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Report No. 01

Chapter IV

The Law in The U.S.A.

40. Federal Tort Claims Act.-

Even in a republican country like the United States of America, the doctrine of immunity of the State from liability for torts has been imported for reasons which are differently explained, but, as in England, exceptions were sought to be introduced by permitting the State to be sued through the procedure of private bills. That procedure was, however, found to be unsatisfactory and the Federal Tort Claims Act was enacted in 1946 to do away partially with the immunity. The Federal Tort Claims Act, however, is far more restricted in its scope than the English Act. The liability of the State under common law is stated in the Act in these terms:

"district court shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred".

It is also provided that:

"the United States shall be the same manner and to the same extent as a private individual under like circumstances except that the United States shall not be liable for interest prior to judgment, or for punitive damages".

41. So far as statutory duties and discretionary powers and duties are concerned, it is laid down in one of the exceptions that the "State" shall not be liable in respect of:

"any claim based upon an act or omission of any employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal Agency or an employee of the Government whether or not the discrelion involved be abused".

"'Employee of the Government" and "Federal Agency" are defined in the Act.

42. It would be seen from the foregoing provisions that the liability of the State under common law is restricted to torts to property and injury to a person or death. Exception (h) (vide Appendix II) excludes intentional torts, such as, assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

So far as statutory duties are concerned, the United States is not liable for any tort committed in the discharge of such duties so long as the duties are performed with due care. In respect of discretionary functions and duties conferred on a Federal Agency or an employee of the Government, the State is not liable even if the discretion is abused or even if there is negligence.

43. In the case of common law duties, the liability is restricted by adopting the formula that the "United States shall be liable in the same manner and to the same extent as a private individual under like circumstances". This definition of liability is shrouded in uncertainty. It is not clear whether by this formula it was intended to attract not only the common law principles by which a private individual's liability for tort is determined but also brings in the nature of the act or function (i.e.) whether it is governmental or non-governmental.

This vague expression has given rise to conflicting decisions of the Supreme Court even within the short period that has elapsed from the date when the Act came into force. In Feres v. United States,' the Supreme Court expressed the view that the Act did not create new causes of action which were not recognised before. The case related to claims by members in the armed forces injured through the negligence of other military personnel. The decision in that case was that as no private individual has power to conscript or mobilise a private army, the State could not be made liable.

The interpretation so placed reminds one of the dictum of Sir Barnes Peacock, C.J., in the peninsular case. This interpretation revives the old distinction between governmental and non-governmental functions of the State and the rule that it should be liable only in the latter case. In each case the question has to be raised and answered whether the activity out of which the tort arose was such as a private individual could have indulged in and if the answer is in the affirmative, the Government should be made liable, otherwise not.

44. This interpretation was followed and applied in the later case Dalehite v. United States, 346 US 15. The Court had to consider in that case the claims preferred under the Act in connection with the disastrous explosion of ammonium nitrate fertiliser in Texas city which resulted in damage unparalleled in history. The action was rested on the main ground that there was negligence on the part of the government and its servants. Reed, J., who delivered the opinion of the majority of the Court examined the scope of the Act and held that under the provisions of the Act, the liability of the United States was restricted to ordinary common law torts and did not extend to the liability arising from governmental acts.

In support of his view the learned Judge relied on the Committee reports which preceded the enactment of the law. The exception relating to statutory duties was intended, according to the Committee, to preclude any possibility that the bill might be construed to authorise a suit for damages against the government arising out of an authorised activity such as flood control or irrigation project, where negligence on the part of the government agent was shown and the only ground for the suit was the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid.

It was also designed to preclude application of the bill to a claim against a regulatory agency, such as the Federal Trade Commission or the Securities and Exchange Commission, based upon the alleged abuse of discretionary authority by an officer or employee whether or not negligence was alleged, to have been involved. The learned Judge stressed on the language of the Act which imposed the liability on the United States to the "same extent as a private individual would be liable under like circumstances".

This, he said, was a definite pointer negativing complete relinquishment of sovereign immunity. The exception relating to statutory duties, according to the learned Judge, was intended to protect the government from claims arising out of acts however negligently done which affect the governmental functions. The question of the liability of the State for negligence of the Coast Guards in the discharge of fire-fighting duties, which is a discretionary function, was also considered. It was ruled by the majority that the Federal Tort Claims Act-

"did not change the normal rule that an alleged failure or carelessness of public firemen does not create private actionable rights. Our analysis of the question was determined by what was said in the Feres case. The Act, as was there stated, limited United States' liability to 'the same manner and to the same extent as a private individual under like circumstances'.

Here, as there, there is no analogous liability; in fact, if anything is doctrinally sanctified in the law of torts it is the immunity of communities and other public bodies for injuries due to fighting fire".

