THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Alep v. United States,
7 FSM Intrm. 496 (App. 1996)

[7 FSM Intrm. 496]

TAKUO ALEP et al.,
Appellants,

vs.

UNITED STATES OF AMERICA et al.,
Appellees.


APPEAL CASE NO. C5-1993

OPINION

Argued:  January 20, 1995
Decided:  July 2, 1996

BEFORE:
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Wanis R. Simina, Temporary Justice, FSM Supreme Court*
Hon. Alfred T. Goodwin, Temporary Justice, FSM Supreme Court**

*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk
**Senior Judge, United States Ninth Circuit Court of Appeals

APPEARANCES:
For the Appellants:    Barry J. Israel, Esq.
                                     Strock & Strock & Lavan
                                     1150 Seventeenth Street, N.W., Suite 600
                                     Washington, DC 20036-4652

For the Appellees:     Traylor T. Mercer, Esq.
        Moore, Ching, Boertzel, Civille, Dooley & Roberts
                                     Suite 400, GCIC Building
                                     414 West Soledad Avenue
                                     Agańa, Guam 96910

*    *    *    *

HEADNOTES
Trusteeship Agreement
     Although the Trusteeship Agreement was a source of individual legal rights, it, standing alone, did not create private rights of action for money damages for bureaucratic abuses attributed to U.S. or Trust Territory officials.  Alep v. United States, 7 FSM Intrm. 494, 496 (App. 1996).

Compact of Free Association
     The waiver of sovereign immunity clause in the Compact did not create any new causes of

[7 FSM Intrm. 495]

action, but merely waived sovereign immunity with respect to valid existing claims.  Alep v. United States, 7 FSM Intrm. 494, 497 (App. 1996).

International Law; Statutes of Limitation; Torts
     Any attempt to breathe new life into tort claims time barred by the relevant and analogous statutes should be approached with caution because they are the type of personal claims for money damages that become increasingly difficult of proof and difficult to defend with the passage of time.  Ordinarily such claims are resolved by political and diplomatic efforts.  Alep v. United States, 7 FSM Intrm. 494, 498 (App. 1996).

International Law
     International law does not impose vicarious liability on the chief of state or elected or appointed officials to whom governmental authority has been delegated to make military decisions having collateral consequences to noncombatants in theaters of operations.  Alep v. United States, 7 FSM Intrm. 494, 498 (App. 1996).

Compact of Free Association
     The only new cause of action created by the Compact is where the U.S. government accepts responsibility for losses or damages arising out of nuclear testing in the Marshall Islands between 1946 and 1958.  Alep v. United States, 7 FSM Intrm. 494, 498-99 (App. 1996).

Compact of Free Association; Statutes of Limitation
     Nothing in the Compact suspends or tolls the statute of limitations.  Alep v. United States, 7 FSM Intrm. 494, 499 (App. 1996).

Statutes of Limitation
     The statute of limitations has run on claims of mismanagement of the Micronesian Claims Act unless there was continuing unlawful conduct that would create a basis for equitable tolling of the statute of limitations.  Alep v. United States, 7 FSM Intrm. 494, 499 (App. 1996).

*    *    *    *

COURT'S OPINION
ALFRED T. GOODWIN, Temporary Justice:
     Plaintiff FSM citizens sued the United States of America and certain named officials to recover compensation and damages for property losses and personal injury suffered at the hands of United States military and civilian officials between 1945 and 1949.  The trial court dismissed the action because the amended complaint failed to state a claim upon which relief can be granted.  FSM Civ. R. 12(b).

     In this appeal, plaintiffs rely upon The United Nations Trusteeship Agreement of 1947, the Compact of Free Association of 1986, the Micronesian Claims Act of 1971, Pub. L. No. 92-39, 85 Stat. 92, terminated August 3, 1976 (the "Act"), 11 F.S.M.C. §§ 701 et seq., and international law.

     Plaintiffs argue that their claims are not time barred because the Trusteeship Agreement preserved existing claims and imposed duties upon the United States as trustee.  Plaintiffs allege these duties were neglected, giving rise to additional claims and to the tolling of time barriers to assert claims.

