115 F. Supp. 193 | Ct. Cl. | 1953
delivered the opinion of the court:
Plaintiffs sue to recover just compensation for the requisitioning and taking by defendant of the hull of the former battleship Oregon on April 19, 1944. Plaintiffs contend that the hull of the Oregon was marketable by them for use as an unpropelled barge or vessel; that its fair value for that purpose was $150,000 at the time it was taken, and asks judgment in that amount plus interest for delay in payment. There is no dispute as to the Government’s liability for just compensation. The defendant offered plaintiffs $11,270.80 for the hull, and the dispute here is as to the amount, if any, due plaintiffs in excess of that sum.
The contract of sale to plaintiffs read in part as follows:
* * * If awarded to me/us, the vessel bid on will be scrapped at beyond the limits of the City of Portland and out of Oregon if possible. Scrapping will be completed within six months from date of delivery of the vessel by the Government. * * *
It is hereby agreed that all classifications of salvage material and of scrap material shall be made and designated by this bidder and all such classifications shall be final. [Italics supplied.]
Plaintiffs paid the full purchase price, and after the removal of the foremast and topmast, which were given to the Battleship Oregon Commission as a memorial to the ship, possession was given to the plaintiffs. They leased the docking facilities at the Port of Kalama, Washington, where after making necessary repairs to the dock site and installing the needed machinery and equipment, they carried on their salvage and scrapping operations on the Oregon until approximately two months prior to the defendant’s requisitioning of the hull of the vessel in April 1944.
Early in their scrapping operations, the plaintiffs decided, without consulting defendant, to salvage the hull for its possible use as an unpropelled vessel or barge. Their dismantling operations were conducted with such purpose in mind. All engines, boilers, pumps, pipes, generators, machinery and like equipment, were removed from the hold and the entire superstructure including guns and turrets, down to the top or weather deck were stripped off. Plaintiffs received the sum of $193,620.95 from the sale of these materials.
By telegram of April 7,1944, plaintiffs were advised that the War Shipping Administrator “has determined to and does hereby requisition title to and possession of the ex-battleship Oregon pursuant to Section 902 of the Merchant Marine Act of 1936, as amended.” The requisitioning was effective on April 19,1944.
Defendant then proceeded to install seven cargo hatches in the main deck, fit the vessel with light and storage batteries plus the making of various other repairs, all at a cost of $6,962.79. The hull was then towed to Guam by the Navy, where it was at the time of the trial of this case.
On April 13, 1948, the United States Maritime Commission having succeeded to all functions of the War Shipping Administration, offered to the plaintiffs $11,270.80 as the total compensation for the Oregon hull. This figure included the sum of $10,250 as the value of the hull and $1,020.80 as compensation for delay in payment. On June 4, 1948, plaintiffs rejected this award as not constituting just compensation. On June 24, 1949, however, plaintiffs accepted the sum of $8,453.10, which was 75 percent of the total amount offered and reserved their right to sue defendant for such further amount as they believed to be due.
The issues here in dispute arise from the difference between the parties on the question as to whether the Oregon hull at the time of the taking is to be valued as scrap material, as urged by the defendant, or as a usable unpropelled vessel or barge for sale in the shipping trade, as asserted by the plaintiffs.
The defendant, in urging scrap value as the standard, contends that the contract of sale to plaintiffs was a scrapping contract under which the plaintiffs were required to dismantle the ship and scrap the hull thereof. In stressing this view, the defendant, in addition to pointing to the language of the President’s directive of October 26, 1942,
In contending that it is the market value at which they might have sold the hull for use as an unpropelled barge or vessel, upon which just compensation must be based, plaintiffs rely on two principal points: (1) That, under the provision of the contract above quoted, they were given full and final authority to designate what material was to be salvaged and what was to be scrapped. On the basis of that provision, they claim that they had the undeniable right to the hull as a salvageable item in itself and they here contend that the defendant is bound to pay just compensation based on that classification. (2) Plaintiffs contend that the Government’s fitting of the hull for such a purpose after requisitioning it, supports their position as to their rights under the contract of sale of the ship to them.
In disposing of the Oregon the Navy Department at first resorted to the customary procedure, which included an appraisal and general advertisement in solicitation of bids. However, when all bids received were unacceptable because of qualifications attached to them, the Navy invited bids on a selective basis, forwarding to prospective bidders an “invi
Due to the fact that this ship is of inestimable sentimental value, the bidding and award of this ship for scrapping will not be handled under the usual circumstances. Your firm is one of the selected group of bidders who have been invited to bid upon the wrecking of the ship.
