Opposition Brief — Standard Commercial Tobacco Co. v. Snyder

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INDEX

Page

Opinions helow 1

Jurisdiction ..... Dye ae Rhee pel Pe Renna 1

Questions presented Fkvh eOeaewnen Ro ere ee ay 2

IN renee 4 yk is Uae SAAN AERA vst thai oa 3

Statement ....... fee Kaden Te Rae LR nck aw bak ee Ce ; 4

LS ainda ie 6 KAS thMORA CS Sh ebSn ese Wareneibads 10

Conclusion ...... hencGh Ua ane Gree Raths fen ou - 18

Appendix ....... Te See ee ne FT eee ean 4 19

CITATIONS

Cases :

Angarica v. Bayard, 127 U. 8. 251... gay 12

Boynton v. Blaine, 139 U. S. 306... .. 12

Carl Byoir and Associates v. Tsune- Chi Yu, 112 F. 2d

885, certiorari denied, 311 U. S. 699... ‘ 16

Cummings v. Deutsche Bank, 300 U. S.115..... 13

Drier v. United States, 108 C. Cls. 487 ‘i 13

Exchange, The,7 Cranch 116......... ay 11

Frelinghuysen v. Key, 110 U. S. 63. a eAek see 11

; Great Western Insurance Co. v. United States, 19 C. Cls.

| 206, affirmed on other grounds, 112 U. 8.193. 11

| LaAbra Silver Mining Co. v. United States, 175 U. S.

¢ RNG. Su CAN unsh RCA Suns ka heals & yy % oe 11

| Markham vy. Cabell, 326 U.S. 404..5............ <i ae

meomee W. Ramo, BGP U. Baas... ww ws cic 15

Parker State Bank v. Pennington, 9 F. 24 966......... 16

; United States v. Diekelman, 92 U. S. 520........ oa 11

Williams v. Heard, 140 U. S. 529 12

Z. and F. Assets Corp. v. Hull, 311 U.S _ 470 12,18

| Statutes:

) Act of June 5, 1930, 46 Stat. 500 9

Act of August 6, 1947, 61 Stat. 789. 9

Act of June 25, 1948, Public Law 773, 80th Cong.,

2d sees, Section 3B.............. 3

Agreement between the United States and Germany of

August 10, 1922, 42 Stat. 2200....... 3, 8, 21

Federal Tort Claims Act, 60 Stat. 842, aie 28 U. S. C.

«2 SSR 3

ERS SK kw cs teeter eekn en 3,19

ee eee ere. Sed pees 14, 17,19

mee. 410%) ......... Be sy Ce ar 20

I kn Se Care ease Beye A iste a 17

A At ok Wc oe ack kk A Se tubes ewcwe y « . 8,20

ba

Statutes—Continued

Page

See. 421 .... 3, 21

See. 421(a) 21

See. 421(e) é 16, 21

See. 421()j) 4 21

Sec. 421(k) .... aads 21

Harrison Resolution of June 27, 1934, 48 Stat. 1267 9

Joint Resolution of July 2, 1921, 42 Stat. 105. . 7

Settlement of War Claims Act of 1928, 45 Stat. 254,

260, and as amended by the Act of August 6, 1947, 61

eek, Feet ks 3, 24

ig Bee Pusey Cie Weise lakes . 32

See. 2(a) ys Ce one .. 17,24

Sec. 2(b) =e TRE Ae ee 24

See. Bie) ....... ; “ae 24

"Ee ne 24

See. 2(h) ’ , 13, 24

Sec. 2(i) ..... . laa 25

See. 4 3, 25

Sec. 4(a) ... 25

See. 4(b) ... nf 26

RIM aR PRS ree eee ee 26

Trading with the ewe Act, 45 Stat. 254, 268, 270,

ET eC Cae RE Nah wick x vanes basin ees 16

Treaty of Berlin, 42 Stat. 1939, 1942. . 7

United States Code, Title 28:

SLE ae ae eg 3

See. 1346 3

See. 1402 3

See. 1504 3

See. 2110 3

See. 2401 3

Sec. 2402 3

See. 2411 3,17

Sec. 2412 ... 3

See. 2517 17

Sees. 2671-2680 3

War Claims Act of 1948, Public Law 896, 80th — +» 2d

sess. 14

Miscellaneous:

93 Cong. Ree. 9288 10

93 Cong. Rec. 9289 9

Final Report of H. H. Martin, Acting Agent of the

United States before the Mixed Claims Commission

(1941) pp. 94, 95 .. Ae a 8,9

=

Miscellaneous—Continued

It

Page

Hearings before the Senate Committee on the Judiciary

on H. R. 4044, 80th Cong., 2d sess.; Memoranda on

“Indebtedness to American Nationals on World War

I Adjudicated Awards of the Mixed Claims Commis-

ae” Mh SG BN re nee ewe cee 14

House Report No. 973, 80th Cong., Ist sess., p. 2 9

— Report No. 2428 on H. R. 7236, 76th Cong., 3d

oe Peery rere Greer ey ree eee yee 15

Jessup, A Modern Law of Nations (1948) p. 98........ 11

Koessler, Government Espousal of Private Claims Before

| International Tribunals, 13 U. of Chi. L. Rev. 180

Nn teed aed yeaa KAS bao 11

Restatement, Trusts, Section 198. ........... a 16

2 Seott, Trusts, Section 197.1 (1939)....... 15

Senate Report No. 679, 80th Cong., Ist sess., p. ae 9

Senate Report No. 1196 on S, 2221, 77th _— 2d sess.,

Se ... 15

ASE ROSIE AA > CN Lt a 8 - on

*

Guthe Supreme Court of the Bnited States

OcToBER TERM, 1949

No. 561

SraNDARD COMMERCIAL TOBACCO COMPANY AND

STANDARD COMMERCIAL STEAMSHIP CorpP., PETI-

TIONERS,

v.

