Reporter's Statement of the Case

United States. This was done at the suggestion of the chartering committee because of a statement made that if paid into the Treasury of the United States an act of Congress would be required to get it out.

11. At the time the Jolanda arrived at New York the sum of $87,917.20 due the owner from Peterson, charterer, was the only item of charter or freight due and unpaid from any person to any other person in connection with the transportation of the cargo, under either the charter or the sub-charter.

The chartering committee waived its demand that the Italian Ministry of Shipping collect the freight moneys theretofore paid in Africa, which were in excess of the chartering committee rates.

12. The Shipping Board, upon receipt of the check for $87,917.20, deposited the same with the Treasurer of the United States, by whom it was cashed, and on November 29, 1918, this sum was credited to the account of the Shipping Board.

Subsequent to the delivery of the check, the actual outturn of the cargo disclosed that the estimated balance of charter freight due in the sum of $87,917.20 was in excess of the balance actually due, by the sum of $2,412.46. This excess was repaid by the Italian Ministry of Shipping to Lykes Brothers, Inc., on January 21, 1919. The Italian Ministry of Shipping made demand for the return by the chartering committee of the excess sum, but same has not been returned. The interest which the Italian Government originally had in the charter freights due under the charter party-20 percent of the gross freight-was collected in full from the owner of the Jolanda out of the £13,000 paid to the Italian Consul at Dakar at the time the loading of the Jolanda was completed. The Italian Government has no interest in the claim herein sued on.

13. On May 23, 1924, the commercial attaché of the Italian Embassy, Washington, in a communication to the general counsel, U. S. Shipping Board, included the claim of $87,917.20, along with some twenty other claims which, together with claims of the United States against Italy, were under consideration.

Opinion of the Court

Numerous attempts were made by and on behalf of the owner of the Jolanda, both through the Italian Ministry of Shipping and through counsel representing the vessel owner, to secure a refund of the moneys so deposited. Much correspondence and many conferences were had between such representatives of the vessel owner and the chartering committee, the United States Shipping Board and its counsel. No part of said moneys has been repaid to, on account of, or for the benefit of the owner or owners of the Jolanda.

14. Plaintiffs are the sole owners of the claim here sued on. There has been no assignment or transfer of said claim, or any part thereof, or interest therein, except as stated in finding 1 hereof. No other action on this claim has been taken by Congress or by any department of the United States Government, or in any other court seeking the return of said money, or granting of relief in lieu thereof.

The court decided that plaintiffs were entitled to recover.

BOOTH, Chief Justice, delivered the opinion of the court: Andrea Sanguineti fu Giuseppe was all his life a citizen and resident of Italy. Prior to and during all the period of this claim up to the date of his death in 1929 he owned and operated the sailing vessel known as the Jolanda. During the year 1918 the Jolanda was under requisition to the Italian Government and directed to transport coal from the United States to the Italian coaling station located at Dakar, on the West Coast of Africa.

The owner of the vessel under the terms of the requisition was permitted to transport cargoes on her west-bound voyage to the United States on his own account, subject only to account for and pay over to the Italian Government 20 percent of the gross amount of freight charges received by him upon any such voyage.

May 19, 1918, the owner entered into a charter party with V. Q. Peterson, a citizen of Denmark, to transport on the Jolanda a cargo of cocoa beans from Accra, Gold Coast, West Africa, to New York. The charterer Peterson was to pay freight at the rate of £15 per English ton of cargo transported and so far as herein pertinent was to pay the expense

Opinion of the Court

incident to the discharge of the cargo at the point of destination, the vessel expressly reserving a lien upon the same until freight payments were completed.

The charter party also contained the following provisions essential to quote:

In case the American Shipping Board may impose any restrictions of chartering price and that these restrictions may be applicable to this contract, same will be valid just the same, but the decrease of price required will produce these consequences:

If the same means a decrease in freight of more than 5 pounds per ton, the laydays will apply to 200 tons per day, and the demurrage to 175 lbs. per day.

If the same means a decrease in freight to one-half or less, the laydays will apply to 300 tons per day and the demurrage to 250 lbs. per day.

In this case the reductions or restrictions to be made will take place at the port of destination in North America.

Peterson subchartered the Jolanda to F. W. and W. Swanzy, of London, realizing a gain of £5 per ton of cargo transported.

The Jolanda sailed from the Gold Coast on August 13, 1918, and arrived at New York on October 30, 1918. On her arrival an unpaid freight charge amounting to $87,917.20 was due from the charterer to the owner, and this case involves the right of the plaintiffs to recover this sum from the United States under the facts of the case as found by the court.

