text:
    Angelo MARRONE, Individually and as President of the U. S. Immigration and Naturalization Association, and on behalf of all GS-9 Immigrant Inspectors, similarly situated, Appellants, v. U. S. IMMIGRATION AND NATURALIZATION SERVICE et al., Appellees.
    No. 1029, Docket 73-2631.
    United States Court of Appeals, Second Circuit.
    Argued May 22, 1974.
    Decided June 18, 1974.
    Martin L. Rothstein, New York City (Fried, Fragomen & Del Rey, New York City), for appellants.
    Jonathan M. Marks, Asst. U. S. Atty. (Edward John Boyd, Acting U. S. Atty., E.D.N.Y.), for appellees.
    Before SMITH and TIMBERS, Circuit Judges and TYLER, District Judge.

       Hon. Harold R. Tyler, Jr., of the Southern District of New York, sitting by designation.

   PER CURIAM:

On October 4, 1973, the United States District Court for the Eastern District of New York granted the motion of the defendants-appellees for summary judgment and denying the cross-motion of the plaintiff class for summary judgment in their favor. In substance, the district court ruled that the plaintiff class had not proved its allegations that the Immigration and Naturalization Service (“INS”) and the United States Civil Service Commission (“Commission”) had abused their discretion in promulgating a revised classification standard for immigration inspectors, grade GS-9. The district court further grounded its order on the proposition that the plaintiff class had not exhausted available administrative remedies. 5 C.F.R. § 501.601 et seq. Although we agree with the district court on the latter point, we conclude that it erred in granting summary judgment to the defendants-appellees dismissing this action. Hence, we reverse the order of the district court and remand this case for further proceedings.

This action was instituted by appellant Angelo Marrone, for himself and on behalf of all GS-9 immigration inspectors of the INS, seeking judicial review and modification of a revised Commission classification standard for immigrant inspectors, grade GS-9. After commencement of the action, the district court entered an order granting plaintiff’s application to treat this as a class action; in essence, the class is described as including all immigration inspectors, grade GS-9, on September 24, 1970, or thereafter. In brief, because the classification standard was based upon an inaccurate description of the duties and functions exercised by immigration inspectors, plaintiff class alleges that the promulgation of the standard constituted an arbitrary, unreasonable and capricious action by the Commission and INS.

In January, 1968, after notification of the INS, the Commission commenced a study of the job classification of immigrant inspectors. At the same time, the Commission notified the American Federation of Government Employees, the union which is the bargaining representative for INS inspectors (the “Union”). A little more than a year later, February, 1969, the Commission released a tentative draft of a new classification or standard for immigration inspectors, grade GS-9. Comments were invited from the INS and the Union. Similarly, comments were sought from the National Council of Immigration and Naturalization Employees, which is a branch of the Union. These organizations responded by submitting comments and suggestions. Thereafter, the Commission issued a revised standard retaining the GS-9 classification and including an amended, detailed description of the duties and responsibilities for each grade level within that immigration inspector classification. Not surprisingly, both the Union and the Council objected to this standard and asked for reconsideration. As a result, the Commission permitted the submission of new materials and information by the Union and the Council in early 1970. Finally, on April 17, 1970, the Commission concluded that, notwithstanding the submissions of new information and materials by the Union and the Council, it would adhere to its revised standard, with certain minor changes of language and description which are not here relevant.

Without extended discussion, our review of the record indicates that, contrary to the commands of Rule 56, F.R. Civ.P., summary judgment was granted to the defendants-appellees in the face of clear-cut issues of fact between the parties. By way of illustration, appellants have argued that there were errors of substantial magnitude in the examiner’s findings in respect to the duties and exercise of responsibilities of immigration inspectors concerning parole, bonding, and apprehension of alleged criminals. It seems to us that if there is any substance to this and similar claims of plaintiff, it would follow that there are genuine issues of fact as to whether or not the revised classification was arbitrary and capricious as claimed. It requires no citation of authorities to support the conclusion that summary judgment, therefore, is precluded in this case, at least at this stage. For this reason alone, the aforesaid order of the district court must be and is reversed.

Notwithstanding, we believe that the district court was correct insofar as it determined that the applicable regulations of the Commission permit, if not require, resort to formal administrative proceedings on plaintiff’s claims before the Commission. 5 C.F.R. § 511.-603. In substance, that regulation expressly permits an appeal by an employee such as Marrone or any other member of the class to request a Commission decision as to the appropriate class or grade of his position. Thus, although it is true that there were submissions by the Council and the Union before the Commission adopted the revised standard here in dispute, these informal procedures were no substitute for the administrative appeal procedures embodied in 5 C.F.R. § 511.603. See, also, 5 U.S.C. §§ 5110-5113, 5115, which provisions empower the Commission to adjudicate improper position classifications. It is conceded that neither Marrone nor any other member of the class has availed himself of the administrative remedy here discussed. We conclude, therefore, that the plaintiff class is bound by the general rule requiring exhaustion of administrative remedies when Congress has clearly provided an administrative procedure which is capable of resolving the controversy in question. See, Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947); Burns v. McCrary, 229 F.2d 286 (2d Cir. 1956).

To summarize, we revise the order granting summary judgment to defen-ants and remand this case to the district court with the direction that an appropriate member of the plaintiff class be permitted a reasonable time to raise the issues asserted in this case before the Commission. The district court should retain jurisdiction of this case pending a final determination by that agency.

      . We note that Marrone recently has been Xiromoted to a higher grade than GS-9. Arguably, therefore, he may no longer be . an appropriate representative of the class in this case — or an appropriate class member to press an administrative appeal.


source: Caselaw Access Project

author: WALLACE, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Seihichiro TSUTAGAWA, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Chihiro TAKAMATSU, Defendant-Appellee.
    Nos. 73-2863, 73-2888.
    United States Court of Appeals, Ninth Circuit.
    April 26, 1974.
    Rehearing Denied Aug. 28, 1974.

      David P. Curnow, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellant.
    William N. Sauer, Jr. (argued), Carlsbad, Cal., Howard B. Frank (argued), San Diego, Cal., for defendants-appel-lees.
    Before MERRILL, GOODWIN and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

The grand jury returned a separate indictment against each appellee charging the harboring and concealing of illegal aliens in violation of 8 U.S.C. § 1324(a)(3). Motions to dismiss the indictments were granted by the district court because all but four of the apprehended aliens were released and sent back to Mexico by the government. The government contends that the district court erred in applying United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), because in the present case the aliens were apprehended incident to a grand jury investigation directed towards unknown ranch owners and foremen supervising the employed illegal aliens rather than incident to an arrest. We reject the contention and affirm.

The United States Attorney’s office, in connection with a proposed grand jury investigation, devised a plan whereby the Border Patrol agents, when they made their usual checks at ranches and farms, would be armed with grand jury subpoenae to be served on supervisory personnel in the area where illegal aliens were discovered or apprehended. The Border Patrol agents were also given a list of questions to ask apprehended illegal aliens in an effort to determine, among other things, whether farm supervisors or owners, concealed or harbored them. The answers were to be given to the United States Attorney before the grand jury started taking testimony. The Border Patrol was instructed to send those illegal aliens with no information back to Mexico.

Three farms in San Diego County were selected as targets for the grand jury investigation. Both of the appel-lees were foremen at one of these farms. On June 12, 1973, Border Patrol agents raided the three farms' and apprehended 39 aliens; after an initial interview, 20 of these were released to Mexico. The following day, the remaining 19, together with reports of their field interrogations, were referred to the United States Attorney’s office for further questioning. After all 19 aliens had been interviewed by the United States Attorney’s office, six more were released to Mexico. The remaining 13 testified before the grand jury. Subsequent to testifying all of the aliens were released, except for four aliens who had been apprehended at the farm where the appellees were employed as foremen. These four were either paroled into the United States or kept in custody.

Tsutagawa was served with a subpoena the day the aliens were apprehended. That very day, the United States Attorney was advised by a local attorney that he represented Tsutagawa as well as the owner of the farm. Two days later, Tsutagawa testified before the grand jury and named Takamatsu as a foreman and as a result, he was also served with a subpoena and subsequently testified before the grand jury.

At no time were appellees or their attorneys given the opportunity to interview the 35 aliens prior to their return to Mexico. Appellees made an unsuccessful effort to find these expelled aliens in Mexico.

The government attempts to distinguish Mendez-Rodriguez on three grounds. First, it contends that in the present ease, as distinguished from Mendez-Rodriguez, there was not a known defendant at the time the aliens were apprehended. Rather, the person to be indicted would not be determined until the completion of the grand jury investigation. The government notes that only two of the nine foremen and owners testifying before the grand jury were actually indicted. It further points out that a week had elapsed after the apprehensions before the evidence was complete as to Tsutagawa, and two weeks as to Takamatsu, at which time both indictments were returned.

Since government investigators are not equipped with crystal balls to determine unexpected or unforeseen results, there may be some circumstances in which Mendez-Rodriguez will not apply. However, this is not such a case. Before the apprehensions, the government had a reasonably small, known and identifiable number of targets, although names of potential defendants may not have been known. It had drawn a bead upon the owners and foremen of three farms, in the hope that.it could flush out sufficient evidence to charge some of them with harboring and concealing illegal aliens.

Second, the government contends that Mendez-Rodriguez is distinguishable because in the present case there were no definite witnesses other than the four who were ultimately retained. But the statement itself demonstrates the contention’s fallacy. Mendez-Rodriguez prevents the government from determining who will be a helpful witness for the accused. The accused (or here, prospective accused) has the right to make that decision for himself, either by interviewing the potential alien witnesses or by waiving the right to do so. If the government believed, as it asserts in its brief, that rule 6 of the Federal Rules of Criminal Procedure prevented it from making a sufficient disclosure to prospective defendants to facilitate a meaningful interview of aliens, then its alternatives were to speed up the investigation or retain the 39 aliens for the two-week period.

