
    FRANCO-ITALIAN PACKING CO. v. THE UNITED STATES
    [No. 50268.
    Decided February 8, 1955]
    
      
      Mr. BoTlmg B. Powell, JV., for the plaintiff.
    
      Mr. Thomas H. McGrail, with whom was Mr. Assistant Attorney General Warren E. Burger, for defendant.
   Lakamoee, Judge,

delivered the opinion of the court:

The plaintiff is seeking compensation for an alleged temporary taking by the defendant of certain of plaintiff’s property shortly after the December 7, 1941, attack on Pearl Harbor. The theory of plaintiff’s claim is that various incidents of interference in plaintiff’s use of its property amounted to a compensable taking under the fifth amendment to the Constitution. It is defendant’s position that any acts of interference to plaintiff’s property rights which occurred were only the consequential result of valid sovereign acts of control and regulation and, therefore, not encompassed by the fifth amendment.

A summary of the facts is as follows: During the pertinent period of time involved in this case, October 1, 1941, to February 15, 1942, plaintiff was engaged in the business of catching, processing, and canning fish. Two of the vessels owned by plaintiff were named the Santa Margarita and the Sea Boy, both of which were ocean-going tuna clippers of United States registry and with crews of 12 men.

In December 1941, the Santa Margarita and the Sea Boy were fishing for tuna in the Pacific Ocean off the coast of Costa Eica.

During the night of December 7, 1941, the military and naval commanders in charge of the defense of the Panama Canal were advised from Washington, D. C., of the extent of the naval disaster caused by the Japanese attack occurring the previous afternoon at Pearl Harbor. These commanders became of the opinion that the next Japanese attack would probably be on the Panama Canal; and they were aware of the disastrous effect such attack would have on the defense of the United States at that time.

Under these circumstances, the United States Navy proceeded to obtain absolute domain over the western approaches to the Panama Canal in order that the presence of any unknown or unidentified, and therefore presumably hostile, forces could be detected and immediate attacks against them be launched. Immediately on declaration of war, the jurisdiction of the 15th Naval District was extended from the Panama Canal Zone and its immediate adjacent waters to an area extending 1,000 miles in all directions and the whole area was named the Panama Sea Frontier.

In the afternoon of December 7, 1941, immediately upon the receipt of information concerning the Japanese attack on Pearl Harbor, a naval scouting force consisting of the gunboat Erie and several destroyers, under the command of Comdr. Andrew B. Mack, Commander, Offshore Patrol, was ordered to sea from Balboa, Panama Canal Zone, to patrol the western approaches to the Canal, and to engage any enemy forces which might be encountered. As were his superior officers, Commander Mack was apprehensive of the possibility of a sneak attack being made on the Panama Canal similar to the one made on Pearl Harbor. His orders from the Commandant, 15th Naval District, contained no mention of boarding or seizing of vessels, but from years of training he assumed he had such right in time of war.

Commander Mack was directly in command of the gunboat Erie. Upon leaving Balboa, he began to intercept radio messages transmitted in secret code. He presumed that they came from tuna clippers, as his direction finder indicated their source to be an area which he knew to be a favorite fishing ground of tuna vessels. It was common practice for companion fishing vessels to signal each other when large schools of tuna were located, and the use of code messages forestalled competitive vessels from coming to the location. The radio messages would have been for any purpose of mutual interest or information between ships of a particular fleet.

It was general knowledge and Commander Mack well knew that Japanese nationals were serving in the crews of the tuna vessels. It was reasonable for Commander Mack to regard the fishing vessels with suspicion. Their secret messages were confusing to United States naval forces, and there was the distinct possibility that any one of the vessels was transmitting information to Japanese forces.

Commander Mack further realized that loyal Americans among the fishing crews could be captured and coerced into providing military information to the enemy, and also that the fishing vessels could be seized, and their fuel oil and other supplies used by Japanese submarines.

These factors, existing only a few days after Pearl Harbor, when the extent and direction of the Japanese activity ,in the Pacific was still unknown, caused Commander Mack to conclude that the presence of the fishing vessels in the area constituted a serious threat to the security of the Panama Canal, and in his capacity as commanding officer of the Offshore Patrol, he determined to take affirmative action with regard to the tuna clippers.

He commenced a program of merely searching the vessels at sea, but found such a procedure was not only impractical, but dangerous. A thorough search could not be conducted, and while a limited search was progressing, the gunboat Erie was required to lie at rest in waters presumed to contain Japanese submarines. The Commander justifiably doubted that fishing vessels would return to their home ports, even though requested to do so, and he finally concluded that all fishing vessels would have to be seized or escorted into Balboa, the closest American port, in order that their departure from the defense areas would be assured, and so that they could be carefully searched for contraband electronic gear and code books, have their radios sealed, and their crews interrogated.

About 5:15 in the morning of December 10, 1941, the Erie came upon the Santa Margarita. The fishing vessel proceeded to leave the fishing ground at full speed. The Erie dispatched an airplane which gave the usual signal to turn back, a dipping of the plane and starting out in the direction in which the fleeing ship was to proceed. Upon the failure of the Santa Margarita to follow this well-known naval instruction, the pilot of the airplane burst a shot across her bow and stopped her flight.

Upon orders of Commander Mack, Lieutenant Commander Sweeny boarded the tuna clipper with a detachment of marines and examined the vessel, its papers and crew. The captain of the Santa Margarita was directed to cease fishing operations and proceed immediately to the port of Puntarenas, Costa Eica, and await further orders. Lieutenant Commander Sweeney wrote the following entry in the log of the Santa Margarita:

The O. S. Santa Margarita has this day been visited by me at 5:15 a. m. December 10 by direction of Commander A. E. Mack, U. S. Navy. I have examined the ship’s papers concerning the vessel and her cargo, produced by the Master which was found by me to be regular and to show that the voyage of the vessel is lawful. The circumstances have been reported to the said Comdr. A. E. Mack, U. S. N., who has directed that the vessel be directed to proceed to Puntarenas, Costa Eica at best speed.
The vessel is accordingly directed to proceed to Puntarenas by direction of the said Comdr. A. E. Mack.

The Santa Margarita proceeded to Puntarenas, remaining anchored there from December 10 to December 26, 1941, where she was convoyed with eight other fishing vessels by a United States destroyer to Balboa, Panama Canal Zone, arriving there December 29,1941.

