Appleton Electric Co. v. United States
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Opinion
Whitaker, Judge,
delivered the opinion of the court:
All of the claims of the ten plaintiffs presently before the court involve cargo unloaded from the steamer John Lyhes in Cebu, Philippine Islands, in December 1941.
On September 27, 1948, nine of the plaintiffs filed an amended petition in case No. 48316, along with several other parties, alleging a taking of their property by the defendant. The tenth plaintiff, Hongkong & Shanghai Banking Corporation, filed its petition on December 5, 1947, in case No. 48317, also alleging a taking of its property.
The facts and circumstances giving rise to these claims are set out fully in the court’s findings of fact and are also discussed in Anderson, Clayton & Company, Inc., v. United States and Colgate-Palmolive-Peet Company v. United [516]*516States, 129 C. Cls. 347. Therefore, a brief summary of these facts and circumstances will suffice here.
The J ohn Lyhes sailed from San Francisco on November 10, 1941, with cargo destined for Shanghai and Manila, and arrived in Manila on December 4, 1941. Some cargo was unloaded there, but port authorities ordered further discharge to be discontinued and the vessel was ordered to proceed to Cebu and to discharge there her cargo destined for Shanghai.
The vessel arrived at Cebu on December 7, and by December 12 had discharged all of her cargo bound for Shanghai except a small amount which was underneath certain cargo originally destined for Manila. On December 13 the Philippine Collector of Customs ordered the John Lyhes to discharge the balance of her cargo at Cebu and this was done by December 19.
On December 9 the agent of Lykes Brothers Steamship Company, which owned the steamer J ohn Lyhes, was ordered by Colonel Cook, the Commanding Officer of the Advanced Quartermaster Depot at Cebu, not to dispose of the cargo without authority from him. Colonel Cook and the agent then leased all available shelter for the cargo, such as empty warehouses and schools, and the cargo was moved to such places.
Except for foodstuffs in the cargo, no inventory was made of the cargo removed to the places leased. An inventory was made of the foodstuffs and these items were retained by the Army for its own use.
Although Colonel Cook took physical control of the cargo and denied plaintiff’s agent access thereto, he did not intend to requisition or to purchase the entire cargo, but only to conserve it so that such parts of it as were of military use would be available when needed. At the time he did not know the contents of the cargo, except that he did know that some of it contained items of military value.
Subsequently, Colonel Cook removed from the places of storage parts of the cargo that were of military use, and appropriated them to the use of the defendant. These items consisted of food, medicines, soap, radios, motorcycles, tobacco, clothing, shoes, refrigerators, alcoholic spirits, and [517]*517building materials. The balance of the cargo was left in the places where it had been stored.
On April 9,1942, Colonel Cook, after receiving word that the Japanese forces were in the vicinity of Cebu, opened the places where the cargo was stored and permitted the natives to remove any part thereof which they desired. On April 10, 1942, forty-five minutes before the Japanese landed on Cebu, Colonel Cook ordered the destruction of all property which might have been of military value to the enemy, including the part of the cargo of the John Lyhes which had not been appropriated by the Army.
The claim of the Colgate-Palmolive-Peet Company, one of the plaintiffs in case No. 48316, was originally considered by this court along with the claim of Anderson, Clayton & Company, Inc., in an opinion reported at 129 C. Cls. 347. Anderson, Clayton & Company was seeking just compensation for 72 bales of cotton which had been unloaded from the John Lyhes at Cebu, and the Colgate-Palmolive-Peet Company was seeking to recover for certain soap and soap flakes. Both the cotton and soap had been discharged from the John Lyhes under the circumstances previously set forth in this opinion.
The court held that since Colonel Cook was given authority to purchase materials of military value, and since it was not shown that the owners of the cargo objected to the appropriation of such property by him, an implied contract arose which bound the defendant to pay for the articles actually appropriated. It was also pointed out that Colonel Cook was not shown to have had authority to take property for a public use under the Government’s power of eminent domain. The court, in summarizing its holding, made the following statement at page 352.
We, therefore, hold that the defendant is liable for all parts of the cargo which it in fact appropriated to its own use, but it is not liable for that part which it did not appropriate to its own use and which was either destroyed when it was in imminent danger of capture by the enemy forces, or which was taken by the native population, with Colonel Cook’s permission, when it was in imminent danger of capture by enemy forces.
[518]*518The claim of Anderson, Clayton & Company, Inc., was dismissed because tbe cotton involved was not removed from its place of storage and appropriated by tbe Army. It was held that tbe Colgate-Palmolive-Peet Company was entitled to recover on its claim because tbe soap involved was appropriated for use by tbe Army. Since the cases had been submitted to the court on tbe question of liability only, judgment was suspended in tbe case of the Colgate-Palmolive-Peet Company pending a report of a commissioner showing tbe amount due the plaintiff.
As to tbe Colgate-Palmolive-Peet claim, only tbe question of tbe value of tbe soap and soap flakes involved is now before the court, since tbe question of liability has been previously determined. As to tbe claims of the other plaintiffs, both liability and damages, if any, are in issue, except as to tbe claim of the Hongkong & Shanghai Banking Corporation for newsprint. Only tbe question of liability is in issue as to tbe latter claim, since evidence as to the value of the newsprint has not been disclosed.
' Tbe question of defendant’s liability in all of these claims is controlled by tbe principles set forth in Anderson, Clayton & Company, Inc., v. United States, and Colgate-Palmolive-Peet Company v. United States, supra. For convenience, all claims will be discussed under tbe name of tbe plaintiff filing tbe claim. Since tbe plaintiffs are entitled to recover, if at all, on the theory of implied contract, none of the claims will bear interest.
CLAIM OF COLGATE-PALMOLIVE-PEET COMPANY
Only tbe question of tbe amount due the Colgate-Palmolive-Peet Company for its soap and soap flakes is now before the court since tbe defendant has previously been held liable on this claim.
On November 6, 1941, tbe Colgate parent company in the United States invoiced the Colgate branch company in Manila, Philippine Islands, for 638 boxes of soap and soap flakes. Tbe total CIF invoice price for all of the soap and soap flakes was $6,007.87.
On that same date tbe American President Lines, as agents for Lykes Bros., Steamship Company, Inc., issued a bill of [519]
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Whitaker, Judge,
delivered the opinion of the court:
All of the claims of the ten plaintiffs presently before the court involve cargo unloaded from the steamer John Lyhes in Cebu, Philippine Islands, in December 1941.
On September 27, 1948, nine of the plaintiffs filed an amended petition in case No. 48316, along with several other parties, alleging a taking of their property by the defendant. The tenth plaintiff, Hongkong & Shanghai Banking Corporation, filed its petition on December 5, 1947, in case No. 48317, also alleging a taking of its property.
The facts and circumstances giving rise to these claims are set out fully in the court’s findings of fact and are also discussed in Anderson, Clayton & Company, Inc., v. United States and Colgate-Palmolive-Peet Company v. United [516]*516States, 129 C. Cls. 347. Therefore, a brief summary of these facts and circumstances will suffice here.
The J ohn Lyhes sailed from San Francisco on November 10, 1941, with cargo destined for Shanghai and Manila, and arrived in Manila on December 4, 1941. Some cargo was unloaded there, but port authorities ordered further discharge to be discontinued and the vessel was ordered to proceed to Cebu and to discharge there her cargo destined for Shanghai.
The vessel arrived at Cebu on December 7, and by December 12 had discharged all of her cargo bound for Shanghai except a small amount which was underneath certain cargo originally destined for Manila. On December 13 the Philippine Collector of Customs ordered the John Lyhes to discharge the balance of her cargo at Cebu and this was done by December 19.
On December 9 the agent of Lykes Brothers Steamship Company, which owned the steamer J ohn Lyhes, was ordered by Colonel Cook, the Commanding Officer of the Advanced Quartermaster Depot at Cebu, not to dispose of the cargo without authority from him. Colonel Cook and the agent then leased all available shelter for the cargo, such as empty warehouses and schools, and the cargo was moved to such places.
Except for foodstuffs in the cargo, no inventory was made of the cargo removed to the places leased. An inventory was made of the foodstuffs and these items were retained by the Army for its own use.
Although Colonel Cook took physical control of the cargo and denied plaintiff’s agent access thereto, he did not intend to requisition or to purchase the entire cargo, but only to conserve it so that such parts of it as were of military use would be available when needed. At the time he did not know the contents of the cargo, except that he did know that some of it contained items of military value.
Subsequently, Colonel Cook removed from the places of storage parts of the cargo that were of military use, and appropriated them to the use of the defendant. These items consisted of food, medicines, soap, radios, motorcycles, tobacco, clothing, shoes, refrigerators, alcoholic spirits, and [517]*517building materials. The balance of the cargo was left in the places where it had been stored.
On April 9,1942, Colonel Cook, after receiving word that the Japanese forces were in the vicinity of Cebu, opened the places where the cargo was stored and permitted the natives to remove any part thereof which they desired. On April 10, 1942, forty-five minutes before the Japanese landed on Cebu, Colonel Cook ordered the destruction of all property which might have been of military value to the enemy, including the part of the cargo of the John Lyhes which had not been appropriated by the Army.
