De La Rama S.S. Co., Inc. v. United States. The Dona Aurora ( 1953 )

CHASE, Circuit Judge.

The motor vessel, Dona Aurora, was delivered to the War Shipping Administration on April 1, 1942, by the appellee, its owner, in accordance with an understanding that a time charter would be executed and that was done on April 24, 1942. The charter was for about a year and the vessel was valued at $1,500,000 for which amount a War Risk Insurance binder was issued in March and delivered to the owner on May 9, 1942.

On May 20, 1942, the War Shipping Administration gave the owner notice of its requisition of the vessel “for use under time form charter,” further advising that:

“Requisition charter in form set forth in Federal Register of May 16, 1942 together with rates and insurance valuations contained in General Order 8 and 9 published Federal Register May 16, 1942 will be tendered you as soon as possible. Please advise immediately whether you desire to have these rates and valuations made effective as of time of delivery under current charter, * * *.”

As the result of steps subsequently taken by the parties, a war risk insurance binder was issued under which the War Shipping Administration insured the vessel from the time of her delivery to it to the termination of the charter to the amount of just compensation to be determined in accordance with Section 902 of the Merchant Marine Act of 1936, as amended.¹

Though the requisition charter was not executed until March 18, 1943, it was made effective as of the date of the delivery of the vessel, April 1, 1942. The vessel was sunk by the enemy on December 25, 1942, and became a total loss. Efforts to secure an adjustment of its insurance claim having been unsuccessful, the owner filed this libel on December 22, 1944, pursuant to Section 225 of the Merchant Marine Act of 1936 as amended. See Section 1128d of Title 46 U.S.C.A.²

Before hearing on the merits there was a re ference to a commissioner to determine and report the amount of just compensation for the loss of the vessel. The appellant urges that this reference in advance of trial was error. But since a reference for the purpose of determining just compensation was a permissible exercise of discretion under the Admiralty Rules of the Supreme Court and since the subsequent trial of the issues has shown that the determination of just compensation was necessary, the appellant has not shown itself to have been harmed by the order of reference.

The commissioner returned values as of the date of the delivery, April 1, 1942, and as of the date of the sinking; but as the parties are now in agreement that the date of the sinking is the critical date we shall confine ourselves to that valuation. The commissioner found the fair value of the vessel on that date to be $2,082,000 and Judge I. R. Kaufman in the district court confirmed that. The decree was for that less $1,000,000 which had been paid, plus the stipulated value of the consumable stores lost, plus interest at four per centum from the date of the filing of the libel to the date of the decree. The United States appealed and both parties filed assignments of error. The appellant now insists that the vessel was valued on an improper basis which made the amount too high; and that there was a failure to exclude enhancement on account of the causes necessitating the taking or use, as required by Section 902(a) of the Merchant Marine Act of 1936 as amended, 46 U.S.C.A. § 1242(a). The appellee contends that a duplication of deduction for depreciation and the failure to include interest from the date of the loss as part of just compensation determined . in accordance with Section 902 made the value as found too small.

The vessel was one of three sister ships which were built at Trieste, Italy for the libellant, a Philippine corporation, and was delivered to her owner on October 4, 1939. Her total cost was $904,360 and in September, 1941, a gyroscopic compass was added to her original equipment at a cost of $18,-363. She was a cargo vessel constructed under the supervision of Lloyd’s surveyors and was given Lloyd’s highest classification. She was registered in the Philippines and flew the American and Philippine flags in her regular service between Philippine and Far East ports and the United States, having made six or seven round trip voyages before she was delivered, in first class condition, to the War Shipping Administration.

Her overall length was 439.4 feet, breadth 57.7 feet and depth 37 feet. Her certified dead-weight capacity was 8920 tons, her bale cubic capacity was 445,000 cubic feet and her certified loaded speed was 14.2 knots with 5200 brake horsepower, diesel. She had five holds, five hatches, two decks (with a third deck in No. 1 compartment) two masts, four Kingposts, electric winches, transverse framing and was of riveted contruction.

In determining value there are, unfortunately, no inflexible rules ready at hand and easily applied. Cf. United States v. Toronto, Hamilton &. Buffalo Navigation Co., 338 U.S. 396, 70 S.Ct. 217, 94 L.Ed. 195. But where what is to be valued is bought and sold in the ordinary course of business, the market price thus established by willing buyers and sellers it is to be taken as the measure. The Petar [Ozanic v. U. S.], 2 Cir., 165 F.2d 738, 740.