On the morning of December 14,1941, the Erie came upon the Sea Boy. Lieutenant Commander Sweeny also boarded this ship with a detachment of marines, and examined the vessel, its papers and crew. One Japanese national found aboard was removed to the Erie. Lieutenant Commander Sweeny made the following entry in the vessel’s log:

December 14,1941. The Oil Screw “Sea Boy” has this day been visited by me at 0987 by direction of Commander AE Mack, US Navy. I have examined the ships papers concerning the vessel & her cargo, produced by the master, which were found by me to be in order. There was one Japanese subject on board Malsuuki, Kinichin, Seaman. The circumstances have been reported to the said Comdr. AE Mack who has directed that the vessel be seized (and the Japanese subject be taken off). The vessel is accordingly seized and will be sent into port for adjudication.

Tbe captain of the Sea Boy was advised that his vessel was seized and that he was relieved of his command. Commander Mack then placed a marine detachment, under the command of Capt. James Wilbur, in charge of the vessel to be taken to Balboa. Captain Wilbur made the following entry in the vessel’s log:

14 December 1941 1200+5 Time. By direction of commander A. R. Mack, Commanding U. S. S. Erie the M. S. Sea Boy, U. S. Registry Tima boat of San Pedro California has this date been seized on instructions of the Commandant, 15 Naval District, and has been placed under my charge as prize master with directions to a United States Port for adjudication the Officers and Crew of the prize crew are as follows, namely, Capt. James T. Wilbur, U. S. M. C. prize master, Sgt. Charles W. Thomas. U. S. M. C. prize mate, James M. Gentry S 1/c U. S. N. signal man, Rogert K. Childres pvt U. S. M. C. George Y. Lloyd F. M. 1/c U. S. M. C. Benjamin F. Yeter pvt USMC, Robert A. Glaccum pfc U. S. M. C., Henry R. Hundley pvt USMC, and Stephen W. Pate pvt U.S.M.C.

The Sea Boy was taken to Balboa by Captain Wilbur and his crew, arriving on December 16, 1941.

The Sea Boy and Santa Margarita were not seized or ordered into port for use by the United States, but the action was taken entirely as a defensive measure arising from the exercise of judgment by an officer charged by the United States with the direct duty of defending the western approaches to the Panama Canal from enemy attack.

Prior to either his seizure of the Sea Boy or his ordering the Santa Margarita into port, Commander Mack received no orders to the effect that fishing vessels should be cleared from the offshore waters in the interest of the security and defense of the United States.

On December 14, 1941, Commander Mack received orders from the Commandant, Panama Sea Frontier, to regard fishing vessels and similar craft in offshore water with suspicion, and to search, sink or seize them as justified.

On December 18, 1941, Commander Mack conferred with Admiral Sadler, Commandant, Panama Sea Frontier, who decided and verbally ordered that all fishing operations in the western approaches to the Panama Canal were to be terminated and that all remaining fishing vessels would be brought into Balboa to be inspected and searched and to have their crews interrogated. This order was executed by Commander Mack and his Offshore Patrol.

Admiral Sadler’s order was not made nor executed for the purpose of acquiring vessels for the use of the United States.

When the fishing vessels, including the Santa Margarita and Sea Boy, were brought or came into Balboa, they were placed in the custody of Commander Waite, the Port Director. By about December 18, 1941, there were as many as 30 to 35 tuna vessels in Balboa Harbor. Some of them had voluntarily come into port at the outbreak of war.

During the latter part of December 1941 the Navy decided to requisition some of the fishing vessels. After conversion, they were used as patrol craft and refrigerated supply ships off the Panama Canal Zone. Neither the Sea Boy nor the Santa Margarita were among the vessels requisitioned.

The Sea Boy arrived at Balboa Harbor on December 16, 1941. En route after seizure, the marine detachment was fed from the plaintiff’s stock of food supplies, and the plaintiff’s fuel oil was used to operate the vessel until the fuel was replenished by the Navy at Puerto Armuelles, Panama, on the way to Balboa. Upon arrival at Balboa, the marine detachment was removed, and the Sea Boy was placed in the custody of Commander Waite, the Port Director.

The captain of the Sea Boy was taken to Commander Waite who told him that he would be later advised as to what he was to do, and sent him back to the vessel. The Sea Boy remained at Balboa for four days. During that time, Commander Waite met informally with the various sea captains on the docks each morning. The captain of the Sea Boy testified that Commander Waite stated that there was no need to worry about the spoiling of the fish in the ships because the owners would be paid for a full load of fish, that the boats would be used for Government purposes, and that the crews would be taken to home port by the Navy.

There is no showing that Commander Waite had any authority to represent what the United States would do about compensation for fish, or to determine or state what use, if any, would be made of the vessels by the United States Navy, or anyone else.

On December 20,1941, an unidentified Navy officer called together a number of the captains of fishing vessels, gave them instructions that they were to leave Balboa Harbor with their ships, and return to San Pedro, California, advised them to stay within designated areas to avoid mines and action by patrol craft, and issued them sealed orders to be opened at sea. The sealed orders were to be delivered to the United States Navy upon arrival.

The Sea Boy departed that day, and arrived at San Pedro, California, on January 8,1942. After delivery of the papers to the Navy, the plaintiff’s captain was told by a Navy yeoman that he was free to take the vessel which was then delivered to the plaintiff’s dock for unloading.

Upon the arrival of the Santa Margarita at Balboa on December 29, 1941, her captain was taken to Commander Waite who told him to keep the vessel in port until further orders. The next day the Port Director inquired as to the amount of fish on the Santa Margarita, and thereupon directed the plaintiff’s captain to take fish from two other fishing vessels to make up a full load to return to San Pedro. The captain complied and transferred into his vessel 69 tons of fish belonging to the Van Camp Sea Food Company. The Port Director told the captain of the Scmta Margarita that the Government would pay compensation on the basis of a full load of fish.

Upon completion of the loading on January 4, 1942, the captain was ordered to take the Santa Margarita directly to San Pedro, California, under blackout, arriving there on J anuary 18,1942. Upon unloading, the 69 tons of fish taken aboard at Balboa were delivered to the Van Camp Sea Food Company.

By Executive Order 8970, dated December 11, 1941, 6 F. R. 6417, the territorial waters at and about San Pedro, California, and various coastal waters were established as naval defensive sea areas. It was provided as follows:

A vessel not proceeding under United States naval or other United States authorized supervision shall not enter or navigate the waters of any of the defensive sea areas established hereby except during daylight, when good visibility conditions prevail, and then only after specific permission has been obtained. Advance arrangements for entry into or navigation through or within any of the said defensive sea areas must be made, preferably by application at the appropriate United States Naval District Headquarters in advance of sailing, or by radio or visual communication on approaching the seaward limits of the area.

