Petition for Writ of Certiorari — In re Moity

Supreme Court brief1962

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Text

: ke ; Office-Suntems Cemrt, U.S.

a ARDY uF Li i D

JOHN F. DAVIS, CLERK ~

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In the Supreme Court

: of the United States

—- rERM, 1962: °’/ oo

Moorre-McCormack’ Lines, Inc., Petitioners —* > . *

Vs.

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\ . Unrrep Srates or America, Respondent.

' Petition for Writ of Goniovast to the

United States — of Claims

cman = °

J. A. DIC KINSON.

A fee 612 New England Building

- Topeka, Kansas"

Attorney for Petitioner

PAUL CG. AIKEN

~ 1066 National Press Building

Washington, ma <. ; . ,

Of Counsel’ ° ee hi

oe _ ~ a —.-— _,- a

\ 4. tt. IVER & BONS, TOPEKA

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INDEX

ea, ‘ Page

~ Petition for Writ of Certiorari...... . SA eae pen ee ee a |

REPT R CEPT LR PTET IEE TETEEE evaaWapan et I

\: Jurisdiction ® e686 6686 @€ j * * ete «© = ese eve 5 eee eee * oy Se eeeereeeeeee 2° =

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Questions Presented ....... pt eeeets ah 6 ws dias aorta ae eee |

Constitutional Provisions, Statutes, International Postal |”

. Conventions, Orders of the Postmaster General, atid

the Constitutional Provisions, Decrees and Execative.

Interpretations: of Argentina, vreeays and Brazil

on Involved . .. pasReS Ee SAC OO Ceeeree Ui ss she S on sp sese @

Statement of the Case:....+......5, ares Ne Pe bitahe aaa 12

Count I........... Sec aa ee R 64a 45 Ud As tae hees ) a

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_ Count sot ROOTS Ty Share Canaan < fencer a ane 16

ee .

= _Reasons for Granting the Writ-_.. ee eS |

I. The C ourt of Claims has decided important ques-

tions of Federal law which are without precedent —

and‘ are so fundatyental that they should be

settled only NS SEER OR OTOL 19

II. The Court of Claimg has decided a Federal ques-

tion ‘in a way in/conflict .with the —

‘decisions of this Court. ......... 0.000.006. eden sae

IL Fhe Gourt of Claims has 86 far departed fom the

_ accepted. course of judicial proceedings as to call

_ for the exercise of this Court's power of supervision. . . 26.

Conclusion Sy Ae Sete ee ee eee Sesenaeneneipacs ‘ae

el ot oat -

Appendix A-—Opinion of the Court of Claims: .

. °

‘. Appendix B—Report of the Commission | ,

anal

. ‘

: rs. art 2 e

Table of Cases .

® .: ‘e : .

Grace Line, Inc. v. U. S.,"Ct. Cl. No, 218-58. .......

Moore-McCormack Lines v. U.S., 119 Cr. Cl. 484... .

Urevic v. Jarka Co., 283 U.S. 234, 75 L. Ed. 812...

-U!S. v. Pink, 315 U.S. 203, 86 L. Ed. 799. .........

ne ‘Statutes Cited. | :

Merchant Marine Act of 1936, Sec. 405'(a)..... 28.

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se .

«thes ——

ee 28

gq '

-. Ia the Supreme Court

‘of the United. States

| OCTOBER TERM, 1962

.. 4

Moore-McCorMack Lines, INc., Petitioner

—

x | ben gad

—

—_

UNITED fs: OF “AMERICA, Respondent

PETITION FOR A writ OF CERTIORARI

' TO THE UNITED STATES. COURT OF CLAIMS |

‘Petitioner Moore-McCormack Lines, Inc. prays that a sit t

- of certiorari issue to: review the judgment ef the United States

Court of Claims, entered in the above entitled case on “April -

4, 1962, with motion for “ a-new wrial overruled: on’ July 18,

waa. .-*

CITATION 10 OPINION BELOW

The opinion of the United States Coury “of Claims delivered

by Whitaker, Judge, was filed on April 4,. 1962, and has not’

yet been- reported but is set forth itt the Transcript, of the

Record and as Appendix A. Pd ’

‘

oe JURISDICTION es ae

The judgment of the United States-€ ourt t of Claims sought

"to be revicwed was entered April 4, 1962. A motion for a-

" new trial was. vested * on -July- 18,. 1962; The jurisdiction

of this_ Court is. ails under 28 U. S.C. 1255. °

ence eee QUESTIONS ‘PRESENTED “ @ .

1. Can:thé United States assert the laws of i iden Uru-

guay, and Brazil in the United States Court of Claims against

plaintiff, a U. S. citizen, to avoid aeous due under United

*. States law when 4 : ;

_ (a) the foreign laws impose burdensomé free mail —

es * upon plaintiff s United, States flag vessels .in return for worth-

less and unused harbor privileges, and, |

* (b) the foreign laws have been outlawed and nullified by

Universal Postal Union Conventions which’ permitted the

/ United States to collect for the. services of plaintiff, and,

_Union of the: Americas and Spain yoluntarily relinquished

. its right to collect for plaintiff's services by obligating itsélf

‘to convey by the ships of its flag without any sai! all the.

mails of thé other’ Contrasting. countriés, and,

(d) the foreign nations did not apply the local Ws in

question to_ plaintiff. but ‘expressly . tendered their’ mails to

" plaintiff as Convention mails, ‘and, :

(e) “Most favored nations” treatment resulting from ‘‘‘free

and gratuitous transit” performed under the Conventiort: was

the basis on which privileges, if any, were extended to the

‘ships of member countries, including those of plaintiff, ard,

_ (f) the result.is that plaintiff was required to perform

* services of erent value with payment from noone? |

- . ° . e e \

2. Can the United States escape ‘paying the plaintiff ‘by

relying upon interpretations mad¢ ‘by its Post Office Depart-.

ment that local laws: of -Argentina, Uruguay, and Brazil re-

quired the plaintiff to carry. their mails dree, when the official

interpretations of. the governments. of Argentina, Uragua ,

“and=Brazil were to the contrary stating that, these were Con-“

“yention mails which the plaintiff. carried free as’ ‘a result of

tlie obligation of the United States under the Conventions

of the Postal Union of the Americas and bs maa

+. May ‘laws of. foreign countries be received in ev idence

on behalf of, the United States to establish defenses or excep-

tions to laws of ‘the Unit& States requiring payment to the

- plaintiff when | these tn, ht for no such defenses or

: exceptions?

4. May the Court of Claims shift to the plaineitt the burden

of — ing an affirmative defense of ‘other payment” :

_ If the. United States’ can avail itself of the fact that

rae s vessels were eligible to receive’ privileges under

foreign law because of their carriage of Convention” mails,

is it not a denial of just compensation to allow the privileges

as an. offset of more of the debt owed by the United States to

the plaintiff than. the pro tanto. or true value of the privileges?

6. When all the evidence shows that the decree of Brazil: .

being asserted against ‘the plaintiff is confiscatory in that it

provides no quid pro quo for plaintiff's services, , should the

Court of Claims as a matter of stare decists hold to its improper:

construction that an earlier similar law provided a quid pro

quo, when ‘its previous construction resulted fromr 3 a mistake ,

-of fact?

7. Can the. plaintiff maintain a cause of action against the

United States. for the recovery,of Money when the Post Office

‘Departmént arbitrarily and. without notice diverted from

plaintiff's vessels to plainuff s financial loss mails which they

were entitled to receive under’a preference established by the

Department pursuant to the requirements’ of Section 405 @)

of the Merchant Marine Act. of 19362

‘

—" . *

_«

CONSTITUTIONAL PROVISIONS, STATUTES, INTERNATIONAL

POSTAL CONVENTIONS, ORDERS OF THE POSTMASTER GEN- _

ERAL, AND THE CONSTITUTIONAL PROVISIONS, DECREES AND

EXECUTIVE INTERPRETATIONS OF ARGENTINA, URUGUAY,

AND BRAZIL INVOLVED |

1. Constitution of the United States *

Amendment 5

‘ — — — nor shall private property be taken for public use,

without ie compénsation,”

® 3

wa A Statutes of the United. dares

- Merchant. Marine \Act, of 1936, Sec. 405 (a) a9 Stat. 1995)

- (46 U.S.C.A. 1145):

(a) All mails of the United States carried on vessels

between ports between which it is lawful under the navi-

gation laws for:a Vessel not documented under the laws

of the United States to carry merchandise shall, -insofar

as practicable, be carried on. vessels of United’ States

‘Tegistry. * ee,

- 3. Conventions of rr Postal ilies of the Americas and

Spain: ‘

Axticle 3 of the Convention of the Postal Union’ of the

_ America$ ahd $pain, signed at Madrid oh November 10, 1931,

and approved by the President on February 9, 1932 (a7 Stat.

si iia in part as follows: ra

; 5

: ARTICLE 3 Wiech aaa

a . ’ , e~ u Ag :

Free and gratutteus transit

. The gratuity of territorial, fluvial and— maritimes |

aa is absolute in: the territory of the Postal Union ‘of

the Americas and Spain; consequently, the countries

which form it obligate themsélves to transport across their

territories and to convey, by the ships of Their registry of

flag which they utilize for the transportation of their own

correspondence, without any | ‘iarge whatsoever to the |

contracting countries, all that which the latter may send Mj

‘to any destination.

s .

FIN AL PROTOCOL OF THE CONVENTION

: (47 Stag 1940) :

&. : . .

ah -

2. Each of the.contracting countries obligates itself to

maintain the privileges which: the ships of the other coun-

tries of thé Postal Union.of the Americas and Spain ‘trans-

porting correspondence gratuitously are at present enjoy-

ing, as well as to concede to them im the: future all the -

_ privileges which they extend to ships of ay pther country I.

that SiAtenris said service. - - <

’

‘The same language appears as Article Ill of the Final Proto-

col of the. Convention of Panamia, 1936 (50 Stat. 1651); as

Article If of the: Votos del G rongreso or Resolutioris of the *

; Congress of Rio dé Janeiro of 1946; and as Article I of the’

Votos del Congreso or Resolutions of the Congress of ‘Madrid

of 1950. (The Votos del Congreso or Resolutions of the Con-

gress of Rio de Janeiro, 1946, and Madrid, 1950, appear as

—~ a> part of: ‘the Documents of the Fifth and. Sixth Americo- .

