70 Findings of Fact 2. Senate Resolution 193, 82d Congress, adopted August 27, 1951, provides as follows: Resolved, That the bill (H. R. 1580) for the relief of Overseas Navigation Corporation, now pending in the Senate, together with all the accompanying papers, is hereby referred to the Court of Claims; and the court shall proceed with the same in accordance with the provisions of sections 1492 and 2509 of title 28 of the United States Code and report to the Senate, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand as a claim, legal or equitable, against the United States and the amount, if any, legally or equitably due from the United States to the claimant: Provided, however, That the passage of this resolution shall not be construed as an inference of liability on the part of the Government of the United States. 3. The Blue Sunoco was a tanker built in 1929 by the Sun Shipbuilding and Dry Dock Company. It had the following dimensions, characteristics, and equipment: hull, steel, riveted; length, 246′ 6''; breadth, 43′; depth, 18′ 6′′; draft, 16'; propulsion, twin screw; power, two 6-cylinder diesel motors, generating 1,000 horsepower; speed, 9.3 knots; gross tons, 1,588; deadweight tons, 2,510. 4. On April 10, 1942, the vessel was taken from the Sun Oil Company by the War Shipping Administration under a bareboat charter and turned over to the Navy for use in the Hawaiian Islands during the war. 5. In May 1945, a Navy Inspection Board surveyed the Blue Sunoco (renamed the Halawa by the Navy) and found her to be in a general state of disrepair. The Board recommended that: * * * this vessel be returned to the States and new main and auxiliary engines procured and installed. Such items of hull repair as are necessary should be performed at this time. In the event that new engines are not available, the vessel should be removed from service until such time as they are available. Subsequently, on August 20, 1945, the War Shipping Administration was advised by the Navy as follows: Findings of Fact 131 C. Cls. In its Report of Material Inspection of the USS Halawa (AOG 12) dated 31 May 45, the Sub-Board of Inspection and Survey *** recommended that this vessel "be returned to the United States and new main and auxiliary engines be procured and installed." In the event that new engines were not available the Sub-Board recommended "removing the vessel from service." In reviewing this report, the President, Board of Inspection and Survey recommended on 19 July "that in view of her age and material condition the Halawa should not be repaired and that necessary steps should be taken to return her to her owners." Under date of 8 August, the Chief of the Bureau of Ships concurred in the last recommendation stating that replacement parts for existing main engines would require months to obtain so that proper overhaul would be uneconomical. Altho some surplus Maritime Atlas engines which develop 400 h. p. at 300 r. p. m. might be obtained, Bureau of Ships recommended against replacement of the main engines unless the Halawa was urgently needed. Under present circumstances, the Navy does not require the services of this tanker as a naval auxiliary. It is requested therefore, that War Shipping Administration indicate as soon as practicable whether redelivery of this vessel, formerly named the Blue Sunoco and owned by Sun Oil Co., will be taken at Pearl where she is now located or at San Francisco where she can be towed. The Blue Sunoco was thereafter returned to the West Coast, where it was delivered to the Maritime Commission laid-up fleet located at Suisun Bay, San Francisco, on September 10, 1945. On the same day the War Shipping Administration acquired title to the vessel for the United States. 6. In preparation for offering the vessel for sale the Maritime Commission adopted an upset price of $50,000, which was established in the following manner: an estimate was made of the present day sound condition value, which was computed to be $210,000; the cost of repair, including replacement of the main engines, was estimated at $171,819; this cost of repair was deducted from the sound condition value, to arrive at a present day "as is" value of $38,181. The "as is" value was rounded off to $50,000 to obtain the minimum bid 70 Findings of Fact price, the extra $11,819 being considered potential profit from the sale of the vessel. 7. The Blue Sunoco was first offered for sale by the Maritime Commission in June 1946. The offer was contained in an invitation for bids, unrestricted as to use or nationality, on an "as is, where is" basis. No responsive bid was received. The vessel was again offered for sale by Invitation for Bids No. PD-X-234, issued in October 1946, “*** upon the terms and conditions *** set forth in 'INFORMATION AND INSTRUCTIONS TO BIDDERS'," excerpts from which follow: The United States Maritime Commission is hereinafter referred to as the "Commission", and the successful bidder for the purchase of the vessel is hereinafter referred to as the "Buyer". *** Bids of less than $50,000 for the vessel will not be considered. * * The vessel is located in the Suisun Bay Laid-up Fleet, San Francisco, *** and is a twin screw motor tanker, built in 1929 ***, having a gross tonnage of 1588, and a deadweight tonnage of 2510. She is powered with two 6 cylinder Bessemer diesel engines developing a total of 1000 BHP. Her dimensions are 246′ 6′′ length, 43' breadth, 18' 6'' depth and 16' draft. However, any description or other information furnished