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(Schedule A of Ex. Doc. 210, Forty-ninth Congress, first session.)
(Schedule showing difference between amount originally allowed and amount allowed by act of August 4, 1886, and paid, leaving the balances hereinafter set forth due and still unpaid.)
No. 6063, A. G. Kellogg, commander
No. 6091, Thomas T. Caswell, pay inspector..
No. 6033, James McDonnell, carpenter
No. 6046, W. A. Mintzer, passed assistant engineer
The Phoenix Insurance Company, of New York.
No. 5363, of 1885: ·
No. 4999, of 1884:
Globe Mutual Insurance Company, of St. Louis, Mo.
The St. Louis Floating Dock Insurance Company.
No. 5300, of 1885:
Eureka Insurance Company, of Pittsburgh, Pa. Phoenix Insurance Company, of St. Louis, Mo. No. 5068, of 1884.
The Magnolia Fire and Marine Insurance Company, of Cincinnati, Ohio.
No. 5301, of 1885:
American Insurance Company, of Cincinnati, Ohio. National Insurance Company, of Cincinnati, Ohio. Central Insurance Company, of Cincinnati, Ohio. No. 5303 of 1885;
United States Insurance Company, of St. Louis, Mo. American Central Insurance Company, of St. Louis, Mo. No. 5201 of 1885:
The Magnolia Fire and Marine Insurance Company, of Cincinnati.
No. 5000, of 1884:
B. F. GILKESON,
Eureka Fire and Marine Insurance Company, of Cincinnati. Ohio.
American Insurance Company, of Cincinnati Ohio.
Magnolia Fire and Marine Insurance Company, of Cincinnati, Ohio.
American Central Insurance Company, of St. Louis, Mo.
The Sun Mutual Insurance Company, of New York.
The Commercial Mutual Insurance Company, of New York. The Atlantic Mutual Insurance Company, of New York. The Washington Marine Insurance Company, of New York. No. 5085 of 1884:
The American Insurance Company, of Cincinnati, Ohio.
The above claimants filed their several claims for amounts paid upon the loss of the several steam vessels hereinafter mentioned,
Some of these claims were considered by Hon. J. M. Brodhead, while Second Comptroller, and disallowed. All of them were afterwards examined, considered, and allowed by Hon. W. W. Upton while Second Comptroller. All were afterwards examined and disallowed by Hon. I. H. Maynard while Second Comptroller. They were afterwards submitted to Hon. S. Butler, while Second Comptroller, who refused to take jurisdiction. They are now referred to me for examination and report by the Secretary of the Treasury, upon a reference to him by the chairman of the Committee on Appropriations of Congress.
I have the honor to submit the following facts and conclusions:
I have not taken the trouble to point out and designate the particular vessels each insurance policy was on, because the facts and circumstances surrounding the loss of each vessel are practically the same, and the decision of one settles all.
I have below given a summary of the facts surrounding the loss of each vessel, so that the committee can determine for themselves the correctness of my conclusions:
The steamer Osceola was chartered by the Quartermaster's Department October 19, 1861, to transport a cargo of Government freight from New York to such port as should be designated by the assistant quartermaster at Old Point Comfort. The owners assumed all marine risks. While prosecuting the voyage she had contracted to perform she was destroyed in a storm by being driven ashore. She was in possession of the officers put on board of her by her owners at the time of the loss. The officers and crew had the exclusive control of her navigation.
The steamer Wm. L. Ewing was, on the 23d day of November, 1864, while at St. Lonis, ordered by Captain Metcalf, assistant quartermaster, to receive on board a cargo of military stores. This was done, and it was agreed that the compensation the boat was to receive should be $410 per day. While the first order might have been an impressment, it is quite clear that a contract was finally entered into before the troops and stores were received on board. While the steamer was on the voyage from St. Louis to Cairo, the port to which it was bound, under the command and control of her owners and officers and crew, she struck some obstruction in the river, sunk, and was lost.
