
    THE SHEAF STEAM SHIPPING COMPANY, LTD. v. THE UNITED STATES
    [No. 531-57.
    Decided May 7, 1958.
    Plaintiff’s motion for rehearing overruled July 16, 1958]
    
      
      Mr. Wilbur E. Dow, Jr. for the plaintiff. Mr. William J. Troy was on the brief.
    
      Mr. Justin S. Colin, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.
   Madden, Judge,

delivered the opinion of the court:

The Government has filed a motion to dismiss the plaintiff’s petition on the ground that it appears on the face of the petition that the plaintiff has failed to state a claim upon which relief can be granted.

The plaintiff’s suit is for the refund of $1,184.07 which it paid to the United States on account of certain “desirable features” present on a ship which the plaintiff bought from the Government. The sale and delivery of the ship took place in 1947. The United States Maritime Commission was the agency of the Government which was entrusted with the task of selling surplus Government ships under the Merchant Ship Sales Act of 1946, 60 Stat. 41, as amended; 62 Stat. 1199, 60 U. S. C. App. 1735 ff. An introduction to some of the “desirable features” problems which arose under the statute may be found in A. H. Bull Steamship Co. v. United States, 123 C. Cls. 520.

The contract of sale between the Government and the plaintiff stated' that the purchase price of the ship was $544,506.00; that this was the “floor price” of the ship, according to the statute; and that if, upon a survey of the ship, it should be determined that the ship lacked or contained desirable features as defined in the statute, the price should be decreased or increased, as appropriate. In addition to the contract of sale, a bill of sale dated the same day, April 22, 1947, was delivered by the Government to the plaintiff. The plaintiff took possession of the ship; the $544,506.00 was paid.

More than four years thereafter, in October 1951, the United States Maritime Administration, which had succeeded to the functions of the Maritime Commission, sent the plaintiff a bill charging it $2,200 for a 50-ton boom, the bill saying that the usual boom on such ships was a 15-ton boom, and charging $2,235.03 for living quarter? in the poop deck bouse. Tbe bill gave tbe plaintiff credit in tbe amount of $3,250.96 for tbe absence of a gyro compass and associated equipment, wbicb left a net amount of $1,184.07 charged against tbe plaintiff.

Tbe bill was sent the plaintiff on October 2, 1951. On October 22, tbe plaintiff acknowledged receipt of tbe bill and said “After a lapse of over 4 years, we consider your demand unreasonable.” Tbe rest of tbe letter seems to show that the delay, and tbe intervening devaluation of the British pound from $4.80 to $2.80 was what made the demand unreasonable. Tbe letter did not deny tbe contractual obligation to pay for desirable features, nor deny that tbe heavy boom and tbe poop deck living quarters were desirable features. Tbe Maritime Administration on November 16 answered tbe plaintiff’s letter and explained tbe delay. The plaintiff on November 20 thanked tbe Administration for that letter and paid tbe $1,184.07. No protest of tbe charge except as noted above was made until May 24,1955.

Tbe plaintiff, in tbe sixth paragraph of its petition, says that tbe Government, “notwithstanding due demand made upon it and in breach of its obligations under tbe contract” has refused to refund the $1,184.07 to tbe plaintiff. A copy of the contract is attached to tbe petition as an exhibit. Tbe plaintiff apparently expected tbe court to examine tbe contract and find in it some provision, wbicb, in connection with the other facts recited above, would entitle it to recover its $1,184.07.

We do not understand that the plaintiff raises tbe question of tbe order in which the various items entering into the computation of tbe selling price of its ship should be considered. Since tbe plaintiff is a British corporation, tbe formula applied to a citizen purchaser in the Bull case, supra, is not applicable to it. Esso Nederland N. V. v. United States, 138 C. Cls. 451, Westfal-Larsen & Co., A/S v. United States, decided this day ante, p. 306.

In its reply brief tbe plaintiff says that upon a trial it will undertake to prove that tbe items for wbicb it was charged as desirable features were defense items wbicb could not be charged for. Most of the extra features placed on ships built for the Government in war time had to do with defense, as did the extra heavy boom and the poop deck housing here in question. Extra features such as guns and armor would not be desirable for merchant fleet operation and could not be called desirable features. Others, advantageous in fact for merchant fleet operation, but not present on the standard ship, would be desirable features within the meaning of the statute. The fact that the Government put them on the ship to improve its war time effectiveness is irrelevant to the question of their peace time desirability.

The plaintiff mentions in its brief, though not in its petition, the Maritime Commission’s bill of sale to it. We consider it as if it had been attached to the petition. In oral argument, much was made of the fact that the bill of sale made no mention of the desirable features provision of the contract of sale. There is nothing in the argument. The bill of sale is the title document, necessary for the purchaser in order to register the ship or to sell or mortgage it. What the purchaser paid for it, and whether he paid cash or promised to pay later, and whether he made other promises such as to pay for desirable features, are matters irrelevant to the title, unless the vendor reserves a lien to secure the performance of such promises. There was no intention to reserve a lien to secure payments for the desirable features when they should later be determined, and their mention in the bill of sale would have been improper and confusing.

The Government urges that the plaintiff may not recover because of the doctrine of voluntary payment. We do not find it necessary to decide that question.

The defendant’s motion is granted and the petition is dismissed.

It is so ordered.

Laramore, Judge; Whitakee, Judge; Littleton, Judge; and Jones, Chief Judge, concur.  