Chew Heong v. United States, 112 U. S. 536; Johnson v. Browne, 205 U. S. 309; Royal Holland Lloyd v. United States, 73 C. Cls. 722.

However, at the same time, there is another proposition of which mention has not been made in the memorandum but which, nevertheless, should not be overlooked. And that is, that since international law is no more binding upon the Congress than an existing statute, the Congress has the power to enact a statute, if it so desires, in conflict with international law. United States v. Siem, 299 F. 582. Furthermore, where such a conflict exists, the statute takes precedence over international law in controversies before courts of the United States. Thus, in the case of The Kestor, 110 F. 432, 448, the court said:

Treaty stipulations between the United States and foreign nations are not restrictive of the constitutional power of congress. They have the force of law, but, like statutes, are superseded in American courts by subsequent acts of congress conflicting with them. It goes without saying that mere international comity not incorporated in any convention between the United States and a foreign power must yield to a statute with which it is in conflict.

* *

See, also, in this connection, The Cherokee Tobacco, 73 U. S. 616; Head Money Cases, 112 U. S. 580; United States v. Lee Yen Tai, 185 U. S. 213; Taylor v. Morton, Fed. Cas. No. 13,799; United States v. Bell, 248 F. 992; 10 Op. Atty. Gen. 521.

Apparently, the English courts take the same view. In Mortenson v. Peters, 14 Scot. L. T. R. 227, 230 (1906), Lord Dunedin said:

In this court we have nothing to do with the question of whether the legislature has or has not done what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal sitting to decide whether an act of the legislature is ultra vires as in contravention of generally acknowledged principles of international law. For, as an Act of Parliament, duly passed by Lords and Commons and assented to by the King, it is supreme, and we are bound to give effect to its terms.

It is in the light of these fundamental principles that the instant question must be examined. But while they may provide some guidance and assistance in construing the act of June 6, 1941, 55 Stat. 242, and the extent to which its terms limit—if at all—the amount of just compensation which may be paid for a vessel requisitioned thereunder, it is upon that act and that act alone that such determination rests. It is true that certain provisions of section 902 of the Merchant Marine Act, 1936, 49 Stat. 2015, as amended, were incorporated into the later act by reference, but even that does not alter the fact that it is the legislative intent behind the later act that must here be construed. Therefore, it is clear that the principles of the decision of November 28, 1942 (22 Comp. Gen. 497), which dealt solely with vessels owned by citizens of the United States and requisitioned under said section 902, are not necessarily controlling in the matter.

It would seem that an argument could be made to the effect that the enhancement clause is not one of the "applicable" provisions of said section 902 within the contemplation of the later act. If consideration be confined to the language of said later act, support for such an argument is found in the manner in which the proviso in question is punctuated. That is to say, if a comma had been inserted after the word "vessels" the ensuing phrase clearly would refer to both the verb "determined" and the verb "made"; without the comma, the phrase refers-under strict rules of syntax-only to the verb "made." Under such construction of the proviso, the enhancement clause which concerns only the determination of just compensation would not be for application to vessels requisitioned under the act of June 6, 1941, and it could be presumed that the Congress intended by the term "just compensation" the meaning attributed to it by previous decisions of the Supreme Court of the United States. See Monongahela Navigation Co. v. United States, 148 U. S. 312; Seaboard Air Line Ry. v. United States, 261 U. S. 299; United States v. New River Collieries, 262 U. S. 341; Olson v. United States, 292 U. S. 246; Danforth v. United States, 308 U. S. 271. Cf. United States v. Miller, 317 U. S. 369.

However, it is a well-settled principle of statutory construction that punctuation is no part of the statute (Hammock v. Loan & Trust Co., 105 U. S. 77, 84), and that courts will disregard punctuation or will re-punctuate, if necessary, in order to give effect to what otherwise appears to be the true purpose and intendment of a particular provision. United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 82, 83. Thus, it would seem that little, if any, weight should be given to the manner in which the proviso here in question is punctuated (Barrett v. Van Pelt, 268 U. S. 85, 91), and that the intent of the Congress should be otherwise ascertained.

The language of the act itself leaves but little doubt that the Congress intended just compensation to be determined in the manner provided in section 902 of the Merchant Marine Act, 1936, as amended. But whatever doubt is left is dispelled by certain statements in the legislative history of the act. The need for the legislation was explained in a letter from the President to the Congress under date of April 14, 1941. Reference was made to said section 902 as the existing authority under which domestic vessels could be acquired during a national emergency. The President then stated, "The same section provides a method by which compensation shall be determined." There was enclosed with that letter a draft of a proposed resolution; and while the Congress made substantial changes in both the form and substance of said resolution before passing the act of June 6,

1941, it retained without change the provision that "just compensation shall be determined and made to the owner or owners of any such vessel in accordance with the applicable provisions of section 902 of the Merchant Marine Act of 1936, as amended."

Moreover, in its report on H, R. 4466 which subsequently became the act of June 6, 1941, the House Committee on Merchant Marine and Fisheries stated (page 7):

It is provided that just compensation shall be determined and made to the owner or owners of any such vessel in accordance with section 902 of the Merchant Marine Act, 1936, as amended. That section prescribes the compensation to be paid in the case of requisition of American-owned tonnage, and authorizes, in the case of a dispute as to the amount thereof, payment of 75 percent of the determined amount with recourse to the courts by the claimant for the balance of the amount necessary to constitute just compensation judicially determined. [Italics supplied.]

