New York & O.S.S. Co. v. United States

• Decision Date: 06 December 1912
• Citation: 202 F. 311
• Parties: NEW YORK & O.S.S. CO., Limited, v. UNITED STATES.
• Court: U.S. District Court — Southern District of New York

202 F. 311

NEW YORK & O.S.S. CO., Limited, v. UNITED STATES.

United States District Court, S.D. New York.

December 6, 1912

John M Woolsey and Convers & Kirlin, all of New York City, for petitioner.

H. A Wise, U.S. Atty., and A. S. Pratt, Asst. U.S. Atty., both of New York City.

COXE Circuit Judge.

This action was commenced in November, 1906, by the petitioner, a corporation organized under the laws of the United Kingdom of Great Britain and Ireland, to recover the sum of $1,199.42 the unpaid balance due the Steamship Company for transporting merchandise from New York to Manila in October, 1902. On December 28, 1906, Henry L. Stimson, United States Attorney filed a general appearance. Previous to this the defendant's time to answer or demur had been extended by stipulation.

On January 24, 1907, a demurrer was filed on the grounds, first, that the petition does not state facts sufficient to constitute a cause of action and, second, that the court has no jurisdiction of the subject of the action.

On February 15, 1907, the testimony of the master of the steamship which carried the goods to Manila was taken. The defendant was represented by two assistants of the United States Attorney and no objection was entered upon the record to the taking of the testimony.

These facts are taken from the briefs and the pleadings, no other papers having been submitted. If this demurrer be sustained, the petitioner will be remediless, as his cause of action will be barred by the statute of limitations.

The suit is brought under the so-called 'Tucker Act' entitled 'An act to provide for bringing suits against the government of the United States. ' Act March 3, 1887, c. 359, 24 Stat. 505 (U.S. Comp. St. 1901, p. 752).

The act, so far as it is applicable to the present controversy, provides that the Court of Claims shall have jurisdiction to hear and determine all claims upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity or admiralty, if the United States were suable.

Section 2 provides that the Circuit Courts of the United States shall have concurrent jurisdiction with the Court of Claims in all cases where the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars. Section 5 of the act is as follows:

'Sec. 5. That the plaintiff in any suit brought under the provisions of the second section of this act shall file a petition, duly verified with the clerk of the respective court having jurisdiction of the case, and in the district where the plaintiff resides. Such petition shall set forth the full name and residence of the plaintiff, the nature of his claim, and a succinct statement of the facts upon which the claim is based, the money or any other thing claimed, or the damages sought to be recovered and praying the court for a judgment or decree upon the facts and law.'

It seems to me that the evident purpose and intent of this law was to give to persons having claims against the United States for comparatively small amounts the right to bring suits in the courts of the United States in districts where they and their witnesses reside, without subjecting them to the expense and annoyance of litigating in a court located at Washington.

The District Attorney concedes that the Court of Claims has jurisdiction of the present controversy. In his brief he says:

'The petitioner is not without a forum in which it may sue, for it has the right to bring suit in the Court of Claims. Section 1068 of the Revised Statutes (U.S. comp. St. 1901, p. 740) provides:

''Aliens, who are citizens or subjects of any government which accords to the citizens of the United States the right to

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