
    373 F. 2d 944
    GMO. NIEHAUS & CO., ET AL. v. THE UNITED STATES
    [No. 501-56.
    Decided March 17, 1967]
    
      
      Philip W. Amram, attorney of record, for the plaintiffs. Amram, Hahn <& Sundlun, of counsel.
    
      Bruno A. Bistau, with whom was Assistant Attorney General Barefoot Sanders, for the defendant.
    Before CoweN, Chief Judge, Laramore, Durfee, Davis, ColliNS, SkeutoN and Nichols, Judges.
    
   Per Curiam :

I

The plaintiffs in this action seek to recover compensation for the vesting by the Attorney General of the United States on July 26, 1951, under the Trading With the Enemy Act, as amended (50 U.S.C. App. §§ 1-40 (1946)), of $76,535.83 in cash and also negotiable securities having a market value of more than $500,000 on the date mentioned. At the time of the vesting, the cash and securities in question were on deposit with the National City Bank and the Chase National Bank of New York City, which held the assets in accounts maintained under the name of Gmo. Nie-haus & Co., a Costa Rican business enterprise.

Subsequent to the vesting, the plaintiffs filed administrative claims with the Attorney General for the return of the property seized pursuant to the vesting order, but such claims were rejected.

The original plaintiffs in the present action were Gmo. Niehaus & Co., the Costa Rican company referred to in the first paragraph of this opinion, and five natural persons, Imke Steinhoff, Kurt Niehaus, Gertrude Boese, Franz Laue, and Horst Laue, all of whom were residents of Germany. Kurt Niehaus died on May 5, 1963, after the institution of the present litigation. He was survived by his widow, Thea Niehaus, and by a son, Hans Joachim Niehaus, who were the successors in interest of Kurt Niehaus under the laws of Germany and who were substituted for him as plaintiffs in the present action. (Subsequent references in the opinion to the “German, plaintiffs” will mean the five natural persons who originally sued as plaintiffs, including Kurt Niehaus, now deceased.)

The petition was filed on November 30,1956. The defendant sought to secure the dismissal of the petition, first by means of a motion to dismiss and later by means of a motion for summary judgment. The first motion was denied by the court oh July 12, 1957 (139 Ct. Cl. 605, 153 F. Supp. 428), and the second motion was denied on February 11,1959 (145 Ct. Cl. 173, 170 F. Supp. 419). Thereafter, evidence was received, and the case is now ready for consideration by the court on the merits.

The vesting order of July 26,1951, was based upon findings to the effect that the vested property was “property within the United States owned or controlled by, payable or deliverable to, held on behalf of or on account of, or owing to, * * * Kurt Niehaus, Imke Steinhoff, Gertrude Bose [sic], Franz Bose [sic], and Horst Bose [sic],” and that the persons named were “residents of Germany and nationals of a designated enemy country (Germany).”

It was alleged in paragraphs IV, V, and VI of the petition that the German plaintiffs did not acquire their interests in the property covered by the vesting order until sometime after January 1,1947; and that on and prior to January 1,1947, the Costa Rican plaintiff, Gmo. Niehaus & Co., “was the absolute owner of all legal and equitable right, title and interest in and to” the property subsequently covered by the vesting order. These allegations were denied by the defendant in the answer.

In its previous consideration of the case, this court indicated that if the German plaintiffs could sustain the allegations in the petition to the effect that their interests in the vested property were not acquired by them until sometime after January 1,1947, they would be entitled to recover, since the court was of the opinion that the vesting power of the Attorney General did not extend to property in the United States acquired by German residents after December 31,1946 (139 a. Cl. at pages 611-612; 145 Ct. Cl. at pages 176-177).

Therefore, it is crucial to determine when the German plaintiffs acquired their interests in the vested property. For a proper understanding of this issue, it will be necessary to make a rather lengthy statement concerning the background material.

The German plaintiffs are descendants of Wilhelm Nie-haus, who was bom in Germany on August 12,1873. In 1891, when Wilhelm Niehaus was a boy of 17, he emigrated to Costa Rica, and established himself in that country. In 1897 or 1898, Wilhelm Niehaus traveled from Costa Rica to Germany, where he was married. He then returned to Costa Rica. Between 1899 and 1916, six children were born in Costa Rica to Wilhelm Niehaus and his wife. Wilhelm Niehaus was naturalized as a Costa Rican citizen on October 29,1917.

In 1919, Wilhelm Niehaus moved from Costa Rica to Germany with his wife and children, and settled in Bremen. In 1920, he was appointed by the Government of Costa Rica as honorary consul in Bremen. Thereafter, he continued in charge of this consulate office, at least until World War II disrupted and later severed relations between Costa Rica and Germany. His wife died in 1931. In 1936, at the age of 63, Wilhelm Niehaus suffered a very serious heart attack, from which he recovered. Some 10 years later, he died in Bremen on November 18,1946.

Three of the sons of Wilhelm Niehaus and his wife — Willie (the oldest child), Hans (the fourth child), and Walter (the fifth child) — returned to Costa Rica from Germany on attaining maturity. These three members of the family were native-born citizens of Costa Rica; they never acquired German citizenship; and they were residents of Costa Rica at all times pertinent to this litigation.

The other children of Wilhehn Niehaus and his wife— Gertrude (the second child), Kurt (the third child), and Imke (the youngest child) — were residents and citizens of Germany at all times pertinent to this litigation. Gertrude was first married to a man named Laue, by whom she had two children, Franz Laue and Horst Laue. She was divorced from her first husband in 1933, and then married Herman Boese, of Bremen, Germany, in 1934. Imke first married a man named Mann in 1944. She presumably acquired the name Steinhoff by another marriage.

Therefore, the German plaintiffs are three of the children (Gertrude Boese, Kurt Niehaus, and Imke Steinhoff) and two grandchildren (Franz Laue and Horst Laue) of Wilhelm Niehaus.

'Soon after Wilhelm Niehaus became a resident of Costa Rica as an immigrant boy of 17 in 1891, he started in business as the proprietor of a small store. Later, he entered farming, and built up an agricultural empire in cocoa, sugar, coffee, and cattle. He ran the business as a sole proprietorship until 1925. During the period prior to 1925, he adopted the policy of diversifying the enterprise’s surplus profits and accumulated funds, leaving some in Costa Rica and investing some in both guilder and dollar securities through the deBary Bank in Amsterdam, Holland.

Effective as of January 12,1925, Wilhelm Niehaus organized Gmo. Niehaus & Co. in Costa Rica as a “sociedad en comandita por acciones.” This is a form of business enterprise unknown to the law of the United States. It is a full legal entity with shareholders, and is a juridical person separate and apart from its shareholders. One or more shareholders, however, must assume the same unlimited liability as a partner in a partnership. The liability of the remaining shareholders is similar to that of shareholders in an ordinary corporation, and is limited to their respective shares in the investment. (For the sake of convenience, Gmo. Niehaus & Co. will usually be referred to hereafter in the opinion as “the company.”)

On organizing the company, Wilhelm Niehaus transferred to it the assets of his agricultural, industrial, and commercial businesses, including the reserve assets in the account with the deBary Bank, in exchange for 2,997 out of the 3,000 authorized shares of the company. Wilhelm Niehaus became the company’s stockholder of unlimited liability, and also the manager (gerente) and president of the company, which posts he held until his death in 1946.

It has been mentioned previously that Wilhelm Niehaus moved from Costa Rica to Germany in 1919, and that thereafter he was a resident of Germany until his death in 1946. However, from 1919 until Ms heart attack in 1936, it was his custom to travel from Germany to Costa Eica about every two years, and to spend approximately six months in Costa Eica on each such visit. Despite his absence from Costa Eica during the greater part of the time after 1919, Wilhelm Niehaus maintained control over the company and made the important decisions for the company until the outbreak of World War II. As an example of his important role in the company’s affairs, Wilhelm Niehaus selected in Germany the persons who were to be employed for the more responsible positions with the company in Costa Eica.

Upon returning to Costa Eica from Germany as young men, Willie and Hans Niehaus became employees of the company. Walter Niehaus was not employed by the company itself when he returned to Costa Eica from Germany, but he began to work for a subsidiary in which the company had a one-half interest.

When Willie and Hans Niehaus first began to work for the company, a Swiss citizen by the name of Pablo Ziegler Sacher, now deceased, was the senior executive of the company in Costa Eica. He had been with the company for many years. Later, Wilhelm Niehaus formally appointed Willie and Hans as general agents of the company, with full powers to act for the company, although they were to act jointly in all transactions and contracts relating to real property. Willie became the vice-president and the senior officer of the company in Costa Eica, and was responsible for the company’s operations on the Atlantic side of Costa Eica. Hans became the secretary of the company, a position junior in authority to that of the vice-president, and he was responsible for the company’s operations on the Pacific side of Costa Eica.

After Willie and Hans Niehaus became officials of the company, they conducted the day-to-day affairs of the company. However, they consulted their father on important questions — usually through correspondence, since Wilhelm Niehaus spent most of his time in Germany — and his decision on any matter was final. This situation was changed by the outbreak of World War II, which disrupted and later severed the channels of communication between Costa Eica and Germany.

At least as early as 1928, Wilhelm Niehaus decided to diversify the company’s surplus reserves further, and opened in the company’s name a second foreign account in dollars with the Eoyal Bank of Canada in New York City. Nothing was placed in the New York account, or in the Amsterdam account previously mentioned, except the accumulated profits and surplus reserves of the company. No separate property of any individual member of the Niehaus family was ever deposited in these accounts. However, certain members of the family had separate individual foreign accounts of their own.

Over the years, Wilhelm Niehaus handled the Amsterdam and New York accounts himself. Although Willie and Hans Niehaus had the power to take action with respect to each of these accounts, such power was never exercised by them prior to their father’s heart attack in 1936. After Wilhelm Niehaus had his heart attack in 1936, Willie and Hans became the administrators of both the Amsterdam and New York accounts, but little, if any, action was taken by them under their power to act.

Early in the history of the company, Wilhelm Niehaus began distributing his 2,997 shares in the company among members of his family. As a result of various stock transfers, which are set out in the findings of fact, the shareholdings in the company at the time of the outbreak of World War II in Europe were as follows:

Wilhelm _ 1
Willie_ 517
Hans _ 517
Walter_ 516
Gertrude_ 348
Kurt_ 500
Imke_ 500
Franz_ 50
Horst_ 50
Outside the family_ 1
3,000

The single share of stock referred to at the bottom of the list was probably held by Pablo Ziegler Sacher. Hence, at the outbreak of World War II, 1,551 of the company’s 3,000 shares were held by residents of Costa Rica, and 1,449 shares were held by residents of Germany.

Although Costa Rica was not directly involved in World War II until December 1941, the outbreak of the European phase of the war in September 1939 affected communications between Germany and Costa Rica almost at once. It became difficult, and ultimately impossible, for Willie and Hans Niehaus to consult their father through correspondence concerning important questions of company business, as they had customarily done theretofore. Apparently, Willie and Hans exercised complete management control over the company’s affairs, and never consulted Wilhelm Niehaus on any company matters, during 1940 or thereafter through the war years.

The company’s account with the Royal Bank of Canada in New York City was closed early in 1940, and the company’s funds and securities at the Royal Bank of Canada were transferred to new accounts at the Chase Bank and the National City Bank in New York City.

By virtue of Executive Order No. 8389, as amended (12 TT.S.C. (1964 ed.) pp. 2091-3), the company’s accounts in the New York banks were blocked effective June 14,1941, because of the ownership of a substantial part of the company’s stock by the German plaintiffs. Subsequently, on July 17, 1941, the United States placed the company on its Proclaimed List of Blocked Nationals, and this action had the effect of placing a second block on the company’s accounts in the New York banks.

On December 11, 1941, which was four days after Pearl Harbor Day, Costa Rica declared war on Germany.

The Government of the United States placed Willie and Hans Niehaus on the Proclaimed List of Blocked Nationals on February 28, 1942, and similar action was taken with respect to Walter Niehaus on March 27, 1942. This automatically blocked their personal accounts in the New York banks.

By a series of decrees beginning with one dated January 30, 1943, the Costa Rican Government seized and confiscated substantially all of the company’s assets in Costa Rica. No external assets of the company in Amsterdam or New York were included in such, decrees.

On July 8,1944, the Costa Rican Department of Foreign Affairs, in an executive order, declared that Willie, Hans, and Walter Niehaus had lost their Costa Rican citizenship. (After the end of the war, the Supreme Court of Justice of Costa Rica held that the executive order just mentioned was unconstitutional.) At about the same time when the executive order relative to their citizenship was issued, Willie, Hans, and Walter Niehaus were arrested by Costa Rican authorities and deported to the United States, where they were interned and held until the end of World War II.

