
    SOCIETE COTONNIERE DU TONKIN v. THE UNITED STATES
    [No. 388-55.
    Decided April 8, 1959.
    Plaintiff’s motion for rebearing overruled October 7, 1959] 
    
    
      
      Mr. Richard J. Cronan for the plaintiff. Messrs. Francis Currie, Lawrence M. Powers and Bums, Currie, Maloney & Rice were on the brief.
    
      Mr. Kendall M. Barnes, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.
    
      
       Plaintiff's petition for writ of certiorari denied by the Supreme Court February 23, 1960, 361 U.S. 965.
    
   JoNEs, Chief Judge,

delivered the opinion of the court:

This action involves certain bales of cotton presently stored in warehouses in Saigon, Eepublic of Vietnam. The plaintiff seeks recovery from the United States on alternative grounds; (1) the Government breached a contract with plaintiff for the purchase of the cotton, or (2) the plaintiff was so dealt with by the Government that a requisitioning of the cotton occurred, for which the Government must pay just compensation.

The plaintiff corporation was formerly engaged in the manufacture of cotton in Vietnam. Its manufacturing activities were conducted in Haiphong and Nam Dinh, which, prior to the Communist invasion of that area, were important industrial centers located in northern Vietnam. Headquarters for the plaintiff’s operations were located in southern Vietnam, in the capital city of Saigon.

The genesis of this dispute lies in the purchase by Societe Cotonniere of cotton under this Government’s Foreign Operations Administration program. A brief explanation of the program, its purposes and mechanics, is required in order to gain a clear understanding of this litigation.

On April 3, 1948, Congress approved an act creating the Economic Cooperation Administration “for the purpose of assisting certain foreign countries to achieve economic stability and independence through the promotion of increased agricultural and industrial productivity, monetary stability, and the growth of international trade”, 62 Stat. 137; Cong. Dir., 81st Cong., 2d sess., Jan. 1950, p. 670. Under this program, the Economic Cooperation Administration had established by 1951 a Mission in Saigon for the administration of aid to Cambodia, Laos, and Vietnam. During the year we are to be concerned with, 1954, the functions formerly exercised by the Economic Cooperation Administration were being conducted by the Foreign Operations Administration (FOA).

The FOA program of economic aid was designed in part to assist in overcoming obstacles to foreign trade arising from the beneficiary countries’ lack of credits convertible into dollars.

For an example of how this objective was realized, consider the manner in which the cotton in suit was acquired by plaintiff, a Vietnamese manufacturer: The cotton was purchased from American suppliers. These suppliers were paid in dollars which came from congressional foreign aid appropriations. At all times the dollars remained in the United States. The plaintiff paid for the cotton in the local currency — piastres—at the prevailing rate of exchange. The piastres never left Vietnam. They were received by the Government of Vietnam as “counterpart funds” which were used to finance public works projects initiated by the Vietnamese Government and approved by FOA.

The transaction was carried out through normal commercial and banking channels. FOA’s participation in the transaction was limited to the extent of assuring (1) competitive bidding by American suppliers; (2) dollar payments to the American banks which handled the sight drafts, invoices and bills of lading; and (3) transfer of the piastres paid by plaintiff into counterpart funds. Such was the extent of FOA’s authority. It neither bought the cotton from the suppliers nor sold it to the purchaser.

The economic aid agreement between the United States and Vietnam contained a provision for end-use checks by FOA of the commodities provided under the program. The end-use check was for the purpose of assuring that congressional appropriations were being used for the purposes intended; i.e., to verify that the property supplied under the aid program was being used to promote the economy of the beneficiary country. Where an end-use violation was discovered, the United States could only demand a refund by the beneficiary government to the United States of the dollar value of the commodities misused.

The Societe Cotonniere began purchasing cotton under this program soon after the Mission was established in Saigon. The cotton we are concerned with consists of 4,351 bales, which were part of 6,450 bales purchased in January 1954. Deliveries were made shortly after the purchase. In May 1954, plaintiff also purchased through FOA some 3,250 additional bales of cotton.

Events that followed were shaped by the nationalist upheaval against French authority which began in northern Vietnam in 1946, and reached a climax in July 1954, with the Viet Minh-Communist occupation of northern Vietnam.

About the middle of June 1954, the plaintiff’s general manager was notified by the French military commander that Nam Dinh, where plaintiff’s mill was located, was soon to be evacuated by the French forces. Acting on this information the plaintiff decided to request the Mission to cancel the contracts for cotton purchased in May and not yet delivered. The request for cancellation was made on June 18,1954. On the following day, June 19, it was agreed at a general meeting of the corporation, held in Saigon, that Nam Dinh was to be evacuated immediately, removing tbe European, personnel and as much of the company property as possible.. The evacuation, which was completed on June 30, was from Nam Dinh to Haiphong, located on the coast of the Gulf of Tonkin.

On June 29, the Washington office of FOA sent a message to the Saigon Mission, notifying it that 1,400 of the bales of cotton purchased by the plaintiff in May had not been shipped and its contracts had been cancelled at a penalty of one cent a pound. The remaining 1,850 bales, the message went on to add, were being diverted at sea, and would be sold at the best price obtainable (finding 12(a)). This information was conveyed to the plaintiff’s Saigon representative soon-after its receipt.

The content of messages exchanged on June 29 and June 30, between plaintiff’s president, Mr. Benoist, who had offices in Europe during all the time in question, and the company’s Saigon representative, revealed a strong desire on the part of Cotonniere that it be paid in Hongkong or United States dollars upon the resale of the cotton afloat. However, it was. the position of FOA that plaintiff would only be reimbursed in piastres, and the company was so advised (finding 12 (c) and (d)).

The method of disposition of the May cotton became a subject of much disagreement. Societe Cotonniere, in its letter of July 12 to the Mission, agreed that sale of the bales afloat would be made by FOA, but insisted that any offer for the purchase of the cotton was to be forwarded to its president for acceptance or rejection. It was stated that Cotonniere would retain the bills of lading on the cotton afloat pending resale of the cotton under terms acceptable to both parties (finding 12(g)).

During this same time the Mission began to express concern over the cotton warehoused at Haiphong. As stated in the Mission’s letter of July 12 to the plaintiff:

Following today’s conversation between members of our Mission and Mr. Boesch [the, Saigon representative] of your Company, I beg to inform you officially that we are worried about the safety of the stocks of cotton purchased with American Economic Aid funds. These stocks of cotton * * * are provisionally warehoused in Haiphong.
In view of the increased danger in North Vietnam, permit me to ask you * * * to inform us of the quantity of the stocks of cotton * * * now in North Vietnam as well as the places of storage, so that measures can be taken with a view to immediate removal of these commodities * * * which might be seized by the Communist armed forces.

On the same day this matter was brought to the attention of FOA — Washington. In its message to Washington the Mission suggested that, if Cotonniere on the basis of its legal ownership of the cotton interposed obstacles to its removal, the Government of Vietnam would be requested to seize the cotton. As an alternative measure it was suggested that the Mission be authorized to remove the cotton should the Vietnamese Government be unable to act quickly (finding 14(a)).

On July 15 FOA — Washington replied, stating that “FOA has no right to seize the cotton since possession and title has passed to the private buyer in Vietnam who has paid for same in piasters”. Instead, it was recommended that Cotonniere be approached with the suggestion that the original transaction be cancelled and the cotton returned to United States ownership. Such an agreement could be concluded, the reply stated, by loading the cotton for ocean shipment to Keelung, Formosa. Cotonniere would be reimbursed for the value of the cotton from counterpart deposits in exchange for ocean bills of lading which indicated Keelung, Formosa, as the destination. Under those circumstances the FOA would agree to assume all costs subsequent to the surrender of the ocean bills of lading. If plaintiff was not agreeable to this proposal, FOA — Washington suggested that the Mission discuss with the Vietnamese Government the advisability of that Government requisitioning the cotton to prevent it from falling into Communist hands. As a final alternative it was stated that, in the event that Cotonniere would not accept arrangements for the cotton to be returned to United States ownership for shipment to Formosa, FOA — Washington would reluctantly agree to shipment of the cotton to Saigon for storage under Cotonniere ownership, covering the cost of transshipment from counterpart funds (finding 14(b)).

Before the above message was received, the Mission on July 15 wrote to plaintiff’s Saigon representative as follows :

*****
(3) With respect to cotton, it is unmistakably clear that after the abandonment of Nam Dinh by the French Union forces, the purpose for which funds were made available originally no longer exists, and stocks of FOA-financed cotton presently located at Haiphong should be returned for disposition in other areas where FOA operates. Payments made in local currency for these stocks will be reimbursed to you. The Mission desires that the cotton stockpiled at Haiphong be shipped to Saigon immediately. Freight charges incidental to this move will be reimbursed.
(4) In regard to the 3250 bales of cotton * * * of which 1850 bales are afloat * * * the same regulations apply. As per your request of 18 June 1954, 1400 bales have been cancelled before departure from the U.S., and the 1850 bales afloat are being diverted from Vietnam to other countries for which FOA finances cotton purchases. Bills of lading for these 1850 bales of cotton now in your possession, or in the hands of your bank, should be turned over immediately, endorsed to the Mission in order that they can be forwarded to the place of discharge and utilization * * *. Advance counterpart deposits made by your company will be reimbursed after all charges and losses incidental to the cancellation and disposal are known and accounted for.
*****
(6) The Mission feels that under present conditions, the cotton stored at Haiphong does not serve any purpose whatsoever and occupies badly needed storage area in this exceptionally busy port, hence it should be moved from Haiphong to Saigon pending disposition instructions from our Washington office.