JoHN W. SNYDER, SECRETARY OF THE TREASURY, AND

Unitep STaTES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE DIS-

TRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the United States District Court

for the District of Columbia (R. 16A-17A) is not

reported. The opinion of the United States Court

of Appeals for the District of Columbia Circuit

(R. 26) is reported at 176 F. 2d 951.

JURISDICTION

The judgment of the United States Court of

Appeals for the District of Columbia Circuit was

(1)

a

2

entered on June 13, 1949 (R. 27). A petition for

rehearing (R. 28-36) was denied on September 28,

1949 (R. 37). By order of the Chief Justice, the

time for filing a petition for a writ of certiorari

Was extended to January 28, 1950 (R. 39). The

petition for a writ of certiorari was filed on Janu-

ary 27, 1950. The jurisdiction of this Court is in-

voked under 28 U. S. C. 1254(1).

QUESTIONS PRESENTED

In partial fulfillment of her World War I obliga-

tions, fixed by the Mixed Claims Commission,

Germany undertook to make certain payments

to the United States to be applied on awards made

by the Commission. The United States distributed

these payments among American nationals, in-

cluding petitioners, who had received awards. In

1931, Germany, before completing the required

payments, defaulted.

The questions presented are:

1. Whether the United States may be held liable

to petitioners under the Federal Tort Claims Act

for judgments in amounts equal to the unpaid por-

tion of petitioners’ World War I awards.

2. If so, whether the Secretary of the Treasury

may be ordered to pay such amounts out of German

property sequestered by the Alien Property Custo-

dian during World War II, notwithstanding the

fact that Congress has provided for a different dis-

position of the sequestered funds.

3

STATUTES INVOLVED

1. The pertinent provisions of Sections 410, 420

and 421 of the Federal Tort Claims Act* are set

forth in the Appendix, infra, pp. 19-21.

9. The English text of the Agreement of August

10, 1922, between the United States and Germany

(42 Stat. 2200) is set forth in the Appendix, infra,

pp. 21-23.

3. The pertinent provisions of Section 2 of the

Settlement of War Claims Act of 1928 (45 Stat.

954), authorizing payment of Mixed Claims Com-

mission awards out of the German Special Deposit

Account are set forth in the Appendix, infra,

pp. 24-25.

4. Section 4 of the Settlement of War Claims Act

of 1928 (45 Stat. 260) as amended by the Act of

August 6, 1947 (61 Stat. 789), creating the German

Special Deposit Account and establishing the order

of priority of payment out of that fund, is set forth

in the Appendix, infra, pp. 25-30.

1 The Federal Tort Claims Act (60 Stat. 842, 28 U.S.C. 921

et seq.) was repealed, and its provisions were revised and

reenacted into law as 28 U.S.C. 1291, 1346, 1402, 1504, 2110,

2401, 2402, 2411, 2412, 2671-2680 by the Act of June 25,

1948, effective September 1, 1948 (Pub. Law 773, 80th Cong.,

2d sess.). Section 39 of the repealing act provides that exist-

ing rights and liabilities shall not be affected by the repeal.

Since the case at bar arose prior to the repeal, it appears that

any rights which petitioner may have against the United

States herein are governed by the Federal Tort Claims Act

as it existed at the time of the repeal. It is the former pro-

visions of the Act, therefore, which are set out in the Appendix,

infra, pp. 19-21.

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4

STATEMENT

This suit was instituted by Katharine M. Drier

in the United States District Court for the District

of Columbia on February 28, 1947, on behalf of

herself and persons and corporations similarly

situated, under the Settlement of War Claims Act

of 1928 (R. 20). Her complaint, to ‘‘ Enforce Pay-

ments of Funds by the Secretary of Treasury”’ and

for ‘‘Damages to or Loss of Property under the

Federal Tort Claims Act’’, claimed judgment

against the United States for the unpaid World

War I damages she had been caused by Germany,

as determined by the Mixed Claims Commission

(R. 20, 25). The complaint also prayed for an

order directing the respondent Secretary of the

Treasury to pay her the amount of such judgment

‘*out of the monies and properties of Germany and

x German nationals in his possession or under his

control’’ (R. 25).

Petitioners, Standard Commercial Tobacco

Company and Standard Commercial Steamship

Corporation, being two of the ‘‘similarly situated”

corporations, which had sustained World War I

damages for which they had not been fully com-

pensated, filed complaints in intervention (R. 2A-

16A).

Standard Commercial Tobacco Company alleged

that it holds an award of the Mixed Claims Com-

mission in the amount of $450,000 with interest at

5% from November 11, 1918, on which there was

due and owing as of October 22, 1941, on account

paneer ty a

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5

of principal a balance of $146,220.99,’ and unpaid

interest of $147,663.73, a total of $293,884.72, with

further accruals of interest since that date (R. 3A).

Standard Commercial Steamship Corporation al-

leged that it holds an award of the Mixed Claims

Commission in the amount of $89,294.00 with in-

terest of 5% from November 11, 1918, on which

there was due and owing as of October 20, 1941, on

account of principal a balance of $7,921.02° and

interest of $12,390.86, a total of $20,311.88, with

further accruals of interest since that date (R.

10A).

Each of the intervening complaints and Mrs.