The claim of the Colgate-Palmolive-Peet Company, one of the plaintiffs in case No. 48316, was originally considered by this court along with the claim of Anderson, Clayton & Company, Inc., in an opinion reported at 129 C. Cls. 347. Anderson, Clayton & Company was seeking just compensation for 72 bales of cotton which had been unloaded from the John Lyhes at Cebu, and the Colgate-Palmolive-Peet Company was seeking to recover for certain soap and soap flakes. Both the cotton and soap had been discharged from the John Lyhes under the circumstances previously set forth in this opinion.
The court held that since Colonel Cook was given authority to purchase materials of military value, and since it was not shown that the owners of the cargo objected to the appropriation of such property by him, an implied contract arose which bound the defendant to pay for the articles actually appropriated. It was also pointed out that Colonel Cook was not shown to have had authority to take property for a public use under the Government’s power of eminent domain. The court, in summarizing its holding, made the following statement at page 352.
We, therefore, hold that the defendant is liable for all parts of the cargo which it in fact appropriated to its own use, but it is not liable for that part which it did not appropriate to its own use and which was either destroyed when it was in imminent danger of capture by the enemy forces, or which was taken by the native population, with Colonel Cook’s permission, when it was in imminent danger of capture by enemy forces.
[518]*518The claim of Anderson, Clayton & Company, Inc., was dismissed because tbe cotton involved was not removed from its place of storage and appropriated by tbe Army. It was held that tbe Colgate-Palmolive-Peet Company was entitled to recover on its claim because tbe soap involved was appropriated for use by tbe Army. Since the cases had been submitted to the court on tbe question of liability only, judgment was suspended in tbe case of the Colgate-Palmolive-Peet Company pending a report of a commissioner showing tbe amount due the plaintiff.
As to tbe Colgate-Palmolive-Peet claim, only tbe question of tbe value of tbe soap and soap flakes involved is now before the court, since tbe question of liability has been previously determined. As to tbe claims of the other plaintiffs, both liability and damages, if any, are in issue, except as to tbe claim of the Hongkong & Shanghai Banking Corporation for newsprint. Only tbe question of liability is in issue as to tbe latter claim, since evidence as to the value of the newsprint has not been disclosed.
' Tbe question of defendant’s liability in all of these claims is controlled by tbe principles set forth in Anderson, Clayton & Company, Inc., v. United States, and Colgate-Palmolive-Peet Company v. United States, supra. For convenience, all claims will be discussed under tbe name of tbe plaintiff filing tbe claim. Since tbe plaintiffs are entitled to recover, if at all, on the theory of implied contract, none of the claims will bear interest.
CLAIM OF COLGATE-PALMOLIVE-PEET COMPANY
Only tbe question of tbe amount due the Colgate-Palmolive-Peet Company for its soap and soap flakes is now before the court since tbe defendant has previously been held liable on this claim.
On November 6, 1941, tbe Colgate parent company in the United States invoiced the Colgate branch company in Manila, Philippine Islands, for 638 boxes of soap and soap flakes. Tbe total CIF invoice price for all of the soap and soap flakes was $6,007.87.
On that same date tbe American President Lines, as agents for Lykes Bros., Steamship Company, Inc., issued a bill of [519]*519lading evidencing the receipt of the above merchandise for shipment to Manila on the John LyJces. However, plaintiff was subsequently informed by letter from the American President Lines that only 838 boxes of the total of 638 boxes were in fact loaded on the J ohn LyJces, and that the remaining 300 boxes had been loaded on another vessel at San Francisco and ultimately discharged in Australia. The 338 boxes loaded on the J ohn Lyhes were discharged at Cebu and appropriated by the defendant, and it is the value of this merchandise that plaintiff is entitled to recover.
The Australian Government notified plaintiff that all of the 638 boxes of soap and soap flakes listed in the invoices had been unloaded in Australia except 239 boxes of Palmolive soap and 100 boxes of Peet soap.' One box was apparently lost or appropriated in transit to Australia. Plaintiff later received $3,133.52 from the Australian Government as payment for the 299 boxes of soap and soap flakes unloaded in Australia. This figure was the approximate CIF invoice price at Manila for the 299 boxes unloaded in Australia, although there appears to have been, a slight mathematical error in the computation of the figure.
The CIF invoice price at Manila of the 338 boxes of soap unloaded at Cebu was approximately $2,864.23, while the original invoice price, without freight, insurance, and other incidental costs, was $2,301.26. There is no evidence in the record as to the value of the soap products discharged at Cebu, other than the invoice prices and the amount paid the plaintiff by the Australian Government.
Since there was no agreement on the price to be paid for the goods taken, we must determine the fair price of them, for, we think, the defendant impliedly agreed to pay that price when it took the goods. We are faced with a complex and troublesome problem in attempting to ascertain the fair value of the goods at the time the implied contract arose. Generally, when goods are appropriated the price to be paid is the market value of the goods. However, in the present cases there is no evidence as to sales of similar goods at the time of the appropriation and also there is absolutely no evidence as to what a willing buyer would have paid for plain[520]*520tiff’s soap, had such a buyer existed. The only evidence before us is the invoice value of the soap.
Defendant says that the goods were of little or no value when appropriated because of the chaotic condition then existing. Plaintiff, on the other hand, says that since wartime conditions generally raise prices, the value of the goods was probably a good deal higher than the invoice price. There is no real evidence to support either of these views and the court will not indulge in groundless speculation. Since the only evidence as to the value of the soap is the invoice price, we believe it is reasonable to assume that defendant agreed to pay this price.
Defendant objects to the use of the CIF invoice price because it includes freight, insurance, and other charges. However, we believe it is reasonable to assume that if plaintiff had been able to sell its soap at the time of the appropriation by defendant, the sales price would have included such charges. It is also noted that the invoices were CIF at Manila, while the goods were appropriated at Cebu. It is true that the freight and other charges from the United States to Cebu might have varied somewhat from such charges from the United States to Manila, but there is no evidence in the record as to what this variation would have been. In view of the evidence before us, we believe that the CIF invoice price at Manila is the best and most realistic indication of the value of the soap appropriated by the defendant at Cebu, and it must be assumed defendant agreed to pay this amount.
The total CIF invoice price of the 338 boxes of soap appropriated by the defendant was approximately $2,864.23, and plaintiff is entitled to recover this amount.
APPLETON ELECTRIC COMPANY
The plaintiff company sues to recover the value of 59 packages of iron conduit fittings which it shipped to Manila aboard the John LyTces in 1941. The conduit fittings were unloaded at Cebu in December 1941, under the circumstances previously described in this opinion.
Plaintiff is entitled to recover if Colonel Cook removed the conduit fittings from their place of storage at Cebu and [521]*521appropriated them for the Army. If he removed them, an implied contract arose at that time, and whether or not they were ultimately used by the Army is of no consequence. If he did not remove them, then no implied contract arose and the defendant is not liable. Although there is no direct evidence as to whether or not the iron conduit fittings in question were actually removed from their place of storage, we feel that plaintiff has presented sufficient circumstantial evidence to establish that this is what was done.
The evidence reveals that considerable construction work was being done by the Army in the southern Philippine Islands during the time pertinent to this claim. Colonel Cook testified that many items of construction material unloaded from the John LyTees were used in connection with this work, although he was unable to list the specific items used.
We are of opinion that the plaintiff has removed its case from the realm of conjecture which was fatal to the plaintiff in Hongkong & Shanghai Banking Corporation v. United States, 133 C. Cls. 753. In the instant case there is evidence that many items of construction materials from the John Lykes were actually removed and used by the Army. We believe that this evidence is sufficient to raise a presumption that plaintiff’s property was used or at least removed from its place of storage by the Army, and since the defendant has presented no evidence to rebut this presumption, plaintiff is entitled to recover.
The total CIF Manila invoice price of the iron conduit fittings was $699.65, and for the reasons set forth in the foregoing discussion of the claim of the Colgate-Palmolive-Peet Company, plaintiff is entitled to recover this amount.
BALATOO MINING COMPANY
The plaintiff company sues to recover the value of 35 steel plates of various sizes which were shipped to Manila aboard the John Lykes in 1941. The steel plates were unloaded at Cebu in December 1941, under the circumstances previously discussed in this opinion.
The steel plates in suit fall within the building material category and, for the reasons set forth in the foregoing dis[522]*522cussion of the Appleton claim, plaintiff is entitled to recover the value of its property.
On November 4,1941, A. M. Castle and Company of Chicago invoiced the plaintiff in the amount of $2,794.24 for the 35 steel plates. Balatoc paid the invoice price, plus $471.62 for ocean freight and other shipping expenses, making a total of $3,265.86 expended by it. Plaintiff may have received a small discount in the invoice price for timely payment, but this is not clear from the record. There is no other evidence as to the value of the steel plates.
For reasons stated in the discussion of the Colgate-Palmolive-Peet claim, supra, we believe it is proper to use the invoice price, plus ocean freight and other shipping expenses, as the fair value of the goods at the time of their appropriation. Plaintiff is entitled to recover $3,265.86.
