SHAW V. UNITED STATES, 93 U. S. 235 (1876)

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U.S. Supreme Court

Shaw v. United States, 93 U.S. 235 (1876)

Shaw v. United States

93 U.S. 235


Where a steamer, lying at the time at the wharf at St. Louis, was taken into the service of the United States by a quartermaster of the United States, for a trip to different points on the Mississippi River, the compensation for the service required being stated at the time to the captain, and no objection being made to the service or compensation, and the service was rendered, the possession, command, and management of the steamer being retained by its owner, held that the United States were charterers of the steamer upon a contract of affreightment, and that they were not liable, under such a contract, to the owner for the value of the steamer, though she was destroyed by fire whilst returning from the trip, without his fault.

The court below found the facts as follows:

That on the seventeenth day of September, 1863, the steamboat Robert Campbell, Jr., of which the claimant was and continued to be the sole owner, when lying at the wharf in the

Page 93 U. S. 236

port of St. Louis, Mo., fully manned, equipped, and furnished for business on the Mississippi River, was impressed into the military service of the United States by Captain Charles Parsons, assistant quartermaster of the United States Army, for especial duty between Memphis and Vicksburg, loaded with army stores and troops, and ordered by said Parsons to proceed down the Mississippi River to Memphis, Tenn., and there report to Captain J. V. Lewis, assistant quartermaster. The orders stated the terms on which the boat was employed. The boat left St. Louis on said service about the 25th of that month, officered and manned by officers and men employed by the claimant.

While in the said service of the government, she was, on the 28th of September, 1863, consumed by fire, and became a total loss to the claimant, without any fault or negligence on his part or that of her officers or crew.

In October, 1863, the account of the United States with said boat, for her use and service as a transport from Sept. 17 to Sept. 28, was allowed and paid by Brigadier General Robert Allen, Quartermaster United States Army.

In February, 1864, the claimant submitted to the Third Auditor of the Treasury his claim for $70,000 against the United States for the value of said boat at the time she was taken into the service of the government.

At the same time, he claimed a balance of $859.91 as due him on account of stores lost with the boat when she was consumed and which he averred had been furnished by the officers of the boat for the subsistence of the crew.

At the time of her loss, she was worth $70,000, and was insured for $25,000, by policies for $5,000, in each of the following companies, namely the Atlantic Mutual Insurance Company, the Globe Mutual Insurance Company, the United States Insurance Company, the Eureka Insurance Company, and the Phoenix Insurance Company. In each policy except that of the Atlantic Mutual Insurance Company, the boat was valued at $38,000, and in all of said policies there was a limitation of $30,000, as the total amount which was allowed to be insured on the boat.

In the policies issued by the Atlantic Mutual and United

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States companies, the claimant was insured; but the policies stipulated that the loss, if any, should be paid to Robert Campbell, and the losses under those policies -- viz., $5,000 under each -- were paid to said Campbell.

In the policy issued by the Eureka, the claimant was insured, but the policy stipulated that the loss, if any, should be paid to Robert Campbell & Co., and the loss was so paid.

In the Phoenix and Globe policies, the claimant was insured and the losses thereunder were paid to him.

On the 25th of May, 1864, the Third Auditor rendered the following award in favor of the claimant:

"Award No. 32 -- Second Section of the Act of 3d March, 1849"



"In pursuance of an Act of Congress approved 3d of March, 1849, entitled 'An Act to provide for the payment of horses and other property lost or destroyed in the military service of the United States,' as amended and construed by the fifth section of the Act of March 3, 1863, it is adjudged by me that there is due from the United States to John S. Shaw, for the steamboat Robert Campbell, Jr., of St. Louis, Mo., burned on the Mississippi River, near Milliken's Bend on the twenty-eighth day of September, 1863, while in the military service of the United States, under impressment, the sum of fifty-seven thousand dollars ($57,000), less the sum of twenty-five thousand dollars received by him as insurance on the same, leaving payable by the United States the sum of thirty-two thousand dollars ($32,000)."

"To be paid to John S. Shaw, St. Louis, Mo."

"R. J. ATKINSON, Third Auditor"

On the 9th of June, 1864, the amount of said award was paid to the claimant.

In 1869, the claimant made an application to the third auditor to review the award and allow the further sum of $13,859.90, which that officer refused to do, and his decision in that regard was concurred in by the Second Comptroller. That sum was, in the application, made up of the above-mentioned balance, claimed as due him on account of stores lost with the boat when she was consumed, and of $13,000, on account of the value of the boat, which latter claim was made by estimating the

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boat's value at $70,000, and allowing thereon $25,000 insurance money paid the claimant, and $32,000 paid him by the government as aforesaid, leaving $13,000 additional on the value claimed to be due to him.

The claimant's amended petition, praying for a recovery of the said sum of $25,000 for the use and benefit of said insurance companies, was, with the leave of the court, filed Aug. 26, 1873.

The court found as conclusions of law:

1. That on the facts therein, the Robert Campbell, Jr., when destroyed by fire, was employed by the petitioner in the performance of a contract of affreightment then subsisting between him and the United States, and they are not liable for her value.

2. That the claim of the petitioner against the United States, submitted by him to the Third Auditor, was not within the jurisdiction or authority of said officer under the statute of 3d March, 1849, and his action thereon imposed no liability on the United States, and none has been assumed by them.

Judgment was rendered accordingly, and the claimant appealed to this court.

Page 93 U. S. 239

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