     Each claim arose out of the United States armed forces' removal of the entire local population

[7 FSM Intrm. 496]

(between 200 and 300 men, women, and children) and exile from their homes on Fono Island and their enforced stay on Moen Island until 1949.  It was not seriously disputed, and the trial court assumed it to be true for the purposes of the motions to dismiss and for summary judgment, that the survivors of the population that was forcibly removed and exiled suffered hardship, including malnutrition, health problems, massive violation of human and civil rights, as well as loss of life of family members, and the loss of growing crops and other property.  This appeal is not about which or whether individuals rights were violated, but about the availability of remedies.

I.  Trusteeship Agreement
     The first issue is whether the plaintiffs can make a claim for money damages under the Trusteeship Agreement.  The agreement became effective among its signatory states in 1947, after the removal of the population, but before the return of the exiles.  This Court must first consult and apply sources of law of the Federated States of Micronesia.  FSM Const. art. XI, § 11.  Having located no Micronesian authorities, we may look outside the FSM for other aid in interpreting the Trusteeship Agreement, including decisions by courts in the United States.

     The United States Court of Appeals for the Ninth Circuit has held that the Trusteeship Agreement did not create private rights of action for money damages.Temengil v. Trust Territory of the Pacific Islands, 881 F.2d 647 (9th Cir. 1989). While we are not bound by United States law, the decision is an instructive review of the political and legal history of the Trust Territory, and the application of the Trusteeship Agreement to private claims.  The trial court relied on the reasoning of Temengil in holding that the Trusteeship Agreement did not create private rights of action for money damages.  We agree with the trial court.

     The trial court also considered People of Saipan v. United States Department of Interior, 502 F.2d 90 (9th Cir. 1974), which stated broadly that the Trusteeship Agreement was a source of individual legal rights, id. at 99, suggesting that in a proper forum the plaintiff class could seek injunctive relief to enforce treaty rights.

     The trial court recognized that the People of Saipan did not stand for the proposition that the Trusteeship Agreement created private rights to money damages from the trustee state, or from persons carrying out, or wrongfully failing to carry out their duties under the authority of the Sovereign assigned Trusteeship under the agreement.  The Trusteeship Agreement, standing alone, did not create individual causes of action for money damages.

II.  Retroactive Effect of Treaty
     The plaintiffs recognize that the Trusteeship Agreement was not in force when the population was displaced by military action following a general war between belligerent powers using the affected islands and waters for military operations. They argue, however, that the Trusteeship Agreement was a treaty which imposed upon the United States as trustee continuing duties in favor of the citizens of the Trust Territory, and that during the period of Trusteeship the United States wrongfully ignored, neglected, and failed to perform its duties according to the terms of the Agreement.

     The plaintiffs argue next that these failures to perform the duties imposed by the treaty were a continuing course of wrongful conduct that also violated the terms of subsequent agreements entered into between the United States and the people of the Trust Territory of the Pacific, including the Micronesians residing in what are now the Federated States of Micronesia.  Accordingly, the plaintiffs argue, there is no need to consider retroactive application of the Trusteeship Agreement because the wrongful conduct continued, and created continuing rights and duties.

[7 FSM Intrm. 497]

III.  The Compact of Free Association
     The plaintiffs contend that the rights created by the Trusteeship were preserved in 1986 when the Trusteeship was formally terminated, and that these rights could be vindicated under the terms of the Compact of Free Association, § 174(c) (1986) (entered into by the U.S. and the FSM, providing for damages for loss of property or personal injury or death).

     The plaintiffs' argument begins with the alleged misconduct of the United States Navy during the period of the Navy control of the territory from 1945 until the United States Department of Interior assumed a degree of civilian control in 1951. Thereafter, until the formation of the government of the Trust Territory of the Pacific Islands in 1968, plaintiffs argue that the United States remained responsible for the management of the affairs of the affected islands through executive delegations.

     Between 1968 and the formal termination of Trusteeship in 1986, with the concurrent effective date of the Compact, the High Commissioner, representing the United States government, was the responsible official whose duties under the Trusteeship included the administration of remedial policies announced by the United States government to compensate the victims of wartime and postwar dislocations, and loss.  Plaintiffs argue that the Trusteeship period was marked by indifference and neglect of existing remedies on behalf of the victims of the wrongful removal of island residents.

