The opinion of the court was delivered by: BYERS
This defendant's motion for summary judgment presents but one question, that is, was the Island of Kwajalein, in the Marshall Islands in the Pacific, on February 20, 1955, a foreign country within the exclusion of the Federal Tort Claims Act, Title 28 U.S.C. § 2680(k)?
'The provisions of this chapter and section 1346(b) of this title shall not apply to * * *
'(k) Any claim arising in a foreign country.'
The infant plaintiff is the son of the plaintiff, Edward George Callas, who on that day was in the military service of the United States, and stationed on the said island. The boy, then nine years, old, was playing on the beach and was seriously injured by the explosion of 'a round of ordnance' thought to have been washed up on the beach as the result of its not having detonated in the course of military operations directed at the island during World War II.
It will be seen that nearly ten years had elapsed between the date of the accident and the termination of hostilities.
For reasons to be stated, it will appear that the negligence attributed to the defendant cannot present a triable issue for disposition on the merits, in view of the limitations imposed by Congress upon the submission of the Government to suit under the Federal Tort Claims Act.
With reference to Okinawa, the subject has been adjudicated as to injuries sustained in October of 1954, in Burna v. U.S. 4 Cir., 240 F.2d 720, 721. Therein it is stated that as to the Ryukyu Archipelago, of which Okinawa is a part, by treaty between the United States and Japan, the latter agreed to 'concur in any proposal of the United States to the United Nations to place the Ryukyu Islands under its trusteeship system.'
Seemingly that subject is still in the formative stage, but the opinion continues to point out (quoting a State Department memo):
'As of September 1955, there is no arrangement 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.'
The court decided that even so, 'there is even less reason (than in Dorr v. U.S., 195 U.S. 138, 24 S. Ct. 808, 49 L. Ed. 128, re the Philippines) for thinking that Okinawa has been incorporated into the United States or that it has ceased to be foreign in the sense in which the word is used in the F.T.C.A.'
Cobb v. U.S. 9 Cir., 191 F.2d 604, dealt with a tort claim arising on Okinawa in October, 1948, and the decision was that Okinawa is a foreign country, even speaking as of 1948, within the language and intent of the applicable statute.
Brunell v. U.S., D.C., 77 F.Supp. 68, 70, dealt with a tort claim arising on October 16, 1945, on the Island of Saipan, in the Marianas Group in the Pacific. Advice from the State Department of December 16, 1947, was quoted as follows:
'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 ...