DISMISSAL BY JUDGE CHARLES H. TENNEY in U.S. District Court, New York, of the complaint brought by owners and insurers of the cargo ship Iver Chaser, damaged by a mine in the Nicaraguan port of Corinto on March 28, 1984, leaves a troubling question in its wake. Judge Tenney held that the claim for more than $1.6 million against the U.S. government raised "a nonjusticiable political question."
To determine the validity of the claim, he said, would "force the court to resolve sensitive issues involving the foreign policy conduct of executive branch officials." Inquiries about the failure to warn innocent third parties about the mining of Nicaraguan harbors "could not be conducted without obtaining classified intelligence documents relating to the covert operations," he said.If the denials by the White House, the Central Intelligence Agency and the Department of State that they knew anything at all about the mining of Nicaraguan harbors should be proved erroneous, he added, that "could indeed be embarrassing" to the U.S. government. So, citing a 1962 Supreme Court decision that courts should avoid delving into matters of that sort, Judge Tenney granted a government motion to dismiss the lawsuit.
But does that end it? Can the U.S. government, or any government, place mines so recklessly, ignore the international tradition of warning of such action and escape liability behind the cloak of covert foreign policy? What redress is open to the owner of a damaged ship? One might agree completely that litigation of this sort should not be permitted to force disclosure of foreign policy secrets, but those same questions would remain.
The plaintiffs were the Chaser Shipping Corp., the Liberian corporation owning the Norwegian-built vessel, and a shipowners and operators mutual association, Norwegian War Risk Insurance for Ships that paid the $1.6 million in repair bills. When the chemical parcel carrier struck the mine in Corinto harbor, it was loaded with molasses and benzine for Texas ports. The United States was not, of course, at war with Nicaragua.
Whether the plaintiffs would be able to prove the validity of their claim is something never to be determined, as the matter stands now, since the complaint was dismissed before any trial on the merits. The difficulties of courtroom proof can be imagined. However, the owners and the mutual insurance association denied that their claim could be considered a "political question."
Answering the government's motion to dismiss the case, they pointed out that they were not attacking U.S. foreign policy toward Nicaragua, or assailing its constitutionality, or trying to halt U.S. actions there. They wanted to collect damages, period. They cited a different section of the same 1962 Supreme Court decision cited by Judge Tenney - "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance."
In dismissing the case, Judge Tenney noted that all the "various news articles" submitted by the plaintiffs about the placement of mines in Nicaragua's harbors also stated that the White House, CIA and State Department ''disclaimed responsibility for the mining." Hence the veil of secrecy that he said could not be pierced.
It would seem that more significance might be attached to the statements of members of Congress, quoted in the Congressional Record early in April, 1984 pointed out to the court by the plaintiffs:
Sen. Barry Goldwater, R-Ariz.: "This afternoon, CIA director Casey appeared before my committee in closed session to brief us on this issue. I learned to my deep regret that the president did approve this mining program, and that he approved it almost two months ago."
Rep. Louis Stokes of Ohio: "Only this week . . . did we learn that the CIA, with the consent of the president and secretaries of State and Defense, had a direct role in the planting of these mines."
Sen. Claiborne Pell, D-R.I.: "Maybe the mines are being attached together by non-American citizens. But the fact remains, which we all know, those mines originated in the United States."
The legal issues that might be raised in a trial are, of course, beyond our scope. Dismissal of the suit at the district court level might be appealed, should the plaintiffs so decide. Even so, to our knowledge this is the first such action to arise out of the mining episode, and it shows one avenue of judicial thinking.
What is disturbing is that Judge Tenney's ruling seems to open the door to ''covert" planting of explosives in foreign waters in peacetime without notice to the shipping of even our friendliest allies, while closing the door without a hearing to the claims of victims of such adventurism.