BENGUET CONSOLIDATED MINING COMPANY
The plaintiff company seeks to recover the value of a quantity of iron conduit pipes, 16 steel plates of various sizes, and a quantity of colored rags, all of which were shipped to Manila aboard the John Lyhes in 1941. All three of these items were unloaded at Cebu in December 1941, under the circumstances previously described in this opinion.
The plaintiff is entitled to recover the value of the iron conduit pipe and steel plates, both of which are construction materials, for the reasons stated in the discussion of the Appleton Electric Company claim, supra.
On October 31,1941, the Graybar Electric Company, Inc., invoiced the plaintiff for the iron conduit pipe involved herein. The total invoice price was $709.50, and there was an additional $72.32 for ocean freight, handling, and toll charges to Manila. The evidence does not clearly establish whether or not the plaintiff paid for the invoiced pipe, but since it has been established that it paid the $72.32 for ocean freight and other charges, and since it has been reimbursed for the loss of the pipe by the Continental Insurance Company, it is reasonable to conclude that it did in fact pay for the pipe. There is no evidence as to whether or not the plaintiff received a discount when it paid for the pipe, and [523]*523there is no other evidence in the record as to the value of the iron conduit pipe.
For the reasons set out in the discussion of the Colgate-Palmolive-Peet claim, supra, we believe that plaintiff is entitled to recover $709.50, the invoice price of the pipe, plus $72.32 for freight and other charges, or a total of $781.82.
On November 3, 1941, A. M. Castle & Company invoiced the plaintiff for the 16 steel plates involved herein. The total invoice price of the plates was $1,609.33 and shipping charges amounted to $327.86. Plaintiff paid the invoice price and shipping charges on November 11,1941. There is no other evidence in the record as to the value of the plates at the time they were appropriated.
For the reasons set out in the discussion of the Colgate-Palmolive-Peet claim, supra, the plaintiff is entitled to recover $1,609.33, the invoice price of the steel plates, plus $327.86 for shipping charges, or a total of $1,937.19.
The colored rags in suit were shipped aboard the John Lykes along with a quantity of cotton waste material and were unloaded at Cebu. The Army had use for the rags and appropriated them prior to April 10,1941, and plaintiff is entitled to recover their value. The plaintiff does not ask compensation for the waste materials and it is unnecessary to determine whether or not this material was appropriated by the Army.
On October 31, 1941, C. J. Hendry Company invoiced the plaintiff for the colored rags. The invoice price of the rags was $270, and the shipping charges were $27.70. Plaintiff paid both the invoice price and the shipping charges. There is no other evidence in the record as to the value of the rags.
For the reasons set out in the discussion of the Colgate-Palmolive-Peet claim, supra, the plaintiff is entitled to recover $270, the invoice price of the rags, plus $27.70 for shipping charges, or a total of $297.70.
J. P. HEILBRONN COMPANY, INC.
The plaintiff company sues to recover the value of a quantity of roofing materials and fixtures which were shipped to Manila aboard the John Lykes in 1941, and unloaded at Cebu [524]*524in December of that year under tbe circumstances previously discussed in this opinion.
On October 27, 1941, The Paraffine Companies, Inc., of San Francisco, invoiced the plaintiff for the roofing materials and fixtures involved herein. The invoice price was $918, and the prepaid freight charges to Manila were $556.05. Plaintiff paid the invoice price, less a small discount, and also the shipping charges.
The agents of the John Lyhes at San Francisco issued to The Paraffine Companies, Inc., a bill of lading for shipment of the materials which named The Paraffine Companies, Inc., as the shipper, and also as the consignee in Manila. The bill of lading was stamped to indicate that payment had been made by the J. P. Heilbronn Company, and carried instructions that the Heilbronn Company should be notified when the property arrived in Manila.
The defendant contends that since The Paraffine Companies, Inc., was named as consignee in the bill of lading, it, and not the plaintiff, is the owner of the claim under consideration. We cannot agree with this contention. The plaintiff paid the invoice price and the shipping charges, the plaintiff was to be notified upon the arrival of the materials in Manila, and the plaintiff had been reimbursed for the loss of the materials by the Fireman’s Fund Insurance Company. We think that these factors are sufficient to establish plaintiff’s ownership of the claim.
Since the roofing materials and fixtures in suit fall within the building material category, plaintiff is entitled to recover on its claim for the reasons set out in the discussion of the Appleton claim, supra.
There is no evidence in the record as to the value of the roofing materials and fixtures other than the invoice price and the shipping costs.
For the reasons set out in the discussion of the Colgate-Palmolive-Peet claim, supra, the plaintiff is entitled to recover $918, the invoice price of the roofing materials and fixtures, and $556.05 for shipping charges, or a total of $1,474.05.
[525]*525HUTH & JAMES SHOE COMPANY
The plaintiff company sues to recover the value of a quantity of shoes which were shipped to Manila aboard the John Lykes and unloaded at Cebu in December 1941 under the circumstances previously set out in this opinion.
On October 24, 1941, the plaintiff invoiced the Hamilton Brown Shoe Company of Manila for the shoes herein involved. The invoice price was $218, and the cost of shipping the merchandise to Manila was $28.14. There is no evidence that the Hamilton Brown Shoe Company ever paid the plaintiff for the shoes or for the shipping charges, and the plaintiff has been reimbursed for the loss of the shoes by the American Insurance Company.
The Army had use for the shoes and appropriated them prior to April 10,1941, and the plaintiff is entitled to recover their value at the time they were appropriated.
There is no evidence in the record as to the value of the shoes other than the invoice price and the shipping costs.
For the reasons set out in the discussion of the Colgate-Palmolive-Peet claim, supra,, the plaintiff is entitled to recover $218, the invoice price of the shoes, plus $28.14 for shipping charges, or a total of $246.14.
NEDERLANDSCHE HANDEL-MAATSCHAPPIJ, N. V.
The plaintiff company sues to recover the value of a quantity of dried shrimp that was shipped to Shanghai aboard the John Lykes in 1941 and unloaded at Cebu in December of that year under the circumstances previously set out in this opinion.
On November 7, 1941, the Trans-Pacific Company of San Francisco invoiced the Pao Lai Trading Company of Shanghai for the dried shrimp involved herein. The CIF Shanghai price was $5,870.78.
Plaintiff’s Shanghai office established a letter of credit for the account of the Pao Lai Trading Company with The Trans-Pacific Company named as beneficiary in the letter, and the Wells Fargo Bank in San Francisco was advised of the letter of credit.
[526]*526On November 9, 1941, The Trans-Pacific Company drew its sight drafts, without recourse, in the total amount of $5,870.78 on the Pao Lai Trading Company, and presented them to the Wells Fargo Bank, together with attached duplicate signed invoices, two original ocean bills of lading, and insurance papers. On November 9, 1941, the Wells Fargo Bank paid to The Trans-Pacific Company $5,870.78 and received from the latter the drafts and attached papers.
Wells Fargo Bank subsequently forwarded the bills of lading to the New York office of the plaintiff, and the plaintiff paid the Wells Fargo Bank $5,870.78.
After the dried shrimp was unloaded at Cebu, the Army appropriated it and used it prior to April 10, 1942, and the plaintiff is entitled to recover its value. The only evidence in the record as to the value of the shrimp is the CIF Shanghai price. There is no evidence as to what the CIF Cebu invoice value would have been.
The total CIF Shanghai invoice price of the shrimp was $5,870.78, and for reasons stated in the discussion of the Colgate-Palmolive-Peet claim, supra, we think that this figure is the best and most realistic indication of the value of the shrimp when appropriated at Cebu.
Plaintiff is entitled to recover $5,870.78.
PHILIPPINE AMERICAN DRUG COMPANY
The plaintiff company sues to recover the value of a physician’s complete laboratory set consisting of drugs, medicines, and chemicals. The set was shipped to Manila aboard the John Lyhes in 1941, and unloaded at Cebu in December of that year under the circumstances previously discussed in this opinion.
On October 24, 1941, A. S. Aloe Company of St. Louis invoiced the plaintiff for the laboratory set herein involved. The invoice price was $135.93, and plaintiff was also billed $14.80 for transportation of the merchandise from St. Louis to Manila. Plaintiff paid the freight charges and it is reasonable to conclude that it also paid for the merchandise at the invoice price. Plaintiff was subsequently reimbursed for the loss of the laboratory set by the Firemen’s Fund Insurance Company.
[527]*527The Army appropriated the laboratory set prior to April 10,1942, and the plaintiff is entitled to recover its value.
There is no evidence in the record as to the value of the laboratory set other than the invoice price and the shipping costs.
For the reasons set out in the discussion of the Colgate-Palmolive-Peet claim, supra, the plaintiff is entitled to recover $135.93, the invoice price of the merchandise, plus $14.80 for shipping charges, or a total of $150.73.
WOOD & SELICK, INC.
The plaintiff company sues to recover the value of a quantity of paper bags, wrapping paper, and bag closing materials. These items were shipped to Manila aboard the J ohn Lyhes in 1941, and were unloaded at Cebu in December of that year under the circumstances previously discussed in this opinion.
The defendant says that the plaintiff is not the owner of the claim and is not entitled to sue in this court. We cannot agree with the defendant’s contention.
