The opinion of the court was delivered by: LAWS
In this suit intervener plaintiff seeks to recover an interest in property vested by the Alien Property Custodian in 1942 under provisions of the Trading with the Enemy Act of 1917, 40 Stat. 411, as amended by the First War Powers Act of 1941, 55 Stat. 839, 50 U.S.C.A.Appendix, § 5(b). At a former trial, in which plaintiff Uebersee sought to recover the property itself, this Court found that the enemy taint of plaintiff barred recovery. Uebersee Finanz-Korporation, A.G. v. Clark, D.C., 82 F.Supp. 602. Judgment was affirmed by the United States Court of Appeals for the District of Columbia Circuit, Uebersee Finanz-Korporation, A.G. v. McGrath, 89 U.S.App.D.C. 167, 196 F.2d 557, and by the Supreme Court of the United States, 343 U.S. 205, 72 S. Ct. 618, 96 L. Ed. 888. The same day the Supreme Court decided plaintiff's case, it also decided in another case that when the Government seizes assets of a corporation organized under the laws of a neutral country, the rights of innocent stockholders to an interest in the assets proportionate to their stockholdings must be fully protected. Kaufman v. Societe Internationale Pour Participations Industrielles et Commerciales, S.A., 1952, 343 U.S. 156, 72 S. Ct. 611, 96 L. Ed. 853. The Supreme Court accordingly remanded this case for consideration of any application that might be made on behalf of intervener plaintiff Fritz von Opel, the legal owner of 97% of the corporation's stock.
At the instance of the parties, the Court before trial ruled on several motions pertaining to the scope of inquiry at this trial. It held that its previous findings and conclusions entered at the trial of plaintiff's case would control in the present suit as to all issues framed, without prejudice to the right of either party to offer additional evidence supplemental to, but not contradictory of, such determinations. D.C., 121 F.Supp. 420. It also held that the interest recoverable, if any, must be determined by the law of Germany, where Fritz von Opel obtained legal title to plaintiff corporation under a gift agreement, rather than the law of Switzerland, where plaintiff was incorporated. D.C., 127 F.Supp. 42.
In ruling on the question of res judicata, 121 F.Supp. 420, the Court determined the issues in this trial to be as follows: (1) enemy status; (2) enemy taint; and (3) the value of Fritz von Opel's severable interest.
Enemy status is defined by Section 2 of the Trading with the Enemy Act of 1917, which provides, so far as pertinent to this suit:
'The word 'enemy,' as used herein, shall be deemed to mean, for the purposes of such trading and of this Act --
'(a) Any individual * * *, of any nationality, resident within the territory * * * of any nation with which the United States is at war, or resident outside the United States and doing business within such territory * * *' 50 U.S.C.A.Appendix, § 2.
Residence or doing business in a hostile territory, and not nationality, is the test of enemy status. Section 39 of the Act provides:
'No property or interest therein of Germany, Japan, or any national of either such county vested in or transferred to any officer or agency of the Government * * * shall be returned to former owners thereof or their successors in interest * * *.' 50 U.S.C.A.Appendix, § 39.
As interpreted by the Supreme Court, Section 39 applies only to those German nationals who are also 'enemies' under the Act. Guessefeldt v. McGrath, 1952, 342 U.S. 308, 72 S. Ct. 338, 96 L. Ed. 342.
Fritz von Open was not a resident within enemy territory under the first part of Section 2(a). As this Court found at the first trial, he never resided in Germany after December, 1929, but lived successively in the United States, Belgium and Switzerland; in 1934 he became a Swiss domiciliary. The question under enemy status is therefore whether he was a 'resident outside the United States and doing business within such (hostile) territory'.
The evidence as to residence is that Fritz von Opel entered the United States in May, 1940, on a six months' visitor's visa to attend to his investments in this country. The visa was extended for additional periods of six months at a time until February, 1942, shortly after the United States entered the war, when he was interned. He remained in custody until the end of the war, and was permitted to depart voluntarily in 1950. He was never admitted to the United States for permanent residence. There is no indication that he established any abode in this country. He stayed variously in New York, New Jersey, Miami Beach and Palm Beach, Florida, and elsewhere in the South before he was interned. The period of his internment is without significance, since involuntary detention or physical constraint does not constitute residence within the meaning of the Act. Guessefeldt v. McGrath, supra, and cases cited.