Jackson, J., who delivered the judgment of the minority, however, took the opposite view. He graphically described the situation under modern conditions in justification of his view that the State should be liable. He said at page 51:

"Because of reliance on the reservation of governmental immunity for acts of discretion, the Court avoids direct pronouncement on the duty owing by the Government under these circumstances but does sound overtones and undertones with which we disagree. We who would hold the Government liable here cannot avoid consideration of the basic criteria by which courts determine liability in the conditions of modern life.

This is a day of synthetic living; when to an ever-increasing extent our population is dependent upon mass producers for its food and drink, its cures and complexions, its apparel and gadgets. These no longer are natural or simple products but complex ones whose composition and qualities are often secret.

Such a dependent society must exact greater care than in more simple days and must require from manufacturers or producers increased integrity and caution as the only protection of its safety and well-being. Purchasers cannot try out drugs to determine whether they kill or cure. Consumers cannot test the youngster's cowboy suit or the wife's sweater to see if they are apt to burst into fatal flames. Carriers, by land or by sea, cannot experiment with the combustibility of goods in transit.

Where experiment or research is necessary to determine the presence or the degree of danger, the product must not be tried out on the public, nor must the public be expected to possess the facilities or the technical knowledge to learn for itself of inherent but latent dangers. The claim that a hazard was not foreseen is not available to one who did not use foresight appropriate to his enterprise."

And, lastly, he concludes at page 60:

"But many acts of government officials deal only with the housekeeping side of Federal activities. The Government, as landowner, as manufacturer, as shipper, as warehouseman, as ship-owner and operator, is carrying on activities indistinguishable from those performed by private persons. In this area, there is no good reason to stretch the legislative text to immunize the Government or its officers from responsibility for their acts, if done without appropriate care for the safety of others. Many official decisions even in this area may involve a nice balancing of various considerations, but this is the same kind of balancing which citizens do at their peril and we think it is not within the exception of the statute".

45. In a recent decision, however, Indian Towing Co. v. U.S.A., (1955) 350 US 61., the Supreme Court did not accept the interpretation placed by the above two decisions on the provisions of the Act. The claim was for damages alleged to have been caused by the negligence of the Coast Guard in the operation of a lighthouse light. The same contentions as in the earlier decisions were again raised and the implication of the expression "in the same manner and to the same extent as private individual under like circumstances" had to be canvassed.

It was contended on behalf of the State that this expression excluded its liability in the performance of activities which a private person could not perform. In other words, the liability of the State for governmental functions was excluded. It was pointed out that the words used were not "under the same circumstances" but "under like circumstances". According to the majority view, this expression imposed the duty of exercising care upon the State which undertakes to warn the public of danger. At page 65 it was observed:

"Furthermore, the Government in effect reads the statute as imposing liability in the same manner as if it were a municipal corporation and not as if it were a private person, and it would thus push the courts into the "non-governmental" and "governmental" quagmire that has long plagued the law of municipal corporations. A comparative study of the cases in the forty eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound.

The fact of the matter is that the theory whereby municipalities are made amenable to liability is an endeavour, however, awkward and contradictory, to escape from the basic historical doctrine of sovereign immunity. The Federal Tort Claims Act cuts the ground from under that doctrine; it is not self-defeating by covertly embedding the casuistries of municipal liability for torts."

The question was put whether if the United States were to permit the operation of private lighthouses, the basis of differentiation urged on behalf of the Government would be gone and it could be made liable if negligence had been established. The Government, it is stated "is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it. On the other hand, it is hard to think of any governmental activity on the "operational level" our present concern which is "uniquely governmental" in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed".

In this case, Reed, J., was in the minority and he delivered the minority judgment. The minority stuck to their view expressed in the earlier decisions. But it is significant that even the minority judges realised that there is uncertainty and ambiguity in the expressions used in the Act.

46. This discussion is necessary to show that to adopt the formula of the Federal Tort Claims Act, however, attractive it may be, is to introduce an uncertainty in the law and is calculated to revive the old controversy between "governmental" and "non-governmental" functions, which the decisions in India, already summarised, introduced into the law on the basis of the dictum of Sir Barnes Peacock, C.J., in the Peninsular case

47. There are also other decisions like Seigmon v. U.S., (1953) 110 FR 906. which reiterated the view that the Federal Tort Claims Act was not intended to create a new cause of action. This case related to a claim by a prisoner who was injured by another while in prison. It was held that as before the Act, the prisoner in such a situation had no right of action against an individual galore, he had none after the Act. But it is somewhat interesting to find that in England in Ellis v. Home Office, (1953) 2 All England Reports, 149, the contrary view was taken on similar facts though the suit was ultimately dismissed as negligence was not established.

48. The foregoing discussion will show that the liability of the State under the Federal Tort Claims Act is very much restricted and that the exceptions have narrowed down the liability. For convenience of reference the relevant sections of the Federal Tort Claims Act are reproduced in Appendix II.

Liability of the State in Tort Back

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