*1 136

ing consequences of industrial war? Samuel DERECKTOR said interstate have that

We often practical con- commerce is v. itself ception. equally that It true is The UNITED STATES. commerce with that terferences No. 50018. judgment appraised must United States Court of Claims. ignore exper- actual does not July 13, 1954. ience.” ofWrit Certiorari Granted very of Con- preamble Act 31, Jan. 1955. gress manifest makes here involved See 75 S.Ct. 336. regulate man- labor legislative intent prevent agement in order relations of com- flow “free obstructions “Findings and declarations merce.” 101 of policy” section set forth Act, 1947, Management Relations Labor seq., 29 U.S.C.A. et § 141 29 U.S.C. § seq., follows:

141 read as et “Experience demon- further has practices certain strated organizations, of- their labor some ficers, the intent members burdening necessary effect or the by pre- obstructing commerce venting goods in flow free through commerce strikes such industrial unrest forms of other

through activities concerted public

impair the interest of such in the free commerce. flow practices of such is elimination assur- condition to the guar- rights herein ance of

anteed.” already has indicated section

It been to be an unreason-

186(b) cannot be said achieving the ends of able means facilitating peace and the free

industrial follows, therefore, of commerce.

flow provision open attack

that this ground Congress power- enact exercise of less to its foreign

power over interstate and com- Cf. American merce. Communications Douds, 1950,

Ass’n, C.I.O. v. U.S. 674, 390-393, 70 S.Ct. 94 L.Ed. 925. guilty is found

The defendant

charged 1, 2 under Counts Seymour directed Miller, and is to surrender indictment W. Brooklyn, Y.,N. purpose pre-sentence plaintiff. Seeger, forthwith I. G. New York investigation. imposed City, Logue, Sentence will be A. Brooklyn, and I. Y.,N. February 1, at 10:00 A.M. the briefs.