Upon the arrival of the Sea Boy and the Santa Margarita at San Pedro on January 3, and 18, respectively, the plaintiff began normal preparations for the return of the vessels to sea.

The question presented is whether the actions of the U. S. naval officers shortly after Pearl Harbor in preventing plaintiff’s ships from continuing fishing operations in Pacific Ocean areas west of the Panama Canal amounted to an appropriation of plaintiff’s ships which is compensable under the fifth amendment to the Constitution.

The taking clause of the fifth amendment is only a limitation on the exercise of a preexisting power. The defendant, as the sovereign, possesses the power of eminent domain; i. e., the power to take property for private use without the owner’s consent. This is an inherent power requiring no constitutional recognition. United States v. Jones, 109 U. S. 513; United States v. Carmack, 320 U. S. 230, 241. The exercise of defendant’s regulatory and police powers, war powers or emergency powers in case of imminent peril to the general welfare does not fall within the fifth amendment limitation, although taking of private property often resulted. Miller v. United States, 11 Wall. 268; Juragua Iron Co., Ltd. v. United States, 212 U. S. 297; United States v. Chemical Foundation Inc., 272 U. S. 1; Omnia Company v. United States, 261 U. S. 502; Graham v. United States, 2 C. Cls. 327.

The distinction between an exercise of the eminent domain power that is compensable under the fifth amendment and an exercise of the police power is that in a compensable exercise of the eminent domain power, a property interest is taken from the owner and applied to the public use because the use of such property is beneficial to the public and in the exercise of the police power, the owner’s property interest is restricted or infringed upon because his continued use of the property is or would otherwise be injurious to the public welfare. 1 Nicholas, Eminent Domain, § 1.42 (2) (3d ed. 1950). This does not mean, however, that the taking of property plus the applying of it to the public use in itself is to be a compensable taking under the fifth amendment. This is obvious from the noncompensated cases wherein taxation constitutes a taking of property as does the imposition of fines or forfeitures and the property taken is put to public use.

The control exercised by the IT. S. Navy over plaintiff’s fishing ships was an exercise of sovereign powers not constituting an appropriation of plaintiff’s property for public use.

The evidence conclusively shows that the Sea Boy and Santa Margarita were not seized or ordered into port for use by the United States, but the action was taken entirely as a defensive measure arising from the exercise of judgment by an officer charged by the United States with the direct duty of defending the western approaches to the Panama Canal from enemy attack.

That the commander of the Erie was justified in taking the action he did is best evidenced by the sneak attack on Pearl Harbor plus interception of code messages from the fishing fleet and the very important fact that several Japanese naval officers were removed from certain vessels and one Japanese national was taken from the Sea Boy. The actions of defendant’s naval officers in interrupting the fishing operations of plaintiff’s ships, directing them into port, and finally directing them to leave the Panama Sea Frontier, were clearly emergency actions demanded by the circumstances taken in the national defense, and were completely unrelated to a direct appropriation of plaintiff’s property for public use. The interference in plaintiff’s use of its ships as well as the interference in the use of all other owners whose ships happened to be within the Pacific Sea Frontier at the time was an indirect result of valid actions by the sovereign for which no compensation may be paid. Legal Tender Cases, 12 Wall. 457, 551; Omnia Company v. United States, supra; New Orleans Public Service Inc. v. City of New Orleans, 281 U. S. 682, 687; Erwin & Company v. United States, 24 C. Cls. 187, 127 U. S. 125; Graham v. United States, supra; United States v. Carver, 278 U. S. 294.

The Supreme Court in United States v. Pacific Railroad, 120 U. S. 227, established the rule that the sovereign is immune from liability for confiscation of private property taken by defendant, through destruction or otherwise, to prevent it from falling into enemy hands, or to protect the health of troops, or as an incidental element of defense against hostile attack and is not compensable under the fifth amendment.

The principles underlying the immunity that is the sovereign’s in respect to the taking of private property as the consequences of military measures were set forth as follows in United States v. Pacific Railroad, supra:

The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the [Civil] War, had to be borne by the sufferers alone as one of its consequences. Whatever would embarrass or impede the advance of the enemy * * * were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss. Salus populi is then, in truth, suprema lex. (p. 234)
The principle that, for injuries to or destruction of private property in necessary military operations during the Civil War, the government is not responsible is thus considered established. Compensation has been made in several such cases, it is true; but it has generally been * * * “a matter of bounty rather than of strict legal right.” (p. 239)
* * * the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field, or measures taken for their safety and efficiency * * *. (p. 239)

The Supreme Court reaffirmed these principles of the Pacific Railroad case in its decision in Caltex, Inc. v. United States, 344 U. S. 149; Juragua Iron Co. v. United States, supra.

In a recent case this court has specifically held that consequential losses resulting from the exercise of a sovereign military power are not compensable. Aleutian Livestock Company, Inc. v. United States, 119 C. Cls. 326, cert. den. 342 U. S. 875.

The plaintiff claims its losses for the period from the time the Santa Margarita and the Sea Boy were boarded and directed into port by Navy officers until the time they reached their home port of San Pedro, California, amounting to $22,594.59 and consisting of the following: (1) loss resulting from plaintiff’s inability to use the ships for fishing purposes, computed at a bareboat charter rate; (2) value of fish and live bait allegedly destroyed or jettisoned as the result of the termination of fishing operations; (3) value of fuel, oil, galley supplies, and ice consumed during the period; and (4) salaries paid cooks and radio operators aboard the ships.

None of the property listed above as having been lost to plaintiff was taken physically by naval officers. These losses resulted simply from the action of the Navy in prohibiting fishing in the approaches to the Panama Canal, ordering fishing ships to leave the fishing areas, and finally by ordering the ships from the western Pacific areas back to their home ports. The loss of fishing profits for the fish plaintiff could not catch was an incidence of the naval action. The expenses of the supplies and other equipment used in leaving the fishing areas as ordered and the accidental spoilage of fish and destruction of bait were all consequential results of the naval actions and was not a taking which would be com-pensable under the fifth amendment. Irwin and Co. v. United States, Perry et al. v. United States, 24 C. Cls. 187.