On the following day, July 16, plaintiff’s Saigon representative sent a message to the company’s offices in Haiphong, enclosing a copy of the letter quoted above. In part, the message stated:

*****
So far as the stock afloat is concerned, and the stock remaining in Haiphong, they [FOA] are adopting the following point or view: The cotton having been bought with the help of the U.S.A. for the purpose of being used for the manufacture of textiles, threads, etc. . . ., but the mills baying had to be abandoned, this cotton not being susceptible of being further transformed or converted; first, it should not be permitted to fall in the hands of the communists; second, it should be put in some safe place to be subsequently sold under our auspices or directions; third, according to their letter of the 15th inst. we would be reimbursed in piastres.
*****
Even if for the evacuation of our stocks at Haiphong, the FOA were in agreement to obtain for us a permit for exportation, the said stocks would be sold through their intervention, and we would be reimbursed only in piastres. It is on this point that we have argued with them from the beginning, to obtain from them an agreement to be paid in the currency in which the cotton will be sold. We have, however, unfortunately run into a categoric refusal. * * *
í¡: * * * *

The next day, July 17, the Mission again wrote the plaintiff’s Saigon representative. The letter stated:

Kef erence is made to our conversation of this morning regarding the FOA-financed cotton presently located at Haiphong. This is to confirm the fact that the Mission desires to have this cotton removed as soon as possible. If shipping space can be obtained, the cotton should be shipped to the TJ.S. Operations Mission, Foreign Operations Administration, Keelung, Formosa. If no shipping space for Formosa can be obtained in Haiphong, the cotton should be transshipped to Saigon.
The Mission has received authorization from the Foreign Operations Administration in Washington to reimburse you for the counterpart deposits and customs duties paid by you for the stocks located at Haiphong and to reimburse you for all charges incidental to the outload-ing of this cotton from Haiphong. Reimbursement will be made at Saigon in piastres upon the presentation of on board bills of lading covering the cotton located at Haiphong.
* * * * *

The Mission then sent the following message to FOA— Washington:

Subject to approval by the Director General at Haiphong, local Cotonniere officials today appeared to have agreed to move the cotton to Keelung from Haiphong assuming arrangements for slapping can be made, and, if these shipping arrangements cannot be made, to move the cotton to Saigon. * * *
* * * * *

The plaintiff then directed its efforts toward arranging for shipment of the Haiphong cotton to Formosa, or, if shipping space was unavailable, to Saigon. The Mission assisted in plaintiff’s attempt to locate shipping space destined to Formosa (finding 19(a)). However, shipping space at Haiphong was difficult to obtain at that time. Space that was available was controlled by the local military under a system of priorities administered at Haiphong. For a reason not disclosed by the record, plaintiff on or about July 23 began loading its Haiphong cotton, totaling 4,351 bales, for shipment to Saigon. Authority for shipment of the cotton was given by Cotonniere’s president, Mr. Benoist.

The movement of the cotton from Haiphong to Saigon required several shipments, extending over a period of approximately two months. As the cotton reached Saigon,, provisions were made for its storage by plaintiff’s local representative.

On July 23, the day that loading operations at Haiphong began, the plaintiff’s president in Paris consulted an American lawyer, Mr. Richard J. Cronan, about the legal rights of the parties in the previously mentioned 1,850 bales of cotton afloat that had been purchased by Cotonniere in May of 1954. On the same day, plaintiff’s Saigon representative was instructed by the company’s president not to dispose of the bills of lading covering the 1,850 bales until further notice.

Thereafter, Mr. Cronan assumed most of the responsibility for negotiating with FOA on behalf of the Societe Coton-niere. His initial views on the disposition of the cotton afloat were expressed in his letter of July 25 to plaintiff’s Saigon representative:

*****
* * * [W]e have no desire to keep the cotton in any place where it will fall into communist hands. We have not [sic] objection to the cotton, if it is still at sea, being rerouted. But we insist upon being consulted on the question of its sale and if it is sold in some other area where FOA is operating, we should receive payment in the currency of the area in which it is sold. But this sale, as indicated, should only be with and upon our consent. *****
It is for this reason that we recommended that you stand on the position taken in our behalf in your letter of the twelfth to the U.S.A. Mission.

Cotonniere’s president, Mr. Benoist, affirmed the position taken by Mr. Cronan. Pending a settlement of the 1,850 bales afloat, plaintiff’s Saigon representative was instructed by the company’s president and Mr. Cronan not to release the cotton shipped from Haiphong.

On July 29 Cotonniere’s Saigon representative forwarded to the Mission a message he had been instructed to send by Mr. Cronan. Its substance is found in the following language:

*****
* * * cotton stockpiled by us at Haiphong has already been shipped to Saigon for our account and as our property. We see nothing in the agreements between ourselves and you which would justify any change of our position and if any such regulation exists, we would appreciate it if you would bring it to our attention.
Furthermore, we know of nothing in the relations between ourselves and you which justify your exercising any title to this cotton independently of ourselves. It is for this reason that we cannot think of complying with your request that the bills of lading for the eighteen hundred and fifty (1850) bales of our cotton at sea or en-route be turned over to you. * * *

Shortly thereafter Cotonniere was notified pursuant to a cable from FOA — Washington that the 1,850 bales afloat had been sold in Formosa and Korea at Cotonniere’s price CIF. This disposition was protested by officials of the company. In a letter dated August 4 from plaintiff’s Saigon representative to Mr. Benoist, in which the disposition of the 1,850 bales was brought to the latter’s attention, it was stated in reference to the Haiphong cotton:

* * * * ❖
* * * JPOA would be in agreement to reimburse to us;
a) our price CIF Haiphong
b) transportation cost HG/Saigon
c) custom duties already paid by us
with the exception of bank charges which are as follows:
—on 1840 bales $125.000.—
—on 4651 bales $195.000. — total bank charges
320.000 $10
Furthermore the FOA does not see the possibility of reimbursing us the cancellation cost of $7.000 IJ.S. on the 1400 bales.

The terms set forth in the above letter marked the beginning of negotiations between Cotonniere and FOA for the purpose of reaching a comprehensive settlement of the points in dispute between the parties. Negotiations extended over the following six or eight months. While the parties settled their dispute concerning the May cotton (1,400 bales canceled ; 1,850 bales diverted), they never reached an agreement as to the Haiphong cotton. At the time of trial that cotton remained in storage in Saigon.

It is the position of plaintiff that the Mission’s letter of July 17,1954, constituted an offer to purchase the Haiphong cotton which was promptly accepted by Cotonniere. The acceptance, argues Cotonniere, was perfected not only by verbal assent, but also by the conduct of the plaintiff. Concluding its argument, plaintiff claims that the position taken by the FOA in discussions, beginning in early August 1954, with Cotonniere’s representatives amounted to a repudiation of the contract that had been entered into on or about July 17, a repudiation which excused the plaintiff from further performance under the agreement.

The reason now assigned by plaintiff for the shipment of the cotton from Haiphong to Saigon — that it was so obligated under a contract allegedly concluded with FOA on July 17 — finds little support in the voluminous record of this case. The motive for plaintiff’s action, however, is not easily determined. But it is clear that Cotonniere, having apparently failed in its attempt to use the offices of FOA for the purpose of realizing hard currency, e.g., dollars, for its cotton, treated the offer of July 17 as the beginning point for negotiations. The price terms offered on July 17 were apparently not acceptable to the plaintiff. Circumstances surrounding the shipment of the Haiphong stocks to Saigon, as clarified by the negotiations, point to Cotonniere’s unwillingness at that time to close an agreement on FOA’s terms.

A threat to Cotonniere’s property was posed by the rapid approach in June 1954, of Communist forces from the north. This impending danger caused the company to evacuate personnel and part of its property from the mill at Nam Dinh to Haiphong. The evacuation was completed on June 30, 1954. By that date the bales of cotton we are concerned with were in warehouse storage at Haiphong. The next several days, judging from the record, were consumed in correspondence between Cotonniere and FOA over the May cotton, part of which was at sea. The plaintiff apparently was unconcerned over the Haiphong stocks. It was the Mission, in its letter of July 12, which raised the question of the safety and disposition of this cotton. It was then realized by plaintiff that circumstances might compel it to sell those stocks.

Cotonniere was most anxious to be reimbursed in the currency in which the cotton would be sold. Vietnamese piastres were regarded as being of little or no value, except to the extent they could be converted into francs or, preferably, dollars. The importance which the plaintiff attached to this matter is revealed in correspondence with FOA concerning the disposition of the May cotton.

Thus, in a telegram sent on June 29,1954, plaintiff’s Saigon representative was instructed by the company’s president, regarding the undelivered May cotton, to “cover by arbitration * * * and direct cotton loaded at best either Formosa or Manilla if possible stipulate payment Hongkong dollars.” The reply to this wire on June 30 is significant:

* * * Our intervention with FOA in order to obtain the necessary funds in US dollars which we would need for * * * arbitration at * * * New York * * * had no success. * * *
Another long conversation with FOA, with a view to reselling the cotton already loaded, either at Manilla or Formosa against payment in HG dollars or even US dollars, has had no result. A formal refusal is made to us as a result of their regulations in force. The cotton will be sold by FOA and we shall be reimbursed in * * * piasters. * * *

Again tbe question was discussed in tbe letter of July 13, from Cotonniere’s Saigon office to its president:

* * * * * From tbe beginning, I bave protested * * * against our being reimbursed in piastres, I have set forth * * * the painful and critical situation that events have imposed upon our company, and in view of the losses sustained and still to be sustained * * * I have asked that they explore the possibility of having us benefit by a reimbursement in the currency in which the sale will have taken place. Unfortunately, the FOA rules are against this, and we shall only be reimbursed in piastres. * * *

When the subject of the Haiphong cotton was introduced by the Mission into the FOA-Cotonniere discussions, plaintiff suggested a different approach to the disposition of that cotton. Instead of agreeing to a sale of the stocks by FOA, which would lessen any chance Cotonniere might have for reimbursement in hard currency, FOA was questioned as to the possibility of its obtaining for Cotonniere an export license for the Plaiphong cotton. The reason for this suggestion was plaintiff’s belief that if it were permitted to export the cotton for sale in another area it could obtain payment in hard currency. FOA’s answer did not solve the problem. On July 16 the Saigon representative sent a message to plaintiff’s Haiphong office, setting forth the position adopted by FOA:

9[i 9(C
Even if for the evacuation of our stocks at Haiphong, the FOA were in agreement to obtain for us a permit for exportation, the said stocks would be sold through their intervention, and we would be reimbursed only in piastres. It is on this point that we have argued with them from the beginning, to obtain from them an agreement to be paid in the currency in which the cotton will be sold. We have, however, unfortunately run into a categoric refusal. * * *
* * * * *

Such was the position of the parties when the offer of July 17 was made to Cotonniere. The FOA considered itself bound by its own regulations to offer payment to plaintiff only in piastres. In all probability, Cotonniere thought it pointless to press any further its demand for hard currency. But the plaintiff did not abandon its search for a bargain. After the offer was extended and on through the formal negotiations beginning in August, Cotonniere continued to test its strength. The question then became, not one of whether plaintiff would be reimbursed in piastres, but, for what items would plaintiff be paid should FOA buy the cotton (finding 31 (b) ).

