113 C. Cls. Reporter's Statement of the Case THE P. DOUGHERTY COMPANY v. THE UNITED STATES [No. 48555. Decided May 2, 1949]* On the Proofs Eminent domain; just compensation; in instant case action of the Government did not constitute taking or duress.—In a suit for the value of three barges which plaintiff claims it was compelled to sell by action of the Government in violation of plaintiff's rights under the Fifth Amendment, it is held upon the evidence adduced that there was no compulsion or duress on the plaintiff to sell the vessels amounting to a taking on the part of the Government and plaintiff is not entitled to recover. Same; elements of requisition lacking.—While the Government, during the war period, was anxious to have full use made of various materials such as were contained in the vessels in suit, and naturally brought pressure to bear to have such materials devoted to war use, and this may have influenced plaintiff in deciding to sell the barges for scrap, the steps taken in the circumstances of the instant case, did not measure up to the elements of a requisitioning of property under the Fifth Amendment. St. Regis Paper Company v. United States, 110 C. Cls. 271; certiorari denied, 335 U. S. 815, cited. See also Vansant v. United States, 75 C. Cls. 562. Instead of disposing Same; no element of duress.-In the instant case the demands of the Government were not sufficient to constitute duress. Hartsville Oil Mill v. United States, 271 U. S. 43. of its property in the market, as it did, plaintiff could have awaited requisition and claimed the value of the property taken. In the circumstances, plaintiff may not claim that its property was taken by the defendant. The Reporter's statement of the case: Mr. Theodore B. Benson for the plaintiff. Mr. John R. Franklin, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. The court made special findings of fact as follows: 1. The plaintiff is a Maryland corporation with its executive offices at 222 East Baltimore Street, Baltimore, Maryland, and is, and at all times mentioned herein, has been engaged in towing and barge transportation, principally in the coastwise transportation of coal from Hampton Roads, Virginia, prior to the recent war, and then from New York, Plaintiff's petition for writ of certiorari pending. 448 Reporter's Statement of the Case New York, during the war, to Long Island Sound ports and to Boston and other New England ports. 2. When in use the barges were operated from Hampton Roads or New York. In summer and at other times when not in use the barges were anchored in the James River and kept in fresh water. 3. In 1915 plaintiff acquired seven wooden barges of 2,500ton coal capacity each. These are called the small barges. During the period of time that these barges were in use it developed that the hatches were too small for the convenient use of "diggers" in the unloading of coal and it became advisable to change them and make them larger. Plaintiff had this work done during 1941 at considerable cost. 4. In 1921 plaintiff acquired eight additional wooden barges at a cost of $90,000 each. These vessels were built in the first World War to be used as steamers and were registered as schooner barges. They were of 3,800-ton coal capacity, and were built of Georgia pine with iron strips, also having belts of iron on the upper decks and diagonal strappings from the deck down to the bilge and across the timbers, both fore and aft from aft to forward. Three of these barges are the subject matter of the present action, and were named Allegany, Caroline, and Montgomery. Four of these large barges were in continuous use and needed no repairs, but the remaining four did need reconditioning. One was reconditioned in 1941, but the Allegany, the Caroline and the Montgomery remained unreconditioned. Plaintiff also owned two ocean-going tugs which were used for hauling or propelling the barges. These were also repaired and reconditioned during 1941. The cost of reconditioning the barges and tugs amounted to approximately $250,000. Because of this heavy expense plaintiff was financially unable to recondition the three remaining barges, the Allegany, Caroline and Montgomery in 1941, and they remained at anchor in the James River for eleven years, or since about 1930. They were anchored together bow to stern with a captain on each to care for it. The hulls and decks had been kept painted by plaintiff and certain necessary repairs were made from time to time and the barges were kept pumped out and afloat. Reporter's Statement of the Case 113 C. Cls. 5. Following the attack on Pearl Harbor plaintiff's business increased until it had more than it could handle. Its officers planned and intended, as soon as the heavy debt hereinbefore referred to had been satisfactorily taken care of, to recondition the Allegany, Caroline and Montgomery, and to put them into service. Plaintiff was not able to do this in 1941 or the early part of 1942 because the heavy expenditures indicated had practically exhausted the company's resources for the time being. 6. In order to have these barges returned to service and to have them pass Government inspection it would have been necessary to replace planks and timbers on the decks and parts of the hulls. The hulls needed calking and painting and it would have been necessary to pack the pumps and to overhaul the boilers and other equipment. The repairs would have had to be made in some shipyard. The cost, estimated at the time, would have amounted to $35,000 for each barge, and plaintiff hoped to do this work in the fall of 1942. 