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United States: Supreme Court Opinion in Smith v. United States (Application of the Federal Tort Claims Act to Antarctica)
Published online by Cambridge University Press: 27 February 2017
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- Type
- Judicial and Similar Proceedings
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- Copyright
- Copyright © 1993
References
* [Reproduced from the Slip Opinion provided by the U.S. Supreme Court.
[Environmental Defense Fund v. Massey, decided by the United States Court of Appeals for the District of Columbia Circuit on January 19, 1993, regarding extraterritorial application of the National Environmental Policy Act, appears at 32 I.L.M. 505 (1993).]
1 Without indigenous human population and containing roughly one-tenth of the world's land mass, Antarctica is best described as “an entire continent of disputed territory.” F. Auburn, Antarctic Law and Politics 1 (1982). Seven nations—Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom—presently assert formal claims to pie shaped portions of the continent that total about 85 percent of its expanse. Boczek, The Soviet Union and the Antarctic Regime, 78 Am. J. Inti L. 834, 840 (1984); Hayton, The Antarctic Settlement of 1959, 54 Am. J. Int'l L. 349 (1960). The United States does not recognize other nations’ claims and does not itself assert a sovereign interest in Antartica, although it maintains a basis for such a claim. Lissitzyn, The American Position on Outer Space and Antarctica, 53 Am. J. Inti L. 126, 128 (1959). In any event, these sovereign claims have all been suspended by the terms of the Antarctic Treaty, concluded in 1959. Antarctic Treaty, Dec. 1, 1959 [1961] 12 U. S. T. 794, T. I. A. S. No. 4780. Article 4 of the Treaty states that no claim may be enforced, expanded, or compromised while the Treaty is in force, id., art. IV, 12 U. S. T., at 796, thus essentially freezing nations’ sovereign claims as of the date of the Treaty's execution.
2 Compare Beattie v. United States, 244 U. S. App. D. C. 70, 756 F. 2d 91 (1984) (holding that Antarctica is not a “foreign country” within the meaning of the FTCA).
3 Nor can the law of the plaintiffs domicile, Oregon here, be substituted in FTCA actions based on torts committed in Antarctica. “Congress has expressly stated that the Government's liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred … .” Richards v. United States, 369 U. S. 1, 9 (1962). Petitioner does not contend that her cause of action is based on acts or omissions occurring in Oregon.
4 The history of the FTCA reveals that Congress declined to enact earlier versions of the statute that would have differentiated between foreign and United States residents. Those versions would have barred claims “arising in a foreign country in behalf of an alien.”S. 2690, 76th Cong., 1st Sess., §303(12) (1939) (emphasis added); H. R. 7236, 76th Cong., 1st Sess., § 303(12) (1939) (emphasis added). At the suggestion of the Attorney General, the last five words of the proposed bills were dropped. See Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 29, 35, 66 (1942). As we observed in United States v.Spelar,338 U. S. 217, 220 (1949), “[t]he superseded draft had made the waiver of the Government's traditional immunity turn upon the fortuitous circumstance of the injured party's citizenship.” The amended version, however, “identified the coverage of the Act with the scope of United States sovereignty.” Id.,at 220-221. At least insofar as Antarctica is concerned, petitioner's interpretation of the FTCA would effectively resurrect the scheme rejected by Congress; it would deny relief to foreign residents in circumstances where United States residents could recover.
5 Petitioner instead argues that the presumption against extra territoriality applies only if it serves to avoid “'unintended clashes between our laws and those of other nations which could result in international discord.'” Brief for Petitioner 16 (quoting EEOC \. Arabian American Oil Co.,499 U. S.,(1991)).But the presumption is rooted in a number of considerations, not the least of which is the common-sense notion that Congress generally legislates with domestic concerns in mind.
1 The Federal Tort Claims Act waives the Government's immunity from suit in sweeping language.“ United States v. Yellow Cab Co., 340 U. S.543, 547 (1951).
2 See Brief for United States 16, 21-22.
3 “The provisions of this chapter and section 1346(b) of this title shall not apply to— “(k) Any claim arising in a foreign country.” 28 U. S. C. §2680(k).
