
    OCEAN STEAMSHIP CO. OF SAVANNAH v. THE UNITED STATES
    
    [No. A-343]
    
      On the Proofs
    
    
      ¡Impropriation of contract under act of June 15, 1911; vessels contracted for.- — -Plaintiff had a contract with a shipbuilder for the construction of two combined passenger and freight ships and before the heels had been laid the Government, by virtue of the act of June 15, 1917, took vessels of the plaintiff under construction by the said shipbuilder and contracts of the plaintiff with said shipbuilder for their construction. Thereafter the Government ordered the said shipbuilder to suspend work on the said vessels, and they were not constructed. Held, that under the rule of Srooks-Scanlon v. United. States, 265 ü. S. 106, plaintiff was entitled to just compensation for the expropriation of its said contract. See similar cases, pp. 11, 38, 59, 80,119.
    
      The Reporter’s statement of the case:
    
      Mr. T. M. Gwmingham, jr..; for the plaintiff. Mr. William B. King and King <$¡ King were on the briefs.
    
      
      Messrs Assistant Attorney General Hema/n J. Galloway, Henry M. Ward, and James Talbert, for the defendant. Mr. W. W. Nottingham was on the briefs.
    Decided February 14, 1927.
    Motion for new trial overruled December 5, 1927.
    The court made special findings of fact, as follows:
    I. The plaintiff, Ocean Steamship Company of Savannah, is now and was at the times hereinafter mentioned a corporation created by and existing under the laws of the State of Georgia, and now owns and operates, and for many years past has continuously owned and operated, a fleet of passenger and cargo-carrying steamships in a regular line between Savannah, Ga., and New York City and Savannah Ga., and Boston, Mass.
    II. On December 1, 1915, plaintiff entered into a contract with the Harlan & Hollingsworth Corporation, of Wilmington, Del., by which the Harlan & Hollingsworth Corporation was to construct and deliver to the plaintiff on or before February 1, 1918, one combined cargo and passenger ship of 4,500 d. w. t. for the price and sum of $945,000, to be paid by the plaintiff to the Harlan & Hollingsworth Corporation, the portion of the contract concerning payments being as follows:
    “ The party of the second part, in consideration of the true and faithful performance of this agreement upon the part of the party of the first part, agrees to pay or cause to be paid to the party of the first part, or its proper representative, the sum of nine hundred and forty-five thousand dollars ($945,000) in gold or its equivalent, in the following manner, to wit:
    $85, 909 — On signing contract.
    85, 909 — When keel is laid.
    85, 909 — When frames are half up.
    85, 909 — When frames are all up.
    85, 909 — When half plated.
    85, 909 — When fully plated.
    85,909 — When launched.
    85, 909 — When boilers and engines are in.
    85, 909 — When steam is on engines.
    85, 909 — When ship arrives in New York.
    
      $85,910 — Balance of purchase money to be paid when ship shall have made two (2) round trips between < New York and Savannah, Ga., and is found to be in accordance with the terms of the contract.
    945,000 ”
    The said contract also contained the following provision concerning the transfer of title to the vessel during the progress of construction:
    “It is understood and agreed that as the payments provided for herein are made by the party of the second part, on account of material assembled or set up in the yard of the party of the first part, or used in the construction of said vessel, the same, to the extent of the payments made, shall become the property of the party of the second part.”
    The said contract appears as “ Exhibit A” to plaintiff’s petition and is made a part hereof by reference.
    III. On December 31, 1915, plaintiff entered into a contract with Harlan & Hollingsworth Corporation to build for it one steel passenger and cargo steamship (of the same capacity and specifications as the steamship which was to be built under the above-mentioned contract of December 1, 1915) for the price of nine hundred and thirty-five thousand ($935,000) dollars, payable ten thousand ($10,000) dollars on signing of the contract, and the balance in ten installments of ninety-two thousand five hundred dollars ($92,500), payable as the work progressed; the vessel to be delivered in New York Harbor within thirty-one months after signing of the contract. This contract of December 31, 1915, was otherwise precisely similar in terms with the contract of December 1, 1915, between the same parties and referred to above.
    IY. The President of the United States, under and by virtue of the act of Congress of June 15, 1917, ch. 29, 40 Stat. 182, by Executive order dated July 11, 1917, appointed the United States Shipping Board Emergency Fleet Corporation to exercise all power vested in him in said act, in so far as applicable to the requisitioning of vessels in process of construction or of contracts for the construction of such vessels, and the completion thereof, and all power applicable to the production, purchase, and requisitioning of materials for ship construction. Said order appears as “ Exhibit B ” to plaintiff’s petition and is made a part hereof by reference.
    Y. On August 3, 1917, the United States Shipping Board Emergency Fleet Corporation (hereinafter called Fleet Corporation), by virtue of the above-recited act of Congress and by authority of the above-recited Executive order, caused to be delivered to Harlan & Hollingsworth Corporation the following telegram and letter of requisition:
    United States Shipping Boaed
    
      Washington, D. G., August §, 1917.
    
