
    HURON NAVIGATION CORPORATION v. THE UNITED STATES
    
    [No. 34755.
    Decided May 12, 1925]
    
      On the Proofs
    
    
      Eminent domain; talcing or contract. — The facts found by the court show that plaintiff’s vessel was taken under the right of eminent domain, and not delivered by plaintiff to the Government under contract. See Gulf Refining Company v. United States, 58 O. Ols. 559.
    
      The Reporter'’s statement of the case:
    
      Messrs. Oscar W, Underwood, ;/V., and J. Harry Coving-ton for the plaintiff. Mr. H. C. Kilpatrick and Covington, Burling <& Rublee were on the briefs.
    
      Messrs. G. D. Braibson and Herman J. Galloway, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant. Mr. Arthur‘ Cobb was on the brief.
    The following are the facts as found by the court:
    I. The plaintiff, the Huron Navigation Corporation, is a corporation organized and existing under the laws of the State of Delaware, with its principal office in the city of New York. It was organized on April 16, 1917, with a capital stock of 10,000 shares of no par value stock, and its capital stock is still the same.
    II. The Delaware Navigation Corporation was a corporation organized early in the year 1917 under the laws of Xeiv York, with a nominal capitalization of $25,000. At the time of or soon after its organization it purchased the steamship William O’Brien, paying for it $1,600,000, the full amount of which was borrowed from banks on promissory notes of the company indorsed by the individual shareholders as security to the extent of their holdings.
    The plaintiff, the Huron Navigation Corporation, was organized April 16, 1917, by the same persons who were shareholders of the Delaware Navigation Corporation, for the purpose of succeeding the Delaware Navigation Corporation and increasing the amount of its capitalization; and after its organization it became the owner of the said steamship William O’Brien, at an estimated value of $1,000,-000, by issuing its entire 10,000 shares of stock proportionally among the shareholders of the Delaware Navigation Corporation, which latter corporation was thereafter dissolved. The purchase of said vessel by the plaintiff was effected in the summer of 1917, the bills of sale of the several interests in the vessel being executed on August 29, 1917.
    III. The said steamship William O’Brien was an oil-burning vessel built in 1915. It had two decks, and had a net tonnage of 3,142.77 tons, a dead-weight tonnage of 7,438 tons, and a speed of 9% knots per hour, and ivas in all respects a good ship.
    IV. On April 13, 1917, an agency agreement was entered into between the said Delaware Navigation Corporation and the Cosmopolitan Shipping Co., of New York, constituting the Cosmopolitan Shipping Co., the “ general manager and loading agent” of the William O’Brien, for “the management and control of said steamship ” during said agency, “ subject, however, to the supervision, control, and direction of the board of directors ” of the Delaware Navigation Corporation, owner, or its executive committee, or any person designated by said corporation, “ all charters, contracts, or other agreements relating to the vessel to be made by the. Cosmopolitan Shipping Co. in the name of the Delaware Navigation Corporation and subject to its approval.” It was also provided that any waiver at any time by the Delaware company of said right of supervision and control, should not be construed to estop the exercise of the right at: any other time.
    
      When the William, O'Brien was sold and transferred by the. Delaware Navigation Corporation to the plaintiff, in October, 1917, the plaintiff and the Cosmopolitan Shipping Co. treated said agreement as transferred and subsisting between the Cosmopolitan Shipping Co. and the plaintiff, and said agreement remained in force between them until in November, 1917, after the vessel had passed into the possession of the United States, after which date the France .& Canada Steamship Corporation, of New York, became the manager of the vessel, as shown by Finding XXIV.
    Y. The William O'Brien was engaged in trans-Atlantic shipping during the summer of 1917, and prior to October 12, 1917, the Cosmopolitan Shipping Co., then managing-agent of the plaintiff, had arranged with the French Government and other parties for a cargo of miscellaneous materials to be carried by said vessel for an outward voyage from New York to Le Havre, France, designated as voyage No. 4, which was to commence when the vessel should return from the preceding voyage to and from Genoa, Italy, designated as voyage No. 3.
    YI. On October 12, 1917, the United States Shipping-Board sent an order by telegram to the plaintiff, the Huron Navigation Corporation, care of Cosmopolitan Shipping Co., which was duly received, as follows:
    “ The United States Shipping Board gives notice to all owners of ships registered and enrolled under the laws of the United States that the requisition of all American steamers described below and of which previous announcement has been made will become operative and effective on October 15, 1917, at noon.
    “ 1. The ships affected by said requisition and included therein are (a) all cargo ships (and tankers) able to carry not less than twenty-five hundred tons total dead-weight, including bunkers, water, and stores; (b) all passenger steamers of not less than twenty-five hundred tons gross register.
    “2. (a) As to all steamers in-or bound to American ports on October 15th, 1917, requisition becomes effective after ■discharge of inward cargo and ship is put in ordinary good ■condition.
    “(b) As to steamers which have started to load their outward cargo, requisition becomes effective at noon on October 15, 1917, and accounts as to hire and expenses will be .adjusted from time steamer began to load.
    
      “3. Steamers trading to and from American ports that have sailed on their voyage prior to October 15, 1917, at noon, are to complete that voyage as promptly as possible' and report for requisitioning.
    “ 4. Steamers that are occupied in trades between foreign ports shall be requisitioned as of October 15, 1917, at noon, and accounts adjusted accordingly.
    “5. (a) Owners whose steamers are operating in their regular trades are to continue the operation of their steamers for account of the Government as they have been doing for themselves until they receive further instructions.
    “6. Owners whose steamers are chartered to others will apply to the Shipping Board for instructions regarding the future employment of said steamers. Acknowledge.”
    And on October 13 this telegram was followed by a letter from the Shipping Board by its director of traffic to the plaintilf, care of the Cosmopolitan Shipping Co., as follows:
    “ Gentuemen : Referring to the Shipping Board’s notice regarding the general requisitioning order, to become effective at noon, October 15, 1917, and communicated to you by telegram of Commissioner Colby on October 12.
    “Inclosed please find confirmation of this message, together with general statement covering schedule of proposed rates.
    “If you have not alreadjr acknowledged receipt of our wire, as requested, we will thank you to please do so at once and greatly oblige.”
    The schedule of proposed rates mentioned in the above letter stated that the rates would govern power-driven vessels, to be operated under two different schedules of prices. In one case the rate was called “ time-form ” and in the other “bare-boat form.” Under the time-form the rate for a vessel of over 6,001 tons and under 8,000 tons dead-weight ton capacity, such as the O'Brien, was to be $6.25 per deadweight ton per month. Under this weight the owner of the vessel was to bear the current expenses of operation. The rate also included the hire of the vessel.
    Under the “ bare-boat form ” the rate was dependent upon the speed of the vessel, being $4.15 per dead-weight ton per month up to and including 11 knots, and for each knot and part of a knot over 11 knots 50 cents per dead-weight ton per month. This rate of $4.15 applied to the O'Brien, whose speed is 9y2 knots.
    
      VII. On October 15, 1917, the Shipping Board’s said telegram of October 12 and letter of October 13 were acknowledged by a letter signed “Huron Navigation Corporation, Cosmopolitan Shipping Co. (Inc.), Agents, J. It. Munoz, Vice President,” and reading as follows:
    “ Dear SiR: We are in receipt of your telegrams, and also Mr. Ewing’s favor of October 18th, giving notification of all American vessels as of October 15th.
    “ We understand from the terms of your notice that in so far as same relates to the S. S. 'William O'Brien, now booked, with cargo for the French Government and miscellaneous consignees, for Havre, France, that this vessel is to proceed with her loading without regard to this notice, and for your information would state that all cargo has been ordered delivered to the vessel, which is due to arrive in New York within the next day or two.
    “ If our understanding of your instructions is incorrect, kindly advise us.”
    On October 16, 1917, a letter was written the Shipping Board signed “Huron Navigation Corporation, Cosmopolitan Shipping Co. (Inc.), Agents,” and reading as follows:
    “ Dear Sirs : With reference to your notice of requisition of all American vessels as of October 15th we are in doubt as how to proceed with the coming voyage of the ‘William O’Brien,’ which, as we advised you, is .scheduled to sail and has full cargo booked for Havre, France. We therefore respectfully submit the following questions to you and would appreciate your advice in connection with same :
    “ 1. We understand that upon the completion of the vessel’s inward voyage, after October 15th, she go s under charter to the TJ. S. Government, and her dead-weight tonnage being between 6,001 and 8,000 tons the charter rate per ton per month will be $6.25. What we wish to know is, Are we to draiv up a charter with the U. S. Government? If so, over what period of time and what form of charter is to be used ?
    “ 2. With whom are the owners to make this charter party ?
    “ 3. Are we to take out war-risk insurance on thi.s vessel as heretofore with the U. S. Government Insurance Board and other underwriters for her full value, $1,600,000.00, or is this automatically taken care of in the charter made or to be made between the Government and the owners ?
    “4. We have a contract for fuel oil for the ‘William O’Brien ’ with the Standard Oil Company. Are we to continue to utilize this contract and furnish fuel oil to this steamer at the expense of the charterers or will charterers arrange such fuel oil ?
    “5. We understand the stevedoring’ to be for account of the Government. If so, are we authorized to work the vessel overtime, Sundays, and holidays, paying for such overtime as may be necessary so as to obtain tlr' maximum unloading efficiency of the ship ?
    “ 6. MISCELLANEOUS REPAIRS TO COMPLY WITH U. S. GOVERNMENT WAR RISK BUREAU.
    “U. S. Government War Risk Bureau stipulates that certain steps be taken with all American vessels insured under U- S. Government war-risk scheme, viz, camouflage, smoke boxes, extra accommodations for gun crew, etc. Are we to arrange to do this work, charging same to the Government, or will the Government take care of same ?
    “ Inasmuch as this vessel is due in New York within the next 48 hours, you will naturally appreciate that we are anxious to have these various points cleared up prior to her arrival. The vessel will be ready to load her outward cargo immediately upon arrival, as she is arriving in ballast, and it will be most difficult for us to proceed intelligently with the loading of her outward cargo until the various points outlined above are cleared up.
    “As operating agents, and speaking on behalf of the. owners, we wish to state that our sole desire is to cooperate with the Government in thi.s work to the fullest extent possible, and your advice in connection with the above matters will greatly facilitate our doing so. In view of the imminence of the ship’s arrival, your advices by telegraph would be of gi\ at assistance to us.”
    On October 19, 1917, the Shipping Board sent a telegram addressed to the Huron Navigation Corporation direct, reading as follows:
    “ You are authorized to proceed with the loading of the 'William O'Brien for France for Government account in accordance with requisitioning order.”
    On the same date, October 19, 1917, this telegram wa.s acknowledged by a letter to the Shipping Board, signed “Huron Navigation Corporation, Cosmopolitan Shipping Co. (Inc.), Agents, J. R. Munoz, Vice President,” and reading as follows:
    “Dear Sirs: We have pleasure in reporting to you the safe arrival of the S. S. William O'Brien at New York this afternoon. We also acknowledge receipt of your telegram of even date reading as follows: ‘Yon are authorized to proceed with the loading of the William O'Brien for France for Government account in accordance with requisition order.’ Every effort will be made to give this vessel a prompt dispatch.”
    VIII. The William O'Brien arrived at New York, on her return from said voyage No. 3, and completed discharging cargo on October 19, 1917. She began on the same day talc-ing on her cargo for said vojUige No. 4, to Le Havre, France, and left the port of New York on or about October 24, 1917, for Le Havre, notice of which was given the Shipping Board by a letter of that date signed “ Huron Navigation Corporation, Cosmopolitan Shipping Company (Inc.), Agents,” and reading as follows:
    “ GeNtlemeN : The S. S. William O'Brien sailed from New York to-day for Havre, France.”
    IX. Following certain correspondence with the Shipping; Board with reference to war risk insurance on said vessel while under requisition by the Government, the following-letter of October 24 was written the Shipping Board’s director of operations:
    Huron Navigation Company,
    20 Exchange Plage, New York,
    