Counsel for plaintiff argues that the Mission’s cables of July 17 and July 20 directed to FOA — Washington acknowledge Cotonniere’s acceptance of the offer of July 17. Those two messages, in relevant part, stated:

Subject to approval by the Director General at Haiphong, local Cotonniere officials today appeared to have agreed to move the cotton to Keelung from Haiphong * * *. [July 17,1954.]
Shipment of stocks to Keelung, Formosa, from Haiphong, if possible, has been agreed to by Cotonniere. * * * [July 20, 1954.]

In calling these two documents to our attention, plaintiff states that in interpreting and applying offers and their acceptance, what the other party is justified as regarding as assent is essential, citing Williston on Contracts, 3rd Ed. § 35; Industrial Products Mfg. Co. v. Jewett Lumber Co., 185 F. 2d 866, 870 (1950). The rule as stated by plaintiff is perhaps more frequently phrased: Mutual assent is an essential prerequisite of the formation of a contract. But the test as to whether there is mutual assent is objective and does not depend upon the undisclosed intentions of the parties. Canister Co. v. National Can Corp., 63 F. Supp. 361, 365 (1945).

Plaintiff argues that its officials verbally agreed to the July 17 offer of FOA. The above two messages are said to establish this point. We are unable to agree with plaintiff, however, that the messages have the probative weight that is ascribed to them. In the one message it is stated that Coton-niere “appeared to have agreed to move the cotton to Keelung from Haiphong”. In the other it is said that shipment of the stocks to Keelung “has been agreed to by Cotonniere”. It is conceded that FOA’s primary interest was in the safety of the cotton, not the price for which it could be acquired. Even so, we think it significant that no mention was made in the Mission’s cables to Washington of the circumstances under which the cotton was being, or about to be, shipped from Haiphong.

Not only is correspondence from the Mission to FOA— Washington silent on this question, but so too are the communiques between Cotonniere’s Saigon headquarters and its president, who was residing in Europe. This situation is especially embarrassing to plaintiff’s case. Plaintiff’s representatives in Haiphong and Saigon did not possess the necessary authority to commit Cotonniere to an agreement such as contemplated in the July 17 offer. Prior authorization from Mr. Benoist, Cotonniere’s president, would have been needed. That authority was obtained for the shipment itself, from Haiphong to Saigon, but the record is free of any contemporaneous evidence that Cotonniere had legally obligated itself to m ake the shipment.

Certainly Cotonniere’s action in refusing to release the cotton to the Mission for shipment to Formosa was inconsistent with the idea that the company had obligated itself under the July 17 offer. If any notion was entertained by FOA that the cotton was being moved to Saigon in compliance with that offer, it should have been dispelled by a statement made by Cotonniere’s Haiphong representative in late July. The statement is referred to in a note placed in the Mission file on July 31,1954:

Cadoret states that although about half of the cotton is on the way to Saigon from Haiphong, he cannot give us authority to load it aboard for Keelung until he gets instruction from the head office in Paris. He has orders to move all cotton from Haiphong to Saigon and store it temporarily pending settlement of the 1840 bales afloat. What action do we or can we take now ?

It is these circumstances — not to mention the prolonged settlement negotiations which started in August — which convince us that the July 17 offer was never assented to by plaintiff.

The plaintiff’s second basis for recovery is that the (government requisitioned the Haiphong cotton for a public purpose. It is argued that great pressui’e from FOA caused Cotonniere to remove its cotton from warehouses and begin loading operations in Haiphong. Pressure was exerted and proved effective, it is urged, because of FOA’s known power to bring about a seizure of the cotton by the Vietnam Government, and, by reason of its “end-use” control, to impose penalties against Cotonniere for failure to return the cotton to United States ownership.

The elements necessary to prove a compensable “taking” are well-defined. It must first be shown that there was an effective “taking” of the property by the Government. It is not necessary that there be a “taking” in the sense of one being deprived of legal title or physical possession. Substantial interference with the owner’s use of the property is sufficient. Turney v. United States, 126 C. Cls. 202 (1953); Lord Manufacturing Co. v. United, States, 114 C. Cls. 199 (1949), cert. denied 339 U.S. 956; rehearing denied 340 U.S. 846. Authority to requisition is another element which must be established. United States v. North American Co., 253 U.S. 330, 333 (1920).

The record does not indicate that plaintiff’s property was interfered with in any way by FOA. While FOA was most anxious that the stocks be removed from the reach of the Communists, it took no measures which, in and of themselves, would accomplish that purpose. Plaintiff’s reference to FOA’s powers under the “end-use check” provision of the Vietnam-United States economic aid agreement would be relevant only if it could be shown that the use of those powers was threatened. This was not done.

At one point, FOA requested the Vietnam Government to requisition the Haiphong stocks (finding II). But this proposal was not acted upon by the Vietnam Government. There is no evidence that this request was made known to plaintiff, or used as a threat. If it was, it had no effect upon plaintiff as a threat. Plaintiff’s action in sending the Haiphong cotton to Saigon reflected its own choice in the matter.

It is obvious also that officials of FOA had no intention to requisition the Haiphong stocks. Thus in the message of July 15, directed to Cotonniere, it was stated: “The Mission desires that the cotton stockpiled at Haiphong be shipped to Saigon immediately.” In the offer of July 17 it was said that the Mission “desires to have this cotton removed [from Haiphong] as soon as possible.” The language used, framed as a “request” rather than a “demand”, is indicative of the position that had been taken by FOA when loading operations began at Haiphong. In short, none of the officers of FOA ever intended to requisition the Haiphong cotton in the name of FOA or any other agency or instrumentality of the United States.

Nor was FOA authorized to effect such a requisitioning. FOA—Washington’s message of July 15 to the Mission settled that point:

*****
FOA has no right to seize the cotton since possession and title has passed to the private buyer in Vietnam who has paid for same in piasters. Only entity with power of seizure would be Government of Vietnam. * * * *****

For the above reasons, the plaintiff’s petition will be dismissed.

It is so ordered.

Fahy, Circuit Judge, sitting by designation; Laeamore, Judge, and Madden, Judge, concur.

Whitaker, Judge, took no part in the consideration and decision of this case.

FINDINGS OF FACT

The court, having considered the evidence, the briefs and argument of counsel, and the report of Trial Commissioner W. Ney Evans, makes the following findings of fact:

I

1. (a) Before World War II French Indochina consisted of three main parts: Cambodia, Laos, and a long narrow strip on the east, facing the South China Sea and the Gulf of Tonkin, which was divided among Tonkin on the north, Cochinchina to the south, and Annam in between. In 1945-46, these three districts were combined to form Vietnam.

(5) Hanoi bad been the capital city of Tonkin; Hue the capital of Annam; and Saigon the capital of Cochinchina. At the times material here, Saigon was the principal seat of government and capital of Vietnam.

(a) Haiphong and Nam Dinh were important industrial centers in Tonkin and in northern Vietnam prior to the capture of that area by the Communists. Haiphong is on the coast of the Gulf of Tonkin, a few miles east of Hanoi. Nam Dinh is situated a short distance to the south, on the banks of a canal near the Yuan Kiang (Bed) Biver.

2. (a) In 1946, northern Vietnam became the center of a Nationalist uprising against French authority, under the leadership of Ho Chi Minh, whose forces came to be known as the Viet Minh.

(6) As the struggle progressed the Viet Minh accepted aid from the Chinese Communists.

(c) The fall of Dien Bien Phu to the Viet Minh-Com-munist forces occurred on May 7, 1954. This event marked the beginning of the withdrawal of French-Vietnamese forces from all of northern Vietnam.

(d) After the fall of Dien Bien Phu several weeks passed during which security measures on the part of the French-Vietnamese forces were highly uncertain. The defending forces fell back to the east, to concentrate around Hanoi and Haiphong. Nam Dinh was evacuated during June 1954, and the Viet Minh-Communist forces took possession of it in July.

(e) Meanwhile, conferences were in progress in Geneva between the French and the Viet Minh. On July 21,1954, an accord was reached under the terms of which (1) Vietnam was partitioned by an east-west line located a short distance north of Hue and (2) the French were allowed 300 days within which to complete the evacuation of North Vietnam, including Hanoi and Haiphong.

(/) South Vietnam likewise obtained recognition by France of a new autonomy, in conformity with which French support of Vietnamese currency was withdrawn during the early part of January 1955.

3. (a) The Economic Cooperation Administration was created by an act of Congress approved April 3,1948, “for the purpose of assisting certain foreign countries to achieve economic stability and independence through the promotion of increased agricultural and industrial productivity, monetary stability, and the growth of international trade.”

(5) The foreign aid program initially encompassed a financing program of aid to France and Overseas French Territories. By 1951 the Economic Cooperation Administration had established a Mission in Saigon, for the administration of aid to Cambodia, Laos, and Vietnam.

(o) Upon termination of the Economic Cooperation Administration on December 30, 1951, the Mutual Security Agency assumed responsibility for those functions of ECA which were within the purview of the Mutual Security Act of 1951.

(d) In 1953, the name of the agency was changed to Foreign Operations Administration, and in 1955 to International Cooperation Administration.

(e) The transactions material to this action were conducted by the Foreign Operations Administration.

(/) In these findings the Foreign Operations Administration is designated by the initials, FOA; the Washington office of FOA is designated by FOA — Washington; and the FOA Mission in Saigon is referred to as the Mission.

4. (a) One of the purposes of the FOA program of economic aid was to assist in overcoming impediments to foreign trade resulting from the beneficiary countries’ lack of credits convertible into dollars.

(5) The cotton in suit, for example, was purchased by a Vietnamese manufacturer (plaintiff) from American suppliers. The dollars paid to the American suppliers came from appropriations allocated by the Congress to foreign aid. The dollars never left the United States. Plaintiff paid for the cotton in piastres, paying the equivalent in dollars at the prevailing rate of exchange. The piastres never left Vietnam. They passed into the hands of the Government of Vietnam for use as counterpart funds to pay for public works or other welfare measures in Vietnam initiated by the Vietnamese Government and approved by FOA.

(e) The cotton transaction was initiated and completed through normal commercial and banking channels. FOA entered into it only to the extent of assuring (1) competitive bidding by the American suppliers; (2) dollar payments to the American banks which handled the sight drafts, invoices, and bills of lading; and (3) transfer of the piastres paid by plaintiff into counterpart funds. FOA did not buy the cotton from the suppliers or sell it to the purchaser.

