When the Government guarantees only a certain depth of water at an unloading dock, the fact that one vessel of greater draft had unloaded at it, does not amount to proof that all vessels of that draft could do so, the Court of Claims having stated that it did not find as a fact there was generally an available depth of over twenty feet; and a claim for demurrage cannot be based on failure to unload vessels of greater draft than twenty feet of water at that dock. The provision in the Philippine Tariff Act of March 3, 1905, c. 1408, ยง 15, 33 Stat. 928, 976, exempting from tonnage dues vessels belonging to, or employed in the service of, the United States, does not apply to vessels that are not under the control of the United States. New Orleans-Belize S.S.Co. v. United States, 239 U.S. 202. The ground of such exemption being to prevent interference with agencies of the Government, it does not apply to an independent carrier who has simply contracted to deliver freight to the Government. 49 Ct. Cl. 635, reversed in part and affirmed in part. THE facts, which involve the power of the Court of Claims to reform a contract with the United States and claims for demurrage arising under a contract for delivery of coal, are stated in the opinion.
As the owner does not relinquish exclusive possession and control to the time or voyage charterer, the latter is not subject to an owner's liabilities as is the demise charterer. Reed v. The Yaka, 373 U.S. 410, 412, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); New Orleans-Belize Royal Mail and Central American Steamship Co. v. United States, 239 U.S. 202, 36 S.Ct. 76, 60 L.Ed. 227 (1915); United States v. Shea, 152 U.S. 178, 14 S.Ct. 519, 38 L.Ed. 403 (1894); Leary v. United States, 14 Wall. 607, 610, 20 L.Ed. 756 (1871); Reed v. United States, 11 Wall. 591, 600-01, 20 L.Ed. 220 (1870); Vitozi v. Balboa Shipping Co., 163 F.2d 286 (1st Cir. 1947); 2B Benedict, Admiralty ยง 52 (7th ed. 1978); G. Gilmore and C. Black, The Law of Admiralty ยงยง 4-20 to 4-23 (2d ed. 1975); S. Gebb, "The Demise Charter: A Conceptual and Practical Analysis," 49 Tul.L.Rev. 764 (1975). A demise charter is "tantamount to, though just short of, an outright transfer of ownership."
The respondents had no property in the ship. Leary v. U.S., 14 Wall. 607; New Orleans, etc. Co. v. U.S., 239 U.S. 202; Elliott Tug Co. v. Shipping Controller, 1 K.B. 127; Federated Coal Co. v. The King, 2 K.B. 42; Osaka Shosen Kaisha v. Lumber Co., 260 U.S. 490. The injury to the ship was not a tort as to the respondents.
Authority to direct the course of a third person's servant does not prevent his remaining the servant of the third person. New Orleans-Belize Royal Mail, c., S.S. Co. v. UnitedStates, 239 U.S. 202; 36 S.Ct. 76; 60 L.Ed. 227. See, also, Hooper v. Brawner, 148 Md. 417; 129 Atl. Rep. 672; 42 A.L.R. 1437. In such an inquiry a distinction is to be made "between authoritative direction and control, and mere suggestion as to details or the necessary co-operation, where the work furnished is part of a larger undertaking.
When a res is merely being employed to render public service in the possession of a private person, pursuant to some contract with the sovereign, no such difficulty exists. Goodwin v. United States, 17 Wall. 515; New Orleans-Belize S.S. Co. v. United States, 239 U.S. 202; Ackerlind v. United States, 240 U.S. 531; Gromer v. Standard Dredging Co., 224 U.S. 362; Morgan v. United States, 14 Wall. 531. To hold mere public service not a proper test of immunity can obviously cause no hardship.
Mr. J. Frank Staley, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the briefs, for the United States. The rule announced in this Court in New Orleans-Belize S.S. Co. v. United States, 239 U.S. 202, determines that the charters of the tugs in this case were contracts for hire and did not constitute a demise. See also The Spokane, 294 F. 242; Bramble v. Culmer, 78 F. 497; Clyde Commercial S.S. Co. v. West India S.S. Co., 169 F. 275.
