engaged, but the rule has been long established in the accounting offices that where there is a specific appropriation for a particular object that appropriation is exclusive, although there may be another appropriation which would, but for the existence of the special appropriation, be available for the purpose. But if there were any doubt upon the subject the fact that this construction, limiting the payment of the expenses of navy officers and men to the appropriation expressly made for that purpose, has been followed for many years, would be sufficient to require that it be followed until further legislation on the subject is passed by Congress, unless it should appear that the prevailing construction was clearly wrong. The Superintendent's question must, therefore, be answered in the negative. Respectfully, yours, EDW. A. BOWERS, The SECRETARY OF THE TREASURY. IN RE CLAIM OF E. B. TOWNSEND FOR DEMURRAGE. The accounting officers have jurisdiction to settle claims for compensation in the nature of demurrage where there is no express agreement, as well as in cases of demurrage proper where the liability arises ex contractu. In the absence of an express agreement to pay demurrage the United States are liable therefor as upon an implied contract, the amount to be ascertained in accordance with the custom of the port where the liability arises. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, September 24, 1895. The claimant appeals from the decision of the Auditor for the Navy Department, allowing in part, only, his claim for demurrage for the detention of the barge Moonbeam while discharging coal on the U. S. S. Wabash and Passaic in accordance with the terms of his contract No. 1088, of September 7, 1894, and as per the terms of a bill of lading and the custom of the port of Boston. The amount claimed is for eight days, at $35.64 per day, or a total of $285.12. The Auditor has allowed the sum of $80, or at the rate of $20 a day for four days. The bill of lading, among other things, provides: "And twenty-four hours after the arrival at the above-named - port and notice thereof to the consignee named, there shall be allowed for receiving said cargo at the rate of one day, Sundays and legal holidays excepted, for every one hundred and fifty tons thereof; after which the cargo, consignee, or assignee shall pay demurrage at the rate of six cents per ton a day, Sundays and legal holidays not excepted, upon the full amount of cargo, as per this bill of lading, for each and every day's detention, and pro rata for parts and portions of a day, beyond the days above specified until the cargo is fully discharged; which freight and demurrage shall constitute a lien upon said cargo." From the letter of T. J. Winsor, corroborated by that of Pay Inspector George A. Lyon, in charge of the Navy pay office at Boston, it appears that this demurrage clause states the custom of the port of Boston, which includes the United States navyyard there, and that vessel owners would expect to collect demurrage in accordance therewith, whether printed in the bill of lading or not. The Paymaster-General of the United States Navy, by letter of March 7, 1895, to the Auditor, reports the following indorsement of the commanding officer of the Wabash, concurred in by the commandant of the yard: "Respectfully returned with the report that in my opinion there were facilities on the Moonbeam for discharging 150 tons of coal per day." The question as to the jurisdiction of the accounting officers in the settlement of claims for demurrage is no longer an open one, although in cases where the contract does not specifically provide the rate of payment for demurrage it might not be unreasonable to regard the claim for the detention of a vessel as one for unliquidated damages arising from the breach of an implied contract (Wordin v. Bemis, 32 Conn., 268-273); yet, in view of the decisions of the Second Comptroller's Office as early as 1848, the opinion of Attorney General Cushing (6 Opin. A. G., 285), and decisions of the Supreme Court, it is clear that the accounting officers properly have jurisdiction in cases of claims for compensation in the nature of demurrage where there is no express agreement to pay demurrage, as well as in cases of demurrage in the strict sense of the term, to wit, when it arises ex contractu. The Supreme Court has held that demurrage may arise either as a matter of contract or not, as demurrage is merely an allowance for the delay or detention of a vessel for which a fair compensation is to be allowed and measured as in cases ex delicto; that no fairer rule can be adopted than that which founds itself upon mercantile usage and fixes the recompense upon all the circumstances attending the earnings and expenditures in similar circumstances. (The Apollon, 9 Wheat., 362-377; Clandaniel v. Tuckerman, 17 Barber, 184.) In cases, however, where the contract is silent on the subject of demurrage the burden is on the libellant to show some negligence in the consignee or that the customary period was exceeded, said customary period being impliedly a part of the contract. (Riley v. A Cargo of Iron Pipes, 40 Fed. Rep., 605.) From the papers submitted in this case the claimant has shown that the usage of the port of Boston is to charge 6 cents per ton on the amount of tonnage for each day's detention beyond the lay days. He has also shown that his vessel, by the admission of the naval officers, was capable of discharging 150 tons per day. He did not discharge this amount, both because of the insufficient number of men upon the United States vessels to be coaled and because of the bad weather, Captain Kantz, commanding the Wabash, stating: "As the coal was bituminous and was to remain a long time in the bunkers, I did not deem it safe to take it on ** board in wet weather." Four days and thirty-five minutes time was lost on account of