#### STANDARD TRANSPORTATION COMPANY v. THE UNITED STATES

[No. 34216.

Decided March 29, 1926]

*On the Proofs*

*Eminent domain; requisitioning of vessels; Shipping Board rates; just compensation.*— Where vessels are taken over by the Government under the act of June 15, 1917, and the owner agrees to act as operating agent of the United States Shipping Board “ for such compensation as may be determined by said board,” with the privilege to the owner of refusing the compensation so fixed and suing for just compensation, and the owner refuses the rates fixed by the board and sues for just compensation, the rates fixed by the board are not binding on the court, and the owner’s compensation is determined by the market value at time of taking. See *Gulf Refining Go. ease,*58 0. Ols. 559, and *Standard Oil Go. case, post,*p. 951.

*The Reporter’s*statement of the case:

*Messrs. Peter M. Speer*and *Russell H. Robbins*for the plaintiff. *Mr. Courrtla/nd Palmer*was on the briefs.

*Mr. J. Frank*Staley, with whom was *Mr. Assistant Attorney General Merman J.*Galloway, for the defendant. *Mr. W. W. Nottingham*was on the briefs.

The court made special findings of fact, as follows:

I. The plaintiff, Standard Transportation Company, is a corporation duly incorporated in the year 1915 under the laws of the State of Delaware, and upon the date of its incorporation and during the transactions hereinafter described, was engaged in the business of transporting, in *907tank steamers owned by it, freight, the larger part of which consisted of petroleum, kerosene and other liquid petroleum, products belonging to the Standard Oil Company of New York, and part of which consisted of vegetable oils and other products belonging to other shippers. Its entire, capital stock (with the exception of director’s qualifying shares) was and is owned by the Standard Oil Company of New York, a corporation duty incorporated in the year 1882 under the laws of the State of New York, and which, since its incorporation, has been continuously engaged in the business of refining petroleum and in buying, transporting, and marketing petroleum and petroleum products in the State, of New York, the -New England States, the Philippine Islands, and in China, Japan, India, and other foreign countries, in all of which it has had for many years a very large business.

II. The principal refineries of said Standard Oil Company of New York aré located on Long Island, in the city of New York, State of New York, and at Providence, Rhode Island, and the crude oil for these refineries was transported in large part by tank steamers from various ports. The petroleum products marketed by said Standard Oil Company of New York in New York and in the New England States were also transported in large part to ports in those States by tank steamers. The petroleum products marketed by said Standard Oil Company of New York in the Philippine Islands, China, Japan, India, and other foreign countries were in large part purchased in the State of California and transported from ports in said State by tank steamers across the Pacific Ocean to ports in the countries where marketed. For such transportation of the petroleum and petroleum products bought, refined, and marketed by it, the Standard Oil Company of New York needed and had in use, in addition to general-cargo vessels, barges, etc., a number of tank - steamers especially, constructed and equipped for the transportation of petroleum and liquid petroleum products in bulk. Prior to 1915 it had transported its liquid petroleum products across the Pacific Ocean in tank steamers owned by one of its subsidiary companies, the Tank Storage & Carriage Co. (Ltd.), a British corporation, *908organized under English law. In 1915 the British Government began to requisition said tank steamers for Government service, and the Standard Oil Company of New York, in that year, incorporated the plaintiff company for the pur- ' pose of building, acquiring, and holding tank steamers, so that it might have the control and use thereof in transporting its petroleum and liquid petroleum products, as aforesaid, and especially across the Pacific Ocean in its foreign trade.

The Tank Storage & Carriage Co. (Ltd.) owned twenty-one vessels having British registry with a tonnage of 160,-538 dead-weight tons, all of which during 1915-1918 were requisitioned and taken over by the British Government upon the terms of standard T99 form of charter, which provided for payment of hire at about $3.25 per dead-weight ton per month and permitted vessel owners to submit question of hire to arbitration should they so desire. The Tank Storage & Carriage Co. (Ltd.) accepted the British rates of $3.25 per dead-weight ton per month. Later, the Standard Transportation Co. of Hongkong (Ltd.), another British corporation likewise subsidiary of the Standard Oil Company of New York, was organized but the extent of its vessel holdings and its operations do not appear clearly of record.

III. On October 12, 1917, the plaintiff was the owner of four tank steamers of the following names and dead-weight tonnage:

Dpad-weight

Name tonnage

Acme_ 9, 860

*Royal*Arrow_12? 650

*Standard*Arrow_12, 650

On said date, also, the New York Shipbuilding Corporation was building for the plaintiff at Camden, N. J., two tankers then known as hulls *171¡.*and 175, in accordance with a contract whereby said New York Shipbuilding Corporation was to construct said tankers for the plaintiff for the price of $875,000 each. The contract for the construction of said tankers contained a provision that the ownership of said steamers, materials, fittings, etc., should vest in the *909plaintiff to the extent of payments made and that no alterations involving an extra cost to the plaintiff should be made unless agreed to in writing. After the completion of said vessels, that known as hull *No. 174*was named the *Sylvan Arrow*and had a dead-weight tonnage of 12,650 tons, and that known as hull *No. 175*was named the *Broad Arrow*and had a dead-weight tonnage of 12,600 tons.

All of said tankers had been contracted for by plaintiff in the year 1915 for use in its foreign trade across the Pacific Ocean, to take the place of the tankers which had been requisitioned and taken from its said trade, as found in Finding II.

IV. Prior to October 12, 1917, the Astral, *Aeme, Royal Arrow,*and *Standard Arrow*had been in trans-Pacific service carrying on outward voyages kerosene and other liquid petroleum products from California ports for the Standard Oil Co. of New York, returning in ballast, except that the *Royal Arrow*upon a return voyage, beginning at the Philippine Islands on July 12, 1917, and ending at San Francisco on August 20, 1917, carried a cargo consisting of 6,145.44 tons of coconut oil carried for the Visayan Befining Company for which said company paid the plaintiff at the rate of $40 per long ton, amounting to $245,817.60, and 3,920 tons of rice and 1,838 tons of copra for other shippers, for which said other shippers paid to the plaintiff freight at the rate of $50 per ton, amounting to $292,992, making gross receipts for said return voyage of $538,809.60; except, also, that said *Royal Arrow*upon a return voyage beginning at the Philippine Islands on October 23, 1917, under a charter party dated and executed September 24, 1917, and ending at San Francisco on December 20, 1917, carried a cargo consisting of 6,778 tons of coconut oil for the Visayan Befin-ing Co., for which said company paid plaintiff at the rate of $40 per long ton, amounting to $271,120, and 5,137.25 tons of copra for other shippers, the contract for the carriage of which freight was made prior to October 12, 1917, and for carrying which there was paid to the plaintiff by such shippers freight at the rate of $50 per ton, totaling $256,-862.50, making the gross receipts or income from said return voyage $527,982.50, which was paid to the plaintiff. *910Prior to said return voyages, plaintiff’s tankers had been brought back in ballast, as by so doing sufficient time was saved to enable the ships to make additional outward voyages carrying large additional quantities of oil products from California ports to the Orient, where the Standard Oil Co. of New York had a large business, and the making of said additional outward voyages and carrying of additional oil products for marketing in the Orient was more profitable to plaintiff than to delay the ships by bringing back cargoes on the return voyages. However, in the early part of 1917 a great demand arose in the United States for vegetable oils and for the food and other products of the Orient, but there was a lack of ships for the transportation of said products to the United States, and plaintiff agreed with the United States Food Administration that it would carry back food and other products to the United States on return voyages of its tankers *Acme, Astral,*and *Royal Arrow*when practicable.

The Visayan Refining Co. was a corporation engaged in the manufacture of coconut oil in the Philippine Islands, and in June, 1917, had shut down its mill because it could not get transportation. Up to that time coconut oil had not been shipped in bulk in tank steamers except in small quantities. In May or June, 1917, the Visayan Refining Co. had negotiations with the plaintiff, and the plaintiff agreed to transport the first trial shipment of coconut oil in bulk. This shipment was the voyage of the *Royal Arrow*beginning on July 12, 1917, as hereinbefore described. The said voyage demonstrated that coconut oil could be successfully transported in bulk. Thereafter there were further negotiations between the Visayan Refining Co. and the plaintiff, looking toward the furnishing of coconut oil by the Visayan Refining Co. for transportation and the furnishing of steamers by the plaintiff for transporting such oil; and the Visayan Refining Co. took on contracts with large commitments for raw materials, for the sale of oil, and also took on banking obligations and installed necessary pipes and equipment at both ports of loading and discharge and acquired additional tankage at San Francisco for receiving and storing coconut oil and equipped certain of the plain*911tiff’s tank steamers with heating coils necessary for liquefying said oil for speedy unloading; and the second voyage of the *Royal Arrow,*hereinbefore described, was made; but there is no satisfactory evidence of any definite contract between the Yisayan Refining Co. and the plaintiff for the furnishing and transportation of oil except the charter parties for the two voyages of the *Royal Arrow,*hereinbe-fore described.

After October 12, 1917, and during said requisition period charter parties were entered into by the plaintiff with the Yisayan Refining Co. for the following return voyages of the following tankers:

Second voyage of the Acme, hereinafter described, under charter party dated and executed December 28,1917;

Third voyage of the *Acme,*hereinafter described, under •charter party dated and executed March 7, 1918 ;

Fourth voyage of the Astral, hereinafter described, under charter party dated and executed April 4, 1918;

Fifth voyage of the *Astral,*hereinafter described, under charter party dated and executed October 7, 1918;

Second voyage of the *Royal Arroto,*after October 12, 1917, hereinafter described, under charter party dated and •executed April 4, 1918;

Third voyage of the *Royal Arrow,*hereinafter described, under charter party dated and executed April 4,1918;

Fourth voyage of the *Royal Arrow,*hereinafter described, also made under said charter party dated and executed April 4,1918, which provided for three consecutive voyages of the *Royal Arrow.*

All of these charter parties were practically identical in their provisions, and the specified freight rate or hire in each was $40 per long ton.

