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Reporter's Statement of the Case

III. Under the provisions of the act of June 15, 1917, the President, by Executive order of July 11, 1917, delegated to the United States Shipping Board all power and authority vested in him by said act, which act included the power to cancel, suspend, or requisition any contract pertaining to the construction or operation of ships.

IV. On November 26, 1917, about the time of the departure of said vessel upon her outward voyage, plaintiffs, through their agents, Messrs. D. B. Dearborn & Company, steamship brokers, New York City, applied to the United States Shipping Board for the approval of said voyage of the Betsey Ross, and obtained said approval, as follows: Address all communications to United States Shipping Board chartering committee, customhouse, New York

UNITED STATES SHIPPING
BOARD CHARTERING COMMITTEE,

New York, November 26, 1917.

Messrs. D. B. DEARBORN & Co.,

8 Bridge Street, N. Y.

American schooner Betsey Ross.

DEAR SIRS: We have your letter of November 26th in connection with charter of above vessel for a cargo of ore from New Caledonia to New York or Baltimore.

This charter is hereby approved.

Yours very truly,

(Sgd.)

WELDING RING,

Chairman of the Chartering Committee.

V. Thereupon said vessel proceeded on her voyage and prior to and during said outward voyage plaintiffs built "trunks" in said ship for the return cargo of chrome ore at a cost to plaintiffs of $5,889.35. Said lumber shipped for trunks for the carriage of chrome ore was used as dunnage for the carriage of a wheat cargo on her return voyage.

VI. Said vessel completed her outward voyage, arriving in the port of Melbourne on March 9, 1918. Between March 9, 1918, and March 27, 1918, said ship was discharged of her cargo of lumber. Between March 27, 1918, and April 3, 1918, said vessel was cleaned and painted, and on April 5, 1918, she was undocked and on April 10, 1918, she was ready to sail for New Caledonia. However, before she sailed the

Reporter's Statement of the Case

vessel's steering gear broke down, which occupied four days in her repairs.

VII. On or about April 5, 1918, certain officials of the United States Shipping Board, and the United States War Industries Board, and of the British and Australian Governments, entered upon the discussion of requiring or requesting American-owned vessels, including the Betsey Ross, to return to an American port with cargoes of wheat. There were differences of opinion between the said various officials as to what action should be taken, which discussion continued until May 9, 1918.

VIII. The master of the Betsey Ross applied to the authorities at Melbourne, on April 5, 1918, for clearance papers. The Commonwealth authorities declined to grant clearance, advising plaintiffs' agent at Melbourne that this action was taken at the request of the United States Shipping Board. On April 15th the plaintiffs' agent at Melbourne rendered bills to the Commonwealth Shipping Board for demurrage on the vessel due to the embargo placed against her, but these bills were disallowed and returned with the following letter on April 17th:

No. 5625.
DEAR SIRS:

COMMONWEALTH OF AUSTRALIA, COMMONWEALTH SHIPPING BOARD, LIVERPOOL BUILDING, 155 WILLIAM STREET, Melbourne, 17th April, 1918.

S. I. Betsey Ross

Referring to your letter of the 15th inst., enclosing debit notes for demurrage in connection with above vessel; these are returned herewith, for, as previously advised, no responsibility can be accepted in regard to the matter.

I am instructed to inform you for the information of the master that the following cable has been received from the Secretary of State, dated 15th April:

"With reference to your telegram of 12th April, American Shipping Board consider Betsy Ross suitable wheat and requests she loads wheat not chrome ore."

Doubtless the master will receive instructions in regard to this vessel.

Yours faithfully,

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Secretary.

Messrs. Wм. HAUGHTON & Co., Melbourne.

Reporter's Statement of the Case

IX. Pending the continuance of the said embargo the owners of the Betsy Ross made various efforts to have the vessel cleared in order that she might carry out her chromeore charter, but action on these requests was delayed until May 9, 1918, pending a decision being reached by the United States Shipping Board that the vessel would be ordered to abandon her chrome-ore charter and 'return to the United States with a cargo of wheat. The said vessel in the meantime remained idle at Melbourne pending these negotiations from April 10, 1918, to May 10, 1918, a period of 30 days, at the expense of the plaintiffs. The fair and reasonable value of the use of said vessel as of that time was $500 per day.

X. Shortly after plaintiffs were so notified by said Australian officials, and on or about May 15, 1918, the United States Food Administration Grain Corporation, at its office in New York, submitted to the managing owner of said vessel the so-called "Australian Government Form Wheat Charter," which was thereupon signed on behalf of plaintiffs and by said Grain Corporation.