the stormy weather, and the balance of the eight days claimed on account of the insufficient force of men handling the coal on the United States vessels. There is nothing in the contract providing that the coal should not be delivered during stormy weather, and certainly the claimant was not responsible for the insufficient number of men on the United States vessels. I am unable to see any reason for allowing $20 per day as demurrage, as the Auditor has done in this case. The claimant, if entitled to any demurrage at all, has a good claim for the sum determinable in accordance with his bill of lading and the custom of the port. As it clearly appears, both by the bill of lading and by the custom of the port, that the claimant is entitled to the amount claimed by him, to wit, $35.64 per day, I must reverse the decision of the Auditor and have allowed claimant this amount for the eight days of detention shown by him to have been occasioned by no fault or negligence on his part. EDW. A. BOWERS, IN RE CLAIM OF J. N. KNOWLES FOR DEMURRAGE. The head of an 'Executive Department may, when not prejudicial to the interests of the Government, or for its benefit, alter or modify the terms of a contract made under his direction, but his subordinates may not take such action without express authority from him. The terms of a written contract are not varied by the clerical error of a subordinate officer of the. Navy Department so as to entitle a contractor, who did not insist upon his rights under the contract, to compensation in the nature of demurrage for delay caused by the error. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, September 27, 1895. This is an appeal from the decision of the Auditor for the Navy Department disallowing a claim for four days' demurrage, at $100 per day, while discharging coal from the steamer America at Sitka, Alaska, in accordance with the agreement of March 8, 1894, made with the United States Navy pay office at San Francisco by direction of the Navy Department. The Auditor, on February 26. 1895, disallowed this claim upon the following grounds: "It is shown by a letter from the Paymaster-General, herewith filed, that the change in date was not intended as a formal modification of the terms of the contract, and that it was not in the interest of the Government and it does not appear that the Government in any way profited thereby." By the terms of his contract he agreed to furnish— "Three thousand tons best Comox coal in Sitka Harbor, deliverable from the ship's tackles as desired, at the rate while discharging of not less than two hundred tons per day, if required, the coal to be ready for delivery to naval vessels in that port by the first of May, 1894. In case the whole cargo shall have not been delivered directly to the naval vessels by the 25th May, 1894, the remainder shall be delivered on the Government's wharf at Sitka, under the direction of the senior naval officer at that port at the rate of not less than two hundred tons per day." This contract was signed by Knowles, and he was provided with a copy of it. In a letter from the Bureau of Equipment to the commanding officer of the U. S. S. Pinta, at Sitka, Alaska, under date of April 18, 1894, in reference to this contract it was stated that "In case the whole cargo of 3,000 tons shall have been not delivered to the naval vessels by the 5th of June, 1894, the remainder shall be delivered on the Government's wharf at Sitka under the direction of the senior naval officer at that port, at the rate of not less than 200 tons per day." It will be observed that this letter varies the date upon which the claimant might discharge whatever coal was left on his vessel, the America, upon the wharf at Sitka from May 25 to June 5. The facilities on board the America are shown to have been wholly inadequate for discharging 200 tons per day, the amount called for by the contract, the average for the entire time having been but 110 tons a day, although "every facility was afforded the captain of the America for discharg ing the coal" according to the contract, by the naval author. ities. During the period between May 25 and June 5, inclusive (eleven days), 466 tons of coal were in fact delivered from the America to United States vessels, which saved her a little over four days of time that would have been required to deliver this amount at the wharf, basing this calculation upon the average delivery per day, 110 tons. During this time, also, two Sundays and one holiday intervened. Deducting these seven days from the eleven days of the alleged change of contract, the claimant accordingly asks for demurrage for four days at the rate of $100 per day, as being the customary rate on a vessel of the tonnage of the America in accordance with the commercial usage of that coast. This claim the naval authorities have approved for settlement by the accounting officers of the Treasury. As stated in my decision of September 24, 1895, ante, p. 179, concerning demurrage in the case of E. B. Townsend, the jurisdiction of the accounting officers to pass upon claims for compensation in the nature of demurrage arising out of an implied contract is clear, as well as in cases of demurrage proper, e. g., those arising ex contractu. When, however, the contract is silent on the subject of demurrage the claimant must show negligence on the part of the consignee or that the consignee exceeded the customary period without fault on the claimant's part. (Riley v. A Cargo of Iron Pipes, 40 Fed. Rep., 605.) In this case it is shown that the America had not the facilities for dis. charging the amount of coal per day called for by the contract; that, in fact, she did not complete her delivery upon the wharf until June 29, so that upon that ground the claimant's right to recover demurrage may well be questioned. But we need not investigate this branch of the case further, |