      October Bl¡., 1917.
    
    E. F. CARRY, Esq.,
    
      Director of Operations,
    
    
      United States Shipping Board, Washington, D. 0.
    
    Dear Sir : Complying with your instructions as follows :
    . “ Government assumes war risk effective from time vessel is subject to requisition order value of vessel to be determined at time of loss.”
    We have ordered the steamship Williami O'Brien to proceed to sea as you have directed.
    In taking this action we do so under protest regarding the item of war risk insurance. We think it is most unfair that the value of the ship is not specifically stipulated. This vessel cost us only a few months ago $1,650,000 in cash.
    The Government has repeatedly insured this vessel for $1,600,000 and $1,300,000, respectively. At the time of insuring the vessel for the smaller sum we went into the market and bought additional insurance to a total of $1,600,000.
    
      We request that the Government specify the value they place upon the vessel, and should this be less than $1,600,000, it is our intention to go into the market and buy additional insurance, and the cost of said insurance shall be an operating expense of the vessel.
    Any other course would be most unfair, to the owners of this property, for unless the Government protects them in their insurance value, they should be permitted to protect themselves. Kindly advise in regard to this matter.
    Very truly yours,
    S. W. Labrot, President.
    
    On October 31, 1917, the said director of operations acknowledged the above letter by a letter addressed to the Huron Navigation Corporation direct, reading as follows:
    “ GeNtlemeN : Replying to your communication of October 24th, we note that the decision of the Board in regard to the determination of value at time of loss is not satisfactory to you, and we wish to advise that this is the final decision of the Board covering all vessels operating under the general requisition order.”
    No war risk insurance was placed or taken out by the plaintiff on the vessel for said voyage No. 4.
    X. The said vessel arrived at Le Havre and finished discharging her cargo on November 19, 1917, being operated up to that time by a captain and crew employed and paid by her owners. The plaintiff, through its said agent, the Cosmopolitan Shipping Co., collected all freight charges for said voyage No. 4, to Le Havre, and paid all expenses of the voyage except that of war risk insurance, the war risk having been assumed by the Government, as shown by Finding IX; and except as otherwise in these findings shown, said voyage was carried out as originally planned.
    The gross receipts received by plaintiff for said voyage were $682,684.20. The operating expenses paid by. plaintiff for the voyage, including $6,470.22 for marine insurance, but not including either war risk insurance on vessel or cargo, office overhead expenses in New York, or depreciation of the vessel, were $98,788.98, leaving a balance, over and above the direct operating expenses paid by plaintiff, of $583,895.22, which was retained by the plaintiff, and $350,-000 of which was used by plaintiff in paying off debts, including the last note owing by it on account of the purchase of the vessel. This last payment was not made until the permission and consent of the Shipping Board thereto had been requested and obtained.
    It does not appear from the evidence what would have been the cost of proper war risk insurance on the vessel and her cargo for said voyage.
    XI. In the weekly reports of October 8 and 15, 1917, called for by and made to jdie Shipping Board as to the time the said vessel would be available for Government service, and signed “Huron Navigation Corporation, Cosmopolitan Shipping Company (Inc.), agents,” the time of availability ivas stated as October 19, 1917; and in subsequent weekly reports, continuing to November 26, 1917, the A^essel was stated to be under requisition by the United States GoATernment.
    XII. On Noatember 19, 1917, after the cargo of the William O’Brien had been discharged at Le Havre, Lieut. Col. J. L. Gilbreth, United States Quartermaster Corps, under the orders of General Pershing, and accompanied by the American consul at Le Havre, went aboard the vessel and seiwed upon its master the following requisition notice:
    Noa'embee 19, 1917.
    From: Commanding officer,
    To: The master of the American S. S. William O’Brien. Subject: Requisition of steamer.
    1. By authority of the commander in chief American Expeditionary Forces in France, I hereby requisition the United States steamer William O’Brien for duty as an Army transport. On and after the date of delivery of these papers to the master of the William O’Brien the ship, its crew, supplies, and stores pass into the service of the United States Government.
    2. Sailing instructions will be communicated to you later.
    J. L. Gilbreth,
    
      Lieutenant Colonel, Q. M. C.
    
    Thereupon the said American consul delivered the ship’s papers to Colonel Gilbreth, and thereafter reported his action to the State Department at Washington.
    
      On and after November 19, 1917, the vessel was operated under the “bareboat form” of hire, and it was operated upon this basis until its return to the possession of the plaintiff February 21, 1919, during which period the plaintiff regularly rendered its bills upon the said basis.
    XIII. Pursuant to Army orders of November 21, 1917, to the master of the vessel, the William O'Brien proceeded to Cardiff, England, for survey and repairs. The repairs were made by Clover, Clayton & Co. (Ltd.), the charge for which was £2,281 7s. od., equivalent to $8,669.20. The bill for said repairs was not rendered by Clover, Clayton & Co. until in February, 1919, when it was sent to the United States Army authorities, who demanded that it be paid by the plaintiff. It ivas finally paid by plaintiff in December, 1919, which, together Avith an agency commission thereon of $213.73 paid by plaintiff to the operating agent of the vessel, then the France & Canada Steamship Corporation, amounted to $8,882.93 paid by plaintiff on account of said repairs.
    XIY. On November 27,1917, the WilUam O'Brien entered into active service under the War Department. After one coal-carrying trip between Cardiff and Havre for the Army she was found unsuitable for such use and was exchanged by the United States with the British Admiralty, on or about January 21, 1918, for two smaller vessels, upon the basis of the British Admiralty form of time charter, under which the creAv retained the status of United States War Department employees.. The vessel remained in use by the British Government until the close of hostilities, during which use she was considered both by the War Department and by the Shipping Board as in the service of the War Department. She was redelivered to the plaintiff by the United States on Februaiy 21, 1919.
    XY. When the said vessel entered into active service under the War Department on November 27, 1917, as shown by Finding XIY, she had on board 144,000 gallons of fuel oil and large quantities of provisions, all of which were subsequently used by the Government. Said oil and pro-lusions had cost the plaintiff and were then reasonably worth at current prices $13,774.92, no part of which.has been paid the plaintiff by the Government.
    When said vessel was redelivered to the plaintiff by the Government on February 21, 1919, she was delivered without being reconditioned by the Government, but under an agreement for an allowance to the plaintiff of the sum of $17,000 in lieu of such reconditioning, against which allowance there was to be allowed the Government'for stores left on the vessel a sum which reduced the net allowance to the plaintiff to $13,219.25. No part of this allowance has been jiaid to the plaintiff.
    XYI. Upon the return of-the William O’Brien to the plaintiff the United States was, and still is, entitled to á credit against the plaintiff of $1,794.87 on account of advances for gun mounts, etc.
    XVII. Some time prior to December 8, 1917, a Government-form charter was sent by the Shipping Board for execution by the plaintiff for the William O’Brien. On December 11 following the Cosmopolitan Shipping Co. wrote the Shipping Board saying, in part:
    t: Your telegram of December 8th requesting that we telegraph you immediately that we have signed requisition charter covering S. S. William O’Brien was immediately transmitted to the new president of the Huron Navigation Corporation, Mr. J. H. Carpenter, 120 Broadway, who now, however, requests that we advise you to take the matter up with him direct, and we have so telegraphed you to-day.”
    It was further stated in said letter that there had been changes in the stock ownership of the Huron Navigation Corporation, and that the new president of said company had taken the position that the Cosmopolitan Shipping Co.’s agency contract for the William O’Brien had been terminated by the requisitioning of the vessel'by the Government.
    On December 14, 1917, the Shipping Board director of operations wrote the plaintiff direct with reference to the execution of the charter,.in response to which he received the following reply, of December 19, from the treasurer of the company, S. H. McIntosh, who was also the treasurer of the said France & Canada Steamship Corporation, of New York:
    
      Telephone, 6300 Kector 21200.
    Huron Navigation Company,
    120 Broadway, New Yore,
    
      December 19, 1917.
    
