SUDAMETAL SOCIEDAD ANONIMA, ETC. v. United States

• Decision Date: 06 February 1950
• Docket Number: No. 46104.,46104.
• Citation: 88 F. Supp. 293
• Parties: SUDAMETAL SOCIEDAD ANONIMA SUD AMERICANA DE METALES Y MINERALES v. UNITED STATES.
• Court: U.S. Claims Court

88 F. Supp. 293

SUDAMETAL SOCIEDAD ANONIMA SUD AMERICANA DE METALES Y MINERALES v. UNITED STATES.

No. 46104.

United States Court of Claims.

February 6, 1950.

Jack L. Rappaport, New York City, for plaintiff. Harry T. Zucker, New York City, was on the briefs.

Kendall M. Barnes, Washington, D. C., with whom was Assistant Attorney General H. G. Morison, for defendant.

Before JONES, Chief Judge, and WHITAKER, LITTLETON, MADDEN and HOWELL, JJ.

WHITAKER, Judge.

Plaintiff is a corporation organized under the laws of the Republic of Argentina and doing business in that country. It has no place of business in the United States. It sues for just compensation for some tin requisitioned from it by defendant.

On or about November 15, 1941, plaintiff purchased from Henry Waugh & Company, Ltd., of Singapore, 45.7 metric tons of tin at an average price of 56.23 cents a pound. A portion of this tin, 54,180 pounds thereof, was loaded on the SS Lillian Luckenbach for shipment to Buenos Aires, via New York City. On account of a marine disaster this tin was unloaded at Surabaya, Dutch East Indies, and was reloaded on the SS Collingsworth, which arrived in the Port of New York on May 4, 1942.

The tin was unloaded for transshipment to Buenos Aires in another vessel. It remained on the docks from May 4 to June 2 and 3, 1942, when it was stored with Bowne-Morton Stores, Inc., in Brooklyn.

At the time of the arrival of this tin there was in effect General Preference Order M-43, which had been issued under the authority of the Act of June 28, 1940, 54 Stat. 676, as amended by the Act of May 31, 1941, 55 Stat. 236, 50 U.S.C.A. Appendix, § 1151 et seq. This order provided in part:

"(b) Provisions as to future imports (not including tin afloat). — Unless otherwise specifically authorized by the Director of Priorities, no person shall:

"(1) Fabricate or convert any tin imported after the effective date of this order into the United States by him either directly or indirectly; or

"(2) Sell, transfer or otherwise dispose of any such tin (excluding tin afloat to the United States at the date of this order) except by sale thereof to the Metals Reserve Company or to any other governmental department, agency or corporation."

There was also in effect at the date of the arrival of this tin in this country regulations requiring a license for the shipment from this country of property in transit from one foreign country to another.

The validity of such a regulation was upheld in Neumaticos Goodyear, S. A. v. United States, 73 F.Supp. 969, 109 Ct.Cl. 535, certiorari denied 334 U.S. 838, 68 S. Ct. 1496, 92 L.Ed. 1763, and in other cases.

Faced with this situation, plaintiff, through two different agencies, sought to secure permission to reship this tin to Argentina, but its applications to do so were rejected on the ground that the proposed exportation would be contrary to the interests of the national defense. About ten days after the rejection of these applications the Navy Department requisitioned the tin.

Plaintiff filed a claim for just compensation in the sum of $97,191.04. This claim was allowed in the sum of $28,173.60, plus an additional sum of $651.46 for delay in payment. The amount of $28,173.60 was computed at 52 cents a pound, the price at which tin was being sold by the Metals Reserve Company.

Plaintiff claims that it is entitled to the price it could have received for this tin in Argentina. This claim cannot be sustained under prior decisions of this court. Neumaticos Goodyear, S. A. v. United States, supra. The regulations forbidding its transshipment were a valid exercise of the war powers of this country. Because of them, plaintiff was unable to deliver the tin to Argentina and, therefore, of course it was not entitled to the price it could have received for it in that country.

Regulations prohibiting its transshipment were issued pursuant to the sovereign powers of this country and plaintiff is not entitled to recover any damages it may have suffered in consequence thereof. Horowitz v. United States, 267 U.S. 458, 45 S.Ct. 344, 69 L.Ed. 736; Omnia Commercial Co., Inc., v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773; Neumaticos Goodyear, S. A. v. United States, supra, and other cases there cited.

Plaintiff says that we have held that where merchandise is purchased for export that the exporter is entitled to the export price, relying on United States v. New River Collieries Co., 262 U.S. 341, 43 S.Ct. 565, 67 L.Ed. 1014, and our decisions in Swiss Confederation v. United States, 70 F.Supp. 235, 108 Ct.Cl. 388, certiorari denied 332 U.S. 815, 68 S.Ct. 153, 92 L.Ed. 392; Foreign Trade Management Company v. United States, 74 F.Supp. 550, 110 Ct.Cl. 23, certiorari denied 334 U.S. 831, 832, 68 S.Ct. 1344, 1345, 92 L. Ed. 1758, and other cases. It is entitled to the export price, but this means the price being paid in this country for goods to be exported, and not the price which could have been secured in the country of its destination. Just compensation is to be determined as of the time and place of the taking. United States v. New River Collieries Co., 262 U.S. 341, 43 S.Ct. 565, 67 L.Ed. 1014; United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55; United States v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390. The place of the taking was New York City.

Nor is it shown that the export price was any higher than the domestic price, except that Revised Price Schedule No. 17 of the Office of Price Administration allowed an addition to the domestic price of 1 cent per pound for the sales for export of tin in the quantity which plaintiff had for export.

The Metals Reserve Company had established a ceiling price of 52 cents a pound for tin of the same grade as plaintiff's tin, and during the year 1942 it sold approximately 16,000 tons of tin at this price, and it was in position to supply tin to every holder of a priority or allocation for tin from the War Production...