The government is incorrect in suggesting that that retention would necessarily require incarceration. We have not invalidated the parole or farm-out methods of retention. United States v. Verduzco-Macias, 463 F.2d 105 (9th Cir.), cert. denied, 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139 (1972). Nor are we impressed that Title 8, C.F.R. § 287.3 requires immediate expulsion of the aliens; it only requires processing within twenty-four hours.

, Third, the government contends that Mendez-Rodriguez is distinguishable because in the present case there were no definite charges or specific facts extant. The contention is unmeritorious. The facts were present — the acts allegedly violating the immigration laws were history. The charges were not yet made, but the government was just as aware of the law it believed had been broken as it was in Mendez-Rodriguez.

The thrust of Mendez-Rodriguez is to prevent the basic unfairness of allowing the government to determine which witnesses will not help either side and then to release those witnesses, for all practical purposes, beyond the reach of the defendant. Compare United States v. Romero, 469 F.2d 1078 (9th Cir. 1972), cert. denied 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973). The vice lies in the unfettered ability of the government to make the decision unilaterally. The Sixth Amendment guarantees a defendant the right to subpoena favorable witnesses. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Here, the government placed witnesses, who may have been favorable to the appellees, outside the power of our courts to require attendance. In Mendez-Rodriguez we held that this same act denied the accused due process because it interfered with his ability to defend himself from criminal charges. 450 F.2d at 4-5. A defendant has the right to formulate his defense uninhibited by government conduct that, in effect, prevents him from interviewing witnesses who may be involved and from determining whether he will subpoena and call them in his defense.

Having based our decision in Mendez-Rodriguez on the Fifth and Sixth Amendments, we must be careful not to make an artificial distinction which in actuality fails to mandate a different constitutional result. In the present case we fail to see a distinction which would justify a conclusion different from the one we reached in Mendez-Rodriguez. We are well aware of the difficulties and soaring costs involved in retaining aliens until they have been interviewed and a decision made as to whether their testimony will be needed at trial. We are not here foreclosing alternative methods of meeting that challenge but the procedure followed in this case fails to satisfy the constitutional requirements.

Affirmed.


author: OAKES, Circuit Judge: MANSFIELD, Circuit Judge

text:
    In re I/S STAVBORG (O. H. MELING, MANAGER), Petitioner-Appellee, v. NATIONAL METAL CONVERTERS, INC., Respondent-Appellant.
    No. 633, Docket 73-2491.
    United States Court of Appeals, Second Circuit.
    Argued March 6, 1974.
    Decided May 24, 1974.

      Herbert F. Roth, New York City (Finley, Kumble, Heine, Underberg & Grutman, New York City, of counsel), for respondent-appellant.
    John J. Reilly, New York City (Parker S. Wise, Jr., Haight, Gardiner, Poor & Havens, New York City, of counsel), for petitioner-appellee.
    Before MOORE, MANSFIELD and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

National Metal Converters, Inc., appeals from an order entered August 2, 1973, by the district court granting I/S Stavborg’s motion to confirm a 2-1 arbitration award made May 3, 1973, in New York City. Appellant raises two main issues on this appeal: (1) whether the district court had jurisdiction to enter judgment on the award under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., when the parties did not explicitly agree to the entry of judgment on an award in the arbitration agreement; and (2) whether the decision of the majority of the arbitrators should be reversed on grounds of its being either “clearly erroneous” or “manifestly in disregard” of the applicable law. We find that the district court did have jurisdiction to enter judgment on the award, and, not without some doubt, affirm the award.

I. JURISDICTION OF THE DISTRICT COURT.

On August 8, 1972, appellant, as charterer, agreed to charter a vessel owned by appellee to transport bulk scrap steel from Bath, Maine, to Bilbao, Spain. Clause 37 of the contract of charter party entered into by the parties, governing the arbitration of disputes, reads as follows:

Any and all differences and disputes of whatsoever nature arising out of this Charter, shall be put to arbitration in the City of New York pursuant to the Laws relating to arbitration there in force, before a board of three persons consisting of one arbitrator to be appointed by the Owners [appellee], one by the Charterers [appellant], and one by the two so chosen. The decision of any two of the three on any point or points shall be final.

After the steel had arrived in Spain, a dispute arose concerning the payment of freight due under the charter party agreement; this dispute was submitted to arbitration in New York City. Both parties apparently agreed to submit the dispute to arbitration under clause 37, as no court action was brought to enforce that clause. Both parties appointed one arbitrator. Both parties agreed (presumably because the two appointed arbitrators were unable to agree) to the appointment of a third arbitrator by the district court below and accepted that court’s appointee. Both parties participated fully in the arbitration itself, including the submission of briefs, calling of witnesses and presenting of argument to the arbitrators. After an award for appellee had been handed down, appellant petitioned the district court to modify or vacate that award pursuant to 9 U.S.C. § 9. Only on this appeal does appellant raise, for the first time, the question whether the district court had jurisdiction to enter judgment on the award. Appellant relies primarily on this court’s recent decision in Varley v. Tarrytown Associates, Inc., 477 F.2d 208 (1973). Since we agree with appellee that the language of clause 37, coupled with the conduct of appellant here, was sufficient to confer jurisdiction on the district court to enter judgment on the award pursuant to 9 U.S.C. § 9, we do not consider the alternative argument advanced by appellee on the basis of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201 et seq. The fact that the question was raised for the first time on appeal is immaterial since the jurisdiction of the federal district court is at stake. See e. g., United States v. Heyward-Robinson Co., 430 F.2d 1077, 1080 (2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971).

As this court stated in Varley, 477 F.2d at 210, the language of 9 U.S. C. § 9 is quite specific in requiring an agreement by the parties to entry of judgment by a federal court before a federal court has jurisdiction to do so; section 9 states that a federal district court may confirm an arbitration award “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration. . . . ” One purpose of this provision is to ensure that the parties have affirmatively agreed to the application of the federal substantive law contemplated by the Act to the interpretation of the arbitration agreement into which they have entered. See Coenen v. R. W. Pressprich & Co., 453 F.2d 1209 (2d Cir.), cert. denied, 406 U.S. 949, 92 S.Ct. 2045, 32 L.Ed.2d 337 (1972). See generally Note, The Consequences of a Broad Arbitration Clause under the Federal Arbitration Act, 52 B.U.L.Rev. 571, 589-596 (1972).

It is true that clause 37 does not contain any explicit agreement by the parties to entry of judgment on an arbitral award. The question for us is whether that omission precludes the implication, from conduct, of consent to such entry. Varley, of course, did not hold that consent must be explicit within the arbitration clause itself or even in some document incorporated therein by reference. In Varley, the arbitration clause provided that disputes under the contract “shall be settled by arbitration pursuant to the rules of the American Arbitration Association.” 477 F.2d at 209. The appellee in Varley attempted to argue that consent to entry of judgment was made out for purposes of 9 U. S.C. § 9 by the reference to the “rules” of the American Arbitration Association (AAA). This court acknowledged in Varley, as it had previously in Reed & Martin, Inc. v. Westinghouse Electric Co., 439 F.2d 1268 (2d Cir. 1971), that such “rules” could be incorporated into an arbitration clause, thereby establishing the requisite “consent” of the parties to entry of judgment, if the “rules” so provided. The problem for appellee in Varley was that the “rules” there made no reference whatsoever to entry of judgment; indeed, the AAA had recommended that a separate and distinct clause be written directly into the arbitration agreement to achieve that purpose.

Clause 37 contains two provisions bearing on the question. The first is that arbitration was to be conducted in the City of New York “pursuant to the Laws relating to arbitration there in force . . . . ” The second is that “The decision of any two of the three [arbitrators] . . . shall be final.” From the first, it may be implied that both parties — particularly appellee here, a foreign corporation — had consented both to arbitrate in New York City and to be served with process in New York to enforce any arbitral award that might be forthcoming. Thus, the provision, would have protected appellant if, inter alia, appellee had refused to submit to arbitration. The second clause clearly expresses the intent of the parties that the arbitrators’ decision as expressed in the award was to be “final.” Whatever “final” means, it at least expresses the intent of the parties that the issues joined and resolved in the arbitration may not be tried de novo in any court, state or federal. Thus, the only point left open for conjecture by clause 37 is whether the parties intended for judgment to be entered in a federal, as opposed to a state, court. Where, as here, the substantive law to be applied to interpretation of the contract itself is federal maritime law, it seems doubtful to us that either party was particularly concerned that an award might be enforced in federal court: their main concern was that the award should be “final.”

Whatever doubt remains as to the intent of the parties from the language of clause 37, that doubt is removed by the conduct of the parties to this case as recounted above. At an early stage, the power of a federal court was invoked to secure the appointment of the “third” arbitrator. After arbitration, appellant moved in federal district court under 9 U.S.C. § 9 to vacate and/or modify that award. Under these circumstances, it seems abundantly clear to us that both parties in fact consented to the entry of judgment on any arbitral award entered, and this was sufficient to permit the exercise of jurisdiction by the district below.

II. REVIEW OF THE AR-BITRAL AWARD.

Appellant’s other claims may be stated variously that the arbitrators’ decision was “clearly erroneous,” or was “in manifest disregard of the applicable law,” or amounted to a “reformation” of the charter party agreement. Although interpretation of the charter party agreement here in issue is clearly a matter of federal maritime law, “the charter party is merely a contract, subject in general to all the rules and requirements of contract law.” G. Gilmore & C. Black, The Law of Admiralty 172 (1957). The same authors have also observed that “a single short (and often, to the uninitiate, obscure) expression may refer to a whole set of complicated practices perfectly familiar to those who deal regularly in such matters . . .,” id., and they conclude that “In such a field, it is not surprising that arbitration . . . has largely taken the place of litigation.” Id. at 173 (footnote omitted).