    Mr. E. F. Carry,
    
      Director of Operations,
    
    
      United States Shipping Board, Washington, D. Cf.-
    
    Dear Sir: I have your letter of the 14th instant in relation to steamer “William O’Brien.”
    The requisition charter was not enclosed with your letter, and if you will now send same to us we will have it executed in proper form.
    Yours very truly,
    S. H. MoIntosi-i. Treasurer.
    
    After further delay and more correspondence between the Shipping Board and the plaintiff, in which the former repeated its request for execution and return of said charter by the plaintiff, the Shipping Board on February 14, 1918, telegraphed plaintiff, “ Care France & Canada Steamship Line,” New York, asking how soon it might expect the signed charter to be returned to it. On the same day the plaintiff replied by telegraph, stating that a directors’ meeting had been called for the 19th instant to authorize the signing of the charter, and that the delay had been caused by the absence of directors.
    On February 19, 1918, the plaintiff, by S. H. McIntosh, .treasurer, wrote to the Shipping Board, inclosing two signed copies of the requisition charter, with November 19, 1917. as the date when the vessel entered into Government pay. the letter of transmittal reading as follows:
    “I beg to enclose herewith requisition charter in duplicate, of the above steamer, effective November 19,1917, which has been duly signed on behalf of this corporation. Will you kindly execute one of these charters and return to me for our files?”
    On the same date, February 19, 1918, the director of operations wrote plaintiff, with reference to the William-O'Brien, as follows:
    “Gentlemen: We are advised by the War Department that this steamer was taken delivery of by General Pershing-on bare-boat basis at Havre November 27, 1917, at 1.10 p. m. We are advising you of this in the event you have not already received notice to this effect, of which please take due notice.”
    On the next day, February 20, the said S. H. McIntosh, treasurer of the plaintiff company, wrote the Shipping Board transmitting charters for the vessel amended to date from November 27, 1917, instead of November 19, and saying:
    “ Dear Sir : Referring to my letter of yesterday enclosing requisition charters of the above ship, I now beg to enclose herewith amended charters dated from November 27, 1917, this being in accordance with your advice of yesterday that the ship was turned over to the American Army at that time. Kindly substitute these charters and return one to me duly signed on behalf of the Shipping Board.”
    On the following day, February 21, the director of operations wrote plaintiff acknowledging receipt of its letter of February 19 and of two copies of signed charter transmitted with it and requesting two additional copies of the charter, and also an affidavit showing outstanding commitments, if any, against the vessel at the time of requisition, with which requests plaintiff company complied by letter of February 25, 1918, in which it requested a certified copy of the said charter.
    On the same date, February 25, 1918, the director of operations wrote the plaintiff, saying:
    “ Gentlemen : I have your letter of the 19th instant, in which you ask that the date, November 27, 1917, be inserted as the time when the requisition charter became effective. This date, however, is the date that the vessel passed into the service of the War Department, under the bareboat form; but the date the requisition became effective was prior to the sailing of the vessel, on October 25th. I shall, therefore, insert October 25th as the date on which the vessel entered into the pay of the Shipping Board. Will you kindly send me affidavits showing commitments, if any, outstanding against the vessel at the time she first came under the requisition. ' If there were none, the affidavit should so state.”
    On February 28 following the director further wrote the plaintiff acknowledging the two additional copies of the ^charter forwarded by plaintiff on February 25th, in which charter the time the vessel entered into Government pay was changed to November 27, 1917, and saying:
    “As I have previously written you, the requisition became effective as to this vessel on October 25th, and not on November 27th, when she was transferred to the Army. You will, of course, have to render to us accounts of the voyage made before the vessel was taken by the Army.”
    On March 13,1918, the director of operations of the Shipping Board wrote the plaintiff as follows :
    “ GeNtleaieN : Herewith I send you duly executed by the Board duplicate copies of the requisition charter covering your vessel William O'Brien. The description of the vessel, its capacity and speed, are subject to verification. October 25, 1917, has been inserted as the date upon which the vessel entered into the pay of the United States. November 27, the date inserted by you, was the date that the vessel was taken over by General Pershing, and not the time the requisition became effective. It will be necessary for you to account to the board for the voyage commenced from the United States on October 25th. Please acknowledge receipt.”
    This letter and these duplicate copies of the charter, witli the changed date, were received by the plaintiff and retained.' It does not appear that there was at the time any objection or protest.
    The said requisition charter proper was signed by the plaintiff, by its treasurer, S. H. McIntosh; and, with the requisition date subsequently changed by the director of operations of the Shipping Board to October 25, 1917, as shown by the foregoing correspondence, the instrument, proper, was as follows:
    U. S. S. B. Charter, Form No. 2, Duplicate
    United States of America Requisition Charter
    Name of steamship, William O'Brien; type of steamship, steel; D. W. tonnage, 7,438; gross tonnage, 5,146; passenger capacity, freight only; knots per hour, 9y2; date on which vessel entered into pay, Oct: 25, 1917. -
    This requisition charter made and concluded upon in the District of Columbia the 13 day of March, 1917, between Huron Navigation Corporation of city of New York of the State of N. Y., owner of the good American steel screw steamship William O'Brien of New York of 5,146 tons gross register and 8,099 tons net register, built in 1915, having engines of 2,000 nominal horsepower, provided with proper certificate for hull and machinery, and classed_at _of about 329,260 cubic feet capacity and 7,438 tons dead-weight capacity, summer free-board, inclusive of permanent bunkers, capable of making an average voyage speed when loaded of 9y2 knots an hour, under ordinary' conditions, on a consumption of about_tons of coal, or ■about 182 barrels of oil per 24 hours; and the United States of America, through the United States Shipping Board—
    Witnesseth:
    Whereas by requisition order, dated Oct. 15th, 1917, pursuant to the urgent deficiency act, 15 June, 1917, and the President’s Executive Order, 11 July, 1917, the United States has requisitioned the use of the steamship William O'Brien, and the steamship has been delivered into possession of the United States pursuant to the requisition; and
    Whereas it is desired by the United States and by the owner to fix the compensation (hereinafter called hire) which the United States shall pay to the owner for use of the steamship so requisitioned and to define by agreement the rights and duties of the United States and of the owner with respect to the operation of the vessel under the requisition, and with respect to other matters in connection there-Avith:
    Noav, therefore, it is agreed as folloAvs:
    First. The terms and conditions under which the vessel is to be operated shall be those contained in the “ time form ” hereto annexed: Provided, hoivever, that at the time of the requisition or at any time thereafter, on five days’ written .notice, the United States may operate the vessel under the terms and conditions contained in the “bareboat form” hereto annexed, such operation to begin when the steamship is in a United States port.
    Second. In consideration of the compensation provided and the other obligations assumed by the United States hereunder, the oivner accepts this requisition charter in full satisfaction of any and all claims he has or may have against the United States arising out of the requisition and accepts the compensation herein provided for as the just compensation required by law: Provided, howeArer, that the acceptance of this requisition charter shall be without prejudice to the claim, if any, the owner may have against the United States arising out of recoveries against the owner by third parties on the vessel’s commitments.
    
      Third. Upon giving five days’ written notice to the owner the United States may at any time when the vessel is in a United States port cancel this requisition charter without prejudice to the accrued rights of either party.
    HttRON Navigation Coepn., Owner.
    
    By S. H. McIntosh, Treas.
    
    The United States Shipping Boaed,
    By E. F. Caeev, Director of Operations.
    
    Witness the signature of—
    Lee A. Haetshoen.
    Witness the signature of—
    J. W. Whitnib.
    XVIII. The conditions of the “time form” accompanying and constituting a part of the said requisition charter contained, among others, provisions in substance as follows:
    The vessel when placed at the disposal of the Government to be, or to be forthwith made, at the expense of the owner, tight, staunch, strong, and sufficiently tackled and equipped and in every respect seaworthy and in good running condition, and to have a full complement, including master, officers, and crew; and any time lost in remedying any deficiency in these respects not to be paid for by the Government.
    The owner to operate the vessel for the Government and pay all the ordinary costs and expenses of operating the vessel, except for fuel, fresh water, port charges, pilotages, agencies, commissions, brokerage, wharfage, etc.
    The vessel while being so operated by the owner not to have the status of a public ship and to be subject to all laws and regulations governing merchant vessels, and the owner to “take all proper steps to prevent any suit or process from interfering with her service.”
    When engaged in the service of the War or Navy Departments the vessel to have the status of a public ship and the master, officers, and crew to become “ the immediate employees and agents of the United States, with all the rights and duties of such, the vessel passing completely into the possession and the master, officers, and crew absolutely under the control of the United States”; the owner, master, officers, and crew to be notified of the commencement and termination of the vessel’s employment in the service of the War and Navy Department, proper notation to be made on the ship’s articles prior to the signing thereof, showing the master, officers, and crew to have entered into the service of the United States.
    The Government to accept and pay for all fuel on board at the time of delivery of the vessel under the requisition order and the owner to pay for all fuel left on board by the Government at the time of redelivery of the vessel to the owner, such fuel to be paid for at the current market prices.
    The Government to pay for the use of the vessel at the monthly rates from time to time established by the Shipping Board for such a vessel, “ commencing on and from the hour that she shall be ready for delivery under the requisition (and is so reported to the United States) ” and to continue until the hour when the vessel should be ready (and so reported to the owner) for delivery to the owner at a United States port.
    If the Shipping Board should thereafter lower the rate of hire for the vessel below that in effect on the date of the requisition, the owner should have the option of cancelling the said requisition charter, as of the date of such reduction, without prejudice to the rights of either party to the charter.
    Payment of the hire of the vessel to be made in the District of Columbia in cash, monthly, as earned at the end of each calendar month.
    The owner to assume all the marine risks of the vessel, “including collision liabilities (excepting losses and liabilities arising from war risks),” the United States to assume all “war risks (including collision liabilities).”
    In case of loss of time on account of collision, breakdown of machinery, or dry-docking for making repairs, or for any other cause preventing the working of the vessel for more than 24 consecutive hours, the hire to be reduced one-half until vessel is again ready for service, with the exception, however, that there should be no such .reduction where such loss of time was due to a war risk, or where it occurred in a port in the war zone, or at sea, if the owner should show that it used due diligence to avoid such loss of time.
    
