#### BROOKS-SCANLON CORPORATION v. THE UNITED STATES

[No. 34464]

*On the Proofs*

*Expropriation of contract; requisition under act of June 15, 1917; vessels under construction.*— See *Consorcio Vem&ziano di Arma-mento e Navigaeione*v. *United States, ante,*p. 11. See also similar cases, pp. 38, 59, 98, 119.

*The Reporter’s*statement of the case:

*Mr. William B. King*for the plaintiff. *Mr. Edward P. Sanborn*and *King & King*were on the briefs.

*Messrs. Assistant Attorney General Hermann J.*Galloway, *Henry M.*Wa/rd, and *James*Talbert, for the defendant. *Mr. W. W. Nottingham,*was on the briefs.

This case was originally decided April 23, 1923, 58 C. CIs. 274, and on reversal was remanded by the Supreme Court May 12, 1924, 265 U. S. 106, for further proceedings. Ón November 17, 1925, the Government filed a motion for new trial under section 175 of the Judicial Code, which was overruled, and the court made special findings of fact February 14, 1927, as follows, overruling motion for new trial thereon December 5, 1927:

I. The plaintiff is a corporation duly organized and existing under the laws of the State of Delaware. On October 20, 1917, Scanlon and his associates acquired an interest in the Carpenter-O’Brien Co., and on December 8, 1917, the name of the Carpenter-O’Brien Co. was changed to the Brooks-Scanlon Corporation. The Carpenter-O’Brien Co. was the assignee of all the interests of the East Coast Trans*81portation Co. in the contract hereinafter set forth between the East Coast Transportation Co. and the New York Shipbuilding Co., a corporation organized under the laws of the State of New Jersey, which latter company transferred all of its rights, property, and interest on December 16, 1916, to the New York Shipbuilding Corporation, a corporation organized and existing under the laws of the State of New York, included in which was the contract hereinafter set out.

II. On March 28, 1916, a contract in writing was entered into between the New York Shipbuilding Co. and the East Coast Transportation Co. whereby the said shipbuilding company agreed to construct in its yard at Camden, N. J., a certain steamship of about 8,100 tons d. w. t. according to the plans, specifications, and conditions described, being part of said contract, and as consideration to the builder the said East Coast Transportation Co. agreed to pay the sum of $595,000 in certain installments set forth in said contract, said ship when completed to be delivered to said East Coast Transportation Co., at the dock of the builder at Camden, N. J., on or before the 1st day of February, 1918. The contract also provided that alterations might be made in the construction of said ship by agreements in writing at a price agreed upon and settlements therefor to be made at the completion of the vessel. The contract also provided that every facility for inspection of workmanship and material and classification of the vessel should be provided for the contractor by the builder with full authority to reject whatever should not conform to the provisions of the contract, the builder at its own expense at all times during the construction of said vessel to provide suitable insurance to an amount at least equal to payments made by contractor, and the builder to make good all defective workmanship and material which might develop within three months after delivery of said vessel to the contractor. A copy of said contract is filed in the record of this case.

Between July 5, 1916, and May 25, 1917, changes in the construction of said ship were agreed to in the manner provided by the contract, increasing the d. w. t. to 8,597 tons *82and the price for said ship to $831,630 and providing for some changes in payment of installments, and further providing that some of the changes should be submitted to the officials of the Bureau Veritas (the inspector). No changes were thereafter made in the plans and specifications before August 3, 191?.

III. On May 24, 191?, the East Coast Transportation Co. by instrument in writing assigned and transferred all its right, title, and interest in and to the contract referred to to the Carpenter-O-’Brien Co., owner of all the stock of the said East Coast Transportation Co., and the latter company was thereafter dissolved.

