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vessel for her protection, or for offensive operations against the rebels. But it is found that after she left the vicinity of the rebei fort, the reduction of which seemed to be the object of the expedition, the gun was used to meet an attack of rebel infantry, who fired from the shore into the vessel. The concussion of the firing "swept off the bulwarks and netting in the track of the explosion,' and one of the effects was "to start the joiner work, and to break in some of the panels of the doors, and to take a part of the rail off." Upon the same occasion she struck an overhanging tree, which took off a part of the wheel house and swept off both of the flagstaffs, and all the awning stanchions. Proceeding down the river, and when three miles above New Berne, she struck a snag and sunk. She was raised and taken to New Berne, and there "temporarily repaired by the government."

Casualties such as striking trees and snags, and sinking, were clearly marine risks which the owner expressly assumed, and the fact that during the expedition when they occurred the vessel was managed by a pilot placed on her by the government officers cannot affect the rights of the parties. The captain does not appear to have made any objection to such a pilot, nor is it claimed that the latter was negligent or unskilful in the discharge of his duty. On the contrary, he belonged to the neighborhood, and was familiar with the river. In regard to the claim for damages resulting from the firing of the gun, we remark that if such use of the vessel were conceded to be in violation of the charter party, we should be unable to ascertain from the record the amount of those damages. How far they were met by the temporary repairs made by the gov ernment, upon the return of the vessel from the expedition, is not stated. When she reached New York, after having been discharged from service, it is stated in the findings that she was "generally repaired throughout." What portion of these general repairs was chargeable to the injuries occasioned by the marine. risks which the owner assumed, and what portion, if any, was chargeable to the injuries caused by war risks which the government assumed, cannot be determined from the record.

The only question which remains to be considered, is that arising on the asserted liability of the government for the per-diem compensation for the time spent in taking the vessel from Port Royal, and in repairing her in New York. The charter party, it is true, expressly provided that she "was to be delivered to the owner in the port of New York, at the expiration of the charter, in as good condition" as she was at its date, "ordinary wear and tear, damage

by the elements, bursting of boilers, breaking of machinery, excepted." In view of this stipulation, was the government, under the facts established, relieved from the duty of delivering her at New York? We think it was. By the terms of the charter party the owner was bound, at his own expense, to keep the vessel tight, staunch, strong and sound, and her machinery, boilers and everything pertaining to her in perfect working order, and to provide her with everything necessary for efficient sea-service. Any time which might be lost by reason of the machinery not being in order was to be deducted from the amount claimed to be due at the expiration of the charter. Now, it appears that on the 4th of March, 1863, the vessel was out of order and condemned by the government inspectors, and for those reasons was discharged at Port Royal from the service of the government. It does not appear that this condemnation was improper or unjust. It is not pretended that she was at that time fit for efficient sea-service. The agreement of the government to pay two hundred dollars per day for the use of the vessel was upon the condition — whether precedent or concurrent is immaterial that the owner would keep her in good order. His neglect of that duty, by reason of which she became unsafe and worthless for the purposes for which she had been hired, authorized the government to abandon the contract and discharge her from its service. Its obligation to deliver her at New York was concurrent only with his to keep her in proper condition, and inasmuch as she was out of order and unfit for use, it had the right to discharge her at Port Royal, and was relieved from the duty of delivering her to him at New York. His refusal to execute the contract gave the government the option to rescind it. Judgment affirmed.

Mr. Thomas J. Durant and Mr. Charles W. Hornor for appellant. Mr. Attorney General and Mr. Assistant Attorney General Smith for appellee.


ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. No. 665. Submitted October 15, 1877. Decided November 5, 1877.

Until the record of a judgment in a state

court which this court is called upon to examine discloses the question necessary to give it jurisdiction, this court cannot proceed.

MOTION TO DISMISS. The case is stated in the opinion.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The Rhode Island Horse-Shoe Company, a citizen of Rhode Island, sued the Goodenough Horse-Shoe Manufacturing Company, a citizen of New York, in the Supreme Court of the State of New York to recover an amount alleged to be due upon an account for goods sold. Summons was served September 14, 1876, and October 5, 1876, judgment was rendered against the defendant upon default, in accordance with law and the practice of the court in such cases. The record of the judgment as sent here shows this state of facts and nothing more.

On the 9th of October the defendant moved the court to vacate the judgment, and in support of that motion produced affidavits tending to prove that on the 3d of October it had filed its petition for the removal of the cause to the Circuit Court of the United States. No effort was made, however, to correct the record as it stood so as to disclose this fact. This motion being denied the defendant below sued out this writ of error which the plaintiff now moves to dismiss for want of jurisdiction.