      Losses or damages to be excepted from liability where they should be occasioned by act of God, perils of the sea, fire, barratry of master or crew, enemies, pirates, robbers or thieves, arrests and restraints of princes, rulers, and peoples, collisions and strandings, explosions, bursting boilers, breaking of shafts, or any latent defects in the vessel or machinery, or by negligence, default, or error in judgment of the pilot, master or crew, or other servants of the owner in the management or navigation of the vessel.
    The vessel to be redelivered by the Government to the ■owner in as good order and condition as when delivered to the. Government under the requisition order, ordinary wear and tear and damage due to the operation of risks assumed by the owner excepted, or just compensation to be paid the ■owner in the District of Columbia for the damage to the vessel, with interest at 6 per cent per annum from 30 days after the proof of such damage, upon redelivery of the vessel to the owner, unless the owner should resort to a court for the purpose of establishing the amount of such compensation.
    Any dispute of law or fact arising imder this ‘‘time form,” except as to the rate of hire and the compensation for actual or constructive total loss of the vessel, and except as to matters expressly left to be decided by the Shipping Board, to be referred to the arbitration of three persons, one appointed by the owner, one by the United States, and the third by the two so chosen, the arbitrators to proceed in any manner determined by them, and their decision, or that of any two of them, to be final; and such arbitration to “ be a condition precedent to the commencement of any action.”
    The rate of hire under the said “ time form ” fixed by the Shipping Board for such vessels as the William O'Brien, and in effect throughout the time of said vessel’s use by the United States, was $6.25 per dead-weight ton per month.
    XIX. Among the conditions of the “bare-boat form” of the charter were, in substance, the following:
    Provision as to staunchness, equipment, and seaworthiness of the vessel similar to those in the “ time form,” as set forth in first paragraph of Finding XYITI.
    
      The United States, at its sole expense, to “man, operate, victual, and supply the vessel,” to pay all port charges, pilotages, and all other costs and expenses incident to the use and operation of the vessel; to assume war, marine, and all other risks of whatsoever nature or kind, including all risk of liability for damage occasioned to other vessels, persons, or property.
    Payment to be made to the owner for the use of the vessel at the monthly rate from time to time fixed by the Shipping-Board for such a vessel, commencing when she should be ready for delivery (and so reported to the Government), the owner, in case of the rate of hire being at any time reduced below the rate in effect on October 15, 1917, to have the option of canceling the said requisition charter as of the date of such reduction without prejudice to the rights of either party.
    The Government to accept and pay for all fuel and consumable stores in good order and condition on board when the vessel was delivered to it under the requisition order, and the owner to pay for all such supplies left on board by the Government when the vessel was redelivered to the owner, such payments to be made at current market prices.
    The provisions for return of vessel to the owner in as good condition as when received by the Government, etc., and also for arbitration in case of “ any dispute of law or fact ” arising between the jiarties, were similar to those in the. “ time form,” as set forth in Finding XVIII.
    The rate of hire under the said “ bare-boat form ” fixed by the Shipping Board for such vessels as the William O’Brien, and in effect throughout the time said vessel was in the service of the United States, was $4.15 per dead-weight ton per month.
    XX. Under date of April 2, 1918, the plaintiff wrote the Shipping Board as follows:
    “ We are enclosing herewith public voucher covering charter hire for requisitioned S. S. William O’Brien from 1.10 p. m., November 27, 1917, to midnight, March 31, 1918, amounting to $127,022.01. Will you kindly return public voucher forwarded to you last month amounting to $144,-810.71, as same was computed on time-charter basis instead of ‘ bare-boat ’ form.”
    
      The bill, or voucher, inclosed with said letter was as follows :
    
      Public voucher for purchases and services other than personal
    
    
      The United States to Huron Navigation Corporation, Dr., address 120 Broadway, New York City
    
    Article or service Amount
    Charter hire for requisitioned S. S. William O’Brien (7,438 deadweight tons) from 1.10 p. m., Nov. 27, 1917, to midnight Mar. 31,1918, at $4.15 per deadweight ton per month:
    From 1.10 p. m. Nov. 27,1917, to midnight Nov. 30,1917.. $3,551.21
    From -— m. Dec. 1,1917, to midnight Dec. 31,1917.. 30,867.70
    From-m. Jan. 1,1918, to midnight Jan. 31,1918.. 30,867.70
    From-Feb. 1,1918, to midnight Feb. 28,1918.... 30,867.70
    From-Mar. 1,1918, to midnight Mar. 31,1918.. 30,867.70
    Total.-.-. 127,022.01
    I certify that the above bill is correct and just and that payment therefor has not been received.
    HURON Navigation Corporation.
    The plaintiff thereafter, during the vessel’s retention in the Government service, rendered monthly bills for the hire of said vessel at the “bare boat” rate of $4.15 per deadweight ton per month; and no claim- to any higher rate of hire appears to have been made by plaintiff during the time the vessel was in the service of the Government.
    No settlement or payments on said bills, or on the said voyage No. 4, in October-November, 1917, or on the contract as a whole, have been made by or between the Government and the plaintiff.
    .XXI. During said voyage No. 4, from New York to Le Havre, October 19 to' November 19, 1917, the said vessel was still in the service of the Government on the “time form ” basis of hire.
    From November 19, 1917, to February 21, 1919, the vessel was in the service of the Government on the “ bare boat ” basis of hire.
    XXII. At the Government “bare boat” rate of hire, $4.15 per dead-weight ton per month, the hire of said vessel from October 19 to November 19, 1917, would amount to $30,867.70; and her hire from November 19, 1917, to February 21, 1919, the date of her redelivery to the plaintiff,, would amount to $465,073.34.
    At the Government’s “ time form ” rate of hire, $6.25 per dead-weight ton per month, the hire of said vessel from October 19 to November 19, 1917, the period of said voyage No. 4, would amount to $46,487.50.
    XXIII. The market rate of hire for the plaintiff’s said vessel on the Government “ bare boat ” basis was $6.60 per dead-weight ton per month. At this rate her hire for the period from October 19 to November 19,1917, would amount, to $49,090.80, and her hire from November 19, 1917, to February 21, 1919, would amount to $739.634.72.
    The market rate of hire for said vessel on the Government’s “ time form ” basis was $8.91 per dead-weight ton per month. At this rate her hire from October 19 to November 19, 1917, would amount to $66,272.58.
    XXIV. On or about November 22, 19Í7, pursuant to an understanding between the parties concerned, 90 per cent of the stock of the plaintiff company, the Huron Navigation Corporation, was purchased by the France & Canada Steamship Co. (Ltd.), the Canadian corporation, for the account of the France & Canada Steamship Corporation, said stock being held in trust by Francis. B. Mayer, the president of the Canadian corporation, as trustee, to secure the repayment of the purchase price by the France & Canada Steamship Corporation to the France & Canada Steamship Co. (Ltd.). Thereafter, until the sinking of the William O’Brien in April or May, 1920, the said France & Canada Steamship Corporation, under a verbal understanding between the companies, was the managing and operating agent of said vessel, upon a commission basis of compensation. The said S. H. McIntosh, the treasurer of the plaintiff company after the purchase of its said stock by the France & Canada Steamship Corporation, was also the treasurer of said France & Canada Steamship Corporation.
    XXV. On January 30, 1918, while in the Government service, the William, O’Brien had a-collision with the steam vessel Kileahin, for which collision the master of the O’Brien admitted responsibility, and the expenses of which were paid by the United States.
    
      XXYI. On October 16, 1918, while in use by the British Government, the William CBrien had a collision, in the Mersey River, England, with the English steamer Dorring-ton Court, then under requisition by the British Government. It ivas the custom and practice in England in cases of collision of private vessels in the service of the British Government for* actions arising thereon to be prosecuted or defended in the name of the owners of the vessels, the. British Government indemnifying the owners in case of adverse judgment and the owners turning over to the Government any money recovered oh a favorable judgment.
    After the said collision a notice of libel in rem was tacked on the O'1 Brier., but no shipkeeper was installed thereon and no restraint upon the vessel’s movements was attempted. On October 26, 1918, process wa.s issued from the High Court of Justice of’England, Admiralty Division, by the owners of the Dorrington Court against the owners of the OBirien. On October 19, 1918, the collision was reported by the United States Army Transport Service, London, to the Director of the United States Transport Service, Tours, France, with the statement that the matter was being attended to by the American Shipping Mission. The American Shipping Mission reported the collision to the Shipping Board, which, on December 9, 1918, advised the War Department that it assumed that the department would handle the matter.
    On October 21,1918, Moxon, Salt & Co., the London agents for the plaintiff, and who also appear to have been agents for the said France & Canada Steamship Corporation and France & Canada Steamship Co. (Ltd.), received a cablegram from the France & Canada Steamship Co. (Ltd.) reading as follows:
    “ Seven. Captain our steamship William (PBrien reports damaged by collision in Mersey. Ship beached. Investigate. Protect our interests. Cable report.”
    Said London agents, Moxon, Salt & Co., thereupon employed solicitors, who in turn employed a barrister, to look after the vessel’s interests. On October 25, 1917, Moxon, Salt & Co. wrote plaintiff, giving a report of the collision and inclosing a report of it by the captain of the vessel, which letter wa.s received by plaintiff about November 6, 1918. On October 28, Moxon, Salt & Co. saw a representative of the British Ministry of Shipping in the matter, but the British Government would have nothing to do with it further than assuming the insurance responsibility for the vessel during dry-docking operations growing out of the collision and making arrangements and giving instructions relative to repairs. Surveys of the two vessels and estimates of the damage to them and their cargoes were made by surveyors, adjusters, and the Bureau Veritas, and trial was set for December 19, 1918.
    On November 16, 1918, the France & Canada Steamship Co. (Ltd.) cabled Moxon, Salt & Co. in the matter, saying, “Authorities responsible; discontinue handling.” On November 27 Moxon, Salt & Co. cabled'the France & Canada Steamship Co. (Ltd.) informing it of the date set for the trial, December 19, and asking for instructions. On November 29 the plaintiff cabled Moxon, Salt & Co., saying, “ Supply no funds, as Admiralty responsible.”
    The plaintiff notified the United States authorities in the matter, but received no assurance that it would be taken charge of by the Government. On December 11, 1918, the France & Canada Steamship Co. (Ltd.) cabled Moxon, Salt & Co. that it considered the American authorities responsible in the matter, but directed Moxon, Salt & Co. to “ take legal steps ” to protect their interests.
    A few days before the day for the trial the owners of the Domngton Gowrt propos: d a settlement between the parties to the suit on the basis of mutual, or equal, fault of the two vessels, which proposal was not accepted by or in behalf of the plaintiff, its acceptance not being advised by plaintiff’s London counsel.
    On December 12, 1918, Gen. George W. Goethals, Assistant Chief of Staff of the Army, telegraphed plaintiff as follows:
    “ Re tel. your twelfth regarding steamship William O’Brien, instruct your agents get in touch with General Superintendent United States Army Transport Service London immediately. This office will send similar instructions to Army authorities abroad.”
    