5. (a) The economic aid agreement between the United States and Vietnam contained the customary provision for end-use checks by FOA of the commodities provided under the program. The end-use check was in the nature of an audit to assure that moneys appropriated by Congress were used for the purpose intended; i. e., to make sure that property furnished under the commercial aid program was used to promote the economy of the beneficiary country. The end-use check did not involve retention by the United States of any proprietary interest in the property furnished under the program. In the event of an end-use violation by the beneficiary country, or of misuse of the property by the purchaser, the United States could only demand that the beneficiary government refund to the United States the dollar value of the commodities misused.

(5) In conformity with the economic aid agreement, and pursuant to the regulations of FOA and the terms of the purchase announcements, the ocean bills of lading for commodities purchased under the program (including the cotton in suit) contained the following provision:

FOA Washington has an unqualified option to designate an alternate port of discharge. Diversion rate as per tariff to apply if discharge is effected at an alternate port other than the destination named on the bills of lading.

6. (a) The plaintiff corporation was organized in 1907 under the laws of France. For many years it conducted the manufacture of cotton in Indochina. On June 19, 1954, the name of the corporation was changed to Societe Cotonniere Transoceanique.

(5) Citizens of the United States may sue the Government of the Eepublic of France in the courts of that country and recover upon claims similar to the claim asserted here. Plaintiff’s allegation (denied by the answer) that the corporation is a citizen of France is unsupported by evidence.

(c) Plaintiff’s headquarters office (principal place of business) was at Saigon, although its manufacturing activities (the spinning, weaving, bleaching, and dyeing of cotton) were concentrated in Haiphong and Nam Dinh.

7. (a) Plaintiff’s mills in Nam Dinh were lost to the Communists in June 1954. Normal manufacturing use of the mills in Haiphong came to an end at the same time, although the physical properties did not pass into Communist hands until several months later.

(b) The end of plaintiff’s manufacturing business in Indochina was forecast by the loss of the mills in Nam Dinh and the closing of the mills in Haiphong. Plaintiff decided to cease operations in Indochina, to change the name of the corporation, and to move the principal office to Dakar.

8. (a) The President and Director General of the plaintiff corporation was M. Pierre L. Benoist, referred to hereinafter (as in much of the correspondence in evidence) as Mr. Benoist. Plaintiffs affairs were directed by him from Paris (his usual residence) and Geneva (where he had his summer home). He was never present in Saigon for conversations with representatives of the Mission.

(5) Employees of the corporation who were in Vietnam included the General Manager, Mr. Cadoret, and the company’s cotton buyer, Mr. Boesch.

(o) On July 23, 1954, Mr. Benoist, in Paris, consulted an American lawyer, Mr. Bichard J. Cronan, who maintained offices in Paris as well as New York. Mr. Cronan thereupon entered into the negotiations between plaintiff and FOA (in 'Washington and in Saigon), virtually replacing Mr. Benoist in the correspondence.

9. (a) Plaintiff began buying cotton through the FOA program shortly after the Mission was established in Saigon. Preliminaries for the purchase of the cotton in suit were begun in November 1953. The purchases were completed in January 1954, followed by deliveries shortly thereafter.

(5) In May 1954, plaintiff made another purchase through FOA of 3,250 bales. None of this cotton was delivered to plaintiff.

(c) As hereinafter more fully described, plaintiff undertook to cancel the May purchase, with the result that orders were canceled as to 1,400 bales, while 1,850 bales, already •shipped, were diverted. Differences between plaintiff and the Mission first arose over the disposition of the May cotton. While the parties were trying to settle those differences, further controversy arose over the disposition of what remained of the January purchases. In time the parties resolved their differences over the May cotton. They were unable to compose their differences over the January cotton, and this action resulted.

10. (a) About the middle of June 1954, plaintiff’s General Manager (Mr. Cadoret) learned from the Commander of the French military forces in Vietnam that Nam Dinh was soon to be evacuated by the French military forces. Decision was thereupon made, with the approval of Mr. Benoist, to request the Mission to cancel the cotton purchases made in May.

(5) Mr. Boesch was instructed by Mr. Cadoret to arrange with the Mission for cancellation of the May purchases. Accordingly, on June 18,1954, Mr. Boesch told Mr. Harold E. SchwTartz, of the Mission staff, of the discouraging report on the military situation in the north and asked him to use Mission channels to request cancellation of plaintiff’s May cotton purchases.

(c) Mr. Schwartz agreed to use Mission channels to request the cancellation upon receipt of written confirmation of the request. He reminded Mr. Boesch that plaintiff might incur penalties on the cancellation.

(d) Mr. Boesch promptly provided the written confirmation and Mr. Schwartz, on the same day (June 18, 1954), cabled FOA — Washington to cancel “by negotiation” as far as possible and to divert any portion of the purchase already en route.

11. (a) The occasion of Mr. Cadoret’s presence in Saigon in mid-June 1954 was a “general meeting” of the corporation, scheduled for and held on June 19, 1954. At this meeting the decision was made to evacuate Nam Dinh immediately ; to remove the European personnel and as much of plaintiff’s property as possible. Mr. Cadoret left Saigon for Haiphong on June 21, 1954, to supervise the evacuation, which was completed on June 30,1954.

(6) Upon completion of the evacuation of Nam Dinh, plaintiff had at Haiphong (in warehouse storage or at its plant) raw cotton in the amount of approximately 4,651 bales.

12. (a) On June 29, 1954, FOA — Washington sent the following message to the Mission:

With regard to the 1,400 bale total * * * not shipped, the contracts have been cancelled with an allowed penalty of 10 a pound. This included %0 per pound representing a decline in the market. FOA will pay this sum and charge it to the procurement authorization.
En route on the sea were 1,850 bales * * *. These * * * will be diverted and sold at the best price that can be obtained. The sales proceeds will be credited to the procurement authorization which will be reduced when the total expenditures have been determined. * * *

(5) The foregoing information was given to Mr. Boesch, orally, promptly upon its receipt at Saigon.

(c) Meanwhile, on June 29, 1954, Mr. Benoist had sent a telegram to Mr. Boesch concerning the undelivered (May) cotton, advising Mr. Boesch to “cover by arbitration * * * and direct cotton loaded at best either Formosa or Manilla if possible stipulate payment Hongkong dollars.”

(d) On June 80, 1954, Mr. Boesch replied by telegram to the wire from Mr. Benoist and also wrote to him, saying, in part:

* * * Our intervention with FOA in order to obtain the necessary funds in US dollars which we would need for * * * arbitration at * * * New York * * * had no success. * * *
Another long conversation with FOA, with a view to reselling the cotton already loaded, either at Manilla or Formosa against payment in HG dollars or even US dollars, has had no result. A formal refusal is made to us as a result of their regulations in force. The cotton will be sold by FOA and we shall be reimbursed in * * * piasters. * * *

(e) On July 1, 1954, a memorandum from Mr. Schwartz advised Mr. Boesch of the information received from FOA— Washington:

* * * 1,850 bales afloat will be diverted and sold to best advantage.
1,400 bales cancelled * * *.
* * * [C] ancelled at a penalty of 1‡ per pound * * * which included ^ * * * to cover the recent decline in the cotton market. The penalty will be charged to the PA and you will be obliged to make payment in piasters to cover the dollar equivalent.
* * * It may be some time before * * * sales [of the cotton which was loaded and shipped] are effected, and the costs determined. The proceeds of the sales will be credited to the PA. The deficiency will be assessed against you in piasters.
* * * [P] lease hold the original bills of lading for the present * * *.

(/) Mr. Boesch promptly forwarded a copy of the foregoing memorandum to Mr. Benoist, in Geneva. On July •6,1954, Mr. Benoist replied:

* * * The cancellation * * * is going to cost us about Seven thousand Dollars. There is nothing we can object to on that, because the market has declined since the purchase. It is very likely that it will be the same thing as to the cotton now afloat on which we shall have to sustain a loss.
However, following a procedure which tends to become more and more a matter of habit, the Americans intend to dispose as it may please them, of merchandise which, however, in strict law, does not belong to them. They acted in the same fashion in 1940 in selling securities as they wished without even warning us of it, in order to reimburse themselves for an advance which had been made.
You will please * * * address a registered letter to Mr. Schwartz, informing him that it is sent on my instructions. You will tell him that I am in agreement that these bales be sold through their intervention, but that I do not agree that they be sold no matter where to no matter whom and no matter how. The least is that we should be kept advised of their intentions, and they are not the judges to decide anything whatsoever with respect to this cotton. You will make it clear to him that I am opposed to delivering the bills of lading now. If we really want to be complacent, we do not wish that they make fools of us, particularly in view of the present circumstances. In a word, I want to be kept informed, and I wish that proposition be made to us with respect to the offers and the diverting of the ships. * * *

(y) On July 12,1954, Mr. Boesch wrote to the Mission:

* * * [PJursuant to the order received from our President, we agree that
1. the 1840 bales afloat * * * shall be sold by you.
2. but that any offer received by you shall be previously submitted to us in order to be transmitted to our President * * * who will take the decision of accepting or refusing it. The cotton being, as a matter of fact, our property as a result of our having paid for it, we desire to decide the question with respect to its resale.
3. The bills of lading * * * will remain in our possession up until the time when a resale will have occurred under an agreement between the parties. * * *

(h) On July 13, 1954, Mr. Boesch wrote again to Mr. Benoist, enclosing a copy of his letter of July 12 to the Mission, and advised that:

* * * [W]e shall not deliver any bills of lading without a settlement having been reached and accepted by you. * * * On the cotton afloat * * * we are holding
* * * bills of lading * * * [for 792 bales]. * * *
From the beginning, I have protested * * * against
our being reimbursed in piastres, I have set forth * * * the painful and critical situation that events have imposed upon our company, and in view of the losses sustained and still to be sustained * * * I have asked that they explore the possibility of having us benefit by a reimbursement in the currency in which the sale will have taken place. Unfortunately, the FOA rules are against this, and we shall only be reimbursed in piastres. * * *

13. (a) In the foregoing letter Mr. Boesch further advised Mr. Benoist:

* * * We were convoked yesterday by the FOA who wanted to know the size of our cotton stock at Haiphong. They expressed a fear that it might fall in the hands of the VM. Not knowing the Haiphong stock, which, as a matter of fact, is our property, I asked them to write us, and am enclosing * * * a copy of their letter * * *. Should circumstances compel us to sell this cotton, I believe it would be possible to obtain an export license, which would enable us to sell it outside of Indochina. * * *

(5) Following is the Mission’s letter of July 12, 1954, to the plaintiff, a copy of which was forwarded to Mr. Benoist by Mr. Boesch:

Following today’s conversation between members of our Mission and Mr. Boesch of your Company, I beg to inform you officially that we are worried about the safety of the stocks of cotton purchased with American Economic Aid funds. These stocks of cotton * * * are provisionally warehoused in Haiphong.
In view of the increased danger in North Vietnam, permit me to ask you * * * to inform us of the quantity of the stocks of cotton * * * now in North Vietnam as well as the places of storage, so that measures can be taken with a view to immediate removal of these commodities * * * which might be seized by the Communist armed forces.

