American-Hawaman Steamship Co. v. United States. the Alaskan

Second Circuit

American-Hawaman Steamship Co. v. United States. the Alaskan

191 F.2d 26, 1951 U.S. App. LEXIS 3712

CourtCourt of Appeals for the Second Circuit

DecidedAugust 13, 1951

Docket236, Docket 21486

StatusPublished

Cited by5 cases

This text of 191 F.2d 26 (American-Hawaman Steamship Co. v. United States. the Alaskan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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American-Hawaman Steamship Co. v. United States. the Alaskan, 191 F.2d 26, 1951 U.S. App. LEXIS 3712 (2d Cir. 1951).

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Opinions

SWAN, Chief Judge.

This is a suit on a policy of war risk insurance covering the libellant’s steamship Alaskan which was requisitioned in May 1942 and was subsequently insured by the War Shipping Administration. The vessel was torpedoed and sunk on November 28, 1942. The War Shipping Administration determined “just compensation” for the vessel to be $776,003. This sum being deemed unsatisfactory by the libellant, it elected to receive 75 per cent, thereof and to sue for an additional amount, as permitted by the Merchant Marine Act of 1936, as amended, 46 U.S.C.A. § 1242(d). The libel was filed November 27, 1944, claiming $1,035,000 with interest, less credits for the sums received under the War Shipping Administration’s valuation. The case was tried before George W. Alger as Commissioner. He submitted a detailed report, finding “just compensation” for loss of the Alaskan to be $983,250. His report was thoroughly reviewed by Judge Lcibcll and was approved as correct, except as to the calculation of interest. 85 F.Supp. 815. From the final decree entered March 4, 1949, the United States appealed on the ground that the award was too large, and the libellant filed cross-assignments of error on the ground that it was too small. After the appeal was taken, the decision in United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392, was handed down, construing the so-called enhancement clause of section 902(a) of the Act, 46 U.S.C.A. § 1242(a).¹ There[28]*28after on January 30, 1950, the appellant moved in this court for an order remanding the cause for the talcing of evidence and the making of findings alleged to be required under the Cors decision. We denied the motion with leave to the District Court to hear it. After a most thorough and careful consideration, Judge Leibell denied the motion.² The appellant then moved in this court for leave to amend its notice of appeal and to incorporate in the record on appeal the proceedings upon the motion to take additional evidence. We granted leave to incorporate portions of the motion proceedings in the District Court and postponed to the argument of the appeal further consideration of the motion before us.

Most of the appellant’s brief is devoted to argument that the court erred in denying the Government’s motion to take further proof with respect to elements of enhancement under the rule of United States v. Cors.³ This order, if reviewable on appeal, can be reversed only for an abuse of discretion. We find none. For reasons fully stated by Judge Leibell, we do not think that the Cors case made any such change in law applied by the District Court as to constitute a “supervening decision.”⁴ Furthermore, the evidence sought to be introduced was as available to the Government during the trial as it was upon the motion. No reason is apparent to us why the Government should not be treated like any private litigant in applying the rule that available evidence, if it is fo be used, must be brought forward at the trial.⁵ We are content to affirm denial of the motion to reopen the case on the opinion below, 92 F.Supp. 785.

The Commissioner in large part based his valuation of $983,250, which is at the rate of $95 per deadweight ton, on the market value of comparable vessels in 1941. The appellant contends that the 1941 market value includes forbidden enhancement due to.the Government’s need; but the evidence by which this is sought to be established is solely that which was presented upon the motion and which we have just held was properly excluded. Of the record made before the Commissioner, Judge Leibell said, 85 F.Supp. at page 824: “The Commissioner gave due consideration to Rules 1, 3 and 4 of the Advisory Board on Just Compensation * * *. His report shows that ‘enhancement’ due to a general rise in prices or earnings was not deducted from the value at the time of taking, but that any enhancement due to the Government’s need was deducted.” We see nothing to justify reversal of this conclusion as “clearly erroneous.”

The Commissioner’s valuation is also attacked on the ground (1) that it fails to give effect to the Government’s restrictive controls which the Commissioner found had depressed 1942 values below 1941 levels; (2) that it was error to consider reconstruction cost and fail to give adequate effect to the vessel’s depreciation from age in determining her value; and (3) that it was error to choose June 12, 1942 (the vessel’s delivery date under time charter requisition) rather than November 28, 1942 (the date of her loss) as the date as of which she should be valued, although the Commissioner found her value on both dates to have been the same. All of these points were satisfactorily considered in Judge Lei-bell’s first opinion.⁶ We see no occasion to add to that opinion. Nor do we find it necessary to discuss the appellee’s contentions that the award should be increased and interest allowed from the date of the vessel’s loss rather than from the date the libel was filed.⁷ Accordingly both the final decree [29]*29and the order declining to take further proofs are affirmed on the opinions below, with costs.