      On December 18, 1918, the France & Canada Steamship Corporation wrote General Goethals, at Washington, informing him of the proposal of the owners of the Dorring-ton Court to settle the collision case on the basis of mutual fault of the vessels, and on December 21, two days after the trial of the case, cabled its London agents: “ Consulting Army; cabling later.” On the same date, December 21, General-Goethals replied to said company’s letter of December 18 in regard to the proposed offer of settlement on the basis of mutual fault, saying, in part:
    “ This office does not feel justified in giving your agents authority to settle the case, and the arrangements with the British Government whereby the William O'Brien has been in British service were made on the other side, and there is not sufficient information here to warrant our interfering with whatever steps they may take there.
    “ Your attention to the Army interest in this matter is much appreciated, and it is regretted that a satisfactory reply can not be given you.”
    XXVII. On December 16,1918, three days before the date set for said collision trial, Maj. John Kennedy White, the representative of the United States Army in London as an officer of the Bents, Bequisition, and Claims Service of the Army, ivas informed by cable from the chief of said service that a proceeding had been instituted against the steamship O'Brien, and instructed to investigate and take any necessary action and report in the matter. Major White thereupon conferred with the plaintiff’s London agents, solicitors, and barristers, and requested and urged that they request an adjournment or continuance of the case in order that he might be able to communicate with the Judge Advocate General of the Army for more definite instructions in the matter. He contended with plaintiff’s counsel that the British court had no jurisdiction to maintain the suit, because the O'Brien was a requisitioned ship, and refused to become an attorney of record in the case, and stated to them that if tb# case were allowed to go to trial at the time set for it and a judgment were rendered against the plaintiff he, as a claims officer, would refuse to approve any claim against the United States arising out of the case; and further, that the United States, not having been served with any notice to defend, would in all probability not feel itself bound by any decision in the case. Not being an English barrister, Major White could not have personally appeared in the case, and he had no authority to employ counsel to appear in the case for the United States. Plaintiff’s counsel refused to request an adjournment, and the case went to trial on the date set, December 19, in which trial judgment went against the Huron Navigation Corporation, the William O’Brien being held at fault in the collision.
    Major White recommended proceedings to have the judgment quashed on the ground that the United States and not the Huron Navigation Corporation was the real party in interest as defendant, and also recommended that an inter-pleader be filed to have the judgment set aside on this ground, but no such action was taken, the chief claims officers of the service of supply, American Expeditionary Forces, on June 7, 1919, advising that the case should not be reopened.
    NXVIII. The bills resulting from the said judgment of the court, when subsequently presented to the Government, were gone over by Major White with an officer of the Army Transport Corps, and were refused approval for payment by the Government.
    The United States during 1919 paid bills resulting directly from said collision to the extent of £17,098 18s. lid., being £7,488 18s. 8d. for the repair bill on the William O’Brien and £9,659 15s. 3d. for bills growing out of the voluntary beaching of the O’Brien after the collision to prevent its sinking in deep water.
    XNIX. The following bills growing out of the collision and suit against the plaintiff were paid by the plaintiff:
    Damages, including repairs for the Dorrmgton Oourt, with interest and costs_ £ s. a. 8,491 16 5
    Marine surveyor, for services in connection with Collision-426 3 0
    Consulting engineer_ 79 9 0
    Plaintiff’s attorneys, for legal expenses_ 421 17 4
    Plaintiff’s solicitors, for services and expenses_ 37 3 0
    Bureau Veritas, for attendance on vessel during survey and repairs_ * 231 0 0
    Pees and expenses of plaintiff’s London agent in connection with collision_ 288 16 6
    9,976 5 3
    
      These bills were paid by plaintiff in December, 1919, after the return of the O'Brien to the plaintiff and when attachment of the vessel in a British port for their collection was being threatened, their payment being made by the said France & Canada Steamship Corporation at a cost to the plaintiff of $37,914.49, which amount included $924.74, paid to the France & Canada Steamship Corporation as a 2y2 per cent commission on the amount of the payment on safd bills.
    The plaintiff communicated with the United States relative to said bills and threatened attachment of the vessel, but the United States gave plaintiff no assistance in the matter and has never reimbursed it for any part of the said sum of $37,914.49.
    XNX. Certain accounts growing out of said collision were adjusted between the United States and British Governments by a so-called ocean transportation agreement of March 3, 1921. Subsequently the British Government presented claims to the United States growing out of said collision aggregating £13,475 14s. 5d.; but under date of January 1, 1923, the British Government accepted liability for said claims. It does not appear what were the individual claims making up said amount of £13,475 14s. 5d.
    XXXI. Sterling rates of exchange approximated $4.75 per pound sterling during the entire period from October 1, 1917, to February 21, 1919.
    XXXTT- The plaintiff’s claim for the amount claimed to be due it growing out of the requisition of the William O'Brien and the use of said vessel by the United States from November 19, 1917, to February 21, 1919, was presented by plaintiff, through its attorneys, to the United States Shipping Board in August, 1920. The Shipping Board refused payment of said claim, either as a whole or in part.
    XXXIII. The said France & Canada Steamship Co. (Ltd.), of Canada, was organized in 1915, with its principal office in Montreal and a branch office in New York, and ivas organized for the owning and operation of vessels other than of American registry. The said France & Canada Steamship Corporation, of New York, was organized some time in 1917 for the owning and operation of vessels of American registry exclusively.
    