IV. On July 11,191?, the President, by virtue of authority vested in him by the act of Congress of June 15, 191?, by an Executive order, delegated the powers conferred upon him by said act to the United States Shipping Board Emergency Fleet Corporation. Under the authority so conferred upon it the Shipping Board on August 3,1917, served on the New York Shipbuilding Corporation notice and order of requisition by telegram and letter as follows;

[Official telegram]

U. S. Shipping Boaro,

*Washington, Aug. S, 1917.*

[Western union Company telegram]

New York Shipbuilding Coep.,

*Gcanden, N. J.:*

By virtue of an act approved June 15, 1917, and authority delegated to the Emergency Fleet Corporation by Executive order of July 11, 1917, all power-driven cargo-carrying and passenger vessels above twenty-five hundred tons deadweight capacity under construction in your yards, and materials, machinery, equipment, and outfit thereto pertaining are hereby requisitioned by the United States and will be completed with all practicable dispatch. Letter follows

*W.*L. Capps,

*General Manager.*

*83United States Shipping Emergency Fleet Corporation, *Washington.*New York Shipbuilding Company, *Oamden, N. J.:*

By virtue of an act of Congress approved 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 Corporation 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 yard 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. act and

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 practical dispatch. here-

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.

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

(Signed) W. L. Capps,

*General Manager Emergency Fleet Corporation.*

Washington, 33. C., *August 3, 1917.*

Among the vessels included within the above requisition order was the ship under construction referred to in these findings, known as hull 193 and afterwards as the ship *M. J.*Scanlon, and being the same vessel which the New *84York Shipbuilding Co. agreed to build for the East Coast Transportaton Co.

V. On August 18, 1917, the Emergency Fleet Corporation issued and served on the East Coast Transportation Co. the following letter and enclosure:

United States Shipping Board,

Emergency Fleet Corporation,

*Washington, August IS, 1917.*

East Coast Transportation Co.,

*8 West Ifith Street, New York, N. Y.*

Dear Sirs: On August 3, 1917, the United States Emergency Fleet Corporation issued to the New York Shipbuilding Company the notice or requisition set forth in enclosure 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:

Hull No. 193; type, freight; d. w. ton, 8,100; date of contract, 3-28-16 (■-•)•

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. R. 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.

You 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 propeí 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 investiga*85tion 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.

Very truly yours,

W. L. Capps,

*General Manager.*

Enclosure (1).

The enclosure to said letter was as follows:

United States Shipping Boaed,

Emergency Fleet Coepoeation,

*Washington, August 18, 1917.*

[Enclosure A]

To East Coast Teanspoetation Co.,

Re: New York Shipbuilding Coepoeation:

By virtue of an act of Congress approved June 15, 1911, 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 Corporation, 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 yard, 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.

*86On 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 Ernergency Fleet Corporation.*

Washington, D. C., *August 3,1917.*

On August 28, 1917, the same Tetter, with the same enclosure except the date and the address to Carpenter-O’Brien Co., was issued and served on the Carpenter-O’Brien Company.

VI. On August 16,1917, the New York Shipbuilding Corporation forwarded to the Emergency Fleet Corporation a copy of the construction contract with plans and specifications, supplements and data pertaining thereto, and the next day forwarded financial data, facts as to conditions of construction and percentage of completion. On August 23,1917, the East Coast Transportation Co. notified the officers of the Emergency Fleet Corporation of the transfer of their -interest in said ship to the Carpenter-O’Brien Co., the name of the designer of the vessel and of its local inspector, who was thereupon taken over by the Emergency Fleet Corporation to act for it in the same manner in the construction of such ship as he had acted for the Carpenter-O’Brien Corporation, dating such employment from August 3, 1917. On August 27, 1917, the Carpenter-O’Brien Corporation forwarded to the Emergency Fleet Corporation a list of pay*87ments to the shipbuilding company as paid under requirements of the construction contracts, which statement was identical with that theretofore presented by the shipbuilding company to the Fleet Corporation on August 16, 1917, and as- set forth in the contract between the Emergency Fleet Corporation and the New York Shipbuilding Corporation, dated December 8, 1917.

VII. On August 22, 1917, the following letter, with enclosure, was received by the New York Shipbuilding Co.:

United States Shipping BoaRd

Emergency Fleet Corporation,

District Opeioe No. 3,

*Washington, August 88, 1917.*

New York Shipbuilding Corporation,

*Camden, N. J.*

Gentlemen : Enclosed please find copy of letter addressed to me by Admiral W. L. Capps, general manager of the Emergency Fleet Corporation. Will you kindly read this carefully and govern yourself accordingly?

