
    GULF REFINING COMPANY v. THE UNITED STATES.
    [No. 34120.
    Decided October 29, 1923.]
    
      On Plaintiffs Motion to Amend Findings.
    
    
      Eminent domain; requisitioning .of vessels; just compensation.— Where at the time of the taking of plaintiff’s vessels there was a market, higher by reason of existing war than pre-war rates, for the use of such vessels, the plaintiff is entitled to just compensation based upon the value to which they could be put by plaintiff, and not upon the value to the Government for the particular uses to which they are to be put; and the value of their use to the plaintiff must be determined by the evidence submitted of such market value at the time they were taken.
    
      Same; Shipping Board rates. — The rate of hire fixed by the United States Shipping Board for all vessels requisitioned by its order of October 12, 1917, and taken over by the Government, is not binding on the court where the owner is dissatisfied with such rate and brings suit in the Court of Claims for the use of its vessels.
    plaintiff claims compensation for the hire of its vessels requisitioned by the Government and at the same time for loss to its business by reason of such taking, the claims are inconsistent, and the correct measure of damage is the reasonable value of the hire of its vessels.
    
      no rules of the Supreme Court require the Court of Claims to make findings of fact from the evidence submitted, which must be sent up as part of the record on appeal, but there is no rule requiring exceptions to such evidence to be made a part of said record on appeal.
    to interest as part of just compensation for the taking under eminent domain of his property, and a counterclaim growing out of the same transaction is filed and established by the Government, which more than wipes out plaintiff’s claim, the Government is entitled to interest on its judgment.
    
      The Reporter’s statement of the case:
    
      Mr. Thomas W. Gregory for the plaintiff. Messrs. Frederick DeO. Faust, R. L. Batts, Gregory & Todd, Faust &
    
    
      
      Wilson, and Reed, Smith, Shaw & McClay were on the briefs.
    
      Mr. J. Frank Staley, with whom was Mr. Assistant Attorney General Robert E. Lovett, for the defendant.
    The following are the facts of the case as found by the court:
    I. The plaintiff, the Gulf Refining Company, is, and was during the transactions hereinafter described, a corporation duly incorporated under the laws of the State of Texas, engaged in the business of transporting, refining, and selling petroleum and petroleum products, and purchasing all of its crude petroleum. Its capital stock, except a few qualifying shares, was owned by the Gulf Oil Corporation, a holding company for a group of producing, pipe line, refining, and marketing companies in the petroleum business, among which companies is the Gulf Refining Co., the plaintiff.
    The plaintiff owned, and still owns, two refineries, one located at Fort Worth, Texas, where all the petroleum used was transported by pipe lines from domestic oil fields, mainly in Oklahoma and Kansas; the other, the principal one, was located at Port Arthur, Texas, on a canal connecting with the Gulf of Mexico, and was accessible to seagoing vessels drawing 26 feet of water, 12 of which could be docked there at the same time. All of the domestic petroleum used at the Port Arthur refinery was brought in by pipe lines, and crude petroleum from Mexico by tank steamers and barges.
    II. On October 12, 1917, the plaintiff owned a fleet of 12 seagoing tank steamers and 5 barges.
    On October 12, 1917, the plaintiff owned the following ocean-going tank steamers, each of the capacity set opposite its name:
    
      Gulf of Mexico, capacity 100,000 barrels.
    
      Gulf oil, capacity 52,000 barrels.
    Gulflight, capacity 52,000 barrels.
    
      Gulfstream, capacity 52,000 barrels.
    Gulfcoast, capacity 52,000 barrels.
    Gulfmaid, capacity 52,000 barrels.
    Currier, capacity 42,000 barrels.
    Ligonier, capacity 32,000 barrels.
    
      
      Larimer, capacity 32,000 barrels.
    
      Trinidadian, capacity 20,000 barrels.
    
      J. M. Guffey, capacity 18,000 barrels.
    
      Winifred, capacity 20,000 barrels.
    The principal work of the fleet prior to our war with Germany was transporting petroleum and petroleum products from the refinery at Port Arthur to markets in the North and East, the chief of which were Philadelphia, New York, and Boston. The products from Texas were mostly, and from Louisiana partly, marketed by railroads.
    From January 18, 1915, to April 6, 1917, the date of the entrance of the United States into the war with Germany, the plaintiff had shipped 94,000 barrels of crude petroleum from Mexico to Port Arthur, and from April 6, 1917, to October 16, 1917, the plaintiff had shipped 20,000 barrels of crude petroleum from Mexico to Port Arthur. Between the dates of August 9,1917, and De'cember-22, 1919, the plaintiff carried 1,900,000 barrels from Mexico to Port Arthur, but at what rates does not appear. During the years 1917 and 1918 it does not appear that the plaintiff had any contracts for the purchase of petroleum produced in Mexico. Another of the subsidiary companies of the Gulf Oil Corporation spent a large amount of money in developing oil properties for crude oil. Plaintiff, by the use of its vessels, was doing a large and profitable business at the time of the requisition order.
    III. Under the provisions of the urgent deficiency appropriation act for the Army and Navy, approved June 15, 1917 (40 Stat. 182), subheading “Emergency shipping fund,” the President, by Executive order, dated July 11, 1917, delegated to the United States Shipping Board all power and authority vested in him by said act to requisition or purchase constructed vessels, .and to operate, manage, and dispose of such vessels, and all other vessels heretofore or hereafter acquired by the United States. The said order is set out in full in plaintiff’s petition and is made part of this finding by reference thereto.
    IV. On October 12, 1917, the United States Shipping Board by virtue of the act of June 15, 1917, supra, and the
    
