has technical status as a citizen of Liechtenstein, and for the purposes of this suit, it may be conceded his citizenship in that country is not open to collateral attack. But where, as in this case, the vested property is found to be owned by different parties, some of whom clearly are enemies and the sole remaining one of whom is a neutral, it seems proper in a determination of enemy taint of the property, to inquire into possible enemy tendencies of the neutral.
Fritz von Opel was born in Germany in 1899 and until 1929 lived in that country, together with his family, who were prominent industrialists known not only in Germany but in other parts of the world. Fritz von Opel achieved widespread distinction in sports in Germany and participated in its behalf in international events. While after 1929 he spent a large part of his time out of Germany, his roots remained firmly planted in that country. It was not until November of 1939, after World War II had begun, that Fritz von Opel took any steps to change his citizenship. At that time, he went through proceedings to become a naturalized citizen of the principality of Liechtenstein. He paid $ 10,000 to obtain this citizenship and signed certain formal documents. However, he never has been in Liechtenstein more than a few hours at any one time; his visits have been few and in each instance of short duration; and he has never established a place of abode there. He never has taken an oath of allegiance to Liechtenstein or formally renounced citizenship in Germany. In technical form Fritz von Opel is a citizen of a neutral country, but I find beyond doubt that between 1939, when he became a naturalized citizen of Liechtenstein, and 1941, when war was declared by the United States, he had a continued interest in the welfare of and sympathy for Germany.
There is an additional circumstance in this case which of itself perhaps would not prevent recovery by plaintiff in this suit, but which with the other facts of the case tends to indicate enemy taint. The evidence shows that plaintiff at all material times in this suit owned complete stock interest in Transdanubia Bauxite, A.G., a mining corporation in Hungary. On December 13, 1941, Hungary formally became an enemy of the United States. Transdanubia Bauxite, A.G., mined bauxite, an essential ingredient in the production of aluminum. Before the war, it is clear that part of the output was shipped to Germany. There is evidence tending to show also that Transdanubia shipped bauxite to Germany during December, 1941, at or about the time of the declaration of war between Hungary and the United States. In November, 1939, Fritz von Opel, in response to a letter from Giulini Brothers, of Germany, requesting his service in getting the production in the mines resumed, went to Hungary 'to speed up production in the bauxite mine.' The letter to Fritz von Opel stated in part, 'you would do meritorious service for the raw material supply of the German aluminum industry and the entire war economy of Germany if you would tackle with all your energy the resumption of production in the mines.' In addition, during 1939 plaintiff guaranteed a loan of 32,000 Swiss Francs ($ 7,000) to Transdanubia Bauxite, A.G., which loan was extended at quarterly periods until November 17, 1942, when plaintiff was advised that its collateral had been released. While it is true there is no showing that plaintiff executed any control over its subsidiary after December 1941, it appears plaintiff never took affirmative steps to sever its relations with Transdanubia. Thus plaintiff had an interest in and an association with an enemy corporation during World War II which apparently supplied war materials to the enemies of the United States.
From what has been stated, it would be difficult in my opinion to find a stronger case of enemy taint in vested property short of full ownership by an enemy than exists in this case. The neutral aspect of ownership in the property is insignificant and it seems to me the plain intent of the Trading with the Enemy Act would be defeated by ordering a return of the vested securities.
During the oral argument of this case, while counsel for the defendant was presenting his contentions with regard to the claim of existence in favor of Wilhelm and Marta von Opel of a usufructuary interest in the vested properties, plaintiff's counsel interrupted to suggest that granting the Court should find such interest existed at the time of vesting, nevertheless since Fritz von Opel, a neutral, had a well defined separate interest which might be determined by the Court, he would be entitled to recover to the extent of such interest. This point was enlarged by one of plaintiff's counsel in his rebuttal argument. No such claim is made by the pleadings. This point was enlarged by one of plaintiff's counsel in his rebuttal argument. No such claim is made by the pleadings. This suit was not brought by Fritz von Opel upon a claim of division of interests which he held together with his parents, but was brought by a corporation of Switzerland which claimed to be entitled to a return of the vested American securities, based upon a claim that Wilhelm and Marta von Opel held no interest 'directly or indirectly, in whole or in part,' in the properties. At the time the case was pre-tried, when the parties were called upon to state the issues to be litigated and to make any amendments of the pleadings necessary to present new issues, it was agreed the action was to recover property belonging to plaintiff corporation in which there was no enemy interest. Without consent of the defendant, the Court should not at this late time adjudicate an issue where the interest sought to be established is different from that set forth in the pleadings and where the party plaintiff also is different. Defendant well may desire to present other factual information and develop legal arguments which only partially have been made in this case.
Judgment will be entered dismissing plaintiff's suit.