dissenting in part:
On the question decided in Part I of the court’s opinion,1 this is an extremely close case, teetering on the balance. The court’s view is certainly tenable and may be correct, but I have come to another conclusion and therefore explain it briefly. My disagreement turns on a difference, primarily, as to the legal significance of an emergency situation or imminent hostilities, and, secondarily, as to the conclusion to be drawn from the specific facts of this case.
In one of its briefs the Government says: “the plaintiffs assume to be a matter of fact the seizure and use of their buildings as a place of refuge and defense for American troops (PL Br. pp. 14,31), and on the basis of this convenient assumption argue that the United States must compensate them for its use of their property. Were their assumption true, their argument based upon it would be correct.” (Emphasis added.)2 This statement reflects — together with its counterpart, quoted in note 2 — the traditional rules as I understand them. Where private property has been destroyed or damaged as a result of armed conflict, the sovereign is not liable (i) if the damage was deliberately done to prevent its falling into enemy hands (denial destruction),3 or (ii) if the damage occurred (as variously put) in actual battle, by “the fortunes of war”, “in the path of war”, “by actual and necessary military operations”, through bombardment or shelling, or in attacking or defending against the enemy.4 On the other hand, the Government is held liable where it first takes the property for its own military use, and then exposes the place to enemy attack or evokes one, leading to injury or destruc*442tion.5 In this connection, there is no exception from liability, as I read the materials, for temporary seizures for military use in the face of imminent hostility or to meet an emergency; once the property is taken for a military use, the Government is responsible for its subsequent injury, no matter how quickly that follows upon the seizure.6 The boundary between these latter “takings” and the “fortunes of war” cases is indeed thin, indistinct, and hard to trace. But these are our current guidelines, unsatisfactory though they be, and I do not see it as the function of this court, at this time, to alter them or build anew. We must apply them as best we can.7
To use the words of defendant’s brief, was the Government’s temporary occupation of plaintiffs’ building “as a place of refuge and defense for American troops” or was it “as an incident of its task of ejecting looters and rioters and *443restoring order in the Canal Zone”?8 The former would be a compensable taking for military use even though destruction followed shortly; the latter a noncompensable incident of battle. As I appraise this record, the first is the better characterization of the facts. The United States troops cleared plaintiffs’ holdings of rioters and looters before the occupation of the buildings, and took up stations in the street in front of the buildings; the soldiers remained there for a while and did not withdraw into the buildings until after sniper fire had begun, and this withdrawal was made to “protect the troops from the sniper fire and early sieges of Molotov cocktails” ;9 inside the buildings the soldiers erected barricades and took shelter, not only from the sniper fire but from the Molotov cocktail attacks which followed; also, a “command post” was set up in the Masonic Temple and an “observation post” on the top floor of that structure; the soldiers remained in the YMCA and the ground floor of the Masonic Temple for some 12 to 14 hours, and longer on the top of the Masonic Temple.
To me, all of this shows the seizure and use of both buildings “as a place of refuge and defense for American troops” — a place of protection, of shelter, of rest, of a command post, and of an observation point. The assaults from the Panamanian side on the buildings (for which plaintiffs now seek recovery) came about because, and after, the United States troops had entered and occupied them. The buildings were “used, occupied, etc. so as to expose that property particularly to enemy fire” (II Whiteman, op. cit. supra, at 1421). The buildings’ “destruction by the enemy * * * [was] a necessary consequence of the nature of the service to which, for the public benefit, the * * * [buildings] were subjected”; “the enemy destroyed the property indeed, but only after the Government had taken it for public use, by *444being used by the Government, and because it was so used” (Putegnat's Heirs, supra). “When the Government’s troops entrenched themselves in front of claimant’s habitation and took possession they made it the object of the enemy’s attack. They condemned it specially to public use. Claims for damages to it were taken out of the field of the incidental results of war, the Government having invited its destruction” (Annuziata Petrocelli, supra, at 763).
Conversely, these facts show, to my mind, that the injury to plaintiffs’ property did not occur directly “as an incident of [the troops’] task of ejecting looters and rioters and restoring order in the Canal Zone” (as defendant puts it), or because the buildings were shelled or burnt in the course of a running battle in the area (as were other structures in the Zone), or as “mere accidents of war inevitably and unavoidably incidental to its operations” (H.E. Kep. No. 262, supra) .10
For these reasons, I would hold for the plaintiffs on this branch of their claim.
