
    D. C. ANDREWS & COMPANY, INC. v. THE UNITED STATES
    [No. 96-54.
    Decided July 19, 1961]
    
      
      Stanley 0. Sher for plaintiff. Francis B. Goertner was on the briefs.
    
      Lawrence F. Ledebur, with whom was Assistant Attorney General William 3. Orrich, Jr., for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

Plaintiff sues for commissions alleged to be due it as a cargo broker for the charterer of certain Government owned ships.

In commercial shipping the owner of the vessel is represented by a ship broker, while the owner of the cargo (the charterer of the ship) is represented by a cargo broker. The two brokers agree upon the terms of the charter for their respective principals, and are compensated by a brokerage fee which is paid to the ship broker, who then divides it with the cargo broker. Thus, in the commercial field of privately owned and operated ships, the brokers have many duties, the discharge of which requires extensive knowledge and skill in various technical areas.

The transactions here in suit involved Government owned vessels, as to which the responsible Government agency (the National Shipping Authority) specified all of the terms of the charters. The brokers, therefore, had very little to do to earn their commissions, as the facts herein recited reveal.

The Economic Cooperation Administration set aside certain grain products for emergency food aid to India. The Indian Supply Mission (hereinafter referred to as ISM), an agency of the Indian Government, was charged with the duty of effecting the transportation of the grain to India.

Due to the Korean hostilities, merchant vessels were not readily available in 1951. In order to supply the need for more bottoms, the National Shipping Authority (hereinafter NSA) was organized in March 1951 to withdraw from “mothballs” some of the Government’s laid-up vessels and make them available for public use, such as the transportation of these Government-owned grain products to India. When this agency was organized it was contemplated some 100 of these laid-up vessels would be required, but this estimate was later raised to 500.

During December 1951 the NSA, on its own initiative, allocated 12 of these vessels for the carriage of this gram to India. Its general agents, who operated the vessels, were so notified, and also the ISM.

The securing of cargo for a vessel and agreement on the terms of the charter were the principal services rendered by ship and cargo brokers. In the case of these 12 vessels plaintiff rendered neither of these services, except for minor details. The NSA had allocated these vessels to ISM, without the interposition of the brokers, and it prescribed the terms of the charter for the vessels, except in minor matters.

At the time plaintiff’s services were rendered, in private industry 2y2 percent of the freight was the usual brokerage commission, divided equally between the ship broker and the cargo broker. When the NSA was organized in March 1951 it established 114 percent as the commission for the two brokers. However, it was later determined that this was too high in view of the little service actually rendered by the brokers and the volume of business done.

These are the background facts, and we come now to a statement of the facts upon which the controversy in this case turns.

At a conference held on November 7, 1951, between the NSA and the Association of Ship Brokers and Agents— called primarily, it is only fair to say, to devise means for eliminating lately sprung-up brokers not qualified in the business — representatives of NSA stated the brokerage of 114 percent was too high for the services rendered in cases such as this. It was proposed that no commission should be paid on freight charges in excess of $8.00 per manifest ton. It is stated that at this meeting the brokers’ representatives present registered no objection.

About two weeks later another meeting was held at which the brokers’ representatives opposed the reduction, because of its possible effect on brokerage commissions on private tonnage. A memorandum of the conference was made by one of the NSA officials which stated, inter alia:

* * * * ❖
While not receding from our intent to reduce brokerage, NSA agreed to withhold action pending receipt of a submission by the industry group * * * by * * * November 30th. * * * NSA also agreed to withhold temporarily the issuance of * * * [a] circular letter * * * which * * * contained a parenthetical statement regarding proposed reduction in brokerage.

Plaintiff was a member of the Association of Ship Brokers and Agents. Matters known to representatives of the Association were circulated among members, orally, and became matters of discussion among members and between members and officials of NSA. Plaintiff, through its vice president, was fully conversant with developments relating to the proposed reduction of brokerage commissions as here-inabove described.

