The opinion of the court was delivered by: KAUFMAN
Upon libelant's motion, the above entitled cause was referred on October 4, 1948 by the Hon. John C. Knox, Senior Judge of this Court to a Commissioner to determine in advance of trial of any other issue in accordance with the applicable principles of law, the issue of the just compensation for the loss of the steamship Dona Aurora, which the libelant, if hereafter granted a final decree herein, shall be entitled to recover (less all payments on account heretofore made) in respect of the total loss of said steamship, and to report the same to the Court.
The Commissioner duly filed his report on March 23, 1950 and both parties have filed exceptions to the report.
The United States of America excepts to the report because it determined:
(1) Just compensation for the motor vessel Dona Aurora in the sum of $ 2,100,000 instead of $ 1,000,000;
(2) That the respondent was obligated to pay the libelant a value of the motor vessel Dona Aurora as of April 1, 1942, a date prior to the date of the requisition of the use of the said vessel by the United States, instead of the value of said vessel on December 25, 1942, the date on which the vessel was lost;
(3) That the transactions between the United States Maritime Commission relating to the sales of 18 Type C-1B vessels referred to in Respondent's Exhibits 21a to 21r inclusive, did not constitute a market upon which to base the value of the motor vessel Dona Aurora:
(4) Just compensation for the motor vessel Dona Aurora in a sum in excess of the sum of $ 1,960,000 claimed by the libelant in Respondent's Exhibit 4 to constitute the fair value of the vessel.
The report is further excepted to because:
(5) It did not give any consideration to the original cost of $ 904,360 paid by the libelant for the construction of the motor vessel Dona Aurora:
(6) It failed to give any consideration to the fact that between May 19, 1942, the date on which the Administrator, War Shipping Administration gave notice to the libelant of the requisition of the use of said vessel by said Administrator, and December 25, 1942, the date of the loss of the motor vessel Dona Aurora, said vessel was under requisition for use by said Administrator, War Shipping Administration;
(7) It failed to properly take into account the depressing effect on the value of the motor vessel Dona Aurora by reason of Government restrictions on her use, earnings and transfer;
(8) It determined that the domestic reconstruction cost on a multiple ship basis less depreciation offered the most nearly reliable guide for determining valuation of a vessel during the year 1942;
(9) It determined that the domestic cost of reconstruction of the motor vessel Dona Aurora was the cost of reconstruction to be considered;
(10) It failed to give any consideration to the estimates of libelant's witnesses that the cost of reproducing the motor vessel Dona Aurora in the United States in October of 1939, the date on which the construction of said vessel was completed in Italy, was approximately 100% in excess of the cost of constructing said vessel in Italy as of October, 1939;
(11) It gave consideration to various insurance valuations placed on the motor vessel Dona Aurora and her sister ships by the libelant, which valuations were not supported by appraisals for insurance purposes;
(12) It held that libelant should recover as just compensation for the motor vessel Dona Aurora the full value of the vessel as of the time and place of her delivery to the Government, regardless of the amount by which that value was enhanced by the causes necessitating her taking;
(13) It failed to find the sum by which the Dona Aurora's value at the time of delivery to the Government or loss was enhanced by the Government's need for vessels in the prosecution of the war which necessitated the requisitioning of many of them and failed to reduce the amount awarded to libelant by the amount of such enhancement.
The libelant excepts to the report:
(1) Because the Commissioner found that the sum which in all probability the Dona Aurora would have brought at a voluntary sale on April 1, 1942 was $ 2,100,000 only, and failed to find that said sum was substantially in excess of $ 2,100,000.
(2) Because the Commissioner found that the fair market value of the Dona Aurora on December 25, 1942 amounted to the sum of $ 2,082,000 only, and failed to find that the fair market value of said vessel on said date was substantially in excess of $ 2,082,000.
(3) Because the Commissioner, in computing the sound depreciated value of the Dona Aurora on April 1, 1942 and December 25, 1942 applied an excessive depreciation rate of 3 1/3 % progressive, and failed to apply a depreciation rate of 2 1/2 % progressive.
(4) Because the Commissioner failed to find that libelant, as a part of just compensation for the loss of the Dona Aurora, is entitled to compensation for delay in payment measured by interest on the award herein at the rate of 6% per annum from the date of said vessel's loss, December 25, 1942, but on the contrary found that the Suits in Admiralty Act limits the libelant to interest on any award to the rate of 4% per annum from the date of filing of the libel herein on December 22, 1944.
(5) Because the Commissioner erred in admitting in evidence Respondent's Exhibit 19 for Identification purporting to be a certificate issued by the Assistant Secretary of the United States Maritime Commission to the effect that there was never any 'determination' of just compensation made by the War Shipping Administration or the United States Maritime Commission for the Dona Aurora, which exhibit was not competent, relevant or material as to any issue before the Commissioner.
Libelant is a Philippine corporation. The Dona Aurora and two sister ships were built for libelant as owner at Trieste, Italy, pursuant to a contract dated March 16, 1938. The total contract price for the Dona Aurora was $ 904,360 and the ship was delivered to the libelant on October 4, 1939.
The principal characteristics and register dimensions of the ship were as follows: Length overall, 439.4 feet; length between perpendiculars, 413.3 feet; breadth, 57.7 feet; depth, 37 feet; summer draft 26 feet 5 3/4 inches with shelter deck closed and corresponding freeboard of 10 feet 9 1/2 inches; certified loaded speed 14.2 knots; propelled by Sulzer diesel engine of 5200 brake horsepower. She had five holds, five hatches, two decks (with a third deck in No. 1 compartment), two masts, four kingposts, electric winches, transverse framing and riveted construction. In addition to her original equipment a new gyroscopic compass was installed in September, 1941 at a cost to libelant of $ 18,363.
The Dona Aurora was a cargo vessel and had been built under supervision of Lloyd's surveyors and classified 100A-1 (Maltese Cross), Lloyd's highest classification. The libelant registered the Dona Aurora at Iioilo, Philippines, and placed the vessel, flying the American and Philippine flags, in its regular service between ports in the United States and the Philippine Islands and Far East. Prior to April, 1942, when the vessel entered the wartime service of the respondent, the Dona Aurora had made six or seven round voyages, and during that period had been maintained in first class condition.
The vessel was chartered for one year by the War Shipping Administration by a time charter executed on April 24, 1942 effective as of March 27, 1942. On May 20, 1942 the War Shipping Administration informed the libelant that it was requisitioning the Dona Aurora as of the date of her then present voyage. A requisition time charter was eventually executed between the libelant and the War Shipping Administration by agreement designated Contract No. W.S.A-3147-R effective as of April 1, 1942.
While in the Government's service the Dona Aurora suffered minor damage amounting to $ 18,000 in June and October of 1942, which damage was of a marine character at the owner's risk rather than at the Government's risk. See Requisition Charter, Part II, Clauses 1 and 20. The vessel was torpedoed in the Caribbean area on December 25, 1942 and was a total loss.
Libelant has brought suit against the United States to recover the war risk insurance valuation of the Dona Aurora pursuant to Title 46 U.S.C.A. § 1128d (repealed July 25, 1947). The requisition charter as amended (Contract No. WSA 3147-R, addendum No. 1) ...