APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Aldisert, Weis, and Becker, Circuit Judges.
The question presented by this appeal is whether the provision of the Federal Tort Claims Act (FTCA) that bars claims "arising in respect of ... the detention of any goods or merchandise by any officer of customs ...," 28 U.S.C. § 2680(c), precludes a claim against the United States for negligent damage to property while in the legitimate custody of the Customs Service. We conclude that it does and therefore affirm the judgment of the district court that dismissed appellant's complaint.
On February 28, 1978, Customs Service agents seized certain antiques and objects of art from the home of Joseph Kosak. He was subsequently charged with smuggling goods into the United States in violation of 18 U.S.C. § 545, but was found not guilty. The Customs Service returned the detained property to him but Kosak contended that certain items had been damaged as a result of Customs Service negligence during the detention. Alleging jurisdiction under 28 U.S.C. § 1346(b),*fn1 he brought this FTCA action in district court seeking $12,310 in damages. The Government responded that Kosak's claim was barred because it fell under 28 U.S.C. § 2680(c). The district court dismissed the complaint.*fn2
Section 2680 enumerates several exceptions to the FTCA's general relaxation of tort immunity. Section 2680(c) specifies:
The provisions of this chapter (Tort Claims Procedure) and section 1346(b) of this title shall not apply to-
(c) Any claim arising in respect of ... the detention of any goods or merchandise by any officer of customs....
Finding no decision of this court interpreting this section of the FTCA, appellant invites us to adopt the interpretation of the Second Circuit, as announced in Alliance Assurance Co. v. United States, 252 F.2d 529 (2d Cir. 1958), which held that § 2680(c) applies only to claims based on injury caused by detention itself and not to losses caused by the Customs Service's negligent handling of goods during detention.
The courts are divided in their interpretations of this section.*fn3 The divergence stems from the phrase "arising from the detention of goods...." The Alliance court speculated that the
probable purpose of the exception was to prohibit actions for conversion arising from a denial by the customs authorities ... of another's immediate right of dominion or control over goods in the possession of the authorities.... (and not) to bar actions based on the negligent destruction, injury ...