After the end of World War II, Willie Niehaus was released by the United States from internment in January 1946, and Hans and Walter Niehaus were released from internment in April 1946. The three brothers then left the United States and returned to Costa Rica. They found substantially all of the company’s property in that country seized and confiscated, and they found the Amsterdam and New York reserve fund accounts blocked and unavailable. Willie and Hans promptly sought to administer the company’s affairs, but they were not in a position to conduct any active business. They began an immediate campaign to recover the confiscated property.

Willie and Hans Niehaus endeavored to secure a judicial nullification of the confiscation of the company’s property in Costa Rica, but such efforts were unsuccessful. They were successful, however, in securing nullification of the confiscation through executive and legislative action.

The United States abolished the Proclaimed List of Blocked Nationals on July 8, 1946.

As stated earlier in this opinion, Wilhelm Niehaus died in Germany on November 18,1946. At the time of his death, he owned only one share of stock in the company, and his will left this one share to Walter Niehaus.

The shareholdings in the company as of December 31,1946, were the same as they had been at the outbreak of World War II, except that the one share of stock owned by Wilhelm Niehaus at the beginning of the war was owned by Walter Niehaus as of December 31,1946, and Walter’s stock had increased from 516 to 517 shares. Of the company’s 3,000 shares of stock outstanding, 1,552 were held by residents of Costa Eica at the end of 1946, and 1,448 were held by residents of Germany.

The evidence in the record clearly shows that as of December 31,1946, no action had been taken to deprive the company of any part of the ownership of the securities and cash in the company’s New York and Amsterdam accounts, or to transfer any interest in such assets to the company’s shareholders. Consequently, the assets in those accounts at the end of 1946 were the sole and exclusive property of the company, as an entity and juridical person separate and apart from its shareholders. None of the shareholders— neither the German plaintiffs nor the three Niehaus brothers in Costa Eica — had any right, title, or interest of any kind in such assets as of December 31,1946.

However, Willie and Hans Niehaus, as the executive management of the company, decided early in 1947 to distribute the reserve assets of the company in the New York accounts to the company’s stockholders as a partial distribution of capital assets. Accordingly, Willie, Hans, and Walter Nie-haus, who were holders of a majority of the company’s outstanding shares, met on July 16, 1947, in an extraordinary meeting of stockholders. It was resolved at this meeting to distribute the assets on deposit with the Chase Bank and the National City Bank “among the stockholders of our company in proportion to the stock owned by each,” and that orders were to be given to the New York banks to make immediate transfers to Willie, Hans, and Walter Niehaus of their respective portions of the assets. With respect to the portions of the assets in the New York banks due the German plaintiffs, it was decided that such portions were not to be distributed forthwith, but “shall remain in the name of this Company in the respective two banks until such time as the owners arrange for them.” Appropriate orders were given promptly to the New York banks, which effected proportionate transfers of assets from the company’s accounts to the personal accounts of Willie, Hans, and Walter Niehaus during the last week in July and early in August of 1947.

In actuality, the stockholders’ meeting of July 16, 1947, was invalid because of a failure to comply with, the company’s charter. Since it was an extraordinary meeting, a special 8-day written notice in advance to all stockholders was required by the charter, and such notice was not given or waived.

Furthermore, even if the stockholders’ meeting of July 16, 1947, had been properly called, the resolutions for the transfer of assets would have been illegal and invalid as to the German plaintiffs for another reason. As of the date of the meeting, a special Costa Rican Law No. 26 was in effect, and this law prohibited the transfer of Costa Rican property to Germans without obtaining a license from the Junta de Custodia of Costa Rica. As previously mentioned, the assets on deposit with the New York banks were the property of the company, a Costa Rican enterprise, at the time when the meeting was held on July 16, 1947, and no license was obtained from the Junta de Custodia with respect to the transfer of portions of such assets to the German plaintiffs.

Therefore, the action taken at the stockholders’ meeting of July 16, 1947, to transfer the assets in the New York accounts to the company’s shareholders, and the subsequent distribution of some of the assets by the New York banks to Willie, Hans, and Walter Niehaus pursuant to the action taken at such meeting, were invalid. The stockholders’ meeting of July 16, 1947, did not affect the title to the assets of the company on deposit with the New York banks; none of the company’s stockholders received any interest in such assets by reason of the action taken at the meeting; and the company thereafter continued to have the entire right, title, and interest in such assets, to the exclusion of the stockholders.

In June 1948, the Junta de Custodia was abolished in Costa Rica and all of its controls were lifted.

The 1948 annual meeting of the company’s stockholders was held on December 15,1948. This meeting was attended by Willie, Hans, and Walter Niehaus, the three brothers who were residents of Costa Rica, and also by Kurt Niehaus, the owner of 500 shares of the company’s stock, who was temporarily in Costa Rica at the time. The stockholders at the 1948 annual meeting went through the double motion of ratifying the resolutions that had been adopted at the extraordinary stockholders’ meeting in July 1947 with respect to the transfer from the company to the shareholders of the assets on deposit with the New York banks, and also of adopting a new set of resolutions to the same effect. The undistributed assets remaining in the New York accounts (after the distributions to Willie, Hans, and Walter Niehaus in 1947) were specifically listed and allocated to the German plaintiffs in proportion to their shareholdings in the company, i.e., to Kurt Niehaus on the basis of his ownership of 500 shares in the company, to Gertrude Boese on the basis of her ownership of 348 shares in the company, to Imke Niehaus (now Imke Steinhoff) on the basis of her ownership of 500 shares in the company, to Franz Laue on the basis of his ownership of 50 shares in the company, and to Horst Laue on the basis of his ownership of 50 shares in the company. Willie and Hans Niehaus were authorized to give the New York banks instructions concerning the actual distribution of the remaining assets among the German plaintiffs.

Despite the action that was taken at the annual stockholders’ meeting of December 15,1948, relative to the transfer of the remaining assets in the company’s New York accounts among the German plaintiffs, Willie and Hans Nie-haus did not instruct the New York banks to make any actual transfers of assets to the German plaintiffs. As a consequence, these assets remained on deposit with the New York banks in accounts maintained under the name of the company.

The record contains the uncontradicted testimony of an expert on Costa Rican law to the effect that as a result of the action taken at the annual stockholders’ meeting of December 15,1948, the entire beneficial interest in the undistributed assets still on deposit with the New York banks under the company’s name was transferred from the company to the German plaintiffs; and that after the meeting of December 15, 1948, the company no longer had any beneficial interest in such assets.

It appears that the opinion of the Costa Rican expert is correct. In the first place, the factor of a notice deficiency, which invalidated the extraordinary stockholders’ meeting of July 16,1947, was not applicable to the meeting of December 15, 1948. The company’s charter specifically provides that “The General Meeting of Stockholders shall be held once a year on December 15 without the necessity of a special notice * * *.” Furthermore, the Junta de Custodia had been abolished and all of its controls lifted prior to the December 1948 meeting, with the result that Costa Rica no longer imposed any license requirement with respect to the transfer of property to Germans. Also, as already noted, the United States had previously abolished the Proclaimed List of Blocked Nationals.

The defendant contends, however, that the block which Executive Order No. 8889, as amended, placed on the company’s accounts in the New York banks effective June 14, 1941, by reason of the ownership of a substantial part of the company’s stock by German nationals, had not been lifted as of December 15,1948. In this connection, there is testimony in the record from the custodian of the pertinent Government records to the effect that a search of such records failed to reveal any information concerning the issuance of any license or licenses relative to the unblocking of such accounts in order to permit the transfers provided for at the annual stockholders’ meeting of December 15,1948.

On the other hand, the record contains the testimony of Hans Niehaus (Willie Niehaus having died in. the meantime) to the effect that the New York banks notified the company in 1946 that its accounts were free of blocking. Also, as previously stated, the New York banks in late July and early August of 1947 honored instructions from Willie and Hans Niehaus by transferring assets from the company’s accounts to the personal accounts of Willie, Hans, and Walter Nie-haus. Hence, the circumstantial evidence in the record warrants the inference that the company’s accounts with the New York banks had been unblocked prior to December 15, 1948, and that Executive Order No. 8389, as amended, was not an impediment on that date to the effective transfer from the company to the German plaintiffs of the entire beneficial interest in the undistributed assets still remaining in those accounts. However, the New York banks continued to hold these assets in deposits under the company’s name until the time of the issuance of the vesting order on July 26, 1951.

In addition to the assets previously discussed, the vesting order also covered certain dollar assets which the company maintained in its account with the deBary Bank in Amsterdam during World War II, and for a time thereafter. Prior to the end of World War II, the Dutch Government blocked the company’s account with the deBary Bank. Following the end of the war, proceedings were begun in 1950 to unblock and release the deBary account. This was undertaken by Willie Niehaus, who went to Amsterdam for this purpose pursuant to an authorization that was granted at a stockholders’ meeting on September 22, 1950. Willie was successful in arranging for the release of the deBary account from blocking, and he also made arrangements to have the dollar assets in the deBary account transferred to the company’s account with the Chase National Bank in New York City.

When the time arrived for the holding of the regular annual meeting of the company’s stockholders on December 15,1950, Willie Niehaus was still in Holland on the mission mentioned in the preceding paragraph. Since none of the German plaintiffs was in Costa Pica at the time, and since Hans and Walter Niehaus together owned only 1,034 of the company’s shares, it was not possible to obtain a quorum for a stockholders’ meeting on December 15, 1950. In this connection, the company’s charter provides in pertinent part as follows:

* * * To constitute a quorum at a General Meeting of Stockholders, a majority of the shares issued must be represented, unless otherwise stipulated. However, if there is not a quorum on the date set for the Meeting, another date shall be set, and the meeting shall be held on that date with the shareholders present, whatever the number. * * *

A stockholders’ meeting was held on January 8, 1951. It was attended by Willie Niehaus (the owner of 517 shares), Hans Niehaus (the owner of 517 shares), and Walter Nie-haus (the owner of 517 shares). The minutes of that meeting contain the following statement (among others):

Second Article: Due to the absence of Mr. Willie Nie-haus * * * from the country on the day when the annual ordinary meeting is usually held, that is, December 15th, it was agreed to postpone the meeting until today.

Action was taken at the meeting of January 8,1951, to transfer to the stockholders of the company, pro rata, the dollar assets (cash and securities) which had been released from blocking in Holland and transferred to the company’s account with the Chase National Bank in New York City. Willie and Hans Niehaus were empowered to instruct the Chase National Bank to distribute to Willie, Hans, and Walter Niehaus their respective portions of such assets; and actual distributions were thereafter made by the bank to these three brothers. With respect to the portions of the assets due the German plaintiffs, it was resolved “that the remainder of the securities and cash be left in the account of Guillermo Niehaus & Co. in the said Bank until the termination of the proceedings which will be initiated by the legal owners, so that these securities may be transferred to them.”

The respective portions allocated to the German plaintiffs at the stockholders’ meeting of January 8, 1951, out of the dollar assets which had been released from blocking in Holland and transferred to the company’s account with the Chase National Bank in New York City, were still being held by the Chase National Bank in the account under the company’s name at the time when the vesting order was issued on July 26,1951.

The expert on Costa Bican law, previously mentioned in another connection, has given uncontradicted testimony to the effect that as a result of the action taken at the stockholders’ meeting of January 8,1951, the entire beneficial interest in the dollar assets which had been released from blocking in Holland and transferred to the company’s account with the Chase National Bank in New York City was transferred to the company’s shareholders; and that after the meeting of January 8,1951, the company did not have any beneficial interest in such assets.

The defendant argues, however, that the stockholders’ meeting of January 8, 1951, was an extraordinary meeting rather than a regular annual meeting; that the 8-day notice required by the company’s charter with respect to extraordinary meetings was not given to all the company’s stockholders; and, accordingly, that the meeting of January 8, 1951, was invalid and ineffective to transfer interests in assets from the company to the stockholders.

With respect to the defendant’s contention mentioned in the preceding paragraph, it has been previously noted that the company’s charter specifically provides that “if there is not a quorum on the date set for the [annual] Meeting, another date shall be set, and the meeting shall be held on that date * * Also, the minutes of the meeting of January 8,1951, clearly show that it constituted the annual meeting, which had been postponed from December 15 because of the lack of a quorum of stockholders in Costa Eica on December 15,1950. The company’s charter does not expressly require that an 8-day advance notice be sent to all stockholders concerning the new date of the annual meeting when there is no quorum on the date prescribed by the charter for such meeting; and we do not believe that this court would be justified in impliedly amending the charter by reading such a requirement into it.

Hence, it appears that the Costa Eican expert has given a correct opinion with respect to the validity of the stockholders’ meeting of January 8,1951, and the effectiveness of the action taken at that meeting to transfer from the company to the company’s stockholders, pro rata, the entire beneficial interest in the dollar assets which had recently been transferred from the deBary account to the company’s account with the Chase National Bank.