    Hablan & HollingswoRth Coep.,
    
      Wilmington, Del.:
    
    By virtue of an act approved June 15, 1917, and authority delegated to Emergency Fleet Corporation by the Executive order of July 11, 1917, all power-driven cargo-carrying and passenger vessels above twenty-five hundred tons, deadweight capacity under construction in your yards, and materials, machinery, equipment, and outfit thereto pertaining, are hereby requisitioned by the United States and will be completed with all practicable despatch. Letter follows.
    W. L. Capps, General Manager.
    
    United States Shipping Boaed
    Emergency Fleet Corporation,
    
      Washington.
    
    Harlan & Hollingsworth Corporation,
    
      Wilmington, Delaware:
    
    By virtue of an act of Congress approved June 15, 1917, mtitled “An act making appropriations for the Military and Naval Establishments on account of war expenses for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,” and by authority delegated to the United States Shipping Board Emergency Fleet Corporation under Executive order of the President dated July 11, 1917, all power-driven cargo-carrying and passenger ships above 2,500 tons d. w. capacity under construction in your yard, and certain materials, machinery, equipment, outfit, and commitments for materials, machinery, equipment, and outfit, necessary for their completion, are hereby requisitioned by the United States.
    On behalf of the United States, by virtue of said act and said order, you are hereby required to complete the construction of said requisitioned ships under construction and .will prosecute such work with all practicable dispatch.
    
      The compensation to be paid will be determined hereafter and will include ships, material, and contracts requisitioned.
    You will furnish immediately general plans and detail specifications of the ships requisitioned and copies of contracts and all supplemental agreements in relation thereto and full particulars as to owner, date of completion, payments made to date, amounts still due, and any other information necessary to a fair and just determination of the obligations of the Emergency Fleet Corporation in taking over these ships and contracts.
    You will report immediately whether any additional contracts are under consideration and their character and extent, and will not enter into any additional contracts or commitments with respect to merchant tonnage without express authority from this corporation.
    W. L. Capps,
    
      General Manager, United States Shipping
    
    
      Board Emergency Fleet Corporation.
    
    Washington, D, C., August 3,1917.
    
    VI. On August 20, 1917, the Fleet Corporation delivered to plaintiff the following letters:
    United States Shipping Boaed
    EMERGENCY FLEET CORPORATION,
    
      1Washington, August:W, 1917.
    
    Ocean Steamship Company op Savannah,
    
      Pier # 35, No. River, New Yorh City.
    
    Dear Sirs : On August 3, 1917, the United States Emergency Fleet Corporation issued to the Harlan & Hollings-worth Corporation Shipbuilding Company the notice of requisition set forth in enclosure marked “(a).”
    In response to this communication Harlan & Hollings-worth Corporation, the shipbuilders, informed us that you, as owners, or representatives of owners, had entered into a contract with them for the vessels listed below:
    Hull No. Type Gross ton Date of contract
    450 451 Passenger and freight.. Passenger and freight.. 6,700 est. 6,700 est. 12- 1-15 12-31-15
    The corporation’s district officer having charge of vessels in the district in which the shipbuilders are located has been instructed to take charge, for the corporation, of the completion of vessels now under construction, and has been authorized temporarily to take over your local inspecting officers at their present compensation. Will you please inform the district officer, Mr. G. It. McDermott, at room 302, 1319 F Street, Washington, D. C., the names of your representatives and their compensation, sending a duplicate to this office. Your cooperation with the corporation is invited.
    The corporation will consider payments to the contractor accruing since the date of requisition upon the receipt of proper vouchers and adequate information to be forwarded through its district officers.
    You are requested, as soon as possible, to report to the corporation a statement in detail of the payments already made by you on each ship named above prior to the date of the requisitioning, August 3, 1917. This statement should be accompanied by the original vouchers and receipts and should be verified under oath by the proper corporate officer of your company.
    It is the present intention of the corporation to reimburse 3^ou promptly, so far as funds are available, for the payments heretofore made to the shipbuilder if after investigation of data submitted by you such payments are found in order and in conformity with the contract requirements.
    At your further and early convenience, you are requested to submit to the corporation a statement of such indirect expenditures as you have made on account of each vessel; for instance, the cost of superintendence, original design, interest on funds already paid, and the like. The matters mentioned will require careful audit, and in addition you may submit any other matters you deem pertinent.
    It will be perceived that the corporation presumes it is addressing this letter to the owners, or responsible representatives of the owners, or persons entitled to receive compensation on account of the requisition of the vessels listed above. The corporation requests that there be included in your response to this letter all evidence of ownership which is necessary to establish the right of those who are entitled to receive the compensation provided by law.
    The consummation of the orders herein, and heretofore transmitted, will be made the subject of later appropriate corporate action.
    Very truly yours,
    W. L. Cafps, General Manager.
    