Said charter contained the following provisions:

"NEW YORK, May 15, 1918. "It is this day mutually agreed between Food Administration Grain Corporation, hereinafter called the charterers, of the one part, and Amos D. Carver for and on behalf of the owners of the good ship or vessel called the Betsy Ross, classed 100-A-1, of the measurement of tons net register, or thereabouts, and 2,750 tons dead-weight cargo capacity 10% more or less, now Melbourne, whereof is master, of the other part.

"That the said ship being tight, staunch, strong, and every way fitted for the intended voyage, shall load at Melbourne * * * a full and complete cargo of wheat and/or flour in bags, which the said charterers bind themselves to provide, not exceeding what she can reasonably stow and carry over her tackle, apparel, provisions, and furniture, and being so loaded, shall forthwith proceed as ordered by charterers on signing bills of lading, to New York * * *

"Freight being payable in sterling at and after at the rate of: (125/---) One hundred and twenty-five shillings. All per ton of 2,240 lbs. net weight, delivered, for wheat and/or flour. Ninety per cent of the said freight to be paid

Reporter's Statement of the Case

on cable advice of having loaded and sailed, the balance, less advances, if any, to be paid on unloading and right delivery of the cargo, in cash at fixed rate of exchange of $4.76 per one pound sterling. Freight prepaid considered earned and not returnable ship and/or cargo lost or not lost. * * *

"Ten (10) working-days are to be allowed the said charterers or their agents (if the ship is not sooner dispatched) for loading the said ship at port of loading (Sundays and holidays excepted), to be reckoned from twenty-four hours after the master has given written notice to the charterers or their agents in business hours, that the ship is ready to receive cargo (the inward cargo or ballast then being all discharged and subject to clause 14), and the ship to be discharged with all dispatch as customary at the port of discharge. The said charterers or their agents to have the option of keeping the said ship ten days on demurrage, at 1/- per net register ton per day for every day detained beyond the total number of lay days; such demurrage to be payable day by day when and where incurred.

* * *

It is also mutually agreed that this charter is subject to all the terms and provisions of and all the exemptions from liability contained in the act of Congress of the United States approved on the 13th day of February, 1893, and entitled an Act relating to navigation of vessels, etc.""

At the time of or immediately prior to the signing of said wheat charter plaintiffs, as a result of their negotiations with the United States Food Administration, concluded that rather than have the United States Government take over the Betsey Ross said plaintiffs had better sign said wheat charter. This they did on May 15, 1918.

XI. The United States Food Administration paid plaintiffs for the transportation of said cargo of wheat $63,784, the same being upon the basis of the cargo of 2,144 tons at 125 shillings per ton and $4.76 per pound sterling as provided in said wheat charter. Said sum so paid did not include any sums as payments for disbursements or demurrage. The amount which plaintiffs would have earned under the terms of their ore charter of August 30, 1917, would have been $177,000.

XII. The Betsey Ross upon her return voyage arrived in New York about the time of the armistice, 1918. The claim herein sued upon was presented to the United States Ship

Opinion of the Court

ping Board for an award of just compensation, and on or about February 17, 1920, said Shipping Board made an award disallowing said claim and any part thereof.

XIII. Just compensation to the plaintiffs for the cancellation of their contract with the Mutual Chemical Company of America is the sum of $113,216, with interest at the rate of 6 per cent per annum from May 9, 1918, until paid.

The court decided that plaintiffs were entitled to recover the sum of $113,216, with interest thereon at 6 per cent per annum from May 9, 1918, until paid.

HAY, Judge, delivered the opinion of the court:

This is a suit brought by the plaintiffs against the United States to recover three items: $15,000, $5,889.35, and $113,216, making in the aggregate the sum of $134,105.35.

The plaintiffs, citizens of the United States, were at the times hereinafter mentioned the owners of a ship called the Betsey Ross. On August 30, 1917, the plaintiffs entered into a charter party with J. J. Moore & Company, of San Francisco, for the transportation of a cargo of lumber from Chemainus, British Columbia, to Melbourne, Australia. One of the conditions of said charter party was as follows: "This charter is subject to charter for return cargo being signed in New York promptly after advice that this charter has been signed here."

Simultaneously with said lumber charter plaintiffs entered into a charter party with the Mutual Chemical Company of America at New York which provided that said ship on her return voyage should transport a cargo of chrome ore from the Island of New Caledonia, 800 miles east of Australia, to New York or Baltimore at the rate of $60 per ton of 2,240 pounds.

On November 26, 1917, about the time of the departure of said ship upon her outward voyage, the plaintiffs through their agents applied to the United States Shipping Board for the approval of the charter for the return voyage of said ship, and received approval as follows:

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