Plaintiff’s bid of $35,000 in response to this invitation was accepted, and they were notified in part as follows:
Approval for the sale of the OREGON to your partnership for the purpose of scrapping has been granted by the President of the United States.
Despite these indications that it was clearly apparent to every one that the Navy intended that the Oregon be completely scrapped, plaintiffs insist that they were entitled under the contract provision, referred to above, to treat the hull of the ship as salvage and to place the hull on the market as an unpropelled barge. In our opinion the defendant is correct in its contention that under the terms of the contract, so far as plaintiffs were concerned, the hull of the ship was to be reduced to scrap. The greater weight of the evidence shows, and we have found that in the trade of scrapping and dismantling ships, the term “salvage material” is commonly used to refer to machinery and other fixtures which can be used as separate units when removed from the ship, and that such term does not mean the entire hull of a vessel. Finding 4. In view of the facts and circumstances under which the Oregon was disposed of for scrapping, we think it is clear that under the provision of the contract relating to salvage material and scrap material, plaintiffs were given a free hand in determining which of these equipment and fixture items might be salvaged or scrapped, but it did not entitle them to classify the hull in its entirety as a salvageable item for sale in the market as a barge.
Plaintiffs objected to the admission of this testimony as to the meaning of the term “salvage material” in the trade or business of scrapping and dismantling ships, on the grounds that the contract provision was clear and unam
The use which the Government made of the hull after the requisitioning is, in our opinion, immaterial since the rights of the plaintiffs in respect to the Oregon were established under the contract of sale. The requirements of the Fifth Amendment are that the owner shall receive the value of what he loses and not what the taker may have gained. United States v. Chandler-Dunbar Co., 229 U. S. 53, 81. We hold, therefore, that under the contract of sale of January 23, 1943, what the plaintiffs lost was not a barge or an unpropelled vessel but the opportunity to dismantle and scrap the hull of the Oregon and dispose of its various segments as either scrap or salvage items.
We come next to the determination of the value to be placed on the hull as scrap. Plaintiffs claim $148,137.52 represents the profit which they would have derived if they had been permitted to dismantle the hull and reduce it to scrap. Defendant contends that $15,000 represents the value of the hull.
When determining what is just compensation fair market value must be looked to in the first instance, and where such a value is shown to exist it is to be applied. United States v. Felin & Co., 334 U. S. 624, 629. The value of $15,000 for the hull, for scrapping purposes, is based on the testimony of two witnesses for the Government. Mr. Schwartz, who since 1922 had been engaged in the dismantling of ships on the West Coast, set the value of the Oregon hull in April 1944, for
Plaintiffs’ evidence in support of their claimed valuation of $148,137.52, consisted of the varying testimony of several witnesses as to what each believed could have been obtained for the scrap and salvage material in the hull, minus the dismantling costs.
This evidence as to receipts was, as the Commissioner has found, highly conjectural and speculative in many respects. However, the evidence of record shows that the plaintiffs were in a very favorable situation, at the time the hull was taken on April 19,1944, with respect to the facilities which they then had available for use in carrying on the wrecking operations, and with respect to the over-all profits which they would earn from the sale of the scrap material. See Finding 6. Just compensation to plaintiffs must, as we have said, be determined on the basis of the value of the property to plaintiffs at time of requisition, that is, what they lost by reason of the taking.
Upon a careful study of the evidence submitted by both parties, and after a careful study of plaintiffs’ exceptions and arguments in the light of all the facts and circumstances disclosed by the record, we are of the opinion that the fair and reasonable value of the hull was $25,000 at the date on which it was requisitioned.
Judgment will be entered for plaintiffs in the sum of $16,546.90, with an additional amount measured by interest at 4 percent per annum on $25,000 from April 19, 1944, to April 13,1948, and an additional amount measured by inter.est at the same rate on $16,546.90 from April 13, 1948, to date of payment, all interest being allowed not as interest but as part of just compensation.
It is so ordered.
FINDINGS OF FACT
The court having considered the evidence, the report of Commissioner Eoald A. Hogenson, and the briefs and argu-Inents of counsel, makes findings of fact as follows:
• 1. By letter dated October 26, 1942, the President of the United States authorized the Navy Department “to turn the U. S. S. OEEGON over to the War Production Board for reduction to scrap metal.”
The vessel was stricken from the Navy register on November 2, 1942. Under date of November 16, 1942, the Navy Department invited plaintiff, William O. McKay, to bid for the purchase of the former battleship. The letter transmitting the invitation stated in part as follows:
Due to the fact that this ship is. of inestimable sentimental value, the bidding and award of this ship for -scrapping will not be handled under the usual circum*469 stances. Your firm is one of the selected group of bidders who have been invited to bid upon the wrecking of the ship.