      Executive order of July 11, 1917, issued an order, to' go into effect at noon October 15, 1917, requisitioning all American cargo and tank ships able to carry not less than 2,500 tons total dead weight, including bunkers, water, and stores. The said order is set out in full in plaintiff’s petition and is made part of this finding by reference thereto.
    The vessels were not taken at once into physical possession by the United States under this order, but were allowed to continue in the possession of their owners, as stated in the order of October 12, 1917, and the agreements set forth in the petition until the dates hereinafter stated.
    V. After having determined upon the issuance of a requisition order the Shipping Board decided to fix upon a rate of hire for requisitioned vessels. Many factors were taken in consideration by the board, among which were that the American Mercantile Marine had a number of old steamers and that there was a difference in the size of steamers and difference in type. The board concluded that, as far as possible, it would make a general rate to apply to all, and not a rate applicable to each vessel separately, which latter they regarded as impracticable. Recognizing that there was an obligation to award just compensation, the board thought it necessary, in formulating a rate per ton per month, to take into consideration the value of the property, and to award compensation, at least to some extent, based on that value. The Shipping Board, on September 27, 1917, made an announcement of its rates as follows:
    UNITED States Shipping Board, Washington, September 27, 1917.
    
    The United States Shipping Board announced to-day the rates upon which it proposed to requisitioned all American tonnage suitable for ocean service above 2,500 tons deadweight carrying capacity. The rates are as follows:
    
      Cckrgo boats and tankers.
    
    Over 10,000 tons d. w. capacity, Government form
    time character_$5. 75 per d. w. ton.
    8,001 to 10,000 tons d. w. capacity, ditto_ 6. 00 “ “ “
    6,001 to 8,000 “ “ “ “ 6.25 “ “ “
    4,001 to 6,000 “ “ “ “ _ 6.50 “ “ “
    8,001 to 4,000 “ “ “ “ _ 6.75 “ “ “
    2,500 to 3,000 “ “ “ “ _ 7.00 “ “ “
    
      The Shipping Board finally determined upon $175 per dead-weight ton as the average value for requisitioned tonnage, and from this basis deducted as a fair return 25 per cent per annum on that sum, and 50 cents per ton added to cover overhead expenses, to which was added 1 per cent for convenient calculation, resulting in a monthly rate of $4.15 per dead-weight ton, and for vessels making over 11 knots per hour, 50 cents per knot for each additional knot made. This rate was called bare-boat hire, the Government assuming all costs of operating the vessels, together with marine-insurance and war risk.
    Vessels of speed in excess of 11 knots to be allowed 50* cents per ton dead weight per month for each knot or part of a knot over 11 knots.
    For passenger steamers, the board adopted a twofold basis of classification: Class A, consisting of steamers with a capacity of over 150 passengers, and Class B, consisting of steamers with a capacity of from 75 to 150 passengers-Steamers falling in both classes are further classified according to speed. The rates for passenger steamers are as follows:
    
      
    
    
      
    
    Bainbridge Colby, of the Shipping Board, in announcing the requisition rates said:
    “ The foregoing rates will become operative on October 15th, 1917. The vessels embraced in the requisition, except in so far as actually required for Government service, will be left in the hands of the present owners to be operated for . Government account, but subject at all times to such dispositions as the board may direct.
    
      “A certain number of the requisitioned vessels, which are required for the continuing and exclusive service of the Navy and Army, will be taken over on a bare-ship basis. The rate of hire on this basis has been fixed by the board at $4.15 per dead-weight ton for cargo boats, and $5.75 per ton gross for passenger steamers of eleven knots speed, with an additional allowance of fifty cents per ton for each knot in excess of eleven, and up to sixteen knots.
    “All the foregoing rates are tentative. The board will carefully examine the results of operation under the requisition rates and from the results, as certified by expert examiners, will determine upon such revision as fair and equitable treatment of the owners of the requisitioned vessels may require. Eevisions will be made, if reasons therefor are found to exist, at intervals of not more than ninety days.
    “As to insurance, the Government will assume the war risk, and, in some instances, the marine risk as well. In cases in which for any reason it is more convenient for the Government to assume the marine risk, the usual rate for .such insurance will be deducted from the charter hire.”
    The rate finally determined on by the Shipping Board, $4.15, was accepted substantially by 100 per cent of cargo owners, owners of cargo vessels, and by a very large percentage of the owners of tankers or tank; vessels, both with respect to tonnage and vessels and numbers of owners; but some did not accept it.
    The rate of $4.15 per dead-weight ton was a time charter rate.
    YI. The United States Shipping Board took possession of six of plaintiff’s tank steamers, upon the dates and for the periods set out below:
    (1) Trinidadian, 8,960 dead-weight tons, taken at 1 o’clock p. m., October 16, 1917, returned at 6 o’clock p. m., March 4, 1918; retaken at 3 p. m. April 7, 1918, returned and released from requisition at 2.30 p. m., December 31, 1918.
    (2) Winifred, 3,950 dead-weight tons, taken December 23, 1917, returned and released from requisition March 12, 1919.
    (3) J. M, Guffey, 3,915 dead-weight tons, taken January 4, 1918, returned and released from requisition June 14, 1919.
    