Drier’s original complaint alleged that the actions

were brought under the Federal Tort Claims Act

and that the respondent Secretary of the Treasury

was sued in his official capacity (R. 3A, 10A, 20).

The complaints asserted that Germany had agreed

to pay in full for World War I damages as deter-

2This petitioner has, in fact, already received more than

the $450,000.00 principal amount of its award. The alleged

balance of $146,220.99 was arrived at by adding to the $450,-

000, interest amounting to $205,643.84, for the period from

November 11, 1918, through January 1, 1928. From that total

of $655,643.84, there was deducted the sums of $509,422.85

(paid over by the United States to petitioner on the principal

amount of the $450,000.00 award), leaving the balance of

$146,220.99.

3This petitioner has, in fact, also already received more

than the $89,294.00 principal amount of its award. The al-

leged balance of $7,921.02 was arrived at by adding to the

$89,294.00, interest amounting to $40,806.13, for the period

from November 11, 1918, through January 1, 1928. From that

total of $130,100.13, there was deducted the sum of $122,179.11

(paid over by the United States to petitioner on the principal

ate of the $89,294.00 award), leaving the balance of

—

6

mined by the Mixed Claims Commission; that

these amounts were not fully paid; that following

the 1941 declaration of war with Germany, the

United States vested in itself title to properties

belonging to the German Government and Ger-

man nationals, and that such properties ‘‘became

and still are impressed with a trust in favor of’’ the

petitioners and others similarly situated (R. 5A,

12A, 23). Petitioners further alleged that the

failure of the respondents to apply these ‘‘trust”’

properties to the payment of petitioners’ unpaid

Mixed Claims Commission’s awards constituted a

breach of trust actionable under the Federal Tort

Claims Act (R. 6A, 13A, 24). .

The complaint filed by Mrs. Drier alleged that

pleat demand had been made by her on respondents

for payment of the balance due her, but that the

respondent Secretary of the Treasury refused to

make such payment (R. 24). The intervening

complaints made no similar demands upon either

the Secretary of the Treasury or the United States,

but merely alleged that, in light of the rejection of

Mrs. Drier’s claim by the Secretary of the Treas-

ury, similar demands upon their part would be

futile (R. 7A, 14A).

On February 10, 1948, the district court ruled

that the complaints failed to state a claim on which

relief could be granted and dismissed the com-

plaints on the grounds that the ‘‘Federal Tort

Claims Act does not apply, either in terms or con-

—

7

struction,’’ and that ‘‘any purported claim of lia-

bility is specifically negatived by the provisions of

the War Claims Act of 1928 (45 Stat. 254) ’’ which

provides that nothing in the Act shall be construed

as the ‘‘assumption of liability by the United States

for the payments of awards” (R. 16A-17A, see Ap-

pendix, infra, pp. 24-25). On appeal to the United

States Court of Appeals for the District of Colum-

bia the judgment of dismissal was affirmed in a

per curiam opinion (R. 26).*

The genesis of petitioners’ claims, though not

fully disclosed in the record, is readily apparent

from the official records of international arrange-

ments made to compensate Americans whose prop-

erty was confiscated by Germany during World

War I. Within two months after the Joint Reso-

lution of July 2, 1921 (42 Stat. 105) had terminated

the war between Germany and the United States,

a formal peace treaty, the Treaty of Berlin, was

concluded. That Treaty obligated Germany ‘‘to

accord to the United States, and the United States

shall have and enjoy, all the rights, privileges, in-

demnities, reparations or advantages’’ enumerated

in the Joint Resolution of July 2, 1921. (42 Siat.

4 Mrs. Drier, the original complainant, did not seek review

of the decision of the court of appeals. Petitioners were also

“reluctant” to petition for writs of certiorari, but decided to

file petitions after “receiving notice of the decision of this

Court on December 12, 1949, in the cases of United States v.

Aetna Casualty Co. * * *” [No. 35, this Term]. See p. 3

of Petitioners’ “Motion to Extend Time for Filing Petition for

Writ of Certiorari” and p. 1 of the Affidavit attached to the

motion.

—

—

1939, 1942). In order to determine the amount to

be paid by Germany in satisfaction of her financial

obligations to the United States under the Treaty

of Berlin, an agreement was made between the two

Governments on August 10, 1922 (42 Stat. 2200),

providing for the establishment of a Mixed Claims

Commission.

8

The Commission consisted of three members, one

appointed by the United States, another by Ger-

many, and an umpire, selected by the two Govern-

ments, who decided ‘‘any cases concerning which

the commissioners’’ disagreed. 42 Stat. 2201. More

than 20,000 claims were presented by the United

States to the Commission, which entered a total of

7,025 awards. Final Report of H. H. Martin, Act-

ing Agent of the United States before the Mixed

Claims Commission (1941), p. 94.

In 1928 Congress passed the Settlement of War

Claims Act (45 Stat. 254) establishing the fund

known as the German Special Deposit Account out

of which the Commission’s awards to the United

States on behalf of American nationals were to be

paid. The Act provided that 20% of the seized

property of World War I German nationals,

together with funds contributed by Germany for

the payment of the awards, should be paid into the

Special Account. It further provided for the re-

turn to German nationals of the remaining 80% of

the seized property which the United States then

held for the protection of the American awards.

>

—,

9

On June 23, 1930, in accordance with the provi-

sions of the Debt Funding Agreement between Ger-

many and the United States pursuant to the Act

of June 5, 1930 (46 Stat. 500), the United States

accepted German bonds in a sum sufficient to liqui-

date all of the unpaid awards of the Commission.