During the period of the requisition cargoes carried .aboard vessels eastbound from the Orient and the Philippines to the United States were under the control and subject to the allocation of agencies designated by the United States, and the Governor of the Philippines was designated such agent for shipments from the Philippines and designated the cargoes carried upon the return voyages of the various tankers loaded at the Philippines.

*912V. Under the provisions of an act of Congress, known as the urgent deficiency appropriation act for the Army and. Navy, approved June 15, 1917 (40 Stat. 182), the President of the United States, acting by and through the Secretary' of the Navy, on or about the 7th day of August, 1917, requisitioned said tank steamer *Standard Arrow*for Government service, and took said ship from the business and use' of plaintiff and said Standard Oil Company of New York-Said ship was retained by defendant in Government service-until February 13, 1919, a total of 18 months and 6 days. For the use of said tank steamer *Standard Arrow,*as well; as for the use of other vessels of plaintiff, which were actually requisitioned and used by the defendant for Government service, plaintiff agreed to accept the rate of hire fixed-, by defendant or by the United States Shipping Board acting: for defendant, as compensation for such use, although denying that said rate of hire was sufficient or just compensation, for the use thereof. The plaintiff was paid at said rate for the use of the *Standard Arrow.*

VI. Under the provisions of said urgent deficiency appropriation act for the Army and Navy, approved June 15,1917.' (40 Stat. 182), subheading, “ Emergency Shipping Fund,”' the President, by Executive order dated July 11, 1917,. directed that the United States Shipping Board should have-all power and authority vested in him by said act as to the-requisitioning or purchase of constructed vessels and as to-the operation, management, and disposal of such vessels and of all other vessels theretofore or thereafter acquired by the-United States. Said Executive order is set out in full in. Paragraph VI of plaintiff’s amended petition and is made-part of this finding by reference thereto.

VII. On October 12, 1917, the United States Shipping-Board by virtue of said act of June 15, 1917, and of said Executive order of July 11, 1917, issued a requisition order- or notice that the requisition of all American steamers described therein and of which previous announcement had been made would become operative and effective on October-15, 1917, at noon, and that the ships affected by said requisition included all cargo ships able to carry not less than. 2,500 tons total dead weight, including bunkers, water, and. *913stores, and. all passenger steamers of not less than 2,500 tons, register. Said order or notice is set out in Paragraph VII of plaintiff’s amended petition and is made part of this finding by reference thereto.

VIII. After having determined upon the issuance of a. requisition order the Shipping Board decided to fix upon a rate of hire for requisitioned vessels. Many factors were-taken in consideration by the board, among which were that, the American mercantile marine had a number of old steamers and that there was a difference in the size of steamers- and difference in type: The board concluded that, as far as possible, it would make a general rate to apply to all,, and not a rate applicable to each vessel separately, which latter they regarded as impracticable. Recognizing that, there was an obligation to award just compensation, the-board thought it necessary, in formulating a rate per ton. per month, to take into consideration the value of the property and to award compensation, at least to some extent,, based on that value. The Shipping Board, on September 21,1917, made an announcement of its rates as follows:

United States Shipping Board, Washington, *September ®7,1917.*

The United States Shipping Board announced to-day-the rates upon which it proposed to requisition all American tonnage suitable for ocean service above 2,500 tons deadweight carrying capacity. The rates are as follows:

*Cargo boats and tankers*

[Dead-weight capacity, Government form time charter]

Per dead-weight ton

Over 10,000 tons-$5. 75

8,001 to 10,000_ 6. 00

6,001 to 8,000_ 6.25

4,001 to 6,000_ 6. 50

3,001 to 4,000_ 6. 75

2,500 to 3,000_ 7. 00

The Shipping Board finally determined upon $175 per dead-weight ton as the average value for requisitioned tonnage, and from this basis deducted as a fair return 25-per cent per annum on that sum, and 50 cents per ton *914.added to cover overhead expenses, to which was added 1 ■cent per ton for convenient calculation, resulting in a monthly rate of $4.15 per dead-weight ton, and for vessels making over 11 knots per hour 50 cents per knot for each •additional knot made. This rate was called bareboat hire, the Government assuming all costs of operating the vessels, together with marine insurance and war risk.

Vessels of speed in excess of 11 knots to be allowed 50 -cents per ton dead-weight per month for each knot or part -of a knot over 11 knots.

For passenger steamers, the board adopted a two-fold basis of classification: Class A, consisting of steamers with .a capacity of over 150 passengers, and class B, consisting of steamers with a capacity of from 15 to 150 passengers. .Steamers falling in both classes are further classified according to speed. The rates for passenger steamers are as iollows:

Government form time charter

Class A

Per ton gross register

10 to 11 knots_$9. 00

12 knots_ 9. 50

13 knots_10.00

14 knots_10. 50

15 knots_!-11. 00

Over 15 knots-11. 50

Class B

-Government forra Per ton

time charter gross register

10 to 11 knots_i_$8. 00

12 knots_ 8. 50

13 knots_ 9. 00

14 knots_ 9. 50

15 knots_10.00

Over 15 knots-10. 50

Bainbridge Colby, of the Shipping Board, in announcing the requisition rates, said:

“ The foregoing rates will become operative on October 15, 1911. The vessels embraced in the requisition, except in so far as actually required for Government service, will he left in the hands of the present owners to be operated for Government account, but subject at all times to such ■dispositions as the board may direct.

“ A certain number of the requisitioned vessels, which are required for the continuing and exclusive service of the Navy and Army, will be taken over on a bare-ship basis. The rate of hire on this basis has been fixed by the board at $4.15 per dead-weight ton for cargo boats, and $5.15 per *915ton gross for passenger steamers of 11 knots speed, with an additional allowance of 50 cents per ton for each knot in .excess of 11 and up to 18 knots.

“ All the foregoing rates are tentative. The board will carefully examine the results of operation under the requisition rates and from the results, as certified by expert examiners, will determine upon such revision as fair and equitable treatment of the owners of the requisitioned vessels may require. Eevisions will be made, if reasons therefor .are found to exist, at intervals of not more than 90 days.

“ As to insurance, the Government will assume the war risk, and, in some instances, the marine risk as well. In cases, in which for any reason it is more convenient for the Government to assume the marine risk, the usual rate for such insurance will be deducted from the charter hire.”

The rate finally determined on by the Shipping Board, $4.15, was accepted substantially by 100 per cent of cargo owners, owners of cargo vessels, arid by a very large percentage of the owners of tankers or tank vessels, both with respect to tonnage and vessels and numbers of owners; bur, some did not accept it.

IX. The three vessels of the plaintiff, Astral, *Acme,*and *Boyal Arrow*were of the class of vessels subject to such requisition notice, and the United States Shipping Board took control of such vessels thereunder; but after October 12, 1917, there was no actual or physical taking of said three vessels by the defendant for public use or otherwise, nor any surrender of possession thereof by plaintiff to the Government or to any government agency during the requisition period. Said ships continued, after the date of said requisition notice or order, as theretofore, in their trans-Pacific voyages, carrying on their outward voyages from the United States products of the Standard Oil Company of New York and on their return voyages to the United States cargoes of -coconut oil and other freight obtained by plaintiff and -carried for private shippers under contracts made with plaintiff or the Standard Oil Company by said shippers; except that the *Astral*on its return voyage after the requisition period hereinafter described as No. 2, and the *Boyal Arrow*on its return voyage after the requisition period hereinafter described as No. 1 carried for private shippers freight *916allocated to said ships by the Governor General of the Philippine Islands in pursuance of the direction of the United. States Shipping Board, but at no greater profit than would, have accrued to plaintiff in carrying cargoes which it had previously contracted to carry and which were awaiting transport, and also except that by order of' said United States Shipping Board said ship Acme, on the completion of its return voyage across the Pacific, No. 3, by direction of ’ the United States Shipping Board, was brought via the-Panama Canal to the Atlantic Ocean, and on said voyage hereinafter described as Voyage No. 4, carried a cargo of " gasoline belonging to the Standard Oil Company of New York from the Pacific coast to its refineries at Providence,. Rhode Island.

During all of this period plaintiff operated said vessels by its own officers and crews in its employ theretofore and continuing therein and paid all salaries and wages of said: officers and crews, and all expenses for repairs, fuel and sup- • plies of every kind and all operating expenses of every nature. Neither defendant nor said United States Shipping • Board nor any other government agency ever made or de- - manded that there be made any valuation or inventory of " any of said ships or of any of the supplies thereon or taken thereon in the operation thereof, either at the beginning of' any of said voyages, of at the end thereof, for insurance purposes or otherwise. No demand was made for the freights collected on said return voyages by plaintiff, on the part of" the United States Shipping Board, nor has any such demand'! been made, nor any such freight collected by it, except on Voyage No. 4 of the *Acme*and on Return Voyage No. 2 of the-*Astral*and No. 1 of the *Boyal Arrow.*No reports were made by plaintiff to the United States Shipping Board or other • governmental agency of the receipts and expenses of said voyages, nor were such reports demanded from plaintiff until after said ships had been released from requisition, and they were then made under protest.

X. The terms and conditions upon which said three vessels were operated during the requisition period are set-. *917forth in full in the agreement of August 22, 1918, and the •bareboat form of charter, which agreement and charter are . attached to the amended petition as Exhibits B-l, B-2, and C, and are made a part hereof by reference. None of said -.vessels was of a speed in excess of eleven knots per hour.