137 Washington, application for trans- D. tion with such McGovern, F. Thomas Burger, fer.” E. C., whom was Warren Leaven- Atty. Gen., defendant. plaintiff ship Asst. his bid and The bid C., Washington, D. was Colby, accepted by worth Maritime Commis- May the brief. 12 he sion on 1947. On paid purchase price $48,120 and in Judge, LIT- JONES, and Chief Before forwarding payment he letter WHITAKER, and TLETON, MADDEN said: Judges. LARAMORE, “Kindly let me a Bill of Sale Registry, and Certificate of and a Judge. MADDEN, acknowledgment my written full damages plaintiff sues for because right to transfer this vessel to for- Maritime Commission the United States eign registry if I should so desire.” then, ship in- due to the sold him and Within a week Maritime Commis- State, Department of of the tervention acknowledging receipt sion wrote give need- him the documents refused to the check and said: operate it. or resell him in order to ed “The Commission will consent to question ship the Colonel the transfer of for- the vessel to had, before Frederick Johnson. C. eign ownership, registry, flag and II, operated passenger as a World War provided Section of the sub- River, its name be- boat on the Hudson ject Invitation for Bids.” During ing the Dewitt Clinton. the war Army requisitioned ship plaintiff After the had learned that his virtually rebuilt it for use as a accepted, Captain bid had been he asked transport. troop At end of the war Ash, William C. who was a master mari- ship a much than would it was better ship surveyor, charge ner and a to take age. expected considering its have been delivery commissioning of the of the February 27, 1947, ship. Captain upon Ash, examining plans thought ship, Commission invited sealed bids of the well up. ship, thought profitable then laid that a resale of following provi- might ship made, agreed vitation contained the so he charge sion: impressed take of it. He had “ importance * * * The Commission will privilege transferring ship to for- the transfer of consent to the ves- eign registry, because he knew that the foreign ownership, registry, sel to inspection strict standards of flag, pursuant applicable and provisions to the high wages American Act, Shipping registered, seamen so amended, provided prevent profitable operation or un- sale transfer is made within effective registry. sugges- der American At his (6) months from the date of award organized tion the a Panamani- provided, further, the trans- corporation, Company, an wholly the Brownsam feree, in the determination of the plaintiff, owned to take ti- country, is not an alien ship tle and obtain a Panamanian or a national or nationals thereof flag for it. prohibited by the Government of engaging 16, Captain the United States On June Ash confirmed ar- rangements previously commercial transactions with tele- any- phone Weiss, United States and its citizens or the District. acting Manager Steamship Company one on behalf or the inter- of Alcoa applicant Norfolk, Virginia, est thereof. The shall at located, where the delivery submit such evidence as the Commis- to take yard. sion shall deem connec- move it to berth at Alcoa’s A days president. April 21, 1947, few later he authorized Weiss to was Embassy Washington sell the “where and as is” for British advised $300,000. July By Secretary the middle of of State that it had been *3 promising reliably several informed that the President received ship. He, illegal tentative for offers how- Warfield was destined for the ever, immigrants decided to hold it for six traffic months so in Jewish Pales- long- profit tine, that he could list his as a and that the Tradewinds and North- capital gain purpos- land, Trading term by for income tax also owned the Weston Company, es. fitted out in Balti- purpose. more for the same Another placed in ships, Weston’s Bal- Ulua cleared drydock by and examined the resident report- timore in October and was surveyor of the French classification so- January 28, 1947, carry- ed at Havre ciety, society’s Bureau Veritas. This ing 600 Jewish to Palestine. approval was sufficient for Panamanian intercepted by It was later the British. regis- not for but United States try. surveyor Captain April condemned one tail in Ash Sometime replaced. shaft and ordered that it be severed his connection with the Weston Trading Company in order to devote his July 24, 1922, the Council of the union, full time to labor the National League of Nations conferred Great Organization, Masters, and Pi- Mates Britain Palestine, a mandate for to be lots, of which he was international vice a homeland for the Jews. In a conven- president manager. and local business tion 3, 1924, of December between the 2, 1947, On June an Assistant to the Britain, States and Great Legal Department Adviser of the State United States consented to the adminis- Attorney conferred with the Assistant Britain, tration of Palestine Great charge General in of the Criminal Divi- “pursuant to the Mandate”. After sion of the of Justice con- increasing World War II there was an cerning “representations of the British European movement of Jews to Pal- regarding illegal Government acts in the imposed estine. The British decree United States which aid terroristic ac- immigration quota 1,500per an month. tivities in Palestine.” The State De- extensively Their decree was evaded. representative partment exhibited the got quota in without clear- Those who reports respect military FBI designated by the ance were British as training activities York New “illegal” immigrants, and will be so re- leaving carry the United States to immi- opinion. ferred to grants to Palestine. There was discus- gathered by Evidence the British For- during sion of the case of the Alabama eign support, in 1946 Office showed that War, our Civil in which an arbitration money ships, illegal traf- tribunal awarded fifteen million dollars coming fic was from sources within the to the United States because Great Bri- 1946, rep- United States. December prevent departure tain failed to resentations to that effect were made ports ships engaged prey- its the United that office to States. From ing upon the commerce of the United that time of State be- States. migration came concerned with Jewish 5, 1947, On June President Truman is- to Palestine. urging sued a statement all United States In October of 1946 the engaging had citizens to refrain from in or contract, purchased facilitating another activities which tended the Maritime passions for to further inflame the ship President Palestine, Warfield. Within less inhabitants of to undermine he than month sold his Palestine, contract to pro- the law and order in or to Trading Company, Weston country. a Panamani- mote violence in that This corporation an of Ash statement was accord with a resolu- 15, 1947, completed May He adopted the been when he returned. tion negotiated Assembly sale and Nations. combination of the United General interests, charter of the to Dutch Trading Company When the Weston corpora- and for a sale to an American having Warfield, purchased the President Syrian representing tion interests. it, bought plaintiff’s contract 22, 1947, above, applied On October recited attorney applied the Hondur- Com- for transfer to to the Maritime Commission flag, consented. mission and the Commission for the transfer flag, registry However, and its Honduran Consul Panamanian regis- which, accept Company, vessel for Honduran sale to the Brownsam *4 given seen, try cor- until statement we have was a Panamanian a sworn by by President, Captain Ash, poration wholly plaintiff. that owned the Weston’s By Department for run- the vessel would “not be used time the State ning sailing Palestine the British into determined that the of the blockade carrying refugees.” prevented, purpose of Colonel Johnson at the had to be July 18, Warfield, 1947, until of On the President least an authoritative declaration 1947, captured policy depart- renamed by Exodus could at. The arrived be port off Haifa car- from one the British of ment had a statement of rying approximately 5,000nonquota Jew- seamen who had been on the President immigrants. boarding voyage, saying ish ship of the Warfield on its ill-fated signed Captain him the British was a violent that Ulua, Ash had there ship encounter which an American citizen the first sent out the Wes- jn. Trading pointed Company, telling ton him was killed. The British out to that engage ship going predictions il- Government that their legal transportation to the future conduct of the President of Jews to Palestine. Upon request Depart- Warfield had been fulfilled. of the State ment the Maritime Commission withheld approval August 1947, Secretary 7, of of the transfer of the State wrote the of For- British Minister ship Department until State eign Affairs to the effect that the Unit- objection withdraw its the transfer. ed States would endeavor to see that no did ad- Maritime Commission not owned the American Govern- plaintiff intentions, vise the he of its but persons ment were thereafter sold to gathered agents from the fact gave whose activities reason for belief Department the Internal Revenue and of pur- would that the pose be used him, questioned the FBI and from other illegal transporting immigrants events, that was trouble in connec- there to Palestine. Thereafter there were nu- application tion with his for transfer. representations merous made to State concerning Department officials rela- plaintiff On November 21 and his illegal immigration tion of Americans to lawyer called at the Maritime Commis- Embassy to Palestine. The British They sion. were referred to the State Washington pointed out the connection Department, Legal where an Assistant Ash with the President War- Adviser listened their statements and field, Johnson, and with the Colonel the then referred them to the First Secreta- litigation ship with which this is con- Embassy, ry of the British who did like- 18,1947, October cerned. On British wise. the State At both Secretary wrote to the Ambassador given Embassy they were assurances asking possible steps all sympathetic consideration. On this Colonel taken to insure that the Johnson told occasion the State De- sail her bona allowed to until not be representative partment fides that a Dutch thoroughly established. had been agreed accept agency firm operate ship in the coastal had been South trade in Amer- August European July Atlantic and until ear- Mediterranean ica from willing Repairs ship waters, give ly and that he was had not October. coming ship many possible