Promptness in reply will be much appreciated.

Yours faithfully,

(Signed) Geo. R. McDermott,

*District Ojficer.*

United States Shipping Board

Emergency Fleet Corporation,

*Washington, August 88, 1917.*

Mr. G. R. McDermott,

*Room 308,1319 F Street NW., Washington, D. C.*

Dear Sir: Referring to the vessels under construction in the yard of New York Shipbuilding Corporation, Camden, N. J., requisitioned under the corporation’s order of August 3rd, precedent to the final examination of the contract for the vessels in question, you are requested to inform the shipbuilder as follows:

The ships now under construction at your plant and referred to above, having been requisitioned by the duly authorized order of this corporation and title thereto taken over by the United States, and an order having been placed with you by due authority to complete the construction of said ships with all practicable dispatch, you are further ordered by the President of the United States, represented by this corporation, to proceed in the work of completion heretofore ordered, in conformity with the requirements of *88the contract, plans, and specifications under which construction proceeded prior to the requisition of August 3, 1917, in so far as the said contract describes the ship, the materials, machinery, equipment, outfit, workmanship, insurance, classification, ancf survey thereof, including the meeting of the requirements of the said contract and_ all tests as to efficiency and capacity of the ship on completion, and in so far as the contract contains provisions for the benefit and protection of the person with whom the contract was made, but not otherwise.

All work will proceed under the inspection of such persons as have been or may hereafter, from time to time, be designated by this corporation for that purpose.

For the work of completion heretofore and herein ordered the corporation will pay to you amounts equal to payments set forth in the contract and not yet paid: Provided, That on acceptance in writing of this order you agree that on final acceptance of the vessel to give a bill of sale to the United States in satisfactory form, conveying all your right, title, and interest in the vessel, together with your certificate that the vessel is free from liens, claims, or equities, with the exception of those of the owner, and then only to those set forth in the contract. Compensation to the shipbuilder for expedition and for extra work will, when deemed appropriate, be made the subject of a subsequent order.

This order applies only to vessels *actually*under construction, and in accejffiing it the corporation expects you to inform it of the actual stage of construction of each vessel or the part to be assembled therein on the date of requisitioning, August 3, 1917. The corporation reserves the right to decide whether or not a vessel was actually under construction on August 3, 1917, on consideration of the ascertained facts.

In replying to this communication, please arrange to specify separately the vessels to which this order refers, and refer to the corresponding contract in sufficient terms for identification of it.

Please furnish a copy of this to New York Shipbuilding Corp., and ask for an early reply.

Very truly yours,

(Signed)

W. L. Carps,

*General Manager.*

VIII. On September 20, 1917, the New York Shipbuilding Corporation wrote the following letter to the Emergency Fleet Corporation:

*89September 20, 1917.

United States Shipping Board

Emergency Fleet Corporation,

Admiral W. L. Capps,

*General Manager, Washington, D. G.*

Dear Sir: Deferring to the order dated August 22, 1917, made by United States Shipping Board Emergency Fleet Corporation, and delivered to this company, we beg to say:

We understand that by the act of Congress of 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 30, 1917, and for other purposes,” and the Executive order dated July 11, 1917, made by the President with respect to said act, and transmitted to us by the Emergency Fleet Corporation under date of August 3, 1917, we are under obligation to comply with the order of the Emergency Fleet Corporation dated August 3, 1917, requisitioning ships at this company’s plant.

This corporation therefore accepts United States Shipping; Board Emergency Fleet Corporation’s order dated August 22, 1917, for the completion of the vessels under contract in this yard on August 3rd, 1917, known as hull No. —, and agrees that, upon the completion and acceptance of said vessels and upon complete payment by the United States Shipping Board Emergency Fleet Corporation, together with such additional compensation as may be agreed upon, this company will execute and deliver to the United States of America a bill of sale conveying all this company’s right, title, and interest in the vessels without prejudice to any claim of the person or corporation who originally contracted for the construction of said vessels, and those claiming rights under such original contractor, together with our certificate that the vessels are free from liens, claims, or equities except such liens, claims, or equities as may be asserted by, or exist in favor of, the person or corporation who originally contracted for the construction of the vessels, and those claiming rights under such original contractor.