On October 24,1941, Bagpac, Inc., of New York City, invoiced the plaintiff for the merchandise herein involved and for transportation charges from New Orleans to Manila. The invoice contained instructions to ship the merchandise to Bed V Coconut Products, Ltd. (hereinafter referred to as “Bed V”), which was a manufacturer of desiccated coconut in the Philippines. The paper bags and other merchandise in question were to be packed by Bed V with desiccated coconut and shipped to plaintiff, which acted as Bed Y’s exclusive selling agent in the United States. On October 30,1941, the plaintiff paid the total invoice price of $7,660.74, which included transportation charges, and charged it against an account on its books representing balances due Bed V. However, plaintiff did not invoice the materials to Bed V.
The materials were shipped to Manila on the J ohn Lyhes on a bill of lading which named Bagpac, Inc., as shipper and Bed Y as consignee.
It is true that the fact that Bed Y was named as consignee in the bill of lading raises a presumption that it was the owner of the merchandise, rather than plaintiff. Further[528]*528more, tbe fact that tbe plaintiff charged an account due Ned V when it paid for tbe merchandise indicates that Eed V was the true purchaser, and that plaintiff was merely acting on its behalf. On the other hand, however, plaintiff paid for the merchandise and did not bill Red Y, and Red Y filed a formal disclaimer of any interest in the materials. Plaintiff insured the property and has been reimbursed for its loss. We believe that these factors rebut the presumption that Red Y is the owner of the claim and establish the plaintiff as the owner. It is particularly significant that plaintiff, and not Red Y, bore the risk of loss in transit and insured the merchandise against such loss. This strongly indicates that it was the intention of the parties that title was not to pass from the plaintiff to Red Y until delivery of the goods to Red Y in Manila.
After considering all evidence in the record, we believe that the plaintiff is the owner of the claim and is entitled to sue in this court.
After the merchandise was unloaded at Cebu, it was appropriated by the Army prior to April 10,1942, and plaintiff is entitled to recover its value. There is no evidence in the record as to the value of the paper bags, wrapping paper, and bag closing materials, other than the invoice price and transportation charges.
For the reasons set out in the discussion of the Colgate-Palmolive-Peet claim, supra, plaintiff is entitled to recover $7,660.74, which includes the invoice price, plus transportation charges.
HONGKONG & SHANGHAI BANKING CORPORATION NO. 48317
The plaintiff corporation sues to recover the value of a quantity of glucose and a number of rolls of newsprint, both of which were shipped to Manila aboard the John LyTces in 1941, and unloaded at Cebu in December of that year under the circumstances previously discussed in this opinion.
In 1941 Otis McAllister & Company, of San Francisco, sold the glucose herein involved to Frost Bland and Company of Shanghai, China for $1,707.75, CIF Shanghai, plus a war risk insurance charge of $25.88, or a total of $1,733.63. McAllister drew a ninety-day sight draft of $1,733.63 on [529]*529Frost Bland and presented it for payment to the plaintiff banking corporation’s San Francisco agency, together with a properly endorsed bill of lading and other documents. The plaintiff’s San Francisco agency paid McAllister the amount of the draft under a letter of credit which had been issued and submitted to the San Francisco agency by plaintiff’s home office in Shanghai. On November 29, 1941, plaintiff’s San Francisco agency forwarded the draft and attached documents by air mail to plaintiff’s home office in Shanghai for collection from Frost Bland. The draft and attached documents disappeared and it cannot be determined whether they ever arrived in Shanghai, or, if they did, whether war conditions prevented the draft from being presented for payment to, or paid by, the purchaser. It is reasonable to conclude that the amount of the draft was not collected from Frost Bland.
After the glucose was unloaded at Cebu, it was appropriated for use by the Army prior to April 10, 1942, and the plaintiff is entitled to recover its value at the time of the appropriation.
There is no evidence in the record as to the value of the glucose other than the CIF Shanghai price and the war risk insurance charge.
For reasons stated in the discussion of the Colgate-Palmolive-Peet claim, supra, plaintiff is entitled to recover $1,707.75, the CIF Shanghai price, plus $25.88 for war risk insurance, or a total of $1,733.63.
The newsprint in question was taken to places of storage in Cebu along with other items of cargo from the John Lyhes. Prior to April 10, 1942, an undetermined quantity of the newsprint was either delivered to two newspapers in the Cebu area, or they were permitted to remove it. The newspapers used this newsprint in order to continue operating. The newsprint not used by the newspapers were destroyed to prevent it from falling into enemy hands. The Army itself had no use for any of the newsprint.
Plaintiff says that by permitting the local newspapers to use the newsprint, the Army appropriated it to its own use and is therefore liable under the theory of implied contract to pay for the newsprint used. We cannot accept this view.
[530]*530Colonel Cook is not shown to have had authority to take property for a public use. He did have authority to acquire by purchase such materials as were of military value. However, it does not appear from the evidence that the newsprint in question had any real military value or that the newsprint was ever appropriated for use by the Army. The circumstances surrounding the use of the newsprint by the newspapers are not clear from the evidence and it is not shown that the newspapers were being operated by or for the Army.
We believe that the evidence fails to establish any implied contract between the plaintiff and the defendant as to the newsprint, and plaintiff is not entitled to recover on this claim.
The plaintiffs in cases Nos. 48316 and 48317 are entitled to recover pursuant to the court’s conclusion of law.
It is so ordered.
BINDINGS OP PACT
The court, having considered the evidence, the report of Commissioner C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:
1. On July 13, 1954, the court handed down its decision on the claims of Anderson, Clayton & Company, Inc., C. Cls. No. 48313, and Colgate-Palmolive-Peet Company, one of the several plaintiffs in Case No. 48316, relating to their claims for cargo on the steamer John Lyhes, unloaded in Cebu, Philippine Islands, in December 1941, and appropriated by defendant. In that opinion (129 C. Cls. 347, 352) the court held that “the defendant is liable for all parts of the cargo [of the Johm Lyhes] which it in fact appropriated to its own use, but it is not liable for that part which it did not appropriate to its own use and which was either destroyed when it was in imminent danger of capture by the enemy forces, or which was taken by the native population, with Colonel Cook’s permission, when it was in imminent danger of capture by enemy forces.”
[531]*531Subsequent to that decision, certain claims relating to cargo of the John Lyhes which were pending in this court were voluntarily dismissed by the plaintiff.
Hearings were thereafter held, limited by order of the commissioner to the question of damages on the Colgate-Palmolive-Peet claim, and to the question of liability on the other claims involving cargo from the John Lyhes. Since then, however, the parties have consented to the closing of evidence on all issues, including the issue of damages, except as to the claim of the Hongkong & Shanghai Banking Corporation for newsprint as described herein in findings 78-81, infra. Thus, these findings deal with all issues except that of damages as to the newsprint claim. For purposes of continuity, findings 1 through 19 of the reported opinion (129 C. Cls. 347) are repeated here as findings 2 through 20.
2. The John Lyhes was an American-flag vessel owned and operated by the Lykes Brothers Steamship Company. It loaded cargo at New Orleans, Los Angeles, and San Francisco, and sailed from San Francisco on or about November 10,1941, destined for Shanghai, China, and Manila, Philippine Islands, in that order.
3. On December 4,1941, the John Lyhes arrived at Manila and there unloaded certain cargo destined for Manila consignees. There is a lack of competent evidence as to whether the change in itinerary en route, which caused the vessel to stop at Manila first instead of Shanghai as scheduled, was due to orders from the United States Navy or the personal election of the master of the vessel or its owners under the following provision of the bill of lading:
In any situation whatsoever or wheresoever occurring and whether existing or anticipated before commencement of or during the voyage, which in the judgment of the carrier or master is likely to give rise to capture, seizure, detention, damage, delay or disadvantage to or loss of the ship or any part of her cargo, or to make it unsafe, imprudent, or unlawful for any reason to proceed on or continue the voyage or to enter or discharge the goods at the port of discharge, or to give rise to delay or difficulty in arriving, discharging at or leaving the port of discharge or the usual place of discharge in such port the master, whether or not proceeding to[532]*532ward or entering or attempting to enter the port of discharge or reaching or attempting to reach the usual place of discharge therein or attempting to discharge the goods there, may, without giving any prior notice, discharge the goods into depot, lazaretto, craft, or other place and the goods shall be liable for any extra expense thereby incurred; or the master may proceed or return, directly or indirectly, to or stop at such other port or place whatsoever as he or the carrier may consider safe or advisable under the circumstances, and discharge the goods or any part thereof there without giving any prior notice, and when landed as hereinabove provided, the goods shall be at their own risk and expense, the delivery thereof by the carrier shall be considered complete and the carrier shall be freed from any further responsibility in respect thereof except to mail notice of the disposition of the goods directed to the shipper or consignee named in this bill of lading at such address as may be stated herein; or the master may retain the cargo on board until the return trip or until such time as he or the carrier thinks advisable; or the master may forward the goods by any means by water or by land, or by both such means, at the risk and expense of the goods. For any services rendered to the goods as hereinabove provided, the carrier shall be entitled to a reasonable extra compensation.
4. Because of a shortage of pier and warehouse facilities at Manila, on December 6,1941, the master of the John Lykes was ordered by defendant’s representative to discontinue discharging cargo at Manila and to proceed to Cebu, Philippine Islands, and there discharge the cargo destined for Shanghai.