The bonds were to be paid in 103 installments cover-

ing a period expiring March 31, 1981. Germany

defaulted after paying the third installment on

March 30, 1931. Final Report of H. H. Martin,

Acting Agent of the United States before the Mixed

Claims Commission (1941), p. 95. By that time

most of the 80% of the seized German property,

which the United States had held for payment of

the American awards, had already been released as

required by the Settlement of War Claims Act.

93 Cong. Ree. 9289. In order to cut off a still fur-

ther depletion of that property, the Harrison Reso-

lution of June 27, 1934 (48 Stat. 1267), directed

that all further payments under the Settlement of

War Claims Act, insofar as it called for payments

to German nationals, should be postponed so long

as Germany remains in default.

Because of Germany’s default, the balance in the

Special Account was insufficient to make further

payments on the Commission’s awards.” However,

5 The Act of August 6, 1947 (61 Stat. 789), provided for

the building up of the Special Account by transferring to it,

from the Alien Property Trust Fund, about $8,000,000 of

seized German World War I property, which would have been

returnable to its former German owners but for the Harrison

Resolution. House Report No. 973, 80th Cong., Ist sess.,

p. 2; Senate Report No. 679, 80th Cong., Ist sess., p. 2.

—_—_—a

SO OE AEE ALE

10

despite that default, all but 451 of the 7,025 awards

made by the Mixed Claims Commission on claims

of American nationals arising out of World War I

have been paid in full. Those claims paid in full

include all awards on account of death or personal

injury as well as all property damage claims of

$100,000 or less. The 451 partially-paid awards

represent property damage claims in excess of

$100,000. (93 Cong. Ree. 9288.)

ARGUMENT

Petitioners contend that the awards of the Mixed

Claims Commission resulted in a trust of which

Germany was the settlor, the United States the

trustee and petitioners the beneficiaries. They fur-

ther argue that the United States violated that

‘“*trust’’ when it failed to apply German property

seized during World War II to the payment of

their awards. Finally it is urged that the alleged

breach of trust constitutes a tort, actionable under

the Federal Tort Claims Act. These arguments

were urged upon, and rejected by, both courts

below. That rejection, we submit, was plainly cor-

rect and does not warrant further review by this

Court.

1. The conclusive answer to petitioners’ trust-

creation theory is that it is ‘‘impossible to hold the

United States to be a trustee for anyone when

it receives a sum of money from a foreign govern-

ment, paid in pursuance of a treaty, for the satis-

faction of claims of American citizens against such

—

11

government * * *.’’ Great Western Insurance

Co. v. United States, 19 C. Cls. 206, 217, affirmed on

other grounds, 112 U. S. 193; cf. Angarica v.

Bayard, 127 U. S, 251, 259; Koessler, Government

Espousal of Private Claims Before International

Tribunals, 13 U. of Chi. L. Rev. 180, 182 (1946).

Well-settled principles of international law and the

provisions of the Settlement of War Claims Act of

1928, which created the German Special Deposit

Account, bring that impossibility into sharp focus

in the instant case.

Since foreign governments may not without their

consent be subjected to suits in the courts of the

United States, the claims of American nationals

against such governments may be prosecuted “‘not

by suit in the courts, as of right, but by diplomacy,

or, if need be, by war’’ United States v. Dickelman,

92 U. S. 520, 524; Frelinghuysen v. Key, 110 U.S.

63,72; The Exchange,7 Cranch 116, Only with the

consent of the government involved will a claim on

behalf of a national of one sovereign be allowed to

proceed against another sovereign. See Un ited

States v. Diekelman, 92 U. S. 520, 524; LaAbra

Silver Mining Co. v. United States, 175 U.S. 423,

455-463.

In the orderly conduct of its foreign relations it

is obvious that a Government must be allowed to

exercise its discretion as to whether it should

espouse the claim of one of its nationals against a

foreign government. Jessup, A Modern Law of

Nations (1948), p.98. When it does espouse a claim,

ee

12

as the United States did when it provided for the

creation of the Mixed Claims Commission and pre-

sented to that Commission the claims of its na-

tionals, it makes those claims ‘‘its own.’’ Boynton

v. Blaine, 139 U.S. 306, 323. As this Court pointed

out in Z. and F. Assets Corp. v. Hull, 311 U. 8. 470,

487, ‘‘the claims to be considered by the [Mixed

Claims ] Commission were only those sponsored and

presented by the United States against Germany.

They were presented as claims of the United States,

the national claimants themselves having no stand-

ing save as they were represented by the United

States.’’ Moreover, not only do the espoused claims

themselves become those of the Government, but the

funds received by the United States, in payment,

are property of the United States until payment is

made to the private claimants. Williams v. Heard,

140 U.S. 529, 537-538. Although the United States

is under a ‘‘moral obligation’? to make payment,

‘*no individual claimant had, as a matter of strict

legal or equitable right, any lien upon the fund

awarded, nor was Congress under any legal or

equitable obligation to pay any claim out of the

proceeds of that fund.’? Williams v. Heard, supra.

The Settlement of War Claims Act of 1928, in

creating the German Special Deposit Account, fully

recognized this lack of legal or equitable ownership

on the part of individual claimants and, far from

establishing any private rights in those claimants,

specifically prohibited the assumption by the

_———

13

United States of any liability to them (R. 16A) ;

Section 2(h), Appendix, infra, pp. 24-25. The funds

in that account have accordingly been held to be

under the absolute ownership of the United States.

Cummings v. Deutsche Bank, 300 U. S. 115, 120-

124; Drier v. United States, 108 C. Cls. 487, 490.