     The historical recitation makes a strong case that the United States, as trustee, failed to carry out the lofty promises of Article 6 and 7 of the Trusteeship Agreement, notably to "protect the inhabitants against the loss of their lands and resources" Trusteeship Agreement art. 6(2), and to "guarantee to the inhabitants . . . freedom of . . . migration and movement,"  id. art. 7.

     It does not follow, however, that the bureaucratic abuses attributed to the Navy, the office of the High Commissioner and to the government of the Trust Territory of the Pacific Islands, created private rights of action for aggrieved individuals who might wish to sue for money damages in their country's courts for historic wrongs. We must continue the search for a private right of action.

IV.  Compact Section 174(c)
     The plaintiffs argue that the even if the Trusteeship Agreement by itself creates no private right of recovery of money damages, when read in connection with the Compact of Free Association, and the Micronesian Claims Act, private rights were created, and are preserved.  If private rights of action are created by the intertwined effect of the cited documents, then the plaintiffs point to § 174(c) of the Compact as source of remedy.

     At § 174(c) the Compact states that "[a]ny claim . . . shall be adjudicated in the same manner as a claim adjudicated according to Section 174(d)."  (Section 174(d) waives the sovereign immunity of each party (state) in the courts of the other for certain types of claims including damages for loss of property and personal injury.)

     The trial court, however, correctly noted that the § 174(d) waiver language creates no new causes of action, but merely waives sovereign immunity with respect to existing valid claims.  The search for a valid source of causes of action, in the end, takes us to the law of torts.

V.  Tort Claims Timed Barred
     The trial court dismissed five counts of the amended complaint alleging tort claims on the ground that under both United States law (Federal Tort Claims Act, and 28 U.S.C. § 2401, limitations) and

[7 FSM Intrm. 498]

Micronesian law, (Trust Territory Statute of 1951) the claims were time-barred. On appeal, appellees offer the additional argument of sovereign immunity, upon which they relied in the trial court but which the trial court declined to reach because the time bar disposed of the matter.  We agree with the trial court.

     The tort claims are not only time barred by relevant and analogous statutes, but are the type of personal claims for money damages that become increasingly difficult of proof and difficult to defend with the passage of time.  Any attempt to breathe new life into such stale claims should be approached with caution. Ordinarily claims of this type are resolved by political and diplomatic efforts resulting in statutory schemes for compensation, as in the case of United States citizens of Japanese ancestry wrongfully removed from their homes and placed in concentration camps within the United States in 1942.

     Scholarly writing since the General Assembly of the United Nations adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, G.A. Res. 2391, U.N. GAOR, 23rd Sess., (1968), strongly supports an international common law principle opposed to the employment of statutes of limitations to war crimes and crimes against humanity. However, the choice whether to allow the defense of municipal statutes of limitations is not compelled by the municipal law of states that have not signed the Convention.  The United States government has not signed the Convention.

     Notwithstanding the equitable and moral arguments against barring the tort claims in this case as untimely, the trial court correctly ruled them time barred.See, e.g., Handel v. Artukovic, 601 F. Supp. 1421 (C.D. Cal. 1985) (applying California statute of limitations to bar 35 year old claims by plaintiff-class for damages for crimes against humanity committed by "Independent State of Croatia" during German occupation 1941-45).

VI.  Individual Defendants
     We need not decide whether the tort claims (assaults, batteries, trespass, false imprisonment, infliction of emotional distress, confiscation and conversion of property) are also crimes against humanity, for which the individual defendants, as agents of the United States might, in a proper case be subject to liability despite the passage of time.  Any claims that survive the running of time and the expiration of various remedial statutes providing for compensation for damages caused by military operations in the Pacific would be recognized as claims against the United States, not against the individual defendants who may have had a part in executing the actions now in question.

     International law does not impose vicarious liability on the chief of state or upon elected and appointed officials to whom governmental authority has been delegated to make military decisions having collateral consequences to noncombatants in theaters of operations.  See, e.g., Ryuichi Shimoda v. State, 8 Japanese Ann. of Int'l Law 212 (1964-65) (damage action for nuclear bombing of an undefended civilian city).  The trial court correctly ruled that the individual defendants named in the complaint were not personally liable for losses caused by military operations ordered by their Government.

