# Compania Maritima v. United States

> United States Court of Claims · November 7, 1956 · 145 F. Supp. 935

URL: https://www.frixlaw.com/law-library/cases/9620188

## Case

- **Full name:** COMPANIA MARITIMA v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** November 7, 1956
- **Citations:** 145 F. Supp. 935; 136 Ct. Cl. 697; 1956 U.S. Ct. Cl. LEXIS 207
- **Precedential status:** Published
- **Opinion:** Concurring in part by Littleton
- **Judges:** Jones, Littleton, Whitaker, Madden, Laramore
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9620188

## Opinion text

LITTLETON, Judge,
with whom MADDEN, Judge, concurs, dissenting:
*941 We cannot agree with the opinion of the majority which overrules our previous opinions in Marcos v. United States, 102 F.Supp. 547 , 106 F.Supp. 172 , 122 Ct.Cl. 641 , and 650, holding that the six-year statute of limitations applicable to suits in this court is suspended where war closes the court to a plaintiff. We adhere to what we held in the Marcos opinion and are still of the opinion that when the Philippine Islands were occupied by Japan, with whom this country was at war, the statute of limitations applicable to the claim of a resident of the Philippine Islands was suspended during the period of such Japanese occupation.
The majority opinion herein concedes that war does suspend the running of the statute of limitations where the plaintiff is a citizen of a belligerent, but says that the decisions so holding were not intended to apply to citizens or residents of nonbelligerent nations or powers even though those nations were occupied by and completely within the domination and control of a belligerent nation. The ground for this holding by the majority is that while the so-called law of nations, or international law closes the courts of one belligerent country to the citizens of another belligerent country, it is the Trading with the Enemy Act of October 6,-1917, 40 Stat. 411 , as amended, which closes the courts of the United States to the citizens or residents of enemy (belligerent) occupied countries, and that because the closing of the courts to such persons is ’ by virtue of local (United States) statute, the plaintiffs are merely under a legal (statutory) disability to sue in the same manner as an infant or an incompetent.
It might first be noted that the courts are not closed to a person under a legal disability to sue. Infants or incompetent persons may sue or defend by a guardian, committee, conservator, or other like fiduciary, or by his next friend or guardian ad litem. The courts are also open to “persons beyond the seas” because it is always possible for them to retain and communicate with an attorney in the United States. Thus, the clause in the statute of limitations applicable to suits in this court, by persons under the enumerated legal disabilities, does not prevent such persons from suing during the period of the disability, but pro vides that if they do not do so, they mar have an additional three years within which to sue after the disability ceases, The statute also provides that the additional three years is available only where the person was under a disability when the cause of action first accrued. If the cause of action accrues prior to the existence of the disability, the statute runs against persons who later incur any of the enumerated disabilities. This statute has always been strictly construed and persons laboring under such disabilities as sickness, surprise or accident, Kendall v. United States, 107 U.S. 123, 125 , 2 S.Ct. 277 , 27 L.Ed. 437 ; ignorance, Green v. United States, 17 Ct.Cl. 174 ; or inability to truthfully take an oath, Kendall v. United States, supra, Sierra v. United States, 9 Ct.Cl. 224 , are not within its coverage.
A person who is a resident of an enemy occupied country in time of war is, it is true, an “enemy” by definition in the Trading with the Enemy Act. So also is a resident of the enemy country itself. Although the so-called law of nations closes the courts of one belligerent to the citizens and residents of the other, the belligerent countries may legislatively declare who is a belligerent or who is an “enemy” in order that those terms may include more than residents of the country on whom war has been declared, and in order that sanctions may be imposed, in the form of fines and imprisonment, on anyone' who attempts to “trade” or communicate with such “enemy.” We are of the opinion that in the absence of such a statute as the Trading with the Enemy Act, the legally declared state of war between this country and Japan closed the courts of this country to plaintiffs who were resident in the Philippines during the Japanese occupation of that country in the same manner that the courts were closed to *942 residents of Japan. If the holding of the majority-in this case prevails, it results that a resident of our then enemy, Japan, who had a claim against the United States, had the benefit of the wartime suspension of the statute of limitations and also the benefit of the disability provisions of that statute and might, presumably, elect whichever operated most advantageously in his case. For example, let us assume that his cause of action accrued on the day after his country declared war on the United States. Under the majority’s rule herein, the resident of our enemy Japan would have six years less one day within which to bring his suit after the end of the war because he would fall within the majority’s definition of a “belligerent”. He would also have the option of utilizing the three-year