Cobb v. United States

Decision Date27 August 1951
Docket NumberNo. 12746.,12746.
PartiesCOBB v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Frederick W. Kant, Allan H. Fish, Alvin J. Rockwell, John R. McDonough, Jr., Richard G. Logan and Brobeck, Phleger & Harrison, all of San Francisco, Cal., for appellant.

Frank J. Hennessy, U.S. Atty., Rudolph J. Scholz, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before STEPHENS, ORR and POPE, Circuit Judges.

ORR, Circuit Judge.

The controlling question on this appeal is whether the federal government has, by virtue of the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680, consented to be sued on a tort claim arising out of an accident which took place in October, 1948, on the island of Okinawa. In brief, the question is whether Okinawa was at that time a "foreign country" within the meaning of 28 U.S.C.A. § 2680(k) which excludes from the scope of the Act: "Any claim arising in a foreign country."

Appellant brought this action in the United States District Court for the Northern District of California to recover damages from the United States for personal injuries suffered in an automobile accident in Okinawa, where he was then employed by a contractor engaged in military construction. The accident allegedly resulted from the negligence of an unknown employee of the United States in leaving an unlighted crane parked on the road after dark.

Okinawa is an island in the Ryukyu Archipelago, south of the main Japanese islands and south of 30° north latitude. Prior to World War II, according to the Department of State, Japan was "acknowledged internationally to be the sovereign" of the Ryukyus.1 During World War II the United States conquered Okinawa, and has continuously occupied the island since that time. In September, 1945, the Department of State announced the policy of limiting "Japan's sovereignty" to the home islands.2 In furtherance of this policy the Supreme Commander, Allied Powers, in 1946 promulgated an order reading in part as follows: "1. The Imperial Japanese Government is directed to cease exercising, or attempting to exercise, governmental or administrative authority over any area outside of Japan, or over any government officials and employees or any other persons within such areas."3 "Japan" was defined to exclude those of the Ryukyus south of 30° north latitude, such as Okinawa.

Since its conquest Okinawa has had no independent legislative, executive or judicial government except the United States Military Government, which still controls the island.4 The United States operates naval, military and air bases on Okinawa, and a congressional committee has expressed a purpose of the United States to maintain these bases indefinitely.5 Yet the ultimate fate of the island is not settled.6 The United States has expressed no intention to annex the island, to return it to Japan, or to establish it as an independent state. The island is not under United Nations trusteeship, or the Far Eastern Commission.7 No peace treaty has yet been concluded with the former sovereign, Japan.

On these facts the District Court held that Okinawa was a "foreign country," relying on three District Court decisions,8 and on United States v. Spelar, 1949, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3. In the Spelar case the Supreme Court held that the Tort Claims Act did not grant governmental consent to be sued for a tort which occurred on Newfoundland territory leased by the United States. The court rested this conclusion on two tests applied to the Spelar claim: (1) Whether the leased territory was "territory subject to the sovereignty of another nation", 338 U.S. 217, 219, 70 S.Ct. 10, 11, and, (2) whether the liability asserted was one "depending upon the laws of a foreign power", 338 U.S. at page 221, 70 S.Ct. at page 12. We think it appropriate here to apply these tests to plaintiff's claim:

1. The Sovereignty of Another Nation.

In defining the term "foreign country," as used in 28 U.S.C.A. § 2680(k), the Supreme Court observed: "We know of no more accurate phrase in common English usage than `foreign country' to denote territory subject to the sovereignty of another nation." 338 U.S. 217, 219, 70 S.Ct. 10, 11. In support of this definition the Court quoted with approval the statement of the Court in De Lima v. Bidwell, 1901, 182 U.S. 1, 180, 21 S.Ct. 743, 746, 45 L.Ed. 1041: "A foreign country was defined by Mr. Chief Justice Marshall and Mr. Justice Story to be one exclusively within the sovereignty of a foreign nation, and without the sovereignty of the United States." Since Newfoundland was unquestionably subject exclusively to the "sovereignty" of Great Britain, the leased territory in Newfoundland was held to be part of a "foreign country."

