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Reporter's Statement of the Case secured by a lien on the cargo had not been paid, it was within the authority of the chartering committee created by the United States Shipping Board under the act of July 18, 1918, and the President's proclamation of July 29, 1918, pursuant thereto, to enter into an agreement for approval of the charter party and discharge of the cargo upon deposit with it of the freight charges due, for their proper and lawful disposition; and where the freight charges so deposited were turned over by the committee to the Shipping Board and held by the United States Treasury to the credit of the Board, the owner of the vessel is entitled to recover in a suit therefor against the United States, but may not recover interest.
The Reporter's statement of the case:
Mr. J. Robert Anderson, with whom was Mr. Assistant Attorney General James W. Morris, for the defendant. Mr. Ralph H. Hallett was on the brief.
The court made special findings of fact as follows:
1. Andrea Sanguineti fu Giuseppe, the original plaintiff, died June 30, 1929. At his death his property, including the claim herein sued on, descended to Giuseppe Sanguineti, Angela Sanguineti, and Olga Sanguineti, as the sole heirs and legatees under his will. Luigi Mazzino and Alessandro Fava are the executors under the will. On January 18, 1930, Giuseppe Sanguineti, Angela Sanguineti, and Olga Sanguineti, as heirs and legatees, and Luigi Mazzino and Alessandro Fava, as executors, were substituted herein as plaintiffs.
Andrea Sanguineti fu Giuseppe until his death was a citizen of the Kingdom of Italy, the laws of which country permit a citizen of the United States to maintain without restrictions suits similar to this against the Kingdom of Italy.
2. During the entire time herein concerned, Andrea Sanguineti fu Giuseppe was the owner of the sailing vessel Jolanda, which flew the Italian flag and carried an Italian crew. During the entire year of 1918 the Jolanda was under requisition by the Italian Government for the transportation of coal from the United States to an Italian coaling station located at Dakar, on the West Coast of Africa. The requisition of the vessel by the Italian Government permitted the Jolanda to carry cargoes of her own on the westReporter's Statement of the Case bound trips to the United States, with the provision that on said west-bound trips all costs of operation were to be borne by her owner. The sole interest of the Italian Government on west-bound trips consisted of 20 percent on the gross amount of freight.
3. On May 19, 1918, with the permission of the Italian Government, the owner of the Jolanda chartered her to V. Q. Peterson, a citizen of Denmark, for a west-bound trip to the United States for the transportation of a cargo of cocoa beans from Accra, Gold Coast, West Africa, to New York, whence she was to return on her east-bound trip to Dakar with a cargo of coal for the Italian Government.
The charter to Peterson was at the rate of £15 per English ton taken, £5,000 to be paid on the signing of the charter party, which was done, £8,000 on the completion of the loading, which was accordingly paid to her captain, the balance to be paid to the Italian consul at the port of unloading. All expenses of loading and unloading were for the account of the charterer, who was also to assume for his account all steps necessary to secure the license or permission to export or import her cargo. The vessel was to have a lien on the cargo for the payment of the freight due. The charter, among other provisions, contained the following:
In case the American Shipping Board may impose any restrictions of chartering price and that these restrictions may be applicable to this contract, same will be valid just the same, but the decrease of price required will produce these consequences:
If the same means a decrease in freight of more than 5 pounds per ton, the laydays will apply to 200 tons per day, and the demurrage to 175 lbs. per day.
If the same means a decrease in freight to one-half or less, the laydays will apply to 300 tons per day and the demurrage to 250 lbs. per day.
In this case the reductions or restrictions to be made will take place at the port of destination in North
America. 4. On June 30, 1918, V. Q. Peterson, charterer, subchartered the Jolanda to F. W. and W. Swanzy, of London, England, at the rate of £20 Sterling per ton, to carry a cargo of cocoa beans from the Gold Coast, West Africa, to New York.
Reporter's Statement of the Case As soon as the Jolanda was loaded, about August 13, 1918. Peterson, charterer, collected from F. W. and W. Swanzy the subcharter freight at the rate of £20 Sterling per ton.
5. The Jolanda sailed from the Gold Coast, Africa, on August 13, 1918, and arrived at New York on October 30, 1918. Lykes Brothers, Inc., was the New York agent of Peterson. The cargo of cocoa beans was consigned to Alexander Roberts & Company, whose duty it was to furnish a pier at New York for the discharge of her cargo. The balance of the charter freight estimated to be due from Peterson to her owner was $87,917.20.
