Aliotti v. United States, 13872.

• Decision Date: 13 April 1955
• Docket Number: No. 13872.,13872.
• Parties: Giovanni ALIOTTI and Sebastiano Aliotti, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

221 F.2d 598 (1955)

Giovanni ALIOTTI and Sebastiano Aliotti, Appellants, v. UNITED STATES of America, Appellee.

No. 13872.

United States Court of Appeals Ninth Circuit.

April 13, 1955.

Joseph L. Alioto, Walter F. Calcagno, San Francisco, Cal., for appellants.

Warren E. Burger, Asst. Atty. Gen., Keith R. Ferguson, Leavenworth Colby, Sp. Assts. to Atty. Gen., for appellee.

Before HEALY and BONE, Circuit Judges, and MURRAY, District Judge.

HEALY, Circuit Judge.

In February of 1942 the United States, acting through the War Shipping Administration, requisitioned appellants' motor fishing vessel Sea Star (a boat of 107 tons gross register) under authority of 46 U.S.C.A. § 1242. After taking possession a bareboat charter party, dated March 23, 1942, was executed by the parties. The charter provided among other things that, unless actually or constructively lost, the vessel on redelivery to the owners was to be restored by the charterer in a condition at least as good as when delivered to it, less ordinary wear and tear, or in lieu of making restoration, the charterer, at its option, might pay the owners an amount sufficient to place the vessel in such condition.

In August of 1943 the government returned the Sea Star to its owners, electing at the time to pay them the cost of reconditioning rather than to perform the work itself. In May of 1944, the vessel being then in possession of appellants, a written settlement agreement was entered into in which the United States undertook to pay, and did pay, the sum of $9,034.39 in full satisfaction and settlement of its obligation to the owners under the reconditioning provision.

In February of 1949 appellants brought this suit, assertedly under the Tucker Act, to recover from the United States the sum of $10,000. They alleged that the amount of money required and actually paid by them for the restoration of the Sea Star was greatly in excess of that which the government had paid them. The amount of their claim in excess of $10,000 was formally waived. The theory of the suit is that the settlement agreement of May 2nd, 1944, and an earlier agreement made or release given at the time of redelivery, had been exacted from appellants under duress — that is, by threat of the government to withhold the return of the vessel unless the appellants accepted a sum which the government knew was inadequate for shipyard repair. The trial court found that the final settlement agreement of May 2, 1944 was voluntarily made and was a valid and binding contract. Judgment was accordingly given in favor of the government, and this appeal followed.

We do not consider the merits of the appeal since, for reasons to be stated, we are of opinion that jurisdiction is lacking under the Tucker Act. Appellants' exclusive remedy, we think, was under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq. or the Public Vessels Act, 46 U.S.C.A. § 781 et seq. both of which provide a limitation of two years within which suit may be instituted. As already appears, this suit was not brought until more than four years after the alleged cause of action arose.

Appellants insist that the district court possessed Tucker Act jurisdiction. They point to the fact that the Sea Star was requisitioned pursuant to § 902 of the Merchant Marine Act of 1936, 46 U.S. C.A. § 1242. As showing that the Tucker Act was intended by Congress to afford a remedy in situations such as the present, they quote certain passages contained in subdivisions (c) and (d) of § 1242, to the following effect:

"(c) * * * In the event of loss or damage to such property, due to operation of a risk assumed by the United States under the terms of a charter prescribed in this subsection, but no valuation of such vessel or other property or mode of compensation has been agreed to, the United States shall pay just compensation for such loss or damage, to the extent the person entitled thereto is not reimbursed therefor through policies of insurance against such loss or damage.

"(d) In all cases, the just compensation authorized by this section shall be determined and paid by the Commission as soon as practicable, but if the amount of just compensation determined by the Commission is unsatisfactory to the person entitled thereto, such person shall be paid 75 per centum of the amount so determined and shall be entitled to sue the United States to recover such further sum as, added to said 75 per centum, will make up such amount as will be just compensation therefor, in the manner provided for by sections 41(20) and 250 of Title 28 * * *."

The pertinent references here are to the Tucker Act, now designated as 28 U.S.C.A. § 1346, and to the jurisdiction of the Court of Claims, now defined in 28 U.S.C.A. § 1491 et seq.

Apart from the passages quoted, section 1242, and particularly subdivision (c) thereof, needs further exploring. The subdivision requires the submission of a proposed charter to the owner whose vessel has been requisitioned for hire, setting forth the terms as to hire, etc., which the War Shipping Administration thinks should govern the relations between the United States and the owner. If the owner does not execute the proposed charter or agree to the rate of hire or other terms prescribed, then "just compensation" shall be paid to the owner for the use of the vessel or for its loss or damage due to operation; and if just compensation is not paid suit therefor against the United States will lie in the manner provided by the statute. Where, however, the parties reach an agreement on the compensation to be paid in respect of a named item or items, it is implicit in the statute that the charter itself shall govern.¹

Here, the proposed charter party submitted was accepted by appellants and was executed by them and on behalf of the United States. Article 16 thereof, denominated "Special Provisions," left but two matters unsettled; and in respect of those matters the owners expressly reserved their rights to claim just compensation under the statute and applicable provisions of the Constitution. Those matters were (a) the precise sum to be paid for the use of the vessel, and (b) the amount of just compensation payable in event the vessel were actually or constructively lost, or purchased, or requisitioned for title. By addenda to the charter subsequently executed the parties agreed upon the amount to be paid for rental, and clause (a) of Article 16 relating thereto was formally deleted. This left open only the contingencies expressed in clause (b). The latter, of course, are not of present concern.

The clause of the charter expressing the agreement presently in question contains no reservation of rights to just compensation under the statute or under the Constitution. Obviously there was no occasion for such reservation since on that subject the contract governed the relationship. Accordingly the suit cannot be considered as one for just compensation under § 902 of the Merchant Marine Act; it is merely one for alleged breach of the charter party. Compare Matson Navigation Co. v. United States, 284 U.S. 352, 52 S.Ct. 162, 76 L.Ed. 336. Involved there was a clause of a requisition charter covering an agreement on the part of the government to reimburse the vessels' owner "for any proper increases in wages" of officers and crew over the standard prevailing at the date of the requisition. The suit had been brought in the Court of Claims to...