      (4) Gulf of Mexico, 12,777 dead-weight tons, taken at 9 o’clock a. m., January 14, 1918, returned and released from requisition at 7 o’clock a. m., July 6, 1918.
    (5) Gulflight, 7,805 dead-weight tons, taken at 4 o’clock p. m., January 25, 1918, returned and released from requisition at 1 o’clock p. m., March 8, 1919.
    (6) Gulfmaid, 7,805 dead-weight tons, taken at 2.15 o’clock p. m., February 18, 1918, returned and released from requisition at 2 o’clock p. m., January 15, 1919.
    VII. During the whole period the Trinidadian, Gulf of Mexico, Gulflight, and Gulfmaid were held under requisition by the United States they were operated by the plaintiff as agent of the United States, in trans-Atlantic service, and were employed in carrying petroleum products for the United States or its allies under arrangements between them for the prosecution of the war. The agreement of June 6, 1918 (plaintiff’s Exhibit A), and the bare-boat form of charter (attached as Exhibit B to the petition) and certain requisition charters (Exhibits C, D, and E to plaintiff’s petition) show the terms upon which the plaintiff’s boats were operated. These exhibits are copies of the original papers, and are made parts hereof by reference. A copy of plaintiff’s letter, dated June 6, 1918, transmitting certain papers to the Shipping Board, appears in Paragraph XII of the amended petition, and is made a part hereof by reference.
    VIII. The Winifred and J. M. Guffey, during the period they were held under requisition by the United States, were employed, first, by the British Admiralty, and afterwards; by the United States Navy in offshore work in Great Britain. What arrangement or agreement there may have been made between the two Governments as to payment for use-of the vessels is not satisfactorily shown by the evidence.
    IX. The plaintiff, as agent of the United States, in operating the Gulf of Mexico, the Gulflight, the Gulfmaid, and the Trinidadian, collected as gross earnings of said vessels,, including a portion of the earnings of the Trinidadian, the' sum of $3,998,283.92. The plaintiff in the operation of said vessels made disbursements as agents of the United States; for the cost of operating, conditioning, and repairing, amounting to $1,163,743.79. The plaintiff also became entitled to an operating and managing fee of $23,655.00, total credits amounting to $1,187,398.79. Since the former findings, a supplemental audit of operating expenses has been made and filed. It shows an additional operating expense for which plaintiff should be credited of $45,114.90. This added to the above total of $1,187,398.70 makes $1,232,513.69, which, deducted from the sum mentioned as “ gross earnings,” leaves a balance in plaintiff’s hands of $2,760,770.23, An additional sum of $327,349.87 was received. (See Finding XIX.)
    X. On and after October 12, 1917, and during the time when plaintiff’s vessels were held by the United States, practically all tank steamships in the world were commandeered, seized, or chartered by the allied belligerent nations, or by the United States, and practically all available shipyards and shipbuilding facilities were similarly commandeered or seized, so that during the period when plaintiff’s vessels were held by the United States it was not possible for plaintiff to replace the same by purchase or hire in the open market or by contracts for new construction.
    XI. The plaintiff’s vessels that were taken over, at the time of their requisition, were carried on the books of the company at the following total values and values per deadweight ton; Trinidadian, value $250,000, per dead-weight ton $63.00; Winifred, value $200,410, per dead-weight ton $50.00; Guffey, value $265,888.81, per dead-weight ton $67.00; Gulf maid, value $626,813.13, per dead-weight ton $85.00; GulfUght, value $555,299.65, per dead-weight ton $76.00; Gulf of Mexico, value $1,022,749.88, per dead-weight ton $80.95; an average for all six vessels of $70.93 per deadweight ton. These same vessels were rated by the Shipping Board for the purpose of insurance at $175 per dead-weight ton.
    XII. The Guffey sailed from Port Arthur with a cargo of petroleum on November 21, 1917, and reached Hampton Hoads on December 1, 1917. On December 11, 1917, she Bailed into a succession of furious storms. On December 22, 1917, she joined her convoy, and arrived at Dover, England, on January 3, 1918, and was taken under requisition by the United States on January 4, 1918, and after discharging her cargo on January 5, 1918, was turned over to the British Government and placed at once as a tender of the British fleet in coastwise service. While taking on cargo at London, January 18, 1918, a bad oil leak was noticed, and after several surveys, which showed her condition to be unseaworthy at the time she was taken over, she was placed in dry dock at that place, where she remained under repairs from January 22, 1918, to July 10, 1918, at which date her repairs were completed. The repairs cost $121,846.14, and were more extensive than were necessary to place her in condition for the service she was engaged in. The repairs were paid for by the British Government, between which and the Shipping Board there has been no settlement. The cost of these repairs and the hire of the vessel during the period of five and six-tenths months she was under repair should be borne by the plaintiff and the United States in the proportion of three-fourths by plaintiff and one-fourth by the defendant.
    The evidence does not show that there was a bare boat or any other charter party between the plaintiff and the United States affecting the Guffey. If the plaintiff is not liable for the seaworthy condition of the vessel on its delivery under requisition, or for repairs thereafter, all of the cost of the repairs and all of the time during which such repairs were made, chargeable against the United States, would amount to $212,830.84. The hire of the Guffey from January 4, 1918, to the date when she was returned to her owner, June 14, 1919, at $4.15 per dead-weight ton, would amount to $281,616.46.
    If the plaintiff is liable for the seaworthy condition of the vessel upon delivery under requisition, or for repairs and lost time necessary to make her so, it is entitled to hire, in the event the Government rate of $4.15 per dead-weight ton should be applied, in the sum of $213,380.01, obtained by deducting from $281,618.46, the hire for the whole period the vessel was held, $68,238.45, three-fourths of $90,984.60, the hire, at $4.15 per dead-weight ton, while the Gufey was under repair five and six-tenths months. (See Findings XYI.)
    XIII. The 'Winifred sailed from New York on October 27, 1917, for Norfolk, Virginia, and arrived at Tilbury, on the Thames River, England, on December 1, 1917, for repairs to her windlass and steering gear, where she remained up to December 14, 1917, when she proceeded to Sheerness to discharge her cargo. She then returned to Tilbury on December 16, 1917, to complete her repairs, and remained there undergoing repairs until December 23, 1917, on which date she appears to have been taken over by the British Government, under some arrangement with the United States, as a fleet tender in the British coastwise service. In the first six months of her British service she had five collisions with British vessels and six collisions with docks, jetties, etc. She also ran firmly aground on the bar at Rouen, France, striking her bottom heavily four times in doing so. She was also employed for a time transporting creosote from Cardiff, Wales, to French ports. On June 20, 1918, she was put in dry dock, where she remained, undergoing repairs, until October 22, 1918, at a cost of $65,-236.56, which was paid by the British Government, and, so far as the record shows, it has never been reimbursed therefor by the United States. The time she was in the dry dock, 4.066 months, at $4.15 per dead-weight ton per month, 3,950 tons dead weight, amounted to $66,651.91. When this vessel was taken over under requisition she was sound and seaworthy, and the plaintiff was not responsible for her condition when she was placed in the dry dock, and all of the cost of repairs and lost time during such repairs are properly chargeable to the United States.
    The parties, so far as the evidence discloses, did not execute a bare-boat-form charter (U. S. S. Charter Form No. 3), or any other form of charter affecting the Winifred. (See Finding XVI.)
    XIV. Compensation for the use of the six steamers of plaintiff during the period they were held under requisition by the United States on a bare-boat dead-weight ton basis at Shipping Board rates would be as follows:
    The Trinidadian, 3,960 d. w. t., 13.4 mos., at $4.15 per
    d, w. t. per mo___ $220, 215. 60
    The Gulf of Mexico, 12,777 d. w. t., 5.7333 mos., at $4.15
    per d. w. t. per mo_ 304, 007. 42
    The Gulflight, 7,305 d. w. t., 13.4333 mos., at $4.15 per d. w. t. per mo_ 407, 241. 52
    