Spanish F Postal Congres) e | ge

REGULATIONS OF EXECU TION OF THE CONVEN.

TION OF -THE POSTAL’ UNION OF THE AMERICAS

«AND SPAIN (47 Stat. 1942): .

ARTICL E.14

Apiplication of the Universal Postal Convention

and eomneter legislation )

" . fF. All: matters in ecient with the exchange of

“Jabstsheliies among the contracting countries which

‘are not provided for in these Regulations will be subject

“to the stipulations, of the Regulations of the Convention

of the* Universal Postal Union, in force.

. Likewise, the domestic legistaticn of the s samie cour:

tries will be applicable in everything that has not been

re by either set of meguiations.

'. Article 3 of the € olivention of the Postal Union ‘of the

Americas and. Spain, signed at Madrid on November 9, 19507

ratified by the President on June 22, 1951 mis I. A. 5. 2286), .

* provided in part as follows:

Tele a a. ARTICLE 3

P _ Free and gratisitous. transit

I: The gratuity of territorial, fluvial and maritime -

transit is absolute in the territory of the Postal Union of

the Americas and, Spain; consequently, -the countries.

which form it obligate themselves to transport across their.

s territories and to vonvey by ships of their registry or flag,

without anys charge to the ‘contrac ting countries, all the

correspondence, which the latter may.send to any destina-

tion whatsoever. However, this gratuity of. transit. will |

not be applied to the subsequent maritime transmissions

‘ of correspondence: destined for a third country which ‘is

not a member of the Postal Union of the Americas and

Spain in cases where..a reshipment or transfer may be

necessary, pr ae" expenses of handling si arise,

* * * *

¢ é ©

. é s e

4. Coriventigns.of the Universal Postal’ Union = &

Convention of .Madrid, 1920 (42 Stat. 1971) provides:

| ARTICLE 3

ee on postal groufids special obligations on packets em-

ployed in regular mail services and maintained by a

country of: the Union in exchange for advantages arid

privileges which may exist or be established in favor of

any class of Merchant Ships, especialiy as regards the

formalities and arrangements on entering or maka.

port.”

a Convention of Scckhidbin: 1924 (44 Stat. 2221), provides:

: . ~ ARTICLE 70. - | F

Transit Charges

1. Correspondence exchanged in closing mails between |

two Administrations of the Union; by. means of the serv-

aces of one or several other Administrations (third serv-

ices), is subject to the payment to each of the countries

traversed or whose sewices participate . in the convéyance, ..

‘of the transit charges indicated in the following table:

(table. omitted.) — -

; g

4. ‘Barring contrary agreement, maritime conveyances

effected directly between two countries, by means of ships ‘

belonging to one of them, as Web as conveyances effected

between two offices of the same country through the

‘intermediary of services belonging to* another country,

are considered as third services. Os ye °

The same provisions were continued in succeeding con-

’ .

ventions to date. 0 . : ‘

inventions of London, 1929, 46 Stat. 9593.

Convention of Cairo, 1934, 49 Stat. 2741.

‘Convention of Buenos Aires, 1939, 54 Stat. 2049

aie “The high contracting parties undertake not to-im- .

~ 4

e™

3 8

Convention of Paris, 1947, 62 Stat. 3157

Convention of Brussels, 1952, TIAS 2800 °

Les Actes de L’Union Postale Universelle, revisés 4 Ottawa

1957 et annotés par les soins du. Bureau International, i.e.,

The Acts gthe Universal Postal Union, revised at Ottawa in-

1957 and annotated through the efforts of the International, °

Bureau. The annotations on transit charges, Article 67, Paris;

Article 78, Brussels, and Article 79, Ottawa, all read the same. °

The pertinent annotation reads: - 5

“If the services of steamships connecting two countries,

by means of ships of one of them are considered as ‘third

services’, they nevertheless do not have the quality of an

intermediary -third Administration. They are not author-

ized to agree upon transit rates, reductions, or dispensa-

tions, with the debtor country, except to collect the fees.

This right is reserved to the country to which these ships

belong, namely the one which grants. them’ privileges in

_accordance with its legislation or subsidizes them. either -

by subsidies property so-called; or .in the form of pre-—

miums (contractual services). It necessarily -follows that

the debtor country on its part is not authorized to impose

on those foreign ships ‘the free transportation of mails,”

‘Not even in connection with the facilities provided for the

loading and unloading of the ship in its ports and avail-

ing itself of certain regulations established in its domestic ~

service.” : a .

5. Orders of ‘the Postmaster Geheral

These Orders appear in Appendix A, pages 16-21, as the:

Court's Finding of Fact 12. - aos

™

° ~ bad

- &, Constitutional Provisions, Decrees, and Executive Inter-

pretations of Argentina, Uruguay and Brazil

These provisions appear in the Appendix as follows:

Argentina

, Decree, Article. 421 as it appears..in Digesto Maritimo y

‘Fluvial appears in Appendix A, page 27, as - Cure’ Find-

ing of Fact 27.

Certificate, Ministry of Communications, February 21, 1957,.

appears in ‘Appendix A, pages 27-28, as the Court's riang

of Fact 29.

Boiseay eS peers ok

Decree No. 20730, January 3, 1952, appears in Appendix B,

pages 27-35, as the Commissioner's Finding of Fact 35.

Certificate, Ministry of Industry and Labor, December 14,

1958, appears in Appendix A, pages 30-31, as “the: Court's

oe “ot Fact 33, -

Brazil

"Constitution, Article 141, Paragraph 16 appears in Appendix

A, page 31, as the Court's Finding of Fact 35.

" Decree, No. 10, 524, “October 1913, Article 159, appears in

Appendix B, pages 37-38, as the Commissioner's Finding: of

Fact 42. .

Decree:law No. 3,326, June.3, 1941, appears in Appendix A,

page 33, as the Court's Finding of Fagt 37.

| Executive Decree of January 17, 1951, issued in June 15

contains essentially a rewrite of the 1941 decree law. Appen-

dix A, page 34, Court's Finding of Fact 39.

Decree law No.. 5406, April 14, 1943, appears’ in Appendix

A, pages 33-34, as the Court's Finding of Fact 38.

Letters, Ministry of Public Works ‘(plaintiff's exhibit 9),

are as follows:

. 10

Ministry oF Pusiic Works _ Nov. I, 1948.

Ist DC | : ee

Carriage of Post Office Mails _* October 1948."

2 ‘encl. ji :. | ; |

‘Sirs: In “accordance with ‘Tequest. of the Moore-Mc- —

"+ (Cormack (Navegacao) S.A., of this city, we hereby con-

firm the terms of communications issued by this Depart- —

ment, nos. 937 and 2088 of January: 10th, 1939, and Feb-

ruary 12th, 1940, respectively, by means of which I ad-

vised you, that in accordance with Brazilian Laws, Steam-

, Ship&ompanies are not compelled to carry, free of charge,

mails*forwarded by the Brazilian’ Post Office, and that the

-advantages granted to these Companies do not make such

transportation compulsory. . :

2. The Administration of .the ‘Brazilian’ Post ‘Office

Department, takes advantage of free carriage fog*its mails

- on vessels sailing under the flags of the countriés partici-

pating of the U. P. A. E. (Postal Union of the Americas '

and Spain) having in mind, solely, the disposition con- -

tained in paragraph 1 of article-3 of the Postal Conven-

tion of Panama in 1936, reinforced by the same article

and paragraph of the Postal Convention held -in ‘Rio de

Janeiro in 1946. - ae lS aan iia teem

3. For the sake of a better understanding of this subject

we are attaching hereto copies of the above mentioned -

communications. |

I take this opportyinity to present our very best regards, .

| Postmaster General (Acting),

. MANOEL DA SILVA GASPAR.

To the PosrMaster GENERAL,

- Washington, (D. C. Etate Unie d’amerique)

' Free Translation. |

_ (Enclosures.)

ll :

| COMMUNICATION 937 | \ z

Oveics, ¢ OF THE POSTMASTER GE NERAL,

Rio DE JANEIRO, January 10th, ist.

‘To the POSTMASTER GENERAL,

i _ Washington, U. 8. A.— No. 987.

‘¢ Dear Sir: I would refer to your letter of the Sth of

December ult., regarding the. ‘transportation of mails, in

view of the Postal Convention of the Americas and Spain. |

2. In this connection this Department received from

Moore-McCormack (navegacao) S$. A., agénts of the Amer-

ican Republics Line a request for thé Brazilian Postal —

Department to communicate with your Department in

order to commence the reception by this line, of the mails

at ports on their schedule. "3. We are also advised. that

‘ the above line received from your. Department a declara-

tion that your Department was awaiting requisition . for

the free transportation of ‘mails in accordance with the

Convention. 4. This Department did not open a brief in

‘the form of a requisition for tree a in view

of the dispositions contained in nos. 1 and 2, art. 3 of

Chapter * ‘Free and Gratuitous — Transportation” of the

acts signed at the 4th Congress | of a sce

— ~-the. Americas and Spain it’ 1936. 5. However, in view

- of your Department’s expectation ini this regard to the

‘acquiescence by the Brazilian Postal -Dept., to Use ‘the

American Republics .Line, we are: pleased to advise you |

that, within the dispositions contained in the Acts to_

which our countries were contracting parties, the Brazilian

Postal Department can commence the expedition and —

reforwarding of mail, since’ the steamers” jn tng, et |

matriculated and travel under your commnry ’s flag rd-

ially yours, a

(Signed) Capt. Mario ay Faria .LEmos.

ComMMUNICATION: 2088 .

‘FEBRUARY 42, 1940.

Sir: In reply to your communication n. 3112 (c) of

ad “ = e

. .

May 26 ult., I have the pleasure to inform you that,

according to the Brazilian Law, Steamship Companies are

not compelled, at present,: to transport ~_ of charge,

mails issued by our Postal Department. 2. Furthermore,

the advantages and favours granted to these compantes do

not make it compulsory to transport mails gratuitously.

3. However, we wish to inform ‘you that the American

‘Republics Line operates at Brazilian ports under the same

conditions and manner as her predecessor, the ‘Manson

Steaniship Line.” Please accept our best regards, Techni-

cal Director of the Postal Department: (Signed) Algredo |

_ Avelino Guimaraes— Post Office Department — Secénd-

“Assistant Postmaster General, Washington: D. C. — 34. =.