4 In short, I agree with most of the analysis in Judge Fletcher's dissenting opinion in this case and Judge Wilkey's opinion for the Court of Appeals for the District of Columbia Circuit in Beattie v.United States,244 U. S. App. D. C. 70, 756 F. 2d 91 (1984). Indeed, I am persuaded that the 79th Congress would have viewed torts committed by federal agents in “desolate and extraordinarily dangerous” lands as falling squarely within the central purpose of the FTCA. Ante,at 8.
5 Title 28 U. S. C. §1346(b) provides: Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
6 Title 28 U. S. C. §2674 provides, in pertinent part: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.“
7 Title 28 U. S. C. §2680(d) excludes from the coverage of the FTCA “[a]ny claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States.“
8 See United States v. United Continental Tuna Corp., 425 U. S. 164, 172 (1976) (“Maritime tort claims deemed beyond the reach of both Acts could be brought only on the law side of the district courts under the Federal Tort Claims Act“).
9 Pub. L. 69-165, 41 Stat. 537, codified at, 46 U. S. C. App. §761 et seq.
10 See also Block v. Neal, 460 U. S. 289, 298 (1983) and United States v. Aetna Casualty & Surety Co., 338 U. S. 366, 383 (1949). As we stated in the latter: “In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo's statement…: The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.'” Ibid, (quoting Anderson v. Hays Construction Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926)).
11 The Court inaccurately refers to the jurisdictional grant as the section that “waives the sovereign immunity of the United States,” ante, at 4. It is actually §2674 that waives immunity from liability by simply providing: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances ….” See n. 6, supra. The Court does not quote §2674.
12 Apparently the Court is assuming that private contracts made in Antarctica are unenforceable and that there is no redress for torts committed by private parties in sovereignless regions. Fortunately our legal system is not that primitive. The statutory reference to “the law of the place where the act or omission occurred” was unquestionably intended to identify the substantive law that would apply to a comparable act or omission by a private party at that place. As long as private conduct is constrained by rules of law, and it certainly is in Antarctica, see infra, at 8—10, there is a governing “law of the place” within the meaning of the FTCA.
13 Indeed, it borders on the absurd to suggest that Antarctica is governed by nothing more than the law of the jungle. The United States exercises both criminal jurisdiction, see 18 U. S. C. §7(7), and taxing jurisdiction, see 26 U. S. C. §863(dX2(A), over the approximately 2,500 Americans that live and work in and around Antarctica each year. See National Science Foundation, Facts About the U. S. Antarctic Program 1 (July 1990). The National Science Foundation operates three year-round stations in Antarctica, the largest of which is comprised of 85 buildings and has a harbor, landing strips on sea ice and shelf ice, and a helicopter pad. Ibid. Transportation to and from New Zealand is frequent during the summer months. Id., at 2
14 Again, as Justice Holmes explained: [T]he bare fact of the parties being outside the territory [of the United States] in a place belonging to no other sovereign would not limit the authority of the State, as accepted by civilized theory. No one doubts the power of England or Prance to govern their own ships upon the high seas.” The Hamilton, 207 U. S. 398, 403 (1907).
15 In enacting the Federal Employees Liability Reform and Tort Compensation Act of 1988, the stated purpose of which was “to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States,” §2(b), 102 Stat. 4564, 28 U. S. C. §2671 note, Congress made the following findings: “(1) For more than 40 years the Federal Torts Claims Act has been the legal mechanism for compensating persons injured by negligent or wrongful acts of Federal employees committed within the scope of their employment. “(2) The United States, through the Federal Tort Claims Act, is responsible to injured persons for the common law torts of its employees in the same manner in which the common law historically has recognized the responsibility of an employer for torts committed by its employees within the scope of their employment. “(3) Because Federal employees for many years have been protected from personal common law tort liability by a broad based immunity, the Federal Tort Claims Act has served as the sole means for compensating persons injured by the tortious conduct of Federal employees. “(4) Recent judicial decisions, and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immunity previously available to Federal employees. “(5) This erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce. “(6) The prospect of such liability will seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employees torts.” §2(a), 102 Stat. 4563, 28 U. S. C. §2671 note.
16 The members of the panel were Learned Hand, Chief Judge, and Augustus N. Hand and Charles E. Clark, Circuit Judges.
17 Cong. Globe, 37th Cong., 2d Sess., App. 2 (1861).
(*) The problems arising when the parties are more than two will require further consideration.