States carriers or diversion to another country on Government orders. Waterman kept the Government fully aware of what it was doing, knowing that the Government enjoyed far superior knowledge with respect to the potential course of events in Vietnam. Under these circumstances, it was an exercise of reasoned judgment on Waterman's part to continue to issue bills of lading with respect to Saigon-bound cargo until it knew with certainty that Saigon would shortly surrender to the Communist forces.
The Government characterizes this course of conduct as lacking in reasoned judgment and perhaps as even bordering on fraud, insisting that Ryan had a duty explicitly to request his Government sources to make predictions and himself to make a definite prognosis from day-to-day as to whether Saigon would or would not be open to traffic in June. This is a wholly unrealistic hindsight view of the situation and ignores the fast-moving and harried conditions under which Ryan was constantly operating. Ryan was not obliged to survey the situation with the precision and analysis required of a military or political expert. He did the best he could knowing the Government wanted the goods carried if at all possible. It was an exercise of reasoned judgment to proceed through April 24 and he did so in good faith.
All AID Saigon cargoes loaded at Baltimore and Philadelphia were covered by bills of lading dated prior to April 25. Waterman may keep these cargoes' full freight.
With respect to the AID Saigon cargoes loaded at New York, the Government is only entitled to be reimbursed for the full freight covered by bills of lading dated April 25 or thereafter.
All AID Saigon goods loaded at Houston were covered by bills of lading dated after April 24. The Government shall be reimbursed for the full freight of these cargoes.
Waterman received the Government's vesting order on May 1, prior to loading any AID Saigon cargo at Houston. The order advised Waterman that "any cargo loaded for Vietnam that can be discharged at a United States port of call should be so discharged, if stowage permits . . .."
Pursuant to this message, the CHASE loaded all AID Saigon cargo received at Houston and sailed on May 3 for New Orleans. It did so on the basis of a reasonable interpretation of the Government's vesting order: the order was ambiguous and Waterman apparently had no storage facilities at Houston. Waterman therefore is entitled to be reimbursed for the actual costs it incurred in loading all AID Saigon cargoes received at Houston.
The defendant has pled a counterclaim in recoupment, which was filed by permission of the plaintiff and by leave of the Court, and submitted orally at the time of trial. The claim seeks recovery from the Government for the full freight covered by bills of lading issued by Waterman on April 22 for AID-financed Saigon-bound cargo to be loaded at New Orleans. This cargo was never actually loaded aboard the CHASE since the vesting order was received before Waterman called at the port. As a claim for affirmative relief against the Government, the counterclaim would be barred by the applicable statute of limitation. 46 U.S.C. § 745. The defendant, however, presents it as a claim in recoupment. Since the claim concerns the very transaction which is the subject-matter of the plaintiff's action, it is not time-barred. Bull v. United States, 295 U.S. 247, 262, 55 S. Ct. 695, 79 L. Ed. 1421 (1935); United States v. Wessel, Duval & Co., 115 F. Supp. 678, 686-87 (S.D.N.Y.1953). Consequently, to the extent the Government receives any affirmative relief against the defendant as heretofore delineated, the defendant may offset this by the amount of its counterclaim, which was shown by the proof to be $ 44,829.22.
The parties shall submit an agreed form of judgment carrying out the foregoing within ten days.
The following is a resume of information appearing in The New York Times in April.
April 1 An attack on Saigon is feared (Defense Secretary Schlesinger sees it as coming within two months) and doubts are cast on the morale of Saigon's defenders. North Vietnamese forces are surging through the central coastal area north of Saigon.
April 2 Communists are reported as still advancing. Qui Nhon, South Vietnam's third largest city, is abandoned. While the South Vietnamese forces are demoralized and being overrun, Saigon is pictured only as a possible target. Although some Americans are quitting South Vietnam, the United States denies any evacuation orders.
April 3 Fear is reported to be sweeping Saigon as combat erupts closer to the city. Nha Trang and Cam Ranh Bay are reported lost. South's troops are being exhorted to stiffen defenses. Peace talk offer by Viet Cong is made in Paris. An offensive against Saigon is foreseen within five days by United States military sources and Schlesinger says 30 days will determine whether South Vietnam can survive.
April 4 Pentagon expects the North's drive to isolate Saigon region. Pentagon officials are pessimistic and resistance is being measured in terms of days, not weeks. But, Army Chief-of-Staff Weyand confident that RVN army still has capability to defeat the North Vietnamese.
April 5 Communists units are probing defenses around Saigon and United States military men doubt Saigon turnaround.
April 6 Hanoi steps up attacks in Mekong Delta area south of Saigon, but eases pressure in area northwest of Saigon. United States reassessing its policy; but Kissinger sees possibility of South Vietnamese military stabilizing the situation. France appeals for a peace process in Vietnam.