5. The John Lykes sailed from Manila on December 6, 1941, and the following day arrived at the Advanced Quartermaster Depot at Cebu (hereafter Cebu Depot), about 350 miles south of Manila, where all Shanghai cargo was discharged between December 7 and December 12, with the exception of a small amount in Number 1 hold which was underneath Manila cargo. She then moved out into the stream awaiting orders to return to Manila to discharge her Manila cargo there.
6. On December 9, Colonel Cook, the Commanding Officer of the Cebu Depot, advised the agent for Lykes Brothers in Cebu that the cargo from the John Lykes was to be held [533]*533under Army control, and not to be disposed of without authority from him or his representative. In making this statement he did not intend to assume ownership of any part of the cargo, but only to take steps to see that it was not dispersed until he had an opportunity to examine it and learn whether it contained anything that could be useful to him in his supply operations. Colonel Cook leased additional warehouse and other storage space in Cebu and vicinity that had been located with the help of the agent of Lykes Brothers. In moving the cargo to warehouses (finding 9, infra) it was not separated according to type and that which had a potential military use was not segregated, except that all items identifiable as foodstuffs were moved to a warehouse which had been rented by the Army and were inventoried and retained permanently by the Army. The balance of the cargo that was warehoused was not inventoried. The inventory of the foodstuffs was later destroyed.
7. On December 13, 1941, the master of the John Lyhes received the following letter from the Philippine Customs Authority:
Bureau of Customs
CEBU
CONFIDENTIAL December 13,1941
The Master
S/S John Lyhes
Port of Cebu
Dear Sir :
For your information and guidance, I have to quote hereunder a portion of the message from the U. S. Navy, Cavite, which affects your vessel. “DIRECT JOHN LYKES UNLOAD MANILA CARGO AT CEBU, IS1 ABLE WORK NIGHT OVERTIME THEN PROCEED RIGHT VIA MAKASSAR STRAIT TO PORT DARWIN. IF NECESSARY REPLENISH BUNKERS AT BALIKAPAPAN.”
Please be guided accordingly.
Respectfufly.
(Signed) Melecio Fabros,
Collector of Customs.
[534]*5348. Between December 13 and December 19, 1941, all tbe remaining cargo on board tbe John LyTces, including tbat destined for Manila, was discharged at Cebu. The vessel left Cebu free of its cargo on December 19,1941.
9. There was insufficient storage space on the piers in Cebu and Colonel Cook and the agent for Lykes Brothers, as stated, leased all the available shelter they could locate, such as warehouses, empty schools and residences, and removed to them the cargo in Army trucks, which were the only trucks then available in Cebu. This was done in order to clear the piers to make them available for other anticipated shipments and to disperse the material so as to minimize the effects of expected enemy bombing. Except for a few pieces of heavy machinery which were left on the pier, all of the cargo of the John Lykes unloaded onto the pier was removed to places of storage.
10. On December 24 Colonel Cook advised the local agent for Lykes Brothers that he was taking physical control of the cargo from the John Lykes. Thereafter, he installed new locks on the doors of the structures where the cargo was stored and denied the agent free access to the stored cargo. He permitted certain local consignees to remove parts of the cargo consigned to them. At this time Colonel Cook did not have an inventory of the cargo (except the manifest which apparently he had not examined, and the foodstuffs inventory which was later destroyed) or know its full contents, although he knew that it included some items of military use, such as food, clothing, medicines, motorcycles and refrigerators. In taking physical control of the cargo Colonel Cook announced to the agent his intention to give receipts but this was never accomplished. His intention was to conserve the cargo so that such of it as would be useful to satisfy military or civilian requirements, which were within his responsibilities to provide, would be available when needed.
11. Following December 24 Colonel Cook actually appropriated certain items from the cargo of the John Lykes which were needed in his supply operations, removed those items from their places of storage, and distributed them to the troops and civilian population. The items which he so [535]*535appropriated were food items (other than dog food), medicines, radios, motorcycles, tobacco, building materials, clothing, shoes, refrigerators, and spirits (other than wine). He included in this category of items those taken off by the native population at his instructions on April 9, 1942, when the warehouses were opened for that purpose (finding 12, infra).
12. On April 9,1942, Colonel Cook received word that the Japanese enemy forces were approaching Cebu. He accordingly directed that the warehouses and other places of storage under his control which held clothing and foodstuffs be opened to the natives so they could take what they wanted. There had been no local looting of property in the Cebu area up to April 9,1942. At 5:15 a. m., April 10,1942, at a time when he was out of touch with higher authority, Colonel Cook directed the destruction of the warehouses and other storage centers at Cebu, together with cargoes discharged from vessels and many fixed and floating facilities which might have been of military value to the enemy. The demolition was carried out and the Japanese invaded Cebu at 6 a. m., on that day.
13. a. On July 27,1941, the command known as USAFFE (United States Armed Forces in the Far East) was created and General Douglas MacArthur was placed in command. The Philippine Department, United States Army, was continued in the echelon of command under Headquarters, USAFFE.
b. General Charles C. Drake, who had theretofore been Department Quartermaster, Philippine Department, was assigned as Chief Quartermaster, USAFFE, on July 28,1941, and continued to discharge the duties of both offices until approximately October 25, 1941. On or about the latter date he was relieved as Department Quartermaster, Philippine Department, and succeeded by Colonel Brezina, who remained in the assignment or its equivalent until the removal of the forces to Bataan on or about December 24,1941. The Chief Quartermaster, USAFFE, had no quartermaster command duties to perform, but as a staff officer of USAFFE he prepared orders relating to procurement, supply and. transportation which were issued by the Adjutant General, [536]*536USAFFE, in the name of, and by command of, General MacArthur for administration and execution by the Philippine Department and its successor command.
o. In November 1941 the Philippine Department was absorbed in the USAFFE Field Service Command, which was thereafter sometimes referred to as the Philippine Department Service Command. General MacArthur retained command of the USAFFE Field Service Command as well as USAFFE. The order establishing the USAFFE Field Service Command and defining its functions was vague in defining and limiting the duties of control, administration, operation and maintenance to the various echelons of command, and caused some confusion in the minds of the officers charged with the duties above mentioned. In general, the USAFFE Field Service Command had no tactical control, but was charged with the administration and operation of supply and maintenance facilities of the supply services and the command of personnel and troops assigned to them. Headquarters, USAFFE, through its Chief Quartermaster, was charged with control of these facilities, including staff supervision and inspection. From the formation of the USAFFE Field Service Command until its removal to Bataan on or about December 24,1941, all directions dealing with the control and supervision of all quartermaster facilities in the Philippines, including the Cebu Depot, proceeded from the Chief Quartermaster, USAFFE, through the Department Quartermaster, USAFFE Field Service Command. Thereafter such duties as the latter had in connection with the operation and administration of the depot at Cebu were taken over by the Chief Quartermaster, USAFFE.
14. In October 1941, when USAFFE decided to expand its supply facilities' to provide subsistence, clothing and equipage for the Philippine Army then being mobilized in the southern islands, it was decided that Advanced Quartermaster Depots should be opened at Cebu and at other strategic locations in the Philippines. The Cebu Depot was established November 25, 1941, but did not commence functioning until sometime after December 5, 1941. Its initial missions were (1) to furnish supplies to all troops in the [537]*537Visayan-Mindanao area; (2) to stock a six-months’ supply of all items, except subsistence; and (3) to procure subsistence supplies locally for all troops in the area.
15. The facts of record bearing on Colonel Cook’s official authority to take over the cargo of the John LyTees are contradictory and confusing. Army regulations, which may have provided a helpful clue, are not in evidence. Reconciling the numerous inconsistencies in the testimony and giving full weight to those few areas in which the experts agreed, the following facts emerge:
a. In his original orders assigning him to command the Cebu Depot, Colonel Cook, in order to accomplish the missions of his command described in finding 14, supra, was authorized to procure locally in Cebu as many supplies as were available there that he needed and to requisition the balance from the quartermaster depot in Manila, using his own discretion as to the supplies to be procured locally and to the method of their procurement. As it turned out, the Cebu Depot received no supplies from Manila. The bulk of supplies dispatched by ship from Manila to Cebu were sunk by a mine on December 16,1941.