As is the usual charter party case, id., the charter party here was negotiated by brokers for both appellant and appellee. The facts surrounding the voyage itself were not in dispute before the arbitrators. The vessel, owned by appellee, left Bath, Maine, on or about August 17, 1972, carrying 4,091.95 long tons of bulk scrap steel. The steel was consigned to one Rosal, “F.O.B. stowed vessel.” Under the charter party, freight was due to be paid by August 24, 1972, with Rosal having the initial obligation to pay the freight. Rosal did not pay the freight by that date, nor had it been paid at the time of arbitration. The parties agree that the balance of the unpaid freight is $32,742.61.

The vessel arrived at Bilboa, Spain, on or about August 27, 1972. Discharge of the cargo commenced on August 28, 1972. Under date of August 30, 1972, some hours prior to the completion of the discharge of the cargo, the president of appellant charterer wrote its broker a letter and enclosed a check to cover freight “as good faith of our guarantee in the event freight payment is not received from Rosal. . . .’’At some point prior to completion of the cargo discharge on August 31, 1972, the charterer requested that the discharge be discontinued because of Rosal’s failure to pay the freight. Rosal’s failure to pay was a fact known or that should have been known to the owner appellee because a typewritten addition to the charter party stated “Freight to be paid to Den Norske Creditbank, Stavan-ger, Norway, account O. H. Meling [appellee].”

In dispute below, then, was the responsibility for the payment of freight in a situation where the consignee, Rosal, had failed to make it. Appellant contended that it was the intent of the parties that the charterer was obligated to pay only to the extent the owner was unable to obtain payment by exercise of its lien. Appellant relies on clause 8 of the charter party, which reads in pertinent part as follows:

Owners [appellee] shall have a lien on the cargo for freight Charterers [appellant] also remain responsible - for freight . . . , but only to such extent as the Owners have been unable to obtain payment thereof by exercising the lien on the cargo.

(Emphasis added.)

The clear import of this clause, taken alone, is that appellant remained responsible for payment of freight only to the extent that the appellee was unable to recoup freight by means of execution of the lien it held on the cargo. As a practical matter, this clause would cast the burden of taking affirmative action to secure payment of the freight due upon the only party to the agreement guaranteed to have a representative at the scene where the cargo is discharged (the owner’s ship’s captain). Despite this clause, the owner, aware of the fact that the freight was not prepaid and that the consignee was “initially obligated to pay the freight,” did not seek to obtain payment by exercise of its lien on the cargo.

Appellee argues, and the majority of the arbitrators apparently found, that clause 1 of the charter party contradicts clause 8 and therefore the true intent of the parties must be otherwise ascertained. Clause 1 in pertinent part reads as follows: •

Freight to be telegraphically remitted to Owners by Messrs. Rosal E. Madrid, the Receivers. Charterers to remain fully responsible for fulfillment of charter party.

(Emphasis added.)

The arbitral majority speaks of “contradictions” in the charter party (presumably between clauses 1 and 8) and goes on to point out that “under Spanish law the master may not delay unloading the cargo because the freight has not been paid. He must complete discharge and then, if he desires, he can petition the Court to put the cargo under lien.” (Emphasis added.) But Spanish law, which would permit a lien to arise after discharge apparently even in the absence of a charter party agreement to that effect, is not at all inconsistent with clause 8.

The arbitral majority then went on to inquire whether the master, after discharge, should have complied with clause 8 (by instituting lien proceedings in the Spanish courts) “in the face of a bill of lading which stated the freight had been paid?” In light of their previous finding that both parties were quite aware that the freight had not been prepaid, see note 4 supra, we fail to see any relevance the bill of lading might have to the obligation of appellee under clause 8. As we view it, the majority, in effect, read clause 8 out of the charter party.

It seems rather anomalous, but had the arbitral majority failed to render a written opinion in this case, our ability — ignoring the question of our power — to review that decision would be greatly limited. See Sobel v. Hertz, Warner & Co., 469 F.2d 1211, 1214-1215 (2d Cir. 1972). Indeed, the AAA apparently discourages the practice of written arbitral opinions in order to insulate the arbitral process from any judicial review. Faced, however, with a reasoned opinion that is, in our view, clearly erroneous both in logic and result, we are confronted with the question whether it is nevertheless our obligation under the Federal Arbitration Act to affirm the award.

As was stated in Sobel, supra, “the extent of an arbitrator’s obligation to explain his award is necessarily related to the scope of judicial review of it.” 469 F.2d at 1214. The Sobel court did not go so far as to say that where arbitrators voluntarily submit written opinions, they subject themselves to more thorough review by the courts; review in the federal courts is still governed by the provisions of the Federal Arbitration Act, 9 U.S.C. §§ 10 & 11. Appellant’s briefs before this court significantly contain not so much as a passing reference to 9 U.S.C. § 10, which is the only provision of the Act which is relevant to our scope of review. That section, reprinted below, exhausts the grounds upon which the district court, or this court on appeal, may disturb the arbitral award. Appellants do not advance any colorable claim under subsections (a), (b) or (c); we are left to consider whether their claim falls under subsection (d).

Appellant argues that an arbitral award may be modified if that award either “manifestly disregards the law,” citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), or is “irrational,” citing this court’s per curiam decision in Marcy Lee Manufacturing Co. v. Cortley Fabrics Co., 354 F.2d 42 (1965), in which the panel referred to federal law as being the same as New York law on the subject.

In Wilko v. Swan, supra, the Court was presented with the narrow question whether certain provisions of the Securities Act of 1933 invalidated a stipulation in which a purchaser of securities agreed to settle any differences arising out of the purchase by recourse to arbitration. The Court, in answering this question in the affirmative, seemed to say, though it clearly did not decide, that a decision by an arbitrator disregarding the applicable securities laws would have been reversible under 9 U.S. C. § 10 when it stated that

While it may be true . . . that a failure of the arbitrators to decide in accordance with the provisions of the Securities Act would “constitute grounds for vacating the award pursuant to section 10 of the Federal Arbitration Act,” that failure would need to be made clearly to appear. In unrestricted submissions the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpetation.

346 U.S. at 436-437 (emphasis added) (footnote omitted). It was Justice Frankfurter, dissenting in Wilko, who emphasized that “Arbitrators may not disregard the law.” Id. at 440. In any event, this court, citing simultaneously both the Wilko majority and dissenting opinions on the point, embraced the “manifest disregard” test, saying, however, that it is an “exception” that must be “severely limited.” See Trafalgar Shipping Co. v. International Milling Co., 401 F.2d 568, 573 (2d Cir. 1968); Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577, 582 (2d Cir. 1967). See also Office of Supply, Republic of Korea v. New York Navigation Co., 469 F.2d 377, 379-380 (2d Cir. 1972).

Illustrative of the difficulty inferior courts are having in “attempts to define ‘manifest disregard’ ” is our own Sobel v. Hertz, Warner & Co., 469 F.2d at 1214. The Sobel court noted that it “is a truism that an arbitration award will not be vacated for a mistaken interpretation of law . . .,” citing Wilko v. Swan to that effect. Id. The court then said, “But if the arbitrators simply ignore the applicable law, the literal application of a ‘manifest disregard’ standard should presumably compel vacation of the award.” Id. But perhaps the rubric “manifest disregard” is after all not to be given independent significance; rather it is to be interpreted only in the context of the specific narrow provisions of 9 U.S.C. §§ 10 & 11, as Chief Judge Clark’s opinion for this court indicated in Amicizia Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 274 F.2d 805, 808 (2d Cir.), cert. denied, 363 U.S. 843, 80 S.Ct. 1612, 4 L.Ed.2d 1727 (1960). Judge Clark there said that “the misapplication . . . of . . . rules of contract interpretation does not rise to the stature of a ‘manifest disregard’ of law.” Id. He also indicated doubt as to the current validity at that time of the Wilko dictum — “manifest disregard” by the “But cf.” citation to the only subsequent Supreme Court case to address this subject, Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). In Bernhardt, the Court negated the possibility of applying a nonstatutory, “manifest disregard” standard to a case like the one before us when it stated, citing this court’s own decision in The Hartbridge, 62 F.2d 72 (1932), cert. denied, 288 U.S. 601, 53 S.Ct. 320, 77 L.Ed. 977 (1933), that “Whether the arbitrators misconstrued a contract is not open to judicial review.” Bernhardt v. Poly graphic Co. of America, 350 U.S. at 203 n.4.

Our Marcy Lee Manufacturing Co., supra, says that the New York law is that “as long as arbitrators remain within their jurisdiction and do not reach an irrational result, they may ‘fashion the law to fit the facts before them’ and their award will not be set aside because they erred in the determination or application of the law . . . . ” 354 F.2d at 43. Even under this test, if it is indeed “the same” as the federal law, as the Marcy court may have indicated, however, the result here remains the same, for even though erroneous the arbitral majority here was not irrationally so.

All of appellant’s claims here reduce to the proposition that the arbitrators misconstrued the contract. The arbitral majority justified reading clause 8 out of the charter party by considering clause 1 to conflict with it and then by placing heavy reliance on the August 30 letter from appellant’s president, supra, which seemed to acknowledge that appellant was responsible for the freight given Rosal’s failure to pay. In a court of law, this evidence would probably not have been properly admitted if, as we feel to be the case, the intent of the parties were made abundantly clear from within the four corners of the charter party. Even if admitted it should have been entitled to little or no weight since the letter was delivered when the discharge was almost complete and the check accompanying the letter was to be held in escrow pending effort by the owner to secure payment from the consignee. We see no basis, however, to reverse the award even though it is based on a clearly erroneous interpretation of the contract. Whatever arbitrators’ mistakes of law may be corrected, simple misinterpretations of contracts do not appear one of them.

Judgment affirmed.

MANSFIELD, Circuit Judge

(dissenting) :

I must respectfully dissent.

I agree with Judge Oakes’ statement that a majority of the arbitrators have “read Clause 8 out of the charter party.” However, I cannot agree with his conclusion that appellant’s claims here “reduce to the proposition that the arbitrators misconstrued the contract” and that the arbitrators’ decision, which he concedes to be “clearly erroneous,” was based upon a “misinterpretation of the contract.”