(c) Mr. Boesch was in frequent conversation with members of the Mission staff during this period. Before the foregoing letter was written he had told the Mission that he could not “give instructions to Mr. Cadoret up in Haiphong * * * to ship this cotton out without having a covering letter.” After receiving the Mission’s letter of July 12, 1954, Mr. Boesch advised the Mission that it was insufficient “for us to give orders to Haiphong for the evacuation of the cotton” because “we had no guarantee whatever in that letter.”

14. (a) On July 12, 1954, the Mission sent the following message to FOA — Washington:

Stockpiled at Haiphong, estimated two thousand to three thousand bales cotton financed by FOA is in possession Cotonniere. Immediate removal this cotton is absolutely essential. FOA in Washington * 1> * is requested, in order to avoid necessary for double handling, to instruct Mission concerning shipping destinations. Japan, Korea, or Formosa would be our proposals. Since Cotonniere has already made payment of counterpart for this cotton, it may, on basis of legal ownership, interpose obstacles to cotton removal. If so, we would ask Government of Viet-Nam to seize possession pursuant to the MSAct, Section 524, and if that Government, because of administrative inefficiency, could not act with dispatch, we propose that Mission be authorized to accomplish removal of cotton. We understand vital necessity of removing cotton from Haiphong and will initiate such a removal to Saigon by July 19 if shipment to another point in the Far East cannot be accomplished because of time limitations. We ask your immediate reply and advise you that the Embassy here agrees with the foregoing message.

(5) On July 15, 1954, FOA — Washington replied:

We concur in Mission’s apprehension regarding cotton located in Haiphong area. Believe shipment Kee-lung better than Saigon which latter would involve extra costs of handling and transportation.
FOA has no right to seize the cotton since possession and title has passed to the private buyer in Vietnam who has paid for same in piasters. Only entity with power of seizure would be Government of Vietnam. Moreover, Section 524 of the Mutual Security Act does not apply to economic aid funds.
We recommend that Cotonniere first be approached via the Government of Vietnam with the suggestion that the raw cotton on hand, for which they would have no further use, be returned to U. S. ownership. The suggestion would be to cancel the original transaction by agreement. This could be accomplished by loading the cotton aboard an ocean vessel for shipment to Keelung, Formosa. The value of the cotton would be refunded to Cotonniere from counterpart in exchange for ocean bill of lading which indicated Keelung, Formosa as tlie place of destination. FOA would agree, under these circumstances, to assume all costs subsequent to issuance and surrender of ocean bill of lading showing destination Keelung.
As an alternative measure, in the event Cotonniere is unwilling to return the cotton to U. S. ownership, it is suggested that the Mission discuss with the Vietnamese Government the advisability of its seizing the cotton to prevent the Communists gaining possession of it. If this were done, the IT. S. would reimburse and assume same responsibilities as outlined above.
If you find you cannot arrange for the cotton to be returned to the ownership of the TJ. S. for delivery to Formosa, IT. S. would reluctantly agree to shipment of cotton to Saigon for safe storage under Cotonniere ownership. FOA would agree to release of costs of transshipping Haiphong to Saigon from counterpart funds as an inducement.

(<?) On July 16, 1954, the Mission replied to FOA— Washington:

Re estimated 3,000 cotton bales Cotonniere reluctant to move them anywhere except to Hong Kong to be sold there for Cotonniere’s own account. Mission requested by formal letter on July 15 that cotton be removed to Saigon. Do not anticipate a favorable reply. French and Viet-Namese officials are being requested to requisition the cotton and remove it to Saigon. A possible problem is question of shipping. Purchase of Nam Dinh mills by syndicate composed of Saigon, Indian or Chinese nationals is subject of current rumor. Cotonniere would be influenced by such a development to keep cotton at Haiphong.

15. (a) On July 13, 1954, Mr. Boesch sent the following note to plaintiff’s office in Haiphong :

* * * FOA * * * called us yesterday in order to find out the importance of the stock of cotton remaining in Haiphong. Fearing that this stock might eventually fall into the hands of the Viets, FOA would like to see it evacuated and above all know its importance. Not knowing the importance of the stock provoked this letter. The conversation concerning its evacuation ha1? ing been opened, we asked if it were possible to obtain an export license through the intervention (finagling, influences of FOA). It appears that this is possible. Not knowing your intentions with respect to this cotton, we would appreciate * * * your answer for the FOA.

(6) On July 16, 1954, Mr. Boesch sent the following-additional message to plaintiff’s office in Haiphong:

* * * [W]e have been convoked once more by the-FOA, and not being in agreement with their manner of seeing things (we following the line of instructions of our President Director General), we asked them to give us their comments in writing. As a consequence, we are-enclosing herewith a copy of their letter of yesterday, and we would appreciate it if you would let us have your instructions thereon.
:{< % % $ *
So far as the stock afloat is concerned, and the stock remaining in Haiphong, they are adopting the following-point of view: The cotton having been bought with the-help of the U. S. A. for the purpose of being used for the manufacture of textiles, threads, etc. . . ., but the-mills having had to be abandoned, this cotton not being susceptible of being further transformed or converted; first, it should not be permitted to fall in the hands of' the communists; second, it should be put in some safe-place to be subsequently sold under our auspices or directions ; third, according to their letter of the 15th inst. we would be reimbursed in piastres.
*****
Even if for the evacuation of our stocks at Haiphong, the FOA were in agreement to obtain for us a permit for exportation, the said stocks would be sold through their intervention, and we would be reimbursed only in piastres. It is on this point that we have argued with them from the beginning, to obtain from them an agreement to be paid in the currency in which the cotton will' be sold. We have, however, unfortunately run into a categoric refusal.
This matter thus taking a very difficult and delicate-turn, we await your reply with impatience.

16. (a) On July 15,1954, the Director of the Mission had acknowledged receipt of the letter of July 12 from Mr. Boesch (keyed as “letter No. 313/17”) :

* * * It appears from your letter * * * and the-conversations with * * * Mr. Boesch that serious misunderstandings exist as to title and disposition of cotton, furnished to your company through the Vietnamese Government with U. S. dollars made available by the Foreign Operations Administration * * *.
To clarify these misunderstandings, the Mission desires to point out the following:
(1) U. S. dollars furnished to importers through the channels of the Vietnamese Government for the importation of commodities are covered by the bilateral agreements between the United States * * * and the Government of Vietnam.
(2) These agreements and pertinent U. S. legislation clearly specify that commodities financed by the Foreign Operations Administration are imported into the State •of Vietnam for definite purposes, in your case for manufacturing raw cotton into cloth at your installation at Nam Dinh.
(3) With respect to cotton, it is unmistakably clear -that after the abandonment of Nam Dinh by the French Union forces, the purpose for which funds were made .available originally no longer exists, and stocks of FOA-financed cotton presently located at Haiphong should be returned for disposition in other areas where FOA operates. Payments made in local currency for these stocks will be reimbursed to you. The Mission desires that the cotton stockpiled at Haiphong be shipped to Saigon immediately. Freight charges incidental to this move will be reimbursed.
(4) In regard to the 3250 bales of cotton * * * of which 1850 bales are afloat * * * the same regulations apply. As per your request of 18 June 1954, 1400 bales have been cancelled before departure from the U. S., and the 1850 bales afloat are being diverted from Vietnam to other countries for which FOA finances cotton purchases. Bills of lading for these 1850 bales of cotton now in your possession, or in the hands of your bank, should be turned over immediately, endorsed to the Mission in •order that they can be forwarded to the place of discharge and utilization * * *. Advance counterpart deposits made by your company will be reimbursed after all •charges and losses incidental to the cancellation and disposal are known and accounted for.
(5) In view of the above, the Mission cannot accept the conditions Nos. 1 and 2 proposed by you in your letter of July 12 since they are contrary to existing agreements between the United States * * * and * * * Vietnam.
(6) The Mission feels that under present conditions, the cotton stored at Haiphong does not serve any purpose whatsoever and occupies badly needed storage area in this exceptionally busy port, hence it should be moved from Haiphong to Saigon pending disposition instructions from our Washington office.
*****

(&) Upon receipt of the foregoing letter Mr. Boesch again-advised the Mission that he could not order removal of the-Haiphong cotton on the basis of that letter.

17. On July 16,1954, the Mission wrote to the Vietnamese-Administrator General of the American Economic Aid Committee:

Reference is made to our conversations of July 15 and 16 in regard to stocks of cotton held by the Societe Coton-niere at Haiphong and cotton purchased by this company * * *. I am attaching hereto copy of the Mission’s letter to Societe Cotonniere dated July 15, 1954-for your information and action.
I should like to point out again that the Mission considers it of the utmost importance that existing import licenses issued to the Societe Cotonniere be cancelled immediately. Further, since the Cotonniere has a stock of FOA-financed cotton at Haiphong, it appears to be-necessary that the Cotonniere should be requested to ship the product located at Haiphong immediately. to Saigon.
From our conversations with the Cotonniere, it appears to be unlikely that the Cotonniere is willing to-undertake the movement of cotton from Haiphong to Saigon. In view of the fact that the cotton in Haiphong cannot serve any purpose whatsoever, and the Coton-niere might try to export the cotton from Vietnam, it appears to be wise to request the competent authorities of the Vietnamese Government to requisition the cotton, and have it shipped to Saigon.