In connection with the question of residence, the Court will consider what were Fritz von Opel's activities, associations, statements, ties and sympathies as throwing light on where the family hearth was centered. See District of Columbia v. Murphy, 1941, 314 U.S. 441, 62 S. Ct. 303, 86 L. Ed. 329; Kirstensen v. McGrath, 1949, 86 U.S.App.D.C. 48, 179 F.2d 796, affirmed 340 U.S. 162, 71 S. Ct. 224, 95 L. Ed. 173; McGrath v. Zander, 1949, 85 U.S.App.D.C. 334, 177 F.2d 649; Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732, 45 A.L.R. 895; Ruoff v. Brownell, D.C.D.C.1953, 14 F.R.D. 371. Although a native of Germany, by establishing his domicile in Switzerland he had been able to avoid German foreign exchange restrictions. Between December, 1930, and August, 1939, he went to Germany for short visits totalling about ten per cent of the time, principally in connection with his father's financial investments and to participate in sporting events. When war came to Europe in September, 1939, he undertook negotiations to acquire neutral citizenship. In November, 1939, he became a naturalized citizen of Liechtenstein upon payment of approximately $ 10,000, although the only time he had ever been there was when he was traveling through it. He never took an oath of allegiance to the principality. Statements made and acts performed by him after he was naturalized indicate a continued interest in the welfare of and sympathy for Germany. This Court previously found such attachment to and sympathy for Germany in deciding the question of Uebersee's enemy taint. Fritz von Opel's naturalization by Liechtenstein clearly appears to have been a citizenship of convenience. There was no more attachment, patriotism, sentiment, interest or loyalty to this principality than there was to Haiti or Panama, whose citizenship he had earlier considered acquiring.
Evidence was adduced that Fritz von Opel was not a vigorous supporter of the National Socialist regime in Germany, insofar as it conflicted with his concern to protect his financial investments and his personal safety. While he had been a non-commissioned officer of the German Army at the end of the First World War, he was able to avoid military service in the Second World War. He resented fines levied upon his father and upon his sister for violation of currency regulations. However, there was also evidence that he was friendly socially with persons prominent in the German Government and that he took pride in the prowess of the German Army and extended his aid to the German Government in the early days of the Second World War. There is no showing that his leaving Switzerland was other than temporary, that his ties remained elsewhere than in Switzerland and Germany, that such interest as he had in the United States was other than financial or that any bonds of affection or sentiment attached him to the United States.
The Court finds that since Fritz von Opel was merely present in this country during the war as a visitor, transient or sojourner, with no fixed or settled abode in this country, he was not a resident of the United States within the meaning of the Trading with the Enemy Act. Guessefeldt v. McGrath, supra.
Defendant introduced evidence to prove that after December 13, 1941, Fritz von Opel did business in Hungary, then an enemy, through an agent to whom he had delegated powers of attorney. At the first trial of the case, the Court found that Uebersee owned all the stock of Transdanubia Bauxite, A.G., a Hungarian corporation engaged in mining bauxite, an essential ingredient in the production of aluminum. Uebersee in 1939 and 1940 had guaranteed a loan by a Swiss bank to Transdanubia which was repaid in November, 1942. In November, 1939, after war broke out in Europe, Fritz von Opel went to Hungary to speed the production of bauxite in response to a request from Giulini Bros. of Germany to 'do meritorious service for the raw material supply of the German aluminum industry and the entire war economy of Germany * * *.' During October, November and December, 1941, Transdanubia shipped bauxite to Germany under a contract extending to the end of 1942.
Evidence was received that Fritz von Opel actively managed and directed the policies and affairs of Transdanubia. In addition to trips to Hungary between 1935 and 1939, he appointed a Dr. Salusinszky, of Budapest, Hungary, to manage Transdanubia's affairs and keep him informed as to operations and legal matters. After the death of Dr. Salusinszky in 1939, upon request von Opel gave to a Dr. Timar powers of attorney theretofore exercised by Dr. Salusinszky in dealing with individuals as well as public authorities and signing his name for Transdanubia. Dr. Timar thereafter acted in the same capacity as had Dr. Salusinszky. After an agreement with Giulini Bros. in 1940, a joint representative was made responsible to the Hungarian Government for the operations.
Transdanubia shipped bauxite to Germany during December, 1941, at or about the same time the United States was at war with Germany and Hungary. It is a fair inference it continued to supply war materials to the enemy during the war, since the contract called for production until the end of 1942. Transdanubia was able to pay off its loan in November, 1942. There is no indication that the operations were thereafter abandoned or that Uebersee ever took affirmative steps to sever its relations with Transdanubia. There is likewise no evidence that the powers of attorney granted to Dr. Timar were revoked.
Contributing to the resources of the enemy through supervising and encouraging the production of essential war materials in one enemy country, for shipment to another enemy country, constitutes the doing of business in enemy territory within the meaning of Section 2(a) of the Act. The activities of Dr. Timar as agent under powers of attorney given him by Fritz von Opel are attributable to the latter. Fritz von Opel's personal participation in spurring the production of bauxite after the outbreak of war in Europe, his close relation to the activities of Transdanubia, and his strong personal interest in ...