Such statements seem clearly to rebut the contention that it was not the intent of the Congress that the limitation of the enhancement clause in section 902 be applied to foreign vessels requisitioned under the act of June 6, 1941. The fact that during the hearings on the legislation the Assistant Secretary of State referred to the amount of compensation to be paid for the involved vessels in such terms as "full value," "just compensation" and "what they are reasonably worth," is of questionable significance. It is stated that, "The Department had in mind, of course, the payment of 'just compensation' as heretofore determined by both municipal and international tribunals." However, the present determination involves only what the Congress had in mind. And it would seem that such broad general expressions as were used, must be read in the light of the language of H. J. Res. 167, then pending before the Committee, which contained the same proviso with respect to just compensation as is contained in the act of June 6, 1941.

Furthermore, it would seem that under the circumstances attending the enactment of this legislation, little if any weight should be attached to the principle that a statute should be construed, if possible, so as not to violate accepted rules of international law. "Just compensation" for requisitioned property has been held to constitute the fair market value of the property as of the date of the tak ing, under the Fifth Amendment of the Constitution of the United States as well as under international law. See cases cited above. But notwithstanding such decisions, the Congress placed a specific and unmistakable limitation on the amount of just compensation which could be paid for vessels requisitioned under section 902. While it is not the province nor the intention of this office to express any opinion at this time on the constitutionality of the enhancement clause, certainly the action of the Congress in so limiting the values

to be placed on vessels taken under said section 902, makes it unreasonable to attribute to the Congress an intention not justified by the ordinary and usual meaning of the language employed in the act of June 6, 1941, solely to keep the statute in line with certain existing principles of international law.

However, it would seem that another argument is possible. Even if the enhancement clause be read into the later act, could it not be argued that "the causes necessitating the taking or use" of foreign vessels were not the same causes which necessitated the taking of domestic vessels? It might be contended that while the threat to our national security existing as of the date of a proclamation of a limited national emergency on September 8, 1939, was in nature sufficiently serious to necessitate the taking of vessels owned by citizens of the United States, the causes which necessitated the more extreme action of taking vessels in ports of the United States but owned by nationals of other countries, did not arise until 1941possibly as of the date of the proclamation by the President of an unlimited national emergency on May 27, 1941.

But whatever force an argument along such lines might otherwise have seems completely to fade before a nontechnical, common sense view of the matter. Is it not more reasonable to conclude that what the Congress actually intended was that in determining just compensation for foreign vessels taken under the act of June 6, 1941, the same standards should be used as those prescribed for domestic vessels in section 902? If so, it would seem to follow that it was likewise intended that there should not be paid for such vessels amounts in excess of those lawfully payable for a vessel of the same type, age, speed, etc., owned by a citizen of the United States and taken over by the Government pursuant to authority conferred by said section 902. That is to say, this office is constrained by the express terms of the act of June 6, 1941, to extend to the payment of just compensation for such foreign vessels as may be requisitioned thereunder the same limitations as are contained in section 902 of the Merchant Marine Act, 1936, as amended, as construed by the decision of November 28, supra.

However, it is clear that grave injustice reasonably could be expected to result from the application of September 8, 1939, values where it is found, for example, that the owners from whom the vessels were taken had acquired such vessels since September 8, 1939, at prices in excess of values existing on that date. Moreover, it is not reasonable to assume that the Congress intended such owners to suffer an out-of-pocket loss by reason of the taking, especially in view of the fact that the legislation under which the taking was made legally

possible was not enacted until almost two years after the causes necessitating the taking or use of such vessels began to exert influence on ship values. Therefore, where it appears that vested rights have been acquired subsequent to September 8, 1939, by reason of bona fide dealings with respect to a particular vessel on the basis of a market value in excess of the value of the vessel on September 8, 1939, this office will not object to the payment of an amount sufficient to cover the value of such vested interests.

In conclusion, it should be clearly understood that this office is not oblivious of the argument put forth by the Secretary of State that to place any limitation on the values of vessels of foreign owners taken by the United States under the act of June 6, 1941, may give rise to repercussions in the international relations of this country. The short answer to such argument is that it is directed to the wrong forum. It is the function of this office in matters within its jurisdiction to construe and give full force and effect to such laws as the Congress sees fit to enact, regardless of the consequences of such construction and enforcement. In Brown v. United States, 12 U. S. 110, 128, Mr. Chief Justice Marshall described a similar situation in the following words:

Commercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens. Like all other questions of policy, it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary.

(B-33863)

CONTRACTS-DEFAULTING CONTRACTORS—EXTENT OF INCREASED COST LIABILITY

Where a contractor defaults under its contract for furnishing supplies to the Government and a replacing contract is awarded to another contractor on the basis of specifications identical with those made a part of the defaulted contract, the rights and liabilities of the defaulting contractor are fixed at the time the second contract is made, and the defaulting contractor is liable for the difference between its contract price and the higher contract price fixed in the replacing contract, regardless of any subsequent adjustment in price that may be made between the Government and the replacing contractor to cover damages resulting from delivery of supplies not in conformity with the contract specifications.

Comptroller General Warren to the Administrator of Veterans' Affairs, May 11, 1943:

I have your letter of April 14, 1943, as follows:

There is submitted for your consideration the question of whether the liability of a defaulting contractor is determined unqualifiedly at the time of making a