Opposition Brief — Johnson & Higgins of Cal. v. United States

No. 166

Inthe Supreme Court of the United States

OctToBER TERM, 1932

JOHNSON & HIGGINS OF CALIFORNIA, PETITIONER

Vv.

THE UNITED STATES

ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

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CITATIONS ,

Cases:

Eastern Extension A. & C. Telegraph Co. v. United States,

EON RED OOD cktee a dnvatacdedicn ctaueui cake dae cbewce 6

Gulf Refining Co. v. Universal Insurance Co., 32 F. (2d) 555,

certiorari denied.280 U. S. 584. .............-. 222-2. 5

Hume v. United States, 132 U. 8. 406___...__.._.....___- 6

ecm ene, ane 167 U.8. 600... 5... cc cnuen ee 5

fue W. av00M, 107 OU. ©; B86. ok on cc enc cece ence 4,5

State of New York, Ex parte, No. 2, 256 U. 8. 503_________ 5

Thomas v. Brownsville, etc., R. R. Co., 109 U. S. 522_____- 7

United States v. Wilder, Fed. Cas. No. 16,694_.__._.__.__- 4

preterm Brau, Ths, 257 G. 8; 410... ccc nce tno cc k 4,5

Statutes:

Shipping Act of 1916, c. 451, sec. 9, 39 Stat. 728, 730 (U. 8.

In I I nT wena 5

Suits in Admiralty Act of 1920, c. 95, 41 Stat. 525 (U.S. C.,

cS Sg CIPS" ae ee eae 4,5

135277—%2 ()

ELEN REE IR GORE RE eh CU IN TRIN NEBL TERE REE ECORI TE

Inthe Supreme Court of the Hnited States

OctToBER TERM, 1932

No. 166

JOHNSON & HicGins oF CALIFORNIA, PETITIONER

e,

THE UNITED STATES

OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Claims (R. 15-22)

is reported in 1932 A. M. C. 680.

JURISDICTION

The judgment of the Court of Claims was en-

tered April 4, 1932. (R. 23.) Petition for cer-

tiorari was filed June 21, 1932. (R. 23.) The

jurisdiction of this Court is invoked under Section

3 (b) of the Act of February 13, 1925.

(1)

ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT’

2

QUESTION PRESENTED

Whether an administrative officer of the Army

Transport Service has authority to contract on be-

half of the Government for the services of general

average adjusters in preparing a statement of gen-

eral average relative to cargo transported free of

charge during the war period upon an Army Trans-

port employed solely as a public vessel, part of such

cargo having been voluntarily destroved in extin-

guishing a fire?

STATEMENT

The following is a summary of the findings of the

Court of Claims (R. 12-15):

On or about December 16, 1918, fire broke out on

the United States Army Transport ‘* Logan’’ which

was then en route from San Francisco to Manila,

earrying military supplies for American troops in

Siberia and the Philippine Islands, supplies be-

longing to the government of the Philippine Is-

lands, supplies belonging to the American Red

Cross, and a small amount of personal property of

United States Army officers. (R. 12,15.) All of

this cargo was being transported free of charge.

(R. 15.) During the extinguishment of the fire, a

portion of the cargo was damaged by water. (R.

13.) Some or all of the cargo aboard the ship was

covered by insurance against general average losses.

(R. 13.)

On August 22, 1922, an administrative officer of

the Army Transport Service requested petitioner to

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prepare a statement of general average. This

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request was based upon a recommendation of the

Acting Judge Advocate General of the United

States who expressed the opinion that the United

States was liable for general average contribution.

(R. 13.)

On or about January 5, 1927, petitioner for-

warded to the General Superintendent, United

States Army Transport Service, San Francisco,

California, a general average statement in the usual

form covering the damage caused by water during

the extinguishment of the fire referred to above.

(R. 14.) At the same time, petitioner presented a

bill for its services and expenses in connection with

the preparation of the statement. (R. 14.) The

charges made were reasonable and the disburse-

ments included were necessarily incurred. On or

about May 22, 1928, the Comptroller General dis-

allowed petitioner’s claim as set forth in the bill.

Petitioner then brought suit in the Court of Claims

to recover the amount claimed, with interest. The

Court of Claims gave judgment for the United

States. (R. 23.)

ARGUMENT

I

It seems clear that if the United States was not

under obligation to contribute in general average,

no Government official had authority to enter into a

contract for the preparation of a general average

statement.

It has been held that the Government must con-

tribute in general average when its cargo is trans-

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ported like ordinary commercial cargo aboard a

merchant ship. United States v. Wilder, Fed. Cas,

No. 16694. Similarly, general average liability

would probably rest upon the United States in the

event of loss or damage to private cargo carried

upon a Government vessel employed in the com-

mercial trade. See the Suits in Admiralty Act of

1920, c. 95, 41 Stat. 525 (U.S. C., Title 46, sec. 741

et seq.). But we have found no authorities sup-

porting petitioner’s contention that general aver-

age principles are applicable to public vessels of

the United States when carrying cargo of others as

an accommodation while engaged in the perform-

ance of governmental functions.

