Carr v. Yokohama Specie Bank, Limited, 13156.

• Citation: 200 F.2d 251
• Decision Date: 14 November 1952
• Docket Number: No. 13156.,13156.
• Parties: CARR v. YOKOHAMA SPECIE BANK, LIMITED, OF SAN FRANCISCO et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

200 F.2d 251 (1952)

CARR v. YOKOHAMA SPECIE BANK, LIMITED, OF SAN FRANCISCO et al.

No. 13156.

United States Court of Appeals Ninth Circuit.

November 14, 1952.

Louis J. Glicksberg, San Francisco, Cal., for appellant.

S. M. Saroyan, Shirley, Saroyan, Calvert & Barbagelata, San Francisco, Cal., for appellees Yokohama Specie Bank et al.

Harold I. Baynton, Asst. Atty. Gen., Chauncey F. Tramutolo, U. S. Atty., San Francisco, Cal., Valentine C. Hammack, Percy Barshay, Sp. Assts. to Atty. Gen., P. Richard Cosway and Mary Eschweiler, Attorneys, Dept. of Justice, Washington, D. C., for appellee J. Howard McGrath.

Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.

BONE, Circuit Judge.

For an understanding of the material facts and issues before us on this appeal see opinion of the lower court reported in 99 F.Supp. 4.

The record shows that in April of 1942 appellant was appointed Trustee in Bankruptcy of the Estate of Nippon Yusen Kaisya, a bankrupt Japanese Corporation, (hereafter called NYK) which prior to World War II had been engaged in ship transportation throughout the world. In 1943, and following summary proceedings before a Referee in bankruptcy (which proceedings were abandoned because of doubt as to whether the fund was subject to summary orders) appellant, in his capacity as Trustee in Bankruptcy, brought an action in equity in the lower court in which he prayed, inter alia, for a decree declaring that the funds in the Yoshio Muto "special account" referred to in the lower court's opinion are the property of NYK, the bankrupt; directing that they be placed in possession of appellant as such Trustee for the benefit of creditors of NYK, and that all adverse claimants to this fund be declared to have no right, title or interest therein.

Upon trial of this action the lower court held that on the record before it NYK was in no position to assert legal or equitable title to funds which resulted from transactions that were unlicensed as to the bankrupt NYK, and that the court could give no judicial recognition to its claim. The judgment denied the relief sought by appellant and this appeal followed.

Among other facts disclosed at the trial were the following. On July 26, 1941, Executive Order No. 8389, as amended, (referred to herein as the "Freezing Order") was promulgated by the President of the United States pursuant to the authority given by Section 5(b) of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq. This Executive Order prohibited all financial transactions between any banking institution in the United States and Japan, or any national thereof, unless licensed by the Treasury Department through an office of the Federal Reverse Bank. It was stipulated between the parties that the opening of the bank account which is here involved, and all transactions pursuant thereto, were subject to the Freezing Order.

As a result of the Freezing Order NYK suspended the operation of its ships and services in the United States.

Prior to October 14, 1941, NYK had owned and operated the steamship vessel Tatuta Maru, and on that date the Imperial Government of Japan formally requisitioned this vessel, the order of requisition reciting generally that the taking of the vessel was with the view of transporting passengers and mail between Japan and the United States, via Honolulu. The fact of the requisitioning of the vessel was made public in the United States; employees of NYK were appointed to the personnel of the Ministry of Communications of the Government of Japan and engaged in the operation of the vessel.

On October 17, 1941 the Japanese Government gave a written power of attorney to NYK to operate the ship as the attorney in fact for that Government. Thereafter NYK made written application to the United States Treasury Department for a license to handle the requisitioned ship in the port of San Francisco where it was due to arrive about October 30, 1941. The operation here noted was to be executed as authorized by the power of attorney executed by Muto, Consul General of Japan in San Francisco.

NYK stated in its application to the Treasury Department that "all receipts and disbursements incident to this operation are independent and bear no connection with the Nippon Yusen Kaisya funds." The statements in the NYK application were made under oath of an officer of that company.