37 —O. L.— M. R:

% STATEMENT OF THE CASE

The basic issues presented by. this case are novel and un-

precedented issues of law — not issues of faet. The report of

the. Trial Commissioner in all Hl pertinent. respects: finds’ the

facts (o_ be substantiatly as alleged t by the plaintiff. The Court

adopted most of :the Commissioner's findings as written. It

eliminated some and:altered others without explanation. The

Commissioner's report affords a comprehensive account of the

‘situations found in the case.

The case has two separate and distinct factual and legal

situations:

Count 1

The northbound (and interport) transportation. of the mails

by: vessels of Plaintiff South American countries to the

_ United States under the/“free and gratuitous transit’ provi- .

sions of Conventions of the Postal. Union of the Americas and

Spain referred to herein as Convention mails.

In this situation, the Plaintiff has been rendived. by the

concurrent action of the United States, Argentina, Uruguay,

a 13

and Brazil-to perform approximately $800,000 of mail trans:

portation since World War Il without any payment. This

resulted from Argentina, Uruguay, and Brazil pn the one hand .

C 0

saying to the Plaintiff, in effect, “you must carry our mails

free because we are entitled to this service from E’nited States

Hag vessels by agreement of the United States under an Inter: |

-national convention.” On the other hand the United States ©

said’ ‘notwithstanding the Coin ention and Postmaster General

Orders, providing payment to ‘you’ for these services we will

not pay because local decrees of the countries tendering the

mails erequired. you to carry -them Aree in return lor packet

»rivileges.”’

} § -

As far back’ as the nineteenth century foreign ‘passe ager’

- packet ‘Vessels had been carrying the small volume -of. grail

of a few South American countries without charge as a <ourt-

esy. The undelayed movement of Such vessels was of import.

ance to these countries. As a consequenc e preferential anchor-

age and berthing was extended to these vessel isi in return for

free carriage of the yails. The conc ept of preferential berth-

ing in exchange for free mail transportation was formalized

by local decrees of these countries. It exists: nowhere else in

the w orld.

-As. mail volume increased this free carriage became so

onerous . ‘to, shipping lines and their parent ‘nations that the

Universal Postal Union outlawed these local decrees by adopt-

ing the a provisign: :

>»

“The high contracting, parties undertake not to impose —

on postal grounds spec ial obligations on* packets employed

in regular mail services and maintained by a country of

the Union in exchange for advantages. and _ privileges

which may exist or be established in favor of any ‘class

of Merchant Ships, especially as regards the formalities

and arrangements on entering or leaving port.” (Conven- °

tion of Madrid, 1920, Art. 3, Sec. 3.)

. : i ; *

. ~

Thereatter: -upder the Conventions’ of the Univerial Postal

*Union‘the United States could have billed the Postal Admin-

istrations of Argentina, Uruguay and Brazil for the services

of the: Plaintiff involved in this case notwithstanding any’

local law.

_ The right‘to bill and collect te the: services of the Plaintilt

was voluntarily relinquished_ by the United States ‘by agreeing

to. the Conventions of the Pan-American: Postal Union and.

of the Postal Union of the Americas and Spain. ;

The Universal ‘Postal Uition had author ized regional postal

unions. The ‘Pan- American Postal Union - formed in 1921]

(now the Postal Union A the Americas and Spain) embraced

the Postal Administrations of the New World. jan funda- .

mental concept of this regional postal union yas “free and®

gratuitous: transit” of “the mails. U nder the pr imple of “free

_and gratuitous transit” each country obligated itself. to -trans:

port across its territory and to convey by ships of its flag”

which it utilized’ for transportation of its own mails, all mails

_ of the ‘other members of the U nidn, this without any charge

whatsoever to the other members. Each country was to* pay

its own vessels and transportation facilities for the s@rvices

rendered to all. P,

As an incident to providing “free -and reeenom transit”

under the Convention “most favored nation” treatment’ was

to be accorded to C convention vessels. Any privileges granted

in return*for free inail carriage to anyone were to be’ granted

to ships carrying mail ‘free under the Convention.

€ommen ncing on July 1, 1937, when the Ocean Mail Con-

tracts came to an end, rates were finally established by the

Postmaster General for the carriage of Convention mails by.

ships of United States registry (Court's Finding 12). Payment *

at these rates is sued for in this. ac tion. The Orders of the

15. ;

Postmaster Genet ‘al have the Saece ” statute and make no .

exception as to thé mails of countries requiring free ¢ carriage

under local laws outlawed: or nullified x: the U niversal Postal

Union.

“Free tansit” of Convention mails was a part of our Latin

American foreign policy but the Director of the International

Mail Service which pays these bills.has resisted payment wher-

ever possible and has reiysed payticat whenever he claimed

that the originating country granted privileges to, the United

States Hag vessels. or had Jocal. laws requiring free carriage.

He completely disregarded ‘the “most favored -nation” rights

of United States flag vessels. | =

Finally die resistance of. the Director of the International

_ Postal Service became Post Office Department policy. The

Annual Report of the Postmaster General fer the Fiscal Year

Ending June 30, 1955, states:

The Department will ss to the Postal Union of

- the Americas and Spain Congress in. Bagota, Colombia,

Oc iober 1955, that the free transit.provision of the Con-

* vention be madg optional to the member Countries.

This provision now requires that each country furnish

_ services free of charge to other niémber countries, As a

consequence, the United States is required to pay its own

steamship companies for the service-they perform, for the

other member countries. And Jas the. United States has

by far the greater number of ships, this results in dis-

‘proportionate use. of our dacilities and the expenditure

of approximately $1,200, 000, annually, ‘The Department

plans to terminate. this arrangement in fiscal” 1956.

Effective in 1956 the United States at the request of. the

Post Office took a. reservation to the “free transit” provisions

of the Convention. This reservation is still in force, but may

be withdrawn wr atlany- time in furtherance of -our. present

policy, “The Alliance for Progress.”

its postal transportation facilities and maritime shipping °

$. ; 16" eas

Moore-McCédrmack Lines, Inc., a citizen of the United -

States, began operfating ships under the United States flag to

Argentina, Uruguay and Brazil in 1939, In 1942, service was ,

suspended as a résult of war. In 1946 Plaintiff resumed its.

-service to the -—East Coast of South America. When the vessels :

_. of Plaintiff which carried United States’ mails arrived in the

ports. of Argentina, Urtiguay and Brazil the respective postal

administrations delivered’ to’ them their Convention ‘mails.

& These, mails were téndered to Plaintiff’ 's vessels for carriage as

‘free .transit”’ nvention mail and not for transportation

because of any/local law requiring free carriage which might |

have been applied to vessels of non-Convention countries.

The seryices of Plaintiff from 1946 through February 29,

1956 for’ which it has not received payment amount to

$799,370.37 at the rates established by Orders of the Post- .

master General. The Plaintiff's present chain 4 is for $279, 995. 79

out of this total.

’ The defendant has Recs a “Special: tiadeiine of Other -

: Paytnenit,” alleging that the plaintiff by agreement with the

y, _ foreign countries obtained and enjoyed postal packet privileges

which entailed the duty of carrying the mail in question with-—

out pecuniary compensation. Although entitled to any privil-

eges under “most favored nation” treatment, the plaintiff did

- not use the privileges which defendant alleges it enjoyed and

plaintiff received nothing | of value by way of compensation

from any country for the services. wicios: in this case. -

- Count m

The southbound. transportation of United States mails which

Plaintiff did not receive for carriage but which Plaintiff was

entitled to receive under the ‘Merchant Marine Act of 1936,

In this sityation the Post Office Department for approxi- -

mately three years violated the Merchant Marine Att of 1936

ae ; ARES Sa ae” .

. ‘ ” 5 co , 9

0 , RTA R ety 4 ;

_ by secretly denying to the Plaintiff> preferences -established

under the Act. Plaintiff, which had made all expenditures

necessary to Carry the mails denied to it, thereby lost revenues

of approximately $300,000. ‘The mails involved were carried

as “‘free transit” mails by foreign vessels and the Post Office

Departmen: has made-no payment to anyone for this service.

The ships o! the, pltintif{, Moore-McCormack Lines, Inc.,_

insofar as this.case is involved, primarily: sail southbound —

irom the port of New York to Adantic ports of South America.

‘They supply regular and. speedy. sea transportation: of. mail

foMthe United ‘States “Post Office Department and furnish to

commerce and industry and the traveling public of the United

States the swift_and. regular mail, passenger. and cargo vessels

whith are the heart of. our Merchant Marine ‘in -peacetime

“and provide our most vital sinews‘in time of war. The plain-

tiff has thereby become entitled, by providing this service, to

the mininium privileges and ‘benefits established by the Con- .

gress for thése who thus serve the public interest.

| The Merchant Marine Act of 1936, the current law requir- |

ing. that U. S. flag vessels shall be accorded, preference in ‘the

carriage of viens States mails, provides in Section’ 405 (a)-

_-that “all mails of. “the Uniged States . . . shall insofar as

~ practicable be. carritd on vessels of United: States registry.”

Applying this mandate of the’ Congréss .expressed ine the

Merchant Marine Act and its predecessor acts, the Rost Office

Department determined that it was practicable to accord to

U. S. flag vessels a forty-eight hour preference for letter mail.

and a seven-day preference for unimportant prints and parcel

post.

This preference was accorded: uniformly antil . February,

1953, and under this preference the speed and regularity of

scrvice afforded by the Plairitiff’s vessels caused the’ Plaintiff

18 i

_. to receive all of the mail-dispatched by the United States Post '-.

’ Office Department, to the countries mentioned. Had the Post -

Office Department continued to accord this preference, the

Plaintiff would have continued to carry all-of this mail. How-

evér, in February, 1953, without notice to the Plaintiff and

without any’ pretense of’ redetermining the practicability of

this preference, the Post Office Department decided no longer

to apply this estabtished preference to the Plaintiff's vessels

or to other vessels serving the Postal Union of the Americas

and Spain countries, although no change was made in the

application of the established preference to-all other U. §.

flag vessels serving countries not members of the Postal Union

of the Americas and Spain. nite

This failure to accord preference as required by the Mer--

chant Marine. Act. continued until: March: 1, 1956, when the

Post Office Department again began to accord the established

preference to the Plaintiff's ‘vessels. .