As I see it, we are not confronted here with a mere error of law or misconstruction of an agreement, which would be insufficient to justify judicial intervention, see Saxis S.S. Co. v. Multifacs International Traders, Inc., 375 F.2d 577, 582 (2d Cir. 1967); Amicizia Societa Navegazione v. Chilean Nitrate and Iodine Sales Corp., 274 F.2d 805 (2d Cir. 1960) (construction of contract term “double rigged”), but with a decision which manifestly disregards the clear and unambiguous terms of the controlling contract from which the arbitrators’ powers are drawn, and which finds no basis in the provisions of that contract or elsewhere. Such conditions mandate our intervention. Wilko v. Swan, 346 U.S. 427 (1953); United Steel Workers v. American Mfg. Co., 363 U.S. 564, 597, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); H. K. Porter Co. v. United Saw, File & Steel Prod. Workers, 333 F.2d 596 (3d Cir. 1964).

The pertinent provisions of the charter party contract are crystal clear and there is no conflict between them. Clause 8 plainly and unambiguously provides that “Charterers shall also remain responsible for freight . . . but only to such extent as the Owners have been unable to obtain payment thereof by exercising the lien on the cargo.” There is not the slightest conflict between this specific obligation and the Charterer’s general duty, as set forth in Clause 1 of the contract, “to remain fully responsible for fulfillment of charter party.” The charter party obviously obligated the charterer to perform various obligations, including payment of freight according to the terms and conditions of Clause 8, and other specific duties according to the terms of other paragraphs of the agreement (e. g., stowage of cargo, payment of demur-rage, wharfage, literage, subletting, lay days, etc.).

Thus the Charterer here assumed full responsibility for fulfillment of the charter party, including the obligation to pay the freight upon the owner’s compliance with Clause 8, and the Owner obligated itself first to seek payment “by exercising the lien on the cargo.” The Owner clearly failed to perform this latter obligation, which was a condition precedent to its exacting payment from the Charterer. The Owner should either have obtained payment of the freight from the consignee prior to or at the time of discharge or, upon completing discharge, have petitioned the court for an order placing the cargo under lien. It did neither. Its failure to perform its obligation was not excused by the existence of the Charterer’s August 30, 1972 letter to its broker enclosing a check for the freight, since the letter, aside from its not being part of the contract between the parties, was to be held in escrow pending the Owner’s fulfillment of its obligation to secure payment from the consignee.

Although we are obligated to avoid frustrating the purpose of arbitration, which is to resolve disputes quickly and inexpensively by minimizing judicial review or interference, we may not go so far as to countenance a wholly baseless and irrational award. To do so would be to deny due process. Our guideline was well stated by the Supreme Court in United Steel Workers, supra, where it said:

“Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (363 U.S. at 697).

See, in accord, H. K. Porter Co. v. United Saw, File & Steel Prod. Workers, supra.

Since the arbitrators’ award fails to draw its essence from the charter party contract and is wholly baseless and irrational, I would reverse the decision of the district court and direct the entry of judgment vacating the award.

      . We need not decide whether language of clause 37, standing alone, would have been sufficient to confer jurisdiction on a federal district court had either party resisted arbitration, thus forcing the other party to attempt to compel arbitration under 9 U.S.C. § 4.

      . The commentators appear to be in disagreement on this question: McMahon, Implementation of the United Nations Convention on Foreign Arbitral Awards in the United States, 2 J.Mar.L. & Comm. 735, 740-742 (1971) (Convention applies to awards made in United States) ; Asken, American Arbitration Accession Arrives in the Age of Aquarius: United States Implements United Nations Convention on the Recognition and Enforcement of Foreign Ar-bitral Awards, 3 Sw.U.L.Rev. 1, 6 (1971) (Convention applicable only to awards made in foreign countries).

      . This would clearly be true even if appellant had sought to have the award enforced in New York state courts. See, e. g., Samin-corp South American Minerals & Merchandise Corp. v. Tikvah Mining Co., 43 Misc.2d 27, 250 N.Y.S.2d 151 (Sup.Ct.1964).

      . A bill of lading designating Rosal as the consignee and containing the clause “Freight prepaid as per charter party” was issued prior to sailing but both parties here conceded at arbitration that the freight had not in fact been prepaid.

      . Remaining on the printed charter party from was a phrase that contradicted the arrangement above, but the typewritten addition plainly controls.

      . The majority opinion followed this statement with the sentence “In this case, Rosal held a bill of lading which stated the freight had been prepaid.” The majority already having stated that this bill of lading was known by all parties to be incorrect in this respect, see note 4 supra, its treatment of the bill of lading is difficult to comprehend.

      . The dissenting arbitrator took the view that the bill of lading should not be read as indicating that the freight had been prepaid because it reads “Freight Prepaid as per Charter Party,” and the charter party itself clearly indicated that the freight had not been prepaid.

      . This problem was dealt with early in this history of the Republic by Mr. Justice Story, who, sitting as Circuit Justice, was careful to preserve the distinction between scope of review, on the one hand, and the problems created by the presence or absence of a written opinion by the arbitrators in cases where questions of law had been preserved for the court. In Kleine v. Catara, 14 Fed. Cas. p. 732 (No. 7,869) (C.C.D.Mass.1814), Story stated that, “under an unqualified submission,” if the parties mean for the arbitrators “to take upon themselves the whole responsibility, and not to refer it to the court, to decide differently from what the court would on a point of law, the award ought not to be set aside.” Id., at 735. Kleine was, however, a case in which the parties had agreed that the arbitrators should “decide according to law, and [were the arbitrators to make a] mistake,” that mistake was to be referred to the court for its review. Dealing with the case in which power to review questions of law had been preserved, Story observed that, in the absence of a reasoned opinion by the arbitrators, “it would have deserved very grave consideration, whether we could, by collateral evidence, have examined into the existence of any errors of law.” Id. The Justice then held that, where the arbitrators had given the grounds for their decision (something he did not recommend highly), their decision “once before the court, must stand or fall by its intrinsic correctness, tested by legal principles.” Id. at 736 (emphasis added).

      . See Note, Commercial Arbitration: Expanding the Judicial Role, 52 Minn.L.Rev. 1218, 1231 n. 109 (1968).

      . Appellant suggests that this court has power to vacate the award under 28 U.S.C. § 2106, the general Judicial Code section relating to appellate review, if such an action would “be just under the circumstances.” That provision, however, can hardly be thought to expand the scope of review specifically tailored by 9 U.S.C. §§ 10 & 11 to the review of arbitral awards under the Federal Arbitration Act.

      . In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
      (a) Where the award was procured by corruption, fraud, or undue means.
      (b) Where there was evident partiality or corruption in, the arbitrators, or either of them.
      (e) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
      (d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
      (e) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.
      9 U.S.C. § 10.

      . The Marcy court essentially quoted the New York Court of Appeals decision in In re Exercycle Corp., 9 N.Y.2d 329, 336-337, 214 N.Y.S.2d 353, 357-358, 174 N.E.2d 463, 466 (1961). That decision in turn relied for its “irrationality” proposition on In re National Cash Register Co., 8 N.Y.2d 377, 383, 208 N.Y.S.2d 951, 955, 171 N.E.2d 302, 305 (1960), where the Court of Appeals said that arbitrators may be said to have “exceeded their powers” under § 1462(4) of the New York Civil Practice Act “only if they gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties.” The language of 9 U.S.C. § 10(d) tracks the language of § 1462(4) exactly.

      . The latter sentence, ungrammatical in structure, was unnecessary to the decision as Justice Jackson, concurring pointed out. 346 U.S. at 438-439. How courts are to distinguish in the Supreme Court’s phrase between “erroneous interpretation” of a statute, or for that matter, a clause in a contract, and “manifest disregard” of it, we do not know: one man’s “interpretation” may be another’s “disregard.” Is an “irrational” misinterpretation a “manifest disregard”?

      . Justice Frankfurter went on to say that “appropriate means for judicial scrutiny must be implied, in the form of some record or opinion, however informal, whereby such compliance [with the statute] will appear, or want of it will upset the award.” Id. This very clearly is not now the law in this circuit, Sobel v. Hertz, Warren & Co., supra, though which came first, the chicken of no judicial review or the egg of no record of reasons which can be judicially reviewed, remains a bit of a mystery.

      . The first mention we find of this phrase is in United States v. Farragut, 89 U.S. (22 Wall.) 406, 22 L.Ed. 879 (1874). In that case, a prize dispute cognizable in admiralty, the parties had agreed, after commencement of suit, to submit their dispute to arbitration. Unlike executory agreements to arbitrate, submissions to arbitration under the supervision of admiralty or law courts apparently generated little or no antipathy from the judiciary. Note, The Consequences of a Broad Arbitration Clause Under the Federal Arbitration Act, 52 B.U.L.Rev. at 573. The Court in Farragut stated nevertheless that mistakes of “law” made by the arbitrators “could have been corrected in the court below, and can be corrected here.” Id. at 420. The Court then continued :
      The award was also liable . . . to be set aside . . . [f]or exceeding the power conferred by the submission, for manifest mistake of law, for fraud, and for all the reasons on which awards are set aside in courts of law and chancery.

        Id. Whatever the Farragut Court meant by “manifest mistake of law,” it did not expressly overrule the Court’s statement some two decades earlier that an arbitral award will not be set “aside for error, either in law or fact.” Burchell v. Marsh, 58 U.S. (17 How.) 344, 349, 15 L.Ed. 96 (1854). Even were we to read Farragut as permitting full scale review by admiralty courts of all questions of law decided in arbitration, Farragut was necessarily superseded on this point by the enactment of the Federal Arbitration Act in 1925 — absent whatever gloss was given it by Wilko, as modified by Bernhardt.

