381 Opinion of the Court The first two items were expended in connection with the salvaging of the cargo as well as the boat. They are clearly allowable. Captain Noll's bill of $480.96 is made up of food and lodging for the officers and crew and transportation to and from his home to the Senator Cordill while the boat was being raised. These items are not allowable. We think the plaintiff is entitled to recover the cost of raising the boat, although she was a total loss. When she was lying on the bottom of the river plaintiff did not know that she was a total loss. It was necessary for her to be raised and examined before this could be ascertained. This was done in good faith. In such case the authorities hold that the cost of raising her may be recovered. The Reno, 134 Fed. 555. Cf. The Falcon, 19 Wallace, 75. See also cases cited in note 76 in 11 C. J. 1207. Cf. The Shady Side, 21 Fed. Cas. 1137, 17 Blatchf. 132, an opinion by Circuit Justice Waite. This cost consists of lumber purchased and wages of officers and crew. The cost of the lumber used in raising her was $113.10. However, wages to officers and crew are claimed from February 5, 1934 to March 20, 1934; but the testimony shows that the boat was raised in about 20 days. Shortly thereafter it was possible to tell whether or not she was worth repairing. The plaintiff is not entitled to recover for wages for officers and crew for a period longer than 30 days after the accident. This amounts to the sum of $437.06. Plaintiff is entitled to a gross salvaging the cargo and the boat. must be deducted, however, the $325.00. The Shady Side, supra. for these items of $678.31. amount of $1,003.31 for From this amount there sale price of the boat, This leaves a balance due 7. Charter hire of a vessel of like capacity for the time required to construct a new vessel $18,000.00.-It is well settled that where there has been a total loss, the plaintiff is not entitled to recover for charter hire. The Umbria, 166 U. S. 404, 422. 8. Amount due for advancement for repairs $146.38.This is a sum due for repairs on the vessel made just before the accident. This, of course, enhanced the value of the Reporter's Statement of the Case 92 C. Cls. vessel, the full value of which plaintiff has been allowed. Plaintiff is therefore not entitled to this item. It results that plaintiff is entitled to recover the total amount of $23,259.31. It is so ordered. LITTLETON, Judge; GREEN, Judge; and WHALEY, Chief Justice, concur. THE KANSAS FLOUR MILLS CORPORATION v. THE UNITED STATES [No. 43919. Decided January 6, 1941] * Government contract; nonpayment of processing tax.-Decided upon the authority of Ismert-Hincke Milling Co. v. United States, 90 C. Cls. 27. The Reporter's statement of the case: Mr. Phil D. Morelock for the plaintiff. Mr. Assistant Attorney General Samuel O. Clark, Jr., for the defendant. Messrs. Robert N. Anderson, Fred K. Dyar and Guy Patten were on the brief. The court made special findings of fact as follows, upon a stipulation of the facts and the evidence adduced: 1. Plaintiff is a corporation organized and existing under the laws of the State of Delaware, with its principal office in Kansas City, Missouri, and at all times mentioned herein was engaged in the business of manufacturing flour and related products from wheat for sale to various buyers, including the United States. 2. On May 12, 1936, plaintiff entered into a contract (No. VAS-2150) with the United States Veterans Administration by the terms of which it agreed to sell to the United States 4200 barrels of hard wheat flour at $3.93 per barrel, or a total price of $16,506.00. Said supplies were furnished and delivered by the plaintiff to the defendant, accepted and approved by the defendant except for an adjustment of $74.59 on account of the failure to deliver 3,720 pounds of flour, leaving an agreed total price of $16,431.41. Proper Bureau Vouchers (Nos. 117 and 9312) were issued and for *Defendant's petition for writ of certiorari granted May 12, 1941. 390 Reporter's Statement of the Case warded to the General Accounting Office for pre-audit before payment. Payment of the total sum of $16,431.41 was withheld by the Comptroller General, who, on March 9, 1937, issued his Notice of Settlement of Claim of the General Accounting Office (Certificate No. 0437876, Claim No. 0577319 (1)) in which he certified that the sum of $16,431.41 was due the plaintiff under such contract but had been credited by him against an alleged indebtedness of a larger amount on account of an alleged overpayment made by defendant to plaintiff under certain other contracts referred to in Findings 3 and 5 hereof. On June 27, 1936, plaintiff obtained the award for the sale of 250 tons of wheat bran, Purchase Order No. 32, at $21.25 per ton, F. O. B. Kansas City, Missouri, or a total price of $5,312.50, and, on July 31, 1936, the award for the sale of 20 tons of wheat bran, Purchase Order No. 80, at $24.50 per ton, F. O. B. Kansas City, Missouri, or a total price of $490.00, from the United States Department of Agriculture, Bureau of