Plaintiff also seeks to establish an appropriation of its ships on tbie basis of certain statements allegedly made by a Commander Waite of the Navy, who was Port Director at Balboa Harbor, into which plaintiff’s ships were ordered. There-is no showing that Commander Waite had any authority to represent what the United States would do about compensation for fish or to determine or state what use, if any, would be made of the vessels by the United States Navy or any one else. The ships at the time were in Balboa Harbor because they were not allowed in the Panama Canal sea area and were waiting to return to San Pedro. Commander Waite was Port Director and as such his duties consisted simply of controlling the harbor traffic. He had no authority to take plaintiff’s ships for public use and had Commander Waite in fact attempted to accomplish such a taking, his attempts would have been ineffective. United States v. North American Company, 253 U. S. 330; Caltex (Philippines), Inc. v. United States, No. 48322, 129 C. Cls. 605. Furthermore, even if Commander Waite had had such authority, there still would not have been an appropriation of plaintiff’s ships. His statements were, at the most, statements of prospective actions. It has been established that a mere declaration of an intention to take, or even a threat to take, cannot constitute a taking under the fifth amendment. United States v. Carver, 278 U. S. 294; Marion and Rye Valley Railway Co. v. United States, 60 C. Cls. 230. Commander Waite’s actions did not constitute a taking, he was not authorized to take plaintiff’s property, and there was no subsequent ratification by his superiors confirming an exercise of proprietary interest. Therefore, such statements by Commander Waite, if they were made, do not establish a taking of plaintiff’s property.

The record conclusively establishes that plaintiff’s property was not appropriated by the defendant for public use, that plaintiff was not deprived of any property by the defendant within the compass of the fifth amendment, and that any of the alleged losses plaintiff may have experienced were the indirect consequences of naval operations for which the defendant is not liable. Therefore, the petition is dismissed.

It is so ordered.

Madden, Judge; Whitaker, Judge; Littleton, Judge; and Jones, Ghief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Roald A. Hogenson, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff is a California corporation with its principal place of business at Terminal Island, San Pedro, California.

2. By an act approved August 11, 1950, 81st Congress, 2d session, 64 Stat. (Part 2) A168, it was provided as follows:

Be it enacted by the Senate cmd Mouse of Representatives of the United States of America in Congress assembled, That, notwithstanding the statute of limitations, jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment upon the claim of the Franco-Italian Packing Company, ((1) on the question of liability of the Government and (2) on the question of the amount of the recovery), for losses sustained as the result of the seizure in December 1941 by the United States Navy of two fishing boats owned by such company, which at the time of the seizure were engaged in fishing for tuna off the Pacific coast of Costa Rica: Provided, That the passage of this Act shall not be construed as an inference of liability on the part of the United States: And provided further, That any action instituted hereunder shall be filed within one year after the date of approval of this Act. [116 C. Cls. XXII.]

3. The plaintiff filed its petition on August 9, 1951. It claims damages in the amount of $22,584.59, and four percent interest, for the alleged taking of two fishing vessels, as follows:

4. During the period pertinent to this claim, the plaintiff was engaged in the business of catching, processing, and canning fish. It operated a plant at Terminal Island, California, and owned and operated three tuna fishing vessels. It also had a 51 percent interest in a fourth tuna vessel, the Magellan. The remaining interest in that vessel was owned by Japanese aliens, and it was manned by a Japanese crew. The catches from the three vessels other than the Magellan supplied about 75 percent of the fish processed and canned in the plaintiff’s plant, with the rest being purchased from independent fishermen.

Of the vessels owned by the plaintiff the Santa Margarita and the Sea Boy are involved in this claim. They were both oceangoing tuna clippers of United States registry, were respectively 112 and 126 feet in length, and had respective carrying capacities of 160 and 185 tons of fish. Each was operated by diesel engines and equipped with a refrigeration system for preservation of fish. Each carried a crew of 12 men.

5. In December 1941 the Santa Margarita and the Sea Boy were engaged in their regular operations, fishing for tuna in the Pacific Ocean about 200 miles off the coast of Costa Pica, Central America. They had left San Pedro, California, on or about October 1,1941.

6. During the night of December 7, 1941, military and naval commanders in charge of the defense of the Panama Canal, were officially advised from Washington, D. C., of the extent of the naval disaster caused by the Japanese attack occurring the previous afternoon at Pearl Harbor, Territory of Hawaii. They were reaffirmed in their belief that the next Japanese move would probably be an attack on tbs Panama Canal, which might delay for several weeks the transfer of United States naval forces from the Atlantic to the Pacific Ocean, and otherwise severely curtail the building up of war potential in the Pacific.

Immediately upon the outbreak of war, the jurisdiction of the 15th Nayal District was extended from the Panama Canal Zone and its immediately adjacent waters to an area extending 1,000 miles in all directions, and the whole area was named the Panama Sea Frontier. It was determined that United States naval forces would immediately obtain absolute domain over the western approaches . to the Panama Canal in order that they could detect the presence of any unknown or unidentified, and therefore presumably hostile force, and attack on sight.

7. In the afternoon of December 7,1941, immediately upon receipt of information concerning the Japanese attack on Pearl Harbor, a naval scouting force consisting of the gunboat Erie and several destroyers, under the command of Comdr. Andrew E. Mack, Commander, Offshore Patrol, was ordered to sea from Balboa, Panama Canal Zone, to patrol the western approaches to the canal, and to engage any enemy forces which might be encountered.

As were his superior officers, Commander Mack was apprehensive of the possibility of a sneak attack being made on the Panama Canal similar to the one made on Pearl Harbor. His orders from the Commandant, 15th Naval District, contained no mention of boarding or seizing of vessels, but from years of training he assumed he had such right in time of war.

8. Commander Mack was directly in command of the gunboat Erie. Upon leaving Balboa, he began to intercept radio messages transmitted in secret code. He presumed that they came from tuna clippers, as his directional finder indicated their source to be an area which he knew to be a favorite fishing ground of tuna vessels. It was common practice for companion fishing vessels to signal each other when large schools of tuna were located, and the use of code messages forestalled competitive vessels from coming to the location. The radio messages could have been for any purpose of mutual interest or information between ships of a particular fleet.

It was general knowledge and Commander Mack well knew that Japanese nationals were serving in the crews of the tuna vessels. It was reasonable for Commander Mack to regard the fishing vessels with suspicion. Their secret messages were confusing to United States naval forces, and there was the distinct possibility that any one of the vessels was transmitting information to Japanese forces.

Commander Mack further realized that loyal Americans among the fishing crews could be captmed and coerced into providing military information to the enemy, and also that the fishing vessels could be seized, and their fuel oil and other supplies used by Japanese submarines.

These factors, existing only a few days after Pearl Harbor when the extent and direction of the Japanese activity in the Pacific was still unknown, caused Commander Mack to conclude that the presence of the fishing vessels in the area constituted a serious threat to the security of the Panama Canal, and in his capacity as commanding officer of the Offshore Patrol, he determined to take affirmative action with regard to the tuna clippers.