      . See note 12 supra.


author: PER CURIAM:

text:
    UNITED JEWISH ORGANIZATIONS OF WILLIAMSBURGH, INC., et al., Plaintiffs-Appellants, v. Malcolm WILSON et al., Defendants-Appellees, N.A.A.C.P. et al., Intervenors-Appellees.
    No. 1251, Docket 74-2037.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 16, 1974.
    Decided Aug. 23, 1974.
    Nathan Lewin, Washington, D. C. (Miller, Cassidy, Larroca & Lewin, Washington, D. C., Dennis Rapps, Brooklyn, N. Y., of counsel), for plaintiffs-appellants.
    George D. Zuckerman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, of counsel), for defendants-appellees Wilson, Ghezzi, Anderson and Duryea.
    Gerald W. Jones, Atty., Dept, of Justice, Washington, D. C. (David G. Trager, U. S. Atty. for the E. D. of N. Y., J. Stanley Pottinger, Asst. Atty. Gen., Walter Gorman and S. Michael Scadron, Attys., Dept, of Justice, Washington, D. C., of counsel), for defendant-appellee Saxbe.
    Irwin L. Herzog, Asst. Corp. Counsel for the City of New York, New York City, for defendant-appellee The Board of Elections of the City of New York.
    Eric Schnapper, New York City (Jack Greenberg, New York City, of counsel), for intervenors-appellees.
    Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District Judges.

       Of the Southern District of New York and the Central District of California, respectively, sitting by designation.

   PER CURIAM:

Having studied the papers and heard argument, the court concludes that the District Court’s order 377 F.Supp. 1164 denying the motion for a preliminary injunction should be, and it is, affirmed. In the interests of the parties and of others who may be affected, this ruling is issued today. An opinion will be filed hereafter discussing this determination and finally disposing of the appeal.

It is so ordered.


author: PER CURIAM.

text:
    In re Patrick LoCHIATTO, Appellant. In re Barbara LoCHIATTO, Appellant.
    Nos. 74-1230 and 74-1232.
    United States Court of Appeals, First Circuit.
    Heard July 25, 1974.
    Decided July 26, 1974.
    Henry D. Katz, Boston, Mass., for appellants.
    Joel M. Friedman, Sp. Atty., U. S. Dept, of Justice, with whom James N. Gabriel, U. S. Atty., and Gerald E. McDowell, Sp. Atty., U. S. Dept, of Justice, were on brief for appellee.
    Before McENTEE and CAMPBELL, Circuit Judges, and CAFFREY, District Judge.

       Chief Judge of the District of Massachusetts sitting as Circuit Judge by designation.

   PER CURIAM.

In this appeal appellants’ principal contention is that they were entitled to additional discovery, beyond that authorized in In re LoChiatto, 497 F.2d 803, (1st Cir. 1974), because a portion of a government affidavit indicates alleged failure to minimize use of wiretaps by the government. This contention is frivolous. The brief conversation about dinner relied upon by appellants, which came in the midst of other intercepted conversations relating to apparent criminal activities, in no meaningful way suggests a failure to minimize. The remaining issues raised by appellants are also without merit.

We reject appellants’ suggestion that the Supreme Court’s recent action reversing and remanding In re Marcus, 491 F.2d 901 (1st Cir. 1974), signifies and diminishment of LoChiatto as a controlling precedent in this circuit.

Affirmed.


text:
    Gregorio P. CASTRO v. The UNITED STATES.

    No. 310-68.
    United States Court of Claims.
    Oct. 23, 1974.
    William B. Nabors, Saipan, Mariana Islands, attorney of record, for plaintiff.
    Herbert Pittle, Washington, D. C., with whom was Asst. Atty. Gen., Wallace H. Johnson, for defendant.
    Before COWEN, Chief Judge, and NICHOLS, Judge.

       Editor’s Note: The decision in Saul Bass & Associates v. U. S., published in the advance sheets at this citation (500 F.2d 436) was withdrawn from the bound volume and will be republished.

   OPINION

PER CURIAM:

This case comes before the court on plaintiff’s motion, filed May 24, 1974, moving that the court adopt, as the basis for its judgment in this case, the recommended decision of Trial Judge Philip R. Miller, filed February 20, 1974, pursuant to Rule 134(h), defendant having failed to file a notice of intention to except thereto and the time for so filing pursuant to the Rules of the court having expired. Upon consideration thereof, without oral argument, since the court agrees with the decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is entitled to recover and judgment is entered for plaintiff in the sum of $1,100 plus an additional sum computed thereon at the rate of 4 percent per annum from September 1, 1957, to date of payment, as a part of just compensation.

OPINION OF TRIAL JUDGE

MILLER, Trial Judge: This is another suit for just compensation under the fifth amendment to the Constitution for the taking by the United States of land in Saipan, Mariana Islands. The taking here too is an outgrowth of events originating in World War II and continuing thereafter. The claim is with respect to land originally owned by Vincente D. de Castro, a native of Saipan, who died in 1946. The plaintiff, Gregorio P. Castro, is the decedent’s son and heir, and a citizen of the Trust Territory of the Pacific Islands.

Plaintiff claims compensation for defendant’s destruction of 800 coconut trees on property which he asserts consists of 5 hectares of land, described generally as lots 297, 299, 302 and 330, and for the loss of use and occupation of such land from 1944 to 1968.

From about 1914 to 1944 Saipan was under Japanese rule. It was invaded by the military forces of the United States on June 15, 1944 after a heavy 4-day bombardment. Organized resistance by the Japanese continued until July 9, 1944, when the island was declared “secure.” United States Military Government was established. on Saipan on June 19, 1944. From the inception, by proclamation the United States gave public assurance that “property rights will be respected and existing laws will remain in force and effect,” although the local people were put in protective custody in a fenced-in area for a 2-year period ending in July 1946. United States Military Forces occupied practically the entire island, stationing thereon up to 200,000 troops together with airstrips, fuel and ammunition dumps, warehouses, training areas and other related facilities, in preparation for the invasion of Japan.

As a result of the heavy fighting during and after the original landing and the reconstruction of the land areas to accommodate military needs, most public land office records including survey maps were lost, and nearly all of the individual monuments marking the corners of land parcels were displaced. Thus when the local people regained their freedom and new maps were drawn, it became necessary for them to file and prove claims to ownership of individual tracts. In December 1947 the Government of the Trust Territory of the Pacific Islands, administering Saipan under a delegation to the United States from the United Nations, reaffirmed “the guiding principle of land policy * * * to safeguard native land rights and land ownership” so far as possible so as to provide each family with land sufficient for adequate subsistence and assure community-wide access to land resources. It also stated “the policy of the United States that the owner or owners of private property required for public use shall be properly compensated for the loss of property taken.” Where it was necessary to retain privately owned land for Government purposes, it was deemed preferable to compensate the owner by exchanging other public land for' the property taken, but otherwise to pay cash compensation from the date of seizure. Rental at reasonable rates was also to be paid for temporary takings.

A land title office was set up to determine the validity of private claims to publicly occupied property, with an appeal from such determination available to the High Court of the Trust Territory.

After the end of World War II the United States Military Forces continued to occupy large portions of the island. However, it was not until about 1950 that the Department of Defense decided which areas of Saipan it wished to retain for military purposes. At that time it decided to keep approximately 5,000 hectares, of which 400 were in 137 separate privately owned tracts. Its program for acquisition contemplated offering to owners of such tracts exchanges of equivalent values in Trust Territory public land. In the exchanges the Trust Territory Government became the owner of the formerly private land and leased it to the Department of Defense, with the understanding that the latter would review its needs every 5 years and release unneeded land to the Trust Territory Government. In return the United States paid the Trust Territory Government at the rate of $40 per acre of retained land. (1 acre equals about 0.4 hectares.) The exchange program got under way in 1953, and eventually 723 hectares of public land were given for the 400 hectares of private land.

Prior to termination of Japanese rule plaintiff’s father, Vincente D. de Castro, owned at least 16 hectares of land in the Marpi area of Saipan, of which approximately 5 hectares were leased to a Japanese citizen named Kudaku Taru for 30 years beginning in 1924, with the rent having been received in advance. United States Military Forces occupied all 16 hectares of such land shortly after the invasion began in June 1944. It destroyed many coconut trees during the invasion, including the 800 which had been located on the land at issue.

As early as December 1944 Vincente D. de Castro, plaintiff’s predecessor, executed claim no. 129 asserting ownership of the 16 hectares of land and presented it to the military government. After Vincente’s death in 1946, no action having been taken on that claim, on February 21, 1948, Gregorio P. Castro, the 'plaintiff, executed a second declaration of land ownership for the same 16 hectares under claim no. 129 on behalf of the heirs of Vincente.

Prior to hearing on plaintiff’s claim, during 1951 the Area Property Custodian of the Trust Territory (later Alien Property Custodian) vested title to the portion purportedly leased to Kudaku Taru and other portions on the ground that they were owned by Japanese nationals. However, Gregorio P. Castro then being employed away from Saipan on a ship, on September 16, 1953, Sister Remedios de Castro, as representative of the heirs of Vincente, executed and filed a statement in further support of claim no. 129 reaffirming that all of the property had been owned by her late father Vincente and not Japanese nationals. After a hearing, at which the heirs of Vincente were represented by Sister Re-medios de Castro, in November 1953 the land title officer for the Saipan district issued determinations of ownership with respect to claim no. 129. He determined first that part of lot 305 and all of lot 317, which had in form been leased to Kudaku Taru for a 30-year term with compensation paid in advance and which consisted of approximately 5 hectares, was property owned by a Japanese national and therefore properly vested in the Area Property Custodian. He also determined that lots 303, 304, 314, 326, and the remainder of lot 305, consisting of about 11 hectares, were owned by the heirs of Vincente D. de Castro, but that they were not entitled to possession because it was “part of a U.S. Retention Area.” He made no determination with respect to lots 299, 302, and 330, also encompassed by claim no. 129. Following these determinations, plaintiff and his sister executed agreements and subsequently quitclaim deeds conveying lots 303, 304, 314, 326, and part of 305 to the Government of the Trust Territory, in return for which the latter transferred to the heirs of Vincente other lots from the public domain. In exchange for the 11 hectares the heirs received 33 hectares of public land.