extension to which persons under legal disability to sue are entitled because he was disabled by the Trading with the Enemy Act. Naturally, he would elect to take advantage of the more generous rule. A friendly citizen of the Philippines, on the other hand, whose cause of action accrued one day after his country was taken over by the Japanese, would have only three years within which to bring his suit following the end of the war. We are unable to see that the above results can be reached by any interpretation of the Supreme Court’s decision in Hanger v. Abbott, 6 Wall. 532 , 18 L.Ed. 939 , relied on by the majority. Neither do we think that the Hanger case or the other authorities cited in the Marcos opinion were intended to give the citizens of a United States territory lesser rights than those extended to the citizens of a nation with whom we were at war.
The opinion' of the majority holding that a citizen or resident of an enemy-occupied country is under a legal disability to sue in the same manner as an infant, etc., has the effect of incorporating into the statute of limitations an exception not intended or expressed, and despite the court-made exception, the two cannot be treated alike. An infant has two rights under the statute of limitations when his cause of action accrues during infancy. First he may sue through a guardian at any time during the six years after his cause of action accrues. In addition, the saving clause in the statute gives him the right to sue within three years after the removal of his disability. A resident of an enemy-occupied country, on the other hand, whose cause of action accrues after his country has been occupied, may not sue at all while his country is occupied by the enemy and, under the court’s ruling, may have only three years after the end of the occupation within which to bring his suit.
Another result of the court’s holding is that where a cause of action accrues to a citizen or resident of an enemy occupied country one day before his country is occupied, he may lose his right to sue altogether if the occupation lasts more than six years, since a disability which occurs after a cause of action accrues does not give the plaintiff the benefit of any extension of the time within which to sue. In such a case, a friendly citizen of our territory, the Philippine Islands may not have the benefit of either the rule of the wartime suspension or the benefit of the additional three years within which to sue, while a citizen of a country against whom we have declared war, and whose cause of action accrued before the war, would have the benefit of the usual suspension of the statute while the war was going on.
We do not think that Congress intended the words “under legal disability” in the revised statute, 28 U.S.C. § 2501 , Supp. IV, to include the situation where war or war legislation closes the court to a plaintiff, particularly in view of the fact that persons under legal disabilities, as the term is used in that act, are never in a position where the courts are closed to them.
Furthermore, as we pointed out in the Marcos opinion, supra, Section 8(c) of the Trading with the Enemy Act, as amended, after providing that the running of the statute of limitations should *943 be suspended in certain specified situations, also provides:
“ ‘ * * * Provided, however, That nothing herein contained shall be construed to prevent the suspension of the running of the statute of limitations in all other cases where such suspension would occur under existing law.’ ”
As noted in the Marcos opinion, Congress, in enacting that provision, had before it a legal memorandum listing the authorities holding that war suspends the operations of the statute of limitations. S.Rept. Ill, 65th Cong., 1st Sess., pp. 21, 22; S.Rept. 113, 65th Cong., 1st Sess., pp. 21, 22.
The majority’s opinion in the instant case has the effect not only of overruling our opinions in the Marcos case, but it also overrules our holding in the second opinion in Oerlikon Machine Tool Works v. United States, 102 F.Supp. 417 , 121 Ct.Cl. 616 . In that case the individual plaintiff, Mr. Buehrle, and the partnership, Oerlikon Machine Tool Works, were nationals of Switzerland, which was neither an enemy nor an enemy-occupied country. In January 1942, Mr. Buehrle, and in July 1942, the partnership, were placed on the proclaimed list of certain blocked nationals pursuant to the Trading with the Enemy Act, section 3(a), and General Rule No. 11, 7 F.R. 2168 , as amended September 3, 1943, 8 F.R. 12,287 . A person on such list was deemed to be an “enemy” within the meaning of the Act and regulations, and the court held that while a person having a claim against the United States was on such proclaimed list, the statute of limitations was suspended under the wartime suspension rule. The defendant’s motion to dismiss the petition of Oerlikon was overruled and the case is now being tried on the merits by a commissioner of this court. On the occasion of the second opinion in that case, the court had the benefit of exhaustive briefs on the very point urged in the instant case, i. e., that the closing of the courts to a plaintiff by reason of the Trading with the Enemy Act, or general rulings or regulations issued thereunder, placed such plaintiff under a personal disability similar to that of an infant or incompetent within the meaning of the statute of limitations.