We can only reëxamine the final judgment in the suit, and for that purpose must look alone to the record of that judgment as it is sent to us. If parts of the record below are omitted in the transcript we may by certiorari have the omissions supplied, but we cannot here correct errors which actually exist in the record as it stands in the state court. For that purpose application must be made there, and, if necessary, upon sufficient showing we may remand the case in order that the court may proceed.

In this case the judgment was rendered October 5, and the record of the judgment stopped then. What took place afterwards was nothing more than an attempt to avoid the judgment. The facts which it is claimed give us jurisdiction appear only in the record of this subsequent proceeding, over which we have no supervision. If the defendant below desires to bring the case here it must take the necessary steps to correct the record, if in fact any error exists, so as to present the question it seeks to have decided. It is unnecessary for us to determine how this may be done or whether the courts of the United States have authority to require the state court to act in that regard. All we do decide is that until the record of the judgment we are called upon to examine discloses the question necessary to give us jurisdiction, we cannot proceed.

The motion to dismiss for want of jurisdiction is granted.

Mr. H. M. Ruggles for plaintiff in error.

Mr. Charles Tracy for defendant in error.





No. 875. Submitted February 20, 1878. Decided April 8, 1878.

The mandate of this court in this case was fully complied with by the Court of Claims.

THE case is stated in the opinion of the court.

MR. JUSTICE FIELD delivered the opinion of the court.

The question originally involved in this case, and decided at the October Term of 1876, was whether the provision contained in the land grant to the company, that its road should be a public highway for the use of the government of the United States, free from all toll or other charge for the transportation of its property and troops, not only entitled it to the free use of the road, but also to have the transportation made by the company without charge. The company claimed that the use of the road was all that could be required of it. The government, insisting that it was also entitled to have such transportation without charge, refused compensation therefor, and referred the matter to the Court of Claims for determination. That court estimated the cost of the transportation according to the ordinary tariff rates of the road with other parties for similar services, after making a deduction of one-third from the rates. This deduction had been deemed by the War Department, upon careful consideration, to be the equivalent of any toll or charge for the use of the road itself, and upon that basis the services had been rendered. But the judges of the Court of Claims, being equally divided upon the question of the liability of the United States to make any compensation, gave judgment pro forma in their favor against the company. On appeal this court reversed the judgment, holding that the government was entitled only to the free use of the road, and that compensation must be made for the transportation, with a fair deduction for such use. The case was accordingly remanded with directions to enter a new decree awarding compensation with such deduction.

On the return of the case to the court below the claimant moved for judgment for the amount previously found according to the ordinary tariff rates less the deduction of one-third, as established by the War Department. By agreement of the parties such judgment was entered, the government reserving the right to show that a judgment for that amount was not required by the mandate of

this court, and, if it should be so decided, to try the question as to what was a fair deduction.

On the subsequent hearing of the point reserved, which was had upon a motion to set aside the judgment, the opinions of eminent "railroad experts" were read, by stipulation of the parties, to show what would be a fair deduction from the ordinary tariff rates for the use of the road. There would seem to have been some difference of opinion among the experts, but their evidence failed to show, in the opinion of the court, that the reduction agreed upon between the parties and the War Department was not a fair one. On the trial of the case it was not pretended by the claimant that the amount was arbitrarily fixed or that it was illegal or oppressive, or by the government that any greater reduction should have been made. Nor was the authority of the War Department to inake an arrangement of this kind questioned, if under the law the government was liable for the transportation. If such authority do not now exist, as contended, under the subsequent legislation of Congress, and upon which point we express no opinion, there can be no doubt of its existence when the services were rendered for which compensation is claimed here.

We are of opinion that the mandate of this court was fully complied with by the Court of Claims, and its judgment is, therefore, Affirmed.

Mr. Attorney General and Mr. Assistant Attorney General Simons for appellant.

Mr. Thomas H. Talbot for appellee.



No. 897. Argued February 1, 1878.- Decided April 1, 1878.

Railroad Co. v. Vance, 96 U. S. 450, followed.

MR. JUSTICE HARLAN delivered the opinion of the court.

The decision just rendered in Case No. 896, 96 U. S. 450, between the same parties, controls the decision in this case.

Mr. B. W. Hanna for appellant.

Mr. James K. Edsall for appellees

Decree affirmed.

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