Yours very truly,

-,-, *Vice President.*

IX. On September 13, 1917, the following telegram was received by the New York Shipbuilding Corporation:

“ Do not accept further1 payment from former owners on account of requisitioned ships. This is mandatory.

“ George B. McDermott,

“ *District OjfieerP*

*90Like verbal notice was given by Admiral Bowles to Scanlon.

After this date the plaintiff made no further payments to the New York Shipbuilding Co. on account of hull 193 under the provisions of the contract.

X. The plaintiff was never in default in the performance of its part of the requirements of the construction contract. The shipbuilding company on its part was ready and willing to perform on its part all the requirements of said contract to its completion. At that time the plaintiff had on deposit in various solvent banks the sum of $238,730 deposited and held solely to meet payments by it to the builder as required in said contract, which sum of money was sufficient to pay all of the installments set forth in said contract.

XI. Immediately after the execution of the construction contract the New York Shipbuilding Co., in its own name and on its own credit, ordered all of the material and equipment for the construction and outfitting of said vessel for which sufficient data then existed, and before August 3,1911, by various commitments completed its orders for substantially all of the material, equipment, and outfit needed as provided by the contract, supplements thereto, and plans and specifications, all of which were duly delivered to it and used in the construction and completion of said ship. The title to these materials was in the New York Shipbuilding Corporation on August 3,1917, the date of the requisition order, and the plaintiff never had nor claimed any title in and to these materials either before or after the date of the requisition order. The orders and commitments were sufficient to complete said ship, and all materials, machinery, and outfit covered thereby were duly delivered and used in the construction and completion of such ship at the prices fixed in such orders and commitments, and no, further material was purchased subsequent to August 3, 1917, except for the sum of $31,000 for material used for the construction ordered for the military protection of the vessel. Representatives of the Fleet Corporation were present and informed of these facts.

XII. Up to and including August 3, 1917, between 35 and 40 per cent of the necessary material, machinery, outfit, and *91equipment, valued at about the sum of $118,000, and labor at about the amount of $24,000 had been delivered to the builder ready for use and used in the construction of the said ship, and on that day the said ship was about 19 per cent completed. Said ship was thereafter substantially completed by the use of all such material, equipment, and supplies, and was launched on July 6, 1918, and delivered to the United States on September 20, 1918.

XIII. The East Coast Transportation Co. made a contract with the Bureau Veritas for its inspection and classification service, which contract was continued by its successors, and said service was furnished from the commencement of the construction of said ship to its completion. The Emergency Fleet Corporation notified the Carpenter-O’Brien Co. that the inspection would be continued by the Bureau Veri-tas. What amount was paid by the East Coast Transportation Co., the Carpenter-O’Brien Co., and the plaintiff to the Bureau Veritas before August 3, 1911,' does not appear in the record.

XIV. The plans and specifications described in and made a part of the contract and the supplements thereto were ordered and paid for by the plaintiff and its assignors and were used after August 3, 1917, for the benefit of the Emergency Fleet Corporation in the construction, of and completion of said ship. The value of the plans and specifications was about 2% per cent of the contract price, or $20,277.25.