With such charter parties, printed notice was sent to the -plaintiff which defined the application of certain provisions of the charter and read, *inter*alia, as follows:

“ It dispenses with an accounting as to the tankers engaged in the usual previous service of the owner other ..than trans-Atlantic service, when carrying cargoes exclu,-sively owned by the owner or a company affiliated with it • under common control. It also makes an accounting unnecessary as to tankers when engaged in the carriage of ■ cargoes owned by any other tanker owner or a company affiliated with it under common control in the usual previous service customarily maintained by such owner, provided the rates charged and differentials allowed do not yield a greater return to the owner on any voyage than that produced by the requisition rates from time to time established by the board. If the owner does secure a greater return on any such voyage than that produced by the requisition rates, an accounting will be required. As to all trans- . Atlantic voyages, and as to all other voyages or parts of voyages which do not form a part of the usual previous service customarily maintained by any tanker owner, prior to the requisition, for the carriage of proprietary products, . an accounting will be had under the bareboat form of • charter. Thus an accounting will be required for all voyages made from Californian ports to the Atlantic coast ports, • even though cargoes of the owner are carried, since such voyages are not considered within the usual previous service customarily maintained by any tanker owner for the • carriage of proprietary products. An accounting will likewise be required for the return voyage from the Orient, even though the return cargoes should be purchased at the port ■ of shipment by the owner, since such cargoes were not carried as proprietary cargoes in the usual previous service of the owner. As there has been some question regarding the attitude taken by the board with reference to such voyages, specific mention is made of these cases in order that there ■.may be no misunderstanding as to the board’s intention ■under the agreement.”

*918XI. The voyages made by said vessels after the date of requisition were as follows:

“ Acme ”

*First voyage.*— On the outward voyage the vessel carried a cargo of refined petroleum for account of the Standard Oil Company of New York from San Francisco to Japan,, the voyage lasting from October 14, 1917, at 4 p. m. to November 16, 1917, at 4 p. m., and returned in ballast,, reaching San Francisco on December 6, 1917, at 9.20 p. m.,. the time of the outward voyage being 1 month and 2 days, and that of the homeward voyage being 20 days, 5 hours, and 20 minutes.

*Second voyage.*— On the outward voyage the vessel carried a cargo of refined petroleum for the Standard Oil Company of New York from San Francisco to Japan, China,, and the Philippine Islands. On the return voyage the vessel carried a cargo of coconut oil for the Yisayan Refining Company and the Philippine Vegetable Oil Company, consisting of 8,495.22 tons, at a freight rate of $40' per ton, amounting to $339,808.80, which was paid to the plaintiff. This voyage was under a charter party between the plaintiff and the Yisayan Refining Company. No-authorization or approval by any United States authority is shown. The expense of said homeward voyage amounted to $24,579.48, which was paid by the plaintiff. The time of the outward voyage was from December 7, 1917, at 4.40 p. m., to January 21, 1918, at 7.40 a. m., a period of 44 days, 15 hours. The homeward voyage began on January 21, 1918, at 7.40 a. m., and the time of the voyage as agreed upon by the parties was 1 month, 16 days, 14 hours, and 32 minutes.

*Third voyage.*— On the outward voyage the vessel carried a cargo of refined petroleum for account of the Standard Oil Company of New York from San Francisco to Chin Kiang, China. On the return voyage the vessel carried a cargo of coconut oil for the Visayan Refining Company,, consisting of 8,972.32 tons, at a freight rate of $40 per ton, amounting to $358,892.80, which was paid to the plaintiff. This voyage was under a charter party between the plaintiff and the Visayan Refining Company which was approved *919by the United States Shipping Board. The expenses of said homeward voyage amounted to $39,100.58, which was. paid by the plaintiff. Time of outward voyage from March. 7, 1918, at noon, to April 11, 1918, at 2.40 a. m., a period of 34 days, 14 hours, and 40 minutes, and the homeward voyage-was from April 11, 1918, at 2.45 a. m. to June 1, 1918, at. 6.30 p. m., a period of 1 month, 20 days, 15 hours, and 45-minutes.

*Fourth voyage.*— On May 29, 1918, the Shipping Control Committee of the United States Shipping Board sent the-, following letter to the Standard Oil Company of New York:

The Shipping Control Committee,

*./¡£*Broadway, *New York, May 29, 1918.*Standard Oil Co. oe N. Y.,

*26 Broadwosy, New York City.*

“ *Acme.”*

Gentlemen: We beg to confirm verbal instruction that: the steamer now at San Francisco will'when annual inspection is completed be brought to the Atlantic seaboard, and we approve of arrangements made by the petroleum war-service committee for the steamer to bring to New York a. cargo of gasoline. It is understanding that you will purchase this cargo and bring it to New York for your own account, and we have so advised the Shipping Board.

Yours very truly,

The Shipping Control Committee, (Sgd.) W. II. Walker,

*Tank Steamer Executive.*

On the following day the United States Shipping Board' sent the following cablegram to the Standard Oil Company of New York:

To: Standard Oil Co. of New York, New York.

Subject to correction- — -Telegram.

Without prejudice to any prior requisition order you are hereby notified that the possession of the S. S. *Acme*is; hereby requisitioned for national purposes connected with the war for such time as the board may determine. You "are-kindly requested to operate the vessel as agent for the board, and for the board’s account and account to the board for all. freight charter hire/of/[or ?] other moneys arising from the operation and management of the vessel. The board. *920will assume all war and marine risk, and no insurance should be placed for its account except the war-risk insurance required by law under master officers and crew and the usual protective and indemnity insurance. Please notify the board at once of exact time and place of vessel’s readiness for delivery under this order and communicate with Mr. Walker, of the shipping control committee, New York, respecting the operation and disposition of vessel and cargoes to be carried. Please acknowledge.

United States Shipping Board.

Thereafter the following correspondence took place by letter and telegram:

(Western union telegram)

Washington, D. C., *May*SO, *1918.*Standard Oil Co. op New York,

*£6*Broadway, *New Yorh:*

If you prefer to operate S. S. *Acme*under the regular time form requisition charter, this will be agreeable to the board.

United States Shipping Board.

330P

The Shipping Control Committee, *i5*Broadway, *New*Yorh, *May*31, *1918.*Standard Oil Co. oe N. Y.,

*£6 Broadway, Neto Yorh City.*

“ *Acme.”*

(Attention of Mr. Ali.)

Gentlemen: We are advised by telegram that the *“Acme”*will be ready to-morrow (Saturday) to proceed from San Francisco. Please immediately instruct her to proceed when ready to San Pedro to load a cargo of gasoline for New York.

It is requested that you advise us that these instructions are being transmitted.

Yours very truly,

The Shipping Control Committee, W. H. A. Walker,

*Tank Steamer Executive.*

WHAW/JTC

*921June 1st, 1918.

Shipping Control Committee,

*JjB*Broadway, *New York Oity.*

S/S *Acme.*

Attention of Mr. W. H. A. Walker.

Gentlemen: Eeferring to your letter of May 31st and our conversation of to-day, we enclose for your information and record copy of telegram to our agent at San Francisco, as well as copy of telegram to the United States Shipping Board, at Washington, both in connection with the American S/S “ Acme.”

Yours very truly,

Standard Oil Company oe New York,

Marine Department.

WES/B

(Western union Telegram)

New York, *May*31st, *1918.*

Mr. J. C. Eohles,

*WO Bush*Street, *San*Francisco, *Gal.:*

*Acme*when ready is to proceed to San Pedro to load for New York the cargo gasoline purchased by Standard Oil Company of New York. Please acknowledge this telegram and keep us advised of ship’s movements.

E. C. Veit.

(Western Union Telegram)

June 1, 1918.

United States Shipping Board,

Washington, *D. 0.:*

Telegram even date received. *Acme*is now in San Francisco. On her return voyage from the East she brought back a cargo of cocoanut oil from the Philippines. To-bring this cocoanut oil the owner of the oil equipped her with necessary heater coils. As these coils are the property of the Visayan Eefining Company of the Philippines they are now being removed so that she can be loaded with gasoline at San Pedro. This work is proceeding with all possible dispatch. As soon as finished she will proceed to San Pedro to load a cargo of gasoline provided by this company. It was our understanding that we were to be allowed to bring this cargo of oil to the Atlantic coast be*922fore the boat was taken over by the United States Shipping Board. With this in view, we had provided the cargo and would prefer that we be allowed to carry out the original plan. We have communicated, as you requested, with Walker, who understands all the details of the situation, and have notified our captain at San Francisco to proceed as soon as possible to San Pedro to-take -on the cargo of gasoline purchased by this company for -delivery at New York.

Standard Oil Company op New York.

-S. S. *“Acme.”*

June 1st, 1918.

Mr. W. H. A. Walker,

*45*Broadway, *New York Gity.*

Dear Mr. Walker: As requested by you, at a meeting yesterday of the subcommitee on transportation, the question was discussed as to who should purchase the cargo of .naphtha to be transported by the S. S. *Acme*from California to Atlantic coast ports. According to the California refiners, the only cargo that they can get ready for shipment -by this tanker is a full cargo of domestic motor gasoline, the quality of which would not meet the U. S. Navy specifications, and on its arrival here would have to be used in the domestic market or else rerun in order to make it .suitable for export.

The Standard Oil Company (New York) are the owners -of the tanker, and their representatives stated to the com.-mittee yesterday that they had purchased this cargo from the California shippers to be consigned to themselves here in New York for their own domestic business. In view -of the fact that they are the owners of the boat, it is the -opinion of this committee that the transaction should be carried out in the manner indicated above; that is, that the boat and cargo should come around to this coast as a Standard Oil Company of New York transaction, or in the alternative that the rate of freight to be paid by the Standard Oil Company of New York should precisely balance the hire to be paid by the Shipping Board to the Standard Oil •Company of New York if the boat is to be taken by the -Shipping Board at San Francisco.

Yours truly,

[In pencil:] W. C. T.

*923(Commercial Cables telegram)

Washn., D. C., *June /*— 18.

Standard Oil Co., op New Yoee,

*£6 Broadway, New Yorlc.*

Steamship Acme : Board must require cargo carried from Pacific to Atlantic to be for the account of the board, under the requisition, freight to be hereafter fixed by Shipping Board. Kindly advise whether you will operate under the time form or bareboat form of requisition charter. Board prefers time form. Presume you understand that under the requisition agreement the cargo of cocoanut oil carried from the Philippines was also for the account of the board.

