Callas v. United States

• Decision Date: 01 April 1958
• Docket Number: Docket 24854.,No. 163,163
• Parties: Edward Peter CALLAS, an infant under the age of fourteen years, by Helen Callas, his Guardian ad Litem, and Edward George Callas, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

253 F.2d 838 (1958)

Edward Peter CALLAS, an infant under the age of fourteen years, by Helen Callas, his Guardian ad Litem, and Edward George Callas, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 163, Docket 24854.

United States Court of Appeals Second Circuit.

Argued February 10, 1958.

Decided April 1, 1958.

Herman E. Hoberman, Brooklyn, N. Y. (Bernard Meyerson, Brooklyn, N. Y., of counsel), for plaintiffs-appellants.

Cornelius W. Wickersham, Jr., U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Margaret E. Millus, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for defendant-appellee.

Before HINCKS and LUMBARD, Circuit Judges, and GALSTON, District Judge.

GALSTON, District Judge.

The question involved on this appeal relates to a construction of the Federal Tort Claims Act. 28 U.S.C.A. § 2671 et seq. The facts are not in dispute.

It appears from the complaint that the action is brought pursuant to the Federal Tort Claims Act. It alleges that on February 20, 1955, the infant Edward Peter Callas was lawfully playing on the beach at Kwajalein in the Marshall Islands, and he was injured by the explosion of a round of ordnance. The complaint alleges that this explosion was brought about by the carelessness of the United States of America. The plaintiffs are residents of the Borough of Brooklyn.

The answer denies negligence, and for a separate and complete defense alleges that the injuries were sustained as a result of the boy's own failure to exercise due care.

But we do not have to consider the merits. The sole question for decision is jurisdiction.

From the answer it appears that following the attack on Pearl Harbor, our Government declared war on the Japanese Government and conducted a military campaign in the South Pacific on various islands, including the Island of Kwajalein. That island, at the beginning of the campaign, was occupied by enemy troops. Following a successful termination of the attack on the island, the United States Military Forces occupied the island. The answer alleges that claims brought as a direct result of the Military and Navel efforts of the United States Government during the conduct of a war are specifically excluded under the Federal Tort Claims.

It cannot be contended that the Island of Kwajalein is a part of the territory of the United States. The Federal Tort Claims Act, Title 28 U.S.C. § 2680(k), excludes any claim arising in a foreign country.

As to Kwajalein, on February 20, 1955, when the plaintiff's injury occurred, the United States stood not as a sovereign but as a trustee under the United Nations.

A stipulation entered into between the parties to this action on May 20, 1957 recites that the sovereignty of the Island of Kwajalein, in the Marshall Islands group, was governed by a trusteeship agreement entered into on July 18, 1947 by the United States of America, which reads as follows:

"The Territory of the Pacific Islands, consisting of the islands formerly held by Japan under mandate in accordance with Article 22 of the Covenant of the League of Nations, is hereby designated as a strategic area and placed under the trusteeship system established in the Charter of the United Nations. The Territory of the Pacific Islands is hereinafter referred to as the trust territory.

"The United States of America is designated as the administering authority of the trust territory."

Despite the powers undertaken by the United States pursuant to the trust agreement, for purposes of the Federal Tort Claims Act, 28 U.S.C.A. § 2680(k), it cannot follow that Kwajalein became part of the United States. It remained a foreign country. In United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 11, 94 L.Ed. 3, it was said that "the coverage of the Federal Tort Claims Act was geared to the sovereignty of the United States." And the reason for this, as Spelar points out, was because under the Act the lex delicti was applicable and consequently, if "foreign countries" were to be included, it would lead "to a good deal of difficulty." Although the nature of this "difficulty," which was recognized in the legislative history of the Act, was not particularized we think it reasonable to infer that Congress foresaw that a United States court might find it difficult to ascertain and apply the local law in regions not under the sovereignty of the United States — especially in regions where the local law had not crystallized through established legislative or judicial definition or where its content was subject to change by administrative authority. In United States v. Spelar an American air base in Newfoundland was held to be a foreign country for purposes of the Federal Tort Claims Act.