herein or otherwise concerning the vessel is solely for general information of bidders and its accuracy is not warranted. The vessel may be inspected upon application to ***, Acting Fleet Superintendent, Suisun Bay Reserve Fleet, ***. *. All inspections shall be at the risk of prospective bidders and without liability to the United States ***. Prospective bidders are cautioned to inspect the vessel and are hereby notified that failure of any bidder to inspect the vessel or otherwise acquire full information as to its identity, physical condition or otherwise will in no event form the basis for the withdrawal of any bid or the return of any bid guaranty after the time fixed for opening bids, or for the rescission of any contract as a resnult of acceptance of a bid. Any bid submitted without such inspection or other information is solely at the risk of the bidder. p. m. *** ** Each bid *** must be received before 2:15 *November 13, 1946. The bids will be publicly opened and read at 2:30 p. m. said date*** *** no bid received thereafter will be considered ** on Findings of Fact 131 C. Cls. The Commission reserves the right to reject any and all bids, call for new bids, waive any irregularity in any bid, and make such award as it may deem is most advantageous*** ***The vessel is offered for sale "as is, where is" at date of delivery, *** without warranty, guaranty, or representation as to seaworthiness, condition, description, capacity, tonnage, or otherwise. However, the bill of sale conveying title in the vessel from the Commission to the Buyer will fully warrant title and freedom from all liens. * ** *** the Buyer must accept *** delivery within 30 days from the date of receipt of notice of acceptance of bid. *** *** The Buyer shall pay the full purchase price of the vessel in cash or by certified or cashier's check at or before time of delivery. *** *** No bid will be considered unless it is accompanied by a guaranty, satisfactory to the Commission, in a sum equal to at least twenty-five percent of the amount of such bid, to insure compliance with the terms of the bid. If the Buyer fails to make full payment of the purchase price and take delivery of the vessel, all within the time specified herein, the full amount of this Bid Guaranty shall be paid to the Commission as liquidated damages and not as a penalty. A bidder may, at its option, furnish, as such guaranty either a guaranty bond with surety or sureties satisfactory to the Commission, a certified check, or a cashier's check. ** 8. Attached to the Invitation for Bids was a Form of Bid and another blank form for the accompanying affidavit of nationality. Publicity was given to the offering by a press release on October 14, 1946. Persons interested could obtain the invitation and attachments on request, by mail or in person. The opening date, November 13, 1946, specified in Invitation for Bids No. 234, passed, and no bid was received by the Maritime Commission. 9. Representatives of plaintiff, a New York corporation, were in Washington during the latter part of November 1946. The corporation had then been in existence only a short time. Its owners desired to obtain some ships from the Maritime Commission by or for charter. The representatives of plaintiff in Washington at this time included one 70 Findings of Fact officer (a vice president) and one employee (who subsequently became president) of the corporation, and an agent or employee who served as a Washington representative of plaintiff and other companies in a manner not described in detail by the evidence. This agent or employee is hereinafter referred to as plaintiff's Washington representative. During the latter part of November 1946 plaintiff's representatives conferred with representatives of the Maritime Commission concerning the procurement of ships by plaintiff. The vice president of plaintiff understood from these conversations that plaintiff's position in the procurement of vessels from the Maritime Commission would be improved if plaintiff could show the ownership of a vessel or vessels. Plaintiff's Washington representative was told that, although the time stated in the invitation for bids for the Blue Sunoco had expired, the time could be extended by the Maritime Commission. Plaintiff's vice president understood that the duration of the time extension for the submission of a bid on the Blue Sunoco was limited, and that plaintiff would have to act promptly. The Maritime Commission was obviously anxious to obtain a bid for the ship. Whether plaintiff's vice president got this information from a Maritime Commission employee or from plaintiff's Washington representative from his conversations at the Maritime Commission's office is not clearly established by the evidence. At any rate, the record is sufficient to show that plaintiff was pressed to promptly submit its bid, if it intended to do so, and from all the facts and circumstances we conclude as a fact that plaintiff was not allowed the 43 days' time allowed prospective bidders in the second invitation for bids of October 1, 1946 (finding 7) within which to have an inspection made of the Blue Sunoco. Somewhere along the line plaintiff's vice president also got the impression that, in the opinion of one of the Maritime Commission representatives, the Blue Sunoco could be repaired for $35,000. It is not established by the evidence that such an opinion was expressed to any of plaintiff's representatives by any of the representatives of the Maritime Commission. |