Entomology and Plant Quarantine. Said supplies were furnished and delivered by the plaintiff to the defendant, accepted and approved by defendant, and proper Bureau Vouchers (No. 249 and No. 608) were issued and forwarded to the General Accounting Office for preaudit before payment. Payment of the sum of $5,802.50 was withheld by the Comptroller General, who, on March 30, 1937, issued his Notice of Settlement of Claim of the General Accounting Office (Certificate No. 0440022, Claim No. 0577319 (2)) in which he certified that the sum of $5,802.50 was due to the plaintiff under said contract but had been credited by him against an alleged indebtedness of a larger amount on account of alleged over-payments made by defendant to plaintiff under certain other contracts referred to in Findings 3 and 5 hereof. On December 4, 1936, plaintiff entered into a contract (No. JLC-4705) with the Department of Justice for the sale of 210 barrels of hard wheat flour for delivery to the United States Northeastern Penitentiary, Lewisburg, Pennsylvania, at $5.02 per barrel, or a total price of $1,054.20. Said supplies were furnished and delivered by the plaintiff to the defendant, accepted and approved by defendant, and proper Bureau Voucher (No. 2272) in the amount of $1,054.20, was issued Reporter's Statement of the Case 92 C. Cls. and forwarded to the General Accounting Office for pre-audit before payment. Payment of the sum of $1,054.20 was withheld by the Comptroller General, who, on May 4, 1937, issued his Notice of Settlement of Claim of the General Accounting Office (Certificate No. 0444185, Claim No. 0577319 (6)) in which he certified that the sum of $1,054.20 was due the plaintiff under such contract but had been credited by him against an alleged indebtedness of a larger amount on account of an alleged overpayment made by defendant to plaintiff under certain other contracts referred to in Findings 3 and 5 hereof. 3. During the period from May 1935 to January 6, 1936, plaintiff entered into a number of contracts with the United States, by the terms of which it agreed to sell to the United States and the United States agreed to buy a total of 3,383,000 pounds of flour. There follows an excerpt from one of the aforementioned contracts between the plaintiff and the defendant which is typical of the price provision contained in all of the aforementioned contracts and that contained in all of the invoices issued to the defendant by the plaintiff covering the contracts: Each contract also contained the following clause: Prices set forth herein include any Federal tax heretofore imposed by the Congress which is applicable to the material purchased under this contract. If any sales tax, processing tax, adjustment charge or other taxes or charges are imposed or changed by the Congress after the date set for the opening of the bid upon which this contract is based and made applicable directly upon the production, manufacture, or sale of the supplies covered by this contract, and are paid to the Government by the contractor on the articles or supplies herein contracted for, then the prices named in this contract will be increased or decreased accordingly, and any amount due the contractor as a result of such change will be charged to the Government and entered on vouchers (or invoices) as separate items. 390 Reporter's Statement of the Case Plaintiff made delivery of all flour provided for in the contracts, same was accepted by defendant, and the defendant paid to plaintiff the bid or contract price therefor. Plaintiff was the processor of the wheat from which the flour was manufactured, and, along with other first domestic processors, during the period from May, 1935 to January 6, 1936, applied to and obtained from the United States District Court for the District of Kansas an injunction against the Collector of Internal Revenue prohibiting the collection from it of any processing taxes so that no processing taxes were paid by the plaintiff on the processing of wheat used in the manufacture of the flour delivered to the defendant. 4. Prior to the execution of the contracts mentioned in Finding 3 hereof, the Secretary of Agriculture, in accordance with the authority vested in him by the provisions of the Agricultural Adjustment Act of May 12, 1933 (48 Stat. 31), as amended, had, by Wheat Regulations approved by the President, established the rate of processing tax imposed on the first domestic processing of wheat and the conversion factor necessary to determine the processing tax imposed upon a particular product manufactured from wheat. Under such regulations the tax was fixed at 30 cents per bushel on all wheat processed, and the conversion factor applicable to floor stocks of flour was fixed at .00704 cents per pound. 5. The identification of the contracts referred to in Finding 3 hereof and the defendant's computation of the amount of the processing taxes which the defendant alleges were included in the contract price of the flour delivered to the defendant by the plaintiff at the rate of .00704 cents per pound of flour follows: |