On December 21, 1951, NSA issued its Order No. 59. Pertinent excerpts follow:

* * * This order authorizes maximum brokerage commissions payable for the servicing of voyage charter parties covering cargoes carried by vessels operated for account of the National Shipping Authority.
* * * When an NSA vessel is fixed under warship-vox * * *, General Agent is authorized, in vessel’s interest, to appoint an established chartering broker * * * to conclude the fixture and service the charter. General Agent may also acknowledge and recognize any broker or agent or freight forwarder nominated to the General Agent or to his selected chartering broker by the charterer as representing charterer’s cargo interests.
* * * For services rendered on vessels commencing to load during the period March 13, 1951 to and including December 31,1951, total brokerage commission shall not exceed 1*4 % °f the freight * * .
* * * For services rendered on vessels commencing to load on and after January 1, 1952, compensation shall be as provided * * * except that on cargoes loaded in the Continental United States brokerage commission shall not be paid on that portion of the freight charges in excess of $8.00 per manifest ton. * * *

The foregoing order was stamped as “filed and made available for public inspection, 8:53 a.m., December 29, 1951” by the Federal Register Division of the National Archives. It was published in the Federal Register on January 2,1952.

Plaintiff’s officers learned of the issuance of NSA Order No. 59 during the closing days of December 1951, but did not know its precise 'terms until its publication in the Federal Register.

All loadings in this case were after December 31, 1951, so that the terms of Order No. 59 apply to all shipments.

Oral agreements between a ship broker and a cargo broker, on the terms of the charter, including broker’s commissions, are known in the trade as “fixtures”. Later these fixtures are reduced to writing and constitute the charters of the vessels, with an important exception in this case, to be mentioned later.

All of these fixtures were entered into after the meetings in November, above referred to, but, except for three of them, before the date of Order No. 59, referred to above, and before plaintiff learned of its issuance. All of the charters, entered into following the fixtures, were signed by the general agents representing NSA after the date of Order No. 59, except one, and three or four weeks later they were signed by ISM.

Under these facts, a decision on whether plaintiff’s rights are to be determined as of the date of the fixtures or as of the date on which the charters were executed would be difficult, but the Trial Commissioner has also found, to which there is no exception, that “NSA controlled all facets of the operation, including freight rates, terms and conditions of charter, and brokerage fees payable to ships’ brokers and cargo brokers.” He has also set out the terms of NSA Order No. 5, dated long before these transactions. It reads, in part:

* * * This order authorizes freight rates and charter terms and conditions for the transportation of full cargoes of Grain in bulk under “warshipvoy” form of charter * * * in vessels operated for the account of the National Shipping Authority, from * * * the United States to * * * India, effective on vessels commencing to load on and after March 13, 1951. * * *
* * * The following clauses are to be inserted in * * * Part I of warshipvoy : * * *
* * * The contract is subject to the approval of the National Shipping Authority. * * * [Italics ours]

The subsequent Order No. 45, also issued before these transactions, approving a form of charter which increased freight rates, also contained a clause making it subject to the approval of NSA, and the charters actually executed in this case also contained this clause.

Four of the charters presented to NSA for approval contained a provision for brokerage of 1]4 percent on the full freight, but the NSA refused to approve them until they were amended to conform to Order No. 59. They were so amended. The charters for the eight remaining vessels all conformed to Order No. 59 when they were first presented to NSA for approval.

The approval of NSA was a condition precedent to the formation of any binding contracts. M. K. Cathell, et al., v. United States, 46 Ct. Cl. 368; Ship Construction Co., Inc. v. United States, 91 Ct. Cl. 419; Monroe v. United States, 35 Ct. Cl. 199, affirmed 184 U.S. 524. It follows that the oral “fixtures” were not binding contracts and plaintiff’s rights to its commission became vested only when the written contracts were executed by the general agents for NSA and by ISM. This was after the date of Order No. 59 and its publication in the Federal Register.

The terms of the signed agreement between the parties provide for that compensation which has been paid.

Nor was plaintiff unaware of the proposed change in the rate of commissions when they agreed with the ship broker on the fixtures, and they knew at that time that any oral agreement entered into between the brokers were subject to the approval of NSA.

As a matter of fact, there was practically nothing for the brokers to agree upon, since the NSA prescribed the terms of the charters. The services rendered by the brokers before the date of Order No. 59 were negligible. Practically all the services they rendered were rendered after the date of the Order.

It seems to us clear that plaintiff is not entitled to recover. Its petition will be dismissed.

It is so ordered.

Durfee Judge; Laramoee, Judge; Madden, Judge, and Jones, Olvief Judge, concur.

FINDINGS OF FACT

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

1. (a) At all times material to this action the plaintiff corporation was engaged in the business of freight forwarding and cargo brokerage.