18. (a) On July 17, 1954, the Mission wrote to Mr. Boesch:

Reference is made to our conversation of this morning-regarding the FOA-financed cotton presently located at Haiphong. This is to confirm the fact that the Mission desires to have this cotton removed as soon as possible. If shipping space can be obtained, the cotton should be shipped to the U. S. Operations Mission, Foreign Operations Administration, Keelung, Formosa. If no shipping space for Formosa can be obtained in Haiphong, the cotton should be transshipped to Saigon.
The Mission has received authorization from the Foreign Operations Administration in Washington to reimburse you for the counterpart deposits and customs duties paid by you for the stocks located at Haiphong and to reimburse you for all charges incidental to the outload-ing of this cotton from Haiphong. Keimbursement will be made at Saigon in piastres upon the presentation of on board bills of lading covering the cotton located at Haiphong.
* * * * *

(&) On July 17,1954, the Mission sent the following message to FOA — Washington:

Subject to approval by the Director General at Haiphong, local Cotonniere officials today appeared to have agreed to move the cotton to Keelung from Haiphong assuming arrangements for shipping can be made, and, if these shipping arrangements cannot be made, to move the cotton to Saigon. Berdaz, Counsellor for Economics and Finance in General Office of French Commissioner, assured Mission that instructions will be given Coton-niere that this cotton be returned to ownership of XT. S.

(o) On July 17,1954, Mr. Boesch telegraphed Mr. Cadoret in Haiphong:

* * * MSA Washington requests us in writing to effect loading FOA Keelung Formosa if freight lacking then towards Saigon of all the stock USA cotton we shall be reimbursed against ladings cost insurance freight at purchase price with customs cable decision what stock.

(d) On the same day Mr. Cadoret replied:

Our stock 4651 bales cable if MSA proposes shipment abroad stop in the contrary case we shall send Saigon end month by Borcor * * *.

(e) Mr. Boesch’s reply to Mr. Cadoret is not in evidence.

19. (a) On July 20,1954, Vietnam’s General Administrator of American Economic Aid sent the following telegram to Deleconord at Haiphong:

Upon request from STEM please give facilities Coton-niere Nam Dinh to reexport its 4651 bales raw cotton towards Formosa purchased with AEA funds * * *.

(b) On the same day (July 20) the Mission sent the following message to FOA — Washington:

Shipment of stocks to Keelung, Formosa, from Haiphong, if possible, has been agreed to by Cotonniere. If it is not possible to secure shipping to Keelung, Coton-niere agrees to ship the stocks from'Haiphong to Saigon. 4651 bales of cotton financed by FOA. are located in Haiphong according to advice from Cotonniere. Upon completion arrangements for shipping, we will advise you immediately.

(c) Shipping was at this time in relatively short supply at Haiphong. Available space was controlled by the military under a system of priorities administered at Haiphong. Authorities (French or Vietnamese) at Saigon had little knowledge of the details or potentials of the shipping situation.

{d) On July 23,1954, Deleconord at Haiphong replied to the telegram of July 20 from Vietnam’s General Administrator of American Economic Aid:

* * * 1087 hales * * * being loaded * * * Saigon * * * balance already custom cleared * * * 3564 bales shall be reshipped here end July towards Saigon * * * these lots intended being reshipped Saigon towards Formosa according to instructions.

20. (a) Loading of the Haiphong cotton for shipment to Saigon was begun on or before July 23, 1954. Mr. Cadoret had been in communication with Mr. Benoist, and Mr. Benoist had authorized the movement of the cotton from Haiphong to Saigon. The exact date of Mr. Benoist’s decision in the matter is not in evidence.

(b) Several separate shipments, spread over a period of two months or more, were required to complete the transfer of tbe cotton from Haiphong to Saigon.

(o) As the cotton arrived at Saigon from Haiphong, Mr. Boesch received it on behalf of plaintiff and arranged for its storage as best he could with the limited facilities available.

21. (a) On July 23, 1954, the consultation of Mr. Cronan by Mr. Benoist was begun. Both men were in Paris.

(b) Mr. Benoist sought Mr. Cronan’s advice, initially, with respect to the legal rights of the parties (plaintiff and FOA) in the cotton afloat. Mr. Benoist was unable to supply Mr. Cronan with some of the information which Mr. Cronan considered material. The effort to obtain the desired information was begun by Mr. Benoist, but within a few days this effort and virtually all remaining correspondence were taken over by Mr. Cronan, including the guidance of Mr. Boesch in Saigon and Mr. Cadoret in Haiphong relative to the Haiphong cotton.

22. (a) On July 23, 1954, Mr. Benoist telegraphed Mr. Boesch to “cable urgent approximate position * * * 1840 bales at sea” and not to dispose of the documents (bills of lading) until further notice.

(b) Mr. Boesch replied the next day that the position of the cotton afloat was unchanged; that he had no other information from FOA; and that he was holding the documents in accordance with instructions.

(c) On July 25,1954, Mr. Cronan wrote (in the name and on behalf of Mr. Benoist) to Mr. Boesch “re: 1850 Bales U. S. Cotton”:

* # * * *
We do not have in hand a copy of the agreement between the U. S. Government and Vietnam with respect to operations of this nature, but we are seriously wondering whether the said agreement and any relative laws cover a situation such as has presently developed. While it is true the purpose for which the funds were made available no longer exists in view of the abandonment of Nam-Dinh, nevertheless we paid for and are the present owners of the cotton and we cannot be deprived of our title thereto by the mere circumstance that the purpose of the purchase no longer exists. Of course, it can be that there are some specific provisions of the agreement between U. S. A. and Vietnam, or some special regulations that hold to the contrary, and that is why we are most anxious to obtain a copy of this agreement.
We have discussed this matter informally with the authorities here and their confidential feeling is to the general effect that there is no solid basis for the claim of the Mission in Vietnam to a right to sell and dispose of this cotton without our consent and then to impose upon us the losses resulting from any such sale that had been so effected by it upon its own responsibility. Naturally, the authorities here protected themselves and their comment by saying that the U. S. A. Mission in Saigon might have obtained special covering instructions from Washington. But, even so, it is not clear that this would permit them to exercise the rights they now pretend to have.
Naturally, we have no desire to keep the cotton in any place where it will fall into communist hands. We liave not [sic] objection to the cotton, if it is still at sea, being re-routed. But we insist upon being consulted on the question of its sale and if it is sold in some other .area where FOA is operating, we should receive payment in the currency of the area in which it is sold. But this sale, as indicated, should only be with and upon our consent.
It may be that you will be contacted further by Mr. Stelly or Mr. Paul E. Everett Jr. But, in any case, we would suggest that you write a letter to Mr. Everett ■adapting it to the circumstances but in a form somewhat as follows:
‡ ‡ ‡
Some such letter might well be sent while we are attempting to ascertain the true position so far as the fundamental agreement between the U. S. A. and Vietnam is concerned, and also as to any regulations that may have been adopted under it. At the moment, we are busy checking this position and, so far we see no basis for Mr. Everett’s attitude.
■ It is for this reason that we recommended that you stand on the position taken in our behalf in your letter of the twelfth to the U. S. A. Mission.

(¿i) On July 25, 1954, Mr. Benoist cabled Mr. Boesch to forward a copy of the FOA agreement between the United States and Vietnam, and added—

* * * in absence examination agreement suggest you stand firm upon conditions your letter to USA mission July twelfth * * * Believe regardless any alleged regulations cotton remains our property therefore cannot be independently disposed of by FOA with all losses falling upon us * * *

(e) On July 27, 1954, Mr. Benoist sent another cable to Mr. Boesch:

After consulting with American international lawyer who has written you not to release cotton which comes from Haiphong before knowing what conditions are offered for cotton at sea.

(/) On July 29, 1954, Mr. Boesch forwarded to the Director of the Mission the letter he had been instructed by Mr. Cronan to send, as follows:

We have your letter of the fifteenth and have referred it to our Director General for comment and instructions.
While awaiting his reply, we can only make it very clear that, so far as we are concerned, we have purchased and paid for the cotton in question and it is our property. Naturally, under the new and existing circumstances, we have no desire that the shipment be effected to Nam-Dinh or into any area where there is serious likelihood that it will fall into the hands of the communists. But we do insist that any question of the sale or other disposition of the cotton by you be referred to us as the owners of the cotton, before any such plans are carried out. Any cotton stockpiled by us at Haiphong has already been shipped to Saigon for our account and as our property. We see nothing in the agreements between ourselves and you which would justify any change of our position and if any such regulation exists, we would appreciate it if you would bring it to our attention.
Furthermore, we know of nothing in the relations between ourselves and you which justify your exercising any title to this cotton independently of ourselves. It is for this reason that we cannot think of complying with your request that the bills of lading for the eighteen hundred and fifty (1850) bales of our cotton at sea or enroute be turned over to you. And least of all would we be ready to do this under the curious conditions you fix that after all charges and losses have been deducted upon any sale of the cotton by you, you will reimburse us upon account of the purchase price that we have paid for our cotton, to the extent of any balance then remaining in hand. And in such an eventuality, the losses and expenses might well have all been unnecessarily created by your own action.
Upon any sale or other disposition of this cotton which belongs to us, no loss may result if the operation is properly handled. Such operation might even result in a profit. Therefore, we do not wish to be the financial victim of an error of judgment independently exercised by you with respect to our property.
We confirm that we are quite prepared to cooperate with you in the disposition of the cotton, but this proposal is made without prejudice to the position that we have taken that it is our property and cannot be disposed of without our consent.

23. (a) On August 4, 1954, Mr. Boesch wrote to Mr. Benoist:

We beg * * * to deliver to you a draft concerning the liquidation of our cotton at sea and stocks in Haiphong which draft was handed to us by the FOA. * * * Mr. Cadoret and myself were * * * informed that pursuant to a cable * * * from FOA Washington the * * * cotton at sea had been sold in Formosa and in Korea at our price CIF. We protested against this arbitrary manner of acting and of disposing of our cotton without consulting us. Then, they pulled out certain clauses of the FOA reglementation, of which I take the liberty of enclosing a copy in case you may wish to bring it to the attention of your lawyer.
As to the Four thousand six hundred and fifty one bales in stock * * * FOA would be in agreement to reimburse to us:
a) our price GIF Haiphong
b) transportation cost HG/Saigon
c) custom duties already paid by us
with the exception of bank charges which are as follows:
—on 1840 bales $125.000.—
—on 4651 bales $195.000. — total bank charges
320.000 $IO
Furthermore the FOA does not see the possibility of reimbursing us the cancellation cost of $7,000 IT. S. on the 1400 bales.

