Eastport Steamship Company v. United States, 399-54.

• Decision Date: 05 April 1955
• Docket Number: No. 399-54.,399-54.
• Citation: 130 F. Supp. 333,131 Ct. Cl. 210
• Parties: EASTPORT STEAMSHIP COMPANY v. The UNITED STATES.
• Court: U.S. Claims Court

130 F. Supp. 333

131 Ct. Cl. 210

EASTPORT STEAMSHIP COMPANY v. The UNITED STATES.

No. 399-54.

United States Court of Claims.

April 5, 1955.

J. Franklin Fort, Washington, D. C., for plaintiff. Frank J. Zito, Washington, D. C., Robert V. Faragher, New York City, and Radner, Zito, Kominers & Fort, Washington, D. C., were on the brief.

H. H. Margolies, Washington, D. C., with whom was Warren E. Burger, Asst. Atty. Gen., for defendant. Leavenworth Colby, Washington, D. C., was on the briefs.

Before JONES. Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

WHITAKER, Judge.

This case is before the court on defendant's motion to dismiss for lack of jurisdiction.

Plaintiff's petition alleges that it recovered a judgment in this court on June 8, 1954, for $54,097.16, but that the Comptroller General wrongfully offset against this judgment the sum of $31,102.71, which sum he claims plaintiff owes the defendant under a bareboat charter. Plaintiff sues for the $31,102.71 withheld.

There is no doubt about the jurisdiction of this court to entertain an action for the wrongful withholding of a judgment. See Benedict v. United States, 66 Ct.Cl. 437; Stewart & Co. v. United States, 71 Ct.Cl. 126; Helvetia Milk Condensing Co. v. United States, 3 F. Supp. 662, 77 Ct.Cl. 743, certiorari denied 290 U.S. 671, 54 S.Ct. 90, 78 L.Ed. 580.

The nature of plaintiff's claim upon which it recovered the judgment of $54,097.16 is not stated.

Defendant says plaintiff's action is maritime and, therefore, only the District Court has jurisdiction of it. This is incorrect. Plaintiff's action is for money wrongfully withheld. Its action is to collect the full amount of the judgment. To do this it must show that defendant has no claim against plaintiff for the money withheld; which is to say, that plaintiff is not liable to defendant on the bareboat charter.

But plaintiff is not suing on the bareboat charter. If it were, the admiralty court would have exclusive jurisdiction. But it is the defendant who is asserting a claim under that charter. It asserts it in quite an effective way, by withholding from plaintiff money otherwise due it. This makes it necessary for plaintiff, in order to get his money, to show it is not liable to defendant on the charter, and, hence, that the withholding is wrongful.

Since it is the defendant which asserts a liability under the charter, and not the plaintiff, jurisdiction under the Suits in Admiralty Act is not exclusively in the district courts. That Act relates alone to suits against the United States; it does not relate to a claim by the United States against another. Exclusive jurisdiction of such claims is not conferred on the district courts. Section 742 of Title 46, United States Code Annotated, on which defendant relies, is quoted in a note below.¹

It is true that plaintiff is suing the United States, but it is not suing on the charter; it is suing because of the withholding of money due it on what we suppose was a nonmaritime cause of action. The interposition of a maritime claim by the United States to justify the withholding does not change the character of plaintiff's action; it is the nature of plaintiff's claim that determines the jurisdiction, not the character of the defendant's defense. Plaintiff's claim is for wrongfully withholding payment of the judgment. Aluminum Co. of America v. United States, 30 F.Supp. 686, 90 Ct.Cl. 173; Erie Basin Metal Products Co. v. United States, 107 F. Supp. 588, 123 Ct.Cl. 433.

Defendant next says plaintiff's suit is barred by section 227 of 31 U.S. C.A., quoted in a note below.² This position cannot be sustained.

This section authorizes the Comptroller General to withhold from a final judgment any amount which he thinks the plaintiff may owe the defendant; but having done so, the obligation is imposed upon him of instituting suit on the claim immediately, "if such debt is not already in suit".

Congress did not mean to permit the Comptroller General to withhold payment of a judgment in whole or in part on his own ipse dixit; if he did withhold it, he must immediately seek a judicial determination of his right to do so, unless the debt was already in suit. If it was already in suit, the desired judicial determination could be had in that suit, and, hence, it was not required in such case that the Comptroller General institute suit. The objective was the judicial determination; it made no difference whether plaintiff or defendant initiated the action to secure the determination. So, if a suit was already pending, it was not necessary for the Comptroller General to institute a suit.

The provision for a judicial determination of the propriety of the withholding was plainly for plaintiff's benefit. There is no evidence of an intention to confer on the Comptroller General any right, except the right to withhold. It was not intended to confer on him the right to choose the forum for the adjudication of the controversy. There is nothing indicating an intention to prevent plaintiff from doing what he is doing here, that is, to sue for a wrongful withholding, and in this way to secure the judicial determination which Congress prescribed.

The initiative should not be taken from plaintiff; it has been awarded a judgment; Congress has appropriated the money to pay it; plaintiff should be permitted to enforce payment in any lawful way it desires. We do not discern any...