Although in 1953 the United States did not seek to retain for military purposes the remaining lots in claim no. 129, it nevertheless excluded plaintiff from occupying or using such property until 1968. It stockpiled large quantities of ammunition in the Marpi area, where plaintiff’s lots were located, until 1949. Thereafter it initiated a program of controlled destruction of such unneeded ammunition, but an accidental explosion scattered large amounts of live projectiles, shells and grenades throughout the Marpi area, with the result that defendant found it necessary to bar civilian use or occupation of the region as hazardous for years thereafter. In 1951 the Department of Defense stationed in the Marpi area a military organization known as the Naval Technical Training Unit (NTTU). Although the nature of its operations is not disclosed by the record, NTTU continued to exclude civilian owners and it remained in possession until 1962. After NTTU left, the Marpi area remained closed to the local population, except by pass or permit, because of the continuing dangerous conditions caused by the unexploded ammunition left in the ground. It was not until September 20, 1968, that the land was declared cleared of live explosives and unrestricted use and occupancy of the property was permitted.

In December 1965 plaintiff and his sister brought suit in the Trial Division of the High Court for the Trust Territory seeking distribution of the estate of their father, Vincente. Plaintiff claimed that his father had owned approximately 16 hectares of land; that the land title officer had improperly determined that his father had disposed of 5 of the 16 hectares; and that the exchange of 11 hectares should be set aside as involuntary and unauthorized. The land title officer appeared by a Deputy Attorney General for the Trust Territory to object to the petition on the ground that the lands in question were not owned by the heirs of Vincente D. de Castro, because some of the lots had been sold to Japanese interests before the war and had been vested by the Area Property Custodian; that those lots which had not been vested were owned by the Trust Territory Government pursuant to the 1955-56 agreements and exchanges; and that to the extent there remained lots not covered expressly by the 1953 title determinations, such determinations by implication had found that the heirs of Vin-cente D. de Castro did not own those lots.

Although the distribution action would normally have been one exclusively between the heirs, the intervention by the land title officer to object that the lands were not owned by the heirs caused the court to rule that the action “involve [d] first a determination of whether the heirs or any of them were owners.” In a preliminary judgment entered March 27, 1968, it held, first, that the parties were bound by the land title officer’s prior determinations that the approximately 5 hectares were vested in the Area Property Custodian and that plaintiff owned but had no right to possession of the approximately 11 hectares retained by the Government for military purposes. It also held that in 1955 and 1956 plaintiff had voluntarily exchanged the 11 hectares for 33 hectares of public lands and that all other heirs acquiesced in the exchange. Accordingly it dismissed the petition with respect to all lots and house sites mentioned in the determinations and transfers. However, it held, there had been no determinations of ownership with respect to four remaining lots covered by the petition, numbered 297, 299, 302, and 330, and it reserved jurisdiction to adjudicate the petitioner’s claim for distribution of such lots in a subsequent trial. Neither the petitioner nor the land title officer appealed this decision to the Appellate Division of the High Court.

The question as to ownership of the four remaining lots was tried by the High Court in May 1968. A new Trust Territory Attorney General declined to take any further action in the suit on behalf of the land title officer and presented no evidence at this trial with respect to the four lots. By judgment order dated May 17, 1968 the Court then held that,' “As between the parties and all persons claiming under them, including all heirs of Vincente D. de Castro, the land known as lots 297, 299, 302 and 330 * * * are owned by the petitioner Gregorio P. Castro” free and clear of the claims of any other heirs; that absent any appeal, “this judgment shall operate to transfer to said Gregorio P. Castro, as his individual property, all right, title and interest which said Vincente D. de Castro had in said lands at the time of his death”; and that “the Land Title Officer * * * is requested to note this judgment in his records.” No appeal was taken by anyone from such judgment and the time has expired for any such appeal.

Defendant makes two major defenses to the plaintiff’s claims for just compensation. First, the action is barred by the statute of limitations, 28 U.S.C. § 2501, because the claim first accrued more than 6 years before the filing of the petition in this court on October 14, 1968. Second, plaintiff is not entitled to compensation for the destruction of the 800 coconut trees because they were destroyed during the invasion of Saipan by the United States Forces.

The second defense, although only partial, is clearly correct. The evidence confirms that the destruction of the coconut trees took place during the invasion of Saipan, and indeed plaintiff states that he agrees with defendant’s requested finding to that effect. It is well-established that destruction or loss of property in the course of wartime military operations or as an incident thereto does not give the owner a right to compensation under the fifth amendment. Thus, in United States v. Caltex, Inc., 344 U.S. 149, 73 S.Ct. 200, 97 L.Ed. 157 (1952), oil companies were denied compensation for the Army’s demolition of their petroleum stocks, oil terminals, storage facilities and warehouses in Manila, Philippine Islands, in December 1941, to preclude their takeover by the Japanese. In Juragua Iron Co. v. United States, 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520 (1909), recovery was denied to the U.S. owners of 66 factory and employees’ residential buildings which had been destroyed by American soldiers in the field in Cuba because it had been thought necessary to prevent the spread of yellow fever which might endanger the health of the troops. In Aris Gloves, Inc. v. United States, 420 F.2d 1386, 1391-1392, 190 Ct.Cl. 367, 375-377 (1970), an American corporation owning glove manufacturing plants liberated by the U. S. Army in East Germany, was denied compensation for the Government having turned the plants over to the Russians for dismantling and removal as a part of an agreement for the division of German territory in August 1945, on the ground that “The war power continues past the end of hostilities and into that period during which the evils which gave rise to the hostilities are sought to be remedied.” And see also American Manufacturers Mutual Insurance Co. v. United States, 453 F.2d 1380, 197 Ct.Cl. 99 (1972), and Franco-Italian Packing Co. v. United States, 128 F.Supp. 408, 130 Ct.Cl. 736 (1955).

Defendant’s statute of limitations defense with respect to the remainder of the claim is not equally meritorious. It is true that under 28 U.S.C. § 2501 the petition must be filed within 6 years of the time the claim first accrued. However, when a taking occurs over a period of time, the owner is entitled to wait until the full extent or duration of the taking becomes clear before the time for bringing suit for just compensation commences to run against him. As the Court stated in United States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 1385, 91 L.Ed. 1789 (1947), “[W]hen the Government chooses not to condemn land but to bring about a taking by a continuing process of physical events, the owner is not required to resort either to piecemeal or to premature litigation to ascertain the just compensation for what is really ‘taken’.” In Dickinson the Government built k dam which raised the level of the river behind it in successive stages over more than a 2-year period. The Court held that the limitations period on suit for compensation by one whose land was flooded did not start to run until the water reached its ultimate level. Since the taking was not by a single event, even if he could bring suit at an earlier stage the law did not bar the owner from waiting “until the consequences of inundation have so manifested themselves that a final account may be struck.” (331 U.S. at 749, 67 S.Ct. at 1385.)

The Dickinson rule has been applied by this court in other situations. In Sil-verberg v. United States, 155 Ct.Cl. 436 (1961), slaughterers brought suit June 1, 1951 for additional compensation for meat they were required to set aside and deliver to the armed services at wholesale prices, rather than in their own stores at higher retail prices, from 1943 to 1946. The court denied the Government’s motion to bar recovery for any deliveries prior to June 1, 1945, because if there was a taking it was by a continuous process. Until the set-aside order was terminated in October 1946 the plaintiffs had no way of determining how much meat would be requisitioned. No final account could be struck until ■the date of the last delivery, and it was unreasonable to require plaintiffs to bring multiple suits. Hence, the court held, plaintiffs were entitled to defer action until they knew how much of their property would be.taken pursuant to the set-aside order and then bring one suit for all of it. In Oro Fino Consolidated Mines, Inc. v. United States, 92 F.Supp. 1016, 118 Ct.Cl. 18 (1950), cert. denied, 341 U.S. 948, 71 S.Ct. 1015, 95 L.Ed. 1371 (1951), a suit filed in 1950, seeking just compensation for losses incurred from 1943 to 1945 as a result of a 1942 Government order prohibiting the mining of gold during the war, was held not to have been brought too late for recovery of 1943 and 1944 losses. The court reasoned that the order was a temporary measure and until it was revoked .in 1945 no one could know exactly what was taken. The same rule has been applied in eases involving avigation easement where the impairment of land use by overflights was progressive and its frequency and seriousness were not fully ascertainable until a period of years had elapsed. Avery v. United States, 330 F.2d 640, 165 Ct.Cl. 357, (1964); Aaron v. United States, 311 F.2d 798, 160 Ct.Cl. 295 (1963) and 340 F.2d 655, 167 Ct.Cl. 818 (1964), and Klein v. United States, 152 Ct.Cl. 221 (1961), cert. denied, 366 U.S. 936, 81 S.Ct. 1661, 6 L.Ed.2d 847 (1961). And see also Terteling v. United States, 334 F.2d 250, 167 Ct.Cl. 331 (1964), involving a claim for damages arising from a continuing breach of contract.

The facts here also reflect a taking of uncertain extent and duration. The four lots at issue were initially occupied by the United States as a part of its wartime invasion and occupation of the entire island. The initial proclamation of the invading force in 1944 stated that private property rights would be respected. In 1947 the stated policy of the United States and Trust Territory Governments was to safeguard native land rights and land ownership, to return land not needed for military or other governmental purposes and to pay compensation for land taken or rent for land occupied by governmental authorities. After the war the local people were encouraged to file land claims for return of their property, and unless the United States designated a particular tract as necessary for retention by it for military purposes, it was to be returned to the claimant. By 1950 the Department of Defense had decided to so designate only 400 hectares of privately-owned property. In 1953 when plaintiff’s claims to the entire 16 hectares were up for determination of ownership, the United States designated some of the lots as military retention areas but did not include the four lots at issue. While defendant continued to exclude the owners of lots in the Marpi region from occupancy, first because of the ammunition dumps in the area, then because of the stationing of the NTTU in the area, and finally because of the hazards attributable to live explosives buried in the soil, there was never a designation of the four lots for permanent military retention, and plaintiff had no way of knowing the duration of its exclusion from occupancy. When in 1968 the owners of Marpi region lands were permitted to return to their property, it was finally possible to compute the extent and duration of the taking. It was then that a final account could be stated. Under the rule set out by the Supreme Court in Dickinson plaintiff was not obligated to bring multiple piece-meal suits to compensate him for the loss of occupancy prior to 1968. He could wait until the property was returned to him by defendant in 1968 before he brought suit in this court.