2. In early December 1942, the plaintiffs, Edwin M. Nicker and William O. McKay, both citizens of the United States, and residents respectively of the States of California and Washington, associated to bid and did bid on the U. S. S. Oregon. In January 1943, a formal partnership agreement was executed by them to carry on their business in connection with the former battleship. The firm name was designated as Edw. M. Nicker & Co.
3. On December 5, 1942, sealed bids were opened aboard the U. S. S. Oregon, located at Portland, Oregon. Under date of December 30, 1942, the Navy Department notified plaintiffs that their bid of $35,000.00 had been accepted, and further advised the plaintiffs in part as follows:
Approval for the sale of the ONEGON to your partnership for the purpose of scrapping has been granted by the President of the United States.
4. On January 23, 1943, the plaintiffs and the defendant entered into Contract No. N 406S-4439, by the terms of which the plaintiffs agreed to purchase and the defendant agreed to sell the U. S. S. Oregon, located at Portland, Oregon, for the bid price of $35,000.00.
The contract described the vessel and provided in part as follows:
Length over-all_ _351'2"
Length on water line_ _ 348'0"
Extreme beam at or below water line_ _69'3"
Mean draft_ _24'0”
Displacement_ _ 10,288 tons
Hull_ _Steel
Type_ _Battleship
Built by Union Iron Works, San Francisco, Calif _ 1890-96 ■
CONDITIONS AND TERMS OP SALE
Subject to deletions and amendments which follow and . to Exhibit A attached hereto
1. Only qualified ship wreckers, having adequate equipment for wrecking on the West Coast will be cbn-*470 sidered. Each bidder must certify his willingness to dispose of all material removed from the ship under direction or approval of the War Production Board and for the Bureau of Supplies and Accounts. The successful bidder will report to the Salvage Conservation Section, Navy Department, Washington, D. C., all weights of the various materials removed from the ship. The above section (1) subject to and qualified by section (1) of Exhibit A hereto attached.
* * * * *
22. The bidder will supply the following information. The right is reserved to reject any bid omitting this essential information. If awarded to me/us, the vessel bid on will be scrapped at beyond the limits of the Oity of Portland and out of Oregon if possible. Scrapping will be completed within six months from date of delivery of the vessel by the Government.
*****
EXHIBIT A
Attached to the bid of Edwin M. Ricker and William O. McKay doing business as Ricker and McKay pertaining to the sale of the U. S. S. Oregon.
The above mentioned bid is submitted under the conditions and terms of sale as deleted and amended in the foregoing Catalog No. 435-B, and also in accordance with additional terms and conditions as follows:
(1) It is hereby agreed that all classifications of salvage material and of scrap material shall be made and designated by this bidder and all such classifications shall be final.
In the trade of scrapping and dismantling ships, the term “salvage material” is commonly used to mean such items as pumps, machinery, fittings, winches, motors, engines, and other parts which can be used as separate units without reduction to scrap metal. It does not mean the entire hull of a vessel.
5. The contract was made with the understanding that the foremast and topmast of the vessel were not included in the sale and were to be retained by the Battleship Oregon Commission at the Oregon Marine Park, as a memorial to the vessel.
6. Under date of February 18, 1943, the plaintiffs leased the docking facilities of the Port of Kalama, a quasi-govem-mental authority at Kalama, Washington, located about 40 miles from Portland, Oregon. The plaintiffs made repairs to the dock, acquired machinery and equipment, and carried on salvage and scrapping operations on the Oregon until about two months prior to April 1944.
Under the terms of the plaintiffs’ lease of the Port of Kalama facilities, it was provided that “when said work is completed [plaintiffs] shall continue the full use and control thereof for the purpose of operating said docks as a shipping port until the lessee shall have received from the net income therefrom its investment, plus 33% percent hereon for compensation for said operation.” Plaintiffs expended a total amount of $60,000 to rehabilitate the facilities at the Port of Kalama; said $60,000 expenditure was returned to plaintiffs out of wharf receipts, plus a flat 33% percent profit.
Early in their operations in 1943, the plaintiffs determined to salvage the hull of the Oregon, and their dismantling operations were conducted without structurally impairing the hull as a non-propelled vessel or barge. They removed the engines, boilers, pumps, pipes, generators, machinery, and like equipment from the hold, and stripped off the entire superstructure, including the guns and turrets, down to the top or weather deck, except for a small portion of one turret. The Oregon was stripped of all nonferrous metals possible without affecting her flotation and use as a barge.