The Steamer Forest Queen.-This boat was impressed into the service December 16, 1862, and remained in the service until the latter part of August, 1863. About March 1, 1863, a contract was made between Captain Lyman, assistant quartermaster, and the master of the boat, by which her future service was performed under a contract. It was then agreed that the owners should receive $275 per day for her services, both those rendered before and after the contract. This steamer being one of those which passed the Vicksburg batteries, she was ordered to Cairo to disembark the furloughed men then on her, and to go to St. Louis or any other place desired. She was taken to St. Louis for repairs. The Government agreeing to pay $4,000 on her repairs, Captain Metcalf entered into a contract with the owners to do the work at that price on the 24th of September, 1863. The boat had been turned over to the owners before that time. On the 4th day of October, 1863, she was destroyed by fire, at St. Louis, while undergoing repairs.
The Steamer Neptune was navigating the Ohio, Cumberland, Tennessee, and other Western rivers. About the 1st of February, 1862, her master contracted to transport a part of the Seventy-eighth Ohio from Cincinnati to Paducah. While on the way down the river she was met with an order to transport the troops on board to Fort Donaldson. After landing the troops she took on board a cargo of rebel prisoners, who were delivered at Cairo. The master took the boat to Louisville, and took on board a cargo of Government freight and transported it to Nashville. On the return trip from Nashville the boat ran against one of the railroad piers at Clarksville, Tenn., and was lost. The steamer was being controlled and navigated by the owners and their officers and crew.
The steamer Champion.-This steamer was navigating the Mississippi and other Western rivers, especially between St. Louis and New Orleans and intermediate points.
On the 21st of September, 1863, the master of the boat, upon arrival at Memphis, was ordered to unload such freight as he had on board, and take on board a cargo of Government stores and proceed to Vicksburg, one of the ports he was in the habit of Visiting in his regular business. The boat was loaded, and just as it was about to back out into the river to go to the woodyard to get fuel it was discovered to be on fire. It was totally destroyed. The evidence shows that the fire originated in the hold, and also that the hatches had been shut down for more than a half day before it is said the fire was discovered. It seems to be almost impossible that the fire should burn in the hold of the vessel for that time without the owners, officers, and crew in possession having discovered it. It certainly does not indicate that the vessel was lost without fault or negligence of the owners.
The steamer D. G. Taylor.-This steamer was regularly employed in the carrying trade on the Ohio and other Western rivers. About the 1st of February, 1864, while
at Louisville, the master received an order to unload whatever private freight the boat might have aboard, and take on board a cargo of Government freight for Nashville. The owners and officers at the same time advertised for passengers and private freight for Nashville. They remained in control of the vessel. While loading she was discovered to be on fire on the night of the 5th of February, 1864, and was destroyed. It was agreed between the quartermaster and owners that the per diem wages of the vessel should be fixed after she made one trip. The fire that destroyed the vessel was first discovered by some person on another boat at the landing. The evidence clearly shows that the officers and crew were both careless and negligent, and that the boat was destroyed because of such carelessness and negligence of the owners, their officers and crew.
The steamer Louisville struck a snag in the Missouri River near Decatur, Nebr., about May 24, 1864, and was lost, while on a trip down the river to Rulo to transport a cargo of corn from that place to Fort Union. The evidence shows that about the 1st of May, 1864, the master and owners contracted with Captain Parsons, assistant quartermaster, to take 2,121 sacks of corn from Rulo to Fort Union. The owners took on so much private freight at St. Louis that when the vessel arrived at Rulo it was decided by the master and other officers that the water was too low to take on board the corn. They then gave a receipt for it as though shipped, and put it in a warehouse and insured for themselves. The boat then proceeded on her voyage to Sioux City. Upon arriving there without the corn, General Sully ordered the master to go back to Rulo and get the corn and bring it up as he had contracted. In attempting to reach Rulo the vessel was lost.
Each of the above vessels was being navigated and controlled by its respective owners or by a master and crew placed on the vessel by its owners or agents. The owners or agents had in each case taken out insurance on their respective vessels. When the loss occurred, in each case (except the Osceola), as soon as it took place a protest was made to save the insurance. In each case the loss was covered by the insurance policies held by the owners on the respective vessels, and each insurance company paid the loss or risk it had taken. It is, in my opinion, evident that the respective owners of these vessels, at the time of loss, regarded such vessel as in the service of the owners. It is also to me clear that the United States were not the special owners of either of the vessels lost as herein set out. The insurance companies paid only what they contracted to pay, and what they received full consideration for paying in the event of the happening of the events insured against in their several policies.