This absolute ownership on the part of the United

States precludes, of course, the existence of any

trust in favor of the individual claimants.

9. Even assuming the creation of a trust to bene-

fit American owners of property seized by Germany

during World War I, the record here shows no

violation of that trust. Its res would have had to

be either the monies retained under the Settlement

of War Claims Act of 1928 or those received from

Germany under the Debt Funding Agreement of

1930 (supra, pp. 8-9), é.e., the payments earmarked

for the satisfaction of Mixed Claims Commission’s

awards. In none of the complaints in this case,

however, is there any allegation that these funds

were not applied to the satisfaction of those awards.

Petitioners’ assumption that the trust res con-

sists of German property sequestered by the United

States during World War II is completely un-

founded. Certainly, not a syllable in the Settle-

ment of War Claims Act of 1928, or in the Debt

| Funding Agreement, would warrant allocating

alien property seized during World War II for the

purpose of indemnifying petitioners’ World War I

a

14

damages. That such an allocation was never in-

tended by Congress is made further apparent by

its rejection of prior attempts by World War I

claimants to be paid out of the World War II

funds. See Memoranda and discussion on “‘ Indebt-

edness to American Nationals on World War I

Adjudicated Awards of the Mixed Claims Commis-

sion,’’ pp. 46-56, 138-157, Hearings before the Sen-

ate Committee on the Judiciary on H. R. 4044, 80th

Cong., 2d sess. In fact, at those hearings, counsel

for the World War I claimants specifically ad-

mitted that, apart from a small balance of funds

left over from World War I, his clients have no

claim to ‘‘any other funds now in the hands of the

Alien Property Custodian.’”’ Jd. at p. 157. Even

more significant is the fact that when Congress

enacted H. R. 4044 into the War Claims Act of 1948

(Public Law 896, 80th Cong., 2d sess.), it set upa

comprehensive scheme for the disposition of prop-

erty seized during World War II but made abso-

lutely no provision for an allocation of any of that

property to the satisfaction of World War I claims.

3. Finally, the language of the Federal Tort

Claims Act and its express exceptions make it ob-

vious that that Act may not be here applied even

if the breach of a trust relationship is assumed.

a. The type of damage for which the United

States assumed liability under the Federal Tort

Claims Act is ‘‘damage to or loss of property or

* * * personal injury or death”’. Section 410(a),

i

15

Appendix, infra, pp. 19-20. This language relates

to the ordinary common law tort resulting from

trespass, and connotes physical damage. It is con-

sistent with the title of the Act which refers only to

“tort claims.’’ The Act’s legislative history also

shows that it was intended to encompass common

| law tort claims only. Thus, the purpose of the con-

templated legislation was stated to be to allow suit

‘‘against the Government in respect to any common

law tort.’’ It was further stated that the ‘‘existing

exemption in respect to common law torts appears

incongruous. Its only justification seems to be his-

torical. With the expansion of governmental ac-

tivities in recent years, it becomes especially im-

portant to grant to private individuals the right to

sue the Government in respect to such torts as neg-

ligence in the operation of vehicles.’’ House Re-

port No, 2428 on H. R. 7236, 76th Cong., 3d sess.,

pp. 2-3. See also Senate Report 1196 on S. 2221,

Tith Cong., 2d sess., p. 5.

It is well-settled that the beneficiary of a trust

may not maintain an action at law in tort against

the trustee for breach of trust. 2 Scott, Trusts,

Sec. 197.1 (1939). His remedies against the trustee

are traditionally equitable. McKee v. Lamon, 159

U.S. 317, 322. He may sue for the specific enforce-

ment of the trustee’s duties, seek to enjoin the trus-

tee from violating the trust, or institute proceed-

ings for the removal of the trustee and the appoint-

ment of a receiver to administer the trust. In the

16

few instances where the beneficiary may sue at law,

he is restricted to an action for money had and

received. Carl Byoir and Associates v. Tsune-Chi

Yu, 112 F. 2d 885 (C. A. 2), certiorari denied, 311

U.S. 699; Parker State Bank v. Pennington, 9 F.

2d 966, 969 (C. A. 8); see Restatement, Trusts,

Section 198. Since he may not, however, proceed

at law in an action in tort, the Federal Tort Claims

Act is, we submit, inapplicable.

b. At least one express exception in the Federal

Tort Claims Act furnishes another, independent

ground for its inapplicability to the claims here

presented by petitioners. Section 421(e) expressly

excludes ‘‘any claim arising out ef an act or omis-

sion of any employee of the Government in ad-

ministering the provisions of the Trading with the

EnemyAct, as amended.’’ (Appendix, infra, p.

21). As pointed out above, pp. 7-8, the relief sought

by petitioners is based on rights which they claim

under the Settlement of War Claims Act of 1928.

That Act specifically states that it is an amendment

to the Trading with the Enemy Act. (45 Stat. 254,

268, 270, 271). That it means just what it says is

evident from the concurring opinion of Mr. Justice

Burton in Markham vy. Cabell, 326 U. S. 404, 413,

where the history of the Trading with the Enemy

Act and its amendments are reviewed. The opinion

points out that ‘‘later amendments [t.e., of the

Trading with the Enemy Act] emphasized this re-

striction of Section 9(e) to World War I, while

17

preserving the general and permanent character

of Section 9(a)’’. 326 U.S. 404,418. Ina footnote

to that quotation the ‘‘later amendments”’ are

enumerated. Included in that enumeration is the

Act of ‘‘March 10, 1928 (45 Stat. 254-279). This

was the ‘Settlement of War Claims Act of 1928.’