There is one further point that should be mentioned. The defendant has argued that a regulation, known as Military Government Law No. 53, which was promulgated in September 1945 by the Military Government in Occupied Germany, and which required residents of Occupied Germany to register external assets with the Military Government and authorized the Military Government to control such assets, invalidated the actions taken at the stockholders’ meetings of December 15, 1948, and January 8, 1951, in so far as they transferred to the German plaintiffs interests in the New York assets. However, the regulation issued under the authority of the Military Government in Occupied Germany could not have extraterritorial effect to the extent of inhibiting Willie, Hans, and Walter Niehaus — citizens and residents of Costa Nica and owners of a majority of the company’s stock — at the stockholders’ meetings of December 15, 1948, and January 8, 1961. With respect to the German plaintiffs, the evidence in the record shows that the Military Government on February 21, 1951, unconditionally released the shares of stock in the company that had previously been registered with it pursuant to Military Government Law No. 53. Hence, the German plaintiffs were free on and after February 21,1951, to receive any benefits due them from their ownership of stock in the company.

On the basis of the previous discussion, it seems that at the time when the vesting order was issued on July 26,1951, the entire beneficial interest in the property covered by that order was owned by the German plaintiffs; that the German plaintiffs acquired the beneficial interest in some of the assets for the first time effective December 15,1948; and that the German plaintiffs acquired the beneficial interest in the remainder of the assets effective January 8,1951.

Therefore, the vesting order was unlawful under the prior decisions of this court to the effect that the vesting power of the Attorney General as of July 26, 1951, did not extend to property in the United States acquired by Germans after December 31,1946.

Moreover, if the defendant were correct in arguing that the actions taken at the stockholders’ meetings of December 15,1948, and January 6,1951, were ineffective to transfer to the German plaintiffs interests in the assets on deposit with the New York banks, it would still seem that the vesting order was unlawful. The order seized the property in the accounts with the New York banks under the company’s name on the basis of findings to the effect that the vested property actually belonged to the German plaintiffs, and that they were residents and nationals of Germany, an enemy country. These findings were phrased in accordance with the provisions of Executive Order No. 9095, as amended (50 U.S.C. App. (1964 ed.) pp. 9507-8). That order, inter alia, authorized the vesting under the Trading With the Enemy Act, as amended, of “any * * * property or interest within the United States of any nature whatsoever owned or controlled by, payable or deliverable to, held on behalf of or on account of, or owing to, or which is evidence of ownership or control by, a designated enemy country or national thereof * * but declared “That persons not within designated enemy countries * * * shall not be deemed to be nationals of a designated enemy country unless” certain specified determinations were made. There was no finding in the vesting order of July 26, 1951, that the company, a Costa Eican entity, came within the category of an enemy national, either by reason of the ownership of stock by the German plaintiffs or any other factor. Consequently, if the company had still been the owner of the assets in the New York accounts under its name as of July 26,1951, the vesting order of that date would not have provided a proper basis for the seizure of the company’s property.

II

A. In the brief which the defendant filed on December 6, 1965, before the trial commissioner, after the formal closing of the proof on July 29‘, 1965, the defendant asserted for the first time an affirmative defense to the effect that even if the order of July 26,1951, unlawfully vested property of the German plaintiffs, the maintenance of the present action by the German plaintiffs is barred by the Convention on the Settlement of Matters Arising Out of the War and the Occupation, which was signed at Bonn on May 26,1952, by representatives of the United States, the United Kingdom, and the French Eepublic, on the one side, and a representative of the Federal Eepublic of Germany, on the other side (6 UST p. 4412 et seq.). The plaintiffs, in their reply brief before the trial commissioner, strenuously objected to this defense, on the ground that it came too late in the progress of the case toward final disposition.

Commissioner White ruled that the plaintiffs’ objection should be upheld, and we agree with his reasoning. The assertion of this defense at such a late stage in the proceedings was contrary to the provision in Rule 19(b) — formerly Rule 15(b) — stating that “In pleading to a preceding pleading, a party shall set forth affirmatively * * * any * * * matter constituting an avoidance or affirmative defense.” The provision just quoted, which in mandatory language required the defendant to state its affirmative defenses, if any, in its initial pleading and thus alert the plaintiffs and the court early in the case to such matters, is a salutary one from the standpoint of orderly procedure. Furthermore, if this provision is to have any real effect on the actual processing of cases, it should be enforced in appropriate situations. The present situation appears to be an appropriate one for the invocation of the rule. For these reasons, the Commissioner exercised the authority vested in him by Rule 52(a) by sustaining the plaintiffs’ objection and striking from the defendant’s brief the affirmative defense based upon the Settlement Convention. We hold that he did not act improperly.

B. Before the court, defendant has argued that the defense based on the Settlement Convention is jurisdictional and may therefore be raised at any time. Under Article 3 (2) of Chapter Nine of the Convention:

The Federal Republic recognizes that no claims of any kind arising out of acts or omissions of the Three Powers or any one of them, or of organizations or persons who have acted on their behalf or under their authority, which took place in respect of Germany, German nationals or German property, or in Germany, between 5 Uune 1945 and the entry into force of the present Convention [May 5, 1955], may be asserted by the Federal Republic or by persons subject to its jurisdiction against the Three Powers or any one of them or against organizations or persons who have acted on their behalf or under their authority.

This provision, defendant urges, bars the plaintiffs’ claim even if the vesting order was issued without authority, and, moreover, deprives this court of any jurisdiction it would otherwise have.

We do not think that this Convention provision is jurisdictional in the sense that it narrowed the pre-existing power of this court. A treaty can, of course, limit the court’s jurisdiction (Hannevig v. United States, 114 Ct. Cl. 410, 84 F. Supp. 748 (1949)), but the issue always is whether the particular treaty-provision had that effect or merely established a substantive rule to be applied by the courts like other substantive legislation is applied. Hannevig dealt with a treaty which provided specifically for international arbitration of the very claim on which suit had been filed in this court; naturally, the court concluded “that our jurisdiction of plaintiff’s claim has been effectually withdrawn.” Id. 114 Ct. Cl. at 415, 84 F. Supp. at 745. See Seery v. United States, 180 Ct. Cl. 481, 490, 127 F. Supp. 601, 607 (1955).

The Bonn Convention, on the other hand, is more easily read as doing away with certain rights Germany and its nationals might otherwise have had — rather than as affecting this court’s jurisdiction under 28 U.S.C. § 1491, or any other court’s jurisdiction (including that of international tribunals) . The treaty is framed in terms of personal and national rights and claims, not in terms of judicial power or authority. It does not seem to speak any differently than a substantive Congressional statute which rearranges rights and cuts off possible claims without affecting judicial power or repealing pro tanto a general grant of jurisdiction like 28 U.S.C. § 1491. Cf. Ralston Steel Corp. v. United States, 169 Ct. Cl. 119, 340 F. 2d 663 (1965), cert. denied, 381 U.S. 950; Eastport S.S. v. United States, 178 Ct. Cl. 599, 372 F. 2d 1002 (1967). So far as we can see, the objectives of the treaty-waiver will be adequately served by interpreting the provision as substantive and not jurisdictional.

In the past the courts do not appear to have treated international post-war waivers (comparable to the Bonn Convention) as jurisdictional clauses, but simply as substantive provisions of law depriving the claimant of possible rights. Ribas y Hijo v. United States, 194 U.S. 315 (1904), involved a claim for a Spanish ship seized by United States armed forces during the Spanish-American War. The Supreme Court first held that the seizure, being an act of war occurring in military operations, was, if anything, a tort outside the reach, of the Tucker Act. The Court then added that, “besides”, the waiver in the peace treaty clearly embraced plaintiff’s claim. This part of the opinion seems to have been a decision on the merits of an affirmative defense; in any event, there was no clear jurisdictional holding on the treaty point. In Herrera v. United States, 43 Ct. Cl. 430 (1908), aff'd 222 U.S. 558 (1912), another claim for a Spanish-American War ship seizure was rejected by this court as tortious. The court then referred, in addition, to the treaty waiver (43 Ct. Cl. at 441-42), and concluded (id. at 444):

For the reasons we have given we must hold that the court is without jurisdiction; and we may add that if we should take jurisdiction we should feel constrained under the wording of the treaty to apply it in this case, so that in either event the claimants must fail; and for that reason their petition is dismissed.

This was a plain holding that the treaty waiver went to the claimants’ substantive rights, not the court’s jurisdiction. The Supreme Court’s affirming opinion does not appear to indicate any other view (see 222 U.S. at 568,514). Defendant relies on Munich Reinsurance Co. v. First Reinsurance Co., 6 F. 2d 742 (C.A. 2, 1925), appeal dismissed, 273 U.S. 666 (1927), but there is nothing in the opinion on the treaty-waiver defense as a jurisdictional matter. The case applies the treaty, so it appears to us, as a substantive defense. In two recent decisions under the former Congressional reference practice, this court dealt on the merits with treaty waivers growing out of World War II (though it is fair to say that the precise jurisdictional issue raised by defendant in the present case was not before the court). Pauly v. United States, 152 Ct. Cl. 838, 844 (1961); S.N.T. Fratelli Gondrand v. United States, 166 Ct. Cl. 473, 478-80 (1964). In the latter, in particular, the court acted as if the waiver was merely a substantive defense, saying (id. at 478) “We have power, then, to consider the whole case and, as part of the case, to evaluate the Treaty defense.”

For these reasons, we conclude that the treaty-waiver defense should not be treated as jurisdictional, and therefore that we can refuse to consider it because presented too late in the litigation.

C. In any event, we add our view that this treaty-waiver, despite the breadth of its wording, was not intended to cover claims like the individual plaintiffs’. As shown elsewhere in this opinion, the individual plaintiffs’ rights in the seized property did not arise until December 1948 and January 1951, and therefore could not be vested by the Attorney General under the Trading With the Enemy Act because acquired after December 1946. By refusing to vest property in the United States acquired by Germans after that date, the Federal Government indicated that such property was not war-connected. It follows that, so far as this property was concerned, the plaintiffs’ claim against the United States was not war-connected, nor did it arise out of the occupation of Germany. It was as if the property was brought into this country from Germany in 1948 and 1951, for sale here or other lawful purposes, and was then seized illegally by the Federal Government. See the earlier decisions in this case, 139 Ct. Cl. at 608, 611, and 145 Ct. Cl. at 175-76. It is reasonable to construe the treaty-waiver as inapplicable to such a claim, unconnected with World War II or the postwar occupation. The Senate Foreign Relations Committee, in reporting the Convention, described the waiver as pertaining to the claims “arising out of any action by the Allied Powers during the course of hostilities” and “during the period of occupation” (S. Exec. Rep. No. 16, 82d Cong., 2d Sess., p. 28 (1952)), and, again, referred to the waiver “of all claims arising out of the war or out of any subsequent occupation period * * *” (id. at 44). We think that the high contracting parties did not intend to release the claims of Germans whose property, brought into the United States after 1946, was unlawfully confiscated by the Federal Government, or the rights of Germans who acquired other non-war claims (in this country) against the United States between June 1945 and May 1955 — including property here which was first acquired in a period freed from vesting under the Trading With the Enemy Act.

in

For the first time in this litigation, defendant has raised in its presentation to the court, on appeal from Commissioner White’s recommended opinion and decision, another sweeping defense which it also characterizes as jurisdictional. This defense is that, upon .the 1941 amendments to the Trading With the Enemy Act, each of the German plaintiffs, as shareholders, automatically acquired by operation of law a severable interest in the corporate assets in New York of Gmo. Niehaus & Company, proportionate to their shareholdings; and that such interest was subject to vesting under the Act at any time up to December 31,1946, and remained subject to vesting until the termination of the entire vesting program in 1953. It follows, defendant says, that the 1951 vesting order was wholly valid in every way since it vested property in which enemies had the full interest prior to the magic date of December 31,1946.

This is a ten-year belated defense. The facts and the legal materials on which it rests were known when this suit was begun in November 1956. They were known when the court rendered its first decision in the case in July 1957 and its second decision in February 1959. They were known when the case was proceeding before the trial commissioner. In sum, they were known at all times up to August 2, 1966, when the Government first raised the point in its brief to the court excepting to the trial commissioner’s recommendations. There is no adequate reason why the defense should not have been made at the time of the defendant’s first motion to dismiss in 1957. Many steps in the proceeding have been taken, and much evidence heard, winch would have been totally unnecessary if this new defense had been presented and sustained. Under the rules which govern the raising of defenses in this and other courts, we would summarily refuse to entertain the point at this stage if we were not constrained to agree with defendant that it is jurisdictional. For, if this new defense is good, the pre-1947 property of enemy claimants would have been lawfully seized under the Trading With the Enemy Act, and this court would have no jurisdiction of a suit by such enemies to recover the value of their property. See Deutsch-Australische Dampfschijfs Gesellschaft v. United States, 59 Ct. Cl. 450 (1924); Escher v. United States, 68 Ct. Cl. 473 (1929), cert. denied, 281 U.S. 752 (1930); N.V. Montan Export-Metaal v. United States, 122 Ct. Cl. 42, 102 F. Supp. 1016 (1952); Gmo. Niehaus & Co.v. United States, 139 Ct. Cl. 605, 153 F. Supp. 428 (1957). Accordingly, we have considered the merits of the defense, delayed though it be, and have taken account of the elaborate arguments on the merits presented by both sides. But giving due weight to what defendant says, we cannot agree that the defense is valid.