_ During this period from February, - 1953, until _ March l,

1956, the Plaintiff's vewsels were ready, willing. and “able to

carry all of the United States mail to. these countries. “The

vessels were ready and paid for, the crews were ready and paid

for, the stevedores were hited* and paid for, the space was

ready and available to. Postal officials,.all nécessary expenses |

of evéry sort had been incurred and the single result of the

failure of the Post Office Department to deliver ‘was to deny

to the Plaintiff the revenue from the carriage of this -mail.

. . : > w

During this period, the Post’ Officé Department delivered

‘some of the mail to the Plaintiff but had it continued to ”

accord to. the Plaintiff's vessels their lawfully established. .

preference over foreign flag vessels, the Plaintiff's vessels would

have carried in addition 5,100,087 unds of mail which

‘would have produced $301,858.60. revenue. The: Post Office

| Department has made no aie 12, anyone for. the trans- °

portation of this mail. &"

REASONS: FOR GRANTING THE WRIT

. The Court of Claims hes decided important questions of

Sédoril law which are without precedent and, are so funda-

mental that they: should lg’ settled only by this Court.

1, In this case the Court of Claims has dec ided an un:

precedented question of Federal law which disregards funda-

mental concepts of national sovereignty and places’ the United

States m_ the position of using oppressive foreign laws’ to

strike down both United: States law and the nigh © of United

’ States citizens established under United States laf. .

.The effect of the decision ef the Court of Claims is to use

laws of Argentina, Uruguay and Brazil to override or engraft

exceptions on Orders of the Postmaster’ General havi ing the.

force of United States Statutes in order to escape payments °

due under those Ord€rs to'a United States citizen for services

‘performed under the mandate of anternagonal agreements.

The United States agreed in the Conventions, of the Postal

Union of the Americas and Spain to place, tHe ships of the .

plaintiff at, the disposal of To ay and Brazil for

“freé and gratuitous .transit” of thei mail The Postmaster

General established rates of payment for this’ service by plain-.

tiff’s ships. The plaintiff performed the services and sues for

paymeént at these rates. The defense of the Post Office Depart-

ment is that local laws of the. foreign countries forced the

plaintiff, a United States citizen, ‘to carry this mail free and

granted certain: priv ileges in reeurn. and that these privileges

therefore constituted "payment -and the United States will not

_ pay the rates prov ided by the Postmaster’ coemerat. 4 in. his orders.

< .

- i)

° : °

a oo

20 4 ;

The Court of Claims ‘has held in effect that the local laws

of the foreign countries can be set up by the, United States to

govern and control the acts and rights of the United States

flag vessels of the plaintiff to the Somnypete exclusion of the

United States’ *own international | “‘agréements . and. domestic .

law on the identical subject.

The plaintiff can find no. recorded case in the history of -

the United States*where the United: Statés has thus denied

U. S. citizens their rights in U. S. Courts under United’ States

law by itself asserting foreign law against its own citizens. No

authority has’ been cited by the Court or by the United States

for this monstrous proposition.

We do ‘however call to the: attention of the Court the state-

intent of Mr, Justice Holrfes in Uravic v. " Jarka Co,, 282 US.

234, 75 L. Ed.’ 312, that “It always is the law of the United

States, that governs within “the jurisdiction of the United

States, ¢ even when for some special 0 occasion this country adopts

a foreign law as its own

The plaintiff respectfully urges that not only the plaintiff |

but all United States citizens should have the clear and un-

equivocal protection of the laws of the United Statés in the

Courts of this country—a right so fundamental that it has

never before needed: expression from this Court.

The local. foreign laws telied on ‘by the United States here

are oppressive if applied since. “the: plaintiff. has been ‘forced

to perform services valued at approximately $800, 000.00 with

. payment from no one. The so-called privileges granted under’ ,

the foreign local “postal packet” laws were of no value to the

me plainuff. and these laws had long since been outlawed and

nullified by the ‘Universal Postal Union to which the United

States is‘a party because - their oppressive burden on world

shipping.

= ye ees Ca ae er

| / [ ,

‘ Se d ‘ “= J

Even the foreign governments involved did not attempt to

apply their Jaws to the plaintiff but delivered * their mail as

Convention: mail for “free transit” under the agreement of

the United States to place the plaintift’ s ship at their disposal. |

To make the matter eve worse the plaintiff was entitled to

any privileges granted to free carriers of mail as a “most

favored nation” incident t>-the “free transit’ Convention

i>)

provisions. +, “ ar

‘In our early history when the Barbary pirates levied tribute

on United States ships the United States as a sovereign power

furnished them protection. Here the United States abdicates =’

‘its own sovereignty, nullifies its own laws and agreements,

and adopts as its own the oppressive decrees of a foreign power;

which the foreign power itself does not even attempt. to

.enforce. Here only the United States itself uses the foreign its

law.to oppress its citizen and leave it without compensation.

*? The Court of Claims has omitted without explanation

‘the findings recommended by its Cominissionér that the

plaintiff, a United States citizen, was entitled to “most favored

nation’ treatment from Argentina, Uruguay, and Brazil as a

_ “free and gratuitous” carpier of mail under the Conventions

of. the Postal Union ofthe Americas and Spain. The Court |

thus avoids discussion or apparent decision of the fact that’

any so-called “packet privileges” accorded to the plaintiff's.

United States flag vessels were due to it as a matter of right

and were not received as. compensation for carriage of Con- ’

_ yention mails. ;

- The effect of the decision is thus io” establish in fact an-

other wholly unprecedented and basic proposition ‘that treat-_

-ment of United States citizens on an equal basis with citizens

of other -countries as an incident to international agreement

is in some ‘manner an excuse for the United States. to claim

that this equality of treatment is payment and can be raised

“.

2 Tk,

; 22

‘as a bar to the rights of the United States citizen to receive

payment due to hifn under United States law for -performing

services. for the United States in the country when equality

_ Is accorded. ar ae ey

The United States offered the services of the plaintiff's

vessels to payne. Uruguay and Brazil “for “free and

gratuitous transit” of their mail. The United States very

properly asked that ‘its vessels be accorded any courtesies

granted to other vessels if this free carriage were provided. -

The United States ‘also expected to pay its vessels for their

services and established rates -for the, services. .The United _

States has paid under these rates to all: United States flag

vessels performing these services with the exception of the

plaintiff and.one other. Its sole .excuse is that courtesies or”

privileges which the United States had-arranged. were available

to the: plaintiff and hence the payment concurrently provided .

for and made to others w ould not be made to the plaintiff.

In this connection \it should be ‘noted that the rates pro-

vided for the carriage of this mail by the Postmaster General —

and sued for here are lower rates than for carriage of United

States’ mail or for the carriage of these mails by foreign flag

ae privileges secured for United States flag vessels

under “most favored nation” treatment have certainly been.

discounted by these lower rates. The Post Office Department

now seeks to avoid paying even the lower rates.

Plaintiff respectfully urges. that this Court should consider

and clarify the rights of the United States to assess “against its

citizens as payment or offset -of United States obligations. the

benefits received under “most favored nation” treatment.

. 3.. In this case the Conventions. of the Universal . Postal

Union gave to the’ United States a right to collect from

Argentina, Uruguay and Brazil for the services. of. the plain-

tiff’s vessels in the carriage of their mail, this notwithstanding

any local law imposing free carriage on the plaintiff's vessels.

"When the United States agreed to provide the services of

the: plaintiff's vessels for “free and gratuitous transit’ of the

mails of these countries it voluntarily relinquished this right

10 collect and at the same time assumed the obligation to

/ make the payment itself. ,

In this situation ‘plaintiff submits thet the United States

is estopped to deny payment.on the theory that the local laws

of: the foreign countries which could not have been. raised

against the United ‘States may now be raised by the. United

States itself nenrnet the plaintiff. :

This question of Federal law is likewise without prec edent

‘ahd should be decided by this Court.

4: To. establish. its defense of “other payment” the Court

of Claims permitted the’ United States to assert foreign laws

which, if. _applied .to the: plaintiff, would have been confis-

_ catory.

Each foreign decree asserted by the United States was

confiscatory in that it provided nothing of value to compen-

“sate for the substantial service den anded. Preferential berth-

‘ing was not needed, not. requested, and not received in Argen;

tina or Uruguay. The decree of Brazil on which the United

States relied clearly was confiscatory as it p ovided no benefits

but merely required certain vessels to carry) the mails free. As

a result of an entirely different decree, plaintiff's. vessels, as

{

did those of all nations of the same class, \operated under a

" redticed schedule of port charges. The Court of ‘Claims has

accepted this as a quid pro quo. Even if the Court of Claims

were correct.in this assumption, the readily ascertainable say-

ings in port charges amounted to only a few thousand dollars

-which is not used pro tanto, but which. has been used to bar

collection of hundreds of thousands of dollars of services. The -

plaintiff would have been paid without question under the

Orders of the Postmaster General but for the assertion of

foreign law as prov iding payment.

The Commissioner found that the plaintiff had received no

compensation for its services from-anyone. (Appenaing B, p- 19,

‘Finding 21.)

To allow the theoretical benefits of a foreign law, neither

used nor having monetary value to offset. and bar. payment

is clearly a taking of the property of ‘the plaintiff without just

compensation. If anything-of value were proved by the United

States to have been received. by the plaintiff, and if it were

chargeable: to the plainuff, it could at the most be chargeable

pro tanto. To do more is a clear denial of just compensation

and is without precedent or authority. Plaintiff submits that.’

this Federal question should be settled by. this Court.

. The: Merchant Marine Act of 1936, Sec. 405 (a) (46

Ri: SC. A. 1145), requires. that “all mails of the United States

shall, insofar -as practicable, be carried on. vessels of United —

States registry.” Under tlre preferences established by the

Postmaster General as practicable the plaintiff was entitled to

carry all United Stgtes mails dispatched panerenieare! to -

" ports served, by the plaintiff.

For a period of three years the Post Office Department

secretly withdrew this preference and loaded approximately —

* $300,000 worth of mail which plaintiff was entitled to receive

on foreign vessels to whom it made no payment.

The United States has-neither plead nor proved any excuse

for this:secret and unlawful denial of preference.