He commenced a program of merely searching the vessels at sea, but found such a procedure was not only impractical, but dangerous. A thorough search could not be conducted, and while a limited search was progressing, the gunboat Erie was required to lie at rest in waters presumed to contain Japanese submarines. The Commander justifiably doubted that fishing vessels would return to their home ports, even though requested to do so, and he finally concluded that all fishing vessels would have to be seized or escorted into Balboa, the closest American port, in order that their departure from the defense areas would be assured, and so that they could be carefully searched for contraband electronic gear and code books, have their radios sealed, and their crews interrogated.

9. At about 5:15 a. m., December 10,1941, the Erie came upon the Santa Margarita. Upon orders of Commander Mack, Lieutenant Commander Sweeney boarded the tuna clipper with a detachment of marines, and examined the vessel, its papers and crew. The captain of the Santa Margarita was directed to cease fishing operations and proceed immediately to the Port of Puntarenas, Costa Pica, and await further orders. Lieutenant Commander Sweeney wrote the following entry in the log of the Santa Margarita,:

The O. S. Santa Margarita has this day been visited by me at 5:15 a. m. December 10 by direction of Commander A. R. Mack, U. S. Navy. I have examined the ship’s papers concerning the vessel and her cargo, produced by the Master which was found by me to be regular and to show that the voyage of the vessel is lawful. The circumstances have been reported to the said Comdr. A. R. Mack, U. S. N., who has directed that the vessel be directed to proceed to Puntarenas, Costa Rica at best speed.
The vessel is accordingly directed to proceed to Pun-tarenas by direction of the said Comdr. A. R. Mack.

The Santa Margarita proceeded to Puntarenas, remaining anchored there from December 10 to December 26,1941, when she was convoyed with eight other fishing vessels by a United States destroyer to Balboa, Panama Canal Zone, arriving there December 29,1941.

When the Erie first came upon the Santa Margarita the fishing vessel proceeded to leave the fishing ground at full speed. The Erie dispatched an airplane which gave the usual signal to turn back, a dipping of the plane and starting out in the direction in which the fleeing ship was to proceed. Upon the failure of the Santa Margarita to follow this well-known naval instruction, the pilot of the airplane burst a shot across her bow and stopped her flight.

10. On the morning of December 14, 1941, the Erie came upon the Sea Boy. Lieutenant Commander Sweeney also boarded this ship with a detachment of marines, and examined the vessel, its papers and crew. One Japanese national found aboard was removed to the Erie. Lieutenant Commander Sweeney made the following entry in the vessel’s log:

December 14, 1941. The Oil Screw “Sea Boy” has this day been visited by me at 0937 by direction of Commander AR Mack, US Navy. I have examined the ships papers concerning the vessel & her cargo, produced by the master, which, were found by me to be in order. There was one Japanese subject on board Mal-suuM, Kinichin, Seaman. The circumstances have been reported to the said Comdr. A R Mack who has directed that the vessel be seized (and the Japanese subject be taken off). The vessel is accordingly seized and will be sent into port for adjudication.

The captain of the Sea Boy was advised that his vessel was seized and that he was relieved of his command. Commander Mack then placed a marine detachment, under the command of Captain James Wilbur, in charge of the vessel to be taken to Balboa. Captain Wilbur made the following entry in the vessel’s log:

14 December 1941 1200+5 Time. By direction of commander A. R. Mack, Commanding U. S. S. Erie the M. S. Sea Boy, IT. S. Registry Tuna boat of San Pedro California has this date been seized on instructions of the Commandant, 15 Naval District, and has been placed under my charge as prize master with directions to a United States Port for adjudication the Officers and Crew of the prize crew are as follows, namely, Capt. James T. Wilbur, U. S. M. C. prize master, Sgt. Charles W. Thomas, U. S. M. C. prize mate, James M. Gentry S 1/c U. S. N. signal man, Roger K. Childres pvt U. S. M. C. George Y. Lloyd F. M. 1/c U. S. M. C. Benjamin F. Yeter pvt USMC, Robert A. Glaccum Pfc U. S. M. C. Henry R. Hundley pvt USMC, and Stephen W. Pate pvt U. S. M. C.

The Sea Boy was taken to Balboa by Captain Wilbur and his crew arriving on December 16, 1941.

11. The Sea Boy and Santa Margarita were not seized or ordered into port for use by the United States, but the action was taken entirely as a defensive measure arising from the exercise of judgment by an officer charged by the United States with the direct duty of defending the western approaches to the Panama Canal from enemy attack.

Prior to either his seizure of the Sea Boy or his ordering of the Santa Margarita into port, Commander Mack received no orders to the effect that fishing vessels should be cleared from the offshore waters in the interest of the security and defense of the United States.

On December 14,1941, Commander Mack received orders from tbe Commandant, Panama Sea Frontier, to regard fishing vessels and similar craft in offshore waters with suspicion, and to search, sink or seize them as justified.

12. The Erie remained on patrol until December 18, 1941, when it returned to Balboa escorting some 8 to 12 tuna vessels.

On the same day, Commander Mack conferred with Admiral Sadler, Commandant, Panama Sea Frontier, who decided and verbally ordered that all fishing operations in the western approaches to the Panama Canal were to be terminated and that all remaining fishing vessels would be brought into Balboa to be inspected and searched and to have their crews interrogated. This order was executed by Commander Mack and his Offshore Patrol.

Admiral Sadler’s order was not made nor executed for the purpose of acquiring vessels for the use of the United States.

13. When the fishing vessels were brought or came into Balboa, they were placed in the custody of Commander Waite, the Port Director. By about December 18, 1941, there were as many as 30 to 35 tuna vessels in Balboa Harbor. Some of them had voluntarily come into port at the outbreak of war.

During the latter part of December 1941 the Navy decided to requisition some of the fishing vessels. After conversion, they were used as patrol craft and refrigerated supply ships off the Panama Canal Zone. Neither the Sea Boy nor the Santa Margarita were among the vessels requisitioned.

14. The Sea Boy arrived at Balboa Harbor on December 16,1941. En route after seizure, the marine detachment was fed from the plaintiff’s stock of food supplies, and the plaintiff’s fuel oil was used to operate the vessel until the fuel was replenished by the Navy at Puerto Armuelles, Panama, on the way to Balboa. Upon arrival at Balboa, the marine detachment was removed, and the Sea Boy was placed in the custody of Commander Waite, the Port Director.

The captain of the Sea Boy was taken to Commander Waite who told him that he would be later advised as to what he was to do, and sent him back to the vessel. The Sea Boy remained at Balboa for 4 days. During that time, Commander Waite met informally with the various sea captains on the docks each morning. The captain of the Sea Boy testified that Commander Waite stated that there was no need to worry about the spoiling of the fish in the ships because the owners would be paid for a full load of fish, that the boats would be used for Government purposes, and that the crews would be taken to home port by the Navy.