Under the far-reaching terms of Section 5(b) of the Trading With the Enemy Act, 50 U.S.C. App. § 5 (b), as added in 1941, the President probably could have directed, if he had thought it wise, that the proportionate “interest” of enemy stockholders in the assets of a non-enemy corporation could or would be deemed their own “property” and subject to separate vesting and seizure, just as he authorized the vesting of the enemies’ shares of stocks in these corporations. Cf. Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 483-86 (1947); Silesian-American Corp. v. Clark, 332 U.S. 469, 475-77 (1947). For us the crucial fact is that he gave no such direction or authorization, and the Government did not— except in special circumstances (not pertinent here) — treat an enemy shareholder’s “proportionate interest” in such corporate property as a “severable interest” or separate property which was itself subject to vesting and was to be considered for the Act’s purposes as enemy-owned property.

The power to vest enemy property was given in Executive Order No. 9095, March 11, 1942, as amended from time to time (see 50 U.S.C. App. § 6, note). This directive permitted the seizure of all the United States assets of foreign non-enemy corporations as to which certain determinations were made; enemy-owned shares of stock could also be seized; but no provision was made for separately seizing the “proportionate” or “severable” “interest” of the enemy shareholders in the company’s assets. Defendant would apparently have us find this authority in the catch-all authority to vest “any other property or interest within the United States of any nature whatsoever owned or controlled by, payable or deliverable to, held on behalf of or on account of, or owing to, or which is evidence of ownership or control by, a designated enemy country or national thereof.” The difficulty is that this provision was not interpreted, so far as we are informed, to cover a shareholder’s “proportionate interest” in the corporate assets. Defendant is unable to point to any compulsory vesting orders seizing such a “proportionate interest”, and we know of none. The position of the Alien Property Custodian and his successor, the Attorney General, seems to have been that these undifferentiated “shares” of assets should not normally be considered enemy property or interests. Consistently with that position, the terms of the vesting order in this case give no indication of reflecting the view that shareholders’ “proportionate interests” were being vested. On the contrary, the order is phrased as if the vested property was owned outright, in the ordinary sense, by the German plaintiffs.

Perhaps the reason why the President, the Custodian, and the Attorney General did not — during the period vesting was allowed — provide for the seizure of unsevered, “proportionate”, enemy “shares” or “parts” of the, corporate assets of non-enemy companies is that such plucking out of underlying components of the companies’ properties could have created havoc in the carrying on of their businesses. If enemy-owned shares of stock are seized, the business itself can continue to operate because the underlying assets are undisturbed; the Custodian merely becomes a stockholder. If all the underlying assets are seized, the Custodian can continue to operate the enterprise as a whole. But if the Custodian seizes 10% or 30% or 50% of the assets as enemy “owned” (under the “severable” or “proportionate” “interest” theory), leaving the remainder in the company’s hands as free of enemy taint, it is hard to see how the business could survive as an entity.

The. judicial decisions which defendant invokes do not hold or suggest that such proportionate parts of the underlying assets could be, or were being, treated as vestible property, or as “enemy-owned” for the general purposes of the Trading With the Enemy Act. The two Uebersee cases (Clark v. Uebersee Finanz Korp., 332 U.S. 480 (1947), and Uebersee Finanz Korp. v. McGrath, 343 U.S. 205 (1952)) dealt, not with the scope of vesting, but with the right to sue under Section 9(a) of the Act. The Court’s theory is fully consistent with the view that separate parts of a company’s assets, “attributable” to enemy shareholders, are not separately vestible. Kaufman v. Societe Internationale, 343 U.S. 156 (1952), protected the rights of innocent shareholders where all the assets of an enemy-tainted' corporation had been vested. The opinion did not turn upon a shareholder’s separate ownership of a part of the assets but, rather, upon the principle-of-fairness that Congress did not intend to confiscate the rights of innocent stockholders “merely because some others who have like interests are, enemies.” See 343 U.S. at 159, 160. Again, the Court’s theory is thoroughly consistent with an executive refusal to treat enemy “proportionate interests” as separately vestible property.

In sum, we find no adequate support for the Government’s new defense, and reject it as unwarranted by administrative practice and j udicial decision. N either of the new defenses— the waiver in the Bonn Convention, or the theory of a shareholder’s “severable interest” in corporate assets — stands in the way of the individual plaintiffs’ recovery. For the reasons given in Part I, supra, we hold that the German plaintiffs are entitled to recover for the unlawful vesting of their property under the order dated July 26,1951. The company, on the other hand, did not have any beneficial interest in the vested property, and it is not entitled to recover.

IY

It becomes necessary, therefore, to determine the amount of the recovery by the German plaintiffs.

In its decision denying the defendant’s motion to dismiss the petition in the present case, the court indicated that the plaintiffs’ suit was to be treated as one for the value of the property seized under the vesting order (139 Ct. Cl. at p. 607). The court apparently was analogizing the present action to the numerous cases in which courts have adjudicated claims for just compensation under the Fifth Amendment to the Constitution on account of the taking of property by the United States. The measure of damages in such cases is the value of the property at the time of the taking. United States v. Miller, 317 U.S. 369, 374 (1943); Potts v. United States, 130 Ct. Cl. 88, 94, 126 F. Supp. 170, 173 (1954).

The “unlawful exaction” cases, such as Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576 (1954), cert. denied 348 U.S. 834, and Seatrade Corp. v. United States, 152 Ct. Cl. 356, 285 F. 2d 448 (1961), also seem analogous to. the present case. In the cases just cited, the Federal Maritime Commission had unlawfully exacted money from the claimants as a precondition to favorable actions on certain matters pending before the Commission. The claimants were allowed to recover only the amounts unlawfully exacted from them.

As indicated earlier in this opinion, the United States seized under the vesting order involved in this case a total of $76,535.83 in cash and numerous securities. The evidence in the record does not show the exact market value of the vested securities at the time of the seizure, except that it amounted to “something over $500,000.”

With the exception of 190 shares of common stock issued by the International Nickel Co., all the vested securities were sold by the defendant during the period that began on February 8 and ended on November 18, 1952. The proceeds from such sales amounted to a total of $514,811.71. During the period up to November 18, 1952, dividends on the vested securities amounting to a total of $11,015.41 were received by the defendant. Thus, the defendant now holds the sum of $602,362.95 in cash, representing the cash that was originally vested, the proceeds from sales of vested securities, and dividends on vested securities received by the defendant up to November 18,1952.

In the absence of more precise evidence on the point, it would seem reasonable to hold that the vested cash and the vested securities which were subsequently sold by the defendant had a total value of $602,362.95 at the time of the vesting.

The plaintiffs contend, however, that if the defendant had not sold the vested securities previously mentioned, but had held them and had exercised rights under them, the defendant would now hold cash and securities having a value of more than $2,000,000 as a result of the vesting of the German plaintiffs’ property on July 26, 1951; and that the German plaintiffs are entitled to recover more than $2,000,000 in the present action. It is the plaintiffs’ theory that the defendant, after unlawfully seizing the vested securities, was under a duty to retain them and to exercise rights under them, and that the defendant is liable to the German plaintiffs for all the consequences flowing from the defendant’s failure to discharge such duty.

In this connection, it should be noted that Section 7(c) of the Trading With the Enemy Act, as amended (50 U.S.C. App. § 7(c) (1964)), provides that in a case involving the unlawful vesting and the subsequent sale by the Alien Property Custodian of the property of a person who was not an enemy national, any recovery by the owner of the property “shall be limited to and enforced against the net proceeds received therefrom and held by the Alien Property Custodian or by the Treasurer of the United States.” It would be anomalous indeed if enemy nationals whose property was unlawfully vested were given a more generous remedy than persons outside the category of enemy nationals. For example, an American citizen or a friendly alien whose property was mistakenly vested in 1945 as German-owned would receive, as the result of a successful suit under Section 9 (a), only the net proceeds of property sold by the Custodian. Becker Steel Co. v. Cummings, 296 U.S. 74 (1935). Although this limitation of the Trading With the Enemy Act may not be strictly applicable in terms to plaintiffs’ case, we should be governed by its indication of the Congressional policy as to maximum recovery. Neither the post-sale increment in value nor interest is recoverable under Section 7(c), and neither should be recoverable here. Cf. Sac & Fox Tribe of Indians of Ohlahoma v. United States, decided this day, Part VI of that opinion, ante, p. 24.

Plaintiffs appear to make some claim of entitlement under the Just Compensation Clause of the Fifth Amendment, but in its first decision in this case the court clearly held that this was a case “founded upon an Act of Congress” (139 Ct. Cl. at 612) and we are therefore justified in treating the basis of the claim as statutory, not constitutional. Cf. Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 605-06, 372 F. 2d 1002, 1007-08 (1967). In non-eminent domain cases, the normal rule is that interest is not recoverable unless authorized by statute or contract. 28 U.S.C. § 2516 (a). In this instance there is neither statutory nor contractual authorization. On the contrary, Section 7 (c) of the Trading With the Enemy Act looks the other way.

Accordingly, we conclude that the court should adhere to the view previously indicated, to the effect that the German plaintiffs should be allowed the proceeds of the vested property, representing its value at the time of vesting. On that basis, those plaintiffs are entitled to recover the amount of $602,362.95, on account of the vested property other than the International Nickel Company stock.

As mentioned earlier in this opinion, the defendant did not sell 190 shares of common stock issued by the International Nickel Company. The defendant endeavored to sell these particular securities in November 1951, but the proposed sale could not be effected because of prior claims to the stock by the Canadian Alien Property Custodian. The original 190 shares of International Nickel Company stock, together with a 100-percent stock dividend thereon and cash dividends amounting to $6,770.21, as of April 30, 1964, are still being held subject to the authorization of the Canadian Custodian. The plaintiffs recognize that this court cannot direct restitution in kind (see 139 Ct. Cl. at 607), and that they are not entitled to an unconditional money judgment in view of the interest of the Canadian authorities. We adopt plaintiffs’ suggestion and hold that they are entitled to recover the value of the International Nickel Company stock and dividends, as of the date of judgment, but conditioned as to payment and collection upon the authorization of the Canadian Custodian. In this instance we allow the value as of the date of judgment because Sections 7(c), 9(a), and 23 of the Trading With the Enemy Act, 50' IT.S.C. App. §§ 7(c), 9(a), and 23, appear to permit recovery of that amount where property has been retained by the Alien Property Custodian and not sold. Cf. Henkels v. Sutherland, 271 U.S. 298 (1926); Becker Steel Co. v. Cummings, supra, 296 U.S. 74, 81 (1935); Pflueger v. United States, 121 F. 2d 732, 735-36 (C.A.D.C. 1941), cert. denied, 314 U.S. 617. It is fitting, though it may not be mandatory, to apply these statutory provisions by analogy, as indicating the Congressional view of the appropriate relief.

The individual plaintiffs are entitled to recover and judgment is entered to that effect. The precise amount of recovery will be determined under Pule 47 (c) pursuant to this opinion. The judgment will contain the specified condition as to the International Nickel Company stock. Plaintiff Gmo. Niehaus & Co. is not entitled to recover and the petition is dismissed as to that plaintiff.

FINDINGS OE PACT

The court, having considered the evidence, the report of Trial Comissioner Mastín G. White, and the briefs and argument of counsel, makes findings of fact as follows:

The Niehaus Family amd Oompa/ny

1. (a) Wilhelm Niehaus was born on August 12, 1873, in Schorlingborstel, Germany. He surrendered his German citizenship irrevocably in 1890; and in 1891 he emigrated to Costa Pica. In 1897 or 1898, Wilhelm Niehaus traveled from Costa Pica to Germany, where he was married to a young woman whose family name was Ahrens. He then returned to Costa Eica after a short vacation.

(b) Between 1899 and 1916, six children were bom in Costa Eica to Wilhelm Niehaus and his wife.

(c) Wilhelm Niehaus was naturalized as a Costa Eican citizen on October 29, 1917.

(d) In 1919, Wilhelm Niehaus moved from Costa Eica to Germany with his wife and children, and settled in Bremen. In 1920, he was appointed by the Government of Costa Eica as consul ad honorem in Bremen. Thereafter, he continued in charge of this consulate office at least until World War II disrupted and later severed relations between Costa Eica and Germany.