There had been sales of comparable vessels between May, 1942, and August, 1943, when the Maritime Commission had sold to American interests eighteen of its type C-1B ships, at an average price of $1,129,-236,- for operation on designated trade routes as authorized by Title 46, Sections 1151-1153, 1156 and 1212 U.S.C.A., but we do not think those sales established a market price which should be used here. They were restricted in accordance with the subsidy agreements under which the vessels were constructed and were made at about half what it cost to build them in consideration for substantial limitations upon the purchaser’s right to use and dispose of them, including a limited right to compensation if they were requisitioned. That was a controlled market which was the result of the use of subsidies, and the sale price of a new ship at about half what it had recently cost the seller to build her seems far from being a fair equivalent of a market price established by ordinary business dealings at arm’s length. As the judge remarked “If the Government had been giving ships away to a limited group of American shipping companies for use in the foreign trade subject to restrictions aforestated, which would not have been an unlikely procedure, surely it could not come in now and say that similar type requisitioned ships (not so given or limited in use) had no value based on an established ‘market.’ ”

The appellant seeks to support its contrary conclusion by National Bulk Carriers, Inc., v. United States, 3 Cir., 169 F.2d. 943. The construction and sales of those tankers by the Maritime Commission were, indeed, regulated and controlled and in that sense no free market and resulting market price were shown, but other considerations made the sales prices fairly reflect actual market value, among them the fact that all the vessels were sold for the final actual cost to the Commission as determined by it. On the whole the Commissioner in that case concluded that actual sales in considerable numbers had been made of the tankers by a willing seller to willing purchasers to establish á market for comparable vessels at a price to be taken into account in determining just compensation for the vessel lost, and the court agreed. But, even though a considerable number of sales at prices which reflect fair value, save only what might have been a fair profit for the builder, may establish what is an acceptable guide to indicate a fair, free market price, we think such a situation should be distinguished from that here where the builder sold for about half its cost of construction.

Moreover, it appears that in the fall of 1941 the Maritime Commission sold two C-1B vessels without subsidy restrictions at their full construction cost of $2,247,-054.61 each and in January 1942 another on like terms at $2,217,216.88. Though not enough vessels were thus sold to establish a market they were much more nearly the kind of sales which were the basis for the decision in the case just mentioned.

Absent a market price to use as a yardstick, it was proper to turn to other relevant factors. United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336. The commissioner did that. He found that the net earnings of the vessel in 1940 were $136,576.72 and in 1941 $412,894.03, the only two full calendar years in which she was operated before this country entered the war. For three months after her use was requisitioned, the British Ministry of War Transport operated her under a sub-charter at a daily hire more than twice what was paid the libellant. Her earning ability was thus shown to be good though the amount should have been, as it was, considered in the light of the abnormal conditions prevailing. The commissioner found that when she was delivered to the libellant she was valued for insurance at $1,500,000 and, as has already been noted, that was her valuation under the first War Shipping Administration charter, although the libellant subsequently tried to have it increased to $2,000,000 and succeeded only in getting permission to place additional insurance on its own account. It then did so but discontinued it because of the high premium rates. A sister ship was, however, appraised for insurance in January 1942 at $1,960,000.

The factor given most weight in determining just compensation was the domestic reproduction cost on a multiple ship basis as of the date of loss in 1942 less depreciation. The argument of the appellant that it was erroneous to do that without giving consideration to foreign reproduction costs is adeqxmtely met by the fact that there was, as the commissioner reported, “no reliable evidence as to foreign costs during that period and if the Dona Aurora could have been sold, she necessarily would have been sold in the United States. The Petar, 165 F.2d 738, 1948 A.M.C. 340.” Reconstruction cost less depreciation is an accepted guide to lead the way to the determination of the value of a vessel when market value cannot be shown. Standard Oil Co. of New Jersey v. Southern Pacific Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890; United States v. Eastern S. S. Line, Inc., 1 Cir., 171 F.2d 589; The Petar, supra; The Hisko, 2 Cir., 54 F.2d 540.

