242 F2d 236 Anglo-American Overseas Corporation v. United States

242 F.2d 236

UNITED STATES of America, Defendant-Appellee.

No. 155, Docket 24194.

United States Court of Appeals Second Circuit.

Argued Feb. 6, 1957.
Decided March 4, 1957.

Leonard Feldman, New York City, for plaintiff-appellant.

Paul W. Williams, U.S. Atty. for Southern District of New York, New York City (Miriam R. Goldman and Amos J. Peaslee, Jr., Asst. U.S. Attys., New York City, of counsel), for defendant-appellee.

Before CLARK, Chief Judge, MEDINA, Circuit Judge, and J. JOSEPH SMITH, District Judge.


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Anglo-American and Overseas Corp., appellant, contracted to sell tomato paste to the United States, which required as a condition precedent to its acceptance of the paste that it satisfy the standards of the Food and Drug Administration. The paste was imported; and the Food and Drug Administration, after sampling it, issued 'release notices' that notified Customs officers that the tomato paste could enter the country. Anglo-American then accepted delivery. When it in turn delivered the paste to the government, federal officials once again inspected the paste, found that it did not satisfy the standards of the Food and Drug Administration, and ordered it destroyed. Anglo-American sues now on the ground that the negligence of officials of the Food and Drug Administration in sampling the tomato paste and in issuing 'release notices' induced it to accept the paste and thus suffer damages.


This claim, it is clear, 'arose out of' the assertedly negligent representation of the quality of the tomato paste by federal employees. Such a claim is barred by Jones v. United States, 2 Cir., 207 F.2d 563, certiorari denied 347 U.S. 921, 74 S.Ct. 518, 98 L.Ed. 1075, which held that Section 2680(h) of the Federal Tort Claims Act, 28 U.S.C., excepted from liability negligent as well as intentional misrepresentation.