VII.  Acceptance of Responsibility
     The only new "cause of action" created by the Compact is found in § 177(a) where the U.S. Government accepts responsibility for losses or damages arising out of nuclear testing in the Marshall Islands, between 1946 and 1958.  Other subsections of § 177 deal with methods of settlement of claims.  The entire section is limited to claims from the Marshall Islands and the testing operations in

[7 FSM Intrm. 499]
 
those waters.

     Section 174(b) of the Compact broadly accepts responsibility by the government of the United States and an agreement to pay any unsatisfied judgments against the Trust Territory of the Pacific Islands or the Government of the United States rendered by the High Court of the Trust Territory of the Pacific Islands prior to the effective date of the Compact.  Section 174(c), relied upon by the plaintiffs, provides that any claims not referred to in § 174(b) and arising out of an act or omission of the Government of the Trust Territory of the Pacific Islands or the Government of the United States prior to the effective date of this Compact shall be adjudicated in the same manner as a claim adjudicated according to § 174(d).

     If periods of limitation do not apply, this section could be read as allowing claims to be litigated in the courts of FSM against the United States for damages for personal injury or death or damage to or loss of property occurring within the present boundaries of FSM at any time in history since the United States Government has conducted operations in Micronesian territory.  Because nothing in the Compact suspends or tolls the statute of limitations, however, the trial court held that all of the tort claims against the United States were time barred.  We agree with the trial court.

VIII.  Micronesian Claims Act
     The probability that claims against the United States, (and against Japan) could arise out of military operations in the waters surrounding the islands of the present Micronesian states resulted in the enactment by the United States Congress of the Micronesian Claims Act of 1971.  Pub. L. No. 92-39, 85 Stat. 92 (terminated Aug. 3, 1976).

     One of the arguments advanced by the plaintiffs for the creation of private causes of action at this late date is that the High Commissioner during the period of Trusteeship did not lawfully or adequately administer the remedial provisions of the Micronesian Claims Act, and that the Compact therefore preserved, as private rights, the claims that could have been, but were not, made under that act.

     That some sort of remedy should survive both the passage of time and the failure of individual plaintiffs to take advantage of the Micronesian Claims Act is perhaps the plaintiffs' strongest argument, from a moral and ethical viewpoint. The governments of the United States and Japan appropriated substantial sums of money to pay claims.  The United States government established administrative procedures for the settlement of such claims as might be timely presented pursuant to the Act by Micronesian residents, including United States citizens, who had suffered losses by reason of military operations in the area.

     This attempt to renew the claims as tort claims, with renewal based on tolling principles, can prevail only if this court should hold that there was continuing unlawful conduct by the High Commissioner (or his or her responsible agents), in the administration of the Micronesian Claims Act, that would create a basis for equitable tolling of statutes of limitations.

     Appellees argue that the statute of limitations begins to run when the wronged party learns or should know of the harm.  This argument, assuming it is correct as a general theory of time limitations, transfers the concept of "the harm" from forced exile to the alleged mismanagement of the Micronesian Claims Act by United States agents.  The alleged mismanagement of the Claims process may create equitable tolling, but the "harm" began and ended with the forced exile, which ended in 1949.  If there was mismanagement of Micronesian Claims by the United States, the statute has run and the claims is time barred.

[7 FSM Intrm. 500]

IX.  Conclusion
     With the exception of the questions about the manner of processing claims from Fono Islanders, which appear to be separate and discrete claims in each case, and which may have some residual viability if the proper parties bring them in the proper forum, the other claims asserted in this action were appropriately disposed of by the trial court.  The judgment is affirmed without prejudice to any claims that may yet have validity under the theories argued by the plaintiffs for equitable tolling of the statute of limitations, and the principles announced in Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977).