    Enclosure “A.”
    
      United States Shipping BoaRd
    EMERGENCY FLEET CORPORATION,
    
      Washington, August &0,1917.
    
    To: Ocean Steamship Company of Savannah.
    Ke: Harlan & Hollingsworth Corporation.
    By virtue of an act of Congress approved. June 15, 1917, entitled “An act making appropriations for the Military and Naval Establishments on account of war expenses for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,” and by authority delegated to the United States Shipping Board Emergency Fleet Corporation under Executive order of the President dated July 11,1917, all power-driven cargo-carrying and passenger ships, above 2,500 tons, d.-w. capacity, under construction in your yard, and certain materials, machinery, equipment, outfit, and commitments for materials, machinery, equipment, and outfit necessary for their completion are hereby requisitioned by the United States.
    On behalf of the United States, by virtue of said act and said order, you are hereby required to complete the construction of said requisitioned ships under construction and will prosecute such work with all practicable dispatch.
    The compensation to be paid will be determined hereafter and will include ships, material, and contracts requisitioned.
    You will furnish immediately general plans and detail specifications of the ships requisitioned, and copies of contracts and all supplemental agreements in relation thereto, and full particulars as to owner, date of completion, payments made to date, amounts still due, and any other information necessary to a fair and just determination of the obligations of the Emergency Fleet Corporation in taking over these ships and contracts.
    You will report immediately whether any additional contracts are under consideration and their character and extent, and will not enter into any additional contracts or commitments with respect to merchant tonnage without, express authority from this corporation.
    W. L. Carps,
    
      General Manager United, States Shipping Board
    
    
      Emergency Fleet Corporation.
    
    Washington, D. C., August 3,1917.
    
    On August 29, 1917, plaintiff replied to the above letter and enclosure as follows:
    
      August 29th, 1917.
    Bear Admiral W. L. Capps,
    
      General Manager United States Shipping Board
    
    
      Emergency Fleet Corporation, Washington, D. O.
    
    Sir: We are in receipt of your letter of August 20th in which you refer to certain agreements dated December 1st and 31st, 1915, respectively, between the Harlan & Hollings-worth Corporation, of Wilmington, Del., and this company for the construction of two passenger and freight steamships of approximately 6,700 gross tons, with the advice that the corporation’s district officer has been instructed to take charge for the corporation of vessels now under construction.
    I beg to reply as follows:
    
      First. No local inspecting officers have been appointed resident at Wilmington. This work lias been done by the officers of the company making periodical visits to the yard.
    
      Second. The company has paid on hull 450, $85,909, and on hull 451, $10,000, both being first payments “ on signing contract,” and evidenced by vouchers on file in our accounting department.
    
      Third. We respectfully suggest that any refund of payments already made, indirect expenditures, and reimbursement for damages sustained by us be held in abeyance until the fulfillment of the contract and the vessels are in service.
    
      Fourth. This last suggestion is made because of the fact that when the builders were requested on March 21st, 1917, to submit proposals for the construction of two ships, duplicates of hulls 450 and 451, they bid $2,100,000 each, an increase of $1,155,000 and $1,145,000, respectively, which sums measure the value of the present contracts and establishes in part our equity therein.
    I am, with great respect,
    Yours very truly,
    W. H. Pleasants, President.
    
    YU. On August 22, 1917, the following letter with enclosure was received by Harlan & Hollingsworth Corporation:
    United States Shipping Board
    EMERgency Fleet Corporation,
    District Office #3,
    
      Washington, August 1917.
    
    Harlan & Hollingsworth Corporation,
    
      Wilmington, Delaware.
    
    Gentlemen : Enclosed please find copy of letter addressed to me by Admiral W. L. Capps, general manager of the Emergency Fleet Coi'poration. Will you kindly read this carefully and govern yourself accordingly?
    Promptness in reply will be much appreciated.
    Yours faithfully,
    George It. McDermott,
    
      District Officer.
    
    United States Shipping Boaed
    Emergencx Fleet Coepoeation,
    
      ’Washington, August 22, 1917.
    
    Mr. G. It. McDermott,
    
      Room 302, 1319 F Street NW., 'Washington, D. O.
    