When applied to Okinawa, however, the test of "sovereignty" affords no such satisfactory conclusion. At the outset, it must be assumed that "sovereignty is never held in suspense."9 The question, therefore, is whether Japan has lost her sovereignty over Okinawa and, if so, to what power that sovereignty has passed. In the event the United States' occupation of Okinawa were of a clearly provisional character designed simply to maintain order on the island until Okinawa could be returned to a responsible Japanese government, it could be said that Japan did not lose her "sovereignty" over the island but had been merely deprived temporarily of the power to exercise some of the rights of sovereignty.10 This theory would be particularly applicable to the Japanese home islands because in those islands a native Japanese government has been permitted to exercise most of the normal powers of government in matters of domestic administration, subject to the supervision of the Supreme Commander. However, the United States has expressed no intention of returning Okinawa to a Japanese government. On the contrary, the announced policy of the State Department is to place the island outside the "sovereignty" of Japan, and the Supreme Commander has ordered that the Japanese government refrain from attempting to exercise any governmental or administrative authority there. These circumstances divest Japan of all sovereignty over the island.11

Sovereignty, therefore, must have passed to some other people. Had the United States announced the objective of establishing an independent state of Okinawa it could be said that, in a sense, sovereignty passed to the people of Okinawa, the government being administered for the people by the occupant as a sort of trustee.12 The record indicates, however, that no such policy has been adopted. The ultimate fate of Okinawa has not yet been decided. It cannot be said that the loss of "sovereignty" over the island by Japan vests the "de jure sovereignty," in the traditional sense, in the natives of Okinawa.

By evicting the Japanese and affirmatively withdrawing Okinawa from the sovereignty of Japan, the belligerent occupants acquired the exclusive power to control and govern the island. This power, although perhaps acquired in the name of the Allied Powers, is lodged exclusively in the United States. The United States Military Government now governs, and will continue indefinitely to govern, the island of Okinawa, free from interference by other powers.13 The will of the United States is in fact the "supreme will"14 on Okinawa. The United States has therefore acquired, and still retains, what may be termed a "de facto sovereignty."15

However, the traditional "de jure sovereignty" has not passed to the United States. The conqueror does not acquire the full rights of sovereignty merely by occupying and governing the conquered territory without a formal act of annexation or at least an expression of intention to retain the conquered territory permanently.16 It does not necessarily follow, therefore, that Okinawa is not a "foreign country" within the meaning of the Tort Claims Act. So long as the ultimate disposition of that island remains uncertain, it offers a persuasive illustration of the observation that "the very concept of `sovereignty' is in a state of more or less solution these days."17

In short, the traditional test of sovereignty, when applied to the status of Okinawa, admits of no conclusive answer. While the traditional test furnishes a useful tool of construction in the usual case it cannot control the interpretation of § 2680(k) in the unusual case. Whether the term "foreign country" in the Tort Claims Act includes Okinawa must be decided in the way that accords more clearly with the central purpose of the Act.

2. The Laws of a Foreign Power.

The Federal Tort Claims Act was the product of an effort to reform the cumbersome private bill procedure which has encumbered congressional activities in the past. Despite the desirability of relieving Congress as far as possible of the responsibility for compensating private persons for damages caused by governmental activities, wherever the damages might occur, Congress explicitly excluded from the coverage of the Act claims "arising in a foreign country." The Supreme Court, after studying the congressional hearings and reports, has concluded that the purpose of this exception was to avoid subjecting "the United States to liabilities depending upon the laws of a foreign power."18 Since liability under the Act is to be determined under the law of the place where the tort occurs, 28 U.S.C.A. § 1346(b), the exception of § 2680(k) was phrased in terms of the place where the claim arises. To decide whether Okinawa is a "foreign country," as the term is used in the statute, it is necessary to determine whether the law of Okinawa, which controls this claim, is the law "of a foreign power."

Prior to World War II, the law of Okinawa was Japanese law, administered and promulgated by the Japanese sovereign. Regardless of invasion, occupation,19 or cession,20 that law continues in force until it is changed.21 The parties have failed...

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