Marcos v. United States, 50278.

• Decision Date: 15 July 1952
• Docket Number: No. 50278.,50278.
• Citation: 106 F. Supp. 172,122 Ct. Cl. 641
• Parties: MARCOS v. UNITED STATES.
• Court: U.S. Claims Court

106 F. Supp. 172

122 Ct. Cl. 641

MARCOS v. UNITED STATES.

No. 50278.

United States Court of Claims.

Decided July 15, 1952.

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Harold H. Martin and John Ward Cutler, Washington, D. C. (George A. Nugent and Prew Savoy, Washington, D. C., on the brief), for plaintiff.

S. R. Gamer and Thomas O. Fleming, Washington, D. C., Holmes Baldridge, Asst. Atty. Gen. (Harry Davidson and Bernard Wohlfert, Washington, D. C., on the briefs), for the defendant.

Shearman & Sterling & Wright, New York City, amicus curiae for Oerlikon Machine Tool Works Buehrle & Co., plaintiff.

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

HOWELL, Judge.

On February 5, 1952, this court 102 F. Supp. 547, denied defendant's motion to dismiss plaintiff's petition as being barred by the Statute of Limitations, 28 U.S.C.A. § 2501, 62 Stat. 976. We concluded that the outbreak of war in the Philippine Islands on December 8, 1941, suspended the normal operation of the Statute of Limitations that this suspension was lifted on September 2, 1945, by the formal surrender of Japan, and that Filipino claimants, such as plaintiff, whose causes of action arose after the outbreak of hostilities and during the period of the suspension of the Statute of Limitations, had six years following September 2, 1945, within which to institute action in this court. Hence, plaintiff's suit to recover the value of cattle allegedly requisitioned by the United States Army, having been filed on August 14, 1951, was held not to be subject to the defense of limitations. Thereafter, defendant filed a motion for a new trial, which might have been more properly designated a motion for rehearing, and because of the importance of the issues involved, and the number of similar cases now pending, the court agreed to hear additional oral argument upon this subject.

Defendant first urges that this court's present Statute of Limitations, Section 2501 of recently revised Title 28, does not contain an enumeration of any specific disabilities but broadly provides that all legal disabilities shall give rise to a three-year period following their removal within which to file suit. Defendant insists that war is a disability within the meaning of this comprehensive language and, accordingly, that following the end of World War II in the Philippine Islands claimants such as plaintiff had only three years within which to file their suits against the United States.

This argument is predicated upon two false assumptions. First, war is not a legal disability and prior to the 1948 revision of Title 28 had not been treated as such. Cf. Campbell v. United States, 13 Ct.Cl. 108. Second, we are unable to find any indication that Congress in drafting Section 2501 intended to change this interpretation so as to include war as a disability. Section 2501, which forms the basis of defendant's argument, provides in part as follows:

"Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed, or the claim is referred by the Senate or House of Representatives, or by the head of an executive department within six years after such claim first accrues.

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"A petition on the claim of a person under legal disability or beyond the seas at the time the claim accrues may be filed within three years after the disability ceases."

As we pointed out in our earlier decision, Section 2501 replaced 28 U.S.C. (1946 Ed.) § 262, 36 Stat. 1139, which was in effect at the time plaintiff's cause of action accrued. Section 262 provided as follows:

"Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives, as provided by law, within six years after the claim first accrues. The claims of married women, first accrued during marriage, of persons under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively."

The reasons for the change in the language of Section 262 to that now contained in Section 2501, supra, are set forth in the Reviser's Note to Section 2501, and are as follows:

"Words `a person under legal disability or beyond the seas at the time the claim accrues' were substituted for `married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued; entitled to the claim,'. The revised language will cover all legal disabilities actually barring suit. For example the particular reference to married women is archaic, and is eliminated by use of the general language substituted.

"Words `nor shall any of the said disabilities operate cumulatively' were omitted, in view of the elimination of the reference to specific disabilities. Also, persons under legal disability could not sue, and their suits should not be barred until they become able to sue. * * *"

It is significant that both the statute and the Reviser's Note are careful to specify that Section 2501 applies to "legal disabilities." The term "legal disability" has had a fixed and well-defined meaning since provision for relief therefrom was first made in 1623 in the Statute of 21 Jac. I, c. 16. In fact, the "legal disabilities" enumerated in the earlier versions of this court's Statute of Limitations,¹ viz., claims of married women, infants, insane persons, and persons beyond the seas, were the same as those enumerated in the English Statute of 1623.

While war is in the nature of a disability, it has never technically been regarded as a "legal disability" within either the coverage of the disability provision of this court's Statute of Limitations or within the general law usage of the term. There is no indication that Congress intended to depart from this well-defined meaning to include war as a disability when it substituted in Section 2501 the general expression "legal disability" in place of the specific conditions heretofore denoted by this expression. Rather, it is apparent from the Reviser's Note that Congress was primarily endeavoring to bring the Statute up to date by eliminating the reference to the outmoded disabilities such as coverture. We conclude that the revision contained in Section 2501 does not embrace the situation presented by the existence of war.

History supplies the principal explanation as to why the effect of war on the Statute of Limitations developed independently of the provision for legal disabilities. At the time of the passage of the original English Statute of Limitations in 1623, the common law regarded all debts, contractual rights, and property rights of subjects of nations at war as being canceled and subject to confiscation by the warring governments. Thus, no reason existed for the inclusion of war within the disability provision of the Statute of 1623, and the lawmakers of the day never thought of providing for the collection or restoration of these rights with the return of peace between the belligerents. Hanger v. Abbott, 6 Wall. 532, 18 L.Ed. 939; Greenwald v. Appel, C.C., 17 F. 140. As the views of the civilized world gradually changed with respect to the conduct of war, the modern day practice evolved to suspend absolutely the rights and remedies between citizens of countries at war, so as not to provide aid for the enemy, and to revive the rights and remedies upon the restoration of peace instead of confiscating them. Today it is a firmly established principle of international law that the outbreak of war by implication suspends the normal operation of the Statute of Limitations in the case of persons to whom the courts are closed or inaccessible, and this rule extends not only to enemies but also to residents of enemy-occupied countries such as the Philippine Islands. Cf. (Note) 137 A.L.R. 1454, et seq.

As a result of its historical background, the treatment afforded the suspension of the running of the Statute of Limitations occasioned by the existence of a state of war has developed in a manner which materially differs from the treatment afforded to legal disabilities. There are several cogent reasons why courts have seen fit to create and perpetuate these differences. Generally it is stated that the effect of the running of the Statute of Limitations upon a cause of action is to destroy the remedy but not the right. 34 Am.Jur., Limitation of Actions, § 11. The effect of the legal disability provision of a Statute of Limitations is to restore this remedy for a designated period beyond the normal period of limitations. However, the effect of war is to suspend not only the remedy but also the right to sue as well. The right and the remedy are suspended in status quo, and at the cessation of hostilities are restored to the litigant. The result which necessarily would be achieved if war were treated in any other manner is pointed out by the Supreme Court in Hanger v. Abbott, supra. The Court stated, 6 Wall. at pages 538 and 542, 18 L.Ed. 939, that:

"Unless we return the remedy with the right the pretence of restoring the latter is a mockery, as the power to execise it with effect is gone by lapse of time during which both the right and the remedy were suspended.

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"* * * Peace restores the right and the remedy, and as that cannot be if the limitation continues to run during the period the creditor is rendered incapable to

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