The charter-party out of which this controversy has arisen is dated on the 26th of August, 1865. It stipulates, among other things (1), that the schooner was then, and while in the service of the government should be kept, 'tight, staunch, and strong,' at the cost of the owners, and that the time lost by the deficiency in these respects should not be paid for by the United States. 'The war risk to be borne by the United States, the marine risk by the owners.' (2) The United States agreed to pay $50 per day for the time the vessel was engaged in their service.
On the 17th of November, 1865, pursuant to the charter-party, the schooner left Wilmington, in North Carolina, for the port of New York, laden with ordnance and ordnance stores. On her way she sprung a leak and was compelled to bear away and put into the port of St. Thomas, in the West Indies, for repairs. There the captain executed a bottomry bond, binding the vessel and cargo, and amounting, principal and interest, to $17,399.71. Having received the necessary repairs the vessel left St. Thomas on the 26th of January, 1866, and reached New York on the 13th of February ensuing. There, the bottomry bond not being paid at maturity, the vessel and cargo were libelled in the District Court, and, on the 10th of March, they were attached on that proceeding. The District Court dismissed the libel. An appeal was taken to the Circuit Court. That court affirmed the decree as to the cargo but reversed it as to the vessel, and finally decreed against the latter for the amount, due on the bond. The vessel was held by the marshal under the attachment from the 10th of March until the 30th of July. She was discharged from the service of the United States on the 7th of August.
A claim was made against the United States in general average. It was adjusted and paid to the satisfaction of the owners. All the per diem compensation claimed has also been paid except that for the time the vessel was in the hands of the marshal. Whether the claim for general average, and that for the time lost by the vessel in deviating from her course, going to St. Thomas, there awaiting repairs, and going thence to her port of destination, were not covered by the marine risk she had assumed, are questions not before us, and which we need not, therefore, consider.
The claim of per diem compensation for the time the marshal held the vessel, is the only ground of controversy between the parties, and it is the only subject open for examination in this case.
During that time, she was in the custody of the law, she was in no wise in the employment of the United States nor subject to their control. She did not, and could not render them any service while thus held.
The United States had not stipulated to pay in such a contingency. On the contrary, the detention was incident to the marine risk which the owners had expressly assumed. It was a fruit of that peril. The United States are not blameworthy, and not responsible. The contract puts all such burdens upon the shoulders of the owners. Those burdens cannot be shifted and thrown upon the other party.
JUDGMENT AFFIRMED.
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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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