Reybold v. United States
APPEAL from the Court of Claims; the case being thus:
Reybold, owner of the steamer Express, chartered her to the government under a charter-party, whereby it was agreed
'That the vessel now is and shall be kept and maintained tight, stanch, strong, and well and sufficiently manned, victualled, tackled, apparelled, and ballasted, and furnished in every respect fit for merchant service at the cost and charge of her owner. And when laden shall proceed, with the first good opportunity, to such ports and places as ordered and directed by the quartermaster of the United States.
'The war risks to be borne by the United States; the marine risks to be borne by the owner.'
On the 20th and 21st of January, 1865, the vessel was at Washington; the Potomac River being then frozen over from bank to bank; the ice eight inches thick; and the channel alone, in which, nevertheless, masses of ice were floating, kept open by the current and by the passage of vessels. In consequence of this condition of the river, the navigation was suspended except by government steamers and the ferry-boats. On the 20th of January, the master received an order from the quartermaster to take certain men and horses on board and proceed 'to-morrow morning' to a place called City Point.
Previous to giving this order, the quartermaster, in answer to his inquiries, was informed that the vessel was sheathed with iron, and was of capacity to take the men, horses, &c., by the captain, 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.'Having taken the men and horses on board on the 20th, he set off on the following morning for City Point.
While the vessel was crossing the river, her hull was crushed by heavy cakes of ice, and she filled and sank. The injury in sinking did not arise from any defect in the vessel or any fault on the part of her officers or crew. The Court of Claims found as conclusions of law:
1. That the peril was within the term 'marine risks,' and therefore to be borne by the owner.
2. That the charter-party placed the steamer in the military service of the United States in a time of war, and that the term was to be construed in reference to that service, and included risks from perils of the sea and seasons incident to that service, and its exigencies.
3. That the steamer, being in the military service, was subject to military orders necessary for the proper performance of the service.
It accordingly gave its decree for the United States. And from that decree the owner of the vessel appealed.
Mr. E. Fitch, for the appellant:
The master and crew were the servants of the owners, who appointed, paid, and subsisted them; and under a right interpretation of the charter-party, the master was to see to and control the navigation of the vessel and direct her motions. The quartermaster could indeed order and direct the freight to be carried and the ports and places at which it should be delivered; in other words, control the destination and employment of the vessel. But the owners maintained the right to say what was the right mode of her navigation.
Now, whether the state of the weather and the condition of the water are suitable for the commencement of the voyage, it appertains to the office of master of the vessel to determine. 'The master must commence his voyage without delay as soon as the weather is favorable. . . . But he must on no account sail out during tempestuous weather.' So say all the codes. Indeed, 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 by the law of England, or by our law, the entire management of the ship is intrusted to the master. 
In the present case the order of the quartermaster 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. To-morrow 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. The departure of the vessel at that time, in face of apparent danger, was an unskilful and negligent act of navigation, for which the United States and not the owners are responsible.
The order of the quartermaster was a military order, issued by a military officer of the United States 'acting in discharge of his official duty' in time of war. Obedience to it could not be refused. 
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.
It cannot be said that the master acquiesced, in the proper sense of the word, in the order given. His opinion was not asked, nor was he consulted in regard to the dangers to be encountered in making the voyage. He was asked in regard to the condition and capacity of his vessel, and to these inquiries he made true answers. But the voyage was not made the subject of negotiation or consultation between him and the quartermaster. The order was given, and received and obeyed, as a military order simply, imperative in its terms and admitting no question.
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.
Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.
Mr. Justice DAVIS delivered the opinion of the court.
^1 Abbott on Shipping, Part 4, chapter 5, page 351 (original), and cases and ordinances cited in note thereto.
^2 The Venice, 2 Wallace, 276.
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