XV. On December 8, 1917, the Emergency Fleet Corporation made a contract with the New York Shipbuilding Corporation and the American International' Corporation relative to the completion and disposal of hull 193, which contract, or the part of it pertinent to this suit, is as follows:

*****

“ *Statement of premises.*— On and prior to August 3, 1917, the Shipbuilding Corporation was constructing under private contract with the corporations named below (hereinafter called ‘ former owners ’) ships bearing the hull numbers of the type and for the contract prices set opposite their respective names:

*92No. Type Corporation Contract price (maximum)

*3 74*175 170 182 183 184 189 190 193 196 Tanker--. Tanker.-.. Collier. Coastwise-Collier. Collier_ Tanker.... Tanker_ Freighter-Tanker_ Standard Transportation Co.Standard Transportation Co... Darrow Mann Co_... Transportation Co.. Pocahontas Fuel Co.. Dairow Mann Co_ Gulf Refining Co_ Petroleum Transportation Co.. Carpenter-O’Brien Co. Gulf Refining Co_ $875,000 875,000 698,900 507,500 369,000 515,000 640,000 1,010,000 831,630 1,045,000

“ Due to war conditions such contract prices have proved and will prove to be less than the actual cost of constructing such ships. On August 3, 1917, all of such ships, together with the materials assembled therefor, were requisitioned by the Fleet Corporation, acting in accordance with the provisions of the urgent deficiency act of June 15, 1917, and the Executive order of July 11, 1917. The Shipbuilding Corporation by such requisition was directed to complete such ships on behalf of the United States.

“ 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 former owner declines, the International Corporation, shall agree to accept retransfer to them, respectively, or to the International Corporation, as the case may be, of said ships upon completion, and, upon such retransfer, 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 tlie United States Shipping Board and other conditions, all in accordance with the provisions of this agreement and agreements to be executed, forms of which are hereto annexed and marked ‘ Exhibits A, B, and C.’

*“Agreement.*— Now, therefore, for and in consideration of the premises and of the mutual agreements hereinafter contained, it is hereby agreed as follows :

“ 1. The Shipbuilding Corporation agrees to complete said bulls Nos. 174, 175, 176, 182, 183, 184, 189, 190, 193, and 196 in accordance with the specifications annexed to the respective contracts under which such hulls were being constructed for the former owners prior to August 3, 1917, but will comply with all orders as to alterations in the construction or *93equipment- thereof given by the Fleet Corporation or its duly authorized officers.

“ The Shipbuilding Corporation agrees to proceed with such completion of such ships with all due expedition, and to that end agrees that the Shipbuilding Corporation will not, during the construction of said ships, take any additional contracts for other ships from parties other than the United States Navy which will interfere with such expedition.

“ 2. The Fleet Corporation hereby agrees to pay to the Shipbuilding Corporation as just compensation for the completion of said ten ships, hulls Nos. 174, 175, 176, 182, 183, 184, 189, 190, 193, and 196, the,entire cost of construction of said ships, figured from the commencement by the Shipbuilding Corporation of the construction of said ten ships up to the times of completion thereof respectively, and in addition thereto with respect to each ship ten dollars ($10) per dead-weight ton for profit. There shall be credited, however, in favor of the Fleet Corporation all sums heretofore received by the Shipbuilding Corporation on account of the construction of such ten ships, respectively, either from the former owners or from the Fleet Corporation. A statement of the amounts so received by the Shipbuilding Corporation as to each such ship is hereunto annexed and marked ‘ Exhibit D.’ As construction progresses the Shipbuilding Corporation shall deliver monthly to the Fleet Corporation cost statements as to'each such ship, covering the construction costs with respect thereto, so far as ascertained, and the Fleet Corporation shall pay to the Shipbuilding Corporation on or before the 15th day of each month the costs incurred during the preceding calendar month. The Fleet Corporation shall pay said profit of ten dollars ($10) per dead-weight ton; three dollars ($3) per estimated dead-weight ton at the time of laying the keel of each said ship; four dollars ($4) per estimated dead-weight ton at the time of launching of each ship; and three dollars ($3) per estimated dead-weight ton at the time of delivery of the ship by the Shipbuilding Corporation.

“ 3. A determination of the costs of said ships to date with payments of said profit in accordance with the stage of completion of each ship, as afoiesaicl, shall be made as soon as possible after date hereof, after proper audit by the Fleet Corporation. The costs of each ship shall be stated separately. The Fleet Corporation shall have free access to the books and records and contracts of the Shipbuilding Corporation for the purpose of determining such costs. Final determination of the amount of the Shipbuilding

*94Corporation’s said profit shall be made after the determination of the actual dead-weight tonnage of each ship, and any necessary adjustments shall then be made. Costs shall be determined as actual costs are defined in the form of agreement * * *, relating to the construction of the three transports.

