price of lumber delivered by the Camp & Hinton Co. or its receivers under W. O. 6728, dated May 29, 1907, as liquidated damages accruing on account of delays in the delivery of said lumber. The auditor disallowed said claim for reasons stated as follows: "On May 24, 1907, Camp & Hinton submitted a proposal to furnish and deliver about 10,000,000 feet of lumber to the Isthmian Canal Commission at Colon. The proposal was accepted May 29, 1907, by W. O. 6728 for delivery at Colon within 180 days from date of acceptance. Receipt of acceptance was acknowledged June 1, 1907, by claimant company. Claimant failed to deliver the lumber within the time specified, for which liquidated damages were deducted in accordance with article 2 of the contract forming part of the proposal. "It appears that claimant acquiesced at the time in the deductions for which it now makes claim; that said deductions were made in accordance with the terms of the contract as understood by the parties thereto; that vouchers covering amount due claimant less such deductions were by said claimant certified to be correct and just; and that payment of said vouchers was accepted without objection." By proposal dated March 24, 1907, the Camp & Hinton Co. offered, subject to the terms and conditions contained in a form of contract thereto annexed, to furnish and deliver at Colon, Isthmus of Panama, at unit prices not here in question, large quantities of different classes of lumber aggregating some $184,275 in value, delivery thereof to be completed within 180 days from notice of award. One of the "terms and conditions" of the annexed form of contract was that if delivery was not completed within the time agreed upon for such delivery the commission would be damaged by the delay at the rate of onetenth of 1 per cent of the value of the lumber not so delivered for each day of delay, and the contractor agreed to pay damages at this rate for each day of delay not due, as determined by the commission, to "strikes, acts of God, or public enemies." By W. O. 6728, dated May 29, 1907, the commission accepted the proposal thus described, advising the Camp & Hinton Co. that "In accordance with your proposal dated May 24, 1907," delivery at Colon "is to be made at the earliest practicable date, but in any event not later than one hundred and eighty (180) days from May 29, 1907." The Camp & Hinton Co. delivered one small cargo of lumber on July 20, 1907, but the contract time expired on November 25, 1907, without further deliveries having been made. It appears that the failure of the Camp & Hinton Co. to make further deliveries during the contract period was occasioned by a lack of funds, which finally resulted, sometime in November, 1907 (exact time does not appear), in the appointment of receivers to administer its affairs for the benefit of its creditors. The receivers appointed by the local courts thereafter undertook to complete its outstanding contract with the Canal Commission, and the final lot of lumber thereunder was delivered by them on February 3, 1908, other deliveries having been made on December 29, 1907, January 15, 1908, and January 29, 1908. From the contract price of the lumber delivered by said receivers after November 25, 1907, deductions were made, in accordance with the terms of the original agreement, for each day of delay in such deliveries not shown to be due to any of the excusable causes. The deductions so made amounted in the aggregate to $3,383.04. Said receivers now make claim for the sums so deducted. They base their claim on two contentions: First, that the whole delay was due to the "panic" conditions prevailing in 1907, which made it impossible for the Camp & Hinton Co. or for them to obtain promptly the necessary funds or credit for carrying out the contract, it being argued that the money panic of 1907 was, in effect, "a public enemy within the meaning of that term as used in the contract. This contention possesses the one merit of novelty but that is about all that can be said for it. The term "public enemy," as used in this contract, is and for a long time has been quite universally understood as having reference to a "national enemy," i. e., to a power at war with the home country. The phrase "delays due to act of public enemies" was used and meant in this sense, i. e., delays caused by the act of some nation at war with the United States. A panic, whatever its injurious results, certainly would not come within the accepted meaning of the term, "a public enemy." (Gulf C. and S. R. Co. v. Levi, 12 S. W. (Tex.), 677; Lewis v. Ludwick, 6 Cold. (Tenn.), 368.) Second, it is contended that after the appointment of receivers, there was some delay on the part of the court in ordering them to continue with this contract, and that as they had no authority to proceed without such order there was a delay quite beyond their power or control, for which they, as the contractor's representatives, should not be held liable. With respect to this, it may be said that the receivers fail to show either the date of their appointment as such, the terms of the order appointing them, or the date of the order directing them to carry out and complete this contract. They thus fail altogether to show any specific delay on the accounts alleged. But quite aside from this view of the matter, the receivers elected, with the court's permission, to carry out and complete the contract. They stepped, in other words, into the Camp & Hinton Co.'s shoes, accepting all the benefits and assuming all the corresponding liabilities of that company's undertaking. Had they not completed the contract, the Camp & Hinton Co.'s bondsman would have been compelled to do so, or bear the added cost, if any, incident to its being otherwise completed. A delay by said receivers, or by the court acting for them or the defaulting company, was a delay by the contractor, and for all delays not excusable under the contract terms they, as the contractor's legal representatives, were properly charged with damages at the agreed rate. The auditor's action is affirmed. SHORE DUTY BEYOND SEAS-ALLOWANCES AND LEAVE PAY INCIDENT THERETO. When a naval officer on sea duty is ordered to certain duty on shore beyond seas, which duty is described in his orders as being additional but which, in fact, requires his attention to the exclusion of all other duty, he is to be regarded, for purposes of pay and