Defendant raises another partial defense that neither plaintiff nor his predecessor owns or owned lot 297. The evidence shows that plaintiff never claimed title to lot 297 either in the claim filed with the land title officer or in the petition for distribution of the property in Civil Action No. 158. Defendant asserts that the High Court decision adjudicating his title to lot 297 among the four lots was an error by the Court in copying figures.

The pretrial order and the two judgments of the High Court reflect confusion in the numbering system for the various lots. Apparently there were two overlapping numbering systems on the maps. The pretrial order shows that the land title officer who objected to plaintiff’s claims of title asserted that eight of the lot numbers in the petition were numbers for farm-house sites included in other lots. Among these, he stated, lote 299 was a farm-house site on lot 297. In its preliminary judgment order of March 27, 1968, dismissing the action with respect to lots owned by or transferred to the Government by plaintiff, the court listed both lot numbers and farm-house site numbers included therein without differentiation. Apparently the judgment order gave similar treatment with respect to lots and house sites not dismissed. It appears that the High Court reached its decision that plaintiff owned lot 297 as a concomitant of its decision with respect to house site 299. Since the record in that action was not available and defendant offered no evidence that the court had inadvertently erred in the figures, there is no basis for any contrary inference.

The Trust Territory Code (1970) provides :

Title 5 § 53. Original jurisdiction of Trial Division. The Trial Division of the High Court shall have original jurisdiction to try all causes, civil and criminal, including probate, admiralty, and maritime matters and the adjudication of title to land or any interest therein.
* -X- * -X- -X- -X-
Title 8 § 2. Judgments affecting land. A judgment adjudicating an interest in land shall, after the time for appeal therefrom has expired without notice of appeal being filed * * * operate to release or transfer any interest in land in accordance with the terms of the judgment, when a copy thereof, certified by the Clerk of Courts, or any judge of the court, is recorded in the office of the Clerk of Courts for the district in which the land lies.

Since no appeal to the Appellate Division of the High Court was filed by the land title officer, such judgment is now final.

In adjudicating the liability of the United States for compensation for the taking of property this court is not bound by the decision of a local trial court as to ownership of the property which was not appealed by any party. See Commissioner v. Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967); Julian J. Studley, Inc. v. Gulf Oil Corp., 425 F.2d 947 (2d Cir. 1969). However, in the peculiar circumstances of this case, where proof of title to property must rely on local administrative and judicial determinations because other records are not available, and because defendant has offered no contrary testimohy and there is no other claimant to compensation for the occupancy by defendant, the decision of the Trial Division of the High Court is evidence of ownership which should not be disregarded. See Commissioner v. Bosch, su pra, 387 U.S. at 465, 87 S.Ct. 1776; Pa-oletto v. Beech Aircraft Corp., 464 F.2d 976, 979, n. 4. (3d Cir. 1972).

Finally, whether the designation lot 297 covers a lot or a house lot, or is a misdesignation for some other lot, the stipulation of the parties that the reasonable value of the use and occupancy of all four lots by the United States was $50 per year would seem to be binding in any event.

Accordingly, solely for purposes of the issues in this case, absent other proof in the record it is concluded that a reasonable time for the termination of defendant’s wartime and necessary postwar occupancy of plaintiff’s land as a part of its military operations was September 1946. Defendant is therefore liable to plaintiff for the taking of use and occupancy of the four lots at issue for a period of 22 years at the rate of $50 per year, or an aggregate of $1,100. Plaintiff is also entitled to an additional sum computed at 4 percent per annum, to compensate for delay in payment, as part of just compensation. For the sake of convenience such additional sum (commonly called interest) is to run from approximately the midpoint of the period of taking, i. e., September 1957, to date of payment. See Drakes Bay Land Co. v. United States, 459 F.2d 504, 511-512, 198 Ct.Cl. 506, 520-521 (1972); Eyherabide v. United States, 345 F.2d 565, 571, 170 Ct.Cl. 598, 608 (1965); Fonalledes v. United States, 107 F.Supp. 1019, 1022-1023, 123 Ct.Cl. 483, 503-504 (1952).

FINDINGS OF FACT

1. Plaintiff is a resident of Saipan, Mariana Islands and a citizen of the Trust Territory of the Pacific Islands.

2. Plaintiff filed the petition in this action on October 14, 1968. He claims just compensation for defendant’s deprivation of his use and occupancy from 1944 to.1968 of approximately 5 hectares of land on Saipan, described generally as lots 297, 299, 302 and 330, and for the destruction of 800 coconut trees thereon.

3. From approximately 1914 to 1944 Saipan was under Japanese rule, for most of such period under authority of a mandate from the League of Nations. Saipan was invaded by the military forces of the United States on June 15, 1944 after a heavy 4-day bonbardment. Organized resistance by the Japanese continued until July 9, 1944, when the island was declared “secured.” Military government was established on Saipan on June 19, 1944. Proclamation No. 1, issued on that date by Admiral C. W. Nimitz, United States Navy Commander in Chief, United States Pacific Fleet and Pacific Ocean Areas, Military Governor of the Mariana Islands, set forth the assurance that “property rights will be respected and existing laws will remain in force and effect” except insofar as specifically changed. However, the local people were put in protective custody in a fenced-in area where they remained until July 1946, a period of 2 years, except for work details under guard.

4. As a result of the heavy fighting all of the public land officer records, including the survey maps, were lost. Furthermore, this relatively small island with a native population of 3,500 plus 15.000 Japanese civilians at the start of World War II was almost totally reconstructed by the bulldozers of American military engineers who covered the island with paved roads, airstrips, fuel and ammunition dumps, warehouses, pipelines, power lines, military quarters and training areas to accommodate up to 200.000 troops, in preparation for the invasion of Japan. Nearly all of the individual monuments which marked the corners of land parcels were missing. The American Military Government was able to piece together enough parts of Japanese cadastral maps of Saipan to cover the entire island; but while this located a land parcel with respect to adjoining parcels, it was not accurate enough to retrace prewar boundaries, lot and block numbers, or ownership.’ Thus when the local people regained their freedom the new maps were drawn, it became necessary for them to file claims to ownership of individual tracts, with very few having any documents to prove ownership.

5. In 1947 the United States and the United Nations agreed to a trusteeship for the former Japanese-mandated Pacific Islands with the United States as the administering authority. (61 Stat. 3301 and 397.) Military government on Saipan ended on July 18, 1947, when the Joint Resolution of the United States Congress approving the trusteeship went into effect. By Executive Order 9875 of July 18, 1947, 3 C.F.R. 1943-1948 comp., at 658, responsibility for civil administration of the Trust Territory was initially delegated to the Secretary of the Navy on an interim basis, who on the same day delegated it to a High Commissioner. (Trust Territory Code, at xviii-xxi (1952 ed.).)

6. On December 29, 1947, the Deputy High Commissioner, Trust Territory of the Pacific Islands, issued Trust Territory Policy Letter, P-1, prescribing land policy to be followed in the administration of the Trust Territory, including Saipan, and setting guidelines with respect to the determination of the validity of prewar land transfers. It stated in part:

5. The guiding principle of land policy is to safeguard native land rights and land ownership; and so far as possible, to provide each family with land sufficient for adequate subsistence, and to assure community-wide access to essential land resources. ******
14. Public interest during the war and the immediate post war period require seizure of private property, and in some cases the construction of military and government establishments thereon. Occupation of private property without compensation to lawful owners still continues in some localities. This condition must be rectified as soon as possible, for it is the policy of the United States that the owner or owners of private property required for public use shall be properly compensated for the loss of property taken.
■x x * * * *
17. When it is necessary to retain privately owned land for government purposes, it is preferable from all points of view that the owner or owners, including those holding remainder or reversionary rights, be compensated by award of title to other land, rather than by cash payment. Government owned land, including public domain, may be used for this purpose, after determination of the extent of the government interest and of any private interests remaining therein, if an agreement fair to the former owner and to the government can be reached. When such an agreement cannot be effected, cash compensation from date of seizure is in order. Civil administrators are authorized to initiate payments of rental, at reasonable rates, for land occupied by civil government activities.

7. After World War II United States Military Forces continued to occupy large areas of the island. However, it was not until about 1950 that the Department of Defense decided which areas of Saipan it wished to keep as military retention areas. It retained approximately 5,000 hectares, of which 400 were in 137 separate privately owned tracts. Such owners were offered exchanges of equivalent values in public land for their privately owned tracts.

In the exchanges the Trust Territory Government became the owner of the formerly private land and leased it to the United States Department of Defense, with the further understanding that the Department of Defense would review its needs every 5 years and release unneeded land to the Trust Territory Government. In return the United States Government paid the Trust Territory Government at the rate of $40 per acre of retained land. (One acre equals 0.4 hectares.) The exchange program got under way in 1953, and eventually 723 hectares of public land were given for the 400 hectares of private land.

8. Trust Territory Office of Land Management Regulation No. 1, originally issued January 11, 1951, provided for the filing of a claim by every person claiming an interest in land used or occupied by the United States. A title officer was authorized in each district to determine, after due notice and hearing in accordance with the regulation, the ownership of any tract of land in the district which was used, occupied or controlled by the Government, and to appraise, evaluate and recommend for settlement any claim for damage, rent or alienation resulting from such use or occupation. Notice of all hearings was to be posted publicly and to be given to all parties of record. Provision was also made for appeal from the land title officer’s determination to the Trial Division of the High Court of the Trust Territory.