There is no showing that Commander Waite had any authority to represent what the United States would do about compensation for fish, or to determine or state what use, if any, would be made of the vessels by the United States Navy, or anyone else.

On December 20, 1941, some unidentified Navy officer called together a number of the captains of fishing vessels, gave them instructions that they were to leave Balboa Harbor with their ships, and return to San Pedro, California, advised them to stay within designated areas to avoid mines and action by patrol craft, and issued them sealed orders to be opened at sea. The sealed orders were to be delivered to the United States Navy upon arrival.

The Sea Boy departed that day, and arrived at San Pedro, California, on January 3, 1942. After delivery of the papers to the Navy, the plaintiff’s captain was told by a Navy yeoman that he was free to take the vessel which was then delivered to the plaintiff’s dock for unloading.

15. Upon the arrival of the Santa Margarita at Balboa on December 29, 1941, her captain was taken to Commander Waite who told him to keep the vessel in port until further orders. The next day the Port Director inquired as to the amount of fish on the Santa Margarita, and thereupon directed the plaintiff’s captain to take fish from two other fishing vessels to make up a full load to return to San Pedro. The captain complied and transferred into his vessel 69 tons of fish belonging to the Van Camp Sea Food Company. The Port Director told the captain of the Santa Margarita that the Government would pay compensation on the basis of a full load of fish.

Upon completion of the loading on January 4, 1942, the captain was ordered to take the Santa Margarita directly to San Pedro, California, under blackout, arriving there on January 18,1942. Upon unloading, the 69 tons of fish taken aboard at Balboa were delivered to the Van Camp Company.

16. By Executive Order 8970, dated December 11, 1941, 6 F. R. 6417, the territorial waters at and about San Pedro, California, and various coastal waters were established as naval defensive sea areas. It was provided as follows:

A vessel not proceeding under United States naval or other United States authorized supervision shall not enter or navigate the waters of any of the defensive sea areas established hereby except during daylight, when good visibility conditions prevail, and then only after specific permission has been obtained. Advance arrangements for entry into or navigation through or within any of the said defensive sea areas must be made, preferably by application at the appropriate United States Naval District Headquarters in advance of sailing, or by radio or visual communication on approaching the seaward limits of the area.

Upon the arrival of the Sea Boy and the Santa Margarita at San Pedro on January 3 and 18 respectively, the plaintiff began normal preparations for the return of the vessels to sea; and also sought permission of the Navy authorities for the two vessels and the Magellan to leave port and resume fishing operations. Except for the retention of the Sea Boy for three hours as related in finding 17, the vessels were in the actual custody of the plaintiff at San Pedro. The Magellan had returned to San Pedro on or about December 10, 1941, with her Japanese crew. By February 14, 1942, permission had been granted to the Santa Margarita and she had departed to resume her usual fishing operations in Costa Rican waters.

12. On February 14, 1941, the plaintiff’s vice president received a telephone call from a Navy officer to the effect that the Navy had decided to requisition the Sea Boy, Santa Margarita, and Magellan, and requested that the three vessels be made available at dockside in San Pedro the next morning. The plaintiff’s officer telephoned a protest to Headquarters, 11th Naval District, San Diego, California, and was advised that the matter would be taken up immediately with authorities at Washington, D. C. The next morning the plaintiff’s captain and a Navy crew boarded the Sea Boy and moved ber across the harbor to a fueling depot. Approximately three hours later, at noon, February 15, as the result of the plaintiff’s protests, the Navy released the Sea Boy and advised the plaintiff’s vice president that none of the plaintiff’s vessels would be taken. After obtaining a crew and provisions, the Sea Boy departed on February 18, 1942, to resume her usual fishing operations in Costa Pican waters.

18. The depreciated values of the Sea Boy and the Samba Margarita as of December 7, 1941, were $180,000 and $188,000 respectively; and the reasonable bare boat charter value of such vessels as of that date was the annual rate of 20 percent of said values, which amounted to $98.62 per day for the Sea Boy and $75.61 per day for the Santa Margarita. As the Sea Boy and the Santa Margarita were intercepted by the Erie on December 14 and December 10,1941, and reached San Pedro, their home port, on January 3 and January 18, 1942, respectively, reasonable compensation for the taking, if any, of the vessels during these periods would be $2,071.02 for the Sea Boy and $3,024.40 for the Santa Margarita, or a total of $5,095.42.

19. At the time that they were allegedly taken on December 10 and 14, 1941, the Santa Margarita and the Sea Boy had on board respectively 84 and 150 tons of tuna fish, and were short of full loads by 76 and 30 tons respectively.

The Santa Margarita was usually away from home port for 6 to 8 weeks to catch a full load of 160 tons, and the Sea Boy usually operated for 50 to 70 days for an average of 180 tons per trip. By December 10 and December 14, 1941, they had been away from home port for periods of 70 and 74 days. December and January are the best fishing months in Costa Eican waters. It is reasonable to conclude that by January 18 and 3 respectively, they would have returned to home port with loads of 160 and 180 tons.

The 'market value of the tuna fish at that time in cargo lots was $160 per ton.

20. In accordance with custom in the tuna fishing industry, the plaintiff operated the Santa Margarita and the Sea Boy on a “share” basis with the crews. The total catch in tons would be multiplied by $160, or the existing price per ton, and from this product would be deducted expenses for ordinary repairs and operation of the vessel on the trip. The balance was distributed one-half to the plaintiff and the other half in agreed shares to the crew. If the cook and the radio operator on either vessel received shares less than a previously guaranteed wage, then the plaintiff was obligated to pay the balances to them.

Except for the cook and radio operator of each vessel, the plaintiff did not undertake to pay its crewmen any additional amounts because of the circumstances of this case, nor to absorb more than one-half of the expenses.

The plaintiff was required to and did pay the two cooks and two radio operators the balances of their guaranteed compensation to the extent of $338.94 on the Sea Boy and $733.80 on the Santa Margarita, or a total of $1,072.74, for their services up to the time their vessels returned to San Pedro.

21. When the vessels were unloaded at the plaintiff’s plant upon their return from Balboa, it was found that 12 tons of the plaintiff’s fish on the Sea Boy and 15 tons on the Santa Margarita had spoiled.