*****

“ 10. The Fleet Corporation, in accordance with the provisions of the said urgent deficiency act of June 15, 1917, hereby agrees to indemnify and save harmless the Shipbuilding Corporation from any and all loss or liability occasioned by reason of said requisition order of August 3, 1917, or any subsequent acts or orders given by the Fleet Corporation arising out of claims of the former owner' or owners or anyone claiming under them.

* * * * ^

“ Statement of amounts received by New York Shipbuilding Co., either from f former owners5 or from United States Shipping Board Emergency Fleet Corporation, on account of construction of ships, as per hull numbers, as follows:

Hull No. By former owners By E.F. Oorp. Total paid to date Hull No. By former owners ByE.F. Corp. Total paid to date

174-175-176-182-183-284-[$632,500.00 663,900.00 237,500.00 181,000.00 496,500.00 $525,000.00 82,500.00 $962,500.00 663,900.00 237,500.00 263,500.00 496,500.00 189-190-103-196-$328,889.48 190,000.00 419,500.00 172,452.69 3,302,242.17 $122,697.95 105,000.00 72,063.52 907,261.47 $451,587.43 295,000.00 419,500.00 244,516.21 4,034,503.64

XVI. In accordance with the provisions of the statute the plaintiff filed its claim for the payment of just compensation with the United States Shipping Board Emergency Fleet Corporation for the property which it alleged the said corporation had requisitioned from it on August 3, 1917. On January 23, 1920, the Emergency Fleet Corporation adopted a resolution awarding to the plaintiff as jnst compensation the sum of $442,683.82. The plaintiff being dissatisfied with this award refused to accept tbe same and so notified the Emergency Fleet Corporation, and on February 24, 1920, the defendant paid to the plaintiff the sum of $332,012.87, that sum being 75 per cent of said award.

The award made by the Emergency Fleet Corporation to the plaintiff as just compensation for property requisitioned *95on August 3, 1917, was made up of two items, to wit, $177,-230.44, which was computed to be the value of the materials, equipment, and machinery which were in the yard of the New York Shipbuilding Co. at the time of the requisition, and which materials, etc., were in fact the property of the New York Shipbuilding Corporation. The second item was the sum of $265,453.38, which sum was on account of progress payments made by the plaintiff and its assignors to the New York Shipbuilding Co. in excess of cost of material requisitioned.

The plaintiff and its assignors paid to the New York Shipbuilding Corporation in cash $239,500, in notes for which it has paid $180,000, and payments which it has made of interest on notes $28,433.33 — in all, $447,933.33. The plaintiff also paid the sum of $5,500 to architects. The plaintiff also furnished plans and specifications of the value of $20,277.25, making in all the sum of $473,710.58. It has been paid by the defendants the sum of $332,012.87.

XVII. The total contract price for the vessel was $831,630, of which $419,500 had been paid to the shipbuilder at the time of the requisition; $412,130 remained to be paid. The vessel on August 3, 1917, was about 19 per cent completed, and was finally completed in accordance with the original plans and specifications with some minor changes and extras costing about $7,500. After the requisition the Emergency Fleet Corporation paid to the shipbuilder for the completion of said vessel the sum of $806,240.99 on account of labor and material, and $10 per dead-weight ton as profits amounting to $85,970. There is also claimed by the Fleet Corporation as part of the cost of completing the vessel an item for overhead expenses amounting to $280,-704.54. There were, at the time this vessel was under construction, a large number of other vessels being built for the Government by the New York Shipbuilding Corporation at this yard. The item of overhead expenses charged to cost of this vessel is not satisfactorily explained.

The vessel was completed and delivered on September 20, 1918, and thereafter was placed in the service by the Fleet Corporation.