(e) During the period 1919-1936, Wilhelm Niehaus divided his time between Germany and Costa Eica. He was in Germany the greater part of the time,, but he customarily made a trip to Costa Eica about every 2 years and spent approximately 6 months in Costa Eica on each such trip.

(f) In 1936, at the age of 63, Wilhelm Niehaus suffered a very serious heart attack. He recovered from this heart attack, but he did not travel to Costa Eica again.

(g) Under the United States Military Government regime in Bremen after the end of hostilities in World War II, Wilhelm Niehaus was officially certified on August 10, 1946, as a “Non German Civilian within the Bremen Enclave,” and as a citizen of Costa Eica “who does desire repatriation.”

(h) Wilhelm Niehaus died in Bremen on November 18, 1946.

2. Willie Niehaus, the oldest child of Wilhelm Niehaus and his wife, was born on May 26, 1899, in Cartago, Costa Eica. He was at all times a native-born citizen of Costa Eica and never had German citizenship. He went to Germany in 1919 with his father and mother, but he returned to Costa Eica as early as 1923. At all times relevant to this litigation, he was a resident of Costa Eica. Willie Niehaus died on May 5, 1964, after the beginning of the. present litigation.

3. Gertrude Boese, the second child of Wilhelm Niehaus and his wife, was bom on April 26, 1904, in Grecia, Costa Eica. She went to Germany as a young girl in 1919 with her parents, and thereafter resided in Germany. She was first married to a man named Lane, by whom she had two children, Franz Lane and Horst Lane. She was divorced from her first husband in 1933, and then married Herman Boese, of Bremen, Germany, in 1934. She was a resident of Germany at all times relevant to this litigation. She claimed both Costa Bican citizenship and German citizenship, and held both a Costa Bican passport and a German passport.

4. Kurt Niehaus, the third child of Wilhelm Niehaus and his wife, was bom on December 21, 1905, in Grecia, Costa Bica. He went to Germany as a young boy in 1919 with his parents. Later, he attended the Stevens Technological Institute and New York University in the United States. Be-turning to Germany from the United States in 1932, he thereafter resided in Germany until the time of his death. He was a resident of Germany at all times relevant to this litigation. He acquired German citizenship in 1937 through naturalization and thereafter had dual Costa Bican and German citizenship. He died on May 5,1963, after the beginning of the present litigation, and was survived by his widow, Thea Niehaus, and by his son, Hans Joachim Niehaus, who were substituted for Kurt Niehaus as parties plaintiff in the present action.

5. Hans Niehaus, the fourth child of Wilhelm Niehaus and his wife, was bom on May 28,1907, in San Jose, Costa Bica. He was at all times a native-born citizen of Costa Bica, and never had German citizenship. He went to Germany in 1919 with his parents, but he returned to Costa Bica in 1929. At all times relevant to this litigation, he was a resident of Costa Bica.

6. Walter Niehaus, the fifth child of Wilhelm Niehaus and his wife, was born on May 16, 1911, in San Jose, Costa Bica. He was at all times a native-born citizen of Costa Bica, and never had German citizenship. He went to Germany in 1919 with his parents, but he returned to Costa Bica as a young man. At all times relevant to this litigation, he was a resident of Costa Bica.

7. Imke Steinhoff, the youngest child of Wilhelm Niehaus and his wife, was born on August 17,1916, in San Jose, Costa Bica. She went to Germany in 1919 as a child with her parents, and thereafter she resided in Germany. She was a resident of Germany throughout the period that is relevant to this litigation. She first married a man named Mann in 1944, and she presumably acquired the name Steinhoff by another marriage. She claimed both Costa Rican citizenship and German citizenship, and held both a Costa Rican passport and a German passport.

8. Franz Laue and Horst Laue are the children of Gertrude Boese by her first husband. Franz Laue was born on October 30,1923, and Horst Laue was born on March 22,1927. Both were born in Bremen, Germany. They have been at all times citizens and residents of Germany.

9. For purposes of convenience, Willie, Hans, and Walter Niehaus will sometimes be referred to collectively in subsequent findings as “the Costa Rican brothers”; and Gertrude Boese, Kurt Niehaus, Imke Steinhoff, Franz Laue, and Horst Laue will sometimes be referred to collectively as “the German children.” Individually, these persons will usually be referred to by their first names.

10. (a) Gmo. Niehaus & Co. (which will usually be referred to hereafter in the findings as “the company”) is a Costa Rican business enterprise known as a “sociedad en comandita por acciones.” This is a form of business enterprise unknown to the law of the United States. It is a full legal entity with shareholders, and is a juridical person separate and apart from its shareholders. One or more shareholders, however, must assume the same unlimited liability as a partner in a partnership. The liability of the remaining shareholders is similar to that of shareholders in an ordinary corporation, and is limited to their respective shares in the investment.

(b) The company was organized as a sociedad en coman-dita por acciones effective as of January 12, 1925.

(c) The company’s articles of association provide (among other things) : that the company shall have a life of 50 years from January 12, 1924; that it shall be domiciled in San Jose, Costa Rica; that the company may carry out all kinds of business operations, engage in all kinds of agricultural and industrial operations, acquire and convey real property, engage in banking operations, conclude lease agreements, and establish domestic and foreign branches; and that the corporate capital is 300,000 United States gold dollars, consisting of 3,000 shares having a face value of 100 United States gold dollars each.

(d) The articles of association provide in article 5 that when a partner wishes to transfer one or more of his shares, he must so state in writing to all the other partners, and they shall have a period of 30 days from the date of receipt of the notice within which to buy the share or shares for sale at the same price and under the same conditions as any outsider might offer; and that any transfer made without this prior notice shall be null and void, but that transfers of shares from a stockholder to his wife or children shall be exempted from this requirement.

(e) The articles of association provide in article 6 that Wilhelm Niehaus (or his successor in the event of his death or legal incapacity) shall be the responsible partner and manage the company, and it shall be the exclusive duty of the manager to hire the employees of the company and fix their pay. The manager shall receive, as compensation, 45 percent of the net profits after the deduction of 6 percent of such profits.

(f) The articles of association provide as follows in article 8:

Eight: The General Stockholders’ Meeting shall consist of all stockholders of record on the fifteenth day before the meeting. An absent partner may be represented at the meetings by proxy by another stockholder or by his general or special agent. Shares held by a legally incompetent minor shall be represented by his legal representative. The General Meeting of Stockholders shall be held once a year on December 15 without the necessity of a special notice, and a special meeting shall be held whenever called by the Manager or by a shareholder or shareholders representing at least 50% of the Company’s total stock. The Manager shall issue the notice of the special meeting in the first case and the Secretary, in the second case, by a circular sent to the address designated by each stockholder for that purpose, and the said circular letter shall state the purposes of the meeting and shall be sent eight days before the date of the meeting. To constitute a quorum at a General Meeting of Stockholders, a majority of the shares issued must be represented, unless otherwise stipulated. However, if there is not a quorum on the date set for the Meeting, another date shall be set, and the meeting shall be held on that date with the shareholders present, whatever the number. Each share shall entitle the holder to one vote and decisions shall be adopted by a plurality (correction: an absolute majority) of the votes represented, except in electing a manager, in increasing or decreasing the capital stock, amending the Articles of Association, or dissolving the Company before its natural termination, in which cases a majority representing at least half plus one of the total shares issued and a quorum of not less than two-thirds of that total shall be necessary. In case of a tie vote, the President shall have one vote in addition to his own votes.
The duties of the General Meeting of Stockholders shall be to:
(a) Elect its President, Vice President, and Secretary each year for the following fiscal year;
(b) Audit the general balance sheet and the profit- and-loss sheet annually;
(c) Decide annually on the distribution to be made of the 6% annual interest on the net capital and the 50% of the net profits;
(d) Amend the Articles of Association;
(e) Decide to increase or decrease the capital stock;
(f) Decide on the dissolution of the Company before its natural termination.
The regular General Meeting of Stockholders shall take cognizance of the first three points.

(g) The articles of association provide in article 9 that at least 5 percent of the net profits shall be set aside annually to set up a reserve fund, so long as such fund does not equal 10 percent of the capital stock. Net profit is defined as net gain after the deduction of 6 percent annual interest on the net capital shown on the company’s books of account at the commencement of the fiscal year. After the deduction of 5 percent for the reserve fund and 45 percent for the manager’s compensation, the regular general meeting of stockholders shall decide upon the distribution of the remaining 50 percent of the net profits.

(h) The articles of association provide in article 13 that when the company is dissolved, the manager shall be the liquidator and that the distribution of assets shall be pro rata to “the value of the shares.”

(i) The articles of association in article 15 repeatedly refer to the company as a “joint stock company.”

The Events Prior to World War II

11. Soon after Wilhelm Niehaus became a resident of Costa Rica as an immigrant boy of 17 in 1891, he started in business as the proprietor of a small store. Later, he entered farming, and built up an agricultural empire in cocoa, sugar, coffee, and cattle. He ran the business as a sole proprietorship until 1925. During the period prior to 1925, he adopted the policy of diversifying the enterprise’s surplus profits and accumulated funds, leaving some in Costa Rica and investing some in both guilder and dollar securities through the deBary Bank in Amsterdam, Holland.

12. Effective as of January 12, 1925, Wilhelm Niehaus organized the company in Costa Rica as a sociedad en comadita por acciones, and transferred to it the assets of his agricultural, industrial, and commercial businesses, including the reserve assets in the account with the deBary Bank, in exchange for 2,997 out of the 3,000 authorized shares of the company, plus additional considerations. Wilhelm Niehaus became the company’s stockholder of unlimited liability, and also the manager (gerente) and president of the company, which posts he held until his death in 1946.

13. (a) As indicated in finding 1, Wilhelm Niehaus moved from Costa Rica to Germany in 1919, and thereafter he was a resident of Germany until the time of his death in 1946, except for periodic visits that he customarily made to Costa Rica about every 2 years during the period 1919-1936.

(b) Despite his absence from Costa Rica during the greater part of the time after 1919, Wilhelm Niehaus maintained control over the company and made the important decisions for the company until the outbreak of World Warll.

(c) From 1919 until the outbreak of World War II, Wilhelm Niehaus selected in Germany the persons who were to be employed for the more responsible positions with the company in Costa Rica.

14. As soon as their education, was completed, Willie, Hans, and Walter became residents of Costa Nica and began to work in some part of the Niehaus enterprises. Willie and Hans worked for the company. Walter worked for a subsidiary, the Neimers Company, in which the company had a one-half mter est.

15. (a) When Willie and Hans first began to work for the company as young men, a Swiss citizen by the name of Pablo Ziegler Sacher, now deceased, was the senior executive of the company in Costa Nica. He had been with the company for many years. Later, Wilhelm Niehaus formally appointed Willie and Hans as general agents of the company with full powers, pursuant to the sixth article of the company’s charter (or articles of association), although they were to act jointly in all transactions and contracts relating to real property. Willie became the vice-president and the senior officer of the company in Costa Nica, and was responsible for the company’s operations on the Atlantic side of Costa Nica. Hans became the secretary of the company, a position junior in authority to that of the vice-president, and he was responsible for the company’s operations on the Pacific side of Costa Nica.

(b) After Willie and Hans became officials of the company, they conducted the day-to-day affairs of the company. However, they consulted their father on important questions — usually through correspondence, since Wilhelm Nie-haus spent most of his time in Germany — and his decision on any matter was final. This situation was changed by the outbreak of World War II, which disrupted and later severed the channels of communication between Costa Nica and Germany.

16. Walter never had any connection with the company’s management or operations, although he was a stockholder and attended stockholders’ meetings. As previously indicated, Walter worked for the Neimers Company, in which the company had a 50 percent investment interest but which was managed by members of the Neimers family.

17. The German children never had anything to do with the management or affairs of the company, at any time, directly or indirectly.

18. (a) At least as early as 1928, Wilhelm Niehaus decided to diversify the company’s surplus reserves further, and opened in the company’s name a second foreign account in dollars with the Royal Bank of Canada in New York City.

(b) Nothing was placed in the New York or Amsterdam accounts except the accumulated profits and surplus reserves of the company. No separate property of any individual member of the Niehaus family was ever deposited in these accounts. However, certain members of the family had separate individual foreign accounts of their own.

(c) The company accounts in the New York and Amsterdam banks were never “trading” accounts, but, rather, were inactive, and securities once bought usually remained unchanged indefinitely. The dividends and interest were not withdrawn, but were reinvested to augment the capital.

(d) Over the years, Wilhelm Niehaus handled the Amsterdam and New York accounts himself.