    Dear Sir: Referring to the vessels under construction in the yard of Harlan & Hollingsworth Corporation, Wilmington, Delaware, requisitioned under the corporation’s order of .August 3rd, precedent to the final examination of the contract for the vessels in question, you are requested to inform the shipbuilder as follows:
    The ships now under construction at j'our plant and referred to above having been requisitioned by the duly authorized order of this corporation and title thereto taken over by the United States, and an order having been placed with you by due authority to complete the construction of said ships with all practicable dispatch, you are further ordered by the President of the United States, represented by this corporation, to proceed in the work of completion heretofore ordered, in conformity with the requirements of the contract, plans, and specifications under which construction proceeded prior to the requisition of August 3, 1917, in so far as the said contract describes the ship, the materials, machinery, equipment, outfit, workmanship, insurance, classification, and survey thereof, including the meeting of the requirements of the said contract and all tests as to efficiency and capacity of the ship on completion, and in so far as the contract contains provisions for the benefit and protection of the person with whom the contract was made, but not otherwise.
    All work will, proceed under the inspection of such persons as have been or may hereafter, from time to time, be designated by this corporation for that purpose.
    For the work of completion heretofore and herein ordered the corporation will pay to you amounts equal to payments set forth in the contract and not yet paid: Provided, That on acceptance in writing of this order you agree that on final acceptance of the vessel to give a bill of sale to the United States in satisfactory form, conveying all your right, title, and interest in the vessel, together with your certificate that the vessel is free from liens, claims, or equities, with the exception of those of the owner, and then only to those set forth in the contract. Compensation to the shipbuilder for expedition and for extra work will, when deemed appropriate, be made the subject of a subsequent order.
    This order applies only to vessels actually under construction and in accepting it the corporation expects you to inform it of the actual stage of construction of each vessel or the part to be assembled therein on the date of requisitioning, August 3, 1917. The corporation reserves the right to decide whether or not a vessel was actually under construction on August 3, 1917, on consideration of the ascertained facts.
    In replying to this communication please arrange to specify separately the vessels to which this order refers, and refer to the corresponding contract in sufficient terms for identification of it.
    Please furnish a copy of this to Harlan & Hollingsworth Corporation and ask for an early reply.
    Very truly yours,
    W. L. Capps, General Manager.
    
    In October, 1917, the Fleet Corporation ordered the Harlan & Hollingsworth Corporation to suspend the construction of hulls 450 and 451, and in December, 1917, ordered the construction to be abandoned. In accordance with this order the construction of hulls 450 and 451 was abandoned, and the vessels' were never constructed. Between August 3, 1917, and the issuance of this order not much work was done by the shipbuilder on either hull.
    On August 16, 1917, Admiral Capps, general manager of the Fleet Corporation, wrote the following letter to the district officer of the Fleet Corporation, a copy of which was transmitted to the Harlan & Hollingsworth Corporation:
    “ DeaR Sir : Herewith you will find a copy of the corporation’s letter, in duplicate, of this date, relating to such vessels building by shipbuilding company in your district.
    “ You will immediately notify the shipbuilding company that you are instructed to take charge, for the corporation, of the completion of these vessels, and you are authorized hereby to take over into the employ of the corporation, temporarily, the owner’s local inspecting officers at the present rates of compensation, so far as they can comply with existing instructions and those hereafter issued in regard to citizenship, being careful that they take the usual oath of office.
    
      “ Report promptly the name, compensation, the date of taking the oath, and the former employers of those.whom you take over.
    “ You will please forward without delay the usual certificates for payments which have Become due since the date of requisitioning or may become due under the contract after that date, so far as practicable, certified by the former local inspector as well-as yourseM. These payments to the shipbuilder for the present must not exceed the actual cost of the contractor’s outlay for labor, materials received since the last payment plus the approved overhead expense, nor must the payment so determined exceed the contract payment accrued.
    “ Final action of the corporation regarding the substance and purpose of the contract can not be determined until the corporation can investigate the facts and terminology of each contract to assure proper protection to the Government.
    “ You will please furnish to the shipbuilder a copy of this letter and one copy of the enclosure, and you will request the shipbuilder to furnish you without delay, for transmission to the corporation, a statement in detail of such payments received on account of each contract prior to August 3, the date of requisitioning.
    “Very truly yours,
    (Signed) “W. L. Capes,
    “ General Manager.”
    On October 26, 1917, the Fleet Corporation sent to the shipbuilder the following letter, which was duly received :
    United States Shipping BoaRd
    EMERGENCY FLEET CORPORATION,
    Washington, October %6, 1917.
    
    Cargo Troop Ship:
    Harlan & Hollingsworth Corporation,
    Wilmington, Del.
    
    Gentlemen: Pending consideration of the matter of the construction of two transports referred to in the Emergency Fleet Corporation’s letter to you of this date, you are hereby instructed to suspend work on your hulls Nos. 450 and 451, the former owners of which were the Ocean Steamship Company of Savannah.
    Very truly yours,
    W. L.’Capps, General Manager.
    
    On or about December 3, 1917, the officials of the Fleet Corporation in charge of the construction of the requisitioned ships orally instructed the shipbuilder to abandon all construction on hulls 450 and 451. These oral instructions were supplemented by the following letter sent by the Fleet Corporation to the shipbuilder on April 25, 1918, and duly received:
    UNITED States Shipping BoaRd
    EMERGENCY FLEET CORPORATION,
    
      Washington, April *B5, 1918.
    