It dealt expressly with World War I. It was con-

cerned with such subjects as the ‘Mixed Claims

Commission’ and ‘The Tripartite Claims Commis-

sion.’ It amended the Trading with the Enemy Act

in many details as to World War I claims and

added many new provisions as to those claims’’.

396 U.S. 404, 418-419, fn. 4. (Emphasis supplied).

e. In addition, the Federal Tort Claims Act au-

thorizes the entry of judgments for claims against

the United States for money only. Section 410(a),

Appendix, infra, p. 19. These judgments are pay-

able out of specific ‘‘appropriation Act(s)”’’ espe-

cially passed for that purpose. 28 U.S. C. 2411,

28 U. S. C. 2517; and see Section 411, Federal Tort

Claims Act, 60 Stat. 844. Here, however, petition-

ers seek payment by the respondent Secretary of

the Treasury out of the German Special Deposit

Account—a result obviously inconsistent with the

Act.®

® As far as the respondent Secretary of the Treasury is

concerned, there is no allegation in any of the complaints

that pursuant to Section 2(a) of the 1928 Act (Appendix,

infra, p. 24) the Secretary of State has certified to the Secre-

tary of the Treasury the portions of the Mixed Claims Com-

mission awards here involved. Under the 1928 Act the

Secretary of State alone has the authority to consider and

18

CONCLUSION

For the reasons stated, it is respectfully submit-

ted that the petition for a writ of certiorari should

be denied.

Puiuip B. PERLMAN,

Solicitor General.

_ H.G. Morison,

Assistant Attorney General.

| Pau A. SWEENEY,

Morton HoLuanpDeR,

Attorneys.

Marcu, 1950.

pass upon the regularity and validity of the awards made by

the Mixed Claims Commission for the statutory purpose of

qualifying them for payment by the Secretary of the Treasury.

In the absence of an allegation of certification by the Secretary

of State, there is no basis upon which the Secretary of the

Treasury could make payment of the award even were such

a matter one where resort could be had to the courts. Z. and F.

Assets Corp. v. Hull, 311 U.S. 470, 486-487.

19

APPENDIX

1. Sections 410, 420, 421 of the Federal Tort

Claims Act (60 Stat. 842, 843-846)" provide in per-

tineut part:

Src. 410. (a) Subject to the provisions of

this title, the United States district court for

the district wherein the plaintiff is resident

or wherein the act or omission complained of

occurred, including the United States district

courts for the Territories and possessions of

the United States, sitting without a jury, shall

have exclusive jurisdiction to hear, determine,

and render judgment on any claim against the

United States, for money only, accruing on

and after January 1, 1945, on account of dam-

age to or loss of property or on account of per-

sonal injury or death caused by the negligent

or wrongful act or omission of any employee

of the Government while acting within the

scope of his office or employment, under cir-

cumstances where the United States, if a pri-

vate person, would be liable to the claimant for

such damage, loss, injury, or death in accord-

ance with the law of the place where the act

or omission occurred. Subject to the provi-

sions of this title, the United States shall be

liable in respect of such claims to the same

claimants, in the same manner, and to the

same extent as a private individual under like

circumstances, except that the United States

shall not be liable for interest prior to judg-

TSee footnote 1, supra, p. 3.

—

20

ment, or for punitive damages. Costs shall be

allowed in all courts to the successful claimant

to the same extent as if the United States were

a private litigant, except that such costs shall

not include attorneys’ fees.

(b) The judgment in such an action shall

constitute a complete bar to any action by the

claimant, by reason of the same subject matter,

against the employee of the Government whose

act or omission gave rise to the claim. * * *

Sec. 420. Every claim against the United

States cognizable under this title shall be for-

ever barred, unless within one year after such

claim accrued or within one year after the date

of enactment of this Act, whichever is later, it

is presented in writing to the Federal agency

out of whose activities it arises, if such claim

is for a sum not exceeding $1,000; or unless

within one year after such claim accrued or

within the year after the date of enactment of

this Act, whichever is later, an action is begun

pursuant to part 3 of this title. In the event

that a claim for a sum not exceeding $1,000 is

presented to a Federal agency as aforesaid, the

time to institute a suit pursuant to part 3 of

this title shall be extended for a period of six

months from the date of mailing of notice to the

claimant by such Federal agency as to the final

disposition of the claim or from the date of

withdrawal of the claim from such Federal

agency pursuant to section 410 of this title, if

it would otherwise expire before the end of

such period.

21

Src. 421. The provisions of this title shall

not apply to—

(a) Any claim based upon an act or omis-

sion of an employee of the Government, exer-

cising due care, in the execution of a statute or

regulation, whether or not such statute or regu-

lation be valid, or based upon the exercise or

performance or the failure to exercise or per-

form a discretionary function or duty on the

part of a Federal agency or an employee of

the Government, whether or not the discretion

involved be abused.

* * * x *

(e) Any claim arising out of an act or

omission of any employee of the Government

in administering the provisions of the Trading

with the Enemy Act, as amended.

* ” * * —

(j) Any claim arising out of the combatant

activities of the military or naval forces, or

the Coast Guard, during time of war.

(k) Any claim arising in a foreign country.

* * * * .