Carry, *Director Operation.*

(Stamped: Postal Telegraph-Cable Co., June 5, 1918j 16 Beaver St., N. Y.)

(western union telegram)

June 6th, 1918.

E. F. Carry,

*Director of Operations, U. S. Shipping Board,*

*Washington, D. O.:*

In obedience to your telegram of June fourth re “ *Acme,'”*in which you state board must require cargo to be for the account of the board, the Standard Oil Company of New York have released all claims on the cargo to the original purchaser, Mr. James Moffett, junior, secretary of the National Petroleum War Service Committee, so that it may be acquired by the board, and brought around to the Atlantic for the board. We will operate the boat under the new bareboat form of charter. We have done everything possible to hasten the despatch of the boat, and our latest advices are that she is expected to be loaded and ready to proceed for New York to-morrow.

Standard Oil Company op New York.

Division op Operations,

United States Shipping Board, Emergency Fleet Corporation,

*Washington, June 7, 1918.*Standard Oil Company op New York,

*£6 Broadway, New- Yorlc Oity,*

S/S *Acme.*

Dear Sirs: Your telegram of last eveniug received, but we are at a loss to understand its meaning. There has apparently been an error made in the transmission of the mes*924sage of June 4th sent to you by Mr. Cohen, as there never' was any idea of the Shipping Board purchasing- the cargo-of gasoline, which is to be brought around from the Pacific-in the above steamer.

The telegram sent you stated that the Shipping Board-would require an accounting covering the voyage in question, but the message has evidently been bulled, in some-manner.

We asked Mr. W. H. A. Walker to take this matter up> with you in New York and explain the situation fully.

Yery truly yours Division of Operations,.

(Sgd.) By E. C. Butler,.

ECB: FMcC

June 2'5, 1918,.

*Acme.*

Standard Oil Company,

*%6*Broadway, *New York City.*

Gentlemen: We confirm arrangement whereby this'steamer is to deliver a cargo of gasoline from San Pedro to ■ NeAV York at a freight rate of 3 cents per gallon.

It is understood that the Standard Oil Company are to reimburse the Shipping Board for premium on war risk on cargo, said premium not to exceed the rate of one-fourth of one per cent. It is understood that the steamer is on bare-boat basis. In making rate of 3 cents per gallon it is understood that the Standard Oil Company accepts the- bareboat, rate as just compensation.

Very truly yours,

Tank Steamer Department,

*Division of Operations...*

ECB/EBB

S. S. *Acme.*

Standard Transportation Company,

*%6*Broadway, *New YorJe*City, *June £'6, 1918'.-*Mr. E. C. Butler,

*Tank Steamer*Division,

*U. S. Shipping*Board, ’Washington, ZL. *C.*

Dear Sir : Answering your favor, of June 25th, also your • telegram and our reply of even date.

If we had made regular charter with you for this vessel,., we would ordinarily have insisted on a charter from San-Francisco to any United States port north of Hatteras, which would have no doubt been acceptable.

We find, on the close arrival of the vessel, that she will' be seriously delayed in discharging at this port, owing to the.* *925< character of the naphtha she is carrying, which must be used for domestic trade purposes, and it would take us at least -a week to discharge this vessel at New York. As we are ready to promptly discharge her at Providence, it is our ■thought that you would let the vessel proceed to Providence and discharge there without any increase in rate of freight, •.as, after all, the vessel would receive better dispatch, and 'be sooner able to go into the trade on this coast.

Will you not kindly review your demand for % cent -extra freight on this steamer, which we think, under all the circumstances, you will feel is not justified, assuring you that the vessel will get better dispatch and be more promptly released for other work in making the delivery to Providence rather than to New York. We agree to the delivery at Providence when discharged of her cargo, in which event we .think the Shipping Board will save certainly four days’ •charter hire on the vessel.

Yours very truly,

Standard Transportation Company, GDA/B Geo. D. Aii, *Director.*

Said voyage proceeded from San Pedro, Calif., to Providence, It. I., on which voyage said vessel carried a cargo ■consisting of 3,070,433 gallons of gasoline belonging to the Standard Oil Company of New York, at a freight rate of .3% cents per gallon, amounting to $107,465.16, which was paid to the United States Shipping Board, and 1,497 cases of ■oil which was shipped by the Standard Oil Company of California, consigned to the order of C. A. Eames, the agent

• of the Anglo-American Oil Company at Providence, B. L, the freight upon which amounted to $2,225.65, which was paid to the United States Shipping Board, making a total - of $109,690.81 freight upon said voyage paid to the United

States Shipping Board. The expenses of such voyage .amounted to $30,865.40, which was paid by the plaintiff. The time of the voyage was from June 1, 1918, at 6.30 p. m.

• to June 30, 1918, at noon, a period of 28 days, 21 hours, and 30 minutes. At the termination of said voyage said vessel

'was released from requisition.

“ Astral ”

*First voyage.*— On the outward voyage the vessel carried ;a cargo of refined petroleum for account of the Standard *926Oil Company of New York from San Francisco to China and Japan. On the return voyage the vessel carried a general cargo consisting of rice for various shippers, none of whom were affiliated or under common control with the plaintiff, the freight upon which amounted to $174,013.80, which return cargo had been arranged for by the Standard Oil Company of New York, and which freight was paid to the plaintiff. Cargo was carried on bills of lading executed by the agent of the Standard Oil Company of New York and no written approval of the voyage by United States authorities is shown. The expense of said return voyage amounted to $33,536.54, which was paid by the plaintiff. The time of the outward voyage was from October 16, 1917, at 2.15 o’clock p. m., to November 21, 1917, at 7.15 o’clock a. m., a period of 1 month, 4 days, and 17 hours; and the return voyage was from November 21, 1917, at 7.15 a. m., to December 28, 1917, at 12.30 p. m., a period of 1 month, 7 days,. 5 hours, and 15 minutes.

*Second voyage.*— On the outward voyage the vessel carried a cargo of refined petroleum for account of the Standard Oil Company of New York from San Francisco to China. On the return voyage the vessel carried a cargo consisting of 10,418.55 tons of sugar and copra shipped by various shippers, the freight upon which amounted to $456,759.04, which return cargo at the instance of the United States Food Administration had been allocated by the Governor General of the Philippine Islands among various shippers who were-unable to obtain transportation for their food products to-the United States. No charter party was executed for this return voyage, but plaintiff issued original bills of lading in its name as carrier and as owner of .the vessel to various shippers and the freight moneys were paid to plaintiff’s agents, at San Francisco. While loading was in progress, the United States Shipping Board demanded that plaintiff’s agents pay over such freight moneys to it, and therefore, over plaintiff’s: protest, the Shipping Board required and compelled plaintiff’s agents at San Francisco to pay such freight to it. The-expense of said return voyage amounted to $39,850.62, which, was paid by the plaintiff. In preparing for .the outward. *927voyage the vessel was delayed in sailing by the Shipping-Board for a period of 8 days, 2 hours, and 45 minutes. The actual sailing time of said outward voyage was from December 28, at 12.30 p. m., to February 10, 1918, at 1.30 a. m., a period of 1 month, 12 days, and 13 hours. The time of the return voyage was from February 10, 1918, at 1.30 o’clock a. m., to April 8,1918, at 6 o’clock a. m., a period of 1 month, 26 days, 4 hours, and 30 minutes, but by reason of said delay in sailing caused by the Shipping Board, the total time of the return voyage agreed between the parties was 2 months,. 4 days, 7 hours, and 15 minutes.

*Third, voyage.*— On the outward voyage the vessel carried a cargo of refined petroleum for account of the Standard Oil Company of New York from San Francisco to north China ports. On their return voyage the vessel carried a cargo consisting of 10,767.82 tons of bean oil for Mitsui & Company, at a freight rate of $40 per ton, amounting to $430,-712.80, which cargo was arranged by the plaintiff, to which said amount of freight was paid, but was carried under a charter party executed by the Standard Oil Company of New York, “time chartered owner,” and Mitsui & Co., and approved by the United States Shipping Board. -The expense of said return voyage amounted to $42,806.90, which was paid by plaintiff. The time of the outward voyage was from April 8, 1918, at 6 o’clock a. m., to May 14, 1918, at 9.30 o’clock a. m., a period of 1 month, 6 days, 3 hours, 30 minutes, and the time of the return voyage was from May 14, 1918, at 9.30 a. m., to July 5,1918, at 2 o’clock p. m., a period of 1 month, 22 days, 4 hours, 30 minutes.

*Fourth voyage.*— On the outward voyage the vessel carried a cargo of petroleum for account of Standard Oil Company of New York from San Francisco to China. On the return voyage the vessel carried a cargo of coconut oil for the Visa-yan Refining Company under a written charter party entered into between the Standard Oil Company of New York, as the chartered owner of the vessel, and said Yisayan Refining Company, dated April 4, 1918, and approved by the' United States Shipping Board, said cargo consisting of 10,-946.92 tons at a freight rate of $40 per ton, amounting to *928$437,876.80, which was paid to the plaintiff. The expense of .said return voyage, amounting to $42,725.31, was paid by the plaintiff. The time of the outward voyage was from July 5,1918, at 2 p. m., to August 9,1918, at 9 a. m., a period of 1 month, 3 days, 19 hours and the return voyage from August 9, 1918, at 9 a. m., to October 1, 1918, at 7 p. m., a period of 1 month, 23 days, and 10 hours.