      Eighty per cent of the stock of the New York company was owned by the owners of the Canadian company’s stock; four of the seven directors of the Canadian company constituted four of the five directors of the New York company: Francis E. Mayer, of New York, ivas president of the New York company from its organization in 1917, and also president of the Canadian companj'' from some time in 1919 until in 192$.
    At the time the said. 9,000 shares of the plaintiff’s capital stock were purchased by the said Canadian company for the said New York company, in November, 1917, as shown by Finding XXIV, the remaining 1,000 shares of plaintiff’s stock were owned by one J. H. Carpenter, who was one of the original stockholders both in the Delaware Navigation Corporation and in the plaintiff company, and who held said 1,000 shares of stock until on or about December 8, 1920, when it also ivas purchased b3r said Canadian company for the said New York company, the assignment of said stock, however, being dated as of August 15, 1921.
    Of the said 9,000 shares of the plaintiff’s capital stock purchased on November 22, 1917, by the France & Canada Steamship Co. (Ltd.) for the France & Canada Steamship Corporation and held by the said Francis E. Mayer as trustee, 8,996 shares were, on said November 22, placed on plaintiff’s stock ledger in the name of said Francis E. Mayer, and a stock certificate was issued in the name of Francis E. Mayer, trustee, for said 8,996 shares. The remaining 4 shares were placed 1 each in the names of four other persons, as qualifying shares, to qualify them for officials of the plaintiff company.
    The said 10,000 shares of plaintiff’s stock, being its entire capital stock, were never transferred on plaintiff’s books either to the France & Canada Steamship Corporation or to the France & Canada Steamship Co. (Ltd.), but were merely indorsed in blank by the sellers of said stock. With the exception of the ownership of said 1,000 shares of stock by Carpenter, until December 8, 1920, the stock of the plaintiff and the stock of the France & Canada Steamship Corporation were owned bjr the same people. The said J. H. Carpenter was not the owner of any of the stock of the said France & Canada Steamship Corporation.
    Immediately after the said purchase of the 9,000 shares of the plaintiff’s capital stock in November, 1917, Mr. T. E. Byrnes and Mr. S. H. McIntosh and the said Francis B. Mayer and J. H. Carpenter were elected officers of plaintiff company, Mr. Carpenter being elected president and Mr. McIntosh, who was also treasurer both of the France & Canada Steamship Corporation and of the France & Canada Steamship Co. (Ltd.), being elected treasurer of plaintiff company. The said J. H. Carpenter was president of plaintiff company at the time the William O’Brien was released from Government service and returned to plaintiff February 21, 1919.
    XXXIY. From the time the William O’Brien was released and returned by the Government, on February 21, 1919, until she was lost at sea in April or May, 1920, she was managed and operated by the said France & Canada Steamship Corporation, of New York, upon a commission basis, under an agreement between plaintiff and said company made at the time of the said purchase in November, 1917, of the 9,000 shares of plaintiff’s capital stock by the France & Canada Steamship Co. (Ltd.) for the said France & Canada Steamship Corporation.
    XXXY. The purchase price of the said 9,000 shares of the plaintiff’s capital stock purchased by the France & Canada Steamship Co. (Ltd.), in November, 1917, for the France & Canada Steamship Corporation was $700,000, which was advanced by the said France &. Canada Steamship Co. (Ltd.), and was to be repaid by the France & Canada Steamship Corporation. There appears to have been no note or other evidence of this indebtedness given by the France & Canada Steamship Corporation to the France & Canada Steamship Co. (Ltd.), the Huron stock merely being left in the hands of the trustee, Francis B. Mayer, who was an officer in both companies, to secure the payment of the indebtedness.
    XXXYI. The remaining 1,000 shares of the plaintiff’s capital stock having been purchased on or about Decern-ber 8, 1920, by tlie France & Canada Steamship Co. (Ltd.), for the France & Canada Steamship Corporation, and the France & Canada Steamship Corporation not having up to that time paid the France & Canada Co. (Ltd.) the advances made by it for the purchase of the plaintiff’s stock, the France & Canada Steamship Corporation, on December 31, 1920, gave to the Canadian company its demand promissory note for $1,011,304.17, bearing 6 per cent interest, said note by its terms carrying as collateral security the 10,000 shares of plaintiff’s stock, which, indorsed in blank by the shareholders from whom they had been purchased, were attached to said note and continued to be held by the France & Canada Steamship Co. (Ltd.)
    XXXVII. In March, 1920, while the said Francis R. Mayer was president of both of said France & Canada companies and held the said 9,000 shares of Huron stock as trustee, the France & Canada Steamship Corporation, which was then indebted to the Shipping Board in the sum, approximately, of $1,000,000, undertook to partially relieve its obligation to the Shipping Board by giving on its books a credit of $475,000 to the plaintiff for charter hire of the 'William O'Brien, and at the same time paid to the Shipping Board the difference between said $475,000 and the amount of said indebtedness to the Shipping Board. This credit of $475,-000 was subsequently, in November, 1920, canceled, and the remaining $475,000 of said indebtedness to the Shipping Board then paid.
    XXXVIII. A bankruptcy petition was filed against the France & Canada ■ Steamship Corporation in the United States District Court for the Southern District of New York, and á receiver appointed about December 15, 1921; and said corporation was adjudicated a bankrupt on or about April 7, 1922.
    XXXIX. Under date of May 28,1921, the France & Canada Steamship Co. (Ltd.) entered into an indenture agreement with the Old Colony Trust Co., of Boston, whereby the Old Colony Trust Co., as trustee, agreed to make certain loans to the France & Canada (Ltd.), and whereby the France & Canada (Ltd.) agreed to secure the Old Colony Trust Co., trustee, with certain collateral described therein. Among this collateral was the said note of $1,011,304.17 from the France & Canada Corporation to the France & Canada (Ltd.), with the said 10,000 shares of Huron stock securing it, and also stock of some other companies, which had been pledged to the France & Canada (Ld.), by the said Francis E. Mayer, as an individual, and not by the France & Canada Corporation. Said note and Huron shares were delivered to the Old Colony Co. under the said indenture agreement on or about July 1, 1921, on which date the Old Colony Co. made an initial advance of $215,000, in cash, to the France & Canada (Ltd.), which, with subsequent advances, brought the total loans to the France & Canada (Ltd.) up to $357,038.69.
    XL. Defaults on the part of the France & Canada Steamship Co. (Ltd.) occurred under the said indenture of May 28, 1921, and the Old Colony Trust Co., as trustee, exercising the power of sale provided for in the indenture, sold the collateral held by it under the indenture at public auction on April 18, 1922. No money has been paid by the France & Canada Steamship Co. (Ltd.) to the Old Colony Trust Co., and except for the credit given it for the proceeds of the said sale of collateral, the amount of which does not appear, the said indebtedness to the Old Colony Trust Co. has not been paid.
    At the said sale of April 18,1922, said collateral, including the said $1,011,304.17 note of the France & Canada Steamship Corporation and 10,000 shares of plaintiff’s capital stock accompanying it as collateral security thereof, was sold to one William M. B. Freeman, of Newton Center, Mass., who started to take steps to foreclose on the Huron stock, and on May 4, 1922, made a demand on the France & Canada Steamship Corporation for the payment of its said note of $1,011,304.17. On or about May 23, 1922, the trustee in bankruptcy of the France & Canada Steamship Corporation filed a bill in the United States District Court for Massachusetts for an injunction against the sale by said Freeman and the Old Colony Trust Co. of the said note and Huron stock, which action prevented foreclosure proceedings thereon until July 12, 1922, on which date said trustee in bankruptcy filed a bill in equity in the Superior Court of Suffolk County, Mass., for an injunction restraining said Freeman and the Old Colony Trust Co. from disposing of or alienating, among other things, the said note and stock. It does not appear that said stock has since been foreclosed upon or otherwise disposed of by the said Freeman or Old Colony Trust Co.
    XLI. The reasons alleged by the said trustee in bankruptcy in the said bill in equity, and papers related thereto, for his action in the matter were in brief that the France & Canada Steamship Corporation was the real owner of the plaintiff’s capital stock and that the giving of its said note of $1,011,304.17, with the Huron stock as collateral, to the France & Canada (Ltd.), and the pledging of this note and collateral by the France & Canada (Ltd.) to the Old Colony Trust Co. as trustee was part of a scheme to defraud creditors of the France & Canada Steamship Corporation; and the said trustee in bankruptcy of the France & Canada Steamship Corporation is attempting by his said action to secure the assets of the bankrupt corporation for its creditors instead of permitting the Old Colony Trust Co. or the said Freeman to be paid the amount of said loan or to secure said assets.
    XLII. Upon the purchase of the said 9,000 shares, or 90 per cent of the plaintiff’s capital stock, for the France & Canada Steamship Corporation in November, 1917, as shown by Finding XXIV, the said France & Canada Corporation, under an understanding with the plaintiff, took over the management and operation, upon a commission basis, of the steamer William O'Brien, which was the plaintiff’s only vessel, and continued such management and operation until the vessel was lost, in 1920. Both corporations occupied the same offices in New York, but the plaintiff continued and transacted business as a separate corporation, kept separate books and a separate bank account, and paid salaries to its officers.
    The present officers and directors of the plaintiff were elected subsequent to April 7, 1922, and none of said officers is an officer or shareholder in the France & Canada Steamship Corporation or in the France & Canada Steamship Co. (Ltd.).
    
      XLIII. The United States has filed against said bankrupt, the France & Canada Steamship Corporation, in the United States District Court for the Southern District of New York, a claim which is, in substance and scope, the same as the counterclaim for $734,958.75 presented by the Government in this case. Said claim by the United States against said bankrupt is undisposed of and still pending in the said United States district court.
    The claim of the United States which constitutes the Government’s counterclaim against plaintiff in the case at bar is a claim against the said France & Canada Steamship Corporation growing out of transactions between said company and the Shipping Board and Fleet Corporation, in which transactions the France & Canada Steamship Corporation acted as manager, operator, charterer, and purchaser of ships belonging to the United States and does not involve the accounts of the plaintiff or of the said steamship William O^Brien with the United States or the Shipping Board or Fleet Corporation.
    The evidence does not satisfactorily show the amount of the indebtedness of the said France & Canada Steamship Corporation to the United States.
    The court decided that plaintiff was entitled to recover for the use of its boat on the time charter basis at the value of $6.25 per ton from the 19th of October to the 19th of November, 1917, the sum of $46,487.50 (Finding XXII), and that thereafter plaintiff was entitled to recover for the use of its boat on the bareboat basis $4.15 per ton, a total of $465,073.34 (Finding XXII). The court found plaintiff entitled’ also* to recover the sum of $37,914.49 collision charges (Finding XXIX), the sum of $8,882.93 (Finding XIII), the sum of $13,774.92 (Finding XV), and the sum of $13,219.25 (Finding XV), an aggregate of $585,352.43. Against this recovery the Government was entitled to a credit for the net proceeds of the voyage from New York to Havre the sum of $583,895.22 (Finding X), and the additional sum, advances for gun mounts, of $1,794.87 (Finding XVI), an aggregate of $585,690.09.
    
      Judgment was rendered against plaintiff in the sum of $337.66, the difference between $585,690.09 and $585,352.43.
    
      
       Appealed.
    
   MEMORANDUM BY THE COURT

Upon the findings as made and the separate opinion filed, four members of the court concur in the judgment rendered, but entertain the view that plaintiff’s vessel William O’Brien was taken by the Government under lawful authority and was not delivered to the Government under contract. See Gulf Refining Company case, 58 C. Cls. 559, 577, 578. The findings show, however, that after the vessel was requisitioned and had passed under Government control the plaintiff undertook to operate her on the time charter basis and rates stated by the Shipping Board. For her earnings during the voyage to France plaintiff should respond. Gulf Refining Gompamy eme, supra. The rate of compensation for this voyage was $6.25 per ton per month from October 19 to November 19, 1917. On the latter date the vessel was taken possession of by another agency of the Government, acting under lawful authority, and the vessel, with its crew, supplies, and stores, passed into a different service of the Government. The Government’s answer and counterclaim practically admit that from the date of this last-named taking over until her redelivery to plaintiff the vessel was under bareboat charter. Other items of recovery are mentioned in the court’s conclusion.

Graham, Judge:

While concurring in the conclusion reached by the court, I wish to express my view of the case.

On October 15, 1917, and for some time prior thereto, the plaintiff owned the steamship Willicum O’Brien. On October 12 the United States Shipping Board sent a telegram to the Huron Navigation Co., in care of the Cosmopolitan Shipping Co., which was duly received, and which was as follows (see Finding YI) :

“ The United States Shipping Board hereby gives notice to all owners of ships registered or enrolled under the laws of the United States that the requisition of all American steamers described below, and of which previous announcement has been made, will become operative and effective on October 15, 1917, at noon.”

Then follows the statement that all ships of not less than 2,500 tons total dead weight, including bunkers, water, and stores, are covered by this notice, and “ as to all steamers in or bound to American ports on October 15, 1917, requisition becomes effective at noon, October 15, 1917, and accounts for hire and expenses will be adjusted from time steamer began to load,” and further,

“ Owners whose steamers are operating in their regular trades are to continue the operation of their steamers for the account of the Government as they have been doing for themselves until they receive further instructions,”
and
“ Owners whose steamers are chartered to others will apply to the Shipping Board for instructions regarding future employment of said steamers.”