    Be: Hulls 450 and 451 (Harlan plant), commandeered August 3, 1917.
    
      J. W. Powell, Esq.,
    Bethlehem Shipbuilding Corporation,
    
      South Bethlehem, Pa.
    
    Dear Sir: The corporation hereby confirms instructions already conveyed to you orally to abandon construction on these hulls. These instructions are, of course, without prejudice to the claim for damages filed by you which is now being investigated by the auditing department.
    Very truly yours,
    (Sgd.) Daniel H. Cox,
    
      Manager Division of Steel Ship1 Construction.
    
    VIII. At the time of the requisition order of August 3, 1917, the keel of neither ship had been laid, but Harlan & Hollingsworth Corporation had designated and set aside its Slip No. 4 for hull 451 and its Slip No. 5 for hull 450. The designs had been completed and fabrication of some of the steel was under way.
    Harlan & Hollingsworth Corporation had prior to August 3, 1917, expended for material purchased especially for these two hulls $116,239.10. The requisition claims committee of the Fleet Corporation estimated the cost of materials, together with the labor performed on said two hulls expended by the shipyard, was $151,477.80. The amount of material contracted for by the shipbuilder and which it was obligated to take for said two hulls was $384,300; the material to be ordered to complete contracts, $265,700.
    IX. The Fleet Corporation by its requisition order of August 3, 1917, took the vessels of the plaintiff under construction by the Harlan & Hollingsworth Corporation and the contracts of the plaintiff with said corporation for the construction of the said vessels. The said requisition order also took the materials which had been purchased by the said corporation for the construction of said vessels.
    On or about October 26, 1917, Harlan & Hollingsworth Corporation was. ordered by the Fleet Corporation to suspend work on said vessels, and these instructions were repeated on December 20, 1917.
    Instructions were given by the Fleet Corporation to Bethlehem Shipbuilding Corporation (Ltd.) (into which Harlan & Hollingsworth Corporation had in the latter part of 1917 been merged) about December 13, 1917, to abandon construction of hulls 450 and 451, the vessels which were contracted for by plaintiff and Harlan & Hollingsworth Corporation.
    On or prior to August 23, 1917, the Fleet Corporation instructed the shipbuilder not to receive any further payments from plaintiff on account of the ships.
    X. On September 5, 1919, after extended negotiations, Bethlehem Shipbuilding Corporation (Ltd.) entered into a contract with the Fleet Corporation as follows:
    MemoRandum OK agreement made this 5th day of September, 1919, between Bethlehem Shipbuilding Corporation (Ltd.), a corporation organized under the laws of the State of Delaware, party of the first part (hereinafter called the “contractor”), and the United States Shipping Board Emergency Fleet Corporation, a corporation organized under the laws of the District of Columbia, representing the United States of America as party of the second part (which party of the second part is hereinafter called the “Fleet Corporation”).
    ■ Whereas on the 1st day of December, 1915, a certain contract was entered into between Harlan & Hollingsworth Corporation, of Wilmington, Delaware, and Ocean Steamship Company, of Savannah, a corporation organized under the laws of the State of Georgia (hereinafter called the “ Ocean Steamship Company ”), for the construction of one (1) steel passenger and cargo steamship, known as hull No. •450, for the sum of nine hundred forty-five thousand dollars ($945,000); and ■
    Whereas on the 31st day of December, 1915, a certain contract was entered into between the same parties for the construction of one (1) steel passenger and cargo steamship, known as hull No. 451, for the sum of nine hundred thirty-fiye thousand dollars ($935,000); and
    Whereas the contractor thereafter became the successor in title to said Harlan & Hollingsworth Corporation and stood in its place and stead in every respect as though it were substituted for the said Harlan & Hollingsworth Corporation under the said contracts; and
    Whereas the said vessels, known as hulls Nos. 450 and 451, and certain materials necessary for their completion, were duly requisitioned on August 3, 1917, by the United States of America, acting through the United States Shipping Board Emergency Fleet Corporation, and the construction of the said vessels was thereafter abandoned by the instructions of the Fleet Corporation; and
    Whereas the contractor and its predecessor in title had performed certain work and made certain expenditures and commitments in connection with the construction of the said vessels prior to the abandonment of such construction; and
    Whereas said Harlan & Hollingsworth Corporation received from the Ocean Steamship Company on December 10, 1915, eighty-five thousand nine hundred nine dollars ($85,909) as a first payment under the contract for the construction of hull No. 450, and on January 24, 1916, received ten thousand dollars ($10,000) as a first payment under the contract for the construction of hull No. 451; and
    Whereas the contractor, in consideration of the agreements and covenants of the Fleet Corporation herein contained, has agreed to pay to the Fleet Corporation the sum so received, amounting to ninety-five thousand nine hundred nine dollars ($95,909), less certain deductions which the Fleet Corporation has agreed to allow the contractor, amounting to eighty thousand and one hundred seventy-three dollars and sixty-one cents ($80,173.61), for labor, expenses, damages from cancellation, charges, materials, and profit:
    Now, therefore, in consideration or the premises and the mutual promises herein contained, it is mutually agreed between the parties as follows:
    1. The contractor agrees to pay to the Fleet Corporation, concurrently with the execution of these presents, the sum of fifteen thousand and seven hundred thirty-five dollars and thirty-nine cents ($15,735.39).
    2. The contractor, in consideration of the premises, hereby releases the United States of America, the United States Shipping Board, and the United States Shipping Board Emergency Fleet Corporation from any and all claims, de-mancls, and/or liabilities of whatsoever nature, whether at law or in equity, arising from or in any way growing out of the requisition order of August 3, 1917, with respect to the, said vessels, known as hulls Nos. 450 and 451, and the materials therefor, and/or any subsequent act or omission to act on the part of the Fleet Corporation with respect to said vessels; excepting any liability arising out of any claim or claims of the Ocean Steamship Company, as hereinafter set forth; and hereby releases the Ocean Steamship Company of and from any and all claims, demands, and/or liabilities of whatsoever nature, whether at law or in equity, arising from or in any way growing out of the said contracts between the Ocean Steamship Company and said Harlan & Hollings-worth Corporation for the construction of the said vessels or the abandonment of such construction.
    3. It is understood and agreed ‘that the contractor has, or has had, on hand certain materials purchased for the construction and account of hulls Nos. 450 and 451, a schedule of which is hereto attached and made a part hereof, marked “ Exhibit A.” The materials listed in the said exhibit shall be and become the property of the Fleet Corporation. The contractor has and by these presents does bargain, sell, transfer, and assign unto the Fleet Corporation, its successors and assigns, all its right, title, and interest in and to said materials, and thfe contractor hereby expressly waives any claim to right, title, or interest in the same and represents and warrants that the said materials are free and clear from all liens and encumbrances of whatsoever kind or nature, except any claim of the Ocean Steamship Company thereto arising out of said two payments made by it, and agrees, in the event of a breach of this warranty, to indemnify and save the Fleet Corporation harmless from any costs, charges, or damages incurred by the Fleet Corporation by i’eason of any such liens or encumbrances, except as aforesaid.
    4. The contractor agrees to hold said materials for the Fleet Corporation (or such part thereof as may not be used by the contractor for other work, or shipped to or on the order of the Fleet Corporation) free from all storage charges and at the risk of the Fleet Corporation, except for any damages caused by negligence of the contractor. The Fleet Corporation shall at all times be entitled to immediate possession of said materials or any part thereof, and the contractor hereby authorizes the Fleet Corporation to enter upon any of the contractor’s property and take possession and remove any or' all of said materials, provided that such entry and removal shall be made in such manner as to interfere as little as practicable with the contractor’s work. The contractor further agrees, upon the written request of the Fleet Corporation, to deliver' f. o. b. cars the contractor’s plant all or any part of said property not theretofore delivered to or on the order of the Fleet Corporation as may be designated by the Fleet Corporation and in accordance with sucli shipping instructions as are given by the Fleet Corporation to .the contractor. The cost of any direct labor, of the contractor employed in loading said materials on cars shall be reimbursed to the contractor by the Fleet Corporation. The contractor represents and warrants that all the materials listed in “ Exhibit A,” and not heretofore delivered to or on the order of the Fleet Corporation, are on hand at its plant in as good condition as when received by the contractor, such deterioration, if any, as may occur without fault of the contractor excepted, and agrees to deliver the same to the Fleet Corporation, or to pay ‘the Fleet Corporation for such materials as can not be delivered,- in accordance with the prices mentioned in “ Exhibit A.” The contractor is authorized and permitted to use all or any part of said materials for other work, and in that event shall pay the Fleet Corporation for such materials as may be used, in accordance with the prices stated in “ Exhibit A.”
    5. The Fleet Corporation agrees to indemnify and save the contractor harmless against any loss or expense in connection with any suit which may be brought against the contractor by the Ocean Steamship Company under the said contracts for the construction of the said vessels, or either of them, or arising out of the payments made by the Ocean Steamship Company to the Harlan & Hollingsworth Corporation, as first payments under said contracts for the construction of hull No. 450 and hull No. 451, provided that the contractor give to the Fleet Corporation prompt notice of such suit or suits and obey any and all' reasonable instructions of the Fleet Corporation in relation thereto. The Fleet Corporation will pay any judgments rendered in a court of last resort against the contractor by reason of such suit or suits.
    In witness whereof the parties hereto have caused this agreement to be signed by their respective officers thereto duly authorized, and their respective common or corporate seals to be hereunto affirmed, duly attested, on the date above stated.
    Bethlehem Shipbuilding CoRPORAtton (Ltd.),
    By J. W. Powell, Vice President.
    
