#### LUCKENBACH STEAMSHIP COMPANY, INC., v. THE UNITED STATES1

[No. 33962.

Decided April 28, 1924]

*On the Proofs*

*Requisition; just compensation; award of hoard; evidence.*— Upon a claim for just compensation for steamers requisitioned by the Government, an award of the Board of Appraisal of the Navy Department will not be disturbed without evidence satisfactory to the court.

*The B&foHePs*statement of the case:

*Messrs. Peter iS. Garter*and *G. G. Daniels*for tlie plaintiff. *Garter & Garter*were on the briefs.

*Mr. J. Robert*Anderson, with whom was *Mr. Assistant Attorney General Robert IT.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff, Luckenbach Steamship Company, is a corporation organized and existing under the laws of the State of Delaware, with an office for the transaction of business in the City of New York, State of New York.

II. Under date of August 29, 1917, Admiral W. S. Benson, Chief of Naval Operations, United States Navy, wrote Capt. A. S. Halstead, senior member, Board of Appraisal, Navy Department, that the President had directed the acquisition of what was generally known as the Luckenbach “ fleet ” of ocean-going tugs and barges, consisting of five tugs and twelve barges, operated by the Luckenbach Steamship Company, and directed that he report to the Secretary of the Navy what would be a just compensation to be paid for each of said vessels. Pursuant to such direction said vessels were appraised bjr the Board of Appraisal, and the appraisal reported to the Secretary of the Navy; and upon *629said appraisal the President determined just compensation for the vessels to be as follows:

Tug *No.*l_ Tug *No.*3_ Tug *No.*3_ Tug *No.*1¡_ Tug *No.*5_ Barge *W. F. Bab-*cock_ Barge Seneca-Barge *General*Knox_ Barge *Old Domin-*ion_ $245, 455. 00 $136, 364. 00 $245, 455. 00 $272, 727. 00 $184, 091. 00 $45, 000. 00 $68,182. 00 Barge *SmJoaquin-*Barge Solitaire-Barge *J. B.*Walker_ Barge *Carrie*Clark_ Barge *Washington*_ Barg *e*Josephus-Barge *C. F. Sargent -*Barge *West Point*— $21, SIS. 00 $30, 000. 00 $38,181. 00 $20, 455. 00 $32, 727. 00 $27, 273. 00 $27, 273. 00 $24, 545. 00 $32, 727. 00 Total_,_$1, 500, 000. 00 $47, 727. 00

By letter of October 4, 1917, the Secretary of the Navy informed plaintiff of the just compensation that had been determined by the President for said vessels, and directed that plaintiff deliver the vessels to the commandant of the Third Naval District at the then locations of the vessels. The letter also informed plaintiff that said commandant had been ordered to pay plaintiff the sum of $1,500,000.00 “ upon proof of ownership,” if the condition of the vessels was the same as when they were theretofore inspected by the Government and upon the execution by plaintiff and delivery to the commandant “ of formal bill of sale of said vessels and their equipment.”

On October 8, 1917, the Secretary of the Navy by letter directed the said commandant of the Third Naval District to take possession of the said vessels, “ owner, Luckenbach S. S. Company, giving to the owners, or their representative, a receipt for the ships,” and authorizing him, if they were in the same material condition as when inspected, “ to pay to the owner, Luckenbach S. S. Company, upon satisfactory proof of ownership ” and the execution by the company and delivery to him “ of formal bill of sale of said vessels and their equipment, acknowledging the receipt in full of just compensation therefor, a sum of one million five hundred thousand dollars ($1,500,000.00), and a further sum in payment for ordinary consumable stores.”

Said vessels were thereupon taken possession of by the Government authorities, the tugs on October 12, and the *630barges on October 18,1917; and an inspection or resurvey of them was made by the Government authorities on or about October 17, 1917, to determine whether they were in the condition specified by the Secretary of the Navy as a requirement for the payment by the commandant of the compensation fixed by the President.