*Fifth voyage.*— On the outward voyage the vessel carried a cargo of refined petroleum for account of the Standard Oil Company of New York. On the return voyage the vessel carried a cargo of coconut oil for the Visayan Befining Company under a written charter party entered into between the Standard Oil Company of New York, as the chartered owner of the vessel, and said Visayan Befining Company, dated October 7, 1918, and approved by the United States Shipping Board, said cargo, consisting of 12,096.49 tons, at a freight rate of $60 per ton, and 700 barrels, which totaled 158.97 tons of coconut oil, the freight upon which was $30 per ton, the total freight amounting to $730,558.50, which was paid to the plaintiff. The expense of said return voyage, amounting to $57,263.40, was paid by the plaintiff. The time of the outward voyage was from October 1, 1918, at 7 o’clock p. m., to November 3, 1918, at 4.30 a. m., a period of 1 month, 1 day, 9 hours, and 30 minutes. 'The time of the return voyage was from November 3, 1918, at 4.30 a. m., to December 21, 1918, at 2 o’clock p. m., a period of 1 month, 18 days, 9 hours, and 30 minutes. Upon-the return of the vessel on this voyage the vessel was released from requisition.

“ Botad Arrow ”

*First voyage.*— On the outward voyage the vessel carried a cargo of refined petroleum, for account of the Standard •Oil Company of New York, from San Francisco to China. On the return voyage the vessel carried a cargo of sugar and ■copra from the Philippine Islands to San Francisco for various private shippers to whom shipments were allocated ■by the Governor General of the Philippine Islands. No «charter party was executed for this return voyage, but plain*929tiff issued original bills of lading in its name as carrier and as owner of the vessel to various shippers and the freight moneys were paid to plaintiff’s agents at San Francisco. While loading was in progress, the United States Shipping Board demanded that plaintiff’s agents pay over such freight moneys to it and therefore, over plaintiff’s protest, the Shipping Board required and. compelled plaintiff’s agents at San Francisco to pay such freight to it. Said cargo consisted of 11,068,635 tons, on which the freight was $549,490.80, which has been retained by the Shipping Board. The expenses of the voyage amounted to $46,170.48 and were paid by the plaintiff. The time of the outward voyage was from December 30,1917, at 1.30 p. m., to February 12, 1918, at noon, a period of 1 month, 12 days, 22 hours, and 30 minutes, and the return voyage was from February 12, 1918, at noon, to April 30, 1918, at 1 a. m., being a period of 2 months, 15 days, and 13 hours.

*Second voyage.*— On the outward voyage the vessel carried a cargo of refined petroleum, for the account of the Standard Oil Company of New York, from San Francisco to China. On the return voyage the vessel carried a cargo consisting of 11,436,439 tons of coconut oil for the Visayan Refining Company under a written charter party entered into between the plaintiff and said company, dated March 7,1918, and approved by the United States Shipping Board, at a freight rate of $40 per ton, making a total of $457,-457.56, which was paid to the plaintiff. The expenses of said return voyage amounted to $46,959.14, which were paid by the plaintiff. The time of the outward voyage was from April 30, 1918, at 1 a. m., to June 25, 1918, at 7 a. m., being a period of 1 month, 26 days, and 6 hours, and the return voyage was from June 25, 1918, at 7 a. m., to August 12, 1918, at 11 a. m., a period of 1 month, 17 days, and 4 hours, of which 1 day, 22 hours, and 23 minutes were disallowed by the Shipping Board auditor for time consumed in unloading case oil which was carried from Hongkong to Manila for the Standard Oil Company of New York, making the time of said homeward voyage! 1 month, 15 days, 5 hours, and 37 minutes.

*930*Third 'voyage-.*— On the outward voyage the vessel carried a cargo of refined petroleum, for account of the Standard Oil Company of New York, from San Francisco to China. On the return voyage the vessel carried a cargo of coconut oil for the Yisayan Refining Company under a charter party dated April 4, 1918, entered into between the Standard Oil Company of New York as chartered owner and said Yisa-yan Refining Company covering three voyages but approved by the United States Shipping Board for this, the first thereof, said cargo amounting to 11,501.74 tons, at a freight rate of $40 per ton, amounting to $460,069.60, which was paid to the plaintiff. The expense of said return voyage amounted to $45,922.79, which was paid by the plaintiff. The time of the outward voyage was from August 12, 1918, at 11 a. m., to September 16, 1918, at 8.30 a. m., a period of 1 month, 3 days, 21 hours, and 30 minutes, and the return voyage was from September 16, 1918, at 8.30 a. m., to November 3, 1918, at 2 a. m., a period of 1 month, 16 days, 17 hours, and 30 minutes.

*Fourth voyage.*— On the outward voyage the vessel carried refined petroleum, for account of the Standard Oil Company of New York, from San Francisco to China. On the return voyage the vessel carried a cargo of coconut oil for the Yisayan Refining Company under a charter party dated April 4, 1918, entered into between the Standard Oil Company of New York as chartered owner and said Visa-yan Refining Company covering three voyages, of which this was the second, said cargo consisting of 13,061.44 tons, at a freight rate of $60 per ton fixed by the Shipping Board, amounting to $783,686.40, which was paid to the plaintiff. The expenses of said return voyage amounted to $55,957.19, which was paid by the plaintiff. The time of the outward voyage was from November 3, 1918, at 2 a. m., to December 14, 1918, at 9.15 a. m., a period of 1 month, 11 days, 7 hours, and 15 minutes, and the return voyage was from December 14, 1918, at 9.15 a. m., to February 5, 1919, at 5.15 p. m., a period of 1 month, 22 days, and 8 hours. After said voyage the vessel ivas released from requisition.

*931XII. It was stipulated that the evidence taken in the case of *Gulf Refining Go.*v. *United*States, 58 C. Cls. 559, should be used in this case so far as the sabre was pertinent. The rate fixed by the United States Shipping Board was $4.15 per dead-weight ton per month on a bareboat basis.

Prior to October 12, 1917, the plaintiff employed the tanker *Astral*in carrying cargoes for the Standard Oil Company of New York trans-Paeific with the vessel returning in ballast, such cargoes being carried upon a freight-rate basis which produced hire less than the Government rates.

During the year 1918, the steamship *Acme*was chartered by the plaintiff to the Standard Oil Company of New York at an agreed rate of $5.25 per dead-weight ton per month,, time form.

During the year 1918 the steamship *Astral*was charterect by the plaintiff to the Standard Oil Company of New York. at an agreed rate of $5.25 per dead-weight ton per month,, time form, for the said year.

During the period the steamship *Royal Arrow*was under requisition such vessel was chartered to the Standard Oil Company of New York at the rate of $5.25 per dead-weight ton per month.

A reasonable rate of hire for the use of said vessels during the period of said return voyages is $6.60 per deadweight ton per month on a bareboat basis, and would amount to the following:

*Acme,*4 months, 6 days, 3 hours, 47 minutes, at $6.60_ $273, 661.18

*Astral,*8 months, 15 days, 12 hours, 30 minutes, at

$6.60- 685,817.91

*Royal Arrow,*7 months, 9 days, 20 hours, 7 minutes, at

$6.60- 611. 809.69

Total- 1,571, 288. 78

The account between the plaintiff and the United States is as follows:

DEBITS

Earnings of the *Acme, Astral*and *Royal Arrow.*$5,289, 017.71.

*932CREDITS

Hire of said vessels wliile lield in requisition on the basis of $6.60 per deadweight ton_$1, 571, 288. 78

Operating expenses disbursed by plaintiff _._ 505,737. 83

Overpaid by plaintiff for construction of *Sylvan*and *Broad Arrow*(see Binding XV)_ 61.588.67

Hire and difference in inventory of supplies of the *Sylvan Arrow (see Finding*XVI)_ 192,041.40

Hire and difference in inventory of the

*Broad Arrow*(see Finding XVII)_ 604,707.95

Operating fee_1_ 15,172. 00

Earnings of the *Acme, Astral*and *Royal Arroio*paid to the Shipping Board_ 1,115, 940. 65

4, 066, 477.28

1,222, 540.43

XIII. The rates charged by plaintiff for transporting freight trans-Pacific on the two return voyages of the *Royal Arrow*in 1917 and before the requisition period were $40 per ton for coconut oil and liquid products in bullí and $50 per ton for copra, rice, and general cargo and were not in excess of the then prevailing rates for such transportation. These or higher rates continued in 1918 and during the requisition period. A rate of $40 per ton for coconut oil was provided in charter parties approved by the United States Shipping Board but in August, 1918, plaintiff was informed for the first time that the Shipping Board rate was $60 per ton, which rate was to be charged on all such cargoes unless special authority was given by the Shipping Board for a lesser rate.

During the requisition period and for a considerable time prior thereto, there were no tankers operating trans-Pacific except the tankers of plaintiff, the Acme, Astral, *Royal*Arrow, and *Standard, Arrow.*The *Standard Arrow*had been requisitioned before October 12, 1917, and taken from the business of plaintiff and from the Pacific Ocean trade, leaving only plaintiff’s three tankers operating there trans*933Pacific, the Acme, *Astral,*and *Royal Arrow*on and after October 12, 1917, and during the requisition period. There were no tankers available for hire-for trans-Pacific business at any time during the requisition period which plaintiff could have procured, chartered, or hired to take the place of these tankers in its trans-Pacific business, or to carry the cargoes carried and intended to be carried on the return voyages of these tankers.

XIY. On July 9,1915, the plaintiff entered into a written contract with the New York Shipbuilding Company, a corporation organized under the laws of the State of New Jersey, whereby said shipbuilding company was to construct for the plaintiff two tank steamships, each to have a tonnage capacity of about 12,600 tons dead weight, for the price of $875,000 each; one, afterwards known as the *Sylvan Arrow*or hull 174, to be completed and delivered to the plaintiff on or before June 17, 1917, and the other, after-wards known as the *Broad*Arrow, or hull 175, to be completed and delivered to the plaintiff on or before December 17, 1917. It was therein specifically provided that the ownership of said steamers, materials, fittings, etc., should vest in the plaintiff to the extent of the payments made. Said contract is set out in full as Exhibit D to the plaintiff’s amended petition and is made part of this finding by reference thereto.