In my opinion these claims should not be paid.
B. F. GILKESON,
EXHIBIT C-CHARTER PARTY.
The following claims are for sums alleged to have been erroneously deducted from the earnings of the several steam vessels hereinafter named for time lost when mak ing repairs when vessels were under charter parties to render service to the United States during the late rebellion:
Randolph Barton, truseee of the Powhatan Steamboat Company, for earnings of the steamer George Peabody, $19,175.
Elizabeth P. Richardson, administratrix, for earnings of steamer Massachusetts, $-00.
Appleton Sturgis, administrator for steamer Achilles, $600.
Edward Ray and John Brewster, trustees, etc., for the steamer Edwin Forest, $440. The New York and Boston (Baltimore) Transportation Line, for steamer Octoraru and steamer Elizabeth, $1,400.
The New Haven Steamboat Company, for steamer South America, $5,200.
Edward Ray and John Brewster, trustees, for steamer Fairy Queen, $200.
William A. James, administrator, for steamer Suwanee, $6,000.
R. Loper Baird and Preston K. Erdman, assignees, for steamer Thomas Sparks, $2,900.
Nathaniel McKay, Alfred D. Foster, administrators, and Samuel Bell and Anna B. Hunt, administrators, for steamer C. W. Thomas, $1,100.
George W. Burton, administrator; Edward Burton and Walter E. Peurose, administrators: C. Ingersoll, Harry Ingersoll, and E. Ingersoll, executors; and Henry Virden, for the steamer America, $750.15.
James M. Sipple, administrator, and others, for schooner Allen Midleton, jr., $265.82. Nathaniel McKay and Alfred D. Foster, administrators, for steamer Argo, $2,027.50. William H. Foster, receiver, for steamer Mississippi, $3,900.
Thomas Clyde, for steamer Tallacca, $450.
The Commercial Transportation Company, for steamer Commerce, $2,730. George H. Power, Margaret Loper, Henry Acker, and George Murrell, administrators, and Milton Martin, for steamer Monitor, $5,975.
The Baltimore Steam Packet Company, for steamer Thomas A. Morgan, $1,900, The Baltimore Steam Packet Company, for steamer Georgia, $10,216.67.
Robert A. Morgan, for steamer Jenny Lind, $870.
These claims are of like character. They are presented by owners of vessels employed by the Quartermaster's Department, under charter parties, for services to the United States. These charter parties were all entered into in 1861, 1862, and 1863, and all the services rendered and paid for during those years. At the completion of each contract and service a full settlement was had and the amount found due paid to the owner or agent of each vessel when it was discharged from the service. These settlements were accepted by the respective owners and agents at the time; the amount said to be due by the Quartermaster's Department accepted and receipted for and acquiesced in for twenty years. After the lapse of this long time (all these claims were filed in 1882 and 1883) the Government is asked to reopen these settlements and pay these claims. Since the settlements in 1861, 1862, and 1863 a majority of the original persons who contracted for the use of these vessels have died." The corporations who owned others have ceased to exist, hence these claims are now presented by trustees, assignees, administrators, executors, &c.
All of these claims have been examined and allowed by Second Comptroller W. W. Upton, and once examined and disallowed by Second Comptroller I. H. Maynard. They have also once been presented to Second Comptroller S. Butler, who refused to take jurisdiction of the matter. These examinations and decisions were made in the order stated. They are here now by reference by the chairman of the Appropriation Committee of Congress to the Secretary of the Treasury, and by him referred to me for examination and report. There are no new facts or new evidence submitted.
Without discussing the question whether I have jurisdiction to consider and determine the questions involved in these cases, in the ordinary sense in which these terms are used in reference to cases pending in this office, I hold that I have the power conferred upon me by the reference of the chairman of the Committee on Appropriations to make the examination and report called for, and shall take up no more time disenssing my authority or jurisdiction.
The charter party under which each of these vessels was employed contained substantially this clause: "That the said vessel now is, and shall be kept and maintained during the whole of the voyage mentioned in this contract, tight, staunch, strong, and well and sufficientiy manned, victualed, tackled, appareled, and ballasted and furnished in every respect fit for merchant service, at the costs and charges of her owners."