Plaintiffs received $193,620.95 from the sale of the materials removed from the Oregon. Plaintiffs’ net profits from their entire scrapping operations, taking into consideration their income from the Port facilities, were $21,033.82.
All dismantling operations were completed two or three months prior to the Government’s requisitioning of the hull, as set forth in Finding 8, and the hull had been moved and
7. On March 27,1944, A. F. Pillsbury, ship broker, acting for and in behalf of the plaintiffs, sent a letter to Dudley Donald, Manager, Ship Allocation Division, War Shipping Administration. He described the Oregon hull as being in very good condition, suggested that it would make an excellent barge or store ship for merchandise and ammunition, or an oil tanker, or combination tanker and barge or store ship; and stated that a price would be quoted upon request.
8. By telegram transmitted April 7, 1944, T. M. Torrey, War Shipping Administration, advised the plaintiffs that the Administrator (War Shipping Administration) “has determined to and does hereby requisition title to and possession of the ex-battleship Oregon pursuant to Section 902 of the Merchant Marine Act of 1936 as amended.”
Thereafter on April 19,1944, the War Shipping Administrator accomplished the requisition by taking delivery of the vessel at the port of Kalama, Washington, and certified that the requisition was effective on said date.
9. At the time of the requisition of the ex-battleship Oregon, one William Shenker was the owner of certain items of materials and equipment which had been previously sold by the plaintiffs to Shenker and were still on the vessel or on the Kalama dock. The defendant has fully compensated Shenker for each of such items, and no claim is included in this case on that account. Such items are not included in the description of the Oregon at the time of requisition.
10. At the time of its requisition, the Oregon consisted of its double-bottomed steel hull with all sea valves and sea cocks in place, steel bulkheads and decks, and all pipe and equipment necessary to and relating to fire control and to ballast and pumping of the bilges. The steering engine and equipment remained, as did the 68 manholes, 163 watertight doors, 26 chocks and bits, and 60 airports. There were 64 M board feet of Oregon and White Pine lumber and 5.7 M board feet of teak lumber.
The total weight of the recoverable metals, if the vessel in its then condition were to be completely scrapped and dis
At the time of requisition, the steel hull had an over-all length of 351 feet, 2 inches; its extreme beam at or below water line was 69 feet, 3 inches; and its draft forward was 14 feet, mean 17 feet, and aft 20 feet.
The light displacement tonnage of the vessel was then 6,520 tons, but in this connection, certain side armor belonging to William Shenker (not included in the armor plate previously mentioned nor involved in the foregoing figures of recoverable metals) was in place on the vessel. This side armor, weighing approximately 600 tons, affected the draft of the vessel and increased the computed amount of the light displacement tonnage.
11. The battleship Oregon was built by the Union Iron Works at San Francisco from 1890 to 1896, and was placed in commission by the Navy Department on June 15, 1896. She was de-commissioned on June 12, 1919, was again commissioned on August 21,1919, to be used by President Wilson to review the fleet. She was again de-commissioned at the Puget Sound Navy Yard on October 4, 1919, and remained at that yard until June 1925, when she was taken to Portland, Oregon, and turned over to the State of Oregon. She was returned to the Navy in 1942, sold to the plaintiffs, dismantled as described in the foregoing findings, and requisitioned by the defendant. The defendant had seven cargo hatches installed in the main deck, the vessel fitted with lights and storage batteries to meet steamboat inspection, and various adjustments and repairs made, all at the contract price of $6,952.79. Thereafter, she was towed to Guam by the Navy, where she was at the time of the trial of this case.
At the time of her requisition by the defendant, the Oregon was in good condition, heavily coated with paint on her ex
12. The only witness called by either party to testify with respect to the value of the Oregon hull for use as a barge or store ship was A. F. Pillsbury, appearing in behalf of the plaintiffs, whose qualifications as a ship appraiser, based on 45 years of experience, were admitted by the defendant.
In February 1943, before dismantling operations had commenced, he spent part of three days inspecting and surveying the Oregon for the purpose of fixing value for insurance purposes. He then recommended to the plaintiffs that the dismantling operations be done in such a manner as to preserve the hull for use as a barge. Plans for conversion of the hull to an unpropelled bulk oil carrier were drawn by the Bethlehem Shipyards at his request and submitted to the plaintiffs. He admitted that such conversion would have cost between $475,000 and $600,000.00 and that the larger companies preferred oil barges of greater capacity.