7. The War Shipping Administration of the defendant's Maritime Commission in the early years of World War II conducted a survey of laid-up tonnage at United States ports with the idea of repairing and placing in commission all vessels which, in the words of the head of the War Shipping Administration "could possibly do even such limited service as bringing sugar from Cuba." Such survey resulted in placing many vessels in operation, but also uncovered many ships, hulks, barges and wrecks which were considered as having outlived their usefulness and being beyond repair from the standpoint of economy and scarcity of materials. Following this survey the War Shipping Administration forwarded to the defendant's War Production Board a list of vessels which in the opinion of its ship surveyors were beyond repair. The report of the ship surveyors who examined these vessels had been reviewed by an experienced ship operating company, and also by a committee in the Maritime Commission who approved the opinion given as to the condition of the vessels. This list was turned over to representatives of the Salvage Division of the War Pro 448 Reporter's Statement of the Case duction Board with instructions to communicate with the owners of those vessels and try to induce them to dispose of the vessels as scrap, unless the owners could furnish evidence that the vessels were economically usable in their then form or could be reconditioned for use. 8. The Special Projects Branch of the War Production Board, Salvage Division, had a regional office under the direction of Jack S. Ewing. This Special Projects Branch was devoted to special efforts to move scrap and usable material into the wartime market. The War Production Board was interested first in determining whether idle shipping could be made usable, and if so, to get it into use as fast as possible. If not usable then scrapping the material was next urged upon the owners. 9. On June 5, 1942, the War Shipping Administration wrote Mr. Ewing at Baltimore, Maryland, relative to the survey hereinabove described, enclosing a list of vessels recommended for scrapping. This letter read, in part, as follows: It will be recognized that in a few instances the owners of these vessels might not agree that they are valuable only for junk, but it may be said that their being placed on this list is a result of careful survey by experienced ship surveyors, review of conclusions of the surveyors by an experienced ship operating company and subsequent review of their conclusions by the Repair Division of the Maritime Commission and a Committee consisting of myself and representatives of the Finance and Legal Divisions of the War Shipping Administration. In such consideration this Committee at least is bound by the instructions given the surveyors and repairmen to the effect that the question of the ship being worth repair is not to be governed by peace time considerations of dollar value of the repair cost to valuation of the ship when in commission but only by the quantity of steel, steel plate or engine parts required and by the required time in shipyards, so that, speaking generally, the ships listed as junk are far beyond the state that would be even considered as a commercial repair job in ordinary times. I understand that you will be able to route this list to the proper salvage authorities for making junk of the vessels. 838936-49- -34 Reporter's Statement of the Case 113 C. Cls. This list contained plaintiff's barges, the Allegany, the Caroline, and the Montgomery. 10. Mr. Ewing, the regional representative, wrote plaintiff under date of June 26, 1942, as follows: Confirming our telephone conversation of yesterday, I am writing to officially inform you that the Washington office of this Section of the Salvage effort has been informed by the War Shipping Administration of several ships on the eastern seaboard which that Administration recommends for scrapping. Among this list are the barges "Caroline", "Montgomery" and "Alleghany", which we are informed are the property of P. Dougherty & Company, and that they are tied up in the James River, off the Wilcox Farm, Virginia. It is not for the writer to decide whether or not a vessel of this kind is suitable only for scrap, but on information from an authority such as the War Shipping Administration, there is nothing that we can do except pursue this matter from the point of view of scrapping the vessels, until proof is given that they are economically usable in their present form. As I have been asked to make a report on this situation, I would appreciate information in writing from you which would show that these vessels should be converted to use. In this connection, although not experienced in these matters, it would appear to me that with pressure such as there is now for hulls of any kind, that these boats should have moved to a user if they are economically suitable for reconditioning. Having been idle for so many years, is very much against their retention for possible future sale. Briefly, the scrap situation is such that all factories, boats, idle mines, etc., which cannot be put to immediate operating use are being considered suitable for scrap purposes only, during this war emergency. The need is pressing and I can only urge you to give this careful and official consideration. I should like to hear from you in the near future so that I can make my report. Mr. Ewing by this letter and otherwise made it clear that the Government wanted the materials in the barges diverted to war purposes either by reconditioning the vessels and putting them into service, or by selling them for scrap. |