On December 12, 1916, the New York Shipbuilding Company transferred to the New York Shipbuilding Corporation, a corporation organized and existing under the laws of the State of New York, all of its assets and property, and said New York Shipbuilding Corporation contracted to “ assume and agree to perform all the contracts and obligations of the New York Shipbuilding Company,” including the contracts for the two ships of the plaintiff above described as hulls *174*and *175.*

Under the provisions of the act of Congress known as the urgent deficiency appropriation act for the Army and Navy, approved June 15, 1917 (40 Stat. 182), subheading “ Emergency Shipping Fund,” and by virtue of the Executive order of the President of the United States dated July 11, 1917, *934the United States Shipping Board Emergency Fleet Corporation on August 3, 1917, requisitioned said ships, or hulls 17and *175,*under construction, as aforesaid, and the materials, machinery, and equipment necessary for their completion, and in the order of requisition notified said New York Shipbuilding Corporation that it was required to complete the construction of said ships.

Thereafter the following correspondence, took place:

United States Shipping Board Emergency Fleet Corporation,

*’Washington, August 18, 1917.*Standard Transportation Co.,

*26 Broadway, New Yorh City.*

Dear Sirs : On August 3, 1917, the United States Emergency Fleet Corporation issued to the New York Shipbuilding Company the notice of requisition set forth in enclosed marked (a).

In response to this communication, New York Shipbuilding Company, the shipbuilders, informed us that you, as owners, or representatives of owners, had entered into a contract with them for the vessels listed below:

The corporation’s district officer having charge of vessels in the district in which the shipbuilders are located has been instructed to take charge, for the corporation, of the completion of vessels now under construction, and has been authorized temporarily to take over your local inspecting officers at their present compensation. Will you please inform the district officer, Mr. G. B.. McDermott, at room 302, 1319 F Street NW., Washington, D. C., the names of your representatives and their compensation, sending a duplicate to this office. Your cooperation with the corporation is invited.

The corporation will consider payments to the contractor accruing since the date of requisition, upon the receipt of proper vouchers and adequate information to be forwarded through its district officers.

*935You are requested, as soon as possible, to report to the corporation a statement in detail of the payments already made by you on each ship named above prior to the date of the requisitioning, August'3,1917. This statement should be accompanied by the original vouchers and receipts and should be verified under oath by the proper corporate officer of your company.

It is the present intention of the corporation to reimburse you promptly, so far as funds are available, for the payments heretofore made to the shipbuilder if, after investigation of data submitted by you, such payments are found in order and in conformity with the contract requirements.

At your further and early convenience you are requested to submit to the corporation a statement of such indirect expenditures as you have made on account of each vessel; for instance, the cost of superintendence, original design, interest on funds already paid, and the like. The matters mentioned will require careful audit, and in addition you may submit any other matters you deem pertinent.

It will be perceived that the corporation presumes it is addressing this letter to the owners, or responsible representatives of the owners, or persons entitled to receive compensation on account of the requisition of the vessels listed above. The corporation requests that there be included in your response to this letter all evidence of ownership which is necessary to establish the right of those who are entitled to receive the compensation provided by law.

The consummation of the orders herein and heretofore transmitted will be made the subject of later appropriate corporate action.

Yery truly yours,

(Sgd.) W. L. Carps,

*General Manager.*

Inclosure (1)

United States Shipping Board,

Emergency Fleet Corporation,

Washington, *August 18,1917.*

Inclosure *“*A.”

To: Standard Transportation Co.

Be: New York Shipbuilding Corporation.

By virtue of an act of Congress approved June 15, 1917, entitled “An act making appropriations for the Military and Naval Establishments on account of war expenses for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,” and by authority delegated to the United States Shipping Board Emergency Fleet *936Corporation under Executive order of the President, dated July 11, 1917, all power-driven cargo-carrying and passenger ships above 2,500 tons d. w. capacity under construction in your yards, and certain materials, machinery, equipment, outfit, and commitments for materials, machinery, equipment, and outfit necessary for their completion are hereby requisitioned by the United States.

On behalf of the United States, by virtue of said act and said order, you are hereby required to complete the construction of said requisitioned ships under construction and will prosecute such work with all practicable dispatch.

The compensation to be paid will be determined hereafter and will include ships, material, and contracts requisitioned.

You will furnish immediately general plans and detail specifications of the ships requisitioned, and copies of contracts and all supplemental agreements in relation thereto, and full particulars as to owner, date of completion, payments made to date, amounts still due, and any other information necessary to a fair and just determination of the obligations of the Emergency Fleet Corporation in taking over these ships and contracts.

. You will report immediately whether any additional contracts are under consideration and their character and extent, and will not enter into any additional contracts or commitments with respect to merchant tonnage without express authority from this corporation.

(Signed) W. L. Capps,

*General Manager United States Shipping*Board,

*Emergency Fleet Corporation.*

August 27, 1917.

General Manager Unite» States Shipping Board Emergency Fleet Corporation,

*Washington, D. O.*

Sir : Referring to your communication of August 18th in the matter of the two tank steamers now building for us at the yards of the New York Shipbuilding Corporation, Camden, N. J., we beg to hand you herewith a statement giving the names of our local inspectors looking after the construction of said ships at the builders’ yards, with their present compensation.

We have sent a duplicate of this letter to the district officer, Mr. G. B. McDermott, at room 302, 1319 F Street, Washington, D. C., as requested.

We send the statement in order that the work on the vessels may not be delayed, but we desire to have it understood *937that it is to be without prejudice to any of our rights, and is not to be regarded as an acquiescence in the validity or legality of the board’s procedure or theory of compensation to be paid for the private property thus attempted to be taken.

Trusting that we may have the privilege of more fully replying to your favor of the 18th inst., and laying our views of the situation more fully before you in a subsequent communication, we are,

Respectfully,

Standard Transportation Company.

GDA-M.

Standard Transportation Co. inspectors at New York Shipbuilding Co., Camden, N. J.:

J. MacDowell, hull inspector, wages $325.00 per month.

O. Ryerson, hull inspector, wages $165.50 per month.

C. F. Holden, hull inspector, wages $200.00 per month.

S. Coates, engine inspector, wages $297.50 per month.

R. Lindal, engine inspector, wages $192.50 per month.

United States Shipping Board Emergency Fleet Corporation,

*Washington, August 29,1917.*Standard Transportation Company,

*26 Broadway, New Yorh, N. Y.*

In re: Requisitioned tank steamers.

Gentlemen : Referring to your letter of August 27, 1917, relative to two tank steamers building by the New York Shipbuilding Corporation, Camden, N. J., of which you were the former owners, and which have been requisitioned by the President for use of the United States, through this corporation, your statements regarding ownership are under consideration and action thereon will be taken at the proper time.

It is also noted that you contemplate replying more fully to the corporation’s letter of the 18th instant..

Yours very truly,

(Sgd.) F. T. Bowles, *Manager, Division of Construction.*

Thereafter, on October 12, 1917, the United States Shipping Board issued the requisition order and notice described in Finding YII hereof, and on September 27,1917, made the announcement of its rates as set forth in Finding VIII hereof.

*938On December 14, 1917, an agreement was entered into between the United States Shipping Board Emergency Fleet Corporation (therein called *“*Fleet Corporation ”), the New York Shipbuilding Corporation (therein called the “ Shipbuilding Corporation ”), and the American International Corporation, a corporation organized and existing under the laws of the State of New York (therein called “ International Corporation ”), a copy of which agreement is attached to the amended petition herein as Exhibit E and is hereby made a part hereof by reference. Said agreement recited that due to war conditions the contract prices for said hulls *174*and *175*had proved and would prove less than the cost of constructing said ships, and that “ the parties hereto desire to fix the just compensation to be paid to the Shipbuilding Corporation in accordance with the provisions of such urgent deficiency act, and to that end the Fleet Corporation is willing to increase such contract prices provided the former owners of said ships, respectively, or, if any owners decline, the International Corporation shall agree to accept retransfer to them, respectively, or to the International Corporation, as the case may be, of said ships; and upon completion and upon such transfer repay to the Fleet Corporation its investment as hereinafter set forth with respect to said ships, including extra costs of all sorts, and shall accept the charter rate prescribed by the United States Shipping Board, the other conditions and agreements to be executed, forms for which are hereto annexed and marked Exhibits A, B, and C. ” By said agreement the Shipbuilding Corporation agreed to complete said hulls *174*and *175*in accordance with the specifications annexed to the contracts under which said hulls were being constructed for the plaintiff prior to August 3, 1917; the Fleet Corporation agreed to pay to the Shipbuilding Corporation as just compensation for the completion of said hulls *174*and *175*the entire cost of construction of said ships, figured from the commencement by the Shipbuilding Corporation of the construction of said ships up to the times of the completion thereof, respectively, and in addition thereto, with respect to each ship, $10 per dead-weight ton for profit, the Fleet Corporation to be credited with all sums theretofore received *939by the Shipbuilding Corporation on account of the construction of said ships either from the plaintiff or the Fleet Corporation. Said agreement was entered into without the knowledge of the plaintiff, which was not a party thereto. The American International Corporation was a competitor of the plaintiff in the operation of ships and was the owner of a majority of the stock of the New York Shipbuilding Corporation. The plaintiff did not know of the existence of this agreement until after it had executed the four-party agreement hereinafter referred to and being Exhibit “ F ” to the petition.

Thereafter the following correspondence took place:

Division of Operations,

United States Shipping Board Emergency Fleet Corporation,

*December 17, 1917.*

The Standard Transportation Company,

*26 Broadway, New Yorlc, N. Y.*

Gentlemen: You were, on August 3, the owners of the steamship *Sylvan Arrow,**now under construction at New York Shipbuilding Company. Title to this ship was commandeered on August 3, by the Emergency Fleet Corporation as a part of its program for speeding up the construction of ships. The ship is now approaching completion and will be ready for delivery on or about December 24th.