In Salvoni v. Pilson, 86 U.S.App.D.C. 227 , 181 F.2d 615, 618 , certiorari denied, 339 U.S. 981 , 70 S.Ct. 1030 , 94 L.Ed. 1385 , the plaintiff was an American citizen resident in Italy during the war. In 1948, plaintiff filed a motion to review and extend a judgment entered 14 years previously in 1934. Under the District of Columbia Code no such motion could be filed after the expiration of 12 years. The Circuit Court held that during plaintiff’s residence in Italy during the war. the 12-year period of limitations was suspended while communications between the United States and Italy were prohibited:
“ * * * The courts are open during a war to one who is in the United States though he be an alien enemy. This was fully discussed and clearly decided in Ex parte Kawato, 1942, 317 U.S. 69 , 63 S.Ct. 115 , 87 L.Ed. 58 . But appellant was not here. She was in enemy country from which and to which intercourse was barred. The courts were not closed to her because of the enemy character which pertained to her at the time but because in fact normal means of access and communication were unavailable due to conditions created by the war and by the laws then in effect.” [Italics supplied.]
Italy was, of course, for at least part of the war, a country on. whom we had declared war. Later, Italy was invaded by our forces and those of our allies, but a state of war still existed and the Trading with the Enemy Act was applicable to Italy even after the Germans were driven out and the Italians had surrendered. The plaintiff in the Salvoni case resided in Italy until September 15, 1947, when by presidential proclamation the war with Italy was terminated. The court pointed out that her status as an “enemy” arose by virtue of the Trading with the Enemy Act and that by virtue *944 of that Act she was prevented from communicating with anyone in this country "except in the regular course of mail.” The court then stated:
“ * * * We take notice of the absence of a regular course of mail between the two countries while at war. Mention should be made also of the provisions of the statute [Trading with the Enemy Act] prohibiting the sending of any communications to an enemy, including, as stated before, a citizen of the United States living in Italy. * * * ”
In Chuchuru v. Chutchurru, 10 Cir., 185 F.2d 62, 65 , plaintiff was a, citizen and resident of the Republic of France. On December 3, 1948, she brought suit against defendant on two promissory notes, one due December 31, 1940 and one due January 1, 1941. The applicable statute of limitations was that of Colorado and provided that all actions on contracts should be commenced within six years of the accrual of the cause of action. After discussing the issue of whether the exemption in the Colorado statute for persons absent from the State applies to a foreigner who was never in this country, the court held that the defendant’s plea of the statute of limitations was not well founded because the statute was suspended by operation of the Trading with the Enemy Act which made persons of any nationality residing in enemy occupied country an “enemy” of the United States and one with whom no communication might,legally be had:
“ * * * On December 11,1941, Congress declared the existence of a state of war between the United States and the Government of Germany, 55 Stat. 796 , 50, U.S.C.A.Appendix, note preceding section 1. France was overrun and occupied by Germany. On November 8,1942, the Treasury Department by a general ruling promulgated under authorized executive orders declared France to be enemy territory. The Germans were later expelled from France; and on November 4, 1944, such general ruling was amended by deleting therefrom reference to France as enemy territory, as of October 23, 1944. Deducting from the time intermediate the maturity of the notes and the institution of the suit the period during which France was enemy territory, the suit was instituted less than six years after the notes became due. It is the rule of law in the United States that domestic statutes of limitation are suspended as between citizens of countries at war. One of the primary reasons which underly the ruléis that the existence of war effectively closes the courts of each belligerent nation to the citizens and residents of the other. Hanger v. Abbott, 6 Wall. 532 , 18 L.Ed. 939 ; Levy v. Stewart, 11 Wall. 244 , 20 L.Ed. 86 ; Ross v. Jones, 22 Wall. 576 , 22 L.Ed. 730 . “During the time that, plaintiff resided in enemy country [actually, enemy occupied], the-courts in this country were not within her reach. They were effectively-closed to her. She was as completely foreclosed from access to the-courts in Colorado as though she-were a citizen of Germany, and residing there. For purposes of this-case, the statutes of limitation of Colorado were suspended during the-time plaintiff was in enemy country. Salvoni v. Pilson, 86 U.S.App.D.C. 227 , 181 F.2d 615 . With that period' deducted, the suit was filed within six years after the cause of action accx-ued. And therefore it was not barred. Salvoni v. Pilson, supra.”
Our decision herein is directly contra, the Circuit Court decision in the above case. In both cases the plaintiffs were-residents of enemy-occupied countries, and their status as “enemies” and their non-access to our courts was by virtue of the Trading with the Enemy Act.
We are of the opinion that the correct, rule regarding the wartime suspension of the statute of limitations was stated by this court in the Marcos and the Oer-likon opinions and that the new rule-stated in the majority opinion in thé instant case is erroneous and contrary to all existing authority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9620188. Public record. Not legal advice.