delivered the opinion of the court:
The question presented for our consideration is, whether the United States are liable to the appellantfor the hire of theschooner Othello, at the rate of $50 per day, for the time for which, according to the findings of the Court of Claims, such payment has not been made.
The charter-party out of which this controversy has arisen is dated on the 26th of August, 1865. It stipulates, among other things, (1) that the schooner was then, and while in the service •of the Government should be, keptu tight, stanch, and strong,” at the cost of the owners, and that the time lost by any deficiency in these respects should not be paid for by the United States} “ the war risk to be borne .by the United States, the marine risk by the owners.” (2) The United States agreed to pay $50 per day for the time the vessel was engaged in their ■service.
On the 17th of November, 1865, pursuant to the charter-party, the schooner left Wilmington, in North Carolina, for the port of New York, laden with ordnance and ordnance stores. On her way she sprung a leak, and was compelled to bear away and put into the port of St. Thomas, in the West Indies, for repairs. There the captain executed a bottomry-bond, bind-ingthe vessel and cargo, and amounting, principal andinterest, to $17,399.71. Having- received the necessary repairs, the vessel left St. Thomas on the 26th of January, 1866, and reached New York on the 13th of February ensuing. There, the bot-tomry-bond not being paid at maturity, the vessel and cargo were libelled in-the district court, and on the 10th of March they were attached on that proceeding. The district court ■dismissed the libel. An appeal was taken to the circuit court. That court affirmed the decree as to the cargo but reversed it as to the vessel, and finally decreed against the latter for the ■amount due on the bond. The vessel was held by the marshal under the attachment from the 10th of March until the 30th of
*11July. She was discharged from the service of the United States on the 7th of August.
A claim was made against the United States in general average. It was adjusted and paid to the satisfaction of the owners. All theper-cZim compensation claimed has also been paid, except that for the time the vessel was in the hands of the marshal. Whether the claim for general average, and that for the time lost by the vessel in deviating from her course, going to St. Thomas, there awaiting repairs, and going thence to her port of destination, were not covered by the marine risk she had assumed, are questions not before us, and which we need not, therefore, consider.
The claim of per-diem compensation for the time the marshal held the vessel is the only ground of controversy between the parties, and it is the only subject open for examination in this case.
During that time she was in the custody of the law; she was in nowise in the employment of the United States nor subject to their control. She did not, and could not, render them any service while thus held. •
The United States had not stipulated to pay in such a contingency. On the contrary, the detention was incident to the marine risk, which the owners had expressly assumed. It was a fruit of that peril. The United States are not blameworthy, and not responsible. The contract puts all such burdens upon the shoulders of the owners. Those burdens cannot be shifted and thrown upon the other party.
The judgment of the Court of Claims is affirmed.