Brunell v. United States

• Decision Date: 09 April 1948
• Parties: BRUNELL v. UNITED STATES.
• Court: U.S. District Court — Southern District of New York

77 F. Supp. 68

BRUNELL v. UNITED STATES.

District Court, S. D. New York.

April 9, 1948.

M. H. Rosenhouse, of New York City (T. Bernard Eisenstein, of New York City, of counsel), for plaintiff.

John F. X. McGohey, U. S. Atty., of New York City (Nathan Skolnik, of New York City, of counsel), for defendant.

RYAN, District Judge.

Defendant, United States of America, moves before answer under Rule 12(b), Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, for an order and judgment dismissing the complaint on the grounds (1) that the court lacks jurisdiction of the subject-matter of the action, and (2) that the complaint fails to state a claim against the United States of America upon which any relief can be granted.

Plaintiff sues under the Federal Tort Claims Act, 28 U.S.C.A. § 921 et seq.

Plaintiff, a professional entertainer and a citizen of the State of New York residing in this district, alleges that on October 16, 1945 she was lawfully touring in Saipan with a U.S.O. Camp Show, and that while being transported in an army jeep, operated and controlled by a member of the armed forces, the jeep through the negligence and carelessness of the operator ran off the road and struck a tree, as a result of which, and without any negligence on her part, she sustained serious bodily injuries. The complaint contains the following allegations:

"11. That on the 16th day of October, 1945, Saipan was not a foreign country.

"12. That prior to the 16th day of October 1945, Saipan was conquered by the United States Armed Forces and that on the 16th day of October 1945, and ever since, Saipan has been owned, occupied, managed, controlled and administered by the United States of America."

Plaintiff seeks judgment in the sum of $75,000, as compensation for her injuries and necessary expenses.

Section 941(b) and (c) of the Federal Tort Claims Act provides:

"(b) `Employee of the Government' includes officers or employees of any Federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a Federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.

"(c) `Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States, means acting in line of duty. * * *"

The alleged negligence of the operator (a member of the armed forces) of the jeep in which plaintiff claims she was riding at the time of the accident may be properly asserted as the basis of an action brought under this Act.

The question presented by this motion is whether plaintiff's claim arising as it does in Saipan, can be brought against the United States under the provisions of the Federal Tort Claims Act. More particularly, we are called upon to decide whether Saipan, at that time, was a foreign country within the meaning of § 943(k), 28 U.S.C.A.

This section provides:

"Claims exempted from operation of chapter

"The provisions of this chapter shall not apply to—

* * * * * *

"Any claim arising in a foreign country."

We must assume as true, for the purposes of this motion, all the facts well-pleaded in the complaint. We cannot, however, accept as accurate the allegations contained in paragraphs 11 and 12, above-quoted, and particularly that portion of 11 which alleges that "Saipan was not a foreign country" and of 12 which alleges that "on the 16th day of October 1945, and ever since, Saipan has been owned * * * by the United States of America." Whether or not Saipan is a foreign country and whether or not on and since October 16, 1945 it has been owned by the United States of America are allegations concerning purported facts, which under Rule 12(b), F.R.C.P. the court is not required to accept.

Saipan is an island located in the Marianas Group in the South Pacific. The facts upon which the status of this island is to be determined are not in dispute. The defendant, on this motion, submits a photostatic copy of a letter dated December 16, 1947, relating to the status of Saipan, addressed to the Hon. Tom C. Clark, Attorney General of the United States by the Legal Adviser of the Department of State. Plaintiff concedes the historical facts of this letter to be accurate, but disputes the conclusion reached in the final paragraph. The letter reads:

"* * * * * * *

"The receipt is acknowledged of your letter of December 1, 1947 * * * in which, in connection with a suit against the United States under the Federal Tort Claims Act, a statement was requested which would reflect the political status of Saipan on October 16, 1945.

"It is the view of the Department of State that the Island of Saipan on October 16, 1945 was an area under military occupation by forces of the United States following conquest from Japan, the power to which a mandate had been entrusted after World War I pursuant to Article 22 of the Covenant of the League of Nations.

"In further answer to your inquiry and to that made by the United States Attorney, no treaty of cession has been signed ceding Saipan to the United States, and no Federal legislation has been enacted incorporating Saipan into the United States. A Trusteeship Agreement with respect to the former Japanese mandated islands, including Saipan, between the United States as administering authority and the Security Council of the United Nations, came into force on July 18, 1947. The United States does not have sovereignty over Saipan by virtue of this Agreement. The Agreement does not provide for a termination date.

"Accordingly, it is concluded that Saipan has not been and is not a part of the United States, nor a territory or possession of the United States. * * *"

Plaintiff does not argue, of course, that prior to December 7, 1941 — the date of commencement of hostilities with Japan — Saipan, as a territory under mandate of Japan, was not a foreign country. We must determine, then, whether the status of Saipan, after occupation by the military forces of the United States changed from that of a foreign country to a territory of the United States.

It was held in United States v. Rice, 4 Wheat. 246, 247, 17 U.S. 246, 247, 4 L.Ed. 562, that territory of the United States, which by conquest and military occupation is in possession of a public enemy, is to be regarded as foreign territory within the meaning of the Revenue laws and that goods brought into such territory are not subject to United States duties. There is, however, a fundamental distinction to be made between military occupation, which by its nature is but temporary, and permanent acquisition.

Beginning with Vattel, in the middle of the Eighteenth Century (Droit des Gens, liv.iii. §§ 197, 198), it has been recognized that sovereignty does not arise until the invading belligerent has completely ousted the enemy and has definitely acquired the territory by conquest or by treaty of cession. Wheaton, International Law, 6th Ed., points to the line of demarcation existing between mere military occupation and conquest, and complete subjugation, writing (at pp. 780, 781):

"Conquest or complete subjugation implies the permanent subjection of the occupied country to the sovereign of the occupying forces, with the intention that this territory shall be annexed to the dominions of the new sovereign and shall henceforth be considered as a constituent portion thereof; that is, conquest depends on `firm possession' together with the intention and the capacity to hold the territory so acquired.

"The rights of occupancy, then, cannot be co-extensive with those of sovereignty. They are due to the military exigencies of the invader, and consequently are only provisional. The local inhabitants do not owe the occupant even temporary allegiance; and the national character of the locality is not legally changed."

The status of foreign territory when occupied by the armed forces of the United States was defined in Fleming v. Page, 9 How. 603, 13 L.Ed. 276, it being held there that although such territory comes under the sovereignty...