*    *    *    *

DISSENTING OPINION
WANIS R. SIMINA, Temporary Justice:
     I would reverse and remand this case because the lower court erred in dismissing the tort claims.  Sub-sections 174 (b) and (c) of the Compact of Free Association, when read together, specifically provide that "(t)he Government of the United States shall accept responsibility for and shall pay . . . (a)ny claim . . . arising from an act or omission . . . of the United States prior to the effective date of this Compact . . ."  48 U.S.C.S. § 1681, at 104 (Supp. 1990).  The United States Government's attempt to deny its acceptance of responsibility for wrongful acts committed during pre-Compact time reflects the continuing betrayal of indigenous peoples by this same Government.  Ever since 1831, when Chief Justice Marshall first wrote his opinion in Cherokee Nation v. Georgia, 30 U.S. 1, 8 L. Ed. 25 (1831), this same government has refused to recognize the plain language of its own treaties.  By declaring Indian Nations domestic nations rather than foreign nations, Justice Marshall annihilated the complete and separate sovereign power promised to the indigenous people through numerous treaties. To justify why his Court would not allow the Indians to sue the United States Government for its wrongs, Marshall said:

At the time the Constitution was framed, the idea of appealing to an American Court of Justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe.  Their appeal was to the tomahawk, or to the government.  This was well understood by the statesmen who framed the Constitution of the United States and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the Union.

Cherokee Nation, 30 U.S. at 18, 8 L. Ed. at 31.

     One hundred and sixty-five years later the United States Government calls upon this Court once again to betray the indigenous people to whom they have promised an opportunity for reparations of past wrongs.  I cannot allow the United States Government to again disavow its prior agreement with an indigenous people, namely, the people of Micronesia.

Statute of Limitations
     From my reading, the trial court found that the Fono people's tort claims had accrued in 1951, and therefore the statute of limitations had run either 2 or 6 years later based upon 28 U.S.C. § 2401 and Section 5 of Article XV of the Status of Forces Agreement [SFA].  The lower court's reasoning was that the SFA provided "that any judgment presented 'shall be deemed manifestly erroneous' if the claim would have been barred by the statute of limitations if the claim had been brought in a court of the United States."  Alep v. United States, 6 FSM Intrm. 214, 220 (Chk. 1993).  The lower court held that

[7 FSM Intrm. 501]

all of the tort claims "accrued, at the latest, when the applicable Trust Territory statute took effect in 1951."  Id. While the trial court does not identify the statute, it apparently refers to 6 TTC 310.  That statute was originally promulgated in 1952 by the first Trust Territory High Commissioner. See Executive Order No. 32 [Promulgating the Trust Territory Code (Dec. 22, 1952) Capt. 5 § 324]. 1  The provision states "For the purposes of computing the limitation of time provided in this Chapter, any cause of action existing on May 28, 1951, shall be considered to have accrued on that date."

     However, "no cause of action generally accrues until the plaintiff has a right to enforce his cause."  United States v. One 1966 Red Chevrolet, 457 F.2d 1353, 1358 (5th Cir. 1972); see also Walker v. United States, 458 F. Supp. 251 (D.D.C. 1978) [Period of limitation does not run until plaintiff has right to enforce his cause of action]; Jackson v. United States, 182 F. Supp. 907 (D.D.C. 1960) [claim accrues when it may be made the basis of judicial action].  So to apply a statute of limitations, the appellants must have had a right to enforce their cause of action either in the Trust Territory courts or in the courts of the United States against the United States and related defendants. 2

     As late as 1967 the Trust Territory courts maintained that neither the Trust Territory nor the United States could be sued in the courts of the Trust Territory without their consent.  Alig v. Trust Territory, 3 TTR 603 (App. 1967).  The first waiver of immunity by the Trust Territory Government [TTG] for tort actions other than negligence came in 1968.  6 TTC 253. (Pub. L. No. 4-7, Aug. 23, 1968). This legislation may have marked the first time the appellants had the right to enforce their claims based on intentional torts against the TTG.