III. Plaintiff was not satisfied with the amount of the compensation fixed by the President for the said vessels and refused to accept it as in full of just compensation. Pursuant to the direction and requirement of the Secretary of the Navy that a bill of sale from the plaintiff to the Government for the vessel should be a condition precedent to the payment of compensation plaintiff, on October 27, 1917, executed and delivered to the United States the following-instrument, as a bill of sale for the vessels:

*To all to whom these presents shall*oome, *greeting:*

Know ye that we, Luckenbach Steamship Company, Inc., owner of the undermentioned tugs and barges,

Official No.

Tug- *Luckenbach 'No. 1,*439 gross tons, or thereabouts_ 92911

lug *Luckenbach No. 2,*272 gross tons, or thereabouts_136173

Tug *Luckenbach No. S,*434 gross tons, or thereabouts_ 81642

Tug *Luckenbach No. 4,*406 gross tons, or thereabouts_ 210901

Tug *Luckenbach No. 5,*269 gross tons, or thereabouts_ 200466

Barge *Seneca,*2,208 gross tons, or thereabouts_ 116029

Barge *Old Dominion,*1,802 gross tons, or thereabouts_ 19350

Barge *Josephus,*1,406 gross tons, or thereabouts_ 76888

Barge *San Joaquin,*1,561 gross tons, or thereabouts_ 115504

Barge *O. F. Sargent,*1,689 gross tons, or thereabouts_ 125273

Barge *’Washington,*1,724 gross tons, or thereabouts_ 91180

Barge *Carrie Clark,*1,298 gross tons, or thereabouts_ 125309

Barge *W. N. Babcock,*2,128 gross tons, or thereabouts_ 80935

Barge *West Point,*1,213 gross tons, or thereabouts_ 81350

Barge *Solitaire,*1,515 gross tons, or thereabouts_ 115654-

Barge *J. B. Walker,*2,136 gross tons, or thereabouts_ 76092

Barge *General Knox,*1,587 gross tons, or thereabouts_ 85699

does hereby covenant as follows:

*Whereas*the said tugs and barges were heretofore seized and requisitioned by the United States under the provisions of the act approved June 15th, 1917 (Public No. 23), entitled “An act making appropriations to supply urgent deficiencies in appropriations for the Military and Naval Establishments on account of war expenses for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes”; and

*Whereas*Luckenbach Steamship Company, Inc., the owner of said vessels, is dissatisfied with the value placed thereon *631by the President as provided for in the said act and has refused and does refuse to accept the same as fair and just compensation for the said vessels; and

*Whereas*it is its desire and intent hereby to confirm unto the Government of the United States the title to the vessels so seized and requisitioned by the United States, but reserving to itself all claims for compensation allowed to it by the said act and all rights and remedies for the determination, collection, suit for and recovery of the said compensation for and value of the said vessels.

Now, we, the said Luckenbach Steamship Company, Inc., reserving to itself all of said rights and remedies, does hereby confirm unto the United States the title to the whole of the said tugs and said barges or vessels, together with all machinery, masts, bowsprit, sails, boats, anchors, cables, tackle, furniture, and all other necessaries thereunto appertaining and belonging:

To have and to hold the said steam tugs *Luckenbach No. 1' Luckenbach No. 8, Luckenbach No. 3, Luckenbach No.*.£, *Luckenbach No. ó,*and barges *Seneca, Old*Dominion, *Josephus, San Joaquin, O. F. Sargent,*Washington, *Carrie Clark, W. F. Babcock, West Point Solitaire, J. B. Walker,*and *General Knox,*and appurtenances thereto belonging unto them, and said United States of America, and assigns to the sole and only proper use, benefit, and behoof of the United States of America and assigns forever, and we, the said Luckenbach Steamship Company, Inc., has promised, covenanted, and agreed, and does by these presents covenant and agree for itself, its successors, and assigns, to and with the said United States of America and assigns that it will never question, attack, or in any way interfere with the title of the said United States of America to the said vessels, and to warrant and defend the said steam tugs and barges or vessels and all the other beforementioned appurtenances against all and every person and persons whomsover, it being the intent of this instrument to make absolute in the United States the title to' the said vessels with a full reservation to the said Luckenbach Steamship Company, Inc., of all rights and remedies for compensation for the seizure of said vessels by the United States; and