April 7 There is shelling near Saigon but the government still holds two other key ports.
April 8 Military activity in the Mekong Delta increases and there is a rising tide of fear in Saigon. Military gain reported for South Vietnamese forces in area northwest of Saigon.
April 9 It appears that Hanoi forces are attempting to cut off food supplies to Saigon. There is commando action in vicinity of Saigon. General Weyand proposes urgent arms aid to defend Saigon.
April 10 Main thrust against Saigon is expected from the North and Communists are tightening grip on approaches to Saigon.
April 11 President Ford asks Congress for $ 972 million in aid for Saigon since matters at a crisis stage. Seeks to halt fighting diplomatically. Fighting continues heavy in the South and outcome of defense of other key cities, particularly Xuan Loc, viewed as indicating South's will to defend Saigon. Reports from military areas state that RVN forces not abandoning territory as had during earlier weeks. United States Embassy in Saigon told to begin staff reduction. Hanoi is reported aiming to avert bloodshed by fighting in field, not in Saigon.
April 12 Congressional resistance develops to President Ford's request. South Vietnamese forces reportedly pushed Communist troops out of key city of Xuan Loc.
April 13 Saigon reports gains at Xuan Loc and on key road southwest of Saigon. Fall of Saigon may depend on Xuan Loc. Communists still moving toward Saigon. Concern is expressed that there may be uprisings within Saigon itself unless Thieu resigns.
April 14 Reds renew drive to capture Xuan Loc. Fighting intensifies. Stand by Saigon troops slows Communist drive; troops seen as holding their own. Thieu reported planning a counter-offensive.
April 15 Saigon hopes its forces can end Xuan Loc siege, where they were still holding off the Communists. Saigon government seems virtually paralyzed.
April 16 Three more divisions of Communists reported moving into battle around capital. Americans are leaving Saigon. South Vietnam's largest air base at Bien Hoa is shelled.
April 17 Saigon peril grows as troops near Xuan Loc fall back. Another port city, 170 miles northeast of Saigon, abandoned by South Vietnam. Viet Cong demand United States pull out of Vietnam.
April 18 Saigon apparently bracing for a direct thrust by foe; but its troops reported still holding at Xuan Loc and, in fact, making gains in area. Further United States military aid rejected by Senate committee. Reston reports that Saigon prepared to negotiate a political and military settlement.
April 19 Kissinger and Army Chiefs at House hearing see collapse for Saigon. President Ford request for military aid stalls but idea of humanitarian aid gains in Congress. South Vietnamese forces reported to be still holding onto Xuan Loc. Western intelligence officers expect full-scale North Vietnamese thrust at Saigon in the next few days. Mounting indications exist that Administration does not expect South Vietnamese Government to survive into May. Yet, Soviet diplomats reported as saying that they do not expect Communist forces to try to capture Saigon and win the war in the current offensive.
April 20 Communists take last central coast town in South Vietnam. Viet Cong hint that it may delay expected military onslaught against Saigon to allow time for a peaceful conclusion of the war. Most military analysts believe that Communist strength around Saigon is now so overwhelming that the capital could be taken in days or hours.
April 21 Reds make moves to cut off Saigon but attacks ebb. Lack of action near capital follows hint of changed tactics. It is apparent that effort is going to be made to seal off Saigon from rice-producing Mekong Delta region. Xuan Loc reported as still in South Vietnamese hands.
April 22 Thieu resigns, appointing his Vice President to replace him. Kissinger opposes an immediate pullout by United States. Immediate evacuation of Americans being considered because situation in South Vietnam deteriorating so rapidly. Saigon defenses reported as fading. Fighting in Vietnam, however, virtually ceases upon Thieu's resignation.
April 23 Saigon negotiating some kind of truce which Viet Cong deride. Fall of Xuan Loc.
April 24 Panic rises in Saigon but exits are few. Congress votes humanitarian aid for Saigon and authorizes use of troops for evacuation. Indochina war finished for America, Ford says.
April 25 United States seeks to speed flow of refugees from Saigon. Viet Cong indicate that they would accept Big Minh as leader of Saigon. Military observers have no doubt that attack on Saigon would be shattering. President Ford saying that approval of additional military aid would help stabilize situation.
April 26 Vietnam airlift goes on. United States confident on its ability to carry out evacuation. Times notes Saigon not yet attacked and 1300 Americans remain in city.
April 27 Five rockets hit capital.
April 28 Red Forces within mile of Saigon as tanks and artillery close in. Big Minh named to head Saigon government.
April 29 United States withdrawing Americans from Saigon. Saigon's airport attacked by rockets as North Vietnamese troops assault parts of the city's suburbs. Viet Cong reject Big Minh's peace proposal.
April 30 Minh surrenders unconditionally; Viet Cong in Saigon.