The Shipping Board has adopted the policy of returning to American owners vessels which were commandeered on August 3d under an agreement by which the use of the vessel is turned over to the Shipping Board at the requisition rate for the period of the war and six months thereafter. A form of agreement covering this transfer of title is attached hereto. Please advise us whether or not you wish to execute this agreement.

This offer is on the understanding that the requisition charter will be signed covering your entire fleet.

This offer is made with the reservation that all questions between you and the construction division of the Fleet Corporation relating to payments, construction, or equipment,, have been or will be adjusted to the satisfaction of the corporation.

Yours very truly,

E. F. Carry, *Director of Operations.*

*940December 21, 1917.

Standard Transportation Company,

*£6*Broadway, *New Yorh City.*

Gentlemen: New York Shipbuilding Corporation has made an arrangement with the Emergency Fleet Corporation covering hulls *Nos. 174*and *175,*for tankers, which the Shipbuilding Corporation was constructing on August 3, 1917, under its contract with you, and which ships were requisitioned on that date by the Fleet Corporation.

Under the arrangement we are to complete such ships for the Fleet Corporation. The arrangement also provides an opportunity for you to obtain a retransfer of the ships upon their completion, pursuant to an agreement as per enclosed typewritten sheet, with printed exhibits attached. We would be pleased to hear from you at your earliest convenience, whether or not you wish to secure the ships upon such terms, since, as a part of the arrangement, the Emergency Fleet Corporation holds the agreement of the American International Corporation to accept a like transfer of the ships if you fail to execute the agreement by January 13th next.

You will observe that the printed forms are not to be signed now; at this time the typewritten sheet only is to be signed. On receipt of it signed we will send you three additional forms for signature, as the transaction is to be in four originals.

Yours very truly,

New York Shipbuilding Corporation,

M. A. Neeland, *President.*

The following is a copy of the typewritten sheet that was inclosed:

December —, 1917.

United- States Shipping Board Emergency Fleet Corporation, New York Shipbuilding Corporation:

Upon completion, delivery, and transfer to us of the ship known as hull *No.*—- (originally contracted for by us with said shipbuilding corporation and on August 3, 1917, requisitioned by said Fleet Corporation), we agree to accept such transfer pursuant to an agreement, with requisition charter annexed, all in form hereto attached. We agree to execute such agreement as party of the first part. Such agreement shall also be executed by the other three parties as the'rein indicated. For such transfer we shall pay said Fleet Corporation the cost of constructing and completing said ship, plus ten dollars ($10.00) per dead-weight ton (all as heretofore agreed between said shipbuilding corporation and said Fleet Corporation), less, however, such *941amounts as we may have paid to said shipbuilding corporation prior to August 3, 1917, on account of the construction of said ships, pursuant to its contract with us, and not reimbursed to us on account of such requisition.

The consideration for the foregoing is your acceptance thereof, as shown by your agreement of December 14, 1917 (to which the American International Corporation is also a party), relating to the construction, completion, and transfer of such ships.

Yours very truly,-Comspanv,

By-.

On Saturday, December 29, 1917, the plaintiff received notice from the Emergency Fleet Corporation over the long-distance telephone that unless the charter parties and the four-party agreement, in this finding described, were executed by the plaintiff and mailed to Washington the title to the *Sylvan Arrow*would be turned over to some one other than the plaintiff.

Thereupon, and on said December 29, 1917, the plaintiff executed said documents, including the quadruplicate agreement with the United States Shipping Board, the United States Shipping Board Emergency Fleet Corporation, and the New York Shipbuilding Corporation, a copy of which is attached to the amended petition herein marked “ Exhibit F ” and is made a part hereof by reference, the plaintiff being therein called “ The Company.”

By said agreement the United States, represented by the Shipping Board, quitclaimed, transferred, set over, and assigned to the plaintiff all the fight, title, and interest in and to hull *No.*175, to be known as *Sylvan*Arrow, which vessel was then completed and its tackle, engines, and furnishings acquired by the United States by the requisition order of August 3, 1917. The shipbuilding corporation acknowledged receipt of just compensation from the Fleet Corporation for the work done after the completion of said ship, and the Fleet Corporation acknowledged reimbursement therefor from the plaintiff. Said contract also contained the following clauses:

“The company hereby agrees to indemnify the Shipping Board and the Fleet Corporation from any and all liability for any charges heretofore or hereafter incurred for the account of completing said ship, including all charges for changes, additions, and extra or overtime work ordered by *942the Fleet Corporation, whether or not contemplated in the original contract between the shipbuilder and the company, with the exception of salaries and expenses of the Shipping Board or the Fleet Corporation employees.

“ The company hereby releases the United States, the Shipping Board, and the Fleet Corporation from any and all liability arising in any way out of the requisitioning order of August 3, 1917, and agrees that the full and only just compensation to the company for any and all claims arising out of said requisition order, or anything done in connection therewith, shall be as herein stated.

“ The company hereby expressly waives any and all right as against the said shipbuilder to the delivery of this ship or any other ship under the said contract, either during the present war or thereafter, but nothing herein contained shall release the shipbuilder from responsibility under the contract for defects in construction and (or) material.

“ The transfer of said ship to the company having been made by the Shipping Board at the special instance of the company, the company agrees not to sell said ship during the period of the war and six months thereafter without the consent of the Shipping Board.

“ The Shipping Board hereby requisitions the possession of the said ship for the use of the United States, the requisition to take effect as of the time of the actual delivery hereunder of said ship to the company.

“The company agrees that it will accept as just compensation for the said requisitioning the possession of the said ship, the payments provided in, and the terms and conditions of the requisition charter, a copy of which is attached hereto; and further agrees that it will forthwith execute and be bound by the said requisition charter.”

The plaintiff also executed the requisition charter referred to in paragraph nine of said agreement of December 29, 1917, and said requisition charter appears in full as Exhibit G, attached to the amended petition and made a part hereof by reference. Said documents so executed were enclosed and transmitted in the following letter:

December 29, 1917.

United States Shipping Board,

Washington, *D. G.*

Attention of Mr. Edward F. Carry.

Dear Sirs: Pursuant to our conversation-over the telephone this afternoon about taking over the title to the *943steamship *Sylvan Arrow,*¡mown as hull *No. 174-,*New York Shipbuilding Corporation, we beg to hand you herewith the following documents:

1. Agreement, in quadruplicate, between the United States Shipping Board, the United States Shipping Board Emergency Fleet Corporation, Standard Transportation Company, and the New York Shipbuilding Corporation.

2. Requisition charter, in quadruplicate, of Steamship *Sylvan Arrow,*between the Standard Transportation Company and the United States of America, through the United States Shipping Board.

3. Authorization by' Standard Transportation Company to master to take oath of ownership to steamship *Sylvan Arrow.*

I trust you will find everything in order, to enable the ship to be registered in the name of Standard Transportation Company, as owner.

The officers, engineers, and crew are all on board.

Awaiting your further advices, we are,

Very respectfully,

Standard Transportation Company, Geogru D. Ali, *Managing Director.*

The plaintiff also executed a charter identical in terms therewith, except for the name and description of the vessel, for hull *No. 175,*known as the *Broad, Arrow,*which charter appears in full as Exhibit H, attached to the amended petition and made a part hereof by reference.

At the time of the requisition of said vessels on August 3, 1917, the plaintiff had paid the builder of said ships the sum of $612,500 upon the contract price of said vessels. Thereafter, on January 9, 1918, pursuant to the request of the Shipping Board contained in its letter of December 31, 1917, the plaintiff paid to the United States Shipping Board the further sum of $958,750 for the cost of completion and $10 per ton on the *Sylvan Arrow,*and on March 19, 1918. the further sum of $958,750 for the cost of completion and $10 per ton on the *Broad Arrow,*making the total cost of said vessels to the plaintiff the sum of $2,530,000, or $1,265,-000 each, which was $390,000 more upon each vessel than the price of construction provided for in the contract for their construction between the plaintiff and the New York Shipbuilding Company of July 9, 1915. At the time of making the contract payments of $958,750 each the plain*944tiff requested to be allowed to make an audit and afforded an opportunity to present its views to the end that anything that might prove irregular or incorrect in the figures might be rectified, to which the Emergency Fleet Corporation responded that it had directed an audit to be made in connection with the vessels and that the plaintiff was at liberty to arrange that its auditors should be afforded every opportunity to go into the matter and that instructions had accordingly been issued to the general auditor of the Fleet Corporation. Thereafter, but on what date does not appear, the plaintiff filed with the United States Shipping Board its views in reference to the circumstances of the construction and requisition of said two vessels and protested that it should not be required to pay more than the contract price for the ships other than such charges as arose from the extras and modifications in specifications as provided in the contract, and that any existing arrangements resulting in additional payments should be abrogated or modified as the facts warrant.

XV. The account for the construction of said vessels and the payments made therefor is as follows:

XVI. Thereafter the *Sylvan*Arrow, under said requisition agreement, made three trans-Atlantic voyages in Gov-*945eminent service on a time or commercial form of charter from December 29, 1917, to July 15, 1918, at a hire fixed under said charter by defendant at the rate of $5.75 per ton per month, in addition to disbursements, and totaling for said three voyages the sum of $456,405.43. The inventory of supplies, operating expenses, and other disbursements on account of said voyages amounted to $94,786.85, and expenses of camouflaging, to which defendant admits plaintiff is entitled, amounted to $16,310.03, making a total of $567,502.31 for hire, operating expenses, inventory, and camouflaging in the use of said *Sylvan Arrow*for said voyages. On these voyages the plaintiff collected and retained freight amounting to $380,749.83.

On July 15, 1918, the *Sylvan Arrow*was transferred to the United States Navy and operated by it under said requisition agreement from July 15, 1918, at 2.15 p. m., to January 21, 1919, noon, under the bareboat form of charter at the rate of $4.15 per dead-weight ton per month, said rate having been fixed by defendant, and amounting for said period to $323,240.07. Said hire has been paid by defendant to plaintiff, but it has not paid the additional amount of $5,288.92, on account of difference in inventory of supplies, which under said charter party it agreed to pay.

