170 F.2d 767 (9th Cir. 1948), 11948, Johnson v. United States

• Docket Number: 11948.
• Citation: 170 F.2d 767
• Date: 05 November 1948
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: JOHNSON et al. v. UNITED STATES.

Page 767

170 F.2d 767 (9th Cir. 1948)

JOHNSON et al.

v.

UNITED STATES.

No. 11948.

United States Court of Appeals, Ninth Circuit.

November 5, 1948

Page 768

Ryan, Askren & Mathewson and William J. Madden, all of Seattle, Wash., for appellants.

J. Charles Dennis, U.S. Atty., and Frank Pellgrini, Asst. U.S. Atty., both of Seattle, Wash., for appellee.

Before MATHEWS, BONE and ORR, Circuit Judges.

BONE, Circuit Judge.

This action for damages under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq. (1948 Judicial Code, 28 U.S.C.A. § 2671 et seq.), was brought against the United States for claimed pollution of appellants' so-called 'clam farm' by vessels of the United States Navy. The alleged pollution occurred from December, 1945 on into 1946, when the Navy, because of the existing congested conditions of many of the country's ports and consequent reasons of safety, anchored sixteen of its ammunition cargo vessels in Discovery Bay, State of Washington. The vessels, known as 'floating magazines, ' were capable of supplying ammunition at sea to various combat vessels of the Navy. They had previously been engaged in active logistical support of combat operations in the Pacific theater of war, and following the termination of hostilities with Japan on August 14, 1945, were sent to Discovery Bay there to wait assignment, according to the type of ammunition carried, to continental American ports for unloading when these ports became available. The vessels were manned and commanded by Naval personnel.

Appellants' complaint alleges that during this period these vessels discharged oils, sewage, and other noxious matter into the waters of Discovery Bay which polluted both the waters and the adjacent tide lands owned by appellants and upon which they had developed and maintained their commercial clam farm. As a result of this pollution the State of Washington on December 10, 1945 prohibited the taking of clams from appellants' lands for sale to the public, which order continued in force until the termination of the normal clam digging season. Damages are claimed for partial permanent injury to the clam farm and loss of the season's profits, totaling $46, 000.

Page 769

Appellee filed an answer generally denying all of the allegations of the complaint. Subsequently it moved to dismiss appellants' action ¹ on the ground that the court lacked jurisdiction of the cause and supported this motion by affidavits setting forth facts which it contends show that at the time named in the complaint, the said Naval vessels were engaged in combatant activities during time of war. The motion was based on the following exception to the general waiver of sovereign immunity embodied in the Tort Claims Act:

Sec. 943 'The provisions of this chapter shall not apply to-

(J.) Any claim arising out of the combatant activities of the military or naval forces, or Coast Guard, during time of war.' (Emphasis ours.) (1948 Judicial Code, 28 U.S.C.A. § 2680(j).)

The Government's motion to dismiss was granted and this appeal was taken.

An examination of the record fails to produce clear evidence of Congressional intent or policy which might guide us toward a proper interpretation of the language above quoted. The legislative history of the twelve general exceptions to sovereign liability appearing in the Act is singularly barren of Congressional observation apposite to the specific purpose of each...