CASES DECIDED IN THE COURT OF CLAIMS ATLANTIC REFINING CO. v. THE UNITED STATES [No. C-978. Decided December 2, 1929. Motions for new trial overruled November 2, 1931] On the Proofs Eminent domain; requisitioning of vessels; Shipping Board rates; just compensation.-See Standard Transportation Co. v. United States, 61 C. Cls. 906. Same; effective date of requisition order of October 12, 1917, act of June 15, 1917.-The legal effect of the requisition order by the United States Shipping Board under the act of June 15, 1917, dated October 12, 1917, was to place the ships therein described under Government control from the date set in the order, and such requisition was not postponed or was not inoperative, by reason of lack of government control or interference, between the said date and a subsequent agreement by which the owner agreed to sign with the Shipping Board, prescribed requisition charters [which, however, were never signed] to be effective as between the parties hereto as of the date when said charters would have been effective under the terms of said requisition order if they had been signed and delivered on October 12, 1917." Marion & Rye Valley Ry. Co. v. United States, 60 C. Cls. 230, 270 U. S. 280, distinguished. Same; agreement to operate vessels free from accounting; customary service.-Plaintiff's agreement with the United States Shipping Board for the operation of its vessels during the war construed and held to relieve the owner of accounting for the maiden voyages of certain of its tank steamships from the Pacific to the Atlantic coast, laden with plaintiff's own oil and delivered at its refinery, the said voyages being in "previous service customarily maintained by the owner," which was to employ its vessels in transporting crude petroleum to its refinery from such points as in the end gave it the greatest profits, but not necessarily by way of a repeatedly used route. 91642-32-CC-VOL. 72-1 1 Reporter's Statement of the Case Contracts; agreement to create relationship; observance of terms; obligation thereunder.---Where parties expressly agree to create a relationship and thereafter act in accord with the created relationship, one asserting rights thereunder and the other silently acquiescing therein;, they are bound by the relationship agreed to be created: The Reporter's statement of the case: Mr. Ira Jewell Williams, sr., for the plaintiff. Messers. J. Frank Staley and I. V. McPherson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. The court made special findings of fact as follows: I. The Atlantic Refining Company is and was during the transactions hereinafter described a corporation duly incorporated under the laws of the State of Pennsylvania. It is engaged in buying, selling, and refining petroleum and petroleum products, and for such purposes constructing, purchasing, owning, maintaining, and operating a fleet of tankers and other ships. II. By authority of the emergency shipping act of June 15, 1917, the President was authorized: "(b) To modify, suspend, cancel, or requisition any existing or future contract for the building, production, or purchase of ships or material. "(e) To purchase, requisition, or take over the title to, or the possession of, for use or operation by the United States any ship now constructed or in the process of construction or hereafter constructed, or any part thereof, or charter of such ship. or "Whenever the United States shall cancel * * requisition any contract or take over any plant * ** or part thereof, or any ship in accordance with the provisions hereof, it shall make just compensation therefor, to be determined by the President; and if the amount thereof, so determined by the President, is unsatisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so Reporter's Statement of the Case determined by the President and shall be entitled to sue the United States to recover such further sum * in the manner provided for by section twenty-four, paragraph twenty, and section one hundred and forty-five of the Judicial Code." By Executive order of July 11, 1917, No. 2664, the President delegated to the United States Shipping Board Emergency Fleet Corporation all power and authority vested in him in so far as applicable to and in furtherance of the construction of vessels, the purchase or requisitioning of vessels in process of construction, whether on the ways or already launched, or the contracts for the completion of such vessel; and to the United States Shipping Board like power and authority with respect to the taking over of title or possession, by purchase or requisition, of constructed vessels, and the operation, management, and disposition thereof, the power so delegated to the United States Shipping Board to be exercised directly by said board or by it through the United States Shipping Board Emergency Fleet Corporation. III. (a) Under such authority, on August 3, 1917, the Fleet Corporation by its order and notice requisitioned and took over the title to all hulls of vessels then building. Among the vessels building, included within this requisition order, was the tanker J. C. Donnell, 14,800 tons deadweight, then building for the plaintiff in the yard of the Newport News Shipbuilding & Dry Dock Company; the J. E. O'Neil, 10,475 tons deadweight, then building in the yard of the Bethlehem Shipbuilding Corporation (Ltd.), at San Francisco; the Herbert L. Pratt, 10,475 tons deadweight, then building in the yard of the Bethlehem Shipbuilding Corporation (Ltd.), at San Francisco; the W. M. Irish, 10,475 tons deadweight, then building in the yard of the Bethlehem Shipbuilding Corporation (Ltd.), at San Francisco; the W. M. Burton, 10,561 tons deadweight, then building in the yard of the Bethlehem Shipbuilding Corporation (Ltd.), at San Francisco. (b) Immediately upon the requisition of said hulls by the Fleet Corporation, the builders proceeded with the con Reporter's Statement of the Case struction thereof as required by the Fleet Corporation, and completed all of them. (c) On January 16, 1918, by agreement between plaintiff and the United States, the title to said tank steamship J. C. Donnell was conveyed by the United States to plaintiff; the possession and use of said vessel was requisitioned by the United States Shipping Board; plaintiff agreed to operate the same as the agent of said board and that it would make such freight charges, whether for proprietary or commercial cargo, as the Shipping Board should direct, accounting to the board for all net profits of such operation. At the same time plaintiff executed requisition charter No. 2 whereby it agreed to accept for the use of said vessel hire at the rate of $4.15 per deadweight ton per month on bare-boat basis, and $5.75 per deadweight ton per month on time-form basis. The J. C. Donnell was delivered January 22, 1918. (d) On January 10, 1918, by agreement between plaintiff and the United States, the title to said tank steamship J. E. O'Neil was conveyed by the United States to plaintiff; the possession and use of said vessel was requisitioned by the United States Shipping Board; plaintiff agreed to operate the same as the agent of said board and that it would make such freight charges, whether for proprietary or commercial cargo, as the Shipping Board should direct, accounting to the board for all net profits of such operation. At the same time plaintiff executed requisition charter No. 2 whereby it agreed to accept for the use of said vessel hire at the rate of $4.15 per deadweight ton per month on bare-boat basis, and $5.75 per deadweight ton per month on time-form basis. This vessel was delivered January 10, 1918. (e) On February 6, 1918, by agreement between plaintiff and the United States, the title to said tank steamship Herbert L. Pratt was conveyed by the United States to plaintiff; the possession and use of said vessel was requisitioned by the United States Shipping Board; plaintiff agreed to operate the same as the agent of said board and that it would make such freight charges, whether for proprietary or commercial cargo, as the Shipping Board should direct, account- |