Appeal from District Court of the Virgin Islands; Moore, Judge.
Before BIGGS, JONES, and GOODRICH, Circuit Judges.
The SS Maret, a ship of Estonian registry the beneficial ownership of which apparently rested in a number of Estonian citizens in a shipping copartnership under the style of "Tallinn Shipping Company, Ltd.",*fn1 arrived at the Port of St. Thomas in the Virgin Islands July 27, 1940.*fn2 The Maret had been engaged in carrying bauxite from Georgetown in British Guiana to St. Thomas. J. H. Winchester & Co., Inc., of New York City (hereinafter referred to as "Winchester") were her general agents. The Maret was under a time charter to Saguenay Terminals, Ltd. (hereinafter referred to as "Saguenay"), which required delivery of the Maret at a safe port north of Cape Hatteras.*fn3
On June 17, 1940, the armies of the Union of Soviet Socialist Republics occupied Estonia and thereafter the Soviet Socialist Republic of Estonia was created. The Soviet Republic of Estonia promulgated certain decrees and enacted various statutes*fn4 which purported to nationalize ships of Estonian registry. An Estonian State Steamship Line was organized pursuant to a decree promulgated on October 29, 1940, by the People's Commissar of the Maritime Fleet.*fn5 By a proclamation published in the Estonian State Gazette*fn6 the Maret was transferred to the Estonian State Steamship Line. On July 19, 1940, a time charter was executed between "The Tallinn Shipping Company, Limited" as "owners" of the Maret and All Union Chartering Company (hereinafter referred to as "Sovfracht"),*fn7 a juridical entity or corporation organized under the laws of the Union of Soviet Socialist Republics. Sovfracht is the agency employed by the Soviet Republics and by the Estonian State Steamship Line for the chartering of vessels. The charter referred to provided for one "Far East round voyage", the charterer to supply bunkers and supplies. It was stipulated by the parties that Amtorg Trading Company (hereinafter referred to as "Amtorg"), a New York corporation, acted as "agent" for Sovfracht in connection with the Maret.*fn8
On or about July 31, 1940, the Maret being at St. Thomas, her master, Captain Jakob Hall, received from Winchester information that the Maret had been nationalized. Hall thereupon cabled Amtorg for instructions. Amtorg by a cablegram dated August 7, 1940, ordered Hall to procure bunkers and supplies and to proceed immediately to Murmansk. Hall then cabled Amtorg and asked for instructions as to the disposition of the charter party made with Saguenay, having in mind that clause of the charter providing that the Maret should be delivered to a safe port north of Cape Hatteras. He was instructed by Amtorg to disregard the provisions of the charter. Hall then cabled for instructions to certain individuals whom he considered to be the managers of the Maret and received contradictory directions from certain of them.*fn9 He then decided to take the Maret to Murmansk and requested advances from Amtorg to pay his crew and himself and to buy supplies, including bunkers for a "six thousand mile" voyage. The nature and dates of these advances will be discussed at a later point in this opinion.
On August 5, 1940, the Honorable Johannes Kaiv, acting Estonian Consul General at New York City, directed Hall to disregard any instructions to take the Maret to Murmansk. Since Hall was uncooperative, on August 13, 1940, Mr. Kaiv, acting purportedly pursuant to the authority of Article XXII of the Treaty between the United States and Estonia signed on December 23, 1925, 44 Stat. 2387,*fn10 and Paragraph 84 of the Estonian Consular Law,*fn11 sent him a cable dismissing him as master of the Maret. On September 17, 1940 the Consul General appointed Captain Leopold Truberg, an Estonian citizen and apparently one of the beneficial owners of the Maret, as her captain. Hall, however, refused to relinquish his command to Truberg and Truberg never took command of the ship.
At various times during the dispute as to ownership and control of the Maret, powers of attorney were executed by individuals who were among the beneficial owners of the Maret. In certain of these powers of attorney Mr. Kaiv as Consul General or a representative to be appointed by him were named as attorney-in-fact to take such acts as should be necessary to preserve the private property interests in the Maret. Other individuals who also were beneficial owners of the Maret, but who were resident in Estonia, executed powers of attorney making Mr. Charles Recht, one of the proctors for Amtorg in the case at bar, their attorney-in-fact. Some of the latter powers were revoked by subsequent instruments executed before the United States Consul at Helsinki.*fn12 We think that it is sufficiently clear from the record that Mr. Kaiv represented and does now represent several individuals who, absent the requisition of the Maret by the United States Maritime Commission, hereinafter referred to, would have beneficial interests in the Maret and who presently have an interest in preserving the fund in the hands of the Treasurer of the United States.