9. By Executive Order 10265 dated June 29, 1951, 3 C.F.R. 1949-1953 comp., at 766, effective July 1, 1951, administration of the Trust Territory was transferred from the Secretary of the Navy to the Secretary of the Interior. In the exercise of such authority, by Department of Interior Order No. 2658, dated August 29, 1951, the Secretary provided that the interim regulations of the Trust Territory in effect on July 1, 1951, were to remain in effect until changed and he vested the “executive” authority of the Government of the Trust Territory in the High Commissioner. On June 29, 1953 the High Commissioner substantially readopted Office of Land Management Regulation No. 1.

10. Prior to the start of World War II plaintiff’s father, Vincente D. de Castro (now deceased), owned at least 16 hectares of land in the Marpi area of Saipan, of which approximately 5 hectares were leased to a Japanese citizen named Kudaku Taru.

11. All of such land was occupied by United States Military Forces during the invasion of Saipan, commencing June 15, 1944. Many coconut trees were destroyed during the invasion, of which 800 had been located on the land at issue.

12. On December 19, 1944, Vincente D. de Castro, plaintiff’s predecessor, executed claim No 129 asserting ownership of the 16 hectares of land and presented it to the military government which was then commencing reconstruction of the land record of Saipan. Vin-cente having died in 1946 and no action having been taken on that claim during his lifetime, on February 21, 1948, Gregorio P. Castro, the plaintiff and son of Vincente, executed a second declaration of land ownership for the same 16 hectares under claim No. 129 on behalf of the heirs of Vincente.

13. Prior to hearing on plaintiff’s claim, at some time during 1951 the Area Property Custodian of the Trust Territory (later Alien Property Custodian) vested title to portions of the property on the ground that they were owned by Japanese nationals. However, Gregorio P. Castro then being employed on a ship away from Saipan, on September 16, 1953 Sister Remedios de Castro, as representative of the heirs of Vin-cente D. de Castro, executed and filed a statement in support of claim No. 129, reaffirming that all of the property had been owned by her late father, Vincente, and that the Japanese nationals had been lessees and not owners.

14. After a hearing in October 1953, Castro were represented by Sister Reme-at which the heirs of Vincente D. de dios de Castro, in November 1953 the land title officer for the Saipan district issued determinations of ownership Nos. 740, 741 and 742 with respect to claim No. 129. In determination No. 740 he ruled that part of lot 305 and all of lot 317, which had in form been leased to Kudaku Taru for a 30-year term beginning in 1924 for which the compensation was paid in advance, and which consisted of approximately 5 hectares, was property owned by a Japanese national vested in the Area Property Custodian. In determinations Nos. 741 and 742 with respect to lots 303, 304, 314, 326 and the remainder of lot 305, consisting of about 11 hectares, he ruled that they were owned by the heirs of Vincente D. de Castro but they were not entitled to possession because it was “part of a U. S. Retention Area.” He made no determination with respect to lots 299, 302 and 330, also encompassed by claim No. 129.

15. In December 1955, both Sister Remedios de Castro and Gregorio P. Castro executed agreements to exchange lots 303, 304, 314, 326 and part of lot 305, consisting of 11 hectares, for other lands which had been offered to them by the Government of the Trust Territory of the Pacific Islands. In April and May 1956, Sister Remedios de Castro on behalf of the heirs of Vincente D. de Castro executed a quitclaim deed conveying to the Government of the Trust Territory lots 303, 304, 314, 326 and part of lot 305. In return, in April 1956, the Trust Territory Government executed grants of portions of the public domain of the Trust Territory to the heirs of Vincente D. de Castro in accordance with the agreements to exchange lands. For the 11 hectares they received 33 hectares of other land.

16. Although the United States did not claim the remaining portions of the land in claim No. 129 as a military retention area, it prevented plaintiff from occupying or using such property until 1968. It stockpiled ammunition in the Marpi area of Saipan, where plaintiff’s land was located, until 1949. It then initiated a program of planned destruction of such ammunition, but an uncontrolled explosion of unexpectedly large proportions at an ammunition dump in the spring of that year scattered live projectiles, shells and grenades throughout the Marpi area, and thereafter defendant barred use or occupation of the region as hazardous. In 1951 the United States used the area for the restricted operations of a military organization known as the Naval Technical Training Unit (NTTU), which remained there until 1962. After NTTU, left, the Marpi area remained closed because of the dangerous conditions and entry was not allowed except by pass or permit. It was not until September 20, 1968, that the land was declared cleared of live explosives and unrestricted use and occupancy of property was permitted.

17. In December 1965 in Civil Action No. 158, Remedios P. Castro, daughter, filed a petition in the Trial Division of the High Court for the Trust Territory, seeking distribution of the estate of Vincente D. de Castro to his son, Gregorio P. Castro, as legal heir. In 1967 Gregorio was substituted as petitioner. Gregorio claimed that his father had owned approximately 16 hectares; that in 1948 he had filed claim No. 129 for such property; that in 1953 the Land and Claim Office had improperly determined that his father had sold 5 of the 16 hectares; and that the exchange of the 11 hectares should be set aside as involuntary and unauthorized. He listed the lot numbers involved as 302-307, 313-317, 325, 326, 329, 330, 360, and 1299. (The court found that there was no lot 1299 in the Marpi area and treated the reference as 299.)

The land title officer, by a Deputy Attorney General for the Trust Territory, entered an appearance in such action to object to the petition on the ground that the lands enumerated therein were not owned by heirs of Vincente D. de Castro. He asserted that the decedent had disposed of some of the lots to Japanese interests before the war and that they had become vested in the Area Property Custodian; that those lots which had not been vested were owned by the Trust Territory Government pursuant to the exchange agreements and transfers thereunder whereby the petitioner had acquired 33 hectares of other land for the aforesaid 11 hectares; and that to the extent any of the lots were not covered by the title determinations in 1953, such determinations amounted in effect to a determination that the heirs of Vin-cente D. de Castro did not own such land.

18. On March 27, 1968 the Trial Division of the High Court entered a preliminary judgment in such action. In the judgment order the Court noted that, although the action would normally have been one primarily between the heirs, the objection by the land title officer that the lands were not owned by the heirs caused the action “to involve first a determination of whether the heirs or any of them were owners.” It ruled that the parties were bound by the land title officer’s determination of ownership No. 740 with respect to the vesting of two of the lots in the public domain and by determinations of ownership Nos. 741 and 742 which had denied possession of various other lots to the plaintiff because they had been retained for military purposes. It also found that in 1955 and 1956 plaintiff had voluntarily exchanged the property covered in determination Nos. 741 and 742 for 33 hectares of other property, and that this was acquiesced in by all other heirs. Accordingly the Court dismissed the action with respect to lots and house sites Nos. 303-307, 313-317, 325, 326, 329, and 360. To this extent it sustained the position of the objector, the land title officer. It held, however, that there had been no determination of ownership with respect to lots 297, 299, 302 and 330, and it reserved jurisdiction to adjudicate the petitioner’s claim for distribution of such lots in a subsequent trial. To that extent it denied the land title officer’s motion to dismiss. The land title officer did not appeal this decision to the Appellate Division of the High Court.

In May 1968 the Trial Division of the High Court held another hearing with respect to ownership of lots 297, 299, 302 and 330. On this occasion, a new Attorney General having taken office, he declined to take any further action on behalf of the land title officer as an objector and presented no evidence with respect to the four lots. By judgment order dated May 17, 1968 the Court then held that, “As between the parties and all persons claiming under them, including all heirs of Vincente D. de Castro, the land known as lots 297, 299, 302 and 330 * * * are owned by the petitioner Gregorio P. Castro” free and clear of the claims of any other heirs; that absent any appeal, “this judgment shall operate to transfer to said Gregorio P. Castro, as his individual property, all right, title and interest which said Vincente D. de Castro has in and to said lands at the time of his death”; and that “the Land Title Officer * * "x" is requested to note this judgment in his records.” No appeal was taken by anyone from such judgment and the time has expired for any such appeal.

19. Lot 297 does not appear as a part of any claim No. 129 filed either by the plaintiff, his predecessor or his sister. Nor does it appear in the petition for distribution in civil action No. 158. The first mention thereof is in a pretrial order in that action wherein the land title officer stated that lot 299 claimed by petitioner was actually only a farm-house site number included in lot 297. Neither of the judgment orders explained how it arrived at the determination that plaintiff owns lot 297. This record in Civil Action No. 158 was not placed in evidence in this case.

20. Plaintiff was unable to obtain any independent evidence of the value of the property claimed to have been taken by the United States. Accordingly he agreed at trial to such evidence of value as the defendant would have offered. It was stipulated that if there was any taking by the United States the reasonable value of the use and occupancy of all four lots by the United States from 1944 to 1966 was $50 per year and that value of approximately 800 coconut trees on such property which had been destroyed was $5 per tree.

CONCLUSION OF LAW .

Based upon the foregoing findings of fact and conclusions of law, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover $1,100, plus an additional sum computed at the rate of 4 percent per annum from September 1, 1957 to date of payment, as a part of just compensation.

      . See Camacho v. United States, 495 F.2d 1363, 204 Ct.Cl. 248 (1974).

      . The record is confusing as to how plaintiff could have retained ownership of any lots at all if his original claim was correct. He claimed 16 hectares, but the Area Property Custodian vested 5 hectares and plaintiff exchanged 11 more with the Trust Territory Government. Nevertheless, neither the land title officer, the High Court, nor defendant disputes that three or four additional lots remained. The explanation may well be that because of the loss of the original Japanese land surveys, plaintiff was mistaken in believing that his father’s land measured only 16 hectares. The stipulation that the value of the use and occupancy of the four lots was $50 per year is not conditioned upon the lots measuring up to any particular size.