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154 Ct. 01.

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460

Findings of Fact recited by the several charters; (2) that the dates shown in columns 3, 4, and 5, are, respectively, the dates upon which the charters were signed by the general agents and the India Supply Mission, and the dates upon which loadings were commenced; and (3) that the figures shown in columns 6 and 7 reflect, respectively, the amounts of the commissions paid to and claimed by plaintiff as brokerage. The final column accounts for the difference between the amount paid and the amount claimed, and represents the balance due to plaintiff if it is entitled as a matter of law to recover.

9. (a) As indicated by column 5 of table 1, loading was commenced on each of the 12 vessels after January 1, 1952, thereby making its charter subject to the terms of NSA Order No. 59. The loading dates are undisputed.10

(b) The dates on which the charters were signed by the general agents and by ISM, as shown in columns 3 and 4 of table 1, and the amounts "paid” and “claimed," as shown in columns 6 and 7, are likewise undisputed.

(c) The "balance” shown in the final column of table 1 is not challenged as accurately reflecting the difference between the amount “claimed” and the amount "paid,” but defendant does challenge the "balance” column as reflecting the amount of plaintiff's recovery (if it is entitled to recover), because of defendant's contention that the "as of” dates (shown in column 2) do not accurately reflect the fixture dates of some of the charters.

10. (a) NSA allocations of vessels were made to its general agents for specific purposes. Notification was sent by NSA headquarters to its coast director on the Atlantic, the Pacific, or the gulf coast, of the availability of a named vessel for a particular purpose. Notice was also given to the potential charterer, in this case ISM. The coast director of ISM notified the general agent of the allocation, giving the name of the vessel and of the potential charterer.

a

10 If the effective date of NSA Order No. 59 had been for services rendered on vessels fred on and after some advance date, instead of "*• • vessels commencing to load on and after” a specified date, or if the effective date based on loading had been advanced far enough to allow for intervening fix. tures, the questions in this lawsuit would not have arisen. NSA adopted the loading date in preference to fixture date because of the precedent established by the War Shipping Administration, upon the cessation of hostilities, in termi. nating charters for lend-lease shipments. No reason was offered by NSA for not advancing the loading date to allow for intervening fixtures.

154 Ct. Cl. Findings of Fact (b) Nothing remained to be done to "fix" the vessel except to agree upon the dates for loading and discharge. This agreement could be, and often was, reached between the general agent and the potential charterer. The general agent then named a ship's broker and gave him the name of the charterer and the agreed loading and discharge dates, which information was all that was needed to prepare the written agreement, the remaining terms having been prescribed by NSA. Meanwhile, the charterer named his cargo broker, who then communicated with the general agent to ascertain the identity of the ship's broker. If none had yet been named by the general agent, the cargo broker might agree with the general agent upon the loading and discharge dates, whereupon the charter would be fixed. Similarly, a ship’s broker, inquiring of the charterer as to the identity of the cargo broker, might agree with the charterer upon the terms of the charter, thereby "fixing" the vessel.

(c) In the instant case several of the vessels were "fixed” (1) by representatives of ISM (the charterer) with either the general agents or their brokers and (2) by plaintiff with the general agents before the latter had named their brokers. It is established by the evidence that each of the 12 vessels was "fixed” before January 1, 1952. It is therefore immaterial whether the "as of" dates recited in the charters accurately reflect the fixture dates or, in some instances (as suggested by an official of NSA), reflect the dates of the vessel's allocation. 11

11. (a) The charters of 4 of the 12 vessels were originally drawn with provisions for commissions of 114 percent of the freight payable by the owner to a named ship broker for equal division with plaintiff. Each of the four charters was disapproved by NSA 13 until a suitable addendum had been signed by the general agent and ISM making provision for payment of commissions in conformity with NSA Order No. 59.

11 Plaintiff rests its case on its contention that the reduction of brokerage commissions on ships loading on and after January 1, 1952, was retroactive as to ships fixed prior thereto and was therefore invalid.

12 The four vessels were: (1) SS CLYDE SEAVEY ; (2) SS MARCUS DALY; (3) SS LYMAN ABBOTT ; and (4) SS EDWIN BOOTH.

13 Under NSA procedures, charters not disapproved were deemed to be approved.

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Conclusion of Law

(b) The commission clauses of each of the remaining eight charters were drawn in compliance with NSA Order No. 59 in the original document.

(c) Each of the charters was reviewed by plaintiff's vice president before the document was submitted to ISM for signature. Plaintiff was therefore fully aware of the contents of each of the charters. In forwarding to ISM the "original charter party on vessel EDWARD BELLAMY” on January 4, 1952, for signature and return, plaintiff wrote:

*** You may care to note that in the space provided for the payment of brokerage the phraseology is different. We have advised the NSA that despite the phraseology on this or any other charter, we are not

willing to accept their reduction in brokerage rates.* * * 12. (a) On or about January 8, 1952, plaintiff filed with the Director of NSA written protest to the terms of NSA Order No. 59, with particular reference to the provision making the order effective as to vessels loading on and after January 1, 1952, insofar as the charters for such vessels had been fixed prior thereto.

(b) On April 17, 1952, the Director of NSA advised plaintiff of his adherence to the provisions of the order.

(c) On December 5, 1952, plaintiff requested reconsideration by the Director of his prior decision insofar as it applied to the vessels listed in table 1, and also requested payment of commissions with respect to such vessels in accordance with a schedule accompanying the request.

(d) On December 22, 1952, the Director denied plaintiff's requests.

CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover and, therefore, plaintiff's petition is dismissed.

154 Ct. Cl.

Syllabus

SNYDER-LYNCH MOTORS, INC. v. THE

UNITED STATES

(No. 233–57. Decided July 19, 1961]

ON THE PROOFS

Contracts; breach; prevention or hindrance of performance by other

party.-In an action by plaintiff to recover damages for the alleged breach by defendant of plaintiff's contract to rebuild tank engines and also of defendant's undertaking to furnish plaintiff with certain facilities needed to form the rebuilding operation, it is held that defendant did breach the rebuilding contract when it withheld certain necessary information from plaintiff regarding the cost of required parts and when it unnecessarily delayed its inspection of plaintiff's facilities so that they remained idle for several months, and plaintiff is accordingly entitled to recover the extra costs incurred as a result of these actions. It is further held that defendant's delay in making reimbursement payments until plaintiff's books were in proper order did not amount to a breach. Judgment for

plaintiff. Contracts; breach-prevention or hindrance of performance by other

party.—Where the Government knew, because of prior experience on another contract, that the cost of the parts required by plaintiff in the contract it was to perform for the Government would substantially exceed an estimate suggested to the plaintiff by a Government contract negotiator, the Government was under an obligation to make this information available to the plaintiff, and its withholding of the information so that plaintiff underestimated the cost of performing the contract amounted to a breach of the Government's obligation not to do anything to hinder or impede plaintiff's performance. Ragonese, et al. v. United States, 128 Ct. Cl. 156; Bateson-Stolte, Inc.

v. United States, 145 Ct. Cl. 387. United States Om 73(22) Contracts; damages; evidence of damages-excess costs.-In a

breach of contract claim where it appears that the Government inspector took improper actions or improperly failed to act, plaintiff must show that it incurred excess costs as a result of

such improper behavior, otherwise it is not entitled to recover. United States Own 74 (10) Contracts; breach-prevention or hindrance of performance by other

party.—Where the Government withholds amounts representing reimbursement payments for plaintiff's contract costs because it does not appear that plaintiff has actually made the payments for which it seeks reimbursement, and where plaintiff's

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