all such assurances that illegal Palestin- from Rumania. would not in the be used affidavit ian giving for an traffic. He asked 22, On June 1948 the Maritime Com- supplied such assurance and he approval mission of the sale ordered that 26. such an affidavit on November granted subject to an alien be to the condition that the transfer be January the Under Sec- effected within day next six months. On the retary firm de- “made Chief, the Maritime Commission’s was: substance of which cision” the Operations, Bureau of notified the not will “The State telegram approval tiff and said * * * approve unless transfer that before the issuance of the formal * * * into a enter the owners transfer order the Commission should * * * party [a] charter copy be furnished a certified char- * * * firm of undoubted party ter ing Dutch interests contain- giving tegrity, over full control provision pro- ship, operation ports transport call at Black Sea against viding use of the *5 immigrants therefrom. On 28 the immigration or sale Palestine trade plaintiff requested furnished the docu- party.” 3rd to a and ment on June 30 the Commission Department The State adhered to plaintiff copy sent the a certified of its policy British, man- until the after their authorizing order ship the transfer of the an date had ended and Israel become registry. July to Panamanian state, May independent in 1948 indicated plaintiff copies 14 the sent of t"hetransfer they further in the that had no interest necessary documents, order and other Colonel Johnson. and a bill of sale to the Brownsam Com- pany, plaintiff’s corpo- the Panamanian plaintiff The advised of the State was agent ration, to the at Norfolk January 22, Department’s decision of ship where the was located. He also negotiations began and Dutch com- ship ordered that the be renamed Dereck- looking panies chartering of toward the tor. subject the to a bareboat basis August ship In prescribed 1948 the was moved to terms the De- the State month, New In partment. York. the plaintiff, same the The able company sought charter to negotiate charter, the Dutch was aban- to to obtain company’s doned because of that Department’s inabili- the consent to an State ty agreement to agency company. obtain dollars. Within a Dutch consent, two or weeks thereafter the three The refused this arranged. tiff all of the sold the stock Brownsam and insisted that a charter be Company during the American-Israeli Com- March, to plaintiff The April continued making thereby company pany, arrange that the May, 1948, to a char- and corporation ship. May owner of the Dutch 19 and ter to 20, interests. plaintiff Captain Ash assisted the the advised the State negotiating sale. In November 1948 the plaintiff and Maritime agency ship was sold to an of the longer objected respectively, to no that it Israel, and renamed ship the Panamani- of the .the transfer January 1949 it went to Galilah. Constanza, Rumania, flag provided it was then char- an Sea, on the Black proposed interests, Dutch tered picked up passengers and bound provide charter and Haifa, Israel. ports ship at Black Sea not call immigrants illegal transport therefrom. The Maritime Commission’s refusal to Department’s approve transfer of interest of the The State ownership ports registry and was based its wish Panamanian Black Sea damaged financially, keep the number down communist knowledge Israel, immigrants costs to which he and its maintenance sub- delay, blockade, de- a natural during and the British period of the jected Cap- price hand. duction from the evidence at market the fall in during history past problem tain and period. is to Ash’s conduct Our Trading Com- Com- of his Weston whether determine pany, pointed strongly justified. direction. The re- in that refusal mission’s De- of the State at the behest fusal was partment. possible If it had been Department was regis- operate ship under American to try least, rep- beginning moved, at flag, could have our Government by the British to it bottling resentations voyages, controlled its Government. up at not have Norfolk would necessary. quite plaintiff, under- been But British Government naturally, willing spend on was not mandate for Palestine taken League put what it would have cost 1922. We had of Nations recognized ship, nor 1924. in class as American formally the mandate pay operating it as an Ameri- costs thankless task It was a burdensome ship. passed position can once it has in no When are the British. We for judge ownership registry wisely they performed it Panamanian whether beyond unwisely. II would have been the control After War World Government, impossibly our what it did. no matter almost British task became ultimately engage urge did frustrat- to That of Jews natural difficult. against ing transporting Europe, our own incredible their the site of leave persecution Nazis, sym- Rumania to Communist helpless 'support pathetic fortunate Israel shows how Govern- of their more *6 elsewhere, transfer had been com- ment was once the in America and brethren immigration accomplished. to set in motion bined which, if left unrestricted into Palestine language plaintiff points The to hardship only resulted in and could have It said that of the contract of sale. quota a of disorder. Britain set to would consent Maritime Commission thought of that she number foreign own- the transfer of the to The evasion of that could be assimilated. quota flag. registry ership, The Commis- and great industry, a financed became consent, except so sion did not long after by many rich Americans. delay, dam- and the was aged complained to The its failure do so. Gov- to the United Britain through apparent of States, channels, ernment defends its breach proper that our ground fitting contract on the State out in our citizens shipyards responsible Department, recruiting conduct in and crews our foreign relations, probable of our ports, nullify to evade and Britain’s per- to that if transfer regard cause believe policy to her man- with Palestine foreign mitted, might our relations be law, The as not unusual in date. n seriouslyprejudiced. affairs, clear, As we indi- have international was not but above, Depart- we think the State obligation cated permit the moral not to our probable did have ment cause believe to used a nuisance resources be And, believing, it did. so think we power friendly clear. duty object it had the transfer Alabama, case of we had and that the Maritime Commission had bitterly complained Britain’s conduct of duty to withhold its consent. allowing her used to fit in facilities be Department’s prey action was our out commerce. sovereign was, effect, act. in It an em- concluded that com- arbitrators bargo. applied only justified seems to have plaint It awarded us dam- and ship. ages But we have no doubt $15,000,000. one that the That of more than applied