    [corporate seal.]
    Attest:
    R. E. McMath, Secretary.
    
    United States Shipping Board
    Emergency Fleet Corporation,
    By J. L. Ackerson, Vice President.
    
    [corporate seal.]
    Attest:
    Jas. V. Watson, Assistant Secretary.
    
    Approved:
    Alex Murdock,
    
      Vice Chairman Cancellation, Claims, mid Contracts- Board.
    
    Approved:
    G. H. Bonsall, Jr.,
    
      Assistant to Vice President in charrge of Claims.
    
    Approved as to form date:
    Glenn I). Peters, Assistant Counsel.
    
    Alfred W. Hayward, Assistant General Counsel.
    
    Approved:
    James Talbert,
    
      Member General C. C. C. Board.
    
    The above contract provides that Bethlehem Corporation should pay over to Fleet Corporation the net amount of $15,735.39. The payment of said net balance was made by Bethlehem Corporation, and the material left on hand from the construction of hulls 450 and 451 was transferred to the Fleet Corporation.
    XI. On October 12, 1917, all existing cargo ships of not less than 2,500 tons dead weight and passenger steamers of not less than 2,500 gross tons were commandeered by the Shipping Board.
    XII. Plaintiff paid to Harlan & Hollingsworth Corporation on December 10, 1915, $85,909 on account of hull 450, and on January 24, 1916, $10,000 on account of hull 451, a total of $95,909.
    Plaintiff had also incurred indirect and incidental expenses in connection with said vessels prior to August 3, 1917, to the amount of $3,568.75.
    
      The plaintiff was never in default of its part of the requirements of the contracts and was able at all times to carry out its part of said contracts.
    XIII. Plaintiff filed its claim with the Fleet Corporation for the payment of just compensation for what it stated was the requisition of its two hulls 450 and 451 which were under construction in the shipyard of the Harlan & Hol-lingsworth Corporation on August 3, 1917, and the contracts therefor.
    In March, 1920, the Emergency Fleet Corporation offered to pay to plaintiff as just compensation for the property so taken the sum of $109,068.64. Said award being unsatisfactory, plaintiff, as provided by the act of June 15, 1917, elected to accept 75% of the said award and to sue the United States to recover such further sum as added to said 75% would make up such amount as would be just compensation.
    In May, 1920, plaintiff executed a release as shown in Exhibit “ J ” attached to plaintiff’s petition, and the Fleet Corporation paid to plaintiff on the 17th day of August, 1920, the sum of $81,801.48, which was 75% of its award of $109,068.64.
    XIY. These two vessels were designed as combination freight and passenger ships for the coastwise trade in which the plaintiff was engaged, and on account of their special type were not bought and sold on the market like cargo ships, and there was on August 3, 1917, no generally recognized market for these combination freight and passenger vessels as there was for cargo ships.
    There was not on August 3, 1917, a market value for contracts for the type of ships which the Harlan & Hollings-worth Corporation had contracted to build for the plaintiff.
    XY. Just compensation to the plaintiff for the expropriation by the United States of its two contracts, and which will place it in as good a position pecuniarily as it would have been if its contracts had not been taken, is the sum of $250,000 as of August 3, 1917, with interest thereon at the rate of six per centum per annum from August 3, 1917, to August 17, 1920, which interest amounts to the sum of $45,583, on which later date the United States paid to the plaintiff the sum oí $81,801.48, leaving a balance due to the plaintiff on August 17, 1920, of $213,781.52, to which the plaintiff is entitled with interest thereon from August 17, 1920, to February 14, 1927, the date of this judgment, and which amounts in all to the sum of $291,373.57.
    In addition to the principal sum mentioned in Finding XY, and interest thereon to date of judgment, the court allowed, as part of just compensation, interest on the principal sum from date of judgment until paid.
    
      
       Certiorari denied.
    
   Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff, the Ocean Steamship Company of Savannah, for the sum of $3,145,342.63, which it claims is the just compensation due it for the expropriation of two contracts by the United States. These contracts were entered into by the plaintiff with the Harlan & Hollingsworth Corporation for the construction of two ships. The first contract was entered into by the aforesaid parties on December 1,1915, and by its terms the Harlan & Hollings-worth Corporation was to construct and deliver to the plaintiff on or before February 1, 1918, one combined cargo and passenger ship of 4,500 dead-weight tonnage for the price and sum of $945,000. The plaintiff was to pay the shipbuilder the sum of $85,909 at the time the contract was signed, and the balance of the money to be paid as the construction of the ship progressed; the sum of $85,909 when the keel was laid, and so on, all of which is set out in full in Finding II and is found in the contract which appears as Exhibit A to plaintiff’s petition.