5. Prior to December 8, 1941 (Manila time), when the Japanese attacked Pearl Harbor, no specific authority to make wartime requisitions of private property had been delegated by General MacArthur to any officer under his command. At no time prior to December 8 or thereafter did Colonel Cook request or receive from his superiors specific authority to seize private property, unless it can be interpreted as being implicit in his original orders.
e. On or about December 10,1941, the power so to requisition private property from an unwilling owner was delegated by General MacArthur to General Drake, the Chief Quartermaster, USAFFE, to be exercised by or under the authority of the latter’s executive officer. This was in the form of a mimeographed order, issued by General MacArthur, a copy of which was to be authenticated and issued with each use. No such authorization was ever issued to Colonel Cook.
d. While an emergency existed in Cebu in December 1941, there was then no immediate danger in that locality of an [538]*538enemy invasion. Telephone communications between the Cebu Depot, USAFFE Headquarters in Manila, and the USAFFE Field Service Command in Manila were intact up until the evacuation of Manila on December 24. Thereafter, up until the invasion of Cebu on April 10, 1942, the Cebu Depot and USAFFE Headquarters on Corregidor were in frequent communication by radio and air messenger service.
e. Colonel Cook appointed officers under him to command several procurement districts and so-called “navigation heads,” and gave them directions in the local procurement of supplies. The directions given made no mention of procurement by seizure or commandeering of private property, but contemplated contracts and purchases with funds made available for that purpose to be expended by the commanding officers of the procurement districts whom he had also appointed as finance officers to enable them to carry out their duties.
f. On December 15, 1941, the commanding officer of another Advanced Quartermaster Depot at Tarlac, which had been established simultaneously with the Cebu Depot as part of the same overall plan of quartermaster supply, was prohibited by the executive officer of the Chief Quartermaster, USAFFE, from seizing from warehouses for military use a quantity of foodstuffs belonging to Japanese merchants.
g. On or about December 15, 1941, General Sharpe, the Commanding General of the Visayan-Mindanao forces (which embraced the geographical area of Cebu), directed Colonel Cook to requisition the cargo of the John Lyhes, but General Sharpe had no command relationship over the Cebu Depot, which was directly under USAFFE, and Colonel Cook did not recognize his authority to issue such orders. Nor had the power to requisition private property been delegated General Sharpe by higher authority.
16. The evidence is piecemeal as to the nature of the emergency in Cebu during this period. The following facts reflect primarily on circumstances in the Manila area:
In the fall of 1941 there was a feeling of war emergency in the air in the Philippines. On or about November 24, 1941, the troops commanding the harbor defenses of Manila [539]*539and Subic Bays were placed on a one hundred percent wartime alert basis. On December 1,1941, General MacArthur was warned by the War Department of a possible break with Japan and was ordered to prepare for that eventuality. All USAFFE troops not already alerted were alerted immediately and moved to pre-allotted positions in observation and readiness throughout the Philippines. On December 8, 1941, at 8:30 a. m. (Manila time), General MacArthur received word of the attack on Pearl Harbor and ordered all troops to battle stations. That day was “M-Day” or “emergency day,” as the term was used in the plan which had been devised for the defense of the Philippines. Bombing of military objectives by the enemy commenced almost immediately. Enemy landings on Luzon commenced December 10. On that day General MacArthur was given carte blanche authority to commission both civilian and military individuals as temporary officers in the United States Army. Sometime in December prior to the evacuation of Manila on December 24, the commanding officer of the quartermaster depot in Manila was instructed to take charge of all supplies of any military value in the Manila Port Terminal area, including supplies in the warehouses, on docks and piers, and in vessels in the harbor. For the supplies thus taken over he was to sign receipts. During the same approximate period under the chaotic conditions that prevailed, there occurred many unauthorized seizures and hijackings of motor vehicles by American military units from the Army motor pools, and seizures of motor vehicles from private owners seem to have been sanctioned to some extent by G-4, USAFFE, on December 14, 1941, and again on December 23. The discipline and control of the troops and their compliance with orders during December 1941 was sadly deficient. There had been an enemy air strafing attack on oil installations in Cebu early in December 1941, and a bomb was dropped in the City of Cebu at some unstated time, but organized enemy bombing of Cebu did not occur until April 12,1942.
17. Up until December 24, Colonel Cook made daily “strength returns” of the forces in the Visayan-Mindanao area by telephone to the Quartermaster of the USAFFE [540]*540Field Service Command in Manila. On December 24 the latter instructed Colonel Cook that further reports were unnecessary, that the Manila Depot was folding up and would not be able to provide supplies for the Cebu Depot, and that thereafter Colonel Cook was “on his own.” The extent of authority of the Quartermaster, USAFFE Field Service Command, to give the last instruction to Colonel Cook or precisely what he meant is not made clear by the evidence.
18. On December 25 Colonel Cook was informed of a communication from General MacArthur to the effect that Manila was to be declared an open city and that the American military forces in the south (which included those on Cebu) would be “on their own.”
19. Following December 24, when USAFFE Headquarters evacuated Manila to Corregidor and the USAFFE Field Service Command evacuated Manila to Bataan, the Cebu Depot was called upon to supply the Corregidor-Bataan troops. The Cebu Depot let contracts for the local manufacture of certain items, principally wearing apparel, and many of these, together with locally purchased apparel and foodstuffs, were shipped to the beseiged forces but failed to pierce the enemy blockade.
20. On February 12, 1942, the Cebu Depot was opened as a principal receiving and shipping port for the handling of supplies for USAFFE shipped in from Australia, and Colonel Cook was appointed Port Commander. Several large freighters arriving there in February and March 1942 were unloaded.
21. The laws of the Philippine Islands, of the Crown Colony of Hongkong, and of the Kingdom of the Netherlands permit citizens of the United States to file suit against such governments in their courts.
CLAIM OE COLGATE-PALMOLIVE-PEET COMPANY 2
22. The court has previously determined that the Colgate-Palmolive-Peet Company (hereinafter “Colgate”) is entitled to recover.
[541]*54123.On November 6,1941, tbe Colgate parent company in the United States invoiced the Colgate branch company in Manila, Philippine Islands, for a quantity of soapstuft's. The invoices collectively provided the following information as to identity and quantity of the soapstuffs, and costs of freight, insurance, and other fees involved in the sale:
24. The American President Lines, as agent for Lykes Bros. Steamship Co., Inc., issued on November 6, 1941, a bill of lading evidencing the receipt of the above merchandise for shipment to Manila on the John Lykes. However, plaintiff was informed in March 1942 by letter from the American President Lines that only 338 boxes of the total 638 boxes containing the merchandise were in fact loaded on the John Lykes, and that the remaining 300 boxes had been loaded on board the S. S. Admiral Halsted at San Francisco and ultimately discharged in Australia. Three hundred thirty-eight boxes were discharged from the J ohn Lykes at Cebu.
25. By memorandum of August 22,1944, the Department of Trade & Customs of the Commonwealth of Australia informed plaintiff that there had been unloaded in Australia from the Admiral Halsted as refugee cargo all of the merchandise listed in finding 23, except 239 boxes of Palmolive soap and 100 boxes of Peets soap, and offered to pay plaintiff $3,122.52 for the refugee cargo actually unloaded in Australia upon submission and approval of plaintiff’s claim therefor. The evidence does not reveal why the Australian Government indicated receipt of only 299 boxes of soap and soap flakes rather than 300 boxes, but it is reasonable to conclude that one box was lost or appropriated in transit to Australia. Plaintiff later received payment of $3,133.52 from the Australian Government.
[542]*54226. Assuming the facts contained in the letter and memorandum referred to in findings 24 and 25, and with a minor mathematical correction of an apparent error in the latter, the CIF invoice price at Manila of the 338 boxes of soap-stuffs unloaded at Cebu from the JoJm Lyhes was $2,864.23, while its original invoice price, without freight, insurance and other incidental costs, was $2,301.26.
27. There is no evidence in the record, other than the invoice prices and the amount paid Colgate by the Australian Government, with respect to the value of the soap products discharged at Cebu.
28. There is no evidence in the record as to the corporate status of plaintiff Appleton Electric Company (hereinafter “Appleton”) other than a copy of the power of attorney it gave its present attorneys in April 1948, which document was received in evidence as part of a plaintiff’s exhibit without objection by defendant, and describes Appleton as an Illinois corporation with its principal office in Chicago.
29. On October 29, 1941, Appleton invoiced the Marsman Trading Corporation of Manila for 59 packages of iron conduit fittings which were shipped to the purchaser in Manila, on the John Lyhes and unloaded therefrom at Cebu in December 1941 under circumstances heretofore described. The total invoice price of the merchandise was $637.88, less a discount of 5 percent allowable under certain conditions, the nature of which are unclear. To the invoice price were added charges for insurance, ocean freight, and forwarding fee, making a total CIE Manila price of $699.65.
30. Appleton submitted a claim to the War Department in 1948 for reimbursement, to which it attached a full set of the through inland bill of lading covering the receipt of the material in question by the rail carrier for shipment by rail from Chicago, Illinois, to San Francisco, where it was to be shipped by water to Manila. Appleton regained possession of the full set (4) of the said inland bill of lading and filed them as part of an exhibit in this case. Agents of the John Lyhes issued a “memorandum” ocean bill of lading to [543]*543Appleton in San Francisco, but tlie present whereabouts of this is not established by the evidence.
31. The Army had use for the material in question in connection with its construction activities in the southern Philippine Islands at the time, and the evidence indicates that many items of construction materials unloaded from the John, Lykes were in fact used by the Army. Although there is no direct evidence, it is reasonable to conclude that the conduit fittings involved were removed for use by the Army.
32. There is no evidence as to whether or not the amount of the invoice described in finding 29 was paid to Appleton by the purchaser, Marsman Trading Corporation. Appleton has, however, been reimbursed $150 by the American Insurance Company.
balatoc mining company
33. There is no evidence in the record as to the corporate status of plaintiff Balatoc Mining Company (hereinafter “Balatoc”) other than a copy of the power of attorney it gave its present attorneys in April 1948, which document was received in evidence as part of a plaintiff’s exhibit without objection by defendant and describes Balatoc as a Philippine corporation with its principal office in Manila.