6. Prior to the execution of the charter party at Dakar, on May 19, 1918, the importers of the cocoa beans had procured an import license therefor. Prior to the execution of this charter, neither the owner, the Italian Government, nor the charterer made application to the United States War Trade Board or the chartering committee of the United States Shipping Board for a license to import or for the approval of the charter party.
On July 8, 1918, the United States War Trade Board revoked all outstanding import licenses for carrying cargoes that might be shipped after July 20, 1918.
On July 17, 1918, the importers of these cocoa beans applied to the War Trade Board for a renewal of their original license which on August 13, 1918, was granted, subject however to the approval of its freight rates by the chartering committee.
7. On September 6, 1917, the United States Shipping Board authorized the appointment of a special chartering committee.
On September 29, 1917, the United States Shipping Board appointed three persons as members of the chartering committee, to which committee all applications for the approval of charters were to be referred.
On October 12, 1917, the President of the United States by Executive order established the War Trade Board, with authority to issue or refuse licenses for exportation and importation. The War Trade Board established regulations concerning exportation and importation of certain articles, under which importers of beans were required to procure Reporter's Statement of the Case licenses for such importations from the War Trade Board, and the unloading without such license of any vessel containing such beans was prohibited.
On July 29, 1918, the President of the United States by proclamation designated the United States Shipping Board as the agency to exercise the powers to prescribe charter rates and freight rates, and authorized the Shipping Board to exercise such authority through such other agency as the Board might designate.
On August 7, 1918, the United States Shipping Board by resolution designated the chartering committee as the agency to exercise all the powers so conferred on the Shipping Board.
8. Following the execution of the charter party at Dakar, on May 19, 1918, correspondence was exchanged between the Italian Ministry of Shipping at New York, acting on behalf of the owner of the Jolanda, and the chartering committee. The chartering committee was informed of the provisions of the charter and was requested to approve same. On May 28, 1918, the chartering committee stated that it could not approve a rate in excess of $22 per ton, and that the committee was taking the matter up with the authorities at Washington, whose action must be awaited. The chartering committee advised the Italian Ministry of Shipping at New York that nothing further could be done until the Jolanda arrived at New York, when it would "endeavor to straighten out the matter, together with the Food Administration and the War Trade Board.” On May 28, 1918, the Jolanda had not been partially loaded, and her loading was not completed until about August 13, 1918.
At the time the charter party was signed at Dakar, neither the owner of said vessel nor his agent was aware that the chartering committee had established a maximum charter or freight rate of $22. The charter party was signed with the knowledge and approval of the United States consul at Dakar.
9. On her arrival at New York the Jolanda was not allowed to discharge her cargo until both the charter party and the subcharter party were approved by the chartering committee.
Reporter's Statement of the Case On the completion of her loading, on August 13, 1918, Peterson, charterer, had paid to the owner of the Jolanda $61,880, which sum was greater by $5,880 than the amount that would have been due in all from Peterson to the owner if the maximum charter rate of $22 per ton had been enforced by the chartering committee. Peterson therefore contended that the $22 rate was proper and that he was entitled to a refund of $5,880 from the owner. On the other hand, the Italian Ministry of Shipping, on behalf of the vessel owner, asserted a lien on the cargo for the balance of freight estimated due, $87,917.20, and refused to permit discharge of the cargo until that sum was paid. Both the chartering committee and the Italian Ministry of Shipping desired that the Jolanda discharge her cargo soon in order to pick up a cargo of coal for her east-bound voyage.
10. An oral agreement was entered into between the chartering committee, the Italian Ministry of Shipping, acting for the owner, and Lykes Brothers, Inc., acting for the charterer, by the terms of which it was agreed that the chartering committee would approve the charter party and permit the owner to discharge the cargo, and that Lykes Brothers, Inc., agents for Peterson, the charterer, would pay to the Italian Ministry of Shipping, representing the owner, $87,917.20, balance of freight charges due the owner under the charter party. The Italian Ministry of Shipping was then to deposit this sum with the chartering committee for safe-keeping and await its final disposition, having regard to the respective rights of the parties to the agreement by the proper American authorities. The $87,917.20 was the estimated amount of charter freight due, and the actual amount due was to be decided upon after the outturn of the cargo.
This agreement was carried out and the chartering committee approved the charter party involved ; Lykes Brothers, Inc., representing the charterer, gave its check for $87,917.20 to the Italian Ministry of Shipping, acting for the owner of the vessel, and the Italian Ministry of Shipping delivered the check on November 8, 1918, to the chartering committee. The check was payable to the Treasurer of the United States. It was thereafter returned and a new check was drawn, payable to the Shipping Board instead of the Treasurer of the