(b) The National Shipping Authority (hereinafter NSA) was an agency of the United States, created as an arm of the Maritime Administration by administrative order of the Secretary of Commerce on March 13, 1951, for the purpose of operating merchant vessels owned by the United States through general agents.

(c) The India Supply Mission (hereinafter sometimes ISM) was an agency of the Government of India. Its function (insofar as material here) was to arrange for the transportation to India from the United States of grain products (principally wheat) earmarked for India by the Economic Cooperation Administration (hereinafter EGA) pursuant to the Act of June 15, 1951, authorizing emergency food aid to India.

2. (a) The Korean hostilties, which began in June 1950, accelerated the demand for merchant vessels. This demand led, hi March 1951, to the establishment of the National Shipping Authority to operate Government-owned vessels through general agents. The objective was to supply needed bottoms from the laid-up fleet, not as a measure of competition with privately owned or operated vessels, but as a service of national needs.

(b) NSA was authorized to allocate Government-owned vessels for charter by foreign nations or their representatives when it appeared that vessels privately owned or operated were unavailable or could not be obtained at reasonable rates. At the inception of the program, NSA anticipated the need for 100 vessels, more or less, to be taken out of mothballs. Six months later, in October 1951, the estimate of the need was revised to a figure nearer 500 ships.

(c) For the operation of those vessels NSA took its pattern from the wartime experience of the War Shipping Administration, using established steamship companies as general agents and the Warship voy form of charter. Under this pattern NSA controlled all facets of the operation, including freight rates, terms and conditions of charter, and brokerage fees payable to ships’ brokers and cargo brokers.

3. (a) Under prevailing commercial practices in the shipping industry, charters are arranged by brokers, one brokerage firm representing the vessel owner and another representing the owner of the cargo (the charterer). Each broker or agent is responsible for procuring for his principal the best charter terms obtainable. In the commercial field of privately owned and operated ships, the brokers have many duties, the discharge of which requires extensive knowledge and skill in various technical areas.

(b) Commissions payable to brokers vary, according to trades and the state of the industry (feast or famine). At the times material here, the going rate in private industry in the grain trades was 2% percent of the freight. This commission was payable by the owner to his broker, who divided it equally with the cargo broker.

(c) Oral agreement between the ship’s broker and the cargo broker upon the terms to be inserted in a written charter is understood in the trade to constitute a fixture. The charter itself is drawn up by the ship’s broker and submitted to the cargo broker for confirmation of the agreed terms. The date of the charter uniformly represents the date of the fixture and appears in the written agreement as the date “as of” which the charter was made.

4. (a) Prior to July 1,1951, plaintiff had a contract with ISM to perform freight forwarding and cargo brokerage services for ISM with respect to shipments from the United States to India. In May 1951, the parties agreed to continue the relationship for another year, from July 1,1951, to June 30, 1952. The formal agreement was not completed until May 1, 1952, when plaintiff accepted ISM’s letter setting forth the specific terms. Meanwhile, during the times material here (late 1951 and early 1952), plaintiff and ISM operated under terms hereinafter outlined.

(b) Plaintiff agreed to perform freight forwarding and various other services for ISM without charge, and to look for its compensation primarily to tbe commissions payable to it as cargo broker for ISM on NSA ships allocated for the carriage of ECA wheat to India.

5. (a) On May 2,1951, the Director, NSA, approved NSA Order No. 5. Pertinent excerpts follow:

* * * This order authorizes freight rates and charter terms and conditions for the transportation of full cargoes of Grain in bulk under “warshipvoy” form of charter * * * in vessels operated for the account of the National Shipping Authority, from * * * the United States to * * * India, effective on vessels commencing to load on and after March 13, 1951. * * *
* * * The following clauses are to be inserted in * * * Part I of warshipvoy : * * *
* * * This contract is subject to the approval of the National Shipping Authority. * * *

(b) The foregoing order was replaced, on September 18, 1951, by NSA Order No. 45, which increased the freight rates and retained the clause making the contract subject to NSA approval.

(c) Each of the 12 charters hereinafter listed contained the clause making the contract subject to NSA approval.

6. (a) In March 1951, upon the inception of NSA, the agency approved the payment of brokerage fees (for both the ship broker and the cargo broker) at the rate of 1% percent of the freight. Accordingly, charter parties of NSA’s general agents contained a clause providing:

Commission 1*4% is due and payable by the Owner to (a named ship broker) for equal division with (a named cargo broker).