The facts have been established but the Court’ of Claims

has held that no remedy is available to the plaintiff for its

oroved money loss of $301,858.60 in net revenue above all

Osts. ;

~The Gourt of Claims has held that Section 405 (a) of the

Merchant Marine Act of 1936 is in the nature .of a congres-

ional deciaration-of policy to guide the Post, Office Depart-

nent and grants no rights to any particular organization

operating ships of United States registry (Appendix: A, p- ni

The question has never been before this or any other Court

xcept the Court of Claims «in Grace Line, inc. y. United

states, No. 218: 58. decided November 1, 1964, by that Court. —

Plaintiff knows of no procedure by which its rights under

he preference statute can be protected against this secret, and.

inlawful denial of .preference except by means of this suit.

The plaintiff asks for the preference which the Postmaster

General in his lawful discretion established for all United

States flag vessels and under which the plaintiff has shown

individual performance and entitlement. Had the Post Office

Department notified the plaintiff of its intended denial. of

oreference, the plaintiff might have obtained redress by. one

of the extraordinary, legal remedies or by resort to equity,

but in the circumstances of this case, plaintiff is left wholly

without remedy if it may not recover under its Count III

n this cause. |

An important question of Federal law as to the rights of the

United ‘States Merchant Marine to obtain relief is involved

which has not been but should be settled’ by this Court.

The Court of Claims has decided a federal question in-a

way in conflict with the applicable decisions of this Court.

1. The foreign local laws: invoked by. the United’ ‘States

against the plaintiff in this case were not applied by those

countries against the plaintiff. In each of those countries thé —

Conventions of the U niversal Postal Union and of the Postal

Union of the Americas and Spain had the status of treaties

and were superior to local law. - 4

Each country has stated unequivocally that the mails in

question were delivered ‘to. the. plaintiff's. s¢ssels..under_ the

provisions “of the Conventions as Convention .mail. These

applications and interpretations of. local law in. Argentina,

Uruguay :nd Brazil were made by high government officials,

in two instances of the rank uf Attorney-General. _

The Court of Claims. has. not only applied the foreign: local _

laws to the plaintiff but has completely disregarded the appli-

cation and interpretation of these laws in the countries of

their origin as well as the fact that the effect of these laws:

had been nullified by international agreements.

‘The Court of Claims has wholly departed from established

principles of law in applying foreign local law where the

government in question did not do so and in. disregarding

official foreign interpretations. This is cofitrary to this Court's

- decision i in U. S. v. Pink, 315 U.S. 203, 86 L. Ed. 799, where

it. was held that an official declaration by the appropriate

Russian officials was conclusive as to the intended extra

territorial effect of a Russian’ "decree> AR

| ill pee

The Court of Claims has so far departed from the accepted

course of judicial. proceedings as to call for the exercise ¢.

* Court's power of supervision.

1. The plaintiff's petition in this prayed for payment at

a rates established by the Postmaster General for the services

performed by the —

.a7

The answer of the United States asserted a “special defense

of other payment” alleging that the petitioner has by agree:

ment with the foreign countries involved, obtained and enjoys

special privileges » « . Which entail the duty under the law

of the cquntry which grants the privilege of carrying the mail

= that. country oe - ial suo capes:

eat ne

scr OY ala i ae Clean,

* The plaintiff established without question the amount of

mail carried and the payment due at the Postmaster General's

rates which cover all Convention mail and make: no exception

for Argentina, Uruguay or Brazil.

The United States failed, to show that the plaintiff had

received, anything of value or the .extent of that value, if

received. The plainult’ even established’ by uncontroverted

evidence that it received nothing of value in any of the three

countries and that any privileges were granted under ‘most

favored nation” treatment. |

The Court of Claims in its opinion has completely shifted

the burden. of proof of the government » ‘special defense of

other payment from the United States to the plaintiff by

stating (Appendix A, p. 5) “Since the burden is on plaintiff

to’ show there was an implied contract under which the —

United States agreed to pay it for the carriage of these mails, -

it must show that it has not been compensated for the carriage

of them by the acceptance of packet privileges, the granting”

of which enmguee plainutt to Canty them without. further’

compensation.”

The balance of the Court's opinion below is based on the

asserted failure of the plaintiff to establish the non-existence

of the. special defense alleged by the United States. The-

United States -was never required to prove its defense — and,

indeed, it could not.

Petitioner respectfully urges that the Court of Claims has

made a gross and unwarranted departure from accepted rules

of legal procedure by thus shifting the burden of proof of .an

affirmative defense from the defendant to the plaintiff and

: thereby wholly departing from the issues framed by the plead-

ings and. that this Court should exercise its power of super-

» Vision to require customary rules and techniques of procedure

and of decision.

2. Throughout the trial of this cause the plaintiff objected

to any showing of foreign local law since the Postal Conven-

. tions entered into. by the United States pursuant to statutory

authority and the Orders of ‘the Postmaster’ General issued

| pursuant to statutory authority and having the force of law

made no exception based on the existence or non-existence

of foreign | local Jaw.

Plaintiff has -contendéd throughout this cause and now

urges that proof of foreign law is incompetent to be received

‘in a Court of the United States to engraft exceptions on

United States laws or to bar the rights of United States citizens

under those laws. 3 . .—

The plaintiff. can find no case in the history of the United

States ‘where such evidence has been held to: be competent or

-admissible and plaintiff suggests that this is a departure from

established legal procedure TNS the intervention of this

Court. |

3. With reference: to the laws of Brazil, evinicl ‘were con-

sidered by the Court of Claims aver the objection of the

_ plaintiff, that Court applied, in effect, a stare decisis rule by

stating that its opinion in Moore-MéCormack Lines, Inc, v.

U.S., 119 Ct. Cl. 484, was controlling. The law now’in question 3

‘ was- not in force at the time of the pvior. decision (which

involved only a narrow stipulgsed issue) although ‘it was sub-

tantially a re-write of the former law. Two major circum-

tances liad intervened as.to Brazil. First, a new Brazilian |

enstitution had been adopted containing a just compensation

TOV ision’ similar to our Fifth Amendment. Fxpert: testimony

‘stablished that the former law, if interpreted as the Court

f Claims interprets it, would now be unconstitutional.

second, the benetits thought by tlie Court below to attach to’

ree mail carriage were discovered and proved to ‘be available

mily to Brazilian national vessels and not to, the plaintiff.

Plaintiff believes that it is impreper to.apply stare decisis

aw has been mater ially changed and when the eatliet decision

s shown to be based on a mistake of fact. /-

CONCLUSION

This case presents ssi questions of grave importance

io the. constantly increasing number of citizens of the United

States who: engage -in our expanding intercourse with other

nations. There are few guideposts in our.laws or decisions as

10 the treatment and application. of foreign laws and as to the

impact of such Jaws on the rights of United ‘States citizens.

This case is unique in that here the United States seeks to

rely on foreign law but the principle is equally important to

citizens. who may also seek to rely on such laws in United

States Courts.

Likewise, citizens are entitled to know whether and to what.

extent imperative congressional mandates are binding only on

citizens and may’ be ignored by government officials without

citizen redress.’ -

\ .

a0 . - . .

\ | sy 80

: ’

. Petitioner prays “that aw rit of certiorari should issue in this

case. to.the Cotrt of Claims. © |

a oe Respctlly shinai

hk A. DICKINSON |

612, New England Building

Topeka,” Kansas

- attorney for Petitioner

°. PAUL C. AIKEN. . ,

~ 1066 National Press Building oe

Washington, D.C.

\ Of Counsel

: Jn the. Wnited States. Gourt of Glaims

x | | 7 No. 512-54 2 . |

~ (Decided April 4, 12)

MOORE-McCORMACK LENES, 1°O. ¥

THE UNITED STATES

aes

J. A. Dickinson for, plaintiff. Paul ¢. Aden was on the

briefs. 7

Thomas F. McGovern, with whom was -Lssistant Attorney |

General Wiliam, i. Orrick, Jr., for the defendant.

OPTNION

‘Wriraker, Judge, delivered the opinion of the court: ;

This is.a suit to recover compensation for. the carriage of

mails from ports on the east coast of South America fo ports

on the Atlantic coast _of the United States. Plaintiff, a

steamship company, whose vessels fly the flag of the United .

States, is the same corporation as was the plaintiff in Mfoore-

McCormack Lines, Ine. v. United States, 119 Ct. Cl. 473, cert.

denied, 342 US. 876. In that suit plaintiff sought to recover -

compensation for the carriage of outbound mails from ports -

of Argentina, Brazil, and Uruguay for years prior to 1942,

at which time plaintiff's service was interrupted because of

.-- World War IT. . -

In the earlier suit the entire claim as to the. northbound

mails from Argentina and part of the claim as to north-

bound mails from Uruguay were abandoned_by plaintiff,

pursuant to a stipulation between the parties, under which it:

was agreed that, since. Argentina, and, until 1940, Uruguay,

required plaintiff to carry their mails without further charge,

in consideration of the granting by those.countries of certain

packet: privileges to plaintiff, no payment was due from the *

* 631830—62———1

United States for the carriage of Argentine mails ard, for

‘the period prior to 1940, of Uruguayan mails. , In 1940

Uruguay had suspended its packet privilege law, thereby

relieving the plaintiff from the obligation of carrying its

mails without charge and, hence, for the period subsequent —

to 1940 the United States conceded: liability, under the

Postal Union Convention, to pay the charges. ai

' The parties also agreed that, if a Brazilian decree of June

3, 1941, required plaintiff to carry Brazilian mails gratui-

tously, then the United States. was not.-liable to compensate

plaintiff therefor. ‘We construed the Brazilian devree as.

requiring the gratuitous carriage of the mails; hence, we

held, pursuant to the stipulation, the United States was not

> liable for the carriage of these mails during the period this

“décree was in effect. _ .

‘. In Count I ef its petition in this action plaintiff seeks to

recover from the United States compensati ion for the carriage

ef outbound mails from ports of Argentina, Brazil and

Uruguay for years subsequent to World War IT, beginning

in 1946 when plaintiff's service was resumed, and ending on

March 1, 1956, when the United States w ithdrew from the

Postal Union. |

‘In Count IT plaintiff s sues to recover expenses inet m

the cartage of incoming South Américan mails from its piers

to post offices in the United States.’