The question presented on this appeal as to what is a foreign territory under the Federal Tort Claims Act, is thus not a new one. Indeed the question was well discussed by Judge Ryan in 1948 in Brunell v. United States, D.C.S.D.N.Y., 77 F.Supp. 68. That case involved the status of Saipan, under the act in question. Judge Ryan made a careful review of the authorities and concluded that Saipan was a foreign country.

Whatever administration is exercised by the United States Government is solely and wholly in the capacity of a trustee designated by the United Nations. Whether the United Nations may be responsible for the acts of its trustee is not before us. Nor, indeed, is the United States being sued as a trustee. On the contrary, it is sued in its status as a sovereign — i.e., a sovereign of its own territorial components, i.e., the forty-eight States of the Union and the territories concerning which the United States has the power to enact laws. It makes no laws as a sovereign for the Island of Kwajalein. From a letter attached to the affidavit of counsel for the plaintiffs which he received from the Director of the United States Department of the Interior, it appears

"that any law of negligence which may be in force on Kwajalein is contained in the local common law or the British common law as it existed before July 4, 1776."

Certainly such is not the law of the United States, for there is no general common law within the federal jurisdiction. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

It must be insisted too that a sovereign can be sued only with its consent. That rule was set forth by Chief Justice Jay in Chisholm, Executor v. State of Georgia, 1793, 2 Dall. 419, 1 L.Ed. 440; see also Cohens v. Com. of Virginia, 1821, 6 Wheat. 264, 5 L.Ed. 257, in which Chief Justice Marshall asserted:

"The universally received opinion is that no suit can be commenced or prosecuted against the United States; * * *."

Later, in U. S. v. Clarke, 1834, 8 Pet. 436, 8 L.Ed. 1001, Chief Justice Marshall said that the United States is

"not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise juisdiction over it."

That being so, and the consent in this case being wholly absent, the judgment of the District Court is affirmed.

HINCKS, Circuit Judge (concurring).

I fully concur in Judge GALSTON's opinion but also place reliance on additional considerations. As was recognized in Cobb v. United States, 9 Cir., 191 F.2d 604, whether the Pacific Islands are a "foreign country" within the meaning of the Federal Tort Claims Act is a question of considerable difficulty. But whether the problem is reached by the common-sense approach advocated by Judge Pope in his concurring opinion in the Cobb case (which strongly appeals to me) or by the more legalistic approach of the majority opinion, the result here is the same. For if Okinawa was properly classified as a "foreign country" notwithstanding the unlimited power of the United States which had occupied and thereafter (until the date of the Cobb decision) maintained absolute control of the island by force of arms, a fortiori is Kwajalein a foreign country. For the comparable power which the United States had acquired over Kwajalein was voluntarily translated into a fiduciary responsibility to the United Nations which carried specified accountability to its Security Council through an express trust agreement, 61 Stat. 3301, approved by the Joint Resolution of Congress of July 18, 1947, c. 271, 61 Stat. 397, Historical Note to § 1435 of Title 48 U.S.C.A.

By the terms of this trust agreement the United States became the "administering authority of the trust territory," which included Kwajalein, Article 2, and as such was to have "full powers of administration, legislation, and jurisdiction over the territory subject to see Article 6 the provisions of this agreement, and may apply to the trust territory * * * such of the law of the United States as it may deem appropriate to local conditions and requirements." Article 3. However, Article 6 provided that the administering authority "shall give due recognition to the customs of the inhabitants in providing a system of law for the territory * * *." Article 11 provided that "the administering authority shall take the necessary steps to provide the status of citizenship of the trust territory for the inhabitants of the trust territory." And by Article 13 the United States agreed that subject only to security restrictions, Articles 87 and 88 of the United Nations Charter (59 Stat. 1050-1) should be applicable under which it was provided that the administering authority (the United States) would annually submit to the Security Council, under its direction, annual reports on the "political, economic, social, and educational advancement of the inhabitants of the trust territory."

In view of the foregoing outline of the powers and responsibilities of an administering authority of the mandated islands, it seems clear that as to Kwajalein sovereignty did not devolve upon the United States. The limited functions and the supervised responsibilities which it assumed under its trust...