4b) On August 6, 1954, Mr. Boesch wrote to the Mission:

We beg to refer to our conversation with Messrs. Scot, Allen, Stelly and Mann of the 4th. inst. in course of which you submitted to us a draft agreement for the settlement of the 1840 Bales of cotton afloat and 4651 Bales * * * in course of shipment from Haiphong to Saigon.
This draft agreement has been submitted to our President Director General for comment and instruction but pending receipt of same we wish to make all reserves as to the action you have taken, without consulting us, for the disposal of the 1840 Bales afloat, bought .and paid by us * * *.
No sooner we receive instructions from our President Director General, we shall revert to the matter for the settlement of all pending questions.

(c) The draft agreement for the settlement of all outstanding questions between plaintiff and the Mission was the first of several drafts made within the next six or eight months for the purpose and in the hope of arriving at a comprehensive settlement. While the parties did reach agreement concerning the May cotton (1,400 bales canceled; 1,850 bales diverted), which eliminated it from the controversy, they never reached agreement concerning the Haiphong cotton.

24. (a) In 1954 United States export cotton (including the cotton in suit) was shipped in high density compress bales of approximately 500 pounds per bale, compressed at 1,500 pounds per square inch. Each bale was wrapped in burlap, bound with nine metal bands, marked (with symbols on the burlap wrapping) and tagged for identification of the grade and quality of the cotton in the bale and the weight of the bale. A shipping list accompanying each shipment made possible the identification of bales delivered by reference to the markings (symbols) and tags.

(5) Plaintiff took delivery of its January purchases (6,450 bales) in Haiphong. Some of this cotton was sent to Nam Dinh and was used in the mills there. Some of it may have been used in plaintiff’s Haiphong plant. When plaintiff ceased operations, 4,651 bales remained: 4,051 in Haiphong, and 600 bales in Nam Dinh (evacuated to Haiphong). After the sale of 300 bales to another (much smaller) manufacturer in Haiphong, plaintiff had on hand 4,351 bales.

(c) When these 4,351 bales reached Saigon, some of the cotton was damaged and even more of it was unidentifiable in the usual manner.

On some of the bales one or more metal tie bands had been broken. Damage to the cotton ranged from minor bulging to broken bales. In some instances bale wrappings had been torn. There was some weather and water stain and some evidence of pilferage. The extent of the damage did not exceed 10 percent.

Many other instances appeared where bale wrappings had been torn and identification tags had been removed with the result that, aside from damage, the cotton in the bale could no longer be identified as to grade and quality and weight of bale.

(d) The condition of the cotton upon arrival at Saigon (relating both to damage and to loss of markings) presented a serious operational problem for the resale of the cotton, inasmuch as normal commercial practice required the seller to guarantee the grade, quality, and weight of outbound shipments.

25.(a) At the time of the trial of this action the cotton in suit remained in storage in Saigon. No determination had been made of the grade, quality, and weight of the bales from which the identification markings had been lost or of the precise extent of the damage in bales broken and stained.

(6) The cost (including marine insurance) of 4,351 bales of cotton of the grades, qualities, and weights assigned by plaintiff to the cotton in suit was 26,065,251 piastres. Plaintiff incurred additional costs of 7,11Y,731 piastres through September 1955 on account of the cotton in suit, for a total of 33,182,982 piastres.

II

26. The “option to designate an alternate port of discharge,” retained by FOA on ocean bills of lading, was never exercised in relation to the cotton in suit.

27. (a) Following plaintiff’s decision to cease operations in Indochina, the problem that was uppermost in the minds of plaintiff’s officers and agents during the efforts to liquidate its commitments for and stocks of cotton was the conversion of values into hard currency. Vietnamese piastres were regarded by plaintiff as being of little or no value to it except insofar as convertible into francs or (preferably) dollars.

(5) Piastres were convertible into francs during the fall of 1954. At that time it was known that France would soon withdraw its support of Vietnamese currency, and that such withdrawal would render the conversion of piastres into other currencies considerably more difficult.

28. (a) As far as is material to this action the authority of Mr. Benoist over plaintiff, its officers and employees, was supreme. Such delegations of authority as were made by him were always limited.

(5) Neither Mr. Cadoret nor Mr. Boesch made or undertook to make final decisions for or binding commitments of plaintiff. Neither took any action relative to the cotton in suit without prior authorization from Mr. Benoist. Neither of them had general authority to commit the corporation in the negotiations with the Mission that are material to this action.

(e) The extent of the alter ego relationship of Mr. Cronan to Mr. Benoist is not material, inasmuch as Mr. Cronan never reached or purported to reach a final and binding agreement with any representative of FOA concerning any part of the cotton in suit.

29. (a) The Mission’s concern for the safety of the cotton on hand at Haiphong in mid-July 1954 was warranted. There was danger of its falling into the hands of the Communists.

(l>) The Mission’s desires with respect to the Haiphong cotton were (1) that the cotton first be safeguarded against seizure by the Communists by removing it from Haiphong and (2) that, in so removing the cotton, it should be routed toward Formosa or other location where it might be used in furtherance of FOA’s program of foreign economic aid.

(c) The responsible officers of the Mission (and of FOA— Washington) and those of plaintiff knew in mid-July 1954 that the Haiphong cotton was the property of plaintiff and that it would so remain, unless and until (1) the ownership should be sequestered by some competent governmental authority or (2) plaintiff could be induced voluntarily to sell the cotton (i) to FOA or (ii) in the free-world market.

(d) The evidence is silent as to plaintiff’s plans, if any, when inquiry was first made by the Mission (July 12,1954), for safeguarding the cotton from falling into the hands of the Communists. The inference to be drawn from the evidence as a whole is that the Mission simply became aware of and turned its attention to the situation before plaintiff did.

(<?) During this time (July 12-23,1954) there developed a situation wherein the Mission, for its part, was intent on safeguarding the cotton on hand by having it moved out of Haiphong, while plaintiff, for its part, was intent on obtaining hard currency payment for the cotton afloat.

30. (a) FOA (Washington or the Mission) had no authority to requisition the cotton in suit. None of the officers of FOA (Washington or the Mission) ever intended to requisition the cotton in suit in the name of FOA or any other agency or instrumentality of the United States. The cotton in suit was not requisitioned by defendant.

(b) The cotton in suit was never requisitioned by the Government of Vietnam or by the French authorities.

(c) It is not established by the evidence (1) that any suggestion of requisition by any authority was made to plaintiff as a threat or inducement or (2) that if any such suggestion was made it had any effect upon plaintiff as threat or inducement.

31. (a) The Mission’s letter to plaintiff of July 17,1954, was a bona fide offer to purchase the Haiphong cotton on the terms stated therein.

(b) The offer was never accepted. Plaintiff treated the offer as a beginning point for negotiations. Extensive negotiations followed. Some nine months later FOA withdrew from the negotiations. At the time of the withdrawal plaintiff was still withholding acceptance of terms offered by FOA, in an effort to obtain additional concessions. Throughout the negotiations plaintiff could have sold and delivered the cotton to a third party with complete impunity as regards FOA.

32. (a) There was no market for the cotton in Indochina. The nearest market in which the cotton could have been sold was in the area of Formosa (including Hong Kong and Japan).

(b) In order to sell the cotton to a third person, if plaintiff had so desired, plaintiff would have had to obtain from the Government of Vietnam a license to export the cotton. The consideration payable for the cotton so sold would have had to pass through Vietnamese banking channels. Whether or not plaintiff could have received the currency paid (e. g., Hong Kong dollars) or would have had to accept piastres was a matter within the control of Vietnam. Here again plaintiff preferred to handle the transaction through FOA, for the benefit of such influence as FOA might have (and be willing to use) in obtaining the best conversion possible.

33. (a) In moving the cotton from Haiphong to Saigon, plaintiff did not (1) act upon the suggestion made by FOA— Washington to the Mission that the cotton be “returned” to United States ownership or (2) intend by its action to accept the offer contained in the Mission’s letter of July 17, 1954.

(5) Plaintiff’s decision to move the cotton from Haiphong to Saigon reflected plaintiff’s free choice in the premises; it was not the result of duress. The decision was not made {nor was it intended at the time to appear) as an unqualified acceptance by plaintiff of the terms of the Mission’s letters (of July 15 and 17,1954) . It was entirely compatible (and designedly so) with plaintiff’s continuing aim and persistent effort to obtain hard currency in payment for its cotton, afloat (1,850 bales) and on hand (4,351 bales).

Ill

34. (a) At the time of the purchase, in January 1954, ownership of the cotton in suit vested in plaintiff.

(b) Plaintiff had not been divested of the ownership of the cotton in suit at the time of the trial of this action.

CONCLUSION OR 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 plaintiff is not entitled to recover, and the petition is therefore dismissed. 
      
       More than 1,000 miles In length.
     
      
       The northern border of Tonkin was the boundary between Vietnam and China.
     
      
       Dien Bien Phu Is In the mountains to the west of Hanoi, close to the boundary between Laos and Veitnam.
     
      
       62 Stat. 137.
     
      
       Congressional Directory, 81st Congress, 2d session, January 1950, page 670.
     
      
       Congressional Directory, 82d Congress, 2d session, January 1952, page 474, note.
     
      
       while the official rate of exchange in 1954 was a fractional part under SB piastres to the dollar, both parties have accepted 35 to 1 as the 1954 rate of exchange for purposes of this action. This rate is equivalent to 2.857 cents to the piastre.
     
      
       No explanation la given for the use of the former name, Societe Cotonniere du Tonkin, In the style of this action, which was filed on October 20, 1955.
     
      
       Alleged In the petition; admitted by the answer.
     
      
       Sometime after the fall of Dlen Bien Thu plaintiff moved its headquarters office to Dakar, but one or more of its representatives remained In or visited Saigon at all times material to this action.
     
      
       On July 1, 1954, immediately following the evacuation of Nam Dinh, plaintiff’s General Manager, then in Haiphong, wrote to the President (who was also the Director General) of the corporation, In Geneva: “Under the necessity of abandoning the mills without being able to leave one of us on the spot * * *, I gave the key of the mills and the theoretical representation of our Interests, without In fact any official powers, to one of our Nam-Dinh clients, Abdul Aziz, an Indian subject * * *. I am convinced this action Is of no real use; but we would not have abandoned our mills, and later on, we shall perhaps be able to use this action as an argument in our favor.”
     