2. The Agreement of August 10, 1922, between

the United States and Germany, 42 Stat. 2200,

provided :

The United States of America

and

Germany,

being desirous of determining the amount to

be paid by Germany in satisfaction of Ger-

many’s financial obligations under the Treaty

a

concluded by the two Governments on August

25, 1921, which secures to the United States

and its nationals rights specified under a res-

olution of the Congress of the United States

of July 2, 1921, including rights under the

Treaty of Versailles, have resolved to submit

the questions for decision to a mixed commis-

sion and have appointed as their plenipoten-

tiaries fur the purpose of concluding the fol-

lowing agreement :

THE PRESIDENT OF THE UNITED STATES OF

AMERICA

Alanson B. Houghton, Ambassador Extraor-

dinary and Plenipotentiary of the United

States of America to Germany,

22

and

THE PRESIDENT OF THE GERMAN EMPIRE

Dr. Wirth, Chancellor of the German Empire,

Who, having communicated their full

powers, found to be in good and due form,

have agreed as follows:

ARTICLE I

The commission shall pass upon the follow-

ing categories of claims which are more par-

ticularly defined in the Treaty of August 25,

1921, and in the Treaty of Versailles:

(1) Claims of American citizens, arising

since July 31, 1914, in respect of damage to, or

seizure of, their property, rights and interests,

including any company or association in

which they are interested, within German ter-

ritory as it existed on August 1, 1914;

—_7"

23

(2) Other claims for loss or damage to

which the United States or its nationals have

been subjected with respect to injuries to per-

sons, or to property, rights and interests, in-

cluding any company or association in which

American nationals are interested, since July

31, 1914, as a consequence of the war;

(3) Debts owing to American citizens by the

German Government or by German nationals.

* * * * *

ARTICLE VI

The two Governments may designate agents

and counsel who may present oral or written

arguments to the commission.

The commission shall receive and consider

all written statements or documents which may

be presented to it by or on behalf of the respec-

tive Governments in support of or in answer to

any claim.

The decisions of the commission and those of

the umpire (in case there may be any) shall be

accepted as final and binding upon the two

Governments.

ARTICLE VIL

The present agreement shall come into force

on the date of its signature.

In FartH WHEREOF, the above-named pleni-

potentiaries have signed the present agree-

ment and have hereunto affixed their seals.

Done in duplicate at Berlin this tenth day

of August 1922.

[SEAL ] Axanson B. HoucHrTon.

[SEAL ] WIRTH.

=

3. Section 2 of the Settlement of War Claims Act

of 1928 (45 Stat. 254) provides in pertinent part:

Sec. 2. (a) The Secretary of State shall,

from time to time, certify to the Secretary of

the Treasury the awards of the Mixed Claims

Commission, United States and Germany,

established in pursuance of the agreement of

August 10, 1922, between the United States

and Germany (referred to in this Act as the

**Mixed Claims Commission’’).

(b) The Secretary of the Treasury is author-

ized and directed to pay an amount equal to the

principal of each award so certified, plus the

interest thereon, in accordance with the award,

accruing before January 1, 1928.

24

(c) The Secretary of the Treasury is author-

ized and directed to pay annually (as nearly as

may be) simple interest, at the rate of 5 per

centum per annum, upon the amounts payable

under subsection (b) and remaining unpaid,

beginning January 1, 1928, until paid.

(d) The payments authorized by subsection

(b) or (e) shall be made in accordance with

such regulations as the Secretary of the

Treasury may prescribe, but only out of the

German special deposit account created by sec-

tion 4, within the limitations hereinafter pre-

scribed, and in the order of priority provided

in subsection (¢) of section 4.

* * * * *

(h) Nothing in this section shall be con-

strued as the assumption of a liability by the

United States for the payment of the awards of

_

=>"

25

the Mixed Claims Commission, nor shall any

payment under this section be construed as

the satisfaction, in whole or in part, of any of

such awards, or as extinguishing or diminish-

ing the liability of Germany for the satisfac-

tion in full of such awards, but shall be con-

sidered only as an advance by the United

States until all the payments from Germany in

satisfaction of the awards have been received.

Upon any payment under this section of an

amount in respect of an award, the rights in

respect of the award and of the claim in re-

spect of which the award was made shall be

held to have been assigned pro tanto to the

United States, to be enforced by and on behalf

of the United States against Germany, in the

same manner and to the same extent as such

rights would be enforced on behalf of the

American national.

(i) Any person who makes application for

payment under this section shall be held to

have consented to all the provisions of this Act.

* 7 * * *

4. Section 4 of the Settlement of War Claims Act

of 1928 (45 Stat. 260, as amended by the Act of

August 6, 1947, 61 Stat. 789) provides:

Src. 4, (a) There is hereby created in the

Treasury a German special deposit account,

into which shall be deposited all funds herein-

after specified and from which shall be dis-

bursed all payments authorized by section 2 or

3, including the expenses of administration

authorized under subsections (c) and (m) of

section 3 and subsection (e) of this section.

i.

(b) The Secretary of the Treasury is auth-

orized and directed to deposit in such special

deposit account—

26

(1) All sums invested or transferred by

the Alien Property Custodian, under the

provisions of section 25 of the Trading with

the Enemy Act, as amended;

(2) The amounts approvriated under the

authority of section 3 (relating to claims of

German nationals) ;

(3) All money (including the proceeds of

any property, rights, or benefits which may

be sold or otherwise disposed of, upon such

terms as he may prescribe) received, whether

before or after the enactment of this Act, by

the United States in respect of claims of the

United States against Germany on account

of the awards of the Mixed Claims Commis-

sion; and

(4) All money held in the Alien Prop-

erty Trust Fund whose payment is re-

stricted under the joint resolution entitled

‘Joint resolution to amend the Settlement

of War Claims Act of 1928, as amended”’,

approved June 27, 1934, other than prop-

erty with respect to which the restrictions

imposed by such joint resolution have been

removed by the President prior to the enact-

ment of this paragraph [August 6, 1947].