(b) On November 7, 1951, officials of NSA met with representatives of the Association of Ship Brokers and Agents for a discussion of the appointment of ship brokers by NSA’s general agents. Members of the Association desired “to eliminate the appointment by general agents as owner’s broker of freight forwarders or newly formed firms not recognized as qualified in the business.” In the course of discussion reference was made to the compensation of brokers. One of the NSA officials, in a memorandum to the file on November 8,1951, recorded the following:

* * * In March, upon the inception of NSA, it was agreed to pay 1%% on the freight * * *. At that time our marginal activities contemplated the breaking out of 100 ships. In view of the greater subsequent scope of the program there will be ample compensation if we limit the brokerage to a portion of the freight, and the order to be issued contemplates setting such limit on the first $8.00 per manifest ton, equivalent in effect to 100 per ton. Broker representatives present noted this and recorded no objection.

(c) On November 20,1951, another meeting was held, with several of the same officials of NSA and representatives of the Association present. Brokers’ representatives opposed the proposed reduction in brokerage, expressing concern over the effect of such action on brokerage of private tonnage. The NSA position was recorded by one of its officials in a memorandum to the file on November 21, 1951:

NSA position was stated as aiming at a basis of remuneration which could be fully justified. Present attention thereto was occasioned in part by the increase in volume of our program, in part by the desire to base the remuneration on the services rendered by brokers. * * *
While not receding from our intent to reduce brokerage, NSA agreed to withhold action pending receipt of a submission by the industry group * * * by * * * November 80th. * * * NSA also agreed to withhold temporarily the issuance of * * * [a] circular letter * * * which * * * contained a parenthetical statement regarding proposed reduction in brokerage.

(d) Plaintiff was a member of the Association of Ship Brokers and Agents. Matters known to representatives of the Association were circulated among members, orally, and became matters of discussion among members and between members and officials of NSA. Plaintiff, through its vice president, was fully conversant with developments relating to the proposed reduction of brokerage commissions as here-inabove described.

7. (a) On December 21, 1951, NSA issued its Order No. 59. Pertinent excerpts follow:

* * * This order authorizes maximum brokerage commissions payable for the servicing of voyage charter parties covering cargoes carried by vessels operated for account of the National Shipping Authority.
* * * When an NSA vessel is fixed under warship-voy * * *, General Agent is authorized, in vessel’s interest, to appoint an established chartering broker
* * * to conclude the fixture and service the charter. General Agent may also acknowledge and recognize any broker or agent or freight forwarder nominated to the General Agent or to his selected chartering broker by the charterer as representing charterer’s cargo interests.
* * * For services rendered on vessels commencing to load during the period March 13,1951 to and including December 31,1951, total brokerage commission shall not exceed 1%% of the freight * * *.
* * * For services rendered on vessels commencing to load on and after January 1, 1952, compensation shall be as provided * * * except that on cargoes loaded in the Continental United States brokerage commission shall not be paid on that portion of the freight charges in excess of $8.00 per manifest ton. * * *

(b) The foregoing order was stamped as “filed and made available for public inspection, 8:53 a.m., December 29, 1951” by the Federal Register Division of the National Archives. It was published in the Federal Register on January 2, 1952.

(c) Plaintiff’s officers learned of the issuance of NSA Order No. 59 during the closing days of December 1951, but did not know its precise terms until its publication in the Federal Register.

8. (a) During December 1951, NSA allocated, for the carriage of grain to India, the 12 vessels listed (together with the names of their general agents) in table 1, which follows. ISM assigned each of the vessels to plaintiff as cargo broker.

(b) The parties have stipulated (1) that the “as of” dates shown in the second column of table 1 are the “as of” dates

recited by the several charters; (2) that the dates shown, in columns 3, 4, and 5, are, respectively, the dates upon which the charters were signed by the general agents and the India Supply Mission, and the dates upon which loadings were commenced; and (3) that the figures shown in columns 6 and 7 reflect, respectively, the amounts of the commissions paid to and claimed by plaintiff as brokerage. The final column accounts for the difference between the amount paid and the amount claimed, and represents the balance due to plaintiff if it is entitled as a matter of law to recover.

