18 F.2d 752 | 2d Cir. | 1927
(after stating the facts as above). It cannot be successfully maintained that the defendant’s payment to Jones was payment of a debt owing to him by the United States. In Omnia Commercial Co. v. United States, 261 U. S. 502, 43 S. Ct. 437, 67 L. Ed. 773, it was held that the requisition of the entire output of a steel company, thereby depriving it of the means to perform its contract to deliver steel plate to the Omnia Company, gave the promisee no right to compensation from the government. In Berg v. United States, 59 Ct. Cl. 462, affirmed, 269 U. S. 535, 46 S. Ct. 100, 70 L. Ed. 399, it was held that a broker, who had negotiated a charter party between, an owner and a third person, had no claim against the United States, even though the United States, after requisition of the vessel, made a substituted charter with the third person, which it got only because the broker had negotiated the first charter. There would be less reason to recognize a claim in favor of the broker when the substituted charter party is not with a private person, but with a foreign power with whom the United States was already allied in the war.
The defendant contends, however, that the United States did not make a new and substituted charter party with the French government, but actually took over the old, thus coming within the doctrine of Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 44 S. Ct. 471, 68 L. Ed. 934. Whether the broker would have any claim against the United States if in fact there was a requisition of the defendant’s charter party, we need not stop to consider, for it appears to us clear beyond controversy that the charter party was not requisitioned. That nothing of the sort was intended, despite the telegram from the Shipping Board that “to abrogate this charter was not contemplated,” is proved by the fact that the United States determined separately for each voyage where the ship should go. This is entirely inconsistent with an assumption of the defendant’s charter party. In that event there would have been an obligation to make the voyages, and nothing to determine.
Moreover, the United States had no intent to get the benefit of the obligations of the French government under the charter party. On the contrary, those obligations were modified in respect to freight and insurance to the benefit of France in the amount of $280,000. The United States did not take over a commercial venture, but seized the ship as an instrument of war. It was found convenient in the prosecution of the common war aims of the United States and its ally to use the ship to carry benzine to France, provided the United- States did not need it for other purposes. Whether it did so need it was determined prior to each voyage. To interpret such conduct as a requisition of the defendant’s charter party would be a complete misapprehension of the situation.
Therefore it seems to us clear that the United States did not become obligated to the defendant on the theory that the defendant paid a debt due Fisher Jones from the United States.
We pass, then, to a consideration of the problem whether the United States is obligated to the defendant under the requisition charter or because of consequential damages suffered by the defendant from the seizure of the vessel. The latter source of responsibility could exist only in case the defendant was obligated to pay Fisher Jones commissions in respect to freight earned under the voyages made during requisition. It may well be argued that the seizure frustrated the brokerage contract, but we find it unnecessary to decide that question, because the requisition charter expressly compounds all damages suffered by defendant except those expressly excepted by its terms.
The only exception possibly applicable is found in the proviso to section 2:
“Provided, however, that the acceptance of this requisition charter shall be without prejudice to the claim, if any, the owner may have against the United States arising out of recoveries against the owner by third parties on the vessel’s commitments.”
The word “recoveries” as used in this phrase must be given its ordinary meaning, which is the establishment of a right by the judgment of a court. See 34 Cyc. 764, and cases cited. A voluntary payment, made without the knowledge of the United States, cannot be considered a “recovery,” even if it be conceded arguendo that Jones could have obtained a judgment against the defendant and that, if he had, such judgment would be deemed a recovery “on the vessel’s commitments.” The defendant accepted the requisition charter in full settlement of all claims except . claims arising out of “recoveries” against it. Doubtless this limitation was inserted to secure to the United States an opportunity to intervene and contest suits brought against the defendant for which the United States might ultimately be responsible. But whatever the purpose, we are not
Whether .the position of the United States would be prejudiced if it were allowed to dispute the validity of a voluntary payment by the defendant when the defendant seeks to deduct it in its accounting is beside the point. A claim voluntarily paid is not within the stipulated exception. Apparently the payment was made by the defendant without consulting its attorneys, and certainly it was made behind the back of the United. States which had definitely refused to recognize the validity of J ones’ claim. Whatever the reason for the payment it deprived the United States of the opportunity for intervention and contest which the contract had reserved to it. We see no hardship in holding the defendant to its contract.
This conclusion makes it unnecessary to consider the other points presented in the argument.
The judgment is affirmed.