And also this clanse: "Does agree to employ said vessel on the voyage or voyages aforesaid, and that as freight or hire of the said vessel during the time of this contract he will pay or cause to be paid the full and just sum of $350 per day for each and every day said vessel may be employed."
In these charter parties the owners of the vessels usually assumed the marine risks, unless the vessel was ordered south of Cape Henry, the south cape of Chesapeake Bay, and the United States the war risks and the marine risks while south of Cape Henry. The owners also undertook to be responsible for the ordinary wear and tear of the vessel. It is quite clear, from the evidence in these claims, that none of the repairs required to be made on these vessels during the time they were engaged by the Quartermaster's Department under charter parties were made necessary because of any injury received while taking a war risk, or the marine risks assumed by the United States when entering into said charter parties. But, upon the contrary, it is very apparent that the repairs which were required to be made to the vessels were the result of ordinary wear and tear of the vessels and machinery while in the service of the owners, such as any vessel is likely to require in any regular and ordinary prosecution of its carrying business. There is no evidence that these vessels or either of them assumed, took, or encountered any other risks than a merchant vessel would in the prosecution of its ordinary business.
In my opinion these repairs were expenditures the owners contracted to make at their own expense, and if it was necessary that the vessel should be laid up for these repairs the loss of time was one of the expenses assumed by the owners. It was as mnch an expense as the purchase of the material and labor.
The second clause I have quoted from the charter parties confirms me in this opinion. The Government only contracted to pay the owners of the vessels for the days
H. Mis. 1-18
actually employed. These vessels were not in the service of the United States in the sense that made the Government the owner for the voyage or the time of service. The Government occupied the position of hirer or freighter. The owners had the exclusive control of the navigation of the vessels. They were manued and supplied by the owners.
For these reasons I am of the of the opinion that none of these claims should be paid. There is, in my opinion, no legal or equitable claim in favor of the owners against the Government for the sums claimed.
B. F. GILKESON,
The Annapolis and Elk Ridge Railroad Company, $9,720.
This claim is made up of differences between the tariff rates of the company and rates fixed by a convention of railroad managers held in Washington in May, 1862. The claims of the company were all settled at the time and should not now be opened.
These accounts, which seem to be indicated in the accompanying claim, should, in my judgment, contain all the information necessary to establish the correctness of the settlements made or expose any errors therein.
No clerical errors are alleged in the settlements heretofore made; it is a simple question as to whether they shall now be disturbed, reopened, new rates applied, and new accounts stated and paid. No information is at hand which, in my opinion, warrants the accounting officers in extending any peculiar or exceptional consideration to this company differing from that accorded to the railroad companies generally.
The Pennsylvania Railroad Company, on its own line..
As lessee of the Camden and Amboy Railroad and Transportation line...
No. 6086, E. K. Bordman, pay clerk......
No. 5997, B. P. Mimmack, rear admiral's clerk
No. 6092, John G. Sankey, pay clerk..
$12, 730.49 1, 120, 55
The items of which these claims are made up consist of, as claimed by the companies, clerical errors, erroneous computations, misinterpretations, etc.
It must be remembered that this service was rendered from 1861 to 1866-'67; that payment was made to the several companies soon after the service was rendered. Since that time the accounts have been gone over and reviewed in 1861, 1868, 1871 and 1872, and 1883, when errors were discovered and double payments previously made to the company refunded to the Government, and in 1883 the sum of $49,892.97 was paid by the company to the Government for war tax against the New Jersey Railroad and Canal Company. It must be presumed that the accounts of the company with the Government were re-examined at the time of each of these demands and errors, if found, corrected. It can not be presumed that the company paid out such large sums of money without examination and verification of the accounts. Therefore it is fair to assume that the items were settled upon a basis agreed upon between the officers of the company and the Government at the time the settlements complained of were made. If these items of account were settled upon a compromise when originally paid by the United States, they should not now be disturbed. In my opinion such was the case. Therefore no appropriation should be made.
467.96 188.18 371.75
EXHIBIT D-NAVY CLAIMS.
If the accounts of the following-named claimants were settled at the present time, under the decision of the Supreme Court in the case of the United States vs. Mouat (124 U. S. R., 303), there would be nothing due the claimants.