On August 3, 1940, Sovfracht cabled Amtorg in New York naming about eighteen "Estonian Latvian" ships, described as being "chartered on time charter * * * at present in American and Canadian port waters",*fn13 and directed Amtorg to follow the movement of the ships, to get in touch with the captain of each and, if necessary, to arrange to have an agent supply bunkers and provisions for them. Sovfracht also directed Amtorg to telegraph or cable information, concerning the status of each steamship.
On the back of Exhibit 18, a cablegram dated August 2, 1940, from Amtorg to the Maret, appears a message written in pencil which was sent apparently by Saguenay to some undisclosed person, perhaps Winchester or West Indian Company, Ltd. (hereinafter referred to as "West Indian"), the latter apparently being an agent for the Maret at St. Thomas, requesting that instructions be given to the Maret to proceed to Norfolk, Virginia, in ballast in order that the ship might be delivered in accordance with the terms of her charter to Saguenay. This message ends with the sentence, "Captain replenish bunkers sufficient reach Norfolk with safe margin telegraph acknowledgment and sailing." On the 7th of August Amtorg cabled the Maret, "Tallinn transferred you 6,000 dollars take necessary bunkers and proceed to Murmansk direct."*fn14 It appears from the record that Captain Hall did not receive this money. On August 8, 1940, a cable signed "Amtorg Vassiliev" was sent to Sovfracht at Moscow quoting a cable sent by Hall to Amtorg, stating that he needed 750 tons of coal and provisions which would cost $11,000 to enable the Maret to proceed to Murmansk.*fn15 On August 12, 1940, Amtorg cabled to Hall, "Sovfracht transferring $11,000 to Winchester wire when sailing Murmansk."*fn16 It appears that Sovfracht did not transfer this money to Winchester, but that funds were received later as indicated in the following paragraph. On August 19, 1940 Sovfracht cabled Amtorg, "Maret money being transmitted by Tallinn."*fn17
On August 27, 1940, Amtorg transferred by cable to Hall as master of the Maret $3,000 for "crew's wages".*fn18 On September 9, 1940, Amtorg cabled to West Indian $11,000 following further requests by Hall for funds.*fn19
Claimant's Exhibit No. 9 is a bill of West Indian totalling $11,342.77, dated September 13, 1940. It includes a charge of $7,545.91 for 849 tons of coal, shipchandler's charges of $1,339.73, a charge of cash delivered to Captain Hall of $1,500, and other smaller charges for water, pilotage, medical attention, and similar items. Johannes Rasmussen, an accountant for West Indian, testified that no coal was put on board the Maret until West Indian had received the cabled draft from Amtorg referred to.He subsequently modified this statement by saying that 199 tons of coal were put on board the Maret on July 30, 1940, and 650 tons on September 12, 1940.*fn20 The evidence as to the date of payment by West Indian of the Maret's shipchandler's bill cannot be definitely settled from the present record,*fn21 nor is it clear when the other disbursements included in West Indian's bill were made by that company on behalf of the Maret.*fn22 It also appears that Mr. Charles Recht gave Mr. Julius Niin, the first officer of the Maret, the sum of $300*fn23 while on a trip to St. Thomas. This payment was made about March 26, 1941.
In the latter part of 1940*fn24 Captain Truberg filed*fn25 a possessory libel against the Maret in the District Court of the Virgin Islands at "Civil No. 29-1940." Amtorg intervened in this suit. Because of a joint petition by the parties to the court for a general continuance, this case was not decided and has now probably become moot by reason of the requisitioning of the Maret by the War Shipping Administration, referred to more specifically hereinafter. Some of the evidence taken in the proceeding and certain exhibits were introduced into the case at bar by stipulation of the parties.*fn26
On September 16, 1941, the Maret, still at St. Thomas, was requisitioned by the War Shipping Administration acting for the United States Maritime Commission.*fn27 The requisition was effected in accordance with an Executive Order of the President of the United States, made pursuant to the Act of June 6, 1941, c. 174, 55 Stat. 242. Section 1 of the Act, 50 U.S.C.A. Appendix § 1271, provides that upon the requisitioning of a foreign vessel by the Maritime Commission " * * * just compensation shall be determined and made to the owner * * * of any such vessel in accordance with the applicable provisions of section 902 of the Merchant Marine Act, 1936, as amended * * * ." Section 1 requires also "That such compensation * * * shall be deposited with the Treasurer of the United States ...