On October 15, 1917, plaintiff, through its agent, the Cosmopolitan Shipping Co., acknowledged this telegram, as follows:

“ We are in receipt of your telegram, and also Mr. Ewing’s favor of October 13, giving notification to American vessels as of October 15. We understand from the terms of your notice that, in so far as the same relates to the S. S. William O’Brien, now booked for cargo for the French Government and miscellaneous consignees at Havre, France, that this vessel is to proceed with her loading without regard to this notice, and for your information would state that all cargo has been ordered delivered to the vessel, which is due to arrive in New York within the next day or two. If our understanding of your instructions is incorrect, kindly advise us.”

On October 19 the United States Shipping Board sent the plaintiff the following telegram, which was received:

“ You are authorized to proceed with the loading of the William O’Brien for France for Government account in accordance with requisitioning order.”

On the same day the plaintiff acknowledged this wire, as follows:

“We have pleasure in reporting to you the safe arrival of the S. S. William O’Brien at New York this afternoon.
“ We also acknowledge receipt of your telegram of even date reading as follows:
“ ‘ You are authorized to proceed with the loading of the WilMam O'Brien for France for Government account in accordance with requisitioning order.’
“Every effort will be made to give this vessel a prompt dispatch.”

The S. S. ’William, O'Brien arrived in New York and completely discharged her incoming cargo on October 19 and, in accordance with the above order of the Shipping Board, was reloaded with the cargo already contracted for and left the port of New York for Havre on October 24. In a letter to the Shipping Board dated October 24 the plaintiff st ated: ■“ The S. S. O'Brien sailed from New York to-day for Havre.” In a letter of the same date to the Shipping Board plaintiff said:

“ Complying with your instructions, as follows, ; Government assumes war risk, effective from time vessel is subject to requisitioning order, value of vessel to be determined at time of loss ’—
“We have ordered the S. S. O'Brien to proceed to sea as you have directed.”

In this letter was a protest against not insuring the vessel for an estimated value of $1,650,000. Replying to his communication, the Shipj)ing Board, on October 31, wrote the plaintiff the following letter, which was received:

“Replying to your communication of October 24, we note that the decision of the Shipping Board in regard to the •determination of value at the time of loss is not satisfactory to you, and we wish to advise that this is the final decision •of the board covering all vessels operating under the general requisitioning orders.”

The steamer proceeded on its voyage to Havre, carrying mo war-risk insurance, and arrived there and finished discharging its cargo on November 19, 1917. On the afternoon •of that date, after its cargo had been discharged, the steamship was taken over by General Pershing, on the “ bareboat basis, for duty as an Army transport, together with her •crew, supplies, and stores.

The history of further operation of this ship while under Government control after November 19 will be discussed hereafter.

The letter of October 16, 1917, above quoted, from plaintiff’s representative to the Shipping Board contains this statement:

“We understand upon the completion of the vessel’s inward voyage after October 15 she goes under charter to the United States Government. The charter rate per ton per month would be $6.25. What we wish to know is, Are we to draw up a charter with the United States Government? If so, for what period of time and what form of charter is to be used ? ”

This whole letter is set forth in Finding VII.

On October 13 the Shipping Board, referring to the telegram of October 12, supra, wrote the plaintiff a letter which contains the following:

“Inclosed please find confirmation of this message, together with general statement covering schedule of proposed rates.” (Finding YI.)

Beceipt of this letter Ava.s acknowledged on October 15. On October 16 plaintiff replied further to this letter and quoted the language above with regard to the charter rate. This schedule of “ proposed rates ” mentioned in the above-letter of the Shipping Board was a schedule fixing two rates on what were termed “time-form” and “bare-boat form.” Under the “ time-form ” the rate named varied with the tonnage of the vessel. In the case of plaintiff’s vessel the rate was $6.25 per dead-weight ton per month for cargo ships such as plaintiff’s. Under the “bare-boat form” the rate was based iipon speed, up to and including 11 knots, the rate being $4.15 per dead-weight ton per month, and for each knot or part of a knot over 11 knots, 50 cents per deadweight ton per month. Under the “bare-boat form” the Government paid all expenses of operation, including the hire of the crew, and assumed all risks, whereas under the “time-form” these were paid and assumed in greater part by the owner of the vessel, and were to that extent covered by the “ time-form ” rate of $6.25that is to say, this rate covered both hire and part of the expenses of operation, the Government taking the risk of gain or loss on the voyage as well as the risk of the loss of the ship, the gross earnings to go to the Government.

When plaintiff’s vessel sailed from New York, as far as the record shows, the same officers and crew were aboard the ship who operated it prior to its passing under Government control on October 15, 1917, and they continued to operate it throughout the voyage to Havre. The plaintiff during that voyage supplied all things necessary for the operation of the ship, and it was the understanding of the parties, and it is so stated in the charter contract, which was executed subsequently by the parties, that it was to be operated upon the “ time-form ” basis; that is, $6 25 per gross ton per month.

After ariving in France on November 19, it was taken under his control by General Pershing, on the “ bare-boat ” basis, and thereafter operated upon that basis by agreement between the parties, and plaintiff presented all of its bills thereafter at' the “ bare-boat ” price of $4.15, mentioned in the said sch' dule of rates. Plaintiff on this voyage realized the gross sum of $682,684.20. From this it deducted its operating expenses, $98,788.98, leaving a balance of $583,-895.22.

So it will be seen, stated succinctly, that what transpired here was that the Government gave plaintiff an order for the use of its ship at a price named, which order was accepted on the basis of the “ time-form ” rate, and the ship voluntarily delivered into possession of the Government in pursuance of this acceptance without protest or reservation as to the rate named, and thereafter the vessel remained under the control of the Government. After the termination of the voyage to Plavre, as stated, by agreement between the parties the vessel ivas operated on the “ bare-boat ” form rate. Plaintiff regularly thereafter rendered its monthly bills at that rate.

We have, then, an order for the delivery of material at a price fixed, acceptance of the order and price, and voluntary delivery of the material. This constituted a contract and not a taking by the right of eminent domain. See American Smelting & Refining Co. v. United States, 259 U. S. 75; Federad Sugar Refining Co. v. United States, ante, p. 184; and Consolidation Coal Co. v. United States, ante, p. 608. The Gulf Refining Co. case, 58 C. Cls. 559, 579, has been much discussed in the briefs of counsel for both parties. As to this case, it is only necessary to point out that plaintiff there refused to accept the rate named by the Shipping Board after the ships had passed under Government control, and distinctly reserved the price to be paid as hire. As to its other ships allowed by the Government to remain in its possession, and which it operated for its own account, it accepted the rate named by the Shipping-Board, and sought in the suit to recover on account of these latter ships more than the accepted rate; but the court held that having accepted the rate it was bound by it and could not assert a claim upon any other basis than the rate named and accepted.

In the case of Willard, Sutherland & Co. v. United States 56 C. Cls. 413, 422, the plaintiff on demand of defendant furnished coal in addition to the amount called for by its contract, and under protest as to the price, reserving the right to recover the difference between the price and the market value. This court said in that case:

“ The defendant demanded the coal under the contract and the plaintiff furnished the coal. * * * The plaintiff’s right was to refuse to deliver the coal in response to the demand made.”

In the same case the Supreme Court (262 U. S. 489) in affirming the decision of this court stated:

“ It [plaintiff] must be held voluntarily to have accepted the order for the additional 1,000 tons and to have furnished it at the price specified in the contract.”

In Nelson Co. v. United States, 56 C. Cls. 448, 457, the court said:

“ Having furnished additional quantities in compliance with orders specifically predicated on the contract, it can not, while complying with such orders, create or preserve by so-called protests a right to additional compensation over and above the contract price.”

This case was affirmed by the Supreme Court (261 U. S. 17) upon the above principle.

Prior to the outbreak of the war in Europe, and to June 3, 1916, the date of the passage of what was known as the national defense act (39 Stat. 166, 213), section 3709 of the Revised Statutes required all contracts to be made by advertising for bids, except in case of an exigency, when the formality could be omitted. And so in a number of early cases in this court it was held that where goods were purchased in an exigency without the formality of advertising for bids or even the formality of a written contract, and the Government received and used the goods, the acceptance by the Government and use of the material were a waiver of the requirements of the statute, and good faith required that it should pay for it on an implied contract; and where an exigency ivas shown to exist it ivould be held on the contract.

At the time of the passage of the national defense act this Government was not at war but ivas preparing for any emergency that might arise. The method of advertising for bids and executing formal contracts necessarily involved delay. It was thought desirable to supplement this by another and swifter method of purchasing and procuring supplies, and so the method was provided by the act of June 3, 1916, in addition to the methods authorized by sections 3709 and 3744 of the Revised Statutes. The President by the act was authorized, “in addition to the then authorized methods of purchase and procurement” through the formality of advertising and signing contracts, “to place an order ” for materials through such agencies of the Government as he saw fit; and in order to be sure that the desired materials would be promptly secured, and possibly as an incentive to acceptance and compliance with the order, it was further provided that if the party refused or failed to comply with the order the President could seize the materials or plant. A taking by right of eminent domain Avas only to be resorted to in case of the failure or refusal of the party to accept or comply with the order and furnish the materials. The term “ to place an order ” has a well-known significance in business. A person places an order Avith a manufacturer of goods at a certain named price. If the order is accepted or the goods are delivered it is an enfor-cible contract, and the manufacturer can recover the price. In other words, the placing of an order is an offer to purchase goods at the price named, and if the offer is accepted or the goods furnished to and accepted by the vendee, it becomes a contract enforcible in law.

In the national defense act it will be noticed, as confirmatory of this view, that this language is used: “ * * * in addition to the present authorized methods of ■purchase or procurement,” the President was authorized “to place an order ”; that is to say, it was desirable to depart somewhat from the then authorized method of purchase, which, as stated, was by advertising for bids and executing formal contracts. The President could proceed to purchase by simply placing an order. But, further, it will be seen that it at as contemplated that in placing the order he should name a price, and so the act further on provides that if the party to whom the order is given shall “ refuse to furnish * * * at a reasoftable price to be determined,” the President is authorized “to take possession of his plant.” The term “reasonable price” left the matter of purchase price to be offered discretionary with the President, as well as the terms and conditions upon which the goods were to be supplied, as it also left within his discretion the form and substance of the order to be given in each case.

