Under § 35 of the Act of April 12, 1900, this Court can review
on writ of error a final judgment of the District Court of the
United States for Porto Rico, where the amount in dispute exceeds
$5,000, and a final judgment in a like case in the Supreme Court of
one of the territories of the United States could be reviewed by
this Court.
An action which could be brought under the Tucker Act against
the United States in either a district or a circuit court of the
United States is within the cognizance of the District Court of the
United States of Porto Rico.
Quaere, and not decided,
whether a foreign corporation can maintain any
Page 194 U. S. 316
action under the Tucker Act in any court in view of the
provisions of the act that the petition must be filed in the
district where the plaintiff resides.
The seizure and detention by the military and naval forces of
the United States during the war with Spain of a vessel owned by
Spanish subjects was a seizure of enemy's property, and an act of
war within the limits of military operations, although the owners
were not directly connected with military operations, and a claim
for damages for such seizure and detention is not founded on the
Constitution of the United States or on any act of Congress or
regulation of an Executive Department, or on any contract, express
or implied, and an action based thereon is not sanctioned by the
Tucker Act, and cannot be maintained thereunder.
This action was brought against the United States by J. Ribas y
Hijo, a Spanish corporation, to recover the sum of ten thousand
dollars as the value of the use of a certain merchant vessel taken
by the United States in the Port of Ponce, Porto Rico, when that
city was captured by the United States Army and Navy on July 28,
1898.
The vessel was kept and used by the Quartermaster's Department
of the Army until sometime in April, 1899, when the War Department
ordered its return to the owner if all claim for use or damage for
detention should be waived. Such conditional return was refused by
the captain, who claimed to be a part owner, and, with his crew, he
left the vessel.
Subsequently the consignees of the vessel were notified that it
was at their disposal; that the government was about to discharge
those having it in care, and they were requested to put someone in
control of it. This they declined to do, and the vessel was
abandoned, and in August, 1899, was wrecked in a hurricane.
The vessel was never in naval custody nor condemned as
Page 194 U. S. 317
prize. When seized, it was a Spanish vessel, carried the Spanish
flag, and its owner, captain, and crew were all Spanish subjects.
It did not come within any of the declared exemptions from seizure
set forth in the Proclamation of the President of April 26, 1898.
30 Stat. 1770. A claim filed in the War Department in February,
1900, for its use was rejected.
Such being the facts found, the court below, upon final hearing,
dismissed the action upon the general ground that the vessel was
properly seized as enemy's property, and its use was by the war
power for war purposes.
A rehearing was asked and was denied, the court saying:
"A rehearing is asked upon the ground that the court has found
as a matter of fact that the use continued until in April, 1899,
and, as the protocol, followed by the President's proclamation, was
dated August 12 1898, the complainants should recover on a
quantum meruit the value of the use of the vessel between
those dates. This was a seizure in time of war, and not in time of
peace. It was, as has been said, a special case arising from the
necessary operation of war, and the war power of the government
concluded it was necessary to take and use the property. Even
conceding that the seizure did not terminate all right of the
Spanish owner in the property, or to any use of it, yet the
protocol and proclamation did not end the war. The protocol worked
a mere truce. The President had not the power to terminate the war
by treaty without the advice or consent of the Senate of the United
States. If a treaty be silent as to when it is to become effective,
the weight of authority is that it does not become so until
ratified, and this was not done until in April, 1899, and the war
did not end by treaty until then, and all the use made by the
government of the vessel was justified by the rules of law and
international law, without compensation. "
Page 194 U. S. 320
MR. JUSTICE HARLAN delivered the opinion of the Court.
1. By the thirty-fifth section of the Act of Congress of April
12, 1900, c. 191, temporarily providing revenues and civil
government for Porto Rico, it was declared that
"writs of error and appeals from the final decisions of the
Supreme Court of Porto Rico and the district court of the United
States shall be allowed, and may be taken to the Supreme Court of
the United States in the same manner, and under the same
regulations, and in the same cases, as from the supreme courts of
the territories of the United States, and such writs of error and
appeal shall be allowed in all cases where the Constitution of the
United States, or a treaty thereof, or an act of Congress is
brought in question, and the right claimed thereunder is denied. .
. ."
As the value of the matter here in dispute exceeds the sum of
$5,000, and as the final judgment in a like case in the supreme
court of one of the territories of the United States could be
reexamined here, we have jurisdiction of the present appeal from
the District
Page 194 U. S. 321
Court of the United States for Porto Rico. 23 Stat. 443, c. 355;
31 Stat. 85 c. 191, §§ 34, 35;
Royal Insurance Co. v.
Martin, 192 U. S. 149.
2. This action, we have seen, was brought to recover the value
of the use of a vessel belonging to Spanish subjects, and taken by
our Army and Navy during the war with Spain, and used by the
Quartermaster's Department of the Army.