(e) Although Willie and Hans as general agents of the company had the power to take action with respect to each of these accounts, such power was never exercised by them prior to their father’s heart attack in 1986. After Wilhelm Niehaus had his heart attack in 1986, Willie and Hans became the administrators of both the Amsterdam and the New York accounts, but little, if any, action was taken by them under their power to act.

(f) The German children never had anything to do with the Amsterdam and New York accounts.

19. (a) Early in the history of the company, Wilhelm Niehaus began distributing his 2,997 shares in the company among members of his family. He transferred at least 1,348 shares to his wife. In 1931, the wife of Wilhelm Niehaus died in Germany; and upon her death, 598 of the shares in the company which she had received from her husband passed to three of her children, Kurt, Gertrude, and Imke, and 750 of these shares passed back to her husband. Wilhelm Niehaus transferred 50 shares each to his grandchildren, Franz and Horst Laue, on September 14,1928. Prior to 1937, Wilhelm Niehaus transferred 517 shares to Willie, 517 shares to Hans, and 516 shares to Walter.

(b) As a result of the transfers of shares in the company referred to. in paragraph (a) of this finding, the shareholdings at the time of the annual meeting on December 15,1937, were as follows:

Wilhelm_ 751
Willie_ 517
Hans_ 517
Walter_ 516
Gertrude_ 66
Kurt_ 266
Imke_ 266
Franz_ 50
Horst_ 50
Outside the family*- 1
3,000
♦Probably held by Paul Ziegler Sacher.

20. (a) Under the date of November 21, 1938, by formal “notarial” document, Wilhelm Niehaus sold to three of his children the 750 shares in the company which he had inherited from his wife, i.e., he sold 282 shares to Gertrude, 234 shares to Kurt, and 234 shares to Imke. This document was duly recorded and was formally licensed by the German foreign exchange authorities on January 11, 1939. The transfers were duly recorded on the books of the company in Costa Rica. The respective vendees gave Wilhelm Niehaus promissory notes for the purchase price of their shares.

(b) As a result of the 1938 sale mentioned in paragraph (a) of this finding, the shareholdings in the company at the time of the outbreak of World War II in Europe were as follows:

Wilhelm_ 1
Willie_ 517
Hans_ 517
Walter_ 516
Gertrude_ 348
Kurt_ 500
Imke_ 500
Franz_ 50
Horst-50
Outside the family. 1
3,000

The War Years

21. (a) Although Costa Nica was not directly involved in World War II until December 1941, the outbreak of the European phase of the war in September 1939 affected communications between Germany and Costa Sica almost at once. It became difficult, and ultimately impossible, for Willie and Hans to consult their father through correspondence concerning important questions of company business, as they had customarily done theretofore.

(b) At the regular annual meeting of the company’s stockholders on December 15, 1939, the Costa Rican brothers resolved not to distribute any dividends, but to place all the net profits in the reserve account.

(c) The Royal Bank of Canada account in New York City was closed early in 1940, and the company’s funds and securities at the Royal Bank of Canada were transferred to new accounts at the Chase Bank and the National City Bank in New York City.

(d) At the regular annual meeting of the stockholders on December 15, 1940, the Costa Rican brothers deemed the company’s situation to be sufficiently good to justify the declaration of a dividend of $20 per share (or a total of $60,000), the purchase of a valuable launch, and the purchase of four new farms, one containing more than 300 acres.

(e) Apparently, Willie and Hans exercised complete management control over the company’s affairs, and never consulted Wilhelm Niehaus on any company matters, during 1940 or thereafter through the war years.

22. By virtue of Executive Order No. 8389, as amended (12 U.S. C. (1964 ed.), pp. 2091-3), the company’s accounts in the New York banks were blocked effective June 14, 1941, because a substantial part of the company’s stock was owned by the German children.

23. On July 17, 1941, the United States placed the company on its Proclaimed List of Blocked Nationals. The effect of this action was to place a second block on the company’s accounts in the New York banks.

24. At four extraordinary meetings of the stockholders of the company which were held during the period July 15-October 27, 1941, and which were attended by the Costa Eican brothers, special dividends amounting to $65 per share were declared. The distributive portions due the German stockholders were credited to their accounts at the company because of the impossibility of paying the dividends to them, due to the lack of communications between Costa Eica and Germany.

25. (a) On October 27, 1941, as the result of the blacklisting of the company by the United States, the Costa Eican brothers agreed with the Costa Eican Government on an arrangement for Government supervision of the company’s affairs. This was known as Agreement No. 7. It was put into effect immediately.

(b) Agreement No. 7 provided in part as follows:
1. The firm Guillermo Niehaus & Co. requests and accepts the intervention of the Executive Power through its Office of Coordination, in the said businesses; it promises not to participate, directly or indirectly, nor permit any of its employees or agents to do so, in the propaganda, associations or war aims of the nations, societies or individuals who are fighting against democratic principles; promising to dismiss, either on its own initiative or at the indication of the intervening Office, any employee or agent who, in any manner whatsoever, may proceed against the objectives of the Black Lists, or of the interests which it is trying to defend.
2. For the purpose of guaranteeing the faithful observance of its promises, the firm Guillermo Niehaus & Co., in an irrevocable manner, authorizes the Secretariat of the Treasury to exercise inspection and control, directly or through its Office of Coordination, over all of its business, assigning as many inspectors as it may deem necessary.
3. The firm Guillermo Niehaus & Co. delivers, on this date, the balance of its business affected by this agreement, simultaneously depositing in the National Bank of Costa Eica and in the Bank of Costa Eica the available funds, binding itself to deposit there also any other subsequent income connected with these businesses during the enforcement of this Agreement. It agrees that' said bank accounts shall be controlled through the said Office, giving instructions to the above-mentioned Banks not to pay out on any checks without approval of the Office of Coordination. The Government, on its part, shall authorize withdrawals from said deposits of the sums necessary to manage the businesses covered in this Agreement, in accordance with the bills and other vouchers delivered to the said Office for its approval, including in said authorizations, whether in the form of salaries or fixed amounts in agreement with the controlling Office, the necessary amounts to pay the expenses of all of its employees and administrators within the national territory. It is understood that the authorization to withdraw shall be given in advance, Messrs. Guillermo Niehaus & Co. later delivering the invoices once it has them in its possession.
* * * * *
6. The legal maximum duration of this contract shall be ten years, computed from this date, and it shall expire automatically on the day on which the restrictions of the Black Lists are lifted with respect to Guillermo Niehaus & Co. In case of failure to obey any of these clauses or of any other matter which causes the rescission of this agreement before its normal termination, Guillermo Niehaus & Co. authorizes, in irrevocable form, the Executive Power to seek the freezing of the controlled funds for the duration of the restrictions previously stipulated, insofar as these are not necessary for payment of obligations already contracted as a consequence of past business.

26. (a) On November 1, 1941, Wilhelm Niehaus directed Kurt and Gertrude to sell to him their entire holdings of shares in the company, consisting not only of the shares which Wilhelm Niehaus had sold to them in 1938 but also the shares which they had inherited from their mother in 1931. Kurt and Gertrude agreed to do so. As consideration for the 1941 transfers of company stock by Kurt and Gertrude to Wilhelm Niehaus, he cancelled the promissory notes which Kurt and Gertrude had given to him at the time of the 1938 stock transaction.

(b) Because of the absence of communication between Germany and Costa Rica at the time, the 1941 stock transactions mentioned in paragraph (a) of this finding were wholly unknown to the Costa Rican brothers until long after the end of World War II, and they were never entered in the company’s books until sometime in 1949.

(c) Although the 1941 stock transfers referred to in paragraph (a) of this finding were apparently treated by Wilhelm Niehaus, Kurt, Gertrude, and the Costa Rican brothers as legal and effective, they were, in actuality, null and void for all purposes under Costa Rican law.

27. Costa Rica declared war on Germany on December 11, 1911,4 days after Pearl Harbor Day.

28. At the regular annual meeting of the company’s stockholders on December 15, 1941, which was attended by the Costa Rican brothers, the purchase of two additional farms was authorized.

29. The Government of the United States placed Willie and Hans on the Proclaimed List of Blocked Nationals on February 28,1942, and similar action was taken with respect to Walter on March 27, 1942. This automatically blocked their personal accounts in the New York banks.

30. On June 27, 1942, the Costa Rican Government can-celled Agreement No. 7; and thereafter the appropriate authorities of that Government took over full management and control of the affairs of the company. At about the same time, the Costa Rican brothers were placed under house arrest by the Costa Rican Government.

31. The regular annual meeting of the company’s stockholders for 1942 was held on December 15,1942. The minutes of the meeting indicate that it was routine in nature.

32. No meeting of the company’s stockholders was held after December 15,1942, until December 15,1946.

33. By a series of decrees beginning with a decree dated January 30, 1943, the Costa Rican Government seized and confiscated substantially all the assets of the company in Costa Rica. No external assets of the company in Amsterdam or New York were included in such decrees.

34. On July 8, 1944, the Costa Rican Department of Foreign Affairs, in an executive order, declared that the Costa Rican brothers had lost their Costa Rican citizenship.

35. On or about July 8, 1944, the Costa Rican brothers were arrested by Costa Rican authorities and deported to the United States, where they were interned and held until the end of World War II.

36. (a) On November 1, 1944, Wilhelm Niehaus directed Imke to sell him the shares of company stock which he had sold to her in 1938, and also the shares of stock which she had inherited from her mother in 1931. Imke acquiesced. In exchange for the company stock, Wilhelm Niehaus can-celled the promissory note which Imke had give to him at the time of the 1938 stock transfer.

(b) The transaction referred to in paragraph (a) of this finding was treated by Wilhelm Niehaus, by Imke, and by the Costa Rican brothers (after they learned of it in 1946) as valid and effective, but it was actually null and void for all purposes under Costa Rican law.

37. Prior to the end of World War II, the Dutch Government blocked the account of the company with the deBary Bank in Amsterdam.

38. On March 8,1945, the Costa Rican Department of Foreign Affairs, in an executive order, declared that Wilhelm Niehaus had lost his Costa Rican citizenship.

The Postwar Period

39. (a) In Germany, after the end of hostilities in World War II, Wilhelm Niehaus was living within the Bremen Enclave of the American Zone of Occupation.

(b) On September 15, 1945, Wilhelm Niehaus filed under protest the two separate instruments required by Military Government Law No. 53.

(c) The first of these documents was a “Declaration of Assets” dated August 23, 1945, accompanied by a letter of transmittal dated August 31,1945. This declaration asserted Wilhelm Niehaus’ ownership of 1,348 shares of stock in the company, which he said he had bought from his children, Gertrude, Kurt, and Imke. He divided the 1,348 shares into two groups — one consisting of 750 shares which were physically in Germany and the other consisting of 598 shares which were physically in Costa Rica. In the letter of transmittal, which was written on the letterhead of the Consulate of Costa Rica, Wilhelm Niehaus asserted his non-German status, his Costa Rican citizenship, and the non-applicability to him of Military Government Law No. 53. He requested prompt return of the securities.

(d) The second of the two documents filed by Wilhelm Niehaus under Military Government Law No. 53 was a deposit document. This document was dated August 14, 1945, and was accompanied by a letter of transmittal dated August 31, 1945. The document was entitled “Property Delivered to the Keichsbank Against Beceipt” pursuant to Military Government Law No. 53. In accordance with the document, Wilhelm Niehaus delivered to the Beichsbank’s Bremen office, against receipt, the 750 shares of company stock which he had possession of in Bremen (in addition to other property that is not pertinent to this litigation), and he also gave notice of the additional 598 shares of company stock which he said he had bought from his children and which were physically in Costa Bica. In his letter of transmittal, Wilhelm Niehaus made the same assertions and protests that he made in the “Declaration of Assets” referred to in paragraph (c) of this finding.

40. After the end of World War II, Willie was released by the United States from internment in January 1946, and Hans and Walter were released from internment in April 1946. The Costa Bican brothers then left the United States and returned to Costa Bica. They found substantially all of the company’s property in that country seized and confiscated, and they found the Amsterdam and New York reserve fund accounts blocked and unavailable. Willie and Hans jointly sought to administer the company’s affairs, but they were not in a position to conduct any active business. They began an immediate campaign to redeem the lost citizenships, and the confiscated property.

41. The Costa Bican brothers endeavored to secure a judicial nullification of the confiscation of the company’s properties in Costa Bica, but such efforts were unsuccessful. The Costa Bican brothers were successful, however, in securing nullification of the confiscation through executive and legislative action. The Government of Costa Bica is currently in the process of making full restoration to the company. Large and valuable properties worth approximately $550,000 in United States money have already been returned to the company. More than 4y2 million colones (i.e., more than $650,000 in United States money) has been paid in government bonds as partial compensation for properties which cannot be returned, and the remaining balance of compensation is presently under adjudication in the courts of Costa Nica. The Government of Costa Eica has acknowledged its obligation to pay full and fair compensation.