Recognized experts were.called by each party and testified in considerable detail as to the estimated domestic cost of reproducing the Dona Aurora on a multiple ship basis as of December 25, 1942, and as to the proper rate of depreciation to be applied in determining value. The estimated costs of reproduction ranged between $2,-390,000 and $2,580,000, and the rates of depreciation varied between 2%% and 5%. The commissioner found the cost of reproduction on the date of the loss, used a 3%% rate of depreciation, and, after making adjustments for the cost of the gyroscopic compass and the cost of repairing minor marine damage not covered by the war risk policy, arrived at an “adjusted figure” for the date of loss of $2,222,171. He then gave consideration to that figure and, as his report states, to “the general characteristics of the Dona Aurora, her earnings prior to requisition, the various insurance valuations placed on the vessel as well as on her sister ships, and all the relevant facts before him on this matter, including the uncertainties of the pending war and the depressive effects of Government controls on shipping” and found that the fair market value of the vessel on December 25, 1942 was $2,082,000. He also reported specifically that no part of that sum “represents enchancement by reason of causes necessitating the taking or use of the vessel by the United States of America.” Thus it would seem that he discounted reproduction cost less depreciation by about $140,000 because of the depressing effect of Government controls on shipping.

This overall finding of value is a question of fact which, having been given added weight by its confirmation by the judge after hearing exceptions to the report, should now be given effect unless clearly erroneous. The Petar, supra; Petterson Lighterage & Towing Corp. v. New York Central R. R. Co., 2 Cir., 126 F.2d 992. We find no error in the manner in which this ultimate finding was made. It is significant also that it fairly followed the pattern provided by Rule 3 in the Report of the Advisory Board on Just Compensations to the Director of the War Shipping Administration on December 7, 1943, 1943 A.M.C. 1444.

Nor does ' the appellant have a sound basis for its argument that the valuation was improperly enhanced because of the' Government’s demand for ships. It is hard to see how that element, which would ordinarily enhance the market price, could have been included in a valuation that was not based on market price. The enhancement to be excluded is not the added cost of labor, materials and the like which is an inevitable result of wartime economy but the increase in the price level of such ships as the Dona Aúrora due to the added demand for them because of the need of the Government for that type of ship. United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392. Nothing in this record belies the flat statement of the commissioner that no such enhancement was included in his valuation.

The sum of approximately $140,-000, which we have already referred to as something which the commissioner ' seems to have deducted from reconstruction cost to adjust that with due regard for the depressive effect of Governmental controls, is what the appellee, insists was a double deduction for depreciation. But since the record does not bear out appellant’s assertion no error in that regard appears. Nor can we sustain the appellee in its position in respect to allowance of interest from the date of the loss as a necessary element of just compensation. The acquisition of the use of the vessel by the War Shipping Administration, was followed by a charter which the parties executed, which covered the entire period of the use of the ship, and which contained no provision for the payment of interest. This suit is on an insurance contract complying with the terms of the charter, which provided for the payment of just compensation without any provision for the inclusion of interest as a part of that. Absent such a provision for the payment of interest none is recoverable. New York & Porto Rico S.S. Co. v. United States, 2 Cir., 29 F.2d 1014; National Bulk Carriers, Inc., v. United States, supra. Cf. United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 67 S.Ct. 398, 91 L.Ed. 521; United States v. Goltra, 312 U.S. 203, 61 S.Ct. 487, 85 L.Ed. 776.

Affirmed.

1 . The requisition charter provided in part: “E. War Risk Insurance Valuation

* * * Jfs * $

“Option II. — Just compensation to be determined in accordance with Section 902 of the Merchant Marine Act, 1930, as amended, for any loss or damage due to the operation of a risk assumed by the Charterer under the terms of this Charter to the extent the person entitled thereto is not reimbursed therefor through policies of insurance against such loss or damage.”

Section 902 of the Merchant Marine Act of 1936, as amended, read in relevant part:

“When any property or the use thereof is so requisitioned, the owner thereof shall be paid just compensation for the property taken or for the use of such property, but in no case shall the value of the property taken or used be deemed enhanced by the causes necessitating the taking or use.”

2 . The repeal of this statute did not deprive the court of jurisdiction. De La Rama S.S. Co. v. United States, 344 U.S. 386, 73 S.Ct. 381.