; Count IIT is a claim for money plaintiff says it would have |

_ received for the carriage of mails had not.the Post Office

Department improperly diverted such mails to foreign ves-

sels, Plaintiff says this was in violatiori of section 405 (x)

of the Merchant Marine Act of 1936, 49 Stat. 2985, which

gave its vessels preference over those of foreign regist ry.

cou NT r:

Except for the years 1942 through 1946, eat wee

plaintiff's vessels were operated by the United States, pur-

suant to requisition fot use during World: War IT, plaintiff Ke

_ has been contirinously engaged for many years in the carriage

of mails between the ports of Rio de Janeiro, Brazil; Buenos

Aires, Argentina; and Montevideo, Uruguay, and various

ports on the Atlantic coast of the United States, particula rly °

New York, on-v eesels yt ing the Rise of the United States.

”

In accordance with 5 U.S.C, § 372, the Postmaster General

of the United ‘States negotiated and concluded with the

governments of certain Centrak and South American coun-

tries, including that. of Argentina, Brazil and Uruguay,

several postal conventions, which, beginning with the Second

Congress of the Pay{ American Postal Union held in Mexico

“in 1926, became known as the Postal Union ofthe Americas

_ and Spain. -

The-Convention of the Postal Union of the: Americas and

Spain of December 22, 1936, ratified by the Postmaster Gen- .

‘

eral on August 12, 1937, and approved by the President on

August 20, 1937 (50 Stat 1657), provided in part:

ARTICLE, 3

Free and gratuitous transit

1. The gratuity of territorial, fluvial and yiaritime

transit. is absolute in the'territory of the Postal Union

of the Americas and Spain; consequently, the count ries

which form it obligate themselves to transport across

tlieir territories and. to convey by the ships of their

registry or flag which they utilize for the transporta-

tion of their own correspondence, without any charge

whatsoever to the contracting countries, all that which

the latter may: send to any dest inat ion. aoe

2. In cases of reforwarding, the contracting coun-

tries are bound to reforward the correspondence by the

ways and means which they «utilize for their own

dispatches. : ees,

* _ * ° * .

This provision was incorporated without change in the

- Postal Convention of September 25, 1H6,. ratified by the:

Postmaster General on February 20, 1947, and approved by

the President on February 27, 147 (61 Stat. 3505).

The Postal Convention of November 9, 1950, ratified by

the Postmaster General on June 7, 1951, and approved by the

President on June 22, 1951, provided in part >

- arricLr 3

Free and gratuitous transit

. Le The gratuity of territorial, fluvial.and maritime

trapsit is absolute’in the territory of the Postal Union

of the Americas and Spain; consequently the ‘countries

which form it obligate themselves to transport across

their territories and to convey. by ships of their pegist ry

or flag, without any charge to the contracting countries,

all the correspondenve which the latter may.send to any

destination whatsoever. However,| this” gratuit y of

transit will net be applied to the subsequent maritime

pehmornar, rx of correspondence destined for a third

country Which is not a member of the Postal Union-of

the Americas and Spain in cases where a reshipment or

transfer may be necessary, or justified expenses of han-

dling may arise, ” .

2. Likewise, when services of foreign Administra-

tions are required for the subsequent conveyance of the .

closed mails, collection can be. made from t 1e Adminis- .

trations of origin of the same. amounts which the inter-

medizry Administrations may’ be~-compelled to pry:

therefor. :

3. In cases of onward dispatch, the contracting coun-

tries bind themselves to forward the correspondence by

the most rapid ways and means which they .utilize for

their own mails. |

ie. ot ee Ui - s e aan

The obligation of the United States to compensate plaintiff

for the carriagé of the mails in question, if any, arises under

these postal conventions. | -

Plaintiff says that the United States, acting through the

Postmaster General, by entering-into the Yarilous postal con-

‘ventions providing for “free and gratuitous transit” of con-

vention mails on vessels of its flag and by the issuance of

orders providing for payment for the carriage of such mails

by vessels-of ‘its flag, impliedly agreed to compensate plain-.

tiff for the carriage of the mails in issue. ~ es

* On the other hand, since and before the decision in the

first Moore-McCormack case, it has been defendant’s position

that where the local law of a country signatory to the con-. .

for the granting of packet privileges for the company’s. ves-

sels, the United States.is relieved of its obligation to pay for

the carriage of such mails. For the years involved in this

action,. defendant contends ‘that under the local laws of

-Argentina, Brazil and Uruguay, plaintiff was required to

carry-their mails gratuitously. in exchange for packet privi-

leges or other preferred treatment for its Vessels. eae

In the earlier suit plaintiff abandoned its entire claim-for

.the carriage of Argentine mails and that part of its claim

_ ventions imposes upon a,steamship company the obligation of =

| carrying its mails without further compensation, in exchange

* ° Mie

for the carriage of Uruguayan mails during thé period that

country’s local pacKet laws were in force. We were, conse-

quently, not called upon to decide how the local laws of those:

two countries affected the obligation of the United States.

For. this reason the prior action is not res adjudicata as.to

plaintiff's claim for the carriage of Argentine mails and

Uruguayan mails., . See es

The only question before us in the former suit was whether

or not a Brazilian decree of June 3, 1941, required plaintiff

to carry Brazilian mails gratuitously in return for certain

privileges.. We held that the decree did require plaintiff to ©

carry the-mails of that country without ‘compensat ion in

exchange for preferred berthing rights and exempt ion from |

. lighthouse dues and local taxes. Plaintiff now says that as .

— the result of the adoption of a new constitution by Brazil in

1946, that country could no longer constitutionally require:

_ plaintiff to carry its mails gratuitously. If so, then the

former decision is not res adjudicata as to plaintiff's claim.

for the carriage of Brazilian mails in this action.

Since there was no express contract between plaintiff and

the United States, in order to recover, plaintiff must-show

~ that there was an an agreement implied-in-fact on the part of

- ‘the United States to pay for the carriage of the mails in-

volved. Grace Line, Inc., v: United States, No. 218-58, de-

_ cided November 1, 1961. No contract ¢an be implied for ~

paytient. by the United States if plainti has already been

paid forithe carriage of the mails by the countries which

demanded plaintiff’s services. Plaintiff cannot collect twice

for the rendition of the same services. ae

‘The crucial inquiry then is: Did plaintiff receive packet

privileges or-other preferred treatment for its vessels in

return for which it assumed the obligation of gratuitously .

carrying the mails of Argentina, Brazil and: Uruguay? —

_ Since the burden is on plaintiff to show there was an

‘ implied contract under which the United States agreed to

pay it for the carriage of these mails, it must’ show’ that

it has.not been compensated for the carriage of them by the

_ aéceptance of packet privileges, the granting. of which obli-

gated plaintiff to carry them without further comipensation.

This requires plaintiff to show what the law of these three”

countries is: with: respect to ‘packet privileges, or to show

6 ey

that- it did not receive packet priv ileges or other remunera- -

tion from the countries demanding-that jt carry their mails.

Foreign law must be proved as any other fact. Cuba RR.

Co. v. Crosby, 222 U.S. 473.

‘That this burden is on plaintiff is particularly true in n this

case, in view of our prior decision in Joore- McCormack

Lines Inc., v. United States, supra, wherein it was stipulated

. the receipt. of packet privileges pr ecluded recov ery under-the

laws of Argentina and U Truguay, and. wherein we held*this

likewise precluded recovery under the: laws of Brazil.

Plaintiff was thus on notice ‘that the-United States would

refuse to pay for the carriage of these mailf, if this situation

-eontinued.

We shall consider first plaintiff s claim for the carriage of:

Argentine mail.

Plaintiff did nothing to carry its burden of proving that _

Argentina did not require it to carry the mail of that country

“ gratuitously in exchange for packet privileges. On the con-

trary, there is in evidence, as defendant's exhibit 11, a pam-

phlet in Spanish entitled “Digesto Maritimo Y Flavial”’

relating to packet privileges. According to the wittiess,

Mr. Bosch. counsel for the Consulate General of Argentina in:

. New York, by whom it was identified, it was issued by the

Maritime National Prefecture, an agency of the executive -

department. of the Argentine ‘Government. The w itness

testified that this p: imphlet was an official publication of the

Argentine Government. In support of this statement he said

the document carried on the cover and’ flyleaf the heading,

“Republic of Argentina, Maritime National Prefecture,” and °

it bore the seal of the Republic of Argentina. The-document |

was also préfaced by decree No, 125.571 issued by. the Presi-

dent of Argentina on February 16, 1938, which fact further

supports the statement of the witness. —

Plaintiff does not show that this was not a valid and bind- |

ing regulation of the Government of Argentina. _

Article 421 of the “Digesto Maritimo Y Fluvial”, as trans-

-lated into English by Mr. Bosch, reads in part.as follows:

All foreign ships with postal packet privilege shall

be subject to the following obligations: (A) to carry

gratuitously the mail and postal matter delivered to .

1 ?No tinneliatiién of this ‘de cree is in evidence, | — an

them by the general post: office ‘and telegraph for their

ports in their itinerary or for the asin which they shall

come to in traisit, .

Plaintiff's contention ‘tliat there was no pac ket privilege

law in Argentina is plainly untenable. This was recognized —

in the letter of Albert F. Crystal, plaintiff's vice president

to the Assistant Postmaster General, dated January 27, 1956, -

requesting that plaintiff be designated a “third service”, the ..

meaning and effect of which is not pertinent here. In his

letter Crystal stated, “In Argentina no payment for postal

‘transportation can be expected because of. a local postal

packet: privilege law.” Plaintiff thus acknowledged the

existence of such a law. In: fact, during 1948, - plaintiff

actually applied for and was granted postal packet privileges

for its steamships, “Argentina”, “Brazil”, and “Uruguay”.

Not: only has plaintiff failed to -prove it did not receive

. packet. privileges from Argentina in-return for the gratuitous.

carriage of its mails, but the defendant’s evidence is unchal-

~ lenged, and, being unchallenged, it affirmatively establishes

the fact that plaintiff was obligated to carry the mails of that

country gratuitously; in exchange for the granting of packet

privileges for its vessels.