By the above Act of April 12, 1900, the court below was
given,
"in addition to the ordinary jurisdiction of district courts of
the United States, jurisdiction of all cases cognizant in the
circuit courts of the United States, and shall proceed therein in
the same manner as a circuit court."
31 Stat. 84, c. 191, § 34. If, therefore, this action could have
been brought in a circuit court of the United States, it was within
the cognizance of the court below. We must, then, look to the Act
of March 3, 1887, commonly known as the Tucker Act, and which
provides for the bringing of suits against the government of the
United States. 24 Stat. 505, c. 359.
By the first section of that act, it is provided that the Court
of Claims shall have jurisdiction to hear and determine
"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. . . ."
The second section provides that
"the district courts of the United States shall have concurrent
jurisdiction with the Court of Claims as to all matters named 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."
The fifth
Page 194 U. S. 322
section is in these words:
"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."
The government insists that the requirement in that act that the
petition shall be filed "in the district where the plaintiff
resides" precludes a suit against the United States by any person,
natural or corporate, residing out of the country. We express no
opinion upon that question, as there are other grounds upon which
we may satisfactorily rest our decision.
The present suit finds no sanction in the above act, even if the
plaintiff were not a foreign corporation. Its claim is not founded
on the Constitution of the United States, or on any act of
Congress, or on any regulation of an executive department. Nor can
it be said to be founded on contract, express or implied. There is
no element of contract in the case, for nothing was done by the
United States, nor anything said by any of its officers, from which
could be implied an agreement or obligation to pay for the use of
the plaintiff's vessel. According to the established principles of
public law, the owners of the vessel, being Spanish subjects, were
to be deemed enemies, although not directly connected with military
operations. The vessel was therefore to be deemed enemy's property.
It was seized as property of that kind, for purposes of war, and
not for any purposes of gain. The case does not come within the
principle announced in
United States v. Great Falls Mfg.
Co., 112 U. S. 645,
112 U. S. 656,
where this Court said that,
"the United States having, by its agents proceeding under the
authority of an act of Congress, taken the property of claimant for
public use, are under an obligation, imposed
Page 194 U. S. 323
by the Constitution, to make compensation. The law will imply a
promise to make the required compensation where property to which
the government asserts no title is taken pursuant to an act of
Congress as private property, to be applied for public uses. Such
an implication being consistent with the constitutional duty of the
government, as well as with common justice, the claimant's cause of
action is one that arises out of implied contract within the
meaning of the statute which confers jurisdiction upon the Court of
Claims of actions founded 'upon any contract, expressed or implied,
with the government of the United States.'"
The seizure, which occurred while the war was flagrant, was an
act of war, occurring within the limits of military operations. The
action, in its essence, is for the recovery of damages, but, as the
case is one sounding in tort, no suit for damages can be maintained
under the statute against the United States. It is nonetheless a
case sounding in tort because the claim is in form for the use of
the vessel after actual hostilities were suspended by the protocol
of August 12, 1898. A state of war did not, in law, cease until the
ratification in April, 1899, of the treaty of peace. "A truce or
suspension of arms," says Kent,
"does not terminate the war, but it is one of the
commercia
belli which suspends its operations. . . . At the expiration
of the truce, hostilities may recommence without any fresh
declaration of war."
1 Kent, 159, 161. If the original seizure made a case sounding
in tort, as it undoubtedly did, the transaction was not converted
into one of implied contract because of the retention and use of
the vessel pending negotiations for a treaty of peace. Besides, the
treaty of peace between the two countries provided that
"the United States and Spain mutually relinquish all claims for
indemnity, national and individual, of every kind, of either
government, or of its citizens or subjects, against the other
government, that may have arisen since the beginning of the late
insurrection in Cuba and prior to the exchange of ratifications of
the present treaty, including all claims for indemnity for the cost
of the war. The United
Page 194 U. S. 324
states will adjudicate and settle the claims of its citizens
against Spain, relinquished in this article."
This stipulation clearly embraces the claim of the plaintiff,
its claim against the United States for indemnity having arisen
prior to the exchange of ratifications of the treaty of peace with
Spain.
We may add that, even if the Act of March, 1887, standing alone,
could be construed as authorizing a suit of this kind, the
plaintiff must fail, for it is well settled that, in case of a
conflict between an act of Congress and a treaty, each being the
supreme law of the land, the one last in date must prevail in the
courts.
The Cherokee
Tobacco, 11 Wall. 616,
78 U. S. 621;
Whitney v. Robertson, 124 U. S. 190,
124 U. S. 194;
United States v. Lee Yen Tai, 185 U.
S. 213,
185 U. S.
221.
It results that the judgment below dismissing the action must be
affirmed.
It is so ordered.
