The opinion of the court was delivered by: GREENE
This case involves an unusual question under the Federal Tort Claims Act -- whether the Act applies to torts committed by employees of the United States in Antarctica.
Plaintiffs, appointed by foreign courts as administrators of the estates of individuals killed in the crash of an Air New Zealand DC-10 in Antarctica on November 28, 1979, brought this suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., claiming negligence by U.S. Navy personnel on duty at two air traffic control facilities located at the McMurdo Naval Station airfield on that continent.
The government has moved to dismiss, asserting that the claims are not cognizable under the Act.
Section 2680(k) exempts from the coverage of the Federal Tort Claims Act "any claim arