been deprived of the winter's trade in milder waters, and of speedier pay, why should they not now be paid, as the Constitution requires, 'just compensation' for all the time their boat was detained by reason of what the government officers did? They only ask that compensation which they could have earned elsewhere, for compensation for time during which the government has admitted their boat was 'actually employed in the service of the United States.' Why should they not have it?
The grounding was not the proximate, nor even remote cause which destroyed her. The facts found by the Court of Claims are that the boat, on her return trip, was blown aground July 26th, 1865, and that—
'The boat remained aground until about the 15th of April, 1866, when, by an ice freshet in the Missouri River, she was swept off and totally destroyed.'
The ice freshet, then, was the proximate, and really the only cause of the loss. The grounding was a peril, but it did not continue, for the boat was 'swept off' from her grounding peril, and a totally different peril finally, and after the termination of the grounding, destroyed her. They may have been successive or cumulative perils, but the grounding was in no sense a continuing peril, which finally destroyed the boat. If the claimants had sued the United States and averred a destruction of the boat only by the grounding, the evidence would not have sustained the allegation. The government has already decided that the boat was in the actual service of the United States on the 15th April, 1866, and there could be no constructive actual loss before that.
It is text in the law of insurance that grounding is not a constructive total loss. Parsons says:
'So stranding, which means the being cast on shore, may or may not be an actual total loss. The mere fact that she (the boat) rests on land or rock, and at low tide is high and dry there, does not, of itself, constitute this total loss; for the next high tide may lift her from the bottom, and if it cannot do this without assistance, it may be practically possible to use means to draw her off.' [2]
In Patrick v. Commercial Insurance Company, [3] Kent, C.J., says:
'It is well understood that stranding is not ipso facto a total loss.'
So in Peele v. Suffolk Insurance Company, [4] Parker, C.J., said:
'The mere stranding, however perilous, is not of itself a total loss, for the vessel may be relieved, and the damages may be small.'
The finding does not show the destruction of the boat by the grounding; nor any facts which would justify an abandonment as for total loss. The date and fact of the liability of the United States is only fixed by the proximate cause of the loss-the ice freshet of April 15th, 1866. This is the reasonable rule as against insurers on a policy, and is certainly so as to the United States, under the act of March 3d, 1849. [5]
Suppose, in this case, the contract had provided that in no event should the boat be continued in service longer than April 1st, 1866, by the very terms of the law the United States could not have been held liable for the destruction of the boat on the 15th of April, because the boat was not then destroyed. There was then no liability for the boat fixed until April 15th, and if not the liability for services continued to that time.
Although there was a protest made to cover the insurance, there was no abandonment of the voyage when the vessel ran aground, nor till the boat was finally lost. When the protest was made does not definitely appear, but it was made 'in order to cover the insurance,' not against the United States, but under a supposed or real policy of insurance. The boat was blown aground July 26th. Then, as the facts show—
'All efforts to get her off proved unavailing, and finding it impossible to get her off until a rise should occur in the river, the crew left her on the 31st July, 1865, leaving on board one engineer, one mate, and three watchmen to take care of the boat.'
The engineer, watchmen, and mate remained on board until September 30th. The United States officer in command at Fort Rice detailed and sent a military guard to protect the boat, and they remained until her destruction. The officers left her with the assent of the government, as an economic measure to save the useless expense of a crew. Then the case shows that—
'On the 3d of April, 1866, the claimants dispatched a crew up the Missouri River, from St. Louis, to where the boat was aground, to get her afloat upon the rise of the river, and to bring her down to St. Louis."Down to St. Louis' for whom? Of course for these plaintiffs. Here is the highest evidence that there never was any intention to abandon the boat. Neither the United States nor any insurance company ever took or held the boat as theirs; never accepted any abandonment, and never were asked to do so. No protest or notice was ever served on the United States, nor in fact on any insurance company; nor was any demand made on the United States for pay for the value of the boat until after she was destroyed. But the protest, as affecting rights under a policy of insurance, against an insurance company, was at most only precautionary; and a mere precautionary measure, never perfected or pursued, cannot establish any right under a policy, much less under another contract.
The boat was in the service of the government, under a contract for a return trip. If the ice freshet had not destroyed the boat, it would have been completed. The crew was sent up the Missouri River in the spring of 1866, for the purpose of completing it. All parties treated the contract as subsisting up to that time. If it had been completed no question would have been raised against the right to pay for the use of the boat during the whole time.
II. As to the cross-appeal by the United States; the claim for time, services, and expenses of the crew sent to recover and return the boat in April, 1866.
The boat was in the custody and under the control of the government when she went aground, July 26, 1865.
On the 31st July, 1865, the crew left the boat in care of a military guard, with the approval of the military officers, to save expense, intending, however, 'to get her off' when 'a rise should occur in the river,' in the spring.
The crew was sent out in April, 1866, 'after consultation with the quartermaster at St. Louis, and for the purpose of protecting the interests of the United States as well as those of the claimants;' that is, the crew was sent up to return with the boat to St. Louis.
The boat was 'actually employed in the service of the United States,' April 15, 1866, and the destruction of the boat 'was without any fault or negligence on the part of the owners.' The case so comes within the statute.
As to the services and expenses of the crew, here are all the elements of an implied if not an express contract by the government to pay for them. They were rendered and incurred at the instance and request of the proper military officer, or with his sanction, and this was in pursuance of the pre-existing arrangement made when the crew left the boat, July 31, 1865, and the original purpose of the voyage. If the crew had succeeded in returning the boat to plaintiffs at St. Louis, could any question have been made as to the liability of the United States to pay? The services of the crew were only suspended during the winter; they had not abandoned the service.
Mr. Akerman, Attorney-General, and Mr. Talbot, Assistant Attorney-General, contra.
Mr. Justice CLIFFORD delivered the opinion of the court, both in the appeal by Reed and the cross appeal by the United States.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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