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

• Decision Date: 26 April 1914
• Docket Number: 153.
• Citation: 216 F. 61
• Parties: UNITED STATES v. NEW YORK & O.S.S. CO., Limited.
• Court: U.S. Court of Appeals — Second Circuit

216 F. 61

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

No. 153.

United States Court of Appeals, Second Circuit.

April 26, 1914

The bill was brought in the old Circuit Court under the Tucker Act to recover $1,199.42 unpaid balance of hire earned by the transportation of certain government stores from New York to Manila in 1902 on board the petitioner's steamship Shimosa.

The petition was filed on November 5, 1906, after long negotiations with the government for the payment of the claim. On December 28, 1906, the United States attorney for the Southern district of New York filed a general appearance on behalf of the defendant.

A demurrer was filed based on two grounds: (1) That the petition did not state facts sufficient to constitute a cause of action. (2) That the court had not jurisdiction of the subject of the action. The demurrer was signed by the United States attorney without reservation as to the nature of his appearance. The first ground of the demurrer was not urged in the District Court or in this court. The demurrer was overruled; the opinion being reported in 202 F. 311. The government thereupon answered, and the case was tried on the merits; the court directing a decree for the full amount claimed. Findings of fact and conclusions of law were signed by the judge as required by the Tucker Act (Act March 3 1887, c. 359, 24 Stat. 505 (U.S. Comp. St. 1901, p. 752)).

The assignments of error raise two questions: 1. The jurisdiction of the District Court. 2. The correctness of the findings that under section 3 of the Harter Act the steamship company was not liable for the damage admitted to have been sustained by the government's cargo during the voyage.

H Snowden Marshall, U.S. Atty., of New York City (Addison S Pratt, Asst. U.S. Atty., of New York City, of counsel), for the United States.

Convers and Kirlin, of New York City (John M. Woolsey and Cletus Keating, both of New York City, of counsel), for appellee.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The petition alleges that the petitioner is 'a corporation duly organized and existing under and by virtue of the laws of the United Kingdom of Great Britain and Ireland. ' A corporation is a citizen of the country or state by which it is incorporated, and it has its residence in such country or state and not elsewhere. In Shaw v. Quincy Mining Co. (1892) 145 U.S. 444, 450, 12 Sup.Ct. 935, 937 (36 L.Ed. 768), Mr. Justice Gray declared that:

'The legal existence, the home, the domicile, the habitat, the residence, the citizenship of the corporation can only be in the state by which it was created, although it may do business in other states whose laws permit it.'

And in Insurance Company v. Francis (1870) 11 Wall. 210, 216 (20 L.Ed. 77), Mr. Justice Davis said:

'A corporation can have no legal existence outside the sovereignty by which it was created. Its place of residence is there, and can be nowhere else. Unlike a natural person, it cannot change its domicile at will, and, although it may be permitted to transact business where its charter does not operate, it cannot on that account acquire a residence there.'

We must conclude, therefore, that this suit is brought by an alien and a resident of the United Kingdom of Great Britain and Ireland. This makes it necessary to consider the conditions under which an alien residing outside the United States can maintain an action against the United States.

The United States cannot be sued either by a private individual or by a state without its consent. Louisiana v. Garfield, 211 U.S. 70, 29 Sup.Ct. 31, 53 L.Ed. 92; Kansas v. United States, 204 U.S. 331, 27 Sup.Ct. 388, 51 L.Ed. 510. And consent by the United States to be sued must be evidenced by an act of Congress. Stanley v. Schwalby, 162 U.S. 255, 16 Sup.Ct. 754, 40 L.Ed. 960; Hill v. United States, 9 How. 386. Government officers cannot waive the government's privilege in this respect. Their consent that such a suit may be brought cannot bind the government of the United States. Carr v. United States, 98 U.S. 433, 25 L.Ed. 209.

Congress has made provision whereby under certain limitations suits may be brought against the government, in the courts of the United States, although no consent has ever been given that it may be sued in a state court in any case. Stanley v. Schwalby, supra. The question now presented to the court is whether any act of Congress authorized the District Court to assume jurisdiction of the case at bar.

In 1855 Congress created the Court of Claims (Act Feb. 24, 1855, c. 122, 10 Stat.L. 612, 614) and conferred upon it jurisdiction to hear and determine 'all claims' of the character enumerated in the act. There was nothing in the act distinguishing claims by aliens from claims brought by citizens.

In 1863 Congress passed the Captured and Abandoned Property Act (Act March 12, 1863, c. 120, 12 Stat. L. 820, 821) which authorized 'any person' who claimed as owner of any such property to prefer his claim for the proceeds thereof in the Court of Claims. Under this act it was held that aliens could file such claims, and the court appears to have been of the opinion that it had jurisdiction of any suit brought by an alien. Scharfer's Case, 4 Ct.Cl. 529, 532; Wagner's Case, 5 Ct.Cl. 637, 638.

In 1868 Congress forbade the bringing of any suit in any court by an alien under the Captured and Abandoned Property Act (Act July 27, 1868, c. 276, 15 St.L. 243). It contained, however, a provision that:

'This section shall not be construed so as to deprive aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, of the privilege of prosecuting claims against the United States in the Court of Claims, as now provided by law.'

The Revised Statutes defining the jurisdiction of the Court of Claims provide as follows:

'Sec. 1059.-- The Court of Claims shall have jurisdiction to hear and determine the following matters: First.-- All claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, expressed or implied, with the government of the United States, and all claims which may be referred to it by either House of Congress. * * * ' U.S. Comp. St. 1901, p. 734.

'Sec. 1068.-- Aliens, who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject matter and character, might take jurisdiction. ' U.S. Comp. St. 1901, p. 740.

The Tucker Act, under which this suit was brought, was passed by Congress on March 3, 1887 (24 Stat.L. 50506). And the pertinent portions of that act are as follows:

'Sec. 1. That the Court of Claims shall have jurisdiction to hear and determine the following matters: First.-- All claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an Executive Department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, 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.

'Sec. 2. That the District Courts of the United States shall have concurrent jurisdiction with the Court of Claims as to all matters * * * in the preceding section where the amount of the claim does not exceed one thousand dollars, and the Circuit Courts of the United States shall have such concurrent jurisdiction in all cases where the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars. * * *

'Sec. 4. That the jurisdiction of the respective courts of the United States proceeding under this act, including the right of exception and appeal, shall be governed by the law now in force, in so far as the same is applicable and not inconsistent with the provisions of this act. * * *

'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.

'Sec. 6. That the plaintiff shall cause a copy of his petition filed under the preceding section to be served upon the district attorney of the United States in the district wherein the suit is brought, and shall mail a copy of the same, by registered letter, to the Attorney General of the United States, and shall thereupon cause to be filed with the clerk of the court wherein suit is instituted an affidavit of such service and the mailing of such letter. It shall be the duty of the district attorney upon whom service of petition is made as aforesaid to appear and defend the interests of the government in the suit, and within sixty days after the service of petition upon him, unless the time should be extended by order of the court made in the case to file a plea, answer, or demurrer on the part of the government, and to file a notice of any counterclaim, set-off, claim for damages, or other

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