42. (a) The Proclaimed List of Blocked Nationals was abolished on July 8,1946.

(b) In 1946, the New York banks informed the company that its accounts had been freed from blocking.

43. Wilhelm Niehaus died in Germany on November 18, 1946. His will was dated November 29, 1938, and it correctly recited that, as of the date when the will was made, Wilhelm Niehaus owned only one share of stock in the company. The will left this one share to Walter, made certain other specific gifts, and then left the entire residue of the estate to Kurt, Gertrude, and Imke, “share and share alike.” This will appointed Kurt and Gertrude’s husband as executors.

44. (a) In the light of the invalidity and nullity of the 1941 and 1944 stock transfer agreements mentioned in findings 26 and 36, Wilhelm Niehaus actually owned no more than one share of stock in the company on the date of his death. On that date, the correct shareholdings in the company were as follows:

Wilhelm _ 1
Willie_ 517
Hans_ 517
Walter_ 516
Gertrude_ 348
Kurt_ 500
Imke _ 500
Franz _ 50
Horst_ 50
Outside the family_ 1
3,000

(b) Giving effect to the legacy of one share of company stock to Walter under the will of Wilhelm Niehaus, the correct shareholdings in the company on December 31, 1946, were as follows:

Willie_ 517
Hans _ 517
Walter_ 517
Gertrude_ 348
Kurt_i_ 500
Imke_ 500
Franz_ 50
Horst_ 50
Outside the family_ 1
3, 000

45. In Germany, Kurt and Herman Boese, the executors of Wilhelm Niehaus’ will, treated the 1941 and 1944 stock transfer agreements (see findings 26 and 36) as valid and binding agreements. Accordingly, they inventoried 1,348 shares of company stock as part of the assets of the estate, but did not assign a value to such stock as of the date of Wilhelm Niehaus’ death (November 18, 1946) because of the registration of the stock with, and its seizure by, the Military Government. No one knew at that time what would eventually happen to German external assets in the hands of, or under the control of, the Military Government.

46. (a) Following the death of Wilhelm Niehaus, and as a mark of respect and affection for him, the office of president of the company was not immediately filled. This office was offered to Willie, who declined it, and it remained vacant as a “posthumous honor” to Wilhelm Niehaus for a number of years. However, Willie, as vice president, was the senior executive of the company until 1955, at which time he retired and was succeeded in the office of vice-president by Hans.

(b) On December 15, 1962, Hans became manager (gerente) and president of the company.

47. The first meeting of the company’s stockholders after 1942 was held on December 15, 1946. The meeting was attended by the Costa Rican brothers. At this meeting, note was taken of the plans for action against the Government of Costa Sica with respect to the confiscations, and reference was made to the return of certain properties by the Government. The officers of the company were authorized to liquidate this property. In addition, note was taken of the 1941 stock acquisitions by Wilhelm Niehaus from Kurt and Gertrude, and of the 1944 acquisition of stock by Wilhelm Niehaus from Imke. The first knowledge of these transactions had reached Costa Rica in a letter from Germany dated June 15, 1946. No action with respect to these agreements was taken at the meeting on December 15,1946.

48. As of December 31,1946, the securities and cash in the New York and Amsterdam accounts under the company’s name were the sole and exclusive property of the company, as a separate entity and juridical person. None of the stockholders — neither the German children nor the Costa Rican brothers — had any right, title, or interest of any kind in such securities and cash on the date mentioned.

49. (a) The company’s agricultural and commercial operations having ceased in Costa Rica as a result of the expropriations mentioned in finding 33, and the idle reserves in New York and Amsterdam having no expectable future use, Willie and Hans, as the executive management of the company, decided early in 1947 to distribute the reserve funds of the company in New York to stockholders as a partial distribution of capital assets. Accordingly, Willie, Hans, and Walter, who were holders of a majority of the company’s outstanding shares, met on July 16,1947, in an extraordinary meeting of stockholders.

(b) At the stockholders’ meeting mentioned in paragraph (a) of this finding, an inventory of the securities in New York was stated, i.e., 2,321 shares at the Chase Bank and 2,211 shares at the National City Bank. These assets had been lying idle in New York all during World War II. It was resolved at the meeting of July 16, 1947, to distribute these assets “among the stockholders of our company in proportion to the stock owned by each,” and that orders were to be given to the New York hanks to make immediate transfers to Willie, Hans, and Walter of their portions, i.e., a total of 1,200 out of the 2,321 shares at the Chase Bank and a total of 1,123 out of the 2,211 shares at the National City Bank. With respect to the portions of the securities in the New York banks due the stockholders of the company other than Willie, Hans, and Walter, it was decided that such portions were not to be distributed forthwith, but “shall remain in the name of this company in the respective two banks until such time as the owners arrange for them.” Similar provisions were made with respect to the cash balances in the two banks, i.e., for the distribution to Willie, Hans, and Walter of their portions and the retention in the banks of the portions due persons other than Willie, Hans, and Walter.

(c) Appropriate orders were given promptly to the New York banks, which effected proportionate transfers of securities and cash to Willie, Hans, and Walter personally during the last week in July and early in August 1947.

(d) The failure to effect any distribution to the stockholders other than Willie, Hans, and Walter (i.e., to the German children) was the result of advice received from the company’s Costa Rican counsel. He raised several questions, including one concerning the effect of the 1941 and 1944 stock transfer agreements, of which notice had been received in Costa Nica prior to December 1943 by means of a letter, and another question relative to the effect of the seizure and control of certain of the company’s shares by the Military Government in Germany.

(e)- In actuality, the stockholders’ meeting of July 16, 1947, was invalid because of a failure to comply with the company’s charter. Since it was an extraordinary meeting, a special 8-day written notice in advance to stockholders was required, and such notice was not given or waived.

(f) Even if the stockholders’ meeting of July 16, 1947, had been properly called, the resolutions for the distribution of the assets in the New York banks would have been illegal and invalid as to the German children for another reason. Prior to this meeting, the assets in the New York banks were the sole property of the company, and the individual stockholders had no right, title, or interest in such assets. The resolutions referred to in paragraph (b) of this finding purported to transfer the title to the New York assets from the company to the individual stockholders. As of the date of the meeting, a special Costa Rican Law No. 26 was in effect, and this law prohibited the transfer of Costa Rican property to Germans without obtaining a license from the Junta de Custodia of Costa Rica. No such license was obtained with respect to the transfers referred to in this finding.

(g) For the reasons stated in paragraphs (e) and (f) of this finding, the action taken at the stockholders’ meeting of July 16, 1947, and the subsequent distribution of assets by the New York banks to Willie, Hans, and Walter pursuant to the resolutions adopted at such meeting, were invalid. Hence, the stockholders’ meeting of July 16, 1947, did not affect the title to the assets of the company on deposit with the New York banks, none of the stockholders received any interest in such assets by reason of the action taken at such meeting, and the company continued thereafter to have the entire right, title, and interest in such assets, to the exclusion of the stockholders.

50. On January 9, 1948, the Supreme Court of Justice of Costa Rica declared that the executive order which purported to nullify the Costa Eican citizenship of the Costa Eican brothers was unconstitutional.

51. The Junta de Custodia was abolished in Costa Eica, and all of its controls were lifted, in June 1948.

52. (a) Hue to the disorganization of the courts of Germany as the result of World War II and the elimination of Nazi lawyers and judges, the will of Wilhelm Niehaus was not probated until August 11, 1948, which was almost two years after his death, and the inheritance tax return was not filed until 'September 2, 1949, or later. The inheritance tax return listed 1,348 shares of company stock without any specific valuation. The return was accepted and the taxes were paid. No claim was ever made for further taxes.

(b) No executor was appointed for Wilhelm Niehaus’ estate in Costa Eica, since-he had no assets in that country.

53. (a) Sometime prior to the regular annual meeting of the stockholders on December 15,1948,.Kurt arrived in Costa Eica from Germany. He attended the annual meeting of the stockholders on the date mentioned, describing himself as acting in the capacity of executor of Wilhelm Niehaus’ estate and also as acting individually for himself, Gertrude, and Imke, the owners of a total of 1,348 shares in the company.

(b) The charter of the company specifically provides that “The General Meeting of Stockholders shall be held once a year on December 15 without the necessity of a special notice * * The meeting of December 15, 1948, was legally and regularly held.

(c) Kurt presented the 1941 and 1944 stock transfer agreements (see findings 26 and 36) at the stockholders’ meeting of December 15, 1948. These agreements were treated as valid and effective, and it was resolved at the meeting to make the appropriate entries on the stock register.

(d) At the regular annual meeting of December 15,1948, the stockholders approved arrangements which Willie, Hans, and Walter had made on June 8, 1948, with counsel to file claims against the Costa Rican Government arising out of the expropriations, including court action if necessary. The stockholders also approved detailed plans for the administration of the property recovered.

(e) The stockholders at the December 15, 1948, meeting ratified an arrangement that had been made on January 17 and 18, 1948, with Pablo Ziegler Sacher, the cashier of the company, under which one share of company stock in his name became company property (i.e., treasury stock). This left 2,999 shares outstanding.

(f) With respect to the resolutions that were adopted at the stockholders’ meeting of July 16, 1947, the stockholders at the December 15, 1948, meeting went through the double motion of ratifying the prior resolutions and adopting a set of new resolutions to the same effect. The stockholders at the December 1948 meeting also specifically listed the undistributed assets remaining in the New York banks (after the 1947 distributions to Willie, Hans, and Walter), and allocated these to the German children in proportion to their shareholdings in the company, i.e., to Kurt on the basis of his ownership of 500 shares in the company, to Gertrude on the basis of her ownership of 348 shares in the company, to Imke on the basis of her ownership of 500 shares in the company, to Franz on the basis of his ownership of 50 shares in the company, and to Horst on the basis of his ownership of 50 shares in the company. Willie and Hans were authorized to give instructions to the New York banks to effectuate the actual distributions.

(g) The action referred to in paragraph (f) of this finding effectively and for the first time transferred to the company’s stockholders, pro rata, the entire beneficial interest in the assets that were on deposit with the New York banks, and effectively terminated the pre-existing exclusive right, title, and interest of the company in such assets.

(h) Prior to the stockholders’ meeting of December 15, 1948, the sole owner of the assets in the New York accounts was the company, because there had been no valid action previously taken to transfer such assets, or interests in them, to persons other than the company. Therefore, prior to the stockholders’ meeting of December 15, 1948, the individual shareholders of the company did not have any property right or interest in the assets deposited with the New York banks.

(i) As a result of action taken at the stockholders’ meeting of December 15, 1948, the entire beneficial interest in the assets on deposit with the New York banks was transferred from the company to the company’s shareholders. Thereafter, the company did not have any beneficial interest in the assets deposited with the New York banks.

54. Despite the action that was taken at the stockholders’ meeting of December 15, 1948, as indicated in finding 53(f), Willie and Hans did not instruct the New York banks to make actual transfers of assets to the German children. The failure to give such instructions was on the advice of counsel. As a consequence, the assets on deposit with the New York banks remained in the name of the company.

55. Under the date of January 1, 1949, the allocation among the German children of the assets on deposit with the New York banks was entered in their favor on the books of the company pursuant to the resolutions adopted at the December 15,1948, stockholders’ meeting.

56. Early in 1949, the 1941 and 1944 stock transfers were entered on the company’s stock register, pursuant to the resolutions that were adopted at the stockholders’ meeting of December 15,1948.

57. On March 29, 1949, the Costa Pican Ministry of Foreign Affairs rescinded the executive order which cancelled the Costa Pican citizenship of Wilhelm Niehaus. As previously indicated, Wilhelm Niehaus had died during the interim on November 18,1946.

58. The regular annual stockholders’ meeting on December 15, 1949, was routine, except for the approval of an agreement for tlie liquidation of tlie company’s investment in tlie Peimers Company.

59. Proceedings were begun in 1950 to unblock and release the deBary account of the company in Amsterdam, which had been blocked continuously since before the end of World War II. This was undertaken by Willie, who went to Amsterdam for this purpose pursuant to an authorization that was granted at a stockholders’ meeting on September 22,

1950. Apparently, counsel had been engaged earlier in Holland, but he had not been successful and had requested that a representative of the company come to Holland from Costa Pica. Willie was therefore authorized to take action to secure the release of the company’s funds, as well as the private funds of Willie, Hans, and Walter in Holland, which were also blocked.