      The Gulfmaid, 7,305 <3. w. t., 10.9 mos., at $4.15 per
    <3. w. t. per mo_ $330, 441. 68
    The Guffey, 3,915 <1. w. t, 17.333 mos., at $4.15 per d. w. t. per mo., $281,618.46, less $68,238.45, three-fourths of time lost for repairs, at $4.15 per d. w. t.
    per mo_ 213, 380. 01
    The Winifred, 3,950 d. w. t., 14.6333 mos., at $4.15 per d. w. t. per mo_ 239, 876. 54
    Total-$1,715,162.77
    XV. The total operating and managing costs for the four tank steamers used by the Government in trans-Atlantic service, the Gulf of Mexico, the GulfligM, the Gulfmaid, and the Trinidadian, during the time they were held by the United States under requisition amounted to $1,232,513.69. The total premiums on marine insurance on said vessels for the same period amounted to $172,256.02. The total premiums on war-risk insurance, at War Risk Bureau rates, on said vessels for the same period would have amounted to $1,061,106.38. The total operating and managing costs, premiums on marine insurance, and premiums on war risk insurance for said vessels for the same period would have amounted to $2,465,876.09, or $8.11 per dead-weight ton per month, and this amount is what it would have cost plaintiff for the same period if the vessels had not been operated on the bare-boat basis and plaintiff had been required to pay all costs and expenses of every kind in operating said vessels. If the vessels had been operated on ordinary time charters, the plaintiff bearing all costs and expenses of every kind incident to such operations, it would in this case, including the Shipping Board rate of $4.15 per dead-weight ton per month, amount to $12.26 per dead-weight ton per month. There were practically no tankers on the market during the requisition period.
    At the time the plaintiff’s ships were requisitioned, as above stated, ships were valuable, and the use of ships of the character and kind of those of the plaintiff was valuable ; there was a demand for the use of such ships and the supply of them was limited. The ships requisitioned and taken were suitable for the uses to which they were put by the Government.
    