The act of July 18, 1918 (40 Stat. 913), apropos this controversy, was a comprehensive war measure granting to the President plenary authority with respect to chartering of American vessels owned by citizens of the United States. This act forms the foundation upon which the case rests, and some of its provisions must be quoted:

SEC. 5. That the President may, by proclamation, require that vessels of the United States of any specified class or description, or in any specified trade or trades, shall not be chartered unless the instrument in which such charter is embodied, and the rates, terms, and conditions thereof are first approved by him. Whenever any vessel is comprised in any such proclamation, it shall be

78975-37-cc-vol. 83- -3

Opinion of the Court

unlawful to make any charter thereof, or comply with or perform any of the rates, terms, or conditions of any charter thereof, or to operate such vessel under any charter, without first obtaining the approval thereof by the President.

Whenever any charter of such vessel is approved, it shall be unlawful, without the approval of the President first obtained, to make any alterations in such charter, or additions thereto or deletions therefrom, or to make or receive any payment or do any act with respect to such vessel, except in accordance with such charter.

SEC. 6. That the President shall have power to determine, prescribe, and enforce reasonable freight rates and the terms and conditions of affreightment which shall govern the transportation of goods on vessels of the United States, which shall be filed with the United States Shipping Board and open to public inspection. It shall be unlawful to charge or collect any compensation for the transportation of goods on any such vessel, or to enforce or attempt to enforce any terms or conditions of affreightment, or to make or receive any payment or do any act with respect to such transportation, not in accordance with the rates, terms, and conditions so prescribed, anything in any contract, whether heretofore or hereafter made, to the contrary notwithstanding.

SEC. 7. That the President shall have power to prescribe the order of priority in which goods shall be carried or other services performed by any vessel of the United States and to specify goods which shall be carried or to direct the voyage or employment of any such vessel and to make such rules, regulations, and orders, with respect to any such vessel, relating to the loading, discharging, lighterage, or storage of goods, or the procurement of bunker fuel, or any other matter relating to the receiving, handling, transporting, storing, or delivering of goods, as may in his judgment be necessary and proper for the efficient utilization of transportation facilities and the effective conduct of the war.

SEC. 8. That the President may by proclamation extend the provisions of sections five, six, and seven, or any of them, to any vessel of foreign nationality under charter to a citizen of the United States or other person subject to the jurisdiction thereof.

SEC. 10. That the President may by proclamation require that no citizen of the United States, or other person subject to the jurisdiction thereof, shall charter any vessel of foreign nationality unless the instrument

Opinion of the Court

in which such charter is embodied and the rates, terms, and conditions thereof are first approved by the President. After the making of such proclamation it shall be unlawful for any such citizen or person to make any charter of any such vessel, or comply with or perform any of the rates, terms, or conditions of any charter thereof, or to operate any such vessel under any charter, without first obtaining the approval thereof by the President.

SEC. 16. That whoever does or attempts to do anything in this Act declared to be unlawful, or willfully violates any rule, regulation, or order issued under authority conferred herein, shall be punished by a fine of not more than $5,000 or by imprisonment for not more than two years, or both: Provided, That the district court of the Canal Zone shall have jurisdiction of offenses committed against the provisions of this Act within the Canal Zone.

On July 29, 1918, the President issued the following proclamation:

Now, therefore, I, Woodrow Wilson, President of the United States of America, acting under authority conferred in Section 5 of said Act, do proclaim that hereafter vessels of the United States, being full power driven vessels of 250 tons gross burden, or over, or sailing vessels with or without auxiliary power of 50 tons gross burden, or over, excepting vessels plying exclusively on the inland rivers and canals of the United States, vessels operating in the Great Lakes or other inland waters, and vessels operating exclusively in the coastwise trade of the United States, shall not hereafter be chartered unless the instrument in which such charter is embodied, and the rates, terms, and conditions thereof, are first approved by the President.

Under authority conferred in Section 8 of said Act, I do further proclaim that the provisions of said Section 5, and of this Proclamation, shall be and they are hereby extended to any vessel of foreign nationality under charter to a citizen of the United States or other person subject to the jurisdiction thereof.

Under authority conferred in Section 10 of said Act, I do further proclaim that hereafter no citizen of the United States or other person subject to the jurisdiction thereof, shall charter any vessel of foreign nationality unless the instrument in which such charter is embodied