At the conclusion of the trial the lower court made elaborate findings of fact in which, among other matters, it found generally that the Japanese Government had made written verified application to the Secretary of the Treasury of the United States to authorize the Yokohama Specie Bank, Ltd., San Francisco to receive a remittance of the sum of $39,000, from the Japanese Government for deposit to its credit in the United States in an account to be maintained in the name of Consul General Yoshio Muto, Special Account; that in said application the Japanese Government admitted under oath that no one other than the Japanese Government had any any interest whatsoever, direct or indirect, in the said $39,000 and upon this basis the Secretary of the Treasury issued a license authorizing the said Japanese Consul to receive said remittance of money belonging solely to the Japanese Government; that subsequently said Japanese Government made further written application to the Secretary of the Treasury to authorize the said Consul General to receive the sum of approximately $68,000 estimated as the income to result from the operation of the steamship Tatuta Maru and to deposit said sum in the said bank account, upon which demand license was issued granting said application; that between November 1, 1941 and December 2, 1941 the sum of $39,053.28 was withdrawn from the said Muto Special Account pursuant to written verified applications filed by said Consul General with the Secretary of the Treasury and licenses issued by said Secretary granting said applications; that on December 7, 1941, there remained in said account a balance of $66,882.15; that at no time during the period of the transactions here involved did NYK, or any one on its behalf, disclose to the Secretary of the Treasury that NYK had, or claimed to have, any interest, direct or indirect, in any of the funds deposited in said account; that no application for any license authorizing such transactions as transactions involving funds in which NYK had an interest was ever made to the Secretary of the Treasury; that no license for such transactions, as transactions involving funds in which NYK had an interest was ever granted by the Secretary of the Treasury; that on October 14, 1941 the Imperial Government of Japan requisitioned the said steamship Tatuta Maru by its official requisition No. EN No. 2044, and by virtue of said requisition became the owner of said vessel, and operated said steamship vessel from October 14, 1941 to and including December 7, 1941 for the purpose of returning Japanese nationals located in the United States to Japan; that any and all services performed by said NYK concerning the operation of said steamship vessel from the period of October 14, 1941 to and including December 7, 1941 was as an agent on behalf of the Imperial Government of Japan; that on November 21, 1941 said NYK was paid the sum of $4,771.58 by the Imperial Government of Japan for all services rendered by NYK as agents for the Government of Japan in the operation of said vessel by the Government of Japan for the period from October 14, 1941 to and including November 21, 1941; that at no time did the San Francisco office of The Yokohama Specie Bank, Ltd. have any knowledge of, or any reason to believe that NYK had, or claimed to have, any interest whatsoever in the funds of said account; that the Japanese Government was at all times during the period of the aforesaid transactions the sole, legal and beneficial owner of the funds of said account; that the balance of said account (here involved) was never at any time held by the said Yoshio Muto in trust for, or on behalf of, NYK; that NYK never had any beneficial interest in, or ownership of the said balance of said account; that by Vesting Order No. 256 dated October 27, 1942, as amended by Amendment to Vesting Order No. 256, dated September 7, 1942, the Alien Property Custodian of the United States, acting under authority granted by the Trading with the Enemy Act, as amended, seized all interests of said Yoshio Muto or the Japanese Government or the Imperial Government of Japan in said account; that the Japanese Government requisitioned the Tatuta Maru in good faith for the purpose of returning Japanese nationals from the United States to the Empire of Japan; that it is not true as alleged in appellant's complaint that it was agreed by and between said Consul General and said The Yokohama Specie Bank, Ltd., San Francisco Office, that any and all proceeds which were to be received from the voyage of said vessel were to be held in secret trust for said NYK and that any balance remaining after all expenses were paid, were to be withdrawn by said Consul General of San Francisco Office and paid to said NYK in Japan; that it is not true as charged in plaintiff's complaint, that NYK, the said Consul General of Japan and the said Yokohama Specie Bank, Ltd., entered into a plan and conspiracy to have the said Tatuta Maru declared as requisitioned by the Japanese Government.

Upon these and other pertinent findings the court entered conclusions of law in which, among other matters, it recited that until the effective date of Vesting Order No. 256, dated October 27, 1942, as amended by Amendment to Vesting Order No. 256, dated September 2, 1942, the Japanese Government was the sole owner of the entire legal and beneficial interest in the balance of $66,882.15 on deposit in the said bank account maintained in the name of Yoshio Muto, Consul General of Japan, Special Account; that NYK at no time had any interest, legal or...