(dissenting in part).
I agree that plaintiff should recover on the basis of the 10 planes to which title had passed and which were taken from him by the defendant.
I do not think he should recover for the 20 remaining planes which were never delivered.
It seems apparent that on July 1, 1948, defendant had probable eause to believe that the foreign policy of the United States was in danger of being violated in the resale of some of the planes which had been delivered to plaintiff, or at least sufficient facts to put it on inquiry and to justify temporary suspension of deliveries. In addition to the photograph which appeared in the London newspaper, there existed some doubt as to the nature of the activities of the Somaco firm to which plaintiff had sold the planes. Plaintiff’s failure to cancel his CAA registrations on the resale of the planes also raised some question. At or about July 1 it was also learned that Fred Lewis, (Tursz-Fredkens) with whom plaintiff had been dealing in his negotiations with Somaco was the European representative for aviation purposes for the State of Israel.
By December 1948, when plaintiff ref-turned to Paris following negotiations with the Department of State which resulted in an amendment of his contract, defendant’s officials had learned that 1 of the planes delivered to plaintiff had in fact been flown into Czechoslovakia with further facts indicating quite strongly that 5 other planes reached the same destination. These flights had taken place in July. Interviews at that time with the pilot James who had been employed by plaintiff made further deliveries to plaintiff questionable. He first stated that he flew one of the planes to Czechoslovakia under instructions of the plaintiff. In another interview a few days later he changed his story to the effect that the flight had been made at the request of and under instructions of the above-mentioned Fred Lewis.
Plaintiff’s contract was executed prior to the UN resolution condemning the exporting of war materials to the Middle East.
If these planes had been located in the United States, the defendant would have prevented their use in the middle eastern war by the refusal to issue export licenses which would have been required under the Presidential Proclamation of March 27, 1948. Located in Germany as they were, the one sure means of preventing their passage to the Middle East was to not deliver the planes. Once delivered the defendant could only prevent such use through the cooperation of the other governments. That such a course would most likely not be effective is shown in this case where the defendant on request was unable to have the Dutch and French Governments prevent the removal of the already delivered planes from their countries. Plaintiff’s contract as amended still failed to solve the problem because it still would have meant that once delivered the prevention of their eventual passage to the Middle East would depend once again on governments of the countries where the planes would be delivered.
There are some things that go beyond the forms of law. When a neighbor’s house is on fire the law of trespass, important in normal times, is disregarded. It is absorbed in the higher law of self and community preservation.
The immunity of a sovereign act, as used in a free country, is not a method conjured up to escape contractual liability to individuals. That could have been easily handled by defendant’s refusing permission to be sued. It is to *797be invoked when the national interest at stake. is
Here was a practical condition where there was danger of world conflagration. Twice within the memory of many now living has a world tragedy been brought about by incidents of less importance. The results were immense loss of life, broken hearts and the waste of billions of treasure.
Is the nation to remain helpless in the presence of another such threat? What are responsible officials to do when face to face with such a condition? Must they remain helpless or does it call for the action of the times ?
I believe that the Department of State was fully justified in notifying plaintiff on February 28, 1949, that no further deliveries would be made, on the ground that such deliveries would interfere with our foreign policy objectives and would be contrary to the national interests. Horowitz v. United States, 267 U.S. 458, 461, 45 S.Ct. 344, 69 L.Ed. 736.