XVII. The *Broad*Arrow, under said requisition agreement, was operated by defendant from March 12, 1918, to February 24, 1919, noon, under the bareboat form of charter at the rate of $4.15 per dead-weight ton per month, said rate having been fixed by defendant, and amounting for said period to $596,106. In addition thereto, defendant concedes that plaintiff is entitled to receive an additional credit of $8,601.95 on account of difference in inventory of supplies and other disbursements, which under said charter party it agreed to pay.

XVIII. The requisition charter for the *Broad Arrow*contained the following provision:

ALTERATIONS AND VESSEL’S CONDITION ON REDELIVERY

“ Twenty-seventh. The United States may, at any time, remove or alter at its expense all or any of the fittings of *946the vessel, and may erect any new fittings which may be required to render the vessel available for service to the United States: Provided, That she shall at the cost of the United States be redelivered to the owner in the same or as good order and condition as that in which she was when delivered to the United States, ordinary wear and tear and damage due to the operation of risks assumed by the owner excepted, or just compensation for the damage thus occasioned to the vessel, with interest at 6 per cent per annum, commencing 30 days after the proof of such damage upon redelivery of the vessel shall be paid by the United States in the District of Columbia. Interest not to be paid, however, if the owner resorts to any court for the purpose of establishing the amount of the just compensation.”

At the time said vessel was retransferred to the plaintiff by the defendants there were installed therein certain gun platforms and foundations, gun-crew quarters,, and magazines, which had been built in the Asiatic galley thereof for the particular service of the vessel for the United States in the Orient. These installations it was necessary to remove in order to fit the vessel for commercial use, and it was also necessary to repaint the vessel in the owner’s colors, and to supply the range, tiling, and fittings for the galley. A lump-sum settlement for this purpose was agreed upon between the Shipping Board and the plaintiff in the sum of $11,800, which was approved by the Shipping Board on or about March 4, 1919, but was afterwards disapproved by said board on or about March 19, 1919. The plaintiff made the necessary removals and changes, but has never been paid the said sum of $11,800, or any part thereof. In the case of the *Sylvan Arrow*the same condition of affairs existed upon the retransfer of that vessel to the plaintiff, but said installations were removed by the defendants at the defendants’ cost before delivery of the vessel to the plaintiff.

XIX. When the *Sylvan Arrow*was retransferred to the plaintiff by the defendant the following changes had been made from the requirements of the contract of July 9, 1915, between the plaintiff and the New York Shipbuilding Company : The fore topmast had been entirely removed, the main topmast was cut down, the mizzenmast was eliminated, the four king-posts were eliminated, and all the cargo derricks on *947the masts and the king-posts, except two cargo derricks on the forward side of the foremast, were eliminated; the tank ventilating system was changed, and there were some changes in the crew’s quarters forward. The same changes were made in the *Broad Arrow,*except that at the time of the retransfer of that vessel to the plaintiff the fore topmast had been reinstalled and two king-posts amidships at the pump-room skylight for the handling of cargo hose had been reinstalled. When the vessels were finally completed and launched the material and equipment for the items of change above specified had been purchased and fabricated and were in the yards of the New York Shipbuilding Corporation ready to be installed, and the price thereof had been charged to the cost of the construction of the vessels. The plaintiff made claim to the Shipping Board for said materials and equipment and requested the delivery thereof, but no part thereof was delivered to the plaintiff. The value of such material and equipment at the time of the retransfer of the vessels to the plaintiff was $25,000 for the materials and equipment for the *Sylvan Arrow*and $20,000 for that of the *Broad Arrow.*

The court decided that plaintiff was entitled to recover the hire of the vessels and operating expenses, the items set forth in Findings XY, XVI, and XVII, and operating fee, together aggregating the sum of $2,950,536.63; and that the defendant was entitled to recover the earnings of the *Acme, Astral,*and *Royal Arrow*set forth in Finding XII, amounting to $5,289,017.71, less the sum of $1,115,940.65, a part of said earnings already received by the Shipping Board, the difference being $4,173,077.06.

Hay, *Judge,*

delivered the opinion of the court:

On October 12, 1917, the plaintiff company owned four tankers, th„ *Astral, Royal Arrow,*and *Standard Arrow,*which had been and three of which were then engaged in the transportation of the products of the Standard Oil Company across the Pacific Ocean. The plaintiff also had building under contracts with the New York Shipbuilding Corporation two tankers then known as hulls *948*Nos.*17and *175*and afterwards known as the *Sylva/n Arrow*and the *Broad Arrow.*

On August *7, 1917,*the President, acting through the Secretary of the Navy and under authority of the act of June 15, 1917, requisitioned and took physical possession of the *Standard Arrow*and took it out of the Pacific trade and retained it in the Government service for eighteen months. For the use of this vessel and for other vessels of the plaintiff’s which were taken over by the United States, the plaintiff agreed to accept, and did accept without protest, the rate fixed by the Shipping Board, which rate was $4.15 per dead-weight ton per month on a bareboat basis. Upon this basis the plaintiff was paid, and the *Standard Art'ow*is thereby eliminated from consideration in this case. It may be observed that it was within the power of the United States to have taken the other three vessels from the Pacific trade and to have transferred them to the Atlantic trade, and that the plaintiff would in that event only have received the rate which it did receive and accept for its other vessels.

On October 12, 1917, the Shipping Board acting by virtue of an Executive order dated July 11, 1917, under the provisions of the act of June 15, 1917, covering all American cargo and tank ships of 2,500 tons total dead weight or more, which order was effective October 15, 1917, requisitioned the three vessels involved in this suit, they being of the class covered by said order.

The plaintiff executed the requisition agreement dated August 22, 1918, attached to the petition as “ Exhibit B-l.” Under the terms of this agreement the plaintiff agreed that these ships “while operated in trans-Atlantic service, or.in some service other than that of the owner ” should be operated under the terms and conditions of the “ bare-boat form ” of requisition charter (U. S. S. B. Charter Form No. 3). That form provided for payment of monthly hire established by the United States Shipping Board as just compensation, but if the owner did not accept that rate it should be paid 75 per centum of the rate so established and be entitled to sue for such further sum as added to said 75 per cent would constitute the just compensation re*949quired by law. The plaintiff refused the Shipping Board rate of $4.15 per dead-weieht ton per month on a bareboat basis.

The agreement further provided:

“ When operated in trans-Atlantic service, or in some service other than that of the owner, the owner, when requested, agrees to act as operating agent of the United States Shipping Board for such compensation as may be determined by said board according to a general plan to be hereafter established.

“ For the purposes of this agreement, a tank steamship shall be deemed in the service of the owner only—

“ *(a)*When employed in the usual previous service customarily maintained by the owner, carrying cargoes exclusively owned by the owner or by a company affiliated with it under common control, or

“ (&) When employed in the carriage of cargoes owned by any other owner of tank steamships or a company affiliated with it under common control in the usual previous service customarily maintained by any such owner, provided, however, that in such case the freight charged and the differentials allowed shall not be fixed at amounts which will yield a greater return to the owner on any voyage than that produced by the requisition rates from time to time established by the United States Shipping Board.

“All freights collected for the carriage of cargoes other than as above stated shall be accounted for under the ‘ bare-boat form ’ of requisition charter (U. S. S. B. Charter Form No. 3), as provided for in clauses ‘First’ and ‘Third’ of this agreement; the owner, however, of any tank steamship not covered by requisition charter (U. S. S. B. Charter Form No. 2) reserving the rights specified in clause ‘ Third ’ hereof to accept seventy-five per centum of the hire established by the United States Shipping Board as the just compensation required by law, and to bring suit against the United States for such just compensation.”

It was also provided in the contract as follows:

“ The United States shall assume war, marine, and all other risks of whatsoever nature or kind, including all risk or liability for damage occasioned to other vessels, persons, or property.”

It will be observed that this contract was most advantageous to the plaintiff. Under it the plaintiff was enabled to transport its own products across the Pacific without the *950payment of freights and at the same time was insured against loss. No other owner had so advantageous a contract so far as we have been able to learn; what products of its own it carried does not appear, but judging by the amount of freights earned in the return voyages of its vessels they must have been very large.

In return of these advantages the plaintiff agreed to act as operating agent of the United States Shipping Board on the return voyages of its vessels “ for such compensation as may be determined by said Board ” with the privilege to the' owner of refusing the compensation so fixed and suing for just compensation.

The plaintiff is now suing for just compensation for the use of the said three vessels, and is, of course, bound by the terms of its contract with the Government. It is not difficult to determine upon what principle the compensation should be based. We have had this question before us in the case of *Gulf Refining Company*v. *United*States, 58 C. Cls. 559. We determined that the rate of hire fixed by the United States Shipping Board is not binding on the court when the owner is dissatisfied with such rate and brings suit in this court for the use of its vessels; and that the value of the use of the vessels to the plaintiff must be determined by the evidence submitted of such market value at the time the vessels were taken. We can see no difference between the case cited and the case at bar, and applying the principles above cited to the evidence in this case, we have determined that a reasonable rate of hire for the use of these vessels during the period of the return voyages is $6.60 per dead-weight ton per month. Upon that basis we have felt constrained to enter a judgment for the defendant, after giving the plaintiff credit for the hire of its ships, the operation expenses thereof, and the items set out in Findings XV and XVI.

The plaintiff contends that the earnings of the vessels on the return voyages should be taken as a basis for the determination of the value of the úse of the vessels. This same contention was made in the *Gulf Refining Company case*and was then disposed of. (See p. 581.) We see no reason to change the conclusion then arrived at. There is no evidence *951in this case which makes it any different from the *Gulf Refining Company*case, and we feel impelled to adhere to the principles laid down in that case.

Judgment will be entered for the defendant in the sum of $1,222,540.43. It is so ordered.

Graham, Judge; Booth, Judge; and Campbell, *Chief*Justice, concur.