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SWAN, Chief Judge.

This is a suit on a policy of war risk insurance covering the libellant’s steamship Alaskan which was requisitioned in May 1942 and was subsequently insured by the War Shipping Administration. The vessel was torpedoed and sunk on November 28, 1942. The War Shipping Administration determined “just compensation” for the vessel to be $776,003. This sum being deemed unsatisfactory by the libellant, it elected to receive 75 per cent, thereof and to sue for an additional amount, as permitted by the Merchant Marine Act of 1936, as amended, 46 U.S.C.A. § 1242(d). The libel was filed November 27, 1944, claiming $1,035,000 with interest, less credits for the sums received under the War Shipping Administration’s valuation. The case was tried before George W. Alger as Commissioner. He submitted a detailed report, finding “just compensation” for loss of the Alaskan to be $983,250. His report was thoroughly reviewed by Judge Lcibcll and was approved as correct, except as to the calculation of interest. 85 F.Supp. 815. From the final decree entered March 4, 1949, the United States appealed on the ground that the award was too large, and the libellant filed cross-assignments of error on the ground that it was too small. After the appeal was taken, the decision in United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392, was handed down, construing the so-called enhancement clause of section 902(a) of the Act, 46 U.S.C.A. § 1242(a).¹ There[28]*28after on January 30, 1950, the appellant moved in this court for an order remanding the cause for the talcing of evidence and the making of findings alleged to be required under the Cors decision. We denied the motion with leave to the District Court to hear it. After a most thorough and careful consideration, Judge Leibell denied the motion.² The appellant then moved in this court for leave to amend its notice of appeal and to incorporate in the record on appeal the proceedings upon the motion to take additional evidence. We granted leave to incorporate portions of the motion proceedings in the District Court and postponed to the argument of the appeal further consideration of the motion before us.

Most of the appellant’s brief is devoted to argument that the court erred in denying the Government’s motion to take further proof with respect to elements of enhancement under the rule of United States v. Cors.³ This order, if reviewable on appeal, can be reversed only for an abuse of discretion. We find none. For reasons fully stated by Judge Leibell, we do not think that the Cors case made any such change in law applied by the District Court as to constitute a “supervening decision.”⁴ Furthermore, the evidence sought to be introduced was as available to the Government during the trial as it was upon the motion. No reason is apparent to us why the Government should not be treated like any private litigant in applying the rule that available evidence, if it is fo be used, must be brought forward at the trial.⁵ We are content to affirm denial of the motion to reopen the case on the opinion below, 92 F.Supp. 785.

The Commissioner in large part based his valuation of $983,250, which is at the rate of $95 per deadweight ton, on the market value of comparable vessels in 1941. The appellant contends that the 1941 market value includes forbidden enhancement due to.the Government’s need; but the evidence by which this is sought to be established is solely that which was presented upon the motion and which we have just held was properly excluded. Of the record made before the Commissioner, Judge Leibell said, 85 F.Supp. at page 824: “The Commissioner gave due consideration to Rules 1, 3 and 4 of the Advisory Board on Just Compensation * * *. His report shows that ‘enhancement’ due to a general rise in prices or earnings was not deducted from the value at the time of taking, but that any enhancement due to the Government’s need was deducted.” We see nothing to justify reversal of this conclusion as “clearly erroneous.”

The Commissioner’s valuation is also attacked on the ground (1) that it fails to give effect to the Government’s restrictive controls which the Commissioner found had depressed 1942 values below 1941 levels; (2) that it was error to consider reconstruction cost and fail to give adequate effect to the vessel’s depreciation from age in determining her value; and (3) that it was error to choose June 12, 1942 (the vessel’s delivery date under time charter requisition) rather than November 28, 1942 (the date of her loss) as the date as of which she should be valued, although the Commissioner found her value on both dates to have been the same. All of these points were satisfactorily considered in Judge Lei-bell’s first opinion.⁶ We see no occasion to add to that opinion. Nor do we find it necessary to discuss the appellee’s contentions that the award should be increased and interest allowed from the date of the vessel’s loss rather than from the date the libel was filed.⁷ Accordingly both the final decree [29]*29and the order declining to take further proofs are affirmed on the opinions below, with costs.

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191 F.2d 26, 1951 U.S. App. LEXIS 3712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-hawaman-steamship-co-v-united-states-the-alaskan-ca2-1951.

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