      The Government carried its own war risk on said vessels, and the actual losses amounted to $267,080.47, or about 25.17 per cent of the said total war risk.
    During the years 1918, 1919, and 1920, the plaintiff paid to the United States for approximately 5,000,000 tanker tonnage chartered to plaintiff by the Government, freight rates not in excess of the Shipping Board bare-boat rates. Of the 5,000,000 tons so chartered 268,740 tons were chartered during the requisition period, the balance after that period, when the rates for free boats were higher than during the requisition period.
    XVI. In July, 1918, the Shipping Board made an arrangement with the French Ministry to charge a basic freight rate of $40.00 per ton for carrying petroleum products from North Atlantic ports of the United States to French Atlantic or French channel ports, with extra charges of from $1.00 to $2.00 per ton if discharged at Bordeaux or Rouen, or at any two ports. The rates were for voyage charters, and the $40.00 rate covered all operating and other expenses and included war risk, at War Risk Bureau rates. This rate of $40.00 per ton was afterwards reduced and $1,123,501 was refunded to the French Government; of this amount, $72,-202.50 was returned by the Government on account of the Gulflight for the voyage which began December 25, 1918. The Gulflight was the only one of plaintiff’s vessels engaged in the transportation for which this rebate was made. On October 11,1917, plaintiff executed a voyage charter with the British Government for the Trinidadian at the rate of 100 shillings ($24.00) per ton, the British Government assuming all war risks to the owners, said rate amounting to about $6.60 per dead-weight ton per month bare-boat basis. For all subsequent voyages of the Trinidadiam, the Shipping Board charged the British the same rate as the French before reduction, $40.00 per ton. The British Government failed to agree to this rate, and an agreement was reached between it and the Shipping Board that the British Government should pay 50 shillings ($12.00) per ton, which was paid, and to pay such additional amount as would make the hire equal to the amount per dead-weight ton paid to the owners by the Shipping Board. Between March 29, 1918, the date of voyage charter party of the Trinidadian No..94 and October 22, 1918, the date of the charter party No. 98 of the same vessel, voyage charter rates of free or neutral vessels from North Atlantic ports in the United States to Great Britain ranged from $40.00 to $65.00 per ton. Voyage •charter rates were higher than term or time charter rates.
    The freight earnings of the Gufey on the voyage to England when she was requisitioned were at the rate of $2.55 per dead-weight ton per month. The freight earnings of the Winifred on the voyage to England when she was requisitioned were at the rate of $2.80 per dead-weight ton per month. (See Findings XII and XIII.) The length of voyages was increased by vessels having to wait for convoys, and these delays increased as time passed.
    XVII. The account between the plaintiff and the United States on the basis of the Shipping Board rates would be as follows:
    Debits: Tbe said earnings of the Gulf of Mexico, Gulflight, Gulf maid, and Trinidadian held by plaintiff_$3, 993, 283. 92 Fuel on said vessels when returned to plaintiff- 16, 809. 90 Three-fourths cost of repairs to Guffey- 91,384. 60 84,101,478. 42
    Disbursements for operating, managing,, reconditioning, and repairing allowed by . Shipping Board_ 1, 232,513.69 Hire of said vessels while held • under requisition_ 1, 715,163. 31 Fuel on said vessels when taken over by Government_ 14,135. 79 2,961,812.79 . $1,139, 665. 63
    sum shown in finding XIX.
    XVIII. Just compensation to plaintiff for the use of its six vessels during the periods of their use fixed as of the time the requisition order of October 12, 1917, was issued and became effective is at the rate of $6.60 per dead-weight ton on a bare-boat basis and amounts to $2,727,730.28.
    
      The account between the plaintiff and the United States on the said basis of $6.60 per dead-weight ton is as follows:
    Debits: Said earnings of the Gulf of Mexico, GulfligUt, Gulfmaid, and Trini-dadian_$3,993,283.92 Fuel on said vessels when returned to plaintiff_ 16, 809. 90 Three-fourths cost of repair to Guffey_ 91, 384. 60 -r- $4,101,478. 42 Credits: Disbursements for operating, managing, reconditioning, and repairing allowed by Shipping Board— 1, 232, 513. 69 Hire of said vessels while held under requisition_ 2, 727,730. 28 Fuel on plaintiff’s vessels when taken over by Government_ 14,135. 79 - 3,974,379.76 $127,098. 66
    To which is added the sum stated in Finding XIX.
    XIX. Since this cause was first submitted for decision there has been filed on the 9th day of June, 1922, a stipulation by the parties to the effect that since said submission the plaintiff has received the sum of $327,349.87 under certain proceedings in admiralty prosecuted by plaintiff because of collision sustained by the steamship Gulf of Mexico on or about January 31, 1918, and that said amount should be credited to the United States in this action, subject, however, to the right of the United States, upon audit, to claim a larger amount. Said stipulation is as follows:
    “ It is stipulated by the parties that, since the argument of this case the claimant has received the sum of $327,349.87, being the net amount (after deduction of expenses) collected in certain proceedings in admiralty prosecuted by claimant against various vessel owners because of collisions sustained by the steamship Gulf of Mexico on or about January 31, 1918.
    “It is further stipulated and agreed that this amount shall be credited to the United States in the pending action.
    “This matter has not yet been audited for the United States, and in making this stipulation the United States does not waive any right to claim that a larger amount is due to it than is herein admitted by the claimant.”
   conclusion OF law.