The spoiled fish on the Sea Boy were in a bait or storage box on the deck of the vessel. At the time of the seizure, the crew was in the process of filling this box, and it was then about one-third full. The spoilage thereafter resulted from the shifting and breaking of the fish in the unfilled box during rough weather, and would not have occurred had the crew been free to continue the fishing operations and completely fill the box. At $160 per ton, the spoilage loss on the Sea Boy amounted to $1,920.

The spoiled fish on the Santa Margarita were also in a bait or storage box on the deck of the vessel. The refrigeration system in the box was not working properly when the fish were put into it prior to the interception of the vessel by Commander Mack. While there is some evidence that the refrigeration system of the vessel was adversely affected by the machinery sucking up mud from the bottom at the shallow dock in Balboa Harbor, it is reasonable to conclude that this limited spoilage resulted from mechanical failure occurring prior to the ordering of the vessel into port.

22. When intercepted by Commander Mack, the Sea Boy had about 450 scoops and the Santa Margarita about 1,000 scoops of live bait aboard, caught by the crews off the coast of Puntarenas. Because they were instructed that fishing operations were terminated, the captain of the Sea Boy and various captains of other tuna clippers reasonably threw their bait overboard to avoid running the pumps which supplied aerated sea water to the bait tanks. The live bait on the Santa Margarita was killed when mud and silt were pumped into the bait tanks while the vessel lay in her assigned location in shallow water at the docks in Balboa Harbor.

The captain of the Santa Margarita testified that it required three weeks of effort to catch the 1,000 scoops of live bait. The captain of the Sea Boy thought that it cost about $1.00 per scoop to catch live bait. He also testified that such bait sold to sportsmen at San Diego for $1.00 per scoop. There is no evidence of the market value of live bait in large quantities, except that plaintiff’s vice president testified that a load of bait cost about $350 to $400 at San Diego prior to the time involved in this case, but admitted that he wouldn’t know whether a load of bait was 300 or 1,300 scoops. The Santa Margarita usually loaded 1,000 scoops.

The value of the bait on the Santa Margarita was about $350, and on the Sea Boy about $157.50, or a total of about $507.50.

23. When intercepted by the Erie the Sea Boy was on the way to Puntarenas to replenish its fuel supply. It is not shown what the extent of her fuel supply was at that time. She was then about 330 miles up the coast from Balboa, and her fuel was considered insufficient for the voyage to that harbor. The Erie was preparing to transfer some of her fuel to the Sea Boy when she was called away on another mission. Commander Mack directed the marine prize crew to take the Sea Boy to Puerto Armuelles, Panama, for refueling.

Upon arrival at that port, the Sea Boy had 600 gallons of fuel left, and Captain Wilbur purchased on the defendant’s account an additional 1,000.98 gallons, and the voyage to Balboa was resumed.

The fuel supply of the Santa Margarita at the time of her interception by the Erie is not shown, but upon her departure from Puntarenas for Balboa in the Navy convoy, she had a supply of 3,000 gallons.

The plaintiff’s captains purchased and charged to the plaintiff’s account supplies of fuel oil at Balboa for the return voyages to San Pedro. The amount put on the Sea Boy is not shown, but the Santa Margarita took on 8,000 gallons of fuel oil and 100 gallons of lubricating oil.

The plaintiff claims that it expended the respective amounts of $1,418.20 and $2,519.88 for refueling of the Sea Boy and Santa Margarita after they were intercepted and before they returned to San Pedro.

Fuel oil sold for 5 cents per gallon at that time, and the 8,000 gallons purchased for the Santa Margarita would have cost $400. There is no evidence of the price of lubricating oil. It is not shown what amount of fuel either vessel had left upon reaching San Pedro. The plaintiff’s claimed expenditures for fuel were not supported by vouchers or any other record or documentary proof. The plaintiff’s vice president testified that the claimed figures were those contained in the administrative claim submitted as hereinafter related. No breakdown of the figures is in evidence. He further stated that the figures in the administrative claim were derived from vouchers which were no longer in existence. He described the lost vouchers as for oil and supplies purchased at Balboa and Puntarenas. It is not shown that either vessel replenished her fuel supply at Puntarenas after being intercepted by the Erie.

The Sea Boy and Santa Margarita usually consumed respectively 600 and 350 gallons per 24 hours of cruising. For the 14 days each required for the voyages from Balboa to San Pedro, the fuel consumed amounted to 8,400 and 4,900 gallons. At 5 cents per gallon, the cost was $420 and $245, or a total of $665.

The 1,000 gallons purchased by Captain Wilbur was approximately sufficient to take the Sea Boy the 330 miW from the point of interception to Balboa. The Santa Margarita required about three days of travel time from point of interception to Balboa, which, would have required about 1,050 gallons of fuel at her rate of consumption of 350 gallons per 24-hour period. At 5 cents per gallon, the cost was $52.50.

The cost of the plaintiff’s fuel oil consumed after interception of its vessels and before arrival at San Pedro amounted to $717.50, which sum, reduced by one-half to reflect the “share” agreement between the plaintiff and its crews, amounted to $358.75.

In its requested findings of fact, the defendant conceded expenditure by the plaintiff of the respective amounts of $478 and $311.50 for fuel consumed on the Sea Boy and Santa Margarita after interception and until arrival at San Pedro, but reduced each amount by one-half because of the “share” agreement.

24. The increase in fuel consumption resulting from the acts of the Navy officers can b9 approximated by consideration of the extent to which the vessels were required to detour from their expected routes. Both vessels were in the general area off Puntarenas when intercepted. It was about 500 to 600 miles to Balboa from Puntarenas.

The Sea Boy and the Santa Margarita thus traveled respectively 330 and 600 miles to Balboa after interception, and about 600 miles each back as far as Puntarenas on the return voyage to San Pedro. Both vessels traveled about 200 miles in 24 hours.

Since the voyage of the Sea Boy for the 330 miles to Balboa required no fuel in excess of the 1,000 gallons supplied by the Navy, its increased fuel consumption was on the 600-mile return to Puntarenas which required three days. Her usual consumption of 600 gallons per day amounted to 1,800 gallons for this part of the home voyage. At 5 cents per gallon, the increased cost was $90.

The Santa Margarita traveled approximately 1,200 miles from the area of Puntarenas to Balboa and return. This required six days of travel at her fuel consumption rate of 350 gallons per day, which amounted to 2,100 gallons, costing $105.

The total cost of the additional fuel oil consumed as a result of the detour of the vessels was $195.

25. The plaintiff claims that it purchased galley supplies for the Sea Boy and the Santa Margarita in the respective amounts of $762.40 and $1,102.45 after interception and before arrival at San Pedro.

There is no evidence as to the quantity of supplies on the vessels at any time, or as to the actual amounts purchased or consumed, or as to the reasonable value or cost of the supplies purchased, whatever they may have been.