danger been same real that the Colonel there was a ship any owner if there had would, got other been outside the if it con- Johnson present- probable States, to believe that cause used to United be run trol of the n sug- Congress passed problem. Pres- is no In 1916 ed the There same gestion approved Shipping Govern- ident Act in record that any representatives September 7,1916, Stat. malice Act c. ment’s bore says prejudice caption plaintiff. If 728. Its it is: toward the any hands there is field which the “An Act establish a United To. tied, in should not Government pur- Shipping States Board for the and feel meet free to .which encouraging, pose developing, problems solve without fear creating auxiliary naval a naval charged contract, breach of reserve and marine to a merchant peculiarly field field inter- must be requirements meet the of the com- national relations. merce of the with its United States hindsight, possessions Territories and With the wisdom we foreign regulate countries;, plaintiff’s per- principal, car- think that the engaged haps only, acquiring riers for- water motive eign question profit. and interstate commerce of the to sell it at a As Ash, States; pur- we for other motives of are poses.” doubt. we think But kept well within the bound- By Shipping sections 7 and 8 the refusing responsibilities aries of its to Board, by Act, created was authorized get beyond let the control of any acquired to sell or lease vessel it. the Government. By required section 9 was petition purchased, chartered, will be dis- or leased eligible from the Board should be missed. registry, oper- American and should be It is so ordered. only ated under such “unless otherwise authorized board”. JONES, Judge, LITTLE- Chief provided, p. was also at 731: TON, Judge, concur. “ * * * vessel, No such without approval board, shall be WHITAKER, Judge (dissenting). *7 foreign registry transferred to a or n I express my the reasons for dis- must sold; reg- flag, nor, except or under opinion sent from the decision of 'the prescribed by board, ulations the majority, because I think there has been or chartered leased.” flagrant right a a of violation of one of This section amended several by Government, his citizens which question. times before the transaction in liability escape seeks to under the cloak amended, by 23, As last the Act of June immunity sovereign. of the of a This is 953, 964, 52 Stat. section 9 was gives a this case which court sanction part to read in as made follows: to action in bureaucratic violation of a “ * * right * right, acquired this a time con- unlawful, it shall be payment large sideration of the of a sum approval the without of the United money itself, of to the defendant who Commission, sell, States Maritime to power keep money asserts the to the and mortgage, lease, charter, deliver, or right deny money to the for which the any. transfer, agree in sell, manner or to paid. I cannot allow such decision lease, mortgage, charter, deliver, go unchallenged. to any transfer, any manner or person to rights One of the not a citizen of inherent in the the United own- right ership property States, place of is the or transfer or to sell under anyone foreign registry flag, any buy to who wishes to or it. This right is, however, frequently or therein interest owned restricted by contract; but, part statute or or in whole citizen of the unless restricted, so it is States and absolute. United documented under transmitting 12,1947. States, In his letter the or laws United of the payment he said: which was last documentation States.” under the laws of the “Kindly Sale let have Bill of me acquired Registry, and a that, and Certificate of time So at the Johnson, acknowledgment my full vessel, C. written Frederick Colonel right right anyone transfer vessel to for- who wished to this his sell it foreign eign registry buy it, if I desire.” should so to transfer or necessity registry, was restricted reply the Maritime Commission approval the Maritime secure plaintiff acknowledging wrote the check had succeeded which saying: Shipping powers Board. will “The Commission consent only restriction But this was the foreign the transfer the vessel to right or placed to sell it the law flag pro- ownership, registry, and as Only registry. foreign it to to transfer subject vided in 8 of Section approval Commission the Maritime for Invitation Bids.” approval other No had to be obtained. 8 of the Invitation for Bids is Section required. set out above. law, Com- This then, have, unequivocal We an com- bids mission advertised transfer, pro- mitment to consent to One C. Johnson. Colonel Frederick only request vided con- bids, set out to secure the inducements months, in 6 sent be made read: for them invitation enemy country transferee be not an or ' “ ** * enemy agreed will The Commission an request alien. is of the vessel the transfer for consent consent to was made in months foreign ownership, and that the transferee not an applicable pro- enemy flag pursuant country enemy or alien. The an Shipping Act, gave plainly Shipping visions Act the Commis- amended, provided agree- is transfer power to make such an sion (6) months within effective ment. pro- of award from the date vided, further, agreement part was made as This transferee, $48,120. payment consideration Commission, is determination money question that There no country, a national alien paid offered or ex- would not have been prohibited nationals thereof agreement. cept for this of the United States Government given when was not consent *8 engaging in trans- commercial given requested. until United States with the actions only 30, 1948, after and then acting anyone and its citizens requirements additional tiff satisfied interest thereof. or in the behalf imposed by the Commission. applicant such evi- shall submit 'The There be no doubt that defendant can shall deem Commission dence as agreement, agreement its violated with such in connection plaintiff $48,120. secure from made to application for transfer. plaintiff has As a result suffered con- damage. induce- as an siderable Thus the bid, only said secure excuse offered for this ment breach the transfer consent faith is only foreign registry, provided vessel that the vessel would used feared carry made in request the transfer be to Palestine violation Jews not an adopted by transferee was 6 months British Govern- enemy country enemy alien. regulating or an ment the admission im- country. migrants to that mind, inducement this With purposes I am For the case $48,120 His offer not' for the vessel. (cid:127)offered propriety paid all accepted, concerned with he the amount on at efforts prevent of an American the use issue. This beside the in this traffic. contracts, sanctity of The issue is the dishonesty in- Government’s ducing payment money thing agreement do a of its