He knew of no sales of similar hulls for use as barges, at or about the time of the defendant’s requisition of the Oregon. He based his opinion of the value of the Oregon hull on her utility as a cargo carrier or store ship, on her good condition, on the fact that there was a great demand for barges existing at the time of requisition, and that the defendant in 1944 was constructing under contract over 100 unpropelled concrete barges at costs ranging from $578,000 to $1,326,000 apiece, some of which were of less cargo capacity than the Oregon. The cost of building concrete vessels was less than that of building steel barges.
His opinion was that the value of the Oregon hull for use as a barge or store ship in its condition when requisitioned by the defendant was not less than $150,000.00.
13. The only witnesses called to testify as to the market value of the Oregon hull, in the condition in which it was requisitioned, for sale to a purchaser for scrapping purposes
Mr. Schwartz, who since 1922 had purchased twenty-five vessels for dismantling at Seattle, Washington, and who was well acquainted with the Pacific Coast market for salvage and scrap materials in 1944, stated that the average bid price in the Portland area at the time of the defendant’s requisition of the Oregon hull, was $2.50 to $3.00 per ton, based on the gross deadweight of the ship. His opinion was that the Oregon hull in April 1944 had a market value for scrapping purposes of $3.00 per ton, or slightly more, and on the assumption she weighed approximately 4,000 tons, that she would be worth between $12,000.00 and $15,000.00, to the average buyer at that time.
Mr. Sturm, a graduate naval architect and mechanical engineer, and Chief Ship Appraiser, United States Maritime Administration, testified that the market value of the Oregon hull in April 1944, for sale for scrapping purposes was $14,000.00. He based his opinion primarily upon the fact that there were 3,616 long tons of recoverable metals in the Oregon hull at the time of her requisition, and upon the computation that in eight sales of steel vessels by the Government to highest bidders for scrapping purposes, the contract prices represented an average of $3.93 per long ton for the recoverable metals contained in the vessels sold. He stated that in view of the fact that all machinery and nonferrous metals had been removed from the Oregon hull except those necessary to her flotation as a barge or store ship, the figure of $3.93 per long ton would be liberal as applied to the Oregon at the time of her requisition. The $3.93 figure applied to the Oregon?s 3,616 long tons of recoverable metals amounts to $14,210.88.
The pertinent facts with respect to the sales relied upon by Mr. Sturm are as set forth in the accompanying table:
14. The plaintiffs offered evidence with respect to the costs in 1944 of dismantling the Oregon hull in the condition in which it was requisitioned, and with respect to the receipts obtainable upon the sale of the recovered scrap and salvage materials. This evidence, as to receipts, is highly conjectural and speculative, and no reasonable approximation can be made as to the profits that would have been realized had the Oregon hull, as it existed in April 1944, been dismantled to extinction.
15. From all of the evidence in the case, it is reasonable to conclude, and we so find, that in its condition at the time of requisition by the defendant in April 1944, the hull of the Oregon had a fair and reasonable value to plaintiffs for scrapping purposes of $25,000, and the fair and reasonable value thereof for use as an unpropelled barge or store ship was $90,000.
16. The plaintiffs duly filed their claim for compensation for the Oregon hull with the War Shipping Administration on March 16,1945.
17. On April IB, 1948, the United States Maritime Commission, having succeeded to all of the functions, duties, and powers of the War Shipping Administration, determined that $10,250.00 was just compensation to the plaintiffs for-the title to and possession of the Oregon, exclusive of compensation for delay in payment, and that $1,020.80 was compensation in full for such delay, or a total so determined of $11,270.80. On June 4, 1948, the plaintiffs rejected this determination as not constituting just compensation.
18. On June 24, 1949, the defendant paid the plaintiffs $7,687.50 which represented 75 percent of $10,250.00, the amount determined by the Commission to be just compensation for the vessel, and $765.60 as 75 percent of $1,020.80, the amount determined to be compensation in full for delay in payment, making a total payment of $8,453.10.
These payments were made to and received by the plaintiffs with full reservation of their right to sue the defendant, in accordance with the provisions of Section 902 of the Mer
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 are entitled to recover, and it' is therefore adjudged and ordered that they recover of and from the United States the sum of sixteen thousand five hundred forty-six dollars and ninety cents ($16,546.90) together with interest at 4 percent per annum on twenty-five thousand dollars ($25,000) from April 19, 1944, to April 13, 1948, and interest at the same rate on sixteen thousand-five hundred forty-six dollars and ninety cents ($16,546.90) from April 13,1948, to date of payment, said interest being allowed not as interest but as a part of just compensation.