     The TTG had previously waived its immunity for torts based on negligence.  6 TTC 251.  This waiver applied to claims "accruing on or after September 23, 1967."  6 TTC 251(c).  But any claims against TTG based upon intentional torts were excluded from the jurisdiction of the Trust Territory High Court.  6 TTC 252(5).  That subsection states that "The Trial Division of the High Court shall not have jurisdiction under the foregoing Section 251 of:  Any claim arising out of assault, battery, false imprisonment, false arrest . . . ."3  The Congress of Micronesia, when passing Section 253, did not repeal the jurisdictional exclusion of 251.  Section 253 only waives immunity "for tort claims."  The Trust Territory High Court Appellate Division subsequently ruled that the TTG had not waived its immunity to claims based on intentional torts excluded from the court's jurisdiction.  Salons v. Trust Territory, 8 TTR 141 (App. 1980).  The Federated States of Micronesia Code later codified these section 252 exclusions.  6 F.S.M.C. 602(5).  Thus, the appellants' intentional tort claims could not be enforced and therefore never accrued.  One 1966 Red Chevrolet, 457 F.2d at 1358.  Nothing in the Trust Territory statutes nor in the Federated States of Micronesia Code applies to these claims.

     Therefore, the lower court erred by finding an applicable statute of limitations that bars these claims.

     This analysis also applies to the United States as a defendant.  The lower court held that under

[7 FSM Intrm. 502]

Section 5 of Article XV of the Status of Forces Agreement "that any judgment [under section 174 of the Compact] presented [to the Court of Appeals for the Federal Circuit for payment] 'shall be deemed manifestly erroneous' if the claim would have been barred by the statute of limitations if the claim had been brought in a court of the United States."  Alep, 6 FSM Intrm. at 220.

     The tort claims of the appellants could not have been brought against the United States in any U.S. domestic court, as they occurred in the Trust Territories. 28 U.S.C. § 2680(k) excludes all suits against the United States for torts if the claim arose in a foreign country.  28 U.S.C. § 2680(k).  The U.S. Courts held that the Trust Territory was a foreign country even though governed by the United States.  See Callas v. United States, 253 F.2d 838 (2d Cir.) [Kwajalein], cert. denied, 357 U.S. 936 (1958); see also Brunell v. United States, 77 F. Supp. 68 (S.D.N.Y. 1948) [Saipan].  Therefore the appellants' claims could not have accrued since they had no right of enforcement.

     The earliest time the appellants' tort claims could have accrued was on the effective date of the Compact of Free Association, when the United States waived its sovereign immunity. Thus, the lower court erred in dismissing the tort claims on the basis that the claims accrued in 1951 and were therefore barred by the statutes of limitation.

Waiver of Immunity
     The court also faces the task of interpreting the waiver of immunity provision of the Compact.  These provisions are found in Title I, Article VII § 174 of the Compact [48 U.S.C.S § 1681, at 104 (Supp. 1990)].  The two specific sections pertinent to this case are 174(c) and 174(d).  Subsection (c) states in part:

(c) Any claim not referred to in Section 174(b) and arising from an act or omission of the Government of the Trust Territory of the Pacific Islands or the Government of the United States prior to the effective date of this Compact shall be adjudicated in the same manner as a claim adjudicated according to Section 174(d).

[emphasis added].  Subsection (d) in turn provides in part:
 
"(d) The Governments of the . . . Federated States of Micronesia shall not be immune from the jurisdiction of the courts of the United States, and the Government of the United States shall not be immune from the jurisdiction of the courts of the . . . Federated States of Micronesia in any case in which the action is based on . . . a case in which damages are sought for personal injury or death or damage to or loss of property occurring where the action is brought.

48 U.S.C.S. § 1681, at 104 (Supp. 1990) [emphasis added].

     The Vienna Convention Regarding Interpretation, Article 31, paragraph 14 states that "(a) treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given the terms of the treaty in their context and in the light of its object and purpose."  In reading the text of the Compact, the plain language of the two sections makes clear, first, that the United States has waived its

[7 FSM Intrm. 503]

sovereign immunity.  Secondly, the waiver extends to "any claim" not covered by section 174(b)5 that arises from "an act or omission of the Government of the Trust Territory. . . or the Government of the United States prior to the effective date" of the Compact that seeks damages for "personal injury or death or damage to or loss of property occurring where the action is brought."  It is a general, non-restricted waiver of sovereign immunity by the United States.

