221 Ct. Cl. 838 | Ct. Cl. | 1979
This claim is brought under 28 U.S.C. § 1491 to recover damages for the seizure and detention of a 36 foot diesel vessel, the Andiamo, a 24 foot gas engined vessel, the Wild Goose, a Volkswagen van, and a Toyota Land Cruiser, all owned by plaintiff. The seizure occurred at or near San Francisco, on or about May 3, 1971. Other petition allegations are: The Andiamo was returned May 24, 1975, in a deteriorated condition. The Wild Goose was released in 1977, as was the van. Defendant apparently has summarily
Defendant moves to dismiss, without documentation. Thus it undertakes a heavy burden, for we cannot grant such a motion unless on no reading of the petition could the plaintiff prevail. The grounds of the motion are two: that our six-year statute of limitations (28 U.S.C. § 2501) had run before plaintiff brought suit, and that the action sounds in tort. Other possible defenses are. not considered here, as, e.g., whether the claim sounds in admiralty as to the two vessels.
Defendant’s first theory requires it to assert, and it does assert, that the cause of action accrued on the seizure date, May 3, 1971, which was of course more than 6 years before action brought. It is difficult to determine when a cause of action accrues when its nature is as amorphous as here, but we think a suit on any possible theory would have been prematurely brought if filed on, say, May 4,1971. The legal basis of the seizures is not given, but we assume it was 19 U.S.C. § 1592, as it then was. A number of provisions thereafter in the Code prescribed what should have happened next: the guilty vessel or vehicle was to be seized and proceeded against summarily by libel (§ 1594) and was subject to forfeiture (§ 1595a) if used for smuggling. The seizing officers were to report to the Collector of Customs (now District Director) and turn the seized articles over to him (§ 1602) and he was to report to the U.S. Attorney (§ 1603) whose duty it was to enforce any forfeiture that was incurred (§ 1604), the Collector holding the seized articles in custody (§ 1605) and causing an appraisal to be made (§
The same uncertainty is fatal to defendant’s motion based on the tort exclusion from our jurisdiction. We have here four major items of property, vessels or vehicles, and all dealt with differently, but only the most sketchy information is supplied. It is almost certain that parts of the claim sound in tort, and possible that all of it does. But it would be a most headlong piece of jurisprudence for us to assume just on the petition and motion that plaintiff could not prove any part of its claim respecting any item of property, on other than a tort theory. The case of Hatzlachh Supply Co. v. United States, 217 Ct. Cl. 423, 579 F. 2d 617 (1978), vacated and remanded, 444 U.S. 460 (1980), presents differences because there plaintiff had only
Accordingly, on the petition, motion to dismiss, and briefs, but without oral argument, and without prejudice to any defenses defendant may wish to establish by summary judgment or on the merits, the motion to dismiss is denied and the cause is remanded to the trial division.