Where the case is not founded on the Constitution of the United States or a law thereof, or a regulation of an executive department, no recovery can be had if the case be one sounding in tort. United States v. Buffalo Pitts Co., 193 F. 905, 908, 909; 234 U.S. 228, 232; Dooley v. United States, 182 U.S. 222; United States v. Lynah, 188 U.S. 445, 474; White Co. v. Ball Engineering Co., 223 F. 618, 620; United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 32; Russell v. United States, 182 U.S. 516, 530, 535; Peabody v. United States, 231 U.S. 530, 539; Harley v. United States, 198 U.S. 229, 234; Juragua Iron Co. v. United States, 212 U.S. 297, 309; Crozier v. Krupp, 224 U.S. 290, 303, 304; New Orleans-Belize S.S. Co. v. United States, 239 U.S. 202, 206, 207; Tempel v. United States, 248 U.S. 121. The claim of the Ball Engineering Company against the United States, if any, does not arise under the Constitution, and, therefore, necessarily is a case sounding in tort.
re laid down, the following were held to be marine, rather than war, risks: injury to a troop transport from drifting ice when army orders compelled the voyage, even though ice conditions made navigation unsafe, Reybold v. United States, 15 Wall. 202, 21 L.Ed. 57; damage from a leak sprung while the vessel was carrying military stores, Goodwin v. United States, 17 Wall. 515, 21 L.Ed. 669; a stranding caused by the vessel's negligence in course of maneuvering to land troops in theatre of active operation, White v. United States, 154 U.S. 661, 14 S.Ct. 1192, 26 L.Ed. 178; a collision with a drifting derelict while the vessel was proceeding at full speed through dense fog pursuant to urgent military orders, Mott v. United States, 9 Ct. Cl. 257; the striking of a submerged anchor in the course of voyage to supply troops in the field, Leary v. United States, 14 Wall. 607, 20 L.Ed. 756; a collision, stranding and bumping while the vessel was carrying men and horses to theatre of operations, New Orleans-Belize Royal Mail and Central American Steamship Co. Ltd. v. United States, 239 U.S. 202, 36 S.Ct. 76, 60 L.Ed. 227. Our own court has emphasized that the proximate cause of a loss must have been warlike in order to make the loss a war risk.
Where servants of two persons jointly engage in a work of mutual interest to their employers, each employee retains the status of a servant of his own master, and it is immaterial that one servant may take orders as to details of the work from the other. New Orleans-Belize, etc., S.S. Co. v. United States, 239 U.S. 202, 36 S.Ct. 76, 60 L.Ed. 227; Baker Tow Boat Co. v. Langner (C.C.A.5) 37 F.2d 714; Moss v. Chronicle Pub. Co., 201 Cal. 610, 258 P. 88, 55 A.L.R. 1258; Cannon v. Fargo, 222 N.Y. 321, 118 N.E. 796, 798; Mandala v. Wells, 212 App. Div. 370, 209 N.Y.S. 35, 39; 1 Labatt, Master Servant (2d Ed.) ยง 48. On the former appeal we held that "the labor, except the supervision of the erection of the shovel and the installation of the electrical equipment and the actual operation of the equipment, was being done by the Alston Coal Company through its employees under the supervision of Titus."
The captain managed the ship for the owner, and, though he was the agent of the charterer for some purposes, he was not in respect to the navigation of the vessel. New Orleans-Belize S.S. Co. v. United States, 239 U.S. 202, 36 S. Ct. 76, 60 L. Ed. 227. No matter whether he decided to remain and load the cargo at Georgetown for one reason or another, the decision was his to make in the performance of his duty and the exercise of his power as the master. Hanson v. Haywood Bros. Wakefield Co. (C.C.A.) 152 F. 401. What he decided as to that was not the decision of the charterer.