Weeks v. Goltra

Decision Date23 July 1925
Docket NumberNo. 6871.,6871.
Citation7 F.2d 838
PartiesWEEKS, Secretary of War, et al. v. GOLTRA.
CourtU.S. Court of Appeals — Eighth Circuit

Lon O. Hocker, Sp. Asst. Atty. Gen., for appellants.

Joseph T. Davis and Douglas W. Robert, both of St. Louis, Mo. (Charles Claflin Allen, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, Circuit Judge, and POLLOCK and SYMES, District Judges.

POLLOCK, District Judge.

For convenience, the parties will be designated as they stood on the record below.

This appeal brings before this court for review an order granting appellee, plaintiff below, a temporary mandatory injunctive order against appellants, defendants below, enjoining and commanding them to restore to said plaintiff at the port of St. Louis certain towboats, barges, and other appliances theretofore by him held in possession, under and by virtue of a certain written agreement of lease entered into between plaintiff and the United States through its agent and representative designated by the honorable Secretary of War on the 28th day of May, 1919, until defendant below, the honorable Secretary of War, acting under and in pursuance of the terms of said lease, on March 3, 1923, determined the conditions of said lease had been broken by plaintiff, and declared the same terminated, and directed the restoration of the government's property to its representatives at the port of St. Louis, Mo. Said order of the honorable Secretary of War terminating the lease not having been complied with, by direction of the Secretary of War the fleet of barges and towboats and handling facilities at St. Louis were seized by order of the War Department by Col. T. Q. Ashburn, Chief of the Inland and Coast-wise Waterways Service, when the order sought to be reviewed was entered.

But two questions are presented by this appeal. The solution of these questions determines the controversy. They are as follows (1) Is this suit one in legal effect and intendment against the government of the United States? (2) Is the question presented as to the right of the government to retake the leased property one committed to the decision, judgment, and discretion of an official of the government, or is it a justiciable controversy for submission to and decision by a court of justice?

The controversy arises in this manner:

Growing out of the emergency created by the late war, the necessity arose, or was thought to arise, of having towboats and barges on the upper Mississippi river employed in carrying coal and iron ore, and other heavy minerals to St. Louis, to be there used in the manufacture of iron needed in the production of munitions of war. To subserve this purpose, the United States Shipping Board Emergency Fleet Corporation allotted to the Chief of Engineers of the United States armies the sum of $3,860,000 with which to have constructed at Point Pleasant, W. Va., Pittsburgh, Pa., and Keokuk, Iowa, under contract of August 1, 1918, nineteen barges, and under plans and specifications prepared for such purpose by the government either three or four towboats. These barges having been constructed, or nearing completion, and the towboats having been contracted for when the Armistice was signed and the emergency of war ended. The government then desiring to make some disposition and use of the fleet, and, there having been prior negotiations with plaintiff, the written contract of lease, the terms of which are in controversy herein, was entered into on the 28th day of May, 1919, as follows:

"1. This lease, made this 28th day of May, 1919, between the United States of America, represented by Major General William M. Black, Chief of Engineers, United States Army, directed by the Secretary of War so to represent the United States, hereinafter designated as the lessor, party of the first part, and Edward F. Goltra, of the city of St. Louis, state of Missouri, hereinafter designated as the lessee, his heirs, executors, and administrators, party of the second part, witnesseth that "Whereas, the party of the second part at the request of certain government officials as an emergency of war, in order to increase the output of pig iron, made certain arrangements for iron ore and coal properties with a view to producing pig iron at St. Louis, Mo.; and

"Whereas, the United States Shipping Board Emergency Fleet Corporation, allotted to the Chief of Engineers the sum of $3,860,000 for the construction of a fleet of towboats and barges for the primary purpose of transporting the said iron and coal to and from St. Louis, Mo.; and

"Whereas, on the 1st day of August, 1918, the United States of America entered into contracts for the construction of nineteen barges suitable to use for the transportation of said iron ore and coal; and

"Whereas, the United States of America is about to construct by contract or otherwise a fleet of towboats for the purpose of towing the said barges, the construction of which in the opinion of the Secretary of War is necessary to enable the government to dispose of the said barges more advantageously; and

"Whereas, the said fleet of towboats and barges is especially designed for and adapted to the transportation of iron ore and coal; and

"Whereas the said lessee has entered into various engagements and undertakings to increase the pig iron supply as a war measure, which may have created, and according to the contention of the lessee did create, obligations on the part of the United States to the said lessee, but which he entirely releases and discharges in part consideration of this lease, which engagements, undertakings, and lease are in furtherance of the original design for the assembling of coal and iron ore at St. Louis, Mo., and for the increase of pig iron facilities:

"Now, therefore, the said lessor doth hereby charter and lease unto the said lessee for a term of five (5) years, beginning with the date of delivery to the lessee of the first barge or towboat and terminating five (5) years after the delivery of the first barge or towboat the following described property, viz.: Nineteen barges which are being constructed under contracts dated August 1, 1918, with the Marietta Manufacturing Company, of Point Pleasant, W. Va., the Dravo Contracting Company, of Pittsburgh, Pa., and the Dubuque Boat & Boiler Works, of Dubuque, Iowa, and three or four towboats about to be constructed and described in accordance with specifications prepared or to be prepared therefor.

"It is thereupon covenanted and agreed between the said parties as follows:

"2. (a) That the said lessee shall operate as a common carrier the said fleet of three or four towboats and nineteen barges upon the Mississippi river and its tributaries for the period of the lease and of any renewals thereof, transporting iron ore, coal, and other commodities at rates not in excess of the prevailing rail tariffs, and not less than the prevailing rail tariffs without the consent of the Secretary of War; but nothing herein shall be deemed to prevent the most profitable and most advantageous use of said vessels being made, provided the Secretary of War consents to such use other than as a common carrier.

"(b) That the lessee shall pay all operating expenses of the fleet and maintain, during the continuance of the lease, each towboat and barge of the fleet in good operating condition to the satisfaction of the lessor, and shall hold the United States entirely free from all liabilities and indebtedness of every kind in connection with the operation, care, and maintenance of the entire fleet and all its engines, boilers, outfit, tackle, apparel, furniture, and appurtenances; and the lessee shall, without unnecessary delay, as soon as he acquires any knowledge thereof, discharge any and all maritime liens that may at any time during the continuance of this lease from any cause arise against or become impressed upon any one, any or all of the fleet of nineteen barges and three or four towboats. The lessee shall procure and take out, for the benefit of the United States, insurance, both fire and marine, in such an amount as in the judgment of the Secretary of War each of the vessels may require and with such underwriters or in such companies as are approved by the lessor, insuring each and every one of the barges and towboats against physical injury to them, or any of them, and against the loss of any or all of the barges and towboats hereby leased. The lessee shall likewise procure and take out fire, marine, and towers liability insurance in such an amount as in the judgment of the Secretary of War each of the vessels may require, with such underwriters or in such companies as shall be approved by the lessor, and for the benefit of the United States, insuring each of the vessels against such injury as may be inflicted by such vessel upon other property, such as might result in maritime liens, or in liability or obligation by the lessor, and, if the lessor shall require, execute, and deliver to the lessor, a bond in the penal sum of three hundred thousand ($300,000) dollars, conditioned to protect the United States against such liability or obligation and against any and all maritime or other liens against the fleet or any of the vessels of the fleet and against any and all depreciation in value of all or any of said vessels, by reason of maritime or other liens arising or becoming impressed upon them or any of them. Such bonds as in any part of this contract are required to be given by the lessee for the benefit of the United States shall always and at all times during the continuance of this lease be kept good, and shall be replaced at any time by other good and sufficient bonds at the request of the lessor, and they shall be kept good, not only against the impaired credit or financial responsibility of the obligor or surety, but also against partial depletion or entire exhaustion thereof, brought about by the payment of losses or indemnities thereunder.

"(b-1) All...

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2 cases
  • United States v. Goltra Goltra v. United States
    • United States
    • U.S. Supreme Court
    • February 3, 1941
    ...in favor of the claimant shall be paid in the same manner as other judgments of said Court of Claims are paid.' 3 Weeks, Secretary of War, v. Goltra, 8 Cir., 7 F.2d 838; Ex parte United States, 263 U.S. 389, 44 S.Ct. 130, 68 L.Ed. 351; Goltra v. Weeks, Secretary of War, 271 U.S. 536, 46 S.C......
  • Jamison Coal & Coke Co. v. Goltra
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 23, 1944
    ...judgment appealed from is affirmed. 1 For a history of the litigation upon Goltra's claim prior and subsequent to 1934 see: Weeks v. Goltra, 8 Cir., 7 F. 2d 838; Petition of United States, 263 U.S. 389, 44 S.Ct. 130, 68 L.Ed. 351; Goltra v. Weeks, 271 U.S. 536, 46 S.Ct. 613, 70 L.Ed. 1074; ......

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