Now, therefore, we, Luckenbach Steamship Company, Inc., does hereby warrant, that there are no liens or mortgages recorded or otherwise attached to said vessels and no incum-brances thereupon: and it hereby promises, covenants, and agrees for itself, its successors, and assigns to and with the United States to warrant and defend said vessels together with their appurtenances against all and every person whatsoever and to hold the United States harmless from *632¡ill claims or suits arising or which may arise out of the transfer of said vessels to the United States, excepting only the claim, suit, and cause of action for the value of said vessels and for compensation therefor of itself, its successors, or assigns.

In witness whereof, the said Luckenbach Steamship Company, Inc., has hereunto, by its president, and its secretary, set its seal this 27th day of October, nineteen hundred and seventeen (1917).

Luckenbach Steamship Company, Inc.

Edgar F. Luckenbach, *President.*

N. C. Ti-iackara, *Secretary.*

Thereafter, on December 7,1917, the plaintiff was paid 7o per cent, or $1,125,000.00, of the said sum of $1,500,000.00 determined by the President to be just compensation for and on account of the taking or acquisition of said vessels by the United States.

IV. At the time of the taking possession of the said vessels by the Government on October 12 and 18, 1917, and for some time prior thereto, plaintiff had possession of and was operating all of said vessels, but it was the owner of only two of them, namely *Tug No. 5*and the barge *Seneca.*The remaining four tugs and eleven barges were then the property of individual members of the Luckenbach family, as follows:

*Tug No. J¡.*and the barges *O. F.*Sargent, Josephus, *Old Dominion, W. F.*Babcocle, and *Washington*were the individual property of Edgar F. Luckenbach, the president of plaintiff company; and tugs *Nos. 1, 2,*and *3,*and the barges *Carrie*Claris, *General*Knox, *J. B. Walher, San Joaquin,*Solitaire, and *West Point*Avere the property of the said Edgar F. Luckenbach, Avho owned a four-fifths' interest in each of them, and of Mattie W. Luckenbach, John LeAvis Luckenbach, and Dorothy N. Luckenbach, who together owned the remaining one-fifth interest in each of them.

On October 19, 1917, following the taking possession of said vessels by the Government on October 12 and 18, the said Edgar F. Lijckenbach executed bills of sale to plaintiff both for the said tug and five barges owned wholly by him, and for his said four-fifths interests in the three tugs and six barges so owned in part by him; and on October 24 *633following the said Mattie W. Lnckenbach, John Lewis Luck-enbach, and Dorothy N. Luckenbach executed bills of sale to plaintiff for their one-fiftli interests in the said three tugs and six barges so owned in part by them. And on October 27 following plaintiff executed and delivered to the United ’ States the said instrument set forth in Finding III as a bill of sale for said vessels.

V. Just compensation to the plaintiff for the taking by the United States of the aforesaid tugs and barges is the sum of $1,500,000.

1

 Appealed.

MEMORANDUM BY THE COURT

Upon a careful review of all the evidence in this case wes have reached the conclusion that the valuation placed upon the tugs and barges of the plaintiff by the Board of Appraisal is a fair one, and that the compensation awarded by the President is just.

Much of the eAÚdence submitted is wholly irrelevant and does not concern the value of the tugs and barges at the time they Avere taken. The expert evidence is Arague and indefinite and is largely, if not altogether, speculative and conjectural. The Board of Appraisal made an exhaustive examination of these tugs and barges at the time or just before the time they were taken, and the valuation arrived at by the board is fair and liberal.

The plaintiff is entitled to recover $375,000, that amount being 25 per cent of $1,500,000, the plaintiff having heretofore been paid the sum of $1,125,000.