The court below treated the question as one of

first impression and after careful consideration cor-

rectly concluded that principles of general average

had no application to a public vessel so engaged.

The obligation to contribute in general average is

a peculiar obligation created by ‘‘the established

law of the sea, in the light of and subject to which

all owners of ships and cargoes undertake mari-

time adventures.’’ Ralli v. Troop, 157 U. 8S. 386,

397. But the law of the sea, like all other branches

of the law, is applicable to the sovereign only when

and to the extent that the sovereign has expressed

its consent to be governed thereby. The Western

Maid, 257 U. 8. 419, 482. Such consent has been

given by the United States, subject to specified con-

ditions, with respect to the operations of public

ships engaged in mereantile activities. See See. 9

5

of the Shipping Act of 1916, c. 451, 39 Stat. 728, 730

(U. 8. C. Title 46, see. 808) and the Suits in Ad-

miralty Act, supra. There is no basis in this case

for implying consent on the part of the United

States to be held liable for loss or injury arising out

of the operations of public ships engaged, as was

the ship here involved, in performing functions of

Government. See The Western Maid, supra; Ex

Parte State of New York No. 2, 256 U.S. 503. Cer-

tainly the act of Captain Williams in requesting

petitioner to prepare a statement of general average

did not constitute consent, for his authority was

limited, and no administrative officer has implied

authority to subject the Government to liability

of this character.

It is a settled principle of the maritime law that

an obligation to contribute in general average

arises only when a sacrifice has been made for the

safety of a common venture. The J. P. Donald-

son, 197 U. S. 599; Ralli v. Troop, supra. <As to

ships privately owned, the application of general

average principles is not affected by absence of

cargo, common ownership of vessel and cargo, or

nonpayment of freight charges. Gulf Refining Co.

v. Universal Insurance Company 32 F (2d) 555

(C. C, A. 2d), certiorari denied, 280 U. 8S. 584. But

we submit that the court below correctly held that

when cargo is carried free of charge upon an Army

Transport, engaged primarily in the transportation

of military supplies, equipment, and personnel, the

relation between the Government as carrier and the

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owners of cargo is not such as to constitute them

participants in a common venture, and that, there-

fore, the Government is not liable for losses to

which the principles of general average would nor-

mally apply.

II

Even if there was an obligation on the part of the

United States to contribute in general average, the

Army Transport officer had no authority to enter

into a contract for the services of general average

adjusters. Liability on the part of the Government

in contract can be created only by an officer who is

lawfully authorized to make the contract in ques-

tion or to perform acts from which a contract can

be implied in fact. Eastern Extension A. & C. Tele-

graph Company v. United States, 251 U. 8. 355, 366.

There is nothing in the record to show that an ad-

ministrative officer of the Army Transport Serv-

ice is authorized to enter into contracts for the

preparation of statements of general average. On

the contrary, it may reasonably be supposed that

such services could have been adequately performed

by the accounting and auditing officers of the Gov-

ernment. It is well settled that persons dealing

with public officers are bound to inquire as to the

extent of their authority. Hume v. United States,

132 U.S. 406.

Petitioner contends that even if the agreement

was void by reason of lack of authority on the part

of the contracting officer, nevertheless it is entitled

to recover the fair value of the services rendered.

7

The authorities cited do not support this conten-

tion. In those cases there was no question of

lack of authority. The contracts fuiled because

of fraud in one case and failure to reduce the

agreement to writing in the other. Moreover, in the

instant case there is nothing to show that the Gov-

ernment derived any benefit from the petitioner’s

services, and recovery in quantum meruit is based

upon the value to the recipient of the services or ma-

terials furnished. Thomas v. Brownsville, ete.,

R. R. Company, 109 U.S. 522, 525.

CONCLUSION

The decision of the Court below is correct and is

not in conflict with any other decision. The ques-

tion presented does not seem to be of sufficient gen-

eral importance to warrant review by this Court.

The petition should be denied.

Respectfully submitted.

Y Tuomas D. THACHER,

Solicitor General,

CHARLES B. Rua,

Assistant Attorney General.

‘ Wuirney NortTH SEYMOUR,

Special Assistant to the Attorney General.

/ CHARLES F., KINCHELOE,

. J. FRANK STALEY,

we H,. Brian HouLuanp,

, Witiiam H. Riney, Jr.,

Attorneys.

Avaust, 1932.

U.S GOVERNMENT PRINTING OFFICE: 1932