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8 A RULE FOR DETERMINING BARRATRY. Marine insurance puzzles venerally are questions of fact -rather than of law, questions as to who has promised whom and what. A case cited by the Martng Recorp (107 F. 516) illustrates how simple problems of fact can be beclouded by floods of abstract ideas, bewildering nomenclature, disar- ranged multitudes of persons and things tumbled together followed by the loosely dictated opinion of some tired judge. The “retrograde movement” of Rear Admiral Schley has suggested giving to the readers of this a rule of the great emperor of a nation noted for its juridical acumen in things maritime, and by which rule the propriety of ques- tioned conduct of masters and seamen may be judged. “Disobeying the lawful orders of a superior officer” is pro- hibited to naval mariners by Art. 4, sec. 1624 R. S., on penalty of death; so that a breach of such a statute, being a willful violation of law,” is what the Supreme Court calls barratry (168 U. S. 124). A maxim applicable to Schley’s alleged disobedience, and to all marine barratry, was cited by the present American ambassador to England, Joseph H. Choate, in a famous case, and has been apparently, as it should be certainly, adopted by the nautical department of the United States government. It is necessary to ask, first, whether it has been overruled in a later naval case, that of an officer, C., charged with disobedience before a naval court-martial at Mare Island, Cal., in April, 1889. Specification I stated that C., while “awaiting orders” in New York, on September 8, 1888, “received a lawful order from the then Acting Secretary of the Navy, Commodore H.,” “directing him to proceed to” California for duty on board the U. S. store-ship ‘Monongahela, which vessel was then being fitted for service on a foreign station; and hav- ing proceeded in obedience to said ordér as far as Cincin- nati, Ohio, and having, on account of ill health, been au- thorized to delay proceeding to California until able to un- dertake the journey, did, “on Dec. 8, 1888,” report at the nearest “naval hospital” at Washington, D. C., “for medi- cal treatment.” (To this, he was admitted on a certificate from Dr. Rixey, President McKinley’s physician, the next Surgeon-General of the Navy.) According to Specification 2, C., having remained in the Washington hospital until Dec. 21, as, in the opinion of its surgeons, unfit for a journey to California, and having finally “been reported by Medical Inspector A. A. Hoeh- ling, in charge of said hospital, as fit for duty, and having on December 21, 1888, “received an order from the Secre- tary of the Navy directing him to proceed at once” “as di- rected in” his “original orders of September,” “and having in obedience to said orders proceeded to Los Angeles, Cal., and in a letter from that place requested a revocation of the orders assigning him to duty on board the ‘Mononga- hela, and being physically able to travel, did, nevertheless, fail to proceed to Mare Island, in obedience to the orders aforesaid,” etc.. Tt will be observed that these orders required C. to travel to Mare Island for a stated purpose; and did not authorize him to put the government to expense of mileage of “travel under orders” otherwise. Sickness incurred in “proceeding at once” from a hospital in midwinter and re- sultant effects from “exposure in the line of duty” in the malarial tropics and in Alaska, made C. unable to perform that duty which was the object of his journey from Wash- ington to Mare Island. The duty which took its place—of reporting conditions necessitatine a modification of orders before subjecting the government to further, useless “mileage” expense—was faithfully fulfilled en route. (Navy Reg. of 1876, p. 81, par..9; sec. 1624 R. S., art. 8, clause 15). C.. reported to the Navy Department that ill health was the cause of his delay, that this incapacity resulted from ‘exposure received in the line’ of duty, and that it would disable him from performing the service at Mare Island, to which alone he was ordered, fortifying all this with the proper physician’s certificate. Upon the receipt at Los Angeles of further instructions authorizing him to put the government to mileage expense though unable to fulfill the, employment for which the outlay was allowed, he cheer- reports were true and the Navy Department never charged the contrary. Where C. sought to introduce evidence of the truth of them before the court-martial, the evidence as rejected on the ground that it was “immaterial.” So was. The Secretary of the Navy had ruled, through his gned “specifications,” that “being physicially able to -avel,” C. should have put the government to expenditure fully and voluntarily continued his journey to the end. His. ‘THE MARINE RECORD. that was, or might have been, useless—the mileage of con- tinued progress to Mare Island and the mileage of orders home or to sick leave. ‘The subordinate court-martial obediently followed that ruling, one of the members re- marking that they were commanded to try those particular charges. C. was convicted on the sole ground that: mere travel was the object of his journey and not the duty at the end of it. The Navy Department, however, has’ since ruled to the effect that this was an ex post facto edict of the secretary, and void as such. In the summer of 1899 the Court of Claims, referring to this case, called upon the Navy Department for a reply to these interrogatories: | “7 State whether the following, entitled in the Fitz- John Porter proceedings ‘the Napoleonic rule in respect to obedience and discretion’ is a maxim of practice in the navy. ‘A military order exacts passive obedience only when it is given by a superior who is present on the spot at the moment he gives it. Having then knowledge of the state of things, he can listen to the objections and give the necessary explanations to him who should execute the orders.’ “5 Tf a commissioned officer of the navy, being in the eastern part of the United States, is ordered to California to begin a three years term of sea-service on the Pacific, and is aware that his health is such that he cannot begin that service, state whether it is his military duty to report that fact to the government before subjecting the latetr toa useless mileage expense, and whether he would be dere- lict in his duty if he did not do so. In the same manner, See eee ‘NOVEMBER 7, I901. Navy Department had given “instructions” to the effect that he must not subject the government to mileage if his ill health disabled him from going to duty, a delay until December 21, 1888, in obeying orders issued September 6, 1888, having been directed on that account. For paying his own fare to the nearest’ (Washington) hospital, from Cincinnati, he was acctised of violating a declination to grant him orders (and thus mileage) to the more remote Brooklyn hospital. It was the United States that put in evidence that his retarded journey to Mare Island was due to physical disability incurred in the line of duty, “bron- chitis” and threatened “consumption”; that the southern detour and delayed movement via New Orleans and Los Angeles was made only “with” the express or implied “‘per- mission” of the Navy Department; that the lattter was at once notified (Dec. 25) by C. of his intended delay, its exact cause, and his postoffice address en route; that it sent him no orders rebuking him or instructing him to act differently until after a letter came from C. supposed. to be “disrespectful”; and that the approval of his course was continued even while C. was believed to be (so it was declared ) delaying at New Orleans while in reality he had traveled on to Los Angeles “without notice” of this fur- ther evidence of his desire to obey of which intent, like other honest men, he made no boast. All this was evi- denced, or admitted, by the Navy Department itself. (See record, case 21,216, Ct. of Cl.) When charges are once signed by a secretary, his: re- specting subordinates, the court-martial members, are loath to rebuke their superior by declaring his “approved” charges unfounded. And when, in turn, such court has MONTHLY SHIPBUILDING RETURNS. The Bureau of Navigation reports 150 vessels of 45,547 gross tons were built in the United States'and officially num- bered during the month of October, 1901, as follows: \ ; WOOD. STEEL, TOTAL SAIL. STEAM SAIL. STEAM ; No Gross. No Gross. No Gross. No. Gross. No. Gross Atlantic and Gulf................ 84 5,066 29 2,105 I 3,374 I 176 II5 10,721 Porto Riconis fi. 3c Pete aera rales Glee EAE iO uae | Chae eierstere Pirie love ais lhele ere eusjotece (iareceun et eye acorn onesie orl ie ararete val inmesege ties ats Pacific)... Uy dintienea tick citieeaa tiacele 4 1,903 5 STA alec eee ide eee 8 31,510 2,4 Great IGAKeS cy cso ses iccs oman lors uses siiars alulore nts ad QOS eS tee eee SOUSA Ac ltandnrars math : uy oes Western Rivers..:...........0006 |] eee ele ees eens 13 (oe eel Rea hee Db caep vealteeeacsdaiel ctw Sele a 13 631 Total o.54 eae rae as See 88 6,696 52 3,518 I 3,374 9 | 31,686 150 | 45,547 The largest steel steam vessels included in these figures are: NAME. GROSS TONS. Christopher..................4,260 W. Superior, Wis. CHICAR OR vt sis s weet ene wes 3,195 Buffalo, N. Y. Frank T. Heffelfinger......... 4,897 Chicago, Ill. Frederick B. Wells.......... ..4,897 os ge Henry Steinbrenner.......:.. 4,719 Pt. Huron Mich, William S. Mack............ ++3,720 Lorain, Ohio Sail William P. Frye...... ree aS 3,374 Bath; Me. if he perceives that his orders will involve the violation of any act of Congress, whether it is not his duty to report that fact to the Navy Department before he proceeds to obey them. If the record of proceedings against C. does not show that he fully performed his duty in this respect, and that he voluntarily proceeded from Los Angeles to Mare Island,. Cal., and reported for duty there, when the Secretary of the Navy, after fuller information of the facts, again ordered C; to proceed to Mare Island, comply with the call of this court for a certified copy of that record,” Se. The reply to these interrogatories signed by the Secre- tary of the Navy held that there was no “information or papers” on “the files of the department” contradicting the Napoleonic rule cited by Mr. Choate, the President’s ap- proval of it in the Fitz-John Porter case or denying that the ordered officer’s duty was as outlined in the call. This principle of France’s sea code and upon which the Com- mander-in-Chief of the Navy acted in restoring the dis- missed general, must therefore be regarded as law in the United States..77 een ee The charges in this case, perfunctorily signed by the sec- retary, were drafted by a Judge Advocate General who died in an insane asylum three years later. He had reason for wishing C. out the navy. C. had challenged his com- petence on grounds which have since received judicial ap- proval. The charges in this:case were so drawn as to be- wilder the court-martial and prevent a correct decision. Thus, when C. reached Los Angeles in January, 1889, the WHERE BUILT. OWNER. Milwaukee Tug Co. Edward Smith Peavey S. S. Co. “ee “cc “ H. Steinbrenner Amer. Ship Bdg. Co. Arthur Sewell & Co.' 2 compliantly registered a “finding” of “guilty,” its convenor is disinclined to admit that all is the result of carelessness, haste and inattention to the rghts of those under hm. “Two of the seven members of the court recommended C. to clem- ency, because C., although “in arrest from January 26 until March 28” (when he was ordered to report for trial) did not, “until March 28, receive any notification he was to be brought to trial or any statement of the offenses for which he was to be tried.” ‘That such a fact could exist and only influence two of seven members to declare it un- just, shows the character and intelligence of that court martial. The Napoleonic rule for determining barratry could not have received damage even if such a court-mar- Gal a such a secretary did collide with it. But there was collision. ; Neda: GrorcE F. OrMspy. rr re ee Shippine—Due_ Diligence—Harter Act.—Due diligence to make a vessel seaworthy at the commencement of her voyage, which will entitle the carrier to the exemptions given by section 3 of the rarter act, must be exercised in the work itself, and not merely in the selection of agents to do the work, and must be adequate to accomnlish the result ‘intended, except as to latent defects not discoverable by the utmost diligence. Due diligence was not exercised to make a liehter seaworthy and fit for the business in which it was employed, where the seams were so .mproperlv calked that they opened and admitted water into the hold when the boat was rocked by a slight swell from a passing steamer; the defect being one which could have been discovered by ex- amination. Nord-Deutscher Lloyd vs. President, etc., of Insurance Co. of North America, 110 Fed. Rep. (U. S.) 420.