Upon the foregoing findings of fact the court decides, as a conclusion of law, that the plaintiff’s claim amounts to $3,974,379.76, and that the defendant has a counterclaim, set forth in Findings XVIII and XIX, amounting to $4,428,-828.29, and that the defendant is entitled to recover upon its counterclaim the sum of $454,448.53, with interest thereon at sis per cent per annum from June 12,1922.

It is therefore adjudged and ordered by the court that the United States have and recover of and from the Gulf Refining Company the said sum of four hundred and fifty-four thousand four hundred and forty-eight dollars and fifty-three cents ($454,448.53) with interest thereon at the rate of six per centum per annum from June 12,1922.

MEMORANDUM BY THE COURT.

The plaintiff has asked leave to file what it terms exceptions to errors of omission and commission in the findings of fact, conclusions of law, and judgment of the court, filed June 25, 1923. Since the motion to further amend the findings has been considered and allowed in part, at least, which makes necessary new findings, the court, as is usual in such cases, files new findings and withdraws those filed June 25, 1923. This fact renders unnecessary any ruling upon the motion to file exceptions.

The court has again given consideration, to plaintiff’s requested findings, and in response to them files new findings. Our rules forbid the filing of a second motion for a new trial, except by permission of the court. This rule is designed to bring the litigation to an end by requiring parties to file their requests for findings “ before trial,” as contemplated by the rules of the Supreme Court applicable to this court. Our rule recognizes, however, that a second motion may be allowed, if the court thinks it should be, and hence the findings requested have been again considered. Sometimes they ask new or additional facts, but generally they are repetitions of prior requests.

These additional findings are not, in all instances, what plaintiff asks to be found, and may be different from what plaintiff insists are the facts. The rule requires “ a finding by the Court of Claims of the facts in the case, established by the evidence, in the nature of a special verdict, but not the evidence establishing them.”

Without repeating them here, the court refers to its opinion at the first hearing, and the memorandum made and attached to its findings of June, 1923, for the reasons for its action and judgment.

The plaintiff urges its right to interest. The facts show that át different times the plaintiff collected monies from the operations of some of its vessels, for which it was accountable to the United States. These sums it retained, and if one party was entitled to interest the other was also entitled to it. The amount that should bear interest was the difference between what the Government owed plaintiff and what the latter owed the Government. That amount has been fixed by the judgment, which the court is of opinion should bear interest from the original date of the rendition of judgment, and the court’s conclusion has accordingly been amended in that regard.

The following opinion of the court was filed June 12,1922, upon the first hearing of the case. The findings and judgment therewith filed have been withdrawn by order of the court, and the findings and judgment as hereinbefore set forth substituted therefor.

Campbell, Chief Justice,

delivered the opinion of the-court:

During the war with Germany the United States requisitioned certain vessels, called tankers, belonging to the plaintiff. They were requisitioned under the provisions of the act of June 15, 1917, 40 Stat. 182. By an Executive order dated July 11, 1917, the President delegated to the United States Shipping Board the power and authority vested in him by said act, and on October 12, 1917, the Shipping Board issued its requisition order covering all American cargo and tank ships of 2.500 tons total dead weight or more, this order to be effective on October 15, 1917. On October 16, 1917, physical possession of one of the plaintiff’s vessels was taken by the Government, and at different times thereafter five other vessels were taken physical possession of. The plaintiff owned a fleet of 12 vessels that could have come within the requisition order, and at the time this order was issued plaintiff was engaged in large and profitable enterprises in the purchase and distribution of petroleum and its products. It sues for the value of the use of its vessels during such times as they were in the possession of the Government, and also claims several millions of dollars on account of the loss to its business occasioned by the requisitioning of its vessels and the taking possession of them.

The statute which authorizes the requisitioning and taking over of vessels prescribes that whenever this is done just compensation therefor shall be made, to be determined by the President, and if the amount thereof so determined be unsatisfactory to the person entitled to receive it such person shall be paid 75 per cent of the amount, and may sue for such additional sum as will make just compensation.

