Cobb

191 F.2d 604 COBB v. UNITED STATES. No. 12746. United States Court of Appeals Ninth Circuit. June 11, 1951. As Amended on Denial of Rehearing August 27, 1951. 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. 1 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." 2 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…

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 he 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” *606 of the Ryukyus. 1…

On Rehearing

The petition for rehearing is denied.

I concur in the action of the Court in denying the petition for rehearing. The petition for rehearing calls to our attention the necessity of a re-examination of our former conclusion as to the applicability of Article 43 of the Hague Convention of 1907 upon which our decision of June 11, 1951, was predicated. The sources of information mentioned in the petition would indicate that in the Ryukyu Islands, as well as in Germany and in Japan, the United States Military Government, with the approval of the State Department, has promulgated regulations relating to traffic and operation of motor and other vehicles. Thus, departments of the Government, whose judgment we are not authorized to review, have taken a position with respect to Article 43 contrary to that suggested in our first opinion.

The majority of the Court have now proposed to amend the opinion to eliminate the reliance upon Article 43 and to substitute other language, and upon this amendment of the opinion to deny the petition for rehearing. I cannot bring myself to believe that the opinion in the amended form establishes a sound reason for the conclusion reached.

The…