Obviously, when an order had been given under authority of this statute for the purchase of materials, the terms named and price fixed therein, and the price accepted or the order complied with and material delivered without formal acceptance, and received by the United States, there came into existence a valid contract under the authority of this statute, a contract which was enforceable in the courts and binding upon both parties alike. The expressions heretofore quoted, “ in addition to the present authorized methods of purchase or procurement,” to “to place an order at a reasonable price to be determined by the President,” and the right to take by virtue of eminent domain in case of refusal, are contained in all of the subsequent acts, including those of March 4, 1917, June 15, 1917, and July 1, 1918. These acts, in some minor particulars not pertinent to the question here, are different, but the authority of the President to make a legal contract by placing an order under certain terms and conditions without the formality of advertising for bids or formal contracts is the same, as is the purpose to secure by this method the purchase by contract of the materials and to make the acceptance of the order and the delivery of the goods, where no objection has been made to the price, a contract binding upon both parties.

That the parties understood that the ship had passed under Government control as of October 15 is evidenced by the weekly reports of plaintiff to the Government after that date; the request for permission to load the cargo and the inquiry as to how the charter contract should be drawn; the acceptance of the statement of the Government, in answer to the plaintiff’s inquiry, that the boat would be operated on this voyage on Government account, and the authority givén to take on the cargo for the voyage to Havre with this understanding; the assumption of risk or loss by the Government during the voyage; the subsequent request by the plaintiff for permission to pay out of the net proceeds of the voyage on -the purchase price of its vessel; and the giving of a bond in which it is stated that this date is fixed as the date upon which the vessel passed under control of the Government.

The' earnings of the ship after it passed under Government control belonged to the Government and must be accounted for by plaintiff. Gulf Refining Co. v. United States, supra. The ship, as stated, passed under Government control as of October 15, the date fixed in the requisition notice. It arrived in New York on its return trip from voyage No. 3 on October 19 and began to load its cargo on that date, so that on this latter date it passed into actual possession of the Government and began loading its cargo on Government account, as stated in a letter to plaintiff heretofore quoted.

The plaintiff is therefore entitled to be paid for the hire of the ship from October 19 to November 19, the date when General Pershing assumed control of the vessel on the basis of the “time-form” rate of $6.25 per dead-weight ton per month. The hire for this period has been found to be $46,487.50. See Finding XXII. From November 19, 1917, to February 21, 1919, the date on which the ship was returned to the plaintiff, the latter is entitled to be paid on the bare-boat ” basis of $4.15 per dead-weight ton per month, $465,073.34. See Finding XXII. It is also entitled to be paid the sum of $37,914.49, collision charges (Finding XXIX) ; also $8,882.93 (see Finding XIII), being the sum expended for repairs while the vessel was in Government control after November 19, 1917; and the sum of $13,774.92 (see Finding XV) for stores and provisions on board when General Pershing assumed control of it on the date just named; and $13,219.25 (see Finding XY), being the difference between the sum of $17,000 agreed upon as an allowance to the plaintiff for reconditioning the vessel after it was returned to it and the value of Government stores left on the vessel at the time it was redelivered. This makes a total due the plaintiff of $585,352.43 in an accounting with the defendant.

As against this sum there is due from plaintiff to defendant $583,895.22, being the net receipts from the voyage to Havre, and also the sum of $1,794.87 on account of advances for gun mounts, etc. (see Finding XVI), making a total of $585,690.09 due from plaintiff to the Government on an accounting.

The parties afterwards entered into a charter contract, copy of which is found in Finding XVII. There were a number of letters written in regard to this charter, but, briefly stated, it was executed by plaintiff, who had inserted the date November 19, 1917 (when General Pershing took possession of the vessel), as the date when the vessel went into the control of the United States, and from which hire was to be computed. On March 13 this charter was returned by the Shipping Board’s representative in a letter to the plaintiff stating, as in previous letters, that the date November 19 was not the date when the vessel passed under the control of the United States, but that the date was October 25; that the date October 25 had been inserted as the date when the vessel passed under the control of the Government, and that with this change the charter had been executed on behalf of the United States. The charter so corrected was received by the plaintiff, and it does not appear that any objection was made at that time to the change in date when the vessel passed under Government control. As was said by the Supreme Court in the American Smelting & Refining Co. case, supra:

“ We have said nothing about repeated requests that the claimant should sign a formal contract, its refusals, and its ultimate signing under protest, because these facts in no way modify the relation of the parties under the contract by letters already made.”

Apparently the fixing of this date, October 25, as the date when the vessel passed under the authority of the United States was an error. It has been found that the vessel passed under the control of the United States on the 15th of October. The bond prepared by the United States and later signed by the plaintiff fixed October 15 as the date when the vessel passed under control of the Government.

The charter also fixed the rate of compensation, on the basis of “time form,” at $6.25. The court has found that by agreement and understanding between the parties after November 19, 1911, the vessel was to be operated on the “ bareboat ” form, and it was upon this basis that the plaintiff regularly rendered its bills for payment after that date. Plaintiff seems to contend that the alteration by the Government in the date when this charter became effective, after the plaintiff had executed and returned it with notice of the change, renders the charter ineffective. This question does not, we think, affect the conclusion reached on the relation of the parties under the original contract. If the charter contract is valid as delivered by the Government to the plaintiff with the changed date, it confirms fully the view heretofore presented as to the preliminary contract between the parties by the acceptance of the order and the delivery of the vessel into the control of the United States as of October 15,1917. If the charter contract was not valid, then the case stands upon the original order, its acceptance, and the delivery of the ship.

The plaintiff in its request for findings states:

“ With the exception of the alteration of the date at which the vessel would enter the pay, the said form of charter was correct as signed by the plaintiff ”;

that is, presumably it embodied the original agreement and understanding between the parties for the hire of the vessel, and that there was such a contract.

Much of the confusion and subsequent debate in this case grows out of a misconception of the act of the Government,, through General Pershing, in taking physical possession of the William O’Brien when it was in the port of Havre in France on November 19,1917. Now, whether it was a taking or a contract, its status was fixed as of October 15,1917, as a Government-controlled ship; that is, the Government had control of it either by reason of a taking or by reason of a contract with the owner. After that date it is entirely immaterial what some other agent of the Government might, have done with regard to assuming control of the vessel.. The subsequent act of another Government agent can not alter the status of the vessel as a Government-controlled vessel from and after October 15, 1917, when the requisitioning: order became effective.

We may therefore disregard, in the consideration of this case, the acts of General Pershing and those under his command and all that is said in regard thereto as affecting the question of date of Government control. When he took control of the vessel he simply took a vessel that was already under Government control and took it as a representative of the Government. His act neither increased nor diminished the rights of the Government or the rights of the plaintiff at that time, because they had been previously fixed. Nor is it of any consequence whether he took it with or without authority of the Shipping Board. It is apparent that his action was acquiesced in by that board.

It has been urged that the alleged contracts or commitments which the plaintiff had previously arranged and in pursuance of which the vessel was loaded for the voyage to-Havre were taken by the Government, and-that the plaintiff should be compensated therefor by being paid the net proceeds of the voyage. This contention has no merit. The plaintiff was acting as agent of the Government in taking this material aboard and under instructions from the Government and for Government account. No question was raised as to the taking and value of these contracts at the time plaintiff was given permission to load the boat and make the voyage on Government account. It does not appear that plaintiff would have been liable for damages had it failed to carry out these commitments, and the profits of the voyage depended entirely upon the safe arrival of ihe ship at its destination. There is no proof in the record of the market value of these alleged contracts at the time and place of the alleged taking or, for that matter, any details as to the contracts themselves. They were not directly and .specifically taken, nor does there appear any intention upon the part of 'the Government so to do. There was no taking by the Government. Omnia Commercial Co. v. United States, 261 U. S. 502. The vessel was received by the United ■States under a contract to be operated on Government ac•count on this voyage and any others as long as it was under Government control. The plaintiff requested permission to fulfill, on Government account, some of its own previous ■commitments, and permission was granted it to do so, the Government assuming all the risks of the voyage, the plain-biff to be paid for the use of its vessel at the “ time-form ’’ rate of $6.25, which covered the expenses of operation of the vessel during the voyage, which were to be paid by the plaintiff. As stated, the voyage ivas on Government account. If there was a loss, the Government was liable; and if there was a gain, the amount belonged to the Government. The plaintiff was merely the agent of the Government in handling the ship and conducting the voyage and transferring this cargo. The voyage could not have been taken or the cargo placed aboard without the consent of the Government. Had the latter refused to grant permission there would have arisen no liability upon the part of the Government as to these alleged contracts; nor, under the circumstances, could the plaintiff have been held for a breach.

But, aside from this, there is no proof, as stated, of the value of these contracts, nor any attempt to prove their market value at the time and place of the alleged taking. .Reliance is placed solely on the proof of the net proceeds of the voyage as showing value. It is enough to say that such is not a proper measure of value under the circumstances.

There i.s still another question which has been raised in this case. The Government filed a counterclaim (Finding NLIII) in the nature of an indebtedness of the France & Canada Steamship Corporation to the United States in the sum of $734,958.75, upon the theory that the ownership of the plaintiff corporation and the France & Canada Steamship Co. were the same; that there was such identity of interests and control as made them, in the eyes of the law, one •corporation. Without going into detailed discussion of thi.s phase of the case, it is enough' to say that the facts as shown do not establish such identity of interests. But, apart from this, it has been found that the amount of the indebtedness doe.s not definitely appear.

In balancing the account between plaintiff and defendant covering the items of debit and credit heretofore mentioned, the plaintiff is shown to be indebted to defendant in the sum •of $337.66, and for this sum judgment should be entered in favor of the defendant.  