The plaintiff’s petition claims “ a just, fair, and reasonable value of the hire” of its several ships during the periods in which they were held by the Government in physical possession. The question therefore is, What is the just compensation that should be awarded in this case in accordance with the statute authorizing the requisitioning and taking possession of plaintiff’s vessels? In arriving at a conclusion the court must ascertain the value of the use of these vessels, and this does not mean the value of their use to the Government which takes, but the value of the use to the person from whom they are taken, when that question becomes a material one. Monongahela Navigation Co. Case, 148 U. S. 312, 343. The statute authorizing the taking provides for just compensation, thereby recognizing the fact that whether the act authorizing the taking was an exercise of what is sometimes called the war power of the Government, or was the exercise of the inherent power of eminent domain, it is yet subject to the general provision of the fifth amendment. We may therefore assume that a party entitled to just compensation for its property that has been taken is entitled to its full equivalent. It is to be admitted that the exigencies of war may render it more or less difficult to ascertain what the just compensation should be, but the existence of a state of war can not be justly said to suspend the provisions of the fifth amendment. Cohen Grocery Co. Case, 255 U. S. 81; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146,156. The same rules are applicable in the ascertainment of values of property taken during a war as are applicable for property taken during times of peace. As has been suggested, it may be more difficult to find what the market value is, for instance, in times of war than it would be to find what the market value of a commodity is in time of peace, but if there be a market the fact is as controlling in the one time as it is in the other. A war may, and does, enhance prices, and one of its horrors is that it may by injuring or destroying supplies, produce distress and want, but that does not justify the taking of property of an individual at less value than the individual himself would have to pay to supply its place. The individual having property which is taken for public use is not required to make a greater contribution than other citizens similarly situated to the public good, and all other citizens are expected to bear their part of the general expense. It is not necessary to abandon well-established principles of law in order to hold the balance even between the citizen and the Government when his property is thus taken. Just compensation is all that can be asked for, and just compensation should be given for property taken in time of war as well as that taken in time of peace. The value of the property must be arrived at, if possible, and its market value is its true measure of value if that can be determined in the particular case. But where a board created by law and authorized to take over the property fixes a certain valuation it must be recognized that the fixing of the valuation is not conclusive upon the courts. Monongahela Orne, supra. In the case at bar it appears that the rates fixed by the Shipping Board were more or less of an arbitrary nature. As stated by the head of the board, referring to its calculations, “ we were a little arbitrary, but we didn’t make these arbitrary calculations in an arbitrary spirit.” In other words, we may say, they exercised their best judgment; but, as stated by this same witness, the Shipping Board endeavored to exercise a restraining control over rates. The rates fixed by the board were determined upon consideration of the facts that the American mercantile marine had a number of old steamers, that there was a difference in their size and a difference in their type, and it concluded that it would make a general rate applicable to all based on the value of $175 per ton. This method of ascertaining the value of a particular ship is plainly inaccurate. Taking the average of a number of ships, some large and some small, some new and some old, belonging to different owners, does not determine the value of them, unless all are of the same value, which was not the case. The board considered it impracticable to ascertain the value of each separate vessel, and, viewed from their standpoint, this is probably true. But the fact does not alter the legal situation, and the owner of vessels dissatisfied with the rate proposed by the board has the right to have the value of his vessel or its use ascertained.

In the case at bar the evidence shows that the ships taken by the Government were valuable, that their use was valuable, that there was a demand for such ships and the use of them, and the supply of such ships, and indeed of all kinds of ships was limited. Also that the ships- were suitable for the uses to which they were put, and could have been used by the plaintiff for like purposes. There was a market for such ships and the use of them, and the value of the use of plaintiff’s ships has been ascertained to be $6.60 per deadweight ton bare-boat basis for the period during which they were in the physical possession of the Government. That, in our view, is the just compensation to which plaintiff is entitled.

In ascertaining the value of the use of plaintiff’s vessels some consideration is due the fact that the plaintiff was using, and could use, its vessels in a profitable business. A large part of the claim in this case is based upon the alleged damage to its business caused by the taking of the vessels from the plaintiff under the requisition order. We are of opinion that this item of damage to the business is not allowable because, in the first place, of the uncertainty of ascertaining such damage, and because while it may be that its business was seriously injured and heavy losses entailed upon the plaintiff, these losses and damage were consequential or incidental to the exercise of a lawful power to-take this property, and though the loss may be no less real than the taking of the property itself we think that what the plaintiff can be compensated for is the value of the use of its property actually taken and used by the Government.

The defendant interposed a counterclaim based upon the-fact that while the boats were in its possession and operated by the plaintiff under its direction they made large earnings.. From these earnings are to be deducted the operating expenses, and after crediting the balance thus ascertained with the amount produced by an application of the board rates a sum would still remain in the hands of the plaintiff in excess-of two millions of dollars. It thus appears that the earnings of four of the plaintiff’s vessels while in the possession of the Government aggregated over three millions of dollars. Deducting from the net balance in the plaintiff’s hands out. of the earnings the amount found due upon the rate ascertained by the court there is still due from the plaintiff to the defendant the sum of $172,213.56. Judgment will therefore-be rendered in favor of the defendant for this sum upon its-counterclaim, and it is so ordered.

Hay, Judge, and Downey, Judge, concur.

Graham, Judge, concurs in the result.

The following memorandum by the court was announced on June 25,1923, upon the hearing on both parties’ motions, for new trial and amendment of the findings. The findings and judgment therewith filed have been withdrawn by order-of the court, and the findings and judgment as hereinbefore set forth substituted therefor.

MEMORANDUM BY THE COURT.

From time to time since the former judgment in this case applications by consent of both parties for extension of time-within which to move for new trial or amendments of findings have been granted and, nearly a year intervening, both parties have filed such motions. Argument upon these motions has been heard. The amount of the judgment has been changed because of an. item of expense in operation which did not satisfactorily appear in the record as first submitted.