9. (a) As indicated by column 5 of table 1, loading was commenced on each of the 12 vessels after January 1, 1952, thereby making its charter subject to the terms of NSA Order No. 59. The loading dates are undisputed.

(b) The dates on which the charters were signed by the general agents and by ISM, as shown in columns 3 and 4 of table 1, and the amounts “paid” and “claimed,” as shown in columns 6 and 7, are likewise undisputed.

(c) The “balance” shown in the final column of table 1 is not challenged as accurately reflecting the difference between the amount “claimed” and the amount “paid,” but defendant does challenge the “balance” column as reflecting the amount of plaintiff’s recovery (if it is entitled to recover), because of defendant’s contention that the “as of” dates (shown in column 2) do not accurately reflect the fixture dates of some of the charters.

10. (a) NSA allocations of vessels were made to its general agents for specific purposes. Notification was sent by NSA headquarters to its coast director on the Atlantic, the Pacific, or the gulf coast, of the availability of a named vessel for a particular purpose. Notice was also given to the potential charterer, in this case ISM. The coast director of ISM notified the general agent of the allocation, giving the name of the vessel and of the potential charterer.

(b) Nothing remained to be done to “fix” the vessel except to agree upon the dates for loading and discharge. This agreement could be, and often was, reached between the general agent and the potential charterer. The general agent then named a ship’s broker and gave him the name of the charterer and the agreed loading and discharge dates, which information was all that was needed to prepare the written agreement, the remaining terms having been prescribed by NSA. Meanwhile, the charterer named his cargo broker, who then communicated with the general agent to ascertain the identity of the ship’s broker. If none had yet been named by the general agent, the cargo broker might agree with the general agent upon the loading and discharge dates, whereupon the charter would be fixed. Similarly, a ship’s broker, inquiring of the charterer as to the identity of the cargo broker, might agree with the charterer upon the terms of the charter, thereby “fixing” the vessel.

(c) In the instant case several of the vessels were “fixed” (1) by representatives of ISM (the charterer) with either the general agents or their brokers and (2) by plaintiff with the general agents before the latter had named their brokers. It is established by the evidence that each of the 12 vessels was “fixed” before January 1, 1952. It is therefore immaterial whether the “as of” dates recited in the charters accurately reflect the fixture dates or, in some instances (as suggested by an official of NSA), reflect the dates of the vessel’s allocation.

11. (a) The charters of 4 of the 12 vessels were originally drawn with provisions for commissions of 1*4 percent of the freight payable by the owner to a named ship broker for equal division with plaintiff. Each of the four charters was disapproved by NSA until a suitable addendum had been signed by the general agent and ISM making provision for payment of commissions in conformity with NSA Order No. 59.

(b) The commission clauses of each of the remaining eight charters were drawn in compliance with NSA Order No. 59 in the original document.

(c) Each of the charters was reviewed by plaintiff’s vice president before the document was submitted to ISM for signature. Plaintiff was therefore fully aware of the contents of each of the charters. In forwarding to ISM the “original charter party on vessel edward Bellamy” on January 4, 1952, for signature and return, plaintiff wrote:

* * * You may care to note that in the space provided for the payment of brokerage the phraseology is different. We have advised the NSA that despite the phraseology on this or any other charter, we are not willing to accept their reduction in brokerage rates.* * *

12. (a) On or about January 8, 1952, plaintiff filed with the Director of NSA written protest to the terms of NSA Order No. 59, with particular reference to the provision making the order effective as to vessels loading on and after January 1,1952, insofar as the charters for such vessels had been fixed prior thereto.

(b) On April 17,1952, the Director of NSA advised plaintiff of his adherence to the provisions of the order.

(c) On December 5, 1952, plaintiff requested reconsideration by the Director of his prior decision insofar as it applied to the vessels listed in table 1, and also requested payment of commissions with respect to such vessels in accordance with a schedule accompanying the request.

(d) On December 22, 1952, the Director denied plaintiff’s requests.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover and, therefore, plaintiff’s petition is dismissed. 
      
       The court denies defendant’s motion to dismiss this action on jurisdictional grounds, holding that “The agreement on the part of the united States to pay the cargo broker’s commission was not a necessary part of the agreement for the operation of the vessel and was clearly non-maritime and outside the jurisdiction of the admiralty court.” D. C. Andrews & Company, Incorporated v. United States, 129 Ct. Cl. 574 (1954).
     