The Attorney General shall certify to the

Secretary of the Treasury the amounts to

be so deposited.

_——

27

(ec) The Secretary of the Treasury is author-

ized and directed, out of the funds in such spe-

cial deposit account, subject to the provisions

of subsection (d), and in the following order

of priority—

(1) To make the payments of expenses of

administration authorized by subsections

(c) and (m) of section 3 or subsection (e)

of this section ;

(2) To make so much of each payment

authorized by subsection (b) of section 2

(relating to awards of the Mixed Claims

Commission), as is attributable to an award

on account of death or personal injury, to-

gether with interest thereon as provided in

subsection (c) of section 2;

(3) To raake each payment authorized by

subsection (b) of section 2 (relating to

awards of the Mixed Claims Commission).

if the amount thereof is not payable under

paragraph (2) of this subsection and does

not exceed $100,000, and to pay interest

thereon as provided in subsection (c) of see-

tion 2;

(4) To pay the amount of $100,000 in re-

spect of each payment authorized by sub-

section (b) of section 2 (relating to awards

of the Mixed Claims Commission), if the

amount of such authorized payment is in

excess of $100,000 and is not payable in full

under paragraph (2) of this subsection. No

person shall be paid under this paragraph

and paragraph (3) an amount in excess of

ae.

$100,000 (exclusive of interest beginning

January 1, 1928), irrespective of the num-

ber of awards made on behalf of such person;

(5) To make additional payments auth-

orized by subsection (b) of section 2 (relat-

ing to awards of the Mixed Claims Commis-

sion), in such amounts as will make the

aggregate payments (authorized by such

subsection) under this paragraph and para-

graphs (2), (3), and (4) of this subsection

equal to 80 per centum of the aggregate

amount of all payments authorized by sub-

section (b) of section 2. Payments under

this paragraph shall be prorated on the

basis of the amount of the respective pay- |

ments authorized by subsection (b) of section

2 and remaining unpaid. Pending the com-

pletion of the work of the Mixed Claims

Commission, the Secretary of the Treasury

is authorized to pay such installments of the

payments authorized by this paragraph as

he determines to be consistent with prompt

payment under this paragraph to all persons

on behalf of whom claims have been pre-

sented to the Commission ;

(6) To pay amounts determined by the

Secretary of the Treasury to be payable in

respect of the tentative awards of the Ar-

biter, in accordance with the provisions of

subsection (s) of section 3 (relating to

awards for ships, patents, and radio sta-

tions) ;

(7) To pay to German nationals such

amounts as will make the aggregate pay- |

28

V7_

29

ments equal to 50 per centum of the amounts

awarded under section 3 (on account of ships,

patents, and radio stations). Payments au-

thorized by this paragraph or paragraph (6)

may, to the extent of funds available under

the provisions of subsection (d) of this

section, be made whether or not the payments

under paragraphs (1) to (5), inclusive, of

this subsection have been completed ;

(8) To pay (A) the accrued interest pay-

able under subsection (c) of section (2) (in

respect of awards of the Mixed Claims Com-

mission) and (B) after such interest has

been paid in full, to pay amounts equal to

the difference between the aggregate pay-

ments (in respect of awards of the Mixed

Claims Commission) authorized by subsec-

tions (b) and (c) of section 2 and the

amounts previously paid in respect thereof:

Provided, That, for the purpose only of sub-

section (c) of section 2, the amounts payable

under subsection (b) of section 2 and re-

maining unpaid shall be deemed reduced by

the amount of any payments of interest

hereafter made under clause (A) hereof;

(9) To pay into the Treasury as miscel-

laneous receipts the amount of the awards

of the Mixed Claims Commission to the

United States on its own behalf on account

of claims of the United States against Ger-

many ;

(10) To pay the accrued interest payable

under subsection (h) of section 3 (in re-

spect of awards to German nationals) ;

~~ —e

=

(11) To make such payments as are nec-

essary (A) to repay the amounts invested by

the Alien Property Custodian under subsec-

tion (a) of section 25 of the Trading With

the Enemy Act, as amended (relating to the

investment of 20 per centum of German

property temporarily withheld), (B) to pay

amounts equal to the difference between the

aggregate payments (in respect of claims of

German nationals) authorized by subsec-

tions (g) and (h) of section 3 and the

amounts previously paid in respect thereof.

If funds available are not sufficient to make

the total payments authorized ly this para-

graph, the amount of payments made from

time to time shall be apportioned among the

payments authorized under clauses (A) and

(B), according to the aggregate amount re-

maining unpaid under each clause;

30

(12) To pay accrued interest upon the

participating certificates evidencing the

amounts invested by the Alien Property

Custodian under subsection (a) of section

25 of the Trading With the Enemy Act, as

amended (relating to the investment of 20

per centum of German property tempo-

rarily withheld) ;

(13) To make such payments as are neces-

sary to repay the amounts invested by the

Alien Property Custodian under subsection

(b) of section 25 of the Trading With the

Enemy Act, as amended (relating to the in-

vestment of the unallocated interest fund) ;

but the amount payable under this para-

—

31

graph shall not exceed the aggregate amount

allocated to the trusts described in subsection

(c) of section 26 of such Act; and

(14) To pay into the Treasury as miscel-

laneous receipts any funds remaining in the

German special deposit account after the

payments authorized by paragraphs (1) to

(12) have been completed.

* * * * *

vy U. S. GOVERNMENT PRINTING OFFICE: 1950 e7seca sie

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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