allowances, as being on shore duty beyond seas and entitled to commutation of quarters and reimbursement of expenses of heat and light during the period of such duty, A naval officer granted leave of absence from shore duty beyond seas is entitled to the additional pay provided for such duty while en route to the United States and during the period of his return therefrom to his post of duty, but is not entitled to such pay while in the United States. Decision by Comptroller Downey, March 9, 1915: H. O. Stickney, captain, United States Navy, applied February 10, 1915, for revision of the action of the Auditor for the Navy Department in disallowing, by settlement No. 22568, dated January 26, 1915, his claim for commutation of quarters and for heat and light allowance from May 25, 1914, to October 31, 1914, while, as a commander in the Navy, he was acting as collector of customs (or administrator of customs) of the port of Vera Cruz, Mexico; and also for the difference between sea pay or pay for shore duty beyond seas, and shore pay, that was checked in his case from July 12, 1914, to July 23, 1914, and from July 30, 1914, to August 31, 1914, during which periods he was on leave, for the greater part thereof in the United States. Capt. Stickney left it for the auditor to determine whether the period involved in his claim for commutation of quarters and for heat and light allowance should be regarded as beginning on April 23, 1914, or on May 25, 1914, and that officer, as before indicated, treated the period of the claim as beginning on May 25, 1914. The papers in this case appear to establish facts as follows: On April 23, 1914, while the appellant was on duty as commanding officer of the U. S. S. Prairie, then lying in the harbor of Vera Cruz, Mexico, orders were issued to him as follows: "Subject: Additional duty as collector of customs of the port of Vera Cruz, Mexico. "1. In addition to your present duties, in command of the Prairie, you will act as collector of customs of this port (administrador de aduana). "2. This duty, in addition to the duty proper of collector of customs, includes that of the captain of the port, in accordance with Mexican law. "3. You will endeavor to administer the duties of your office as nearly as practicable in accordance with the existing laws of Mexico, except where this would result to the probable prejudice of the local military operations of the United States; all cases of the latter class refer to me for a decision. "4. Merchandise and funds in the customhouse and its warehouses will be guarded carefully, intact, until further decision as to the disposition thereof. "5. Assistants will be ordered to report to you to perform the duties of treasurer of customs and of captain of the port, as well as sufficient yeomen and other enlisted men to perform the various duties coming under the collector of customs. "(Signed) F. F. FLETCHER, "Commanding United States Naval Forces on Shore." Commander Stickney immediately entered on duty as collector of customs and took an oath of office as such. From April 23, 1914, to and including May 25, 1914, he retained his quarters on board the Prairie, or at least slept each night on board that vessel, but performed no duty whatever thereon. In the meantime the following orders were issued to him: 66 "UNITED STATES ATLANTIC FLEET, Subject: Prairie making trip to Hampton Roads and return. แ "1. Under directions from the Navy Department, the Prairie will make a passage to Hampton Roads, leaving Tuesday, May 26, 1914, to take short-time men north and return to Vera Cruz with a number of men for the fleet. "2. As you have the important duties of administrator of customs and captain of the port at Vera Cruz, Mexico, you will be directed to remain at Vera Cruz and may retain with you such officers and enlisted men as are doing duty in the customhouse and whose services are actually required. "3. You and the officers you retain must secure accommodations either ashore or on some of the ships of the fleet. Enlisted men will be detailed to the Vestal, to be rationed as supernumeraries. "(Signed) CHAS. J. BADGER.” On May 26, 1914, the Prairie sailed from Vera Cruz for various ports of the United States, and it appears that said vessel was absent from Vera Cruz a considerable part of the period from that date to October 31, 1914. On May 25, 1914, Commander Stickney requested the military governor of Vera Cruz, in writing, to be assigned to public quarters, if any such were available, and his request bears an indorsement signed by order of the military governor and dated September 26, 1914, to the effect that no public quarters had been available for him from the date of his request. Under date of October 20, 1914, the Navy Department issued orders addressed to Commander Stickney, as administrator of customs, and reading as follows: "1. You are hereby detached from duty in command of the Prairie; will continue on your duties as administrator of customs and captain of the port at Vera Cruz, Mexico. "2. This employment on shore duty beyond the seas is required by the public interests. "FRANKLIN ROOSEVELT, Acting." The orders above quoted were forwarded to the appellant through official channels, and were received by him on October 31, 1914. It should also be stated that it appears that the appellant availed himself of leave of absence on July 12, 1914; that he arrived in the United States on leave July 14, where he remained until August 24, when he sailed on his return voyage to Vera Cruz; and that his leave expired on August 31, 1914. From July 23, 1914, to July 30, 1914, he was on temporary duty in Washington, D. C. The primary question involved in this appeal, which, accordingly, is first for determination, is as to the duty status of the appellant from April 23, 1914, to October 31, 1914—that is, whether, during that period, exclusive of so much thereof as he spent in the United States, he was on sea duty or on shore duty, incidentally shore duty beyond seas. It will be seen that on April 23, 1914, the date of the order assigning the appellant to duty as collector of customs, he was in command of the Prairie, and consequently on sea duty; and the auditor in settling the claim here involved held that he continued in a seaduty status during the entire period from the date last mentioned to October 31, 1914, except the period of his leave. The auditor based |