faith do, without refuses to and this later but, money paid, offer to return the payor stead, a refusal to reimburse thereby. damages he suffered give my approval

I to such con- cannot

duct. politics

If international demanded repudiate its

the Maritime Commission

agreement, justice then demands that damages respond in defendant therefor. says majority opinion Mari- Depart-

time Commission the State exercising sovereign powers ment were refusing sovereign the consent. No power payment

has the induce

money promise it in consideration of promise, pay keep the then not damages for its failure suffered

to do so. respectfully dissent.

I Judge,

LARAMORE, concurs

above dissent. Levin, Lorain, Ohio, pro Arnold S. se. Levin, Philadelphia, Pa.,

Jacob was on the brief. McKevitt, Washington, Thomas L. D.

C., Atty. Gen., with whom was Asst. Perry Morton, for W. defendant. LEVIN, Levin, Albert A. Frank S. Arnold JONES, Judge, Before Chief Levin, Levin, K. and Jacob LITTLETON, WHITAKER, MADDEN v. Judges. LARAMORE, UNITED STATES. *9 No. 49878. Judge. MADDEN, Court of States Claims. The Government made a contract to 11,1955. Jan. housing project containing sell a war dwelling units which the Government Knox, Indiana,

had built convey property tiffs. did not them until some seven months after when, plaintiffs assert, date it conveyed plaintiffs it. The sue damages which, they allege, resulted