No. B-174 | Ct. Cl. | Feb 5, 1923
delivered the opinion of the court:
The defendant’s demurrer to the petition presents a question of jurisdiction, which it states substantially as follows: Congress by the suits in admiralty act, approved March 9, 1920, 41 Stat. 525, has provided an exclusive remedy in the District Courts of the United States for the presentation of claims arising out of the operation of Government-owned vessels in the merchant service, and, therefore, if the plaintiff has a remedy under the facts stated in the petition the same can not be asserted in the Court of Claims. Other grounds of demurrer are stated.
The petition alleges that the plaintiff is a corporation under; the British Government; that the United States was the owner of the steamship Balosaro when the bill of lading herein mentioned was issued and when the petition was filed; that the vessel was being operated as a merchant vessel and as a commerce carrier for hire. It is then alleged that in March, 1919, at a port in Venezuela, the plaintiff shipped certain wet salted hides, its property, on the steamship Balo-saro to be transported to Havre, France, and received bills of lading therefor signed by G. Johnson, master of said steamship; that in and by the bills of lading the master acknowledged receipt of the hides in apparent good order and condition, to be carried to Havre and there delivered, in like good order and condition, to a designated corporation, alleged to have been the plaintiff’s sales agent, and that “ by reason thereof the United States became bound to carry and deliver the plaintiff’s goods in accordance with the terms of the bills of lading,” copies of. which are annexed to the petition.
It appears that the hides were carried by the steamship and delivered at the port of Havre to an agent of the consignee and of the plaintiff on or about September 2,1919, and the freight thereon was paid; that they were not delivered in the same good order and condition as when shipped, but, on the contrary, were delivered badly damaged by heat and leakage from casks of rum, through the improper stowage, fault, and negligence of the steamship Balosaro, its owners, agents, and servants.
It is alleged finally that “ by reason of the premises ” the plaintiff is entitled to recover from the United States the damages aforesaid, “ which in currency of the United States amount to $216,061.50,” besides interest.
While the petition avers that the ownership of the steamship was in the United States it fails to state that the Government was operating the vessel and that the contract of affreightment was duly authorized. The bills of lading appear to be those of the Pacat Steamship Corporation, though they are signed by the master of the vessel.
The jurisdiction of the Court of Claims of actions based upon contract, express or implied, is conferred by section 145 of the Judicial Code, and to be binding upon the United States it must appear that the contract was made by some one authorized to make it. The Government can be sued only as it has consented to be sued and in the tribunal in which it has authorized suit. It may prescribe the terms upon which suit may be brought, and a party seeking relief is held to have acquiesced in such terms. McElrath case, 102 U.S. 426" court="SCOTUS" date_filed="1880-12-13" href="https://app.midpage.ai/document/mcelrath-v-united-states-90257?utm_source=webapp" opinion_id="90257">102 U. S. 426, 440.
As above stated, the district courts are given jurisdiction; the limitation of time for bringing actions accruing after the enactment is two years; appeals lie to the circuit courts of appeal; the judgments bear interest, and provision is made for their payment. When the libelant elects to proceed in accordance with the principles of libel in rem, that course may be taken, but the libelant may seek relief in personam, in the same suit. The power to hear and determine given to the district courts by the act is not limited in amount.
Suits upon contracts against the Government in the Court of Claims, or in district courts exercising their concurrent jurisdiction with this court, may be brought within six years from the accrual of the cause of action; appeals lie directly to the Supreme Court; the judgments are not paid until the Congress makes appropriation therefor; the concurrent jurisdiction of the district courts is limited to claims not exceeding $10,000 in amount.
There is a different field of operation for the two enactments. We do not mean to say that this court is ousted of its jurisdiction by reason of the suits in admiralty act in cases where it appears there was a contract with the United States made by some one authorized to make it and which are brought by actions ex contractu under section 145 of the Judicial Code.
The petition does not state a cause of action of which this court has cognizance, and it should be dismissed for want of jurisdiction. And it is so ordered.
On March. 26, 1923, the court filed the following order: “ Plaintiff have leave to file amended petition, without prejudice* however, to any motion the Government may make under the provisions of section 154, Judicial Code."