      
       There remained to plaintiff In Indochina only a cotton gin in Cambodia.
     
      
       At the time of trial plaintiff’s officers were still considering whether to resume operations and if so, where.
     
      
       His son, M. Serge Benoist, attended the “general meeting” of tlie corporation on .Tune 19, 1954, in Saigon. It was at this meeting that the name of the corporation was changed and other far-reaching decisions (hereinafter mentioned) were made.
     
      
       M. Marcel Cadoret. He testified that in 1954 he exercised the powers of the Chairman of the Board, by delegation, as well as those of General Manager, •“for managing the corporation on the spot.” Cf. finding 28 (b).
     
      
       M. Max Boesch. Inasmuch as he anticipated early retirement, no formal 'renewal of his authority was made by the corporation at its general meeting on June 19, 1954. In the usual course of business prior to that date he had •exercised no authority outside of routine commercial transactions.
     
      
       Mr. Cronan testified In this action in Washington. The depositions of Messrs. Cadoret and Boesch were taken in Paris, with Mr. Cronan in attendance. Mr. Benoist has made no appearance, either in Paris or Washington.
     
      
       The “cotton in suit” consists of 4,351 bales, which were part of 6,450 bales ^purchased in January 1954.
     
      
       Guerrilla fighting had been under way in the outskirts oí Nam Dinh for several years. After the fall of Dien Bien Phu the French forces found it necessary to shorten their lines. The evacuation of Nam Dinh meant falling bach toward Haiphong and Hanoi.
     
      
       Mr. Boesch had conducted cotton purchase transactions with the Mission for some time. He had a good command of English and he was fully conversant with the technical features of buying and selling cotton in the markets of the world.
     
      
       Mr. Schwartz was Chief of the Division of Agriculture and Natural Resources of the Mission. He, too, was well-versed in the technical features of buying and selling cotton. He had had many dealings with Mr. Boesch in connection with plaintiffs purchases of cotton through the FOA program.
     
      
      
         The reason for suggesting the use of Mission channels to request cancellation was to protect the secrecy of the military information. Otherwise, the cancellation could have been made by plaintiff without intervention by, or even advice to, the Mission.
     
      
       Cf. footnote 14, finding 8 (a).
     
      
       The move was from Nam Dinh to Haiphong. All European staff members and their families were evacuated. Plaintiff was also able to move part of the company records, some of the goods In process, including some loose cotton from broken bales, most if not all of the finished products, and all bales of raw cotton that remained intact, of which there were approximately 600.
     
      
       The quantity of cotton in controversy here is 4,351 bales. Plaintiff sold 800 of the 4,651 bales.
     
      
       The text of this and of some other messages passing between the Mission and FOA — Washington reflects paraphrase of the language actually used. No issue has been raised as to the accuracy of any of the paraphrases.
     
      
      
         “PA” stood for “procurement authorization.”
     
      
       On July 5, 1954, Mr. Boesch forwarded the following supplementary advice: “* * * [T]he rules of FOA deprive us from the right of disposing •of the floating cotton * * * ; such cotton must be sold by FOA and the proceeds of sale shall be reimbursed to us In 4 * * plasters. We have thoroughly discussed with FOA in this connection, and we sincerely regret not to be able to do any better. * * *”
     
      
       Mr. Schwartz, with whom Mr. Boesch had previously had' most of his dealings, left Saigon on July 6 or 7 and did not return until August 12 or 13, 1954. Mr. Schwartz therefore had no part in these conversations or in the drafting of the Mission’s letters to plaintiff of July 12, 15, and 17.
     
      
       Finding 12 (g).
     
      
       Plaintiff now contends that it sent the cotton from. Haiphong to Saigon In response to and reliance upon this letter; that Its action in shipping the-cotton constituted an acceptance of EOA’s offer, resulting in a contractual-commitment by FOA.
     
      
       On July 22, 1954, the FOA Mission at Taipei (Formosa) sent the following message to FOA — Washington : “we understand that FOA/W suggested to the China Trade Mission in Washington that there be diverted to Taiwan 1350 bales of long staple cotton now afloat. CUSA (Council for US Aid) advised China Trade Mission that this could be accepted. Mission suggests the total value of these bales be applied against PA4016. CUSA will stay within funds available by reducing purchase requirement.
      “Message from Saigon states that 4651 bales now at Haiphong will be shipped to Keelung. Message further states that advice will be given as to vessel, and the numbers, grades and marks of cotton. No local need for additional long staple cotton, but if no alternative is available will discuss with CUSA when we receive information as to prices and grades. Costs will be applied against PA4016 if we receive information before opening tenders on July 28.
      “Are additional diversions or shipments likely to be made here? Local long staple needs are usually met by barter credits and are not FOA-financed.”
     
      
       The Geneva accord was signed on July 21, 1954. Mr. Benoist may or may not have known of the accord at the time of his decision.
     
      
       In fact the first shipment, loaded on July 23, was not unloaded until August 28; another shipment left Haiphong on July 29, and was not unloaded until August 30; while a third shipment left Haiphong on August 3, and arrived in Saigon on August 8, being the first to be received and warehoused In Saigon. Military authorities were so much concerned with refugees from the north that they required the first two ships to make turnarounds in Saigon without unloading the cotton. There were eight shipments altogether, and the movement was completed on October 24,1954.
     
      
       Finding 8 (c).
     
      
       Mr. Cronan testified that, from the time he entered the case, no one other than himself (excepting only Mr. Benoist) had authority to bind plaintiff to a commitment.
     
      
       Mr. Boesch sent the letter on July 29. The text Is set forth In subdivision 4i) of this finding.
     
      
       On July 31, 1954, a member of the staff of the Mission placed the following note in the file: “Cadoret states that although about half of the cotton is on the way to Saigon from Haiphong, he cannot give us authority to load it aboard for Keelung until he gets instruction from the head office in Paris. He has orders to move all cotton from' Haiphong to Saigon and store it temporarily pending settlement of the 1840 bales afloat. What action do we or can we take now?"
     
      
       The Initial draft agreement was referred by Mr. Benoist to Mr. Cronan. Thereafter, extensive negotiations were conducted by Mr. Cronan with BOA— Washington and with the Mission, in washington and in Saigon. The correspondence is voluminous. Since nothing came of it, no summary of it is included in these findings.
     
      
      
         Plaintiff delivered the bills of lading for the cotton afloat to the Mission; the Mission arranged for the return to plaintiff of piastres in an agreed amount. This was in October 1954. Plaintiff converted the piastres into francs.
     
      
       Among the conclusions of law proposed to the commissioner by plaintiff was the following: “Numerous conversations between agents of plaintiff and those of defendant after August 2, 1954, did not result in any valid settlement of plaintiff’s rights to payment for the cotton, and plaintiff’s agents Boeseh and Carolan who participated in said discussions after August 2, 1954, did not then have authority to conclude a settlement of its claims against defendant.”
     
      
       The cotton had to be loaded from warehouse to lighter to ship and unloaded from ship to lighter to warehouse, all during the rainy season.
     
      
       Haiphong sometimes accommodated as many as 200,000 refugees at one time.
     
      
       Torn wrappings and lost tags resulted from so much moving.
     
      
       These costs Included freight, united States to Haiphongfinance charges; customs ; cost of unloading at Haiphong; loading and unloading, Insurance and freight, for 600 bales sent from Haiphong to Nam Dinh and returned to Haiphong; cost of loading at Haiphong for movement to Saigon, unloading at Saigon, and freight and insurance for the movement; and storage and insurance at Saigon through September 1955.
     
      
       At 35 to 1 this would amount to $948,085.20. The rate of exchange has fallen below 35 to 1 since 1954. In December 1956 (last date for which an exchange rate was available in the evidence) the rate was 75 to 1.
     
      
       See finding 5 (b). Whether or not the option was exercised in relation to the 1,850 bales diverted en route is immaterial, since the diverted cotton is no longer in controversy.
     
      
       Finding 7 (b)-
     
      
       Mr. Boesch did not know, when the Mission inquired, how much cotton there was at Haiphong. Mr. Cadoret, although on the scene, had many matters on his mind other than bales of raw cotton.
     
      
       Nothing came of the Mission’s suggestion to the Government of Vietnam that it requisition the cotton.
     
      
       It is not established by the evidence that any suggestion was made to the French authorities to requisition the cotton,
     
      
       Finding 18 (a).
     
      
       So was the Mission’s letter of July 15, 1954 (finding 16), of which the July 17 letter was an amplification.
     
      
       Neither the Mission nor plaintiff realized the ambiguity of the terms stated in the July 17 letter until sometime later.
     
      
       This is the lawsuit in a nutshell. Plaintiff simply crowded the negotiations, seeking always one farthing more, until FOA withdrew.
     
      
       Sale to FOA, on the other hand, meant that FOA would take care of Vietnam’s requirements.
     
      
       When plaintiff’s decision was made to more the cotton from Haiphong to Saigon, plaintiff may not have had knowledge of the suggestion. If it did have such knowledge, it was much too engrossed in the fate of the cotton afloat to be concerned with such subtleties of proprietary interests as counsel later extracted from the suggestion.
     
      
       Long before any cotton arrived in Saigon from Haiphong, Mr. Boesch, acting upon specific instructions from Mr. Benoist, asserted plaintiff’s ownership of the cotton. Months passed, and the negotiations had broken down, before plaintiff tendered the Saigon warehouse receipts to FOA. No tender whatever was made of the bills of lading.
     
      
       The summer of 1954 was a season of hard choices for plaintiff. The decision to move the cotton from Haiphong to Saigon may have been (and probably was) a hard choice for plaintiff. It was nevertheless a free choice, in terms of plaintiff’s relation to the Mission.
     
      
       so decision was not taken in consequence of any threat, actual or implied, of requisition (by the Mission, the Government of Vietnam, or the French authorities) or of punitive action of any kind'.
     
      
       Plaintiff was at some pains to induce the letter of July 17; but the letter, alone, did not induce plaintiff’s decision.
     
      
       Cf. Mr. Cadoret’s letter to Mr. Benoist upon the occasion of the abandonment of the Nam Dinh mills. Footnote 11, finding 7 (a).
     
      
       Plaintiff’s success in this endeavor depended in large measure upon its ability to induce the Mission to lend assistance in obtaining the necessary licenses, waivers, and exchanges from the Government of Vietnam.
     