60. When the time arrived for the holding of the regular annual meeting of the company’s stockholders on December 15, 1950, Willie was still in Holland. Since none of the German children was in Costa Pica, and since Hans and Walter together owned only 1,034 shares in the company, it was not possible to obtain a quorum for a stockholders’ meeting on December 15,1950. In this connection, the company’s charter provides in pertinent part as follows:

* * * To constitute a quorum at a General Meeting of Stockholders, a majority of the shares issued must be represented, unless otherwise stipulated. However, if there is not a quorum on the date set for the Meeting, another date shall be set, and the meeting shall be held on that date with the shareholders present, whatever the number. * * *

61. (a) A stockholders’ meeting was held on January 8, 1951. It was attended by Willie (the owner of 517 shares), Walter (the owner of 517 shares), and Hans (the owner of 517 shares). The minutes of that meeting contained the following statement (among others):

Second Article: Due to the absence of Mr. Willie Niehaus Ahrens from the country on the day when the annual ordinary meeting is usually held, that is, December 15th, it was agreed to postpone the meeting until today.

(b) Willie reported to the meeting of January 8, 1951, that he had arranged in Amsterdam for the release of the deBary account from blocking and the transfer of the dollar assets from the deBary account to the company’s account with the Chase National Bank in New York.

(c) Action was taken at the stockholders’ meeting of January 8, 1951, to transfer to the stockholders of the company, pro rata, the dollar assets (cash and securities) which had been released from blocking in Holland and transferred to the Chase National Bank in New York. Willie and Hans were empowered to instruct the Chase National Bank to distribute to Willie, Hans, and Walter their respective portions of such assets; and actual distributions were thereafter made to Willie, Hans, and Walter on January 18, 1951. With respect to the portions of the assets due the German children, it was resolved at the meeting of January 8,1951, “that the remainder of the securities and cash be left in the account of Guillermo Niehaus & Co. in the said Bank until the termination of the proceedings which will be initiated by the legal owners, so that these securities may be transferred to them.”

(d) As of January 8, 1951,1,348 shares of company stock were still registered with the authorities of the Military Government in Germany.

(e) Prior to the stockholders’ meeting of January 8,1951, the company was the sole owner of the dollar assets which had recently been released from blocking in Holland and transferred to the company’s account with the Chase National Bank in New York. The company’s individual shareholders did not have any property right or interest in such assets.

(f) As a result of action taken at the stockholders’ meeting of January 8, 1951, the entire beneficial interest in the dollar assets mentioned in paragraph (e) of this finding was transferred from the company to the company’s shareholders. Thereafter, the company did not have any beneficial interest in such assets.

62. On February 21, 1951, the authorities of the Military Government in Germany, through the Finance Division of the High Commissioner for Germany, unconditionally released the company stock which had been registered with such authorities. The 750 shares which Wilhelm Niehaus had deposited in 1945 were sent physically to the office of the company in San Jose, Costa Rica. The released securities were received in San Jose sometime between April 7 and April 21,1951.

63. On March 7, 1951, an extraordinary meeting of the company’s stockholders was held. Kurt, Gertrude, Imke, and the Costa Rican brothers were present at this meeting. It was resolved by the stockholders at the meeting to distribute the guilder assets in the deBarry account on the same basis, and with the same reservation of the interests of the German children, as had been previously prescribed at the meeting of January 8, 1951, regarding the dollar assets previously maintained in the deBarry account (see finding 61(c)).

64. Despite the unconditional release by the Military Government in Germany of the shares of company stock seized under Military Government Law No. 53, the Costa Rican brothers (apparently on the advice of Costa Rican counsel) did not, prior to July 26,1951, instruct the New York banks to effect formal transfers to the German children of their reserved portions of the assets in the New York accounts.

The Vesting

65. (a) On July 26, 1951, the Attorney General of the United States, by Vesting Order No. 18246, vested the cash and securities held in the company’s accounts with the Chase National Bank and the National City Bank in New York. The vested cash, plus the cash subsequently received in connection with the sale of the vested securities, totaled $602,362.95 as of March 30, 1965.

('b) Vesting Order No. 18246 contained the following findings:

1. That Kurt Niehaus, Imke Steinhoff, Gertrude Bose [sic], Franz Bose [sic] and Horst Bose [sic], whose last known address is Germany, are residents of Germany and nationals of a designated enemy country (Germany);
2. That the property * * * [on deposit with the New York banks in the name of the company] is property within the United States owned or controlled by, payable or deliverable to, held on behalf of or on account of, or owing to, or which is evidence of ownership or control by Kurt Niehaus, Imke Steinhoff, Gertrude Bose [sic], Franz Bose [sic] and Horst Bose [sic], the aforesaid nationals of a designated enemy country (Germany) * * *.

66. Pursuant to Vesting Order No. 18246, the National City Bank on October 31,1951, and the Chase National Bank on January 23 and August 20,1952, delivered to the Federal Reserve Bank of New York, for the account of the Attorney General of the United States, the entirety of the cash and securities which they held in the name of the company, being the combination of the original New York accounts and the deBary account, less the previous distributions to Willie, Hans, and Walter.

67. (a) The property vested by the Attorney General on July 26, 1951, as the property of the German children consisted of the following:

National City Bank Account
$14,100 Cities Service Co. 3% debentures 1977
73 shares American Power & Light Co. common
74 shares American Sugar Refining Co. 7% cumulative preferred
41 shares American Telephone & Telegraph Co. common
190 shares American Water Works & Electric Co. $6 cumulative 1st preferred
400 shares Beaimit Mills, Inc. common
76 shares Florida Power & Light Co. common
96 shares Goodyear Tire & Rubber Co. common
190 shares International Nickel Co. common
216 shares Kennecott Copper Corp. common
759 shares Middle South Utilities, Inc. common
19 shares Minnesota Power & Light Co. common
77 shares Montana Power Co. common
117 shares New York, Chicago & St. Louis 6% cumulative preferred Series A
137 shares Texas Utilities Co. common
1,092 shares United Gas Corp. common Cash — $25,792.14
Chase National Bank Account
FS-21792
410 shares American Smelting & Refining Co. common
232 shares General Electric Co. common
636 shares Middle South Utilities, Inc. common
520 shares Texas Co. common
202 shares Timken Roller Bearing Co. common
425 shares Union Carbide & Carbon Corp. common
915 shares United Gas Corp. common Cash — $9,827.79
Chase National Bank Account
FS-33184
170 shares American Locomotive Co. common
171 shares American Power & Light Co. common
1,082 shares American Smelting & Refining Co. common
95 shares Beaunit Mills, Inc. common
57 shares Columbia Gas System, Inc. common
98 shares Consolidated Edison Co. of New York common
144 shares Electric Bond & Share Co. common
184 shares Florida Power & Light Co. common
193 shares General Electric Co. common
193 shares Kennecott Copper Corp. common
486 shares Middle South Utilities, Inc. common
185 shares Montana Power Co. common 318 shares National Steel Corp. common
98 shares New York, Chicago & St. Louis 6% cumulative preferred Series A
95 shares Public Service Electric & Gas Co. common
104 shares Standard Gas and Electric Co. $6 cumulative preferred
318 shares Standard Oil Co. of California common
316 shares Standard Oil Co. of New Jersey common
57 shares Texas Gulf Sulphur Co. common
325 shares Texas Utilities Co. common
726 shares United Gas Corp. common
579 shares United States Steel Corp. common Cash — $40,915.90

(b) All such property was delivered to the Federal Reserve Bank of New York in specie by the respective banks for the account of the Attorney General. Their first such delivery of property was the delivery of the assets of the National City Bank account on or about October 31,1951. The remaining deliveries were a second delivery on January 23,1952, and a third delivery on August 20, 1952, both being deliveries by the Chase Bank.

68. All the vested property was held thereafter by the United States, either in the Federal Reserve Bank of New York or in the Treasury of the United States, for a substantial period until the United States deliberately sold all the items therein, except the cash which the banks had delivered to the Custodian and the International Nickel shares. The first sale by the United States of any of the assets included in the first delivery was on February 8,1952, when the Cities Service bonds were liquidated. The final sale of any of the assets included in the first delivery was on April 10,1952, when the New York, Chicago & St. Louis 6% cumulative preferred shares were liquidated. The first sale by the United States of any of the assets included in the second and third deliveries was on April 4,1952, when the Montana Power common was sold out of Account No. FS-33184. The final sale of any of these assets was on November 18,1952, when the last block of American Smelting & Refining Co. common was liquidated.

69. The International Nickel Company shares listed as part of the National City Bank account were sought to be sold by the United States in November 1951, but this could not be effected because of prior claims thereto by the Canadian Custodian. These shares are still intact, together with the 100% stock dividend thereon and cash dividends of $6,170.21 as of April 30, 1964, subject to the authorization of the Canadian Custodian.

70. The securities described in previous findings, and/or the cash proceeds of the various sales thereof, together with the cash originally delivered by the banks in 1951 and 1952, are, and have always been, in the possession of the United States since the dates of the respective deliveries, either in the Federal Reserve Bank of New York or in the Treasury of the United States.

71. At the time of ¡the original deliveries in 1951 and 1952, the United States received from the National City Bank the sum of $25,792.14 in cash and received from the Chase Bank the sum oí $50,743.69, or a total of $76,535.83-in cash., being the then cash balances in the respective checking accounts held in the company’s name.

72. At the time of the original deliveries, the United States received from the two banks a portfolio with a then value of something over $500,000.

73. During the period when the United States kept the original portfolio intact, in whole or in part, i.e., during the period from October 31, 1951, to November 18, 1952, the United States received the sum of $11,015.41 as dividends and interest on the portfolio securities. :

74. The United States received the sum of $514,811.71 in cash from the sale of the portfolio securities (excluding the International Nickel shares).

75. The United States now holds the sum of $602,362.95 in cash, which represents the combination of the proceeds of sale in the amount of $514,811.71, the dividends and interest received in the amount of $11,015.41, and the initial cash paid over by the banks to the United States in the amount of $76,535.83.

76. If the vested securities had been held, and rights to subscribe to common stock had been exercised by the purchase of fractional shares, the market value of such securities as of December 31, 1964, would have been $1,584,023.77; the cumulative cash distributions from payments of dividends and from capital, including the sale of rights to subscribe to bonds, would have been $563,863.62 through December 31, 1964; and the total market value and cash distributions through December 31, 1964, would have been $2,147,887.39.

77. The plaintiffs in due course filed administrative claims with the Attorney General of the United States for the return of the seized property, but these claims were ultimately rejected.

CONCLUSION OK Law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs Irnke Steihhoff, Gertrude Boese, Franz Laue, Horst Laue, Thea Niehaus, and Hans Joachim Niehaus are entitled to recover and judgment is éntered to that effect. Tbe precise amount of recovery will be determined under Rule 47 (c) pursuant to the opinion. Recovery with respect to the International Nickel Company stock will be conditioned as stated in the opinion. It is further concluded as a matter of law that the plaintiff Gmo. Niehaus & Co. is not entitled to recover, and the petition is therefore dismissed as to that plaintiff.

In accordance with the opinion of the court and a stipulation of the parties consenting to the entry of an order of judgment, it was ordered on July 25,1967, that judgments be entered for the plaintiffs in the following amounts:

Imke Steinhoff_$206, 857.15
Gertrude Boese_ 143, 972. 58
Franz Laue_ 20, 685. 71
Horst Laue_ 20, 685. 71
Thea Niehaus and Hans Joachim Nie-haus, heirs of Kurt Niehaus (subject to the provisions of Section 11(e) of the stipulation)_ 162,628.43 
      
       Parts I, IIA, and most of IV of this opinion incorporate, with slight changes, the opinion prepared by Commissioner Mastín G. White, at the direction of the court, under Rule 57(a).
     
      
       Gmo. is the abbreviation for Guillermo, which is the Spanish version of Wilhelm or William.
     
      
      
         The bants* records for the pertinent period have been destroyed.
     
      
       The court notes (6 P. 2d at 747) that it is entitled to take judicial notice of the Treaty of Berlin, ending World War I (insofar as this country was concerned). Why the opinion referred to “judicial notice” we do not know; the defendant speculates that the court was considering the waiver issue sua aponte for the first time on appeal, and thought it could do so because the defense was a jurisdictional one; but there can be many other reasons, literary and substantive, for saying that the court took judicial notice of the treaty.
     
      
      
         Except perhaps for a small amount of money brought into this country after 1946.
     
      
      
        United States v. Algemene Kunstzijde Unie, 226 F. 2d 115, 118 (C.A. 4, 1955), cert. denied, 350 U.S. 969 (1956), involved a vesting order entered into by agreement, and the decision was limited to that special circumstance.
     
      
       Furthermore, since the company was not an enemy national, any suit by the company growing out of the vesting order would have to be instituted in a United States District Court because of restrictive language contained in Sections 7(c) and 9(a) of the Trading With the Enemy Act.
     
      
       The family name of Wilhelm Niehaus* mother was Ehlers. Consequently, he is often referred to in the court exhibits as “Niehaus Ehlers,” in accordance with the Costa Rican custom of adding the mother’s family name to the family name of the father.
     
      
       Many of the documents in the record reflect the Costa Rican custom of adding the family name of the mother to the family name of the father.
     