Morgan v. United States (81 U.S. 531)

APPEAL from the Court of Claims; the case being thus:

Morgan let, on the 1st of March, 1865, a vessel to the United States by a charter-party, by whose terms the owners were to keep the vessel tight, stanch, manned, victualled, and apparelled, and fit for merchant service; and the United States were to pay $182.25 per diem.

The United States were to employ the vessel and pay the per diem 'until the vessel is returned to the said Morgan, in Philadelphia, in the same order as when received, ordinary wear and tear, damage by the elements, collision at sea or in port, bursting of boilers, and breakage of machinery excepted.' The charter was to continue in use as long as the War Department required the vessel. The owners were to bear the marine risk, the United States the war risk.

Under the charter-party the vessel was, in July, 1865, at Brazos St. Iago, Texas, and was, by the quartermaster there, ordered to receive on board certain troops and stores, and to proceed as soon as this was done to New Orleans, Louisiana.

The bar at the mouth of the harbor of Brazos is difficult and dangerous, and when the vessel was ready to proceed on the voyage the wind was high and the water on the bar low. The quartermaster, being informed of the difficulty, ordered a tugboat to aid in taking the vessel over the bar, and in tow of this tugboat and in charge of a pilot in the service of the United States the vessel proceeded to the bar and attempted to cross, but struck, and the hawser of the tow having parted, the vessel swung round inside the bar and returned to the landing. In this attempt she received injuries which, if time could have been allowed, could have been repaired in two days, and at a cost of $500 or $600.

The quartermaster again ordered the vessel to proceed to sea. This order was given with a full knowledge of the danger of crossing the bar, and against the judgment of both the master of the vessel and the pilot; but the exigencies of the service, in the judgment of the quartermaster, required the attempt to be made.

The master, under this order of the quartermaster, again attempted to cross the bar in tow of the steamtug, and under charge of the government pilot, as before, but struck heavily and was finally dragged over the bar by the tug, aided by her own steam-power. In this attempt she sustained such damage that she was compelled to use her steam-pump to save her from sinking, and the troops and stores being discharged, she was towed to New Orleans by a government transport.

The repair of the damages so sustained in crossing the bar cost $6890, of which the government paid $4283, and refused to pay any further part thereof.

The said vessel was laid up and detained in making the said repairs in all forty-five and a half days, for which time the per diem allowance stipulated in the charter-party at $182.25, amounted to $8292.37, of which the government paid $2281.06, as wages and board of the master and crew who were employed in aiding in the repairs of the vessel; and refused to pay any further amount on account of the said per diem. Thereupon Morgan filed a petition in the Court of Claims for the whole amount claimed and unpaid. That court dismissed the petition.

Messrs. N. Chipman, Carlisle, and McPherson, for the claimants:

The injury was caused by a war risk; the imminent danger of the country at that moment and the urgent necessity of sending troops forward to New Orleans without delay. The quartermaster had 'a full knowledge of the danger of crossing the bar.' He knew he was going into the jaws of destruction; but 'the exigencies of service'-those same exigencies which compel men to walk up to the cannon's mouth-compelled him to give the desperate order. The order was obeyed and the catastrophe followed. What was all this but the risks of war, 'war risks?' Such risks the United States were to bear.

Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice DAVIS delivered the opinion of the court.