We cannot agree with the Trial Commissioner that “there

is no satisfactory evidence in the record that Argentina, under

its laws, required ships flying the flags of countries signatory

to the Postal Convention of the-Americas and Spain to carry

mail without compensation in aa for the Neate by |

Argentina of packet privileges.”

We turn now to plaintiff's claim for the carriage of

Uruguayan mails.

As in the case of Argentine mails, plaintiff has done nothing

to show ‘it did not receive packet privileges from Uruguay

and that. receipt of them did net obligate it to carry Uru

guay’s mails without further compensation.

However, there are in evidence two decrees issued by: the -

President of the Republic of Uruguay, one issued on Novem-

ber 7, 1946, andthe other issued on January 3, 1952. The |

witness Bosch testified that both are valid and existing laws

in Uruguay, binding upon aliens doing business in Uruguay.

Although no translation of the 1946 decree from Spanish

is in evidence, the translation of the 19% 52 decree into English

is in evidence. In Article 1° of the latter decree the’ Presi-:

dent of Uruguay decreed:

. ‘That the Regulations for the Concession of Patents of

Packet Privileges be approved as worded in administra-

_ tive documents Series * * * in substitution of the actual

_ Regilations for Packet Privileges approved’ by

Decree N° 8011 of 7th November, 1946.

Article 11 provides:

, All national or Foreign vessels holding Packet Privileges

of Category “A”, or whose Petition for same is under

consideration, or as the case may be, their Agents’, are

subject to the following obligations:

a) To carry free of charge all Mails and Parcel Post

packages delivered to them by the General Postal Au-

thorities for the ports of their itinerary or ports of call -

in transit.—It is.understood that this obligation applies

exclusively to Mails and Parcel Post from or for ports

of the Republic * * *,.

It is unnecessary for us to consider the different categories

of packet privileges under this decree, since Article 12 makes

. Article 11, clause a) applicable to vessels holding Category

B packet privileges, and Article 13 requires vessels holding

Category C packet privileges to carry the mails free of charge

as in the case of vessels holding Category B packet privileges.

In the letter of Janyary 27, 1956, from plaintiff’s vice presi-

_ dent to the Assistant Postmaster General, which we referred —

to in regard to the claim for the carriage of Argentine mails,

it is stated: “Our representatives in Uruguay have advised

that the local postal administration under local laws will —

not pay us for any postal transportation.” Plaintiff thus

' - Fecognized that it would not be‘compensated for the carriage

-of the Uruguayan mails in issue, except by the grant of

packet privileges. During the period involved in this suit,

plaintiff applied for and was granted packet privileges for

1% of its vessels, ;

We think the evidence establishes the fact that plaintiff

was obligated to transport the Uruguayan mails “free of

charge” in return for the packet privileges it applied’ for and

received. Hence, plaintiff is not entitled to recover for the

. carriage of the Uruguayan mails. _ |

“A

AS a | “+, AS 9

, As to the Brazilian mails, plaintiff says that any law re-

quiring it to carry these mails gratuitously was in violation:

of a new constitution adopted by Brazil in 1946. It also says

that in the earlier Moore-McCormack case, supra, the court:

construed an executive decreé issued in 1941, while in this case

a 1951 executive.decree is involved. ; ea

With reference to plaintiff’s contention that the provision

. for gratuitous carriage of its mails is unconstitutional, in the

" first place, we would be loathe to say that any decree or legis-

lative enactment of a foreign country contravened the con-

stitution of that country. Certainly we would not ‘say so

where the law liad not been declared to be unconstitutional by

authorities in that country with power todeso. |

But, apart from this, it seems plain that the Executive De- |:

cree, which obligates plaintiff to carry Brazilian mails with-

out further compensation beyond the receipt of packet

privileges, does not violate that provision of the Brazilian

Constitution upon which plaintiff relies. It is a provision

similar to the provision of the Constitution of the United

_ States, which prohibits the taking of private property with-

out compensation. The decree does provide for compensa-

tion for the service demanded, as we said in our opinion in

the former case. We there said:

The obligation cast. upon carriers such as plaintiff

by this decree was not without consideration. It wasan .

obligation imposed in return for the grant of certain ~

packet privileges. Among those privileges were exemp-

tion from lighthouse dues; charity taxes imposed on each ¢

sailor and officer, and the grant of preferred eric |

rights. By the acceptance of those privileges plainti

obligated. itself to carry Brazilian mails — gratui-

tously * * *. [119 Ct. Cl. 484.]

The.1951 decree was essentially a rewrite of the 1941 decree;

the 1951 decree did not change the Jaw as contained in the

1941 decree. Consequently, insofar as the claim for the

carriage of Brazilian mails is concerned, our prior holding

as to the effect of Brazilian law is controlling in this action.

There is no evidence in the record of whether plaintiff

actually applied for.or received packet privileges or other

preferred treatment for its’vessels from the Brazilian Gov-

63183062 — 2 ;

: ° ? e “ay 10

CYS,

ernment during the period for which payment is-sought for.

the carriage of the mails, But, as in the case of plaintiff's

claims for thé carriage of Argentine and Uruguayan mails, .

plaintiff has the burden of proving that there was an implied *

promise by the United States to compensate it for the car-

riage of the mails of Brazil. In order to establish this,

it was necessary. for plaintiff to prove that it has not

received compensation for the carriage of such mails. Not

having proved this, plaintiff has not shown that any payment

_ for the carriage of the Brazilian mails is due from the United

States. It follows that plaintiff cannot recover for the car-

riage of these mails.

‘ ce COUNT. 1

This-is a claim for the expenses incurred by plaintiff. in

transporting incoming South American mails from its piers

_ to post offices in the United-States.

Since we have found under Count I that plaintiff has al-

ready been compensated for the carriage of these mails, it .

is clear that plaintiff cannot recover for the trucking of the

‘mails from its piers to the post offices.

_ The carriage of the mails for-which plaintiff has been °

compensated begins with the delivery of the mails to plain-

_ tiff’s vessels by the postal authorities of the country concerned.

and ends with the delivery of those mails to the United States

postal anthorities. It is inconceivable to us that the South

American postal authorities, when they tendered their mails

to plaintiff, could have contemplated that their mails would ;

be brought to plaintiff's piers and left there. They had to

be delivered to the Post Office. Cf. United Fruit Co. vy. .

United States, Nos, 460-56, 568-57, decided April 7, 1961

cert. denied March 19, 1962.

COUNT III

_. In Count TIT plaintiff seeks to recover compensation it

Says it would have otherwise been entitled to had it been

granted the preference reqiired by section 405(a) of the

Merchant Marine ‘Act of 1936, supra, which provides that:

, insofar as practicable’? all mails of the United States shall

be carried on vessels of United States registry. ate

In Grace Line, Inc. v. United Stntes, supra, we held that

section.405(a) does not grant a right to any particular organi-

GY te

zation operating \ vessels of United States registry to force

the United States to grant it a 100 percent preference in the

~ carriage of United States mails, but that the section appears ’

to be more in the nature of a congressional declaration, of

poliey to guide the Post Office Department in the discharge of

its duties. That decision is controlling here and we hold

that plaintiff has shoWn no basis for revovery under ( ‘ount

IIl. , eee

Plaintiff's petition will, therefore, be dismissed. _

It is so ordered. ees le

Reep, Jastice (Ret). sitting by designation : “DURFER,

drudge: Laraore, dudaey: ind danes,. Chief Judge ~ concur.

_ FINDINGS OF FACT

The court, having considered the evidenc e, the report of

Trial Commissioner William E. Day, and the briefs and

argument of: counsel, makes findings of fact.as follows: *

1. At all times material -herein plaintiff was, and is, a cor-~.

poration organized and existing under the laws of the.

State of Delaware. Plaintiff is the same corporation as

‘was plaintif® in) Moore-Met ‘ormack Lines, lune. ve United

Ntates, No, 46280, 119 Ct. CL 473, cert. dented 342 Us, S76.

2. At all times material herein plaiitiff, beginning in 1946,.

was engaged in the transportation, by ships registered under

the flag of the United States, of passengers, ‘cargo and mail

on a trade route between various United States: Atlantic |

ports, particularly New York, and ports on the east coast of

South America, more particularly Montevideo, Buenos Aires,

“Santos, Rio de Janeiro, Bahia, and Belem among others. | *

3. Beginning in the year" 146 and continuing through’

Department and carried United: States mails southbound to

the ports of Rio de Janeiro, Brazil; Buenos Aires, Argentina ;

and Montevideo, Uruguay: from the port-of New York on

vessels doctimented under the laws and carrying the flag of

the United States, and was paid for the carriage, all pur-

suant to the postal laws and fegulations. — a>

4. Plaintiff commenced the servige described in the fore-

going findings 2 and 3 in. the year 1939 and continued it

through part of 1942 until its vessels were requisitioned by

the United States during World War II. Plaintiff's vessels

‘

12.

resumed the suspended service in the year 1946 and has con-

tinued it tothe present time. |

5. In accordance with 5 U.S.C. § 372, the Postmaster Gen-

eral of the United States negotiated and concluded with the

governments of Panama, Colombia, Venezuela, Ecuador, .

Bolivia, Peru, Chile, Brazil, Uruguay, Argentina, Paraguay

and other governments, postal conventions known as the

Pan American Postal Union, First Congress, Buenos Aires,

1921, and Second Congress, Mexico, 1926, and Postal Union

of the Americas and Spain, Third Congress, Madrid, 1931, -

Fourth Congress, Panama, 1936, Fifth Congress, Rio de

Janeiro, 1946, and Sixth Congress, Madrid, 1950. The ports

Janei — h Congress, Madrid The po

_ of Brazil, Urugday and Argentina ‘are served by plaintiff;

| Paraguay, which has river’ ports only, is served by the

plaintiff through the port of Buenos Aires, Argentina...

6, Article 3 of the Convention of the Postal Union Of the

. Americas. and Spain, signed at Madrid on November 10,

1931, and approved by the President on February 9, 1932, . -

(47 Stat. 1925), provided in part as follows:

ARTICLE 3 es

; ' Free and gratuitous transit

1. The gratuity of territorial, fluvial and maritime

transit is absolute in the territory of the Postal Union

of the Americas and Spain; consequently, the countries’

which form it obligate themselves to transport. across

their territories and to convey by the shins of their regis-

try or flag which they utilize for the transportation’ of

their own correspondence, without any charge whatso-

ever to the contracting countries, all that which the latter |

2. In eases of reforwarding, the contracting countries

are bound to reforward the correspondence by the ways

and means which they utilize for their own dispatches.

ie 2% * *x Sa eh *

7. Article 3 of the Convention of the Postal Union of the

Americas ‘and Spain, signed at Panama on December 22,

__1986, ratified by the Postmaster General on August 12, 1937,

and approved by the President on August 20, 1937 (50 Stat.