34. On November 4,1941, A. M. Castle & Co. of Chicago, Illinois, invoiced Balatoc in the amount of $2,794.24 for 35 steel plates of various sizes which were shipped to Balatoc in Manila on the John Lykes and unloaded therefrom at Cebu in December 1941 under circumstances heretofore described. Balatoc paid the invoice on November 11, 1941, plus $471.62 for ocean freight and other shipping expenses. It is possible that the plaintiff received a small discount when it made payment, but this is not clear from the evidence.
35. Balatoc submitted a claim to the War Department in 1948 for reimbursement, to which were attached three out of four originals of the ocean bill of lading covering receipt of the material in question by agents of the John Lykes for shipment from San Francisco to Manila. The fourth original bill of lading is unaccounted for, but Balatoc regained possession from the Army of one of the three originals pre[544]*544viously deposited, it being stamped “Original, Non-Negotiable, Freight Prepaid” and filed as part of a plaintiff’s exhibit in this case.
36. The Army had use for the material in question in connection with its construction activities in the southern Philippine Islands at the time, and the evidence indicates that many items of construction materials unloaded from the John, Lylces were in fact used by the Army. Although there is no direct evidence, it is reasonable to conclude that the steel plates involved were removed for use by the Army.
37. Balatoc was reimbursed for the loss by the Continental Insurance Company.
38. There is no evidence in the record as to the status as a business entity of plaintiff Benguet Consolidated Mining Company (hereinafter “Benguet”) other than a copy of a power of attorney it gave its present attorneys in April 1948, and a resolution of its Board of Directors of the same date, which power of attorney and resolution refer to Benguet as a “sociedad anónima,” incorporated under the laws of the Philippine Islands (also as “sociedad anónima, a corporation duly organized and existing under the laws of [the] Philippine Islands”) with its principal office at Manila. These documents were received in evidence as part of a plaintiff’s exhibit without objection by defendant.
39. On October 31, 1941, the Graybar Electric Company, Inc., invoiced Benguet for various purchases by the latter, including a quantity of iron conduit pipe which was shipped to Benguet at Manila on the Jolm Lyhes and unloaded therefrom at Cebu in December 1941 under circumstances heretofore described. The total invoice price of the iron conduit pipe was $709.50, less a cash payment discount, in addition to $72.32 for ocean freight, handling, and toll charges to Manila. Benguet paid $72.32 for ocean freight, handling, and toll charges, but the evidence does not establish whether or not Benguet ever paid for the invoiced material, or if so, whether it received any discount. It is reasonable to conclude that Benquet did in fact pay for the pipe.
[545]*54540. On November 3, 1941, A. M. Castle & Co. invoiced Benguet for 16 steel plates of various sizes purchased by Benguet which were shipped to Benguet at Manila on the John Lyhes and unloaded therefrom at Cebu in December 1941 under circumstances heretofore described. The total invoice price of the steel plates was $1,609.33. To the invoice price were added shipping charges of $327.86. Benquet paid the invoice price and shipping charges on November 11,1941.
41. On October 31,1941, C. J. Hendry Company invoiced Benguet $427 for a quantity of colored rags and colored cotton waste purchased by Benguet, shipped (under a classification of “junk rags, etc.” on the ship manifest) to Benguet at Manila on the John Lyhes, and unloaded therefrom at Cebu in December 1941 under circumstances heretofore described. To the invoice price was added $55.40 for ocean freight charges to Manila. Benguet paid both the invoice price and the shipping charges on November 8, 1941. The separate invoice price of the colored rags was $270, and the shipping charges for these rags were $27.70.
42. The following finding applies separately to each of the three shipments described in findings 39, 40 and 41:
Benguet submitted a claim to the War Department in 1948 for reimbursement, to which were attached three out of four originals of the ocean bill of lading covering receipt of the material in question by agents of the John, Lyhes for shipment from San Francisco to Manila. The fourth original bill of lading is unaccounted for, but Benguet regained possession from the Army of one of the three originals previously deposited, it being stamped “Original, Non-Negotiable, Freight Prepaid,” and filed as part of a plaintiff’s exhibit in this case.
43. a. The Army had use for iron conduit pipe and steel plates of the type described in findings 39 and 40, in connection with its construction activities in the southern Philippine Islands at the time, and the evidence indicates that many items of construction material unloaded from the John Lyhes were in fact used by the Army. Although there is no direct evidence, it is reasonable to conclude that the pipe and steel plates involved were removed for use by the Army.
b. The Army had use for the rags described in finding 41 [546]*546and this material was appropriated for use by the Army prior to April 10,1941.
44. Benguet was reimbursed for the loss of the property described in findings 39 through 41 by the Continental Insurance Company.
45. J. P. Heilbronn Company, Inc. (hereinafter “Heil-bronn”) was, in March 1948, a corporation organized and existing under the laws of the Philippine Islands with its principal office in Manila. No subsequent change in its status is denoted by the evidence.
46. On October 27, 1941, The Paraffine Companies, Inc., of San Francisco, California, invoiced Heilbronn for a quantity of roofing materials and fixtures therefor in the amount of $918, less a discount of 2 percent, and on November 10, 1941, invoiced Heilbronn in the amount of $556.05 representing prepaid freight on the shipment from San Francisco to Manila. The invoice price, and the shipping charges were paid by Heilbronn. The materials were shipped to Heilbronn at Manila on the John Lylees and unloaded therefrom at Cebu under circumstances heretofore described.
47. The agents of the John Lylees at San Francisco issued to the vendor a bill of lading for shipment of the materials to the vendor as consignee in Manila, with instructions thereon to notify Heilbronn on arrival. A copy of the bill of lading marked “Copy, Non-Negotiable, Freight Prepaid” is in evidence as a plaintiff’s exhibit, but the originals of the bill of lading are missing and not accounted for.
48. The Army had use for the material in question in connection with its construction activities in the southern Philippine Islands at the time, and the evidence indicates that many items of construction materials unloaded from the John Lylees were in fact used by the Army. Although there is no direct evidence, it is reasonable to conclude that the roofing material and fixtures involved were removed for use by the Army.
49. Heilbronn was reimbursed for the loss by the Fireman’s Fund Insurance Company.
[547]*547HUTH & JAMES SHOE COMPANY
50. There is no evidence in the record as to the corporate status of the Huth & James Shoe Company (hereinafter “Huth & James”) other than a power of attorney it gave its present attorneys in April 1948, which refers to it as a corporation organized under the laws of the State of Wisconsin with its principal office at Milwaukee, Wisconsin.
51. On October 24,1941, Huth & James invoiced the Hamilton Brown Shoe Company of Manila for a quantity of shoes purchased by the latter for $218, less a discount of 5 percent, or $10.90. The costs of shipment of the merchandise to Manila were prepaid to the carrier in the amount of $28.14. It does not appear whether Huth & James was ever paid by the Hamilton Brown Shoe Company for the merchandise or shipping costs. However, the merchandise was shipped to Manila on the John Lyhes and unloaded therefrom at Cebu under circumstances heretofore described.
52. The agent of the rail carrier in the United States issued Huth & James four originals of the inland bill of lading for the carriage of the merchandise from Milwaukee to San Francisco. The agent of the John Lyhes issued Huth & James a “memorandum” bill of lading for carriage of the merchandise to Manila. There is in the record in this case as plaintiff’s exhibit one of the four originals of the inland bill of lading, the remaining three having been filed with the War Department and not returned. In each bill of lading Huth & James is named as both shipper and consignee, with instructions to notify the Hamilton Brown Shoe Company upon arrival in Manila.
53. The Army had use for the shoes and they were appropriated for use by the Army prior to April 10, 1941.
54. Hutch & James was reimbursed for the loss by the American Insurance Company.
NEDEBLANDSCHE HANDEL-M AATSCHAPPIJ, N. V.
55. The plaintiff, Nederlandsche Handel-Maatschappij, N. Y. (hereinafter “Nederlandsche”), is a limited liability company established under the laws of The Kingdom of the [548]*548Netherlands, with its principal office in Amsterdam, The Netherlands.
56. On November 7, 1941, Trans-Pacific Company of San Francisco invoiced Pao Lai Trading Company of Shanghai, China, for a quantity of dried shrimp at a CIF Shanghai price of $5,870.78, which included $60.80 for excess marine insurance. With respect to terms the invoices provided:
Drafts at Sight with Int. @5% under L/C 203 dated August 25,1941, Without Becourse.
No evidence was offered as to the CIF Cebu invoice value of the merchandise.
57. The Shanghai office of Nederlandsche established a letter of credit for the account of Pao Lai Trading Company. The Wells Fargo Bank in San Francisco was advised of the letter of credit, the beneficiary of which was The TransPacific Company.
58. The Trans-Pacific Company, on November 9, 1941, drew its sight drafts, without recourse, in the total amount of $5,870.78 on the Pao Lai Trading Company and presented them to the Wells Fargo Bank, together with attached duplicate signed invoices, two original ocean bills of lading, and insurance papers. Whereupon, on November 9, 1941, the Wells Fargo Bank paid to Trans-Pacific Company $5,870.78 and received from the latter the drafts and attached papers.