On December 31, 1915, the same parties entered into another contract whereby the Harlan & Hollingsworth Corporation agreed to build for the plaintiff one steel passenger and cargo steamship of 4,500 dead-weight tonnage for the price of $935,000; $10,000 whereof was to be paid at the time of signing the contract, and the balance in 10 installments of $92,500, payable as the work progressed; the ship was to be delivered to the plaintiff in New York harbor 31 months after the contract was signed, which would have made the date of delivery April 31, 1918. The contract is in all other respects precisely similar in its terms to the other contract above referred to.

The plaintiff paid to the Harlan & Hollingsworth Corporation the sum of $85,909 on its first contract, and the sum of $10,000 on its second contract, and also expended the sum of $3,568.75 for incidental expenses in connection with said ships. The plaintiff did not make any payment on either contract after the payments above referred to for the reason that the shipbuilder made no progress in the construction of the said vessels, or none at least which required payment by the plaintiff, as under neither contract had the keels of the vessels been laid on August 3, 1917.

By virtue of the act of Congress of June 15, 1917, the President of the United States on July 11, 1917, empowered the United States Shipping Board Emergency Fleet Corporation to exercise the power vested in him by said act in so far as it was applicable to the requisitioning of vessels in process of construction or of contracts for the construction of such vessels and the completion thereof, and the requisitioning of materials for such construction. .And on August 3, 1917, the said United States Shipping Board Enlergency Fleet Corporation expropriated the contracts of the plaintiff which it had with the Harlan & Hollingsworth Corporation. At the time of said expropriation the Harlan & Hollingsworth Corporation had not laid the keels of either one of the vessels which it had contracted to build for the plaintiff. The said corporation had purchased some materials for the construction of said vessels, and had contracted for other materials. The shipbuilding corporation had set aside two of its slips for these vessels, had completed the designs, and the fabrication of some of the steel was under way. The ship corporation had expended for material purchased for these two hulls the sum of $116,239.10, and the amount of material contracted for by the shipbuilder and which it was obligated to take for said two hulls was $384,300; the value of the material to be ordered to complete the hulls was $265,700.

The plaintiff, on August 3, 1917, had not paid for any of these materials, and under the contract was not obliged to make any payment for materials until the keels of the vessels were laid. The contract provided “ that as the payments provided for herein are made by the party of the second part, on account of material assembled or set up in the yard of the party of the first part, or used in construction of said vessel, the same, to the extent of the payments made, shall become the property of the party of the second part.” As no payments were made by the plaintiff before the expropriation of the contracts, the plaintiff, at the time of the expropriation, was not the owner of the materials, or any part of them, and after the contracts were expropriated had no interest in or cl'aim to said materials.

After these contracts were expropriated by the United States the Fleet Corporation gave the shipbuilder instructions to abandon the construction of hulls 450 and 451, the vessels which the shipbuilder contracted to build for the plaintiff, and these vessels were never built, either for the United States or for the plaintiff.

Had no expropriation been made of the contracts of the plaintiff it is impossible to determine from the evidence when the contracts would have been performed.

On August 3, 1917, when these contracts were expropriated by the United States there was no market value for contracts for the type of ships which the Harlan & Hol-lingsworth Corporation had contracted to build for the plaintiff.

The shipbuilder was not ready or able to perform its contracts when the expropriation of the contracts was made, and it could not have performed the contracts and have delivered the vessels at the time agreed upon in the contract.

Under these facts it becomes our duty to ascertain the value of the contracts, and. to determine the amount plaintiff lost by the taking, “ that is, the sum which will put it in as good a position pecuniarily as it would have been in if its property had not been taken.” Brooks-Scanlon Corporation v. United States, 265 U. S. 106, 126.

As there was no market value for these contracts we must arrive at their value from the pertinent facts which have been proven, and in doing so we will be governed by the rules laid down by the Supreme Court of the United States in the Brooks-Scanlon Corporation case, supra, which read:

“ Determination of just compensation is to be-based on the fact that claimant’s contract "and its rights and interest thereunder were expropriated, and that it is entitled to have their value at the time of the taking. The value of such ships at the time of requisition, and the then probable value at the time fixed for delivery, the contract price,.the payments made and to be made, the time to elapse before completion and delivery, the possibility that by reason of the Government’s action in control of materials,, etc., the contractor might not be able to complete the ship at the date fixed for performance, the loss of use of money to- be sustained, the amount of other expenditures to be made between the time, of requisition and delivery, together with other pertinent facts, are to be taken into account and given proper weight to determine the amount claimant lost by the taking.”

We have carefully given consideration to all of the elements of value outlined in the above opinion, and having done so we are of opinion that just compensation to the plaintiff for the expropriation of its contracts is the sum of $291,373.57 and that that is the sum which will put the plaintiff in as good a position pecuniarily as it would have been if its contracts had not been taken.

Judgment will be entered accordingly. It is so ordered.

Moss, Judge; Graham, Judge; and Booth, Judge, concur.  