We are of the opinion that a German corporation may not prosecute an action to enforce a right of property which is subject to seizure by the Alien Property Custodian under the provisions of the Trading with the Enemy Act, at least until the right of seizure is definitely terminated by law. It follows that the plaintiff may not maintain the instant suit at this time.
The plaintiff argues that the proviso contained in the Joint Resolution was abrogated by 'the events' which followed the approval of the said Resolution. We have carefully examined the documents upon which the plaintiff relies and we are of the opinion that the argument is without merit. We find nothing in these documents inconsistent with the proviso contained in the Joint Resolution. We therefore make only brief reference to these documents.
We must be guided in our interpretation of these documents by a fundamental principle of construction. It is well established that repeals 'by implication are never favored, and a later treaty will not be regarded as repealing an earlier statute by implication unless the two are absolutely incompatible and the statute cannot be enforced without antagonizing the treaty.' Johnson v. Browne, 205 U.S. 309, 321, 27 S. Ct. 539, 542, 51 L. Ed. 816; see also United States v. Lee Yen Tai, 185 U.S. 213, 22 S. Ct. 629, 46 L. Ed. 878; Whitney v. Robertson, 124 U.S. 190, 8 S. Ct. 456, 31 L. Ed. 386. A joint resolution regularly adopted and approved has the force and effect of a statute.
The plaintiff relies firstly, on the 'Treaty of Friendship, Commerce and Consular Rights,' ratified on July 21, 1953 and concluded on November 5, 1954. This treaty makes applicable, 'as a provisional measure pending the conclusion of a more comprehensive' treaty, the 'Treaty of Friendship, Commerce and Consular Rights,' concluded on December 8, 1923, 44 Stat. 2132.
The pertinent provision of Article I of the latter treaty reads as follows: 'The nationals of each High Contracting Party shall enjoin freedom of access to the courts of justice of the other on conforming to the local laws, as well for the prosecution as for the defense of their rights, and in all degrees of jurisdiction established by law.' This provision cannot be construed as a repeal of the Joint Resolution. The language reads in futuro and is consistent with the right preserved under the Joint Resolution, to wit, the right to seize and vest property subject to seizure and vesting prior to January 1, 1947.
The plaintiff relies secondly on the 'Treaty of Friendship, Commerce and Navigation with the Federal Republic of Germany,' signed on October 29, 1954 and ratified on July 27, 1955. The pertinent provision of Article VI of this treaty reads as follows: 'Nationals and companies of either Party shall be accorded national treatment with respect to access to the courts of justice * * * within the territories of the other Party, in all degrees of jurisdiction, both in pursuit and in defense of their rights.' This provision, like the provision contained in the earlier treaty, cannot be construed as a repeal of the Joint Resolution. The language, as in the earlier treaty, reads in futuro and is consistent with the right preserved under the Joint Resolution.
The plaintiff relies finally on the 'Bonn Occupation Agreements' of May 26, 1952 as amended by the 'Paris Protocol' of October 23, 1954. There is nothing in these agreements which may be construed as a repeal of the Joint Resolution. It is to be noted that Article 3, paragraph 1, of the 'Convention on the Settlement of Matters Arising out of the War and the Occupation' impliedly, if not expressly, recognizes the right reserved under the said Resolution. The pertinent language reads as follows: 'The Federal Republic (of Germany) shall in the future raise no objections against the measures which have been, or will be, carried out with regard to German external assets or other property, seized for the purpose of reparation or restitution, or as a result of a state of war, * * *.'
It does not follow, however, that the defendant is entitled to prevail on the present motion. A judgment under either Rule 12(c) or Rule 56(b) is essentially a judgment on the merits and may be entered only upon a conclusive determination of the issues of law. The only relief to which the defendant is entitled at this time is a dismissal of the action without prejudice; if and when the disqualification incident to the enemy status of the plaintiff is lifted, either by treaty or otherwise, the plaintiff may have a right to maintain its action in a court of competent jurisdiction.
The motion for judgment will be denied. The present action, however, will be dismissed, without prejudice to the right of the plaintiff to institute and maintain a new action when the disqualification is lifted.
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