Burna v. United States, 7306.

• Decision Date: 07 January 1957
• Docket Number: No. 7306.,7306.
• Citation: 240 F.2d 720
• Parties: Juanita BURNA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

240 F.2d 720 (1957)

Juanita BURNA, Appellant, v. UNITED STATES of America, Appellee.

No. 7306.

United States Court of Appeals, Fourth Circuit.

Argued November 29, 1956.

Decided January 7, 1957.

Louis Ellenson, Newport News, Va. (Taylor & Ellenson, Newport News, Va., on brief), for appellant.

John M. Hollis, Asst. U. S. Atty., Norfolk, Va. (L. S. Parson, Jr., U. S. Atty., Norfolk, Va., on brief), for appellee.

Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and THOMSEN, District Judge.

SOBELOFF, Circuit Judge.

This appeal is from the dismissal of a suit under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. The appellant's complaint alleged that on October 5, 1954, she was severely injured by a vehicle owned by the United States and negligently operated by its agent on the Island of Okinawa in the Ryukyu Islands. The ground for dismissal was that the Island of Okinawa is a foreign country, and that the F.T.C.A., Title 28, Section 2680(k), specifically excludes from its operation "any claim arising in a foreign country." The sole question on this appeal is whether Okinawa is a foreign country within the meaning of this statute.

By conquering Japan in World War II, the United States came into possession of Okinawa and the rest of the Ryukyu archipelago. In Article 3 of the Treaty of September 8, 1951, which became effective on the following April 22, Japan agreed to concur in any proposal of the United States to the United Nations to place the Ryukyu Islands under its trusteeship system. It was further agreed that "pending the making of such a proposal and affirmative action thereon, the United States will have the right to exercise any and all powers of administration, legislation and jurisdiction."

In his capacity of United States delegate to the Japanese Peace Conference, on September 5, 1951, Mr. John Foster Dulles declared: "Several of the Allied Powers urged that the treaty should require Japan to renounce its sovereignty over these islands in favor of United States sovereignty. Others suggested that these islands should be completely restored to Japan.

"In the face of this division of Allied opinion, the United States felt that the best formula would be to permit Japan to retain residual sovereignty. * * *"

The Record contains a memorandum, prepared by the Far Eastern Law Section of the Library of Congress in which it is set forth that: "As of September, 1955, there is no arrangement made between the United States and the United Nations regarding the trusteeship of the Ryukyu Islands. Okinawa, therefore, is under the provisional administration of the United States Government."

Terms like "provisional administration" and "residual sovereignty," invested with ad hoc meanings, may serve usefully to express certain ideas in particular contexts, but they are, after all, not the precise limits Congress prescribed for the application of the F.T.C.A. Such terms of special coinage are interesting to examine, and sometimes they may shed light on an inquiry; but we must not be deluded into substituting them for entirely different statutory words which have clear meaning and were apparently used in a common, non-technical sense. We must conclude that while the Treaty conferred certain authority upon the United States over Okinawa, it by no means made the island a part of the United States, and it remains a foreign country in the sense of the F.T.C.A.

The pertinent decisional literature is not extensive, but what there is fortifies us in our conclusions. While the appellant is doubtless correct in drawing certain distinctions between this case and others in which recovery was disallowed, and though it is true that some of the reasons given for denying recovery in those cases are inapplicable to the present situation, the cases taken as a whole, do furnish guidance here.

In United States v. Spelar, 1949, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3, it was held that the Act had not given consent to suits for torts occurring on an air base in Newfoundland territory occupied by the United States under a long-term lease. Appellant maintains that the reasons assigned by the Court, namely, that it was "territory subject to the sovereignty of another nation" and that "liability would depend upon the laws of a foreign power," are inapplicable here, because ratification of the Treaty has transferred broad powers and a measure of sovereignty to the United States, and Congress can now, by fiat, at any time nullify all Japanese laws on this Island.

Even if we were to accept the appellant's premise that some of the reasons cited in Spelar are inapplicable here, this would not necessarily require us to conclude the converse in this case, that the F.T.C.A. does apply to Okinawa. Though the absence of any United States sovereignty was a sufficient answer in Spelar, the transfer temporarily of a measure of sovereignty here is not sufficient to dissolve Okinawa's status as a foreign country. The reasons assigned by the Supreme Court were pertinent and sufficient to dispose of the case then...