     Other provisions of the Compact also demonstrate that the 174 waiver is non-restrictive as to time and type of claim.  Three separate provisions clearly indicate that in other situations the waiver of sovereign immunity could be restricted if that had been the intention of the parties.  In section 177 which is specific to claims for loss or damage to property and persons resulting from the nuclear testing program conducted by the United States the waiver was restricted by a provision added by the United States Congress.  In Section 103(g) [Title I Approval of Compact; Interpretation of; and U.S. Policies Regarding, Compact; Supplemental Provisions, 48 U.S.C.S. § 1681, at 860] the United States Congress conditioned its approval of Section 177 of the Compact.  That provision states:

It is the intention of the Congress of the United States that the provisions of section 177 of the Compact of Free Association and the Agreement between the Government of the United States and the Government of the Marshall Islands . . . constitute a full and final settlement of all claims described . . . and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.

Compact § 103(g).  See also Anthelix v. United States, 873 F.2d 369 (D.C. Cir. 1989).

     Section 178 provides another example of a limited waiver for claims in the area of torts by agencies of the United States Government operating in the Federated States subsequent to the effective date of the Compact.  That section waives immunity but limits the remedy to that found in 28 U.S.C. § 2672 [settlement procedure] and 31 U.S.C. § 1304 [funding source].  If the claim can not be settled then it must be arbitrated under Article II of Title Four of the Compact.  Section 178(d) makes a point of stating that the provisions of 174(d) "shall not apply" to tort claims under this section.

     Section 174(d) of the Compact with Palau is identical to our Compact, except it contains a restriction that the subsection "shall apply only to actions based on . . . injuries or losses suffered on or after the effective date of this Compact."

     Finally, the waiver of sovereign immunity by the United States is not restricted to those claims waived under the Federal Torts Claims Act.  28 U.S.C. §§ 2401, 2672, 2680.  If the parties had intended to limit section 174 to claims under the Federal Torts Claim Act, they would have said that in section 174.6  In the words of John Marshall "(t)his was well understood by the statesmen who framed the (Compact) and might furnish some reason for omitting to enumerate (any such restrictions in the Compact)."  Cherokee Nation, 30 U.S. at 18, 8 L. Ed. at 31.

[7 FSM Intrm. 504]

     Further, the exceptions listed in 28 U.S.C. § 2680 do not apply.  If they did all tort claims arising in the Federated States of Micronesia would be barred under 28 U.S.C. § 2680(k) because it is a foreign country.  Unless, of course, one follows John Marshall's logic in Cherokee Nation, and decides that the Federated States of Micronesia are merely domestic nations within the United States.  An unfortunate decision suffered for the past one hundred and sixty-five years, to which we are not bound.

     The plain language of the Compact of Free Association should stand and the plaintiffs should be permitted to bring their tort claims for past wrongs in the lower court.  I would reverse the order of the lower court dismissing the appellants' tort claims and remand the action on those claims to the lower court for further proceedings.
 
 
Footnotes:
 
1.  There is no provision in that code that allowed suits against the government of the Trust Territory or the United States.

2.  The United States defendants have all been sued in their official capacity and therefore the government of the United States is the real party defendant.

3. There is some authority that the claims for the torts of conversion and trespass may have run against the TTG as those tort were not specifically excluded by the limitation of 252.  But they could not have run against the United States.  See infra.
 
4.  The United States has apparently not adopted this convention.  But the legal rules embodied in Articles 31 and 32 on the interpretation of treaties were adopted without a dissenting vote at the Conference and are considered as declaratory of existing law.  Louis Henkin et al., International Law Cases and Materials 445 (2d ed. 1987) [citation omitted].

5.  Subsection (b) covers unpaid judgments and settlements rendered in the courts and pending administrative claims that existed at the effective date of the Compact.

6.  There are numerous sections throughout the Compact in which judicial action and claims procedures have been restricted by reference to statutes of the United States.  In particular § 463 states that any reference to provisions of the United States Code in the Compact "constitutes the incorporation of the language of such provision into this Compact . . . ."  Thus the intention of the parties is clear and failure to reference a normally controlling code provision reveals the intention of the parties that those provision would be inapplicable.
 
                                                                                                                                                                                                                                                                                                           
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