1 join in Part II of the opinion.
The brief goes on: “However, the stipulated facts, which we shall review subsequently, clearly show that the plaintiffs’ buildings were not appropriated by the Army for a public use, but were merely entered by the Army as an incident of its tash of ejecting looters and rioters and restoring order in the Canal Zone" (emphasis added).
United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952).
See United States v. Pacific R.R., 120 U.S. 227, 234-35, 238-39 (1887) ; United States v. Caltex (Philippines), Inc., supra, 344 U.S. at 153-54, 155-56; Perrin v. United States, 4 Ct. Cl. 543, 547-48 (1868), aff’d, 12 Wall. 315 (1870) ; Franco-Italian Packing Co. v. United States, 130 Ct. Cl. 736, 747, 128 F. Supp. 408, 414-15 (1955) ; II Whiteman, Damages in International Law 1421 (1937).
See Mitchell v. Harmony, 13 How. 115, 133-34 (1852) ; United States v. Russell, 13 Wall. 623, 627-28 (1871) ; United States v. Pacific R.R., supra, 120 U.S. at 234, 239; Walker v. United States, 34 Ct. Cl. 345, 347 (1899); Borchard, Diplomatic Protection of Citizens Abroad 262-64 (1915) ; II Whiteman. op. cit, supra, at 1421; Putegnat’s Heirs (U.S. v. Mexico), IV Moore, International Arbitration, 3718-3720 (1898) ; American Elec. & Mfg. Co. (United States v. Venezuela), Ralston’s Report, 128 (1904) ; Annuziata Petrocelli (Italy v. Venezuela), Ralston’s Report 762, 763 (1904).
See II Whiteman, op. cit. supra, at 1421 (“Where, however, real property is used, occupied, etc. so as to expose that property particularly to enemy fire, compensation is made for such use on the ground that the property has been seized for public use and destroyed as so employed.”) ; Putegnat’s Heirs, supra (house seized and fortified, then destroyed by enemy forces) ; American Elec. & Mfg. Co., supra (telephone plant damaged, after Government troops seized it during an attack) ; Annuziata Petrocelli, supra (government troops entrenched themselves in front of claimant’s house and took possession of it, leading to an enemy attack).
The House Report (H.R. Rep. No. 262, 43d Cong., 1st Sess.) on which the majority relies does say that compensation need not be paid for “the temporary occupancy of houses for hospitals for wounded soldiers, or for the shelter of troops, or for necessary military operations which admit of neither choice or delay", but I do not think that, in this respect, the congressional report states the rule correctly. The authorities cited in footnote 5 and in the first paragraph of this footnote — particularly the actual decisions of international arbitral tribunals — are to the contrary. I do not understand the dictum in Franco-Italian Packing Co. v. United States, supra, 130 Ct. Cl. at 747, 128 F. Supp. at 414 (noncompensability of property seized “as an incidental element of defense against hostile attack”) as covering a seizure of property for military use, and the subsequent destruction of that property, but merely destruction or injury by the Government’s troops in the course of a battle.
Nor does the majority of the court attempt to refashion the governing rules, as it sees them.
I judge from its briefs that the defendant’s position on the legal irrelevance of an emergency situation or imminent hostilities — if a “taking” in fact occurs — is closer to mine than to the court’s.
The united States’ official presentation before the OAS said that the platoons were moved to the buildings “to provide more protection from the sniper fire”; the General Counsel of the Army said that the purpose of the withdrawal was “in order to protect the troops from the sniper fire”; the commanding officer of the U.S. Forces in Cristobal described the maneuver as providing “cover” for the troops from sniper fire.
For instance, the damage to the structures occurring before the rioters were evicted by the troops or in the course of evicting them (losses for which plaintiffs do not ask recovery) is non-compensable. Similarly, no damages would be payable if the later injury to the buildings were caused by efforts of soldiers stationed on the street to put out fires, or to prevent the storming of the buildings, or to stop renewed entry by rioters into the buildings.