59. Two duplicate originals of the ocean bill of lading were mailed by Wells Fargo Bank to the Shanghai office of Nederlandsche but were returned undelivered by the postal authorities. Wells Fargo Bank then forwarded the bills of lading to the New York office of Nederlandsche at the latter’s request, which paid Wells Fargo Bank $5,870.78. Neder-landsche has present possession of the bills of lading.
60. The merchandise in question was shipped on the John Lyhes under two bills of lading which described the shipper as Trans-Pacific Company, and the consignee as the shipper, with instructions to notify Pao Lai Trading Company upon arrival of the merchandise in Shanghai. Said merchandise was unloaded from the John Lyhes at Cebu under circumstances heretofore described.
[549]*54961. The Army had a use for the merchandise in question and it was appropriated and used by the Army prior to April 10,1942.
62. Nederlandsche was reimbursed for the loss by the Royal Insurance Company, Ltd.
63. There is no evidence in the record as to the corporate status of the Philippine American Drug Company (hereinafter “Philippine American”) other than a power of attorney it gave its present attorneys in April 1948, which document was received in evidence as part of a plaintiff’s exhibit without objection by defendant and describes Philippine American as a corporation duly organized under the laws of the Philippine Islands with its principal office at Manila.
64. On October 24,1941, A. S. Aloe Company of St. Louis, Missouri, invoiced Philippine American for a quantity of drugs, medicines, and chemicals constituting a physician’s complete laboratory set, at an invoice price of $135.93. A freight forwarding company billed Philippine American $14.80 for transportation of the merchandise from St. Louis to Manila. The transportation charges were paid by Philippine American in that amount and it is reasonable to conclude it also paid for the merchandise at the invoice price.
65. The material in question was shipped from St. Louis to San Francisco on an inland bill of lading issued by a domestic rail carrier. Thence it was carried to Manila by the John Lyhes on a memorandum bill of lading issued by agents for the John Lyhes. The manifest designated Philippine American in Manila as consignee. The material was unloaded from the John Lyhes at Cebu under circumstances heretofore described. Plaintiff filed three copies of the inland bill of lading with the Army in May 1948 but they have not been returned.
66. The Army had use for the merchandise in question and it was appropriated for use by the Army prior to April 10, 1942.
67. Philippine American was reimbursed for the loss by the Fireman’s Fund Insurance Company.
[550]*550WOOD & SELICK, INC.
68. Wood & Selick, Inc., is a corporation organized under the laws of the State of Maine. It is engaged in business as an importer, manufacturer and distributor of materials for bakers, confectioners and wholesale grocers. It owned a 20 percent interest in Red V Coconut Products, Ltd. (hereinafter “Red V”), manufacturer of desiccated coconut in the Philippines, and acted as the latter’s exclusive selling agent in the United States.
69. On October 24,1941, Bagpak, Inc., of New York City, invoiced Wood & Selick, Inc., for a quantity of paper bags, wrapping paper, and bag closing materials in the amount of $6,467.17 (net after a $130.50 discount) in addition to $1,192.97 for transportation charges from New Orleans to Manila. The invoice contained instructions to ship to Red V in Manila the merchandise, which was to be packed by Red V with desiccated coconut and shipped to Wood & Selick, Inc., as agent, for sale in the United States. Wood & Selick, Inc., paid the total invoice price of $7,660.74 on October 30, 1941, and charged it against an account on its books representing balances due Red V. Wood & Selick, Inc., did not invoice the materials to Red V.
70. The materials were shipped from New Orleans to Manila on the John Lyfces on a bill of lading which named Bagpak, Inc., as the shipper and Red V as the consignee, in which capacities the parties also were named in the manifest. There is no evidence as to what happened to the original bills of lading, which were not available at trial. The materials were unloaded from the John Lykes at Cebu under circumstances heretofore described. The Army had use for the materials and they were appropriated for use by the Army prior to April 10,1942.
71. Red V filed a formal disclaimer of any interest in the appropriated materials, and of any claim therefor against the United States.
72. There is no documentary evidence in the record relating to the terms of the agency agreement between Wood & Selick, Inc., and Red V. It cannot be determined from the [551]*551evidence whether Bagpak, Inc., was aware of the agency relationship aforesaid.
73. Wood & Selick, Inc., was reimbursed for the loss by the Fidelity-Phenix Fire Insurance Company under a policy in which it was the insured. Wood & Selick, Inc., credited the proceeds of the insurance in its books to the account of Eed V, thus balancing the debit appearing in that account upon the purchase of the materials.
HONGKONG & SHANGHAI BANKING CORPORATION — PETITION
NO. 48317
74. Hongkong & Shanghai Banking Corporation (hereinafter “Hongkong”) is, and at all material times was, a corporation organized and doing business under the laws of the Crown Colony of Hongkong, and registered to do business in the State of New York through its New York agency, with its principal New York office and place of business in New York City. It also had an agency in San Francisco.
75. In 1941 Otis McAllister & Company, of San Francisco, sold a quantity of glucose to Frost Bland and Company of Shanghai, China, for $1,707.75, CIF Shanghai, plus a war risk insurance charge of $25.88, or a total of $1,733.63. Mc-Allister drew a 90-day sight draft of $1,733.63 on Frost Bland and presented it for payment to Hongkong’s San Francisco agency, together with a properly endorsed bill of lading and other documents specified in the letter of credit. Hongkong paid to McAllister the amount of the draft under a letter of credit which had been issued by Hongkong’s home office in Shanghai and transmitted to its San Francisco agency, and forwarded the draft and attached documents by air mail on November 29,1941, to its home office in Shanghai for collection from Frost Bland. It is reasonable to conclude that the draft was not collected from Frost Bland. The draft and attached documents disappeared and it is not ascertainable whether they ever arrived in Shanghai or, if they did, whether existing war conditions prevented their being presented for payment to, or paid by, the purchaser.
76. The glucose hi question was shipped on the John Lykes on a bill of lading naming Otis McAllister as both the ship[552]*552per and consignee, with instructions to notify Frost Bland upon arrival in Shanghai. The glucose was unloaded from the John Lyhes at Cebu under circumstances heretofore described. No evidence was offered as to the CIF Cebu invoice value of the merchandise.
77. The Army had use for the glucose, which is basically corn syrup, and it was appropriated for use by the Army prior to April 10,1942.
78. On October 27, 1941, Export Sales Company, Ltd., of Vancouver, British Columbia, sold to Yue Foong Trading Company, of Shanghai, 2,151 rolls of newsprint for $59,-326.95, CIF Shanghai, plus $488.84 for war risk insurance, or a total of $59,815.79. Export Sales Company drew 60-day sight drafts on Yue Foong Trading Company in the total amount of $59,815.79 and presented them for payment to Hongkong’s San Francisco agency via a Canadian bank, together with properly endorsed bills of lading and other documents specified in the letters of credit. Hongkong paid to Export Sales Company the amount of the drafts under letters of credit which had been issued in Shanghai and transmitted to Hongkong’s San Francisco agency via a Canadian bank, and forwarded the drafts and attached documents by air mail on October 31, 1941, to its home office in Shanghai for collection from Yue Foong Trading Company. These papers, including properly endorsed bills of lading, were not delivered and were returned to the sender by the postal authorities. Two of the three original bills of lading, properly endorsed, are plaintiff’s exhibits in this case.
79. The newsprint in question was shipped on the John Lyhes on bills of lading naming Export Sales Company, Ltd., as both shipper and consignee, with instructions to notify Yue Foong Trading Company, Ltd., upon arrival in Shanghai. It was unloaded from the John Lyhes at Cebu under circumstances heretofore described.
80. The Army permitted two newspapers in the Cebu area to use an undetermined quantity of the newsprint prior to April 10, 1942, in order to continue publication. There is no evidence that the Army itself had use for any of the newsprint, or appropriated any of it.
[553]*55381. Hongkong was reimbursed its loss bv the British & Foreign Marine Insurance Company, Ltd., and the Continental Insurance Company.
CONCLUSION OF LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiffs in cases 48316 and 48317 are entitled to recover, and it is therefore adjudged and ordered that they recover of and from the United States the following amounts:
Colgate-Palmolive-Peet Company-$2,864.23
Appleton Electric Company- 699. 65
Balatoc Mining Company_ 3,265. 86
Benguet Consolidated Mining Company_ 3,016.71
J. P. Heilbronn Company, Inc_ 1,475. 05
Hutb & James Shoe Company__ 246.14
Nederlandsehe Handel-Maatschappij, N. Y_ 5,870.78
Philippine American Drug Co_ 150.73
Wood & Selich, Inc_ 7,660.74
Hongkong & Shanghai Banking Corp_ 1,733.63
It is further ordered that the plaintiff Hongkong & Shanghai Banking Corporation is not entitled to recover on its claim involving newsprint, and its petition as to that claim is dismissed.
Related
Cite This Page — Counsel Stack
145 F. Supp. 229, 136 Ct. Cl. 514, 1956 U.S. Ct. Cl. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appleton-electric-co-v-united-states-cc-1956.