The captains of both vessels did purchase supplies in unstated quantities on the plaintiff’s account while being held at Balboa, and the captain of the Santa Margarita also purchased some such supplies at Puntarenas while awaiting the convoy to Balboa.

The plaintiff’s vice president testified that the amounts claimed in this case were the unitemized figures set forth in the administrative claim, which had been taken from vouchers thereafter lost or destroyed.

During the 21 days from interception to arrival at San Pedro, the galley supplies of the Sea Boy were used to feed 11 crew members, and in addition, the defendant’s prize crew of nine men for three days. Using the plaintiff’s claimed figure, the cost of the supplies per man per day would be $2.95. On this basis, the prize crew would have consumed $79.65 of supplies, and the plaintiff’s crew, the balance of the claimed amount.

During the 40 days for the Santa Margarita, her crew of 12 men would have consumed her supplies at the rate of $2.30 per man per day.

As an inducement to seamen to enter into and remain in the service of the fishing trade, it was customary to provide excellent food.

In its requested findings of fact, the defendant conceded the expenditure of the claimed amounts for galley supplies consumed between the time of interception and arrival at San Pedro, but reduced each figure by one-half because of the “share” agreement between the plaintiff and its crews.

26. The plaintiff also claims that it purchased ice after interception and before return to San Pedro for the preservation of its cargoes of fish to the extent of $264 on the Sea Boy and $300.80 on the Santa Margarita.

There is neither evidence as to the amounts purchased nor as to the reasonableness of the prices paid.

The plaintiff’s captains did acquire some unstated amounts of ice at Balboa for use on the vessels.

The amounts claimed are those stated but not itemized in the administrative claim. These amounts were taken from vouchers lost or destroyed.

The claimed expenditures would amount to consumption of ice at the rate of $12.57 per day on the Sea Boy and $7.52 on the Santa Margarita, during their respective 21 and 40-day periods.

In its requested findings of fact, the defendant conceded the expenditure of the claimed amounts for ice used on the vessels from interception to return to San Pedro, but reduced each figure by one-half because of the “share” agreement between the plaintiff and its crews.

27. At the time of their interception, the Sea Boy and the Santa Margarita were approximately 11 days in traveling time from their home port, to which they eventually would have returned with their cargoes.

If the defendant is liable for the use value of the vessels on the 14-day return voyage from Balboa to San Pedro, consideration may be given to the benefit the plaintiff and its crews derived from transportation of the cargoes during the 11-day portion of the period.

The benefit is reasonably to be calculated on the bareboat charter values of the vessels during the 11-day period, with a reduction in proportion to the extent that the plaintiff’s cargoes were less than their usual full loads.

The Sea Boy had a cargo of 150 tons of fish, and its usual full load was 180 tons. Its bareboat charter value was $98.62 per day, and the benefit to the plaintiff and its crew was $82.18 per day for the 11-day period, or a total of $903.98.

The Santa Margarita had a cargo of fish belonging to the plaintiff to the extent of 84 tons with a full-load capacity of 160 tons. Its bareboat charter value was $75.61 per day, and the benefit to the plaintiff and its crew was $39.69 per day for the 11-day period, or a total of $436.59.

The total value of the benefit to the plaintiff and its crews of the transportation of the cargoes during the 11-day period amounted to $1,340.57. The benefit to the plaintiff alone under the “share” agreement was $670.28.

During the 11-day period, the Sea Boy incurred expenses as foEows: Fuel oil, 600 gallons per day, or 6,600 gallons at 5 cents, or $330; galley supplies for 11 men at $2.95 per man per day, $356.95; and ice at $12.57 per day, or $138.27. At 150/180 of the total expenses of $825.22, the share of the expenses incurred for the benefit of the plaintiff and its crew amounted to $687.68.

During the 11-day period, the Santa Margarita incurred expenses as follows: Fuel oil, 350 gallons per day, or 3,850 gaEons at 5 cents, or $192.50; gaEey supplies for 12 men at $2.30'per day per man, or $303.60; and ice at $7.52 per day, or $82.72. At 84/160 of the total expense of $578.82, the share of the expenses incurred for the benefit of the plaintiff and its crews amounted to $303.88.

The total expense for the benefit of the plaintiff and its crews was $991.56, which, reduced by one-half, was $495.78.

28. Under date of July 30,1942, the plaintiff filed its claim with the War Shipping Administration for the value of the tuna fish which it was prevented from catching to make up full loads.

As of July 9, 1945, it amended its claim to recover additional amounts for loss of bait, purchases of fuel, ice and galley supplies, and payment of the guaranteed wages of the cooks and radio operators. There was no itemization as to amounts purchased or the prices paid for the fuel, ice, or galley supplies.

These claims were also filed with Headquarters, 11th Naval District, San Diego, California, and with the Navy Department, and the Maritime Commission, at Washington, D. C.

No administrative action was ever taken on the original or amended claims.

CONCLUSION OK LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is not entitled to recover, and its petition is dismissed. 
      
       ‘‘[N],or shall private property be taken for public use, -without just compensation.” U. S. Constitution, Amendment V.
     
      
      
        Houch v. Little River Drainage District, 239 U. S. 254, 264-265 ; General Motors Acceptance Corporation v. United States, 286 U. S. 49.
     
      
       There is an exception here In that the marine detachment which went aboard the Sea Boy on Sunday, December 14, to Insure the ship’s movement Into port, and withdrew two days later on Tuesday, apparently was supplied with meals by the crew of the ship In the value of $79.65. This is the only physical use by defendant’s personnel of property of the plaintiff. It was more than offset by facilities and service made available by the United States Navy for plaintiff’s ships during the period of time in issue. It was the consequential result of the naval action required at the time, as were the other losses allegedly experienced by plaintiff, and discussed above. The plaintiff makes no Issue of the Item other than to contend it illustrates a “seizure” of its ships, and plaintiff makes no separate claim for the sum of $79.65.
     
      
       The action of Port Director Waite in directing the captain of the Santo Margarita to take fish from two other Ashing vessels to make up a full load to return to San Pedro, was not a taking of plaintiff’s ship. Furthermore, plaintiff suffered no losses for this service to another San Pedro fishing company, alleges none, and makes no claim in its brief for the service if it be such. In fact, it would seem plaintiff was benefited by the acceptance of a full load. Plaintiff’s other ship, the Sea Boy, shipped back to San Pedro with one of its storage boxes only one-third full and the resulting shifting and breaking of the fish in the partly filled box during rough weather spoiled! 12 ton® of fish therein.
     