The court adheres to its view that the just compensation to which the plaintiff is entitled is properly fixed as of the date the requisition order became effective. The legal effect of the order itself under the facts of this case was to place the vessels under Government control. The requisition order referred to in Finding IV notified owners of vessels that those being operated in their regular trades were to continue the operation “ for account of the Government, as they have been doing for themselves,” while owners whose vessels were chartered were to apply to the Shipping Board for instructions regarding their future employment. The order stated the rate which the board would allow.

This conclusion finds support in the subsequent agreements between the parties. In the first of these, Exhibit A to the petition, the plaintiff agreed to sign certain requisition charters covering all its tank steamships “ included within the description ” of the requisition order, the requisition charters to be effective as of the date they would have been effective under the terms of the requisition order if they had been signed and delivered on October 12, 1917. They agree to account to and with each other as though said charters had become effective as aforesaid. There was a definite reservation by plaintiff as to the compensation to be paid, “ it being understood, however, that the validity, effect, and application of the requisition order of October 12, 1917, in accordance with the terms thereof as to any vessel covered thereby, shall Be recognized by the owners for all purposes of this agreement.” In the second ” clause of this agreement is a provision defining the status of the vessels when being operated for the owner, and providing that the use in such case by the owner shall be in full satisfaction of the obligations of the United States and the: owner under said requisition applicable to such period. This provision settles any question of compensation while' the owner was permitted to operate its vessels on its own. account, and it is significant that by the “ sixth ” clause the-owner agreed that during these same periods “ the requisition rates from time to time established ” by the Shipping Board shall be observed. The board established rates, the owner applied them — or, at least, did not exceed them — and for such times the Government was under no obligation to make any other compensation. The agreement further provides, however, that while the vessels are being operated in the trans-Atlantic service or service other than that of the owner they “ shall be operated under the terms and conditions of the bare-boat form of requisition charter ” mentioned therein. Stipulating that if the owner does not accept the hire established by the board for this trans-Atlantic or some service other than that of the owner, the latter may accept three-fourths of the proposed compensation and sue for such additional sum as will make the just compensation to which the statute as well as the Constitution recognizes the owner is entitled, the agreement proceeds: “ Said bare-boat form ’ of requisition charter shall be deemed effective since noon of October 15, 1917, as to said tank steamships while employed in trans-Atlantic service or in some service other than that of the owner.”

This requisition agreement is referred to in the petition and in the requisition charter (Exhibit B to the petition), which recognizes the order of October 12 and declares that the particular vessel shall be operated according to the terms and conditions of the requisition agreement and of the “ bare-boat form,” made a part thereof, “ all of which instruments are to be construed together at whatever date they may be signed.” On the face of each of the “ requisition charters ” is the statement, “ Date vessel came under requisition, Oct. 15, 1917.” These agreements of June and July, 1918, were made long after the vessels had passed into “the trans-Atlantic service or service other than that of the owner.” They in terms relieve the Government of any obligation for hire growing out of the requisition order while the vessels were not being operated in trans-Atlantic service or other service than that of the owner. The Shipping Board rates were accepted for the vessels used in the owner’s service. The owner operated the vessels as agent for the United States while they were in trans-Atlantic service or some service other than that of the owner. The voluntary signing of these agreements did not deprive the owner of the right reserved to just compensation for the service mentioned. On the other hand, the signing of them was not obligatory. They effectually remove any question of compensation while the owner was permitted to operate on its own account, notwithstanding for that service the Shipping Board rates were to govern. They only leave open the just compensation to be awarded for the vessels used in transAtlantic service or some service other than that of the owner.

As already stated, we think that the taking, for which just compensation is required by law, was effectuated, under the facts of this case, when the requisition order of October 12 became effective, and that compensation should date from the time of the taking. It is quite true that the plaintiff has not waived right to just compensation, hut we also think, as above stated, that the effect of the agreements is to recognize the taking in this case as effectual at noon October 15.

There is no merit in the contention of plaintiff that the earnings of the vessels while engaged in trans-Atlantic service other than that of the owner constitute a trust fund to which plaintiff is entitled. When the Government takes property of the citizen under the inherent power of eminent domain it is not a wrongdoer. All property is held subordinate to this power. The salutary provision of the fifth amendment and the terms of the statutes, under which in this case the taking was had, require that just compensation be made, but the Government is in no sense a trustee, and is not required to account for the earnings. Its liability remains if there be no earnings. The suggestion that the Government made profits by the use of these vessels by charging a greater rate than the board’s rate, or the just compensation established by the court’s findings, seems to leave out of view any consideration of the fact that the charge was upon a voyage rate basis and that the overhead expense to the Government in its operation of the vessels and the great expense of the necessary convoy are not put into the account. In other words, it does not even appear there were any profits. Nor is a charter rate conclusive. The vessels were taken, not for a voyage, bnt for suck use and time as the Government saw fit. The rate allowed is a monthly rate for the vessels, and the bare-boat form so provides.

Judgment is rendered for defendant on its counterclaim, as stated in the court’s conclusion.  