_ 1657), was identical to Article 3 of the 1932 Convention as -—

quoted ‘n finding 6.

8. Resolutions of The Fourth Americo-Spanish Postal

Congress, 50 Stat. 1691, provided in part as follows :*

=. * ry e | *

IV . |

That they try to obtain from steamship companies of

countries foreign to the Postal Union of the Americas

and Spain which transport their correspondence a reduc-

tion in the-present rates, and their agreement in no case

to collect a sum per weight-unit greater than that which

‘they collect from the country oe origin, except in cases

where, due to packet or other privileges, said companies

are obligated to perforni gratuitous transportation.

* i : e;, —* 4 *

9. Article 3-of the-Convention of the Postal Union of the

Americas and Spain, signed at Rio de Janeiro, September

YD, 1946, ratified. by the Postmaster General, February 20,

1947,-and approved by the President, February 27, 1947 (61

Stat. 3505), was identical to Article’ of the 1932 Conven-

tion, as quoted in finding’6.

10. Article 3 of the Convention of, the Postal Union of

the Americas and Spain, signed at Madrid on November 9,

1950, ratified and approved by the Postmaster General on

. June 7, 1951, and approved by the President ‘on June 22,

1951, provided in part*as follows: -

ARTIGLE 3

Free and. gratuitous transit iweage:

* ‘ .

1. The gratuity of territoriai, fluvial and maritime

-transit is absolute in the territory of the Postal Union

of the Americas and Spain; consequently the countries

which form it obligate themselves to transport across

their territories and to convey by ships of their registry

2 ‘or flag, without any charge to the contracting countries,

all the correspondence which the latter-may send to any:

destination whatsoever However, ‘this gratuity of

transit will not be applied to ‘the subsequent maritime

transmissions of correspondence destined for a third

_ country which is not a member of the Postal Union of

the Americas-and Spain in cases where a reshipment or

transfer may be necessary, or justified expenses of han-

dling may arise.

/ 14 .

ame . | ; ;

‘2. Likewise, when services of foreign Administ rat ions |

_ are required for the subsequent conveyance of the closed

~ mails, collection ¢an be made from the Administrations

of origin of the same amounts Which the intermediary

Administrations may be. compelled to pay therefor. .

3. In cases of onward dispatch, the contracting coun- .

‘tries bind themselves to forward the. correspondence by.

* the most. rapid ways and means which they utilize for

- their own mails. . ae :

* * | * A e:*.

— 11. Appendix II to the brief of the United States filed

in this court on June 30, 1942, in United Fruit Company v.

United States, No. 44282, 103 Ct. Cl. 303, relates to interpre-_

tations of Article 3 of the Madrid Convention and.reads in . -

part, as follows:

: APPENDIX II

- Interpretations of. Article 3 of the Conventions by The.

United States .

Under Authority of U.S.C., ‘Title 5, Section 372, which.

reads: ."

For the purpose of making better postal arrangements

with foreign countries, or to counteract their adverse

_ measures affecting our postal intercourse with.them, the

_ Postmaster General, by and with the advice and consent

of the President, may negotiate and conclude postal

treaties or conventions, and may reduce or increase the

rates of postage or other charges on mail matter con- .

veyed det ween tlie United States and foreign countries:

Provided, That the decisions of the Postmaster General

construing or interpreting the provisions of any treaty

or convention which has been or may. be negotiated and

concluded ‘shall, if approved by the President, be final -

and conclusive upon all officers of the United States.

There have been Ewp official interpretations of Article’3

‘of the Convention.! No. 1 interpretation of Article 3

(approved by the President May 19, 1936) .reads as_

dalbves: hia ne ee

is interpreted and construed to mean that gratuity of

maritime transit does not depend on whether territorial

transit is or is not also furnished for the same rftails;

- on the other had, gratuity of territorial (or fluvial)

transit does not depend on whether maritime transit is

or is not also furnished for the same mails. ae

~_ The context of Section 1 above quoted clearly indicates

that “and” (underlined) is used disjunctively for “or”

a 13,

and nob, conjunctively. In other words “and”. (under-

lined) is\not used to connect “the countries * * * obli-

gate themse] ves to transport across their territeries” and

“to. convey by the ships of their registry or, flag which

they utilize for thestransportation of their own: corre-

- spondence, without any change * * * so as to provide

that gratuity of maritime transit is contingent on the

mails involved being alsa transported over the territory

of the country Whose flag is flown by the ships performe

ing the maritime transit and that°in connection, with

_ such territorial transit, gratuity of territorial transit. in

addition to gratuity of Niaritime transit must be granted

by the same Postal Administration to the same mails, or

-else no gratuity of maritime transit .(or territorial .

transit) 1s granted, « \

The context of the said Section 1 clearly shows that

the gratuity of transit granted thereby to ‘maritime,

territorial and fluvial transit: is without any qualifica~

tion that such gratuity of transit\depends on maritime

and territorial (and fluvial) transit\being furnished for

the same mails; this is clearly indicated by the statement

in the first. phrase of the section, that is, “The gratu-

ity of territorial, fluvial and maritime transit is,

‘absolute * * *”

No: 2 Interpretation (approved by the President November

l ‘| \

17, 1936) reads:

is further interpreted and construed to mean that, hav-

ing ratified the aforesaid Convention after express in-

struction to its delegates to the Third (Madrid, 1031)

Pan American Postal Cotigress to concede complete

-gratuity of transit by ships of American registry to

- mails of couytries of the Pan American Postal Union:

(name changed to “Postal Union of the Americas and °

- Spain” by the said Madrid, 1931, Congress), as herein-

after set forth (i.e., in translation, from the Dociments

. Of the Third Pan American: Postal Congress, Madrid,

* 1931, Minutes of the Seventh Session of the Figst Com-.

mittee), the t'nited States of America thus accepted the

‘interpretation of the rest of the delegations to ‘that

Congress and obligated itself to transport free of-cost

to the country of origin all the mails consisting of arti=

cles of correspondence (letters, post cards, prints, com-

mercial papers, samples without value, and small pack- -

-ets) of other Americo-Spanish countries adhering to the

Convention in question (for any destination) by steam-

ships of American registry utilized by the United States

for the transportation of its own correspondence, re-

rdless of whether or not the conveying steamships of

merican registry are then under contract to: carry

mails of the United States of Almerica and whether or

not the foreign mails in question are embarked on such

American steamships ‘at a foreign or a United States

port and: whether or not such mails ever reach a port of.

_ the United States or any United States Federal postal

* agency en route to their deetinations.

- . This interpretation has due regard to the memoran-

dum relative to ‘gratuity. of transit. which was signed |

i. their return from } adrig) by the delegates of the.

Tnited States to the aforesai Madrid, 1931, Congress,

that is, by Mr. W. Irving Glover. then Second Assist-

ant Postmaster General, and Mr. vugene R. White, then:

Director of International Postal Service. The memo.

randum mentioned reads as follows: —

__ “After an extended and thorough consideration and .

discussion of the free transit provisions (Article 3 of the

Convention of the Americas and Spain) the Delegates

of the Madrid Congress were in unanimous agreement

that all the transportation facilities used by any one

postal administration wherever they may reach on land

or water are placed freely at the diapeattion of the ad-

mjnistrations of the other signatory countries without

charge, except where payment has to be made by the

nimetery country for the use of vessels foreign to

its flag.’ %.*

12. Pertinent provisions of orders'of the Postmaster Gen-

eral as to payment for carriage of mail are quoted below:

! _ Washington, May 12,1937.

AMENDMENT TO THE POSTAL LAWS.AND REGULATIONS

Order No. 10387.

Paragraph 2, Section 2242 of the Postil Laws and

Regulations, is amended to read as follows, effective

July 1,1987; ° "

“2. Unless otherwise specifically provided, -payment ’

shall be made for the transportation of United States

“mails and foreign closed transit mails on steamships of

both United States registry and foreign registry at the

rates of 5.25 cents a ‘pound for mails consisting of let-

ters and post cards and.0.7 cents a pound for mails con-

sisting of othet articles, inclnding parcel post, for dis- .

tances up to 300 nautical miles: 14 cents a pound for »

mails consisting of letters and post cards and 1.75 sits

a pound for mails consisting of other articles, in uding

. a

) /

parcel post, for distances from 300 up to 1,500 nautical

iniles, and 21 cents a.pound for mails consisting of let-

ters and post cards and 2.8 cents a pound for mails con-

‘sisting of other articles, including parcel post, for all

distances exceeding 1,500 nautical miles.” :

Patagraph 3 of said section is omitted,, and, present .

paragraphs 4 and 5 are renumbered 3 and 4, respectively, -

effective July 1, 1937.

: -| . JAMES A. FARLEY,

‘ . Postmaster General.

INSERT NO. 443. ORDER NO. 12598, FEBRUARY 21, 1939.

Effective March 1, 1939, the Postal Laws and Regula-

tions are amended so as to omit present paragraphs 3 and

4 from Section 2242, and substitute therefor new para-

‘graph 3, as follows: er dag :

“3- Asan exception to the rates specified in paragraph

2 ofthis section, payment shall be made at the rates

specified in the schedule stated below (anless.service be

covered by céntract), for service by vessels of United '

States registry and by vessels of foreign registry which

are entitled to pay from.the United States, in transport=

ing mails the United States is obligated to convey, that

may be perfarmed: es eh

* e- of ce :

“(b) From any port in the countries signatory to the

Conventjons of the Postal Union of the Americas and

Spain (except continental United States, Canada, and

Spain) to any other “sayy (except ‘ports in continental

United States, Canada, and Spain); also from ports

in the West Indies or South America of countries not

signatory to the Conventions of the ‘Postal Union of the’

Americas and Spain, to any other port (except ports in

continental United States, Canada, and Spain), cover-

ing regular mailsoriginating. in signatory countries ;

* ‘ * + ae *