      
       Incorporated under the laws of the State of New York, with its principal place of business in the City of New York.
     
      
       Pursuant to the authority of the Reorganization Act of 1949 (63 Stat. 203; 5 U.S.C. §§ 133z to 133z-15), Reorganization Plan No. 21 of 1950 (64 Stat. 1273, 46 U.S.C. § 1111 note) transferred the powers formerly vested in the United States Maritime Commission to the Secretary of Commerce (excepting certain powers, not here material, vested in the Federal Maritime Board), and authorized him to delegate such powers to the Maritime Administrator (head of the Maritime Administration). On March 13, 1951, the Secretary of Commerce established the National Shipping Authority within the Maritime Administration and authorized the Maritime Administrator to delegate powers to the Director, National Shipping Authority. 16 F.R. 44 and 2642 (1951). Among the powers so delegated was authority to use merchant vessels for the account of any department or agency of the United States as provided in section 11 of the Merchant Ship Sales Act of 1946, 60 Stat. 41, 49 ; 50 U.S.C. •§ 1744.
     
      
       66 Stat. 59 ; 50 U.S.C. §§ 2311-2316.
     
      
       Tie Act of March 14, 1942, 56 Stat. 171, 46 U.S.C. 1127, authorized and directed the Secretary of Commerce “to coordinate the functions and facilities of public and private agencies engaged in the forwarding and similar servicing of water-borne export and import foreign commerce of the united States, for the * * * preservation of forwarding facilities and services for the post-war restoration of foreign commerce.” This act, still in force, was accepted by NSA in March 1951 as a policy directive for the use in its operations of the services of freight forwarders and ship and cargo brokers.
     
      
       These services Included (1) tracing and expediting inland shipments; (2) contacts with suppliers as needed to deal with split shipments, shortages, and discrepancies; (3) control of export licenses; (4) preparation of all shipping documents; (5) arranging for shipping space and disposition of shipping papers ; (6) advancing inland and ocean freight charges; (7) arrangements for storage and trucldng, and delivery to steamer; (8) checking ocean freight bills; and (9) “any and all usual or customary services rendered by a freight forwarder with the object of dealing most efficiently and economically with the handling of its customers’ cargo.”
     
      
       Services other than freight forwarding which were to be performed by plaintiff without charge included the following. Andrews was to “absorb all communication expenses incurred in the performance of its regular and normal services to the Mission.” All brokerage commissions accruing to Andrews from various charter parties (not including the charter parties involved in this suit) were to be paid to the Mission. Andrews agreed to handle, “without any charge for their services, any and all relief shipments which the Mission may have, provided the quantity of such shipment is not too great in the joint opinion of both you and us.” Andrews agreed to handle, “without any charge for their services, any and all shipments of personal effects for Government of India personnel,” and “to receive in their office a reasonable number of Indian students and train them in the transportation work * * *,” and to “assume the cost of * * * tuition fees” for “such students to attend * * * classes in foreign forwarding and allied subjects at the New York University.”
     
      
       The arrangement between NSA and ISM called for ISM to pay the freight charges. NSA, as owner of the vessel, was responsible for payment of brokers’ commissions. Consequently, plaintiff’s services cost ISM nothing, while plaintiff was dependent, for compensation for its considerable services to ISM, upon the brokers’ commissions payable by NSA.
     
      
       Published in the Federal Register on May 8. 1951. 16 E.R. 4200.
     
      
       If the effective date of NSA Order No. 59 had been for services rendered on vessels fixed on and after some advance date, instead of “* * * vessels commencing to load on and after” a specified date, or if the effective date based on loading had been advanced far enough to allow for intervening fixtures, the questions in this lawsuit would not have arisen. NSA adopted the loading date in preference to fixture date because of the precedent established by the War Shipping Administration, upon the cessation of hostilities, in terminating charters for lend-lease shipments. No reason was offered by NSA for not advancing the loading date to allow for intervening fixtures.
     
      
       Plaintiff rests its ease on its contention that the reduction of brokerage commissions on ships loading on and after January 1, 1952, was retroactive as to ships fixed prior thereto and was therefore invalid.
     
      
       The four vessels were : (1) SS CLYDE SEAVEY; (2) SS MARCUS DALY; (3) SS LYMAN ABBOTT; and (4) SS EDWIN BOOTH.
     
      
       under NSA procedures, charters not disapproved were deemed to be approved.
     