*96XVIII. Just compensation to the plaintiff for its rights and contract which were expropriated and the sum which will put the plaintiff in as good a position pecuniarily as it would have been if its contract had not been expropriated is the sum of $852,000 as of August 3, 1911, with interest thereon at the rate of six per centum per annum from August 3, 1911, to February 24, 1920, which interest amounts to the sum of $130,782, on which date there was paid to the plaintiff the sum of $332,012.87 by the United States, leaving a balance due the plaintiff as of that date of $650,769.13, to which the plaintiff is entitled, with interest thereon from February 24, 1920, to February 14, 1927, which amounts in all to the sum of $923,007.50.

In addition to the principal sum mentioned in Finding XVIII, and interest thereon to date of judgment, the court allowed, as part of just compensation, interest on the principal sum from date of judgment until paid.

Hay, *Judge,*

delivered the opinion of the court:

The former judgment of this court in this case was on May 12, 1924, reversed by the Supreme Court of the United States and remanded to this court for further proceedings in conformity with the opinion of the Supreme Court.

After the former judgment in this case had been reversed by the Supreme Court the Government filed a motion for what is termed a new trial under section 175 of the Judicial Code, This section authorizes the Court of Claims “ while any claim is pending before it or on appeal from it or within two years next after the final disposition ” of it to grant on the Government’s motion a new trial and stay the payment of any judgment. This motion was filed on November 7, 1925. The former judgment of this court was rendered on the 23d day of April, 1923, 58 C. Cls. 274. And, in any event, the motion would be too late. But the judgment was reversed by the Supreme Court on the 5th day of May, 1924, 265 U. S. 106. While the authorities are abundant that this court may grant a new trial under section 175 even after a judgment has been affirmed by the Supreme Court, no authority has been adduced to show that this court may grant a *97new trial under section 175 until either this court or the Supreme Court has rendered a judgment, and certainly no authority can be adduced that this court can grant a new trial upon a judgment of reversal by the Supreme Court.

Two items very much insisted on by the Government in its motion are (1) the failure to find what is called the requisition telegram of August 3, 1917; and (2) the failure to set out in full the requisition order in the court’s findings. The so-called requisition telegram was not in the record up to the time of the court’s judgment and was therefore not found, but its existence was known to the Government counsel who prepared the Government’s brief of about seventy printed pages and argued the case. This is evidenced by the fact that in this brief, at page 331 of the record, reference is made to certain action of the general manager of the Fleet Corporation “ who had signed the *requisition telegram,*and requisition letter of August 3.” He did not introduce it, probably because he didn’t think it material, as it was merged in the letter. The complaint that part of the requisition order was omitted is without force because a copy of the requisition order appeared in the petition itself. The briefs and the opinion of the Supreme Court show very clearly that this whole order was before them. In these circumstances the grounds assigned for the motion would furnish very little basis for it, even if it were timely. See *Axman*case, 48 C. Cls. 378, 379; *Missouri Pacific Railway Co.*case, 55 C. Cls. 485, 486; *Volk case,*56 C. Cls. 395. While additional findings have been made, the defendant’s motion for a new trial is overruled.

And this court in conformity with the opinion of the Supreme Court has found the value of the plaintiff’s contract and thereby has put it in as good a position pecuniarily as it would have been in if its contract had not been taken. In arriving at this result this court has taken into consideration the elements of value as laid down in the opinion of the Supreme Court of the United States in this case (265 U. S. 106), as follows:

> “ Determination of just compensation is to be based on the fact that claimant’s contract and its rights and interest there-. under were expropriated, and that it is entitled to have their *98value at the time of the taking. The value of such ships at the time of requisition, and the then probable value at the time fixed for delivery, the contract price, the j>ayments made and to be made, the time to elapse before completion and delivery, the possibility that by reason of the Government’s action in control of materials, etc., the contractor might not be able to complete the ship at the date fixed for performance, the loss of use of money to be sustained, the amount of other expenditures to be made between the time of requisition and delivery, together with other pertinent facts, are to be taken into account and given proper weight to determine the amount claimant lost by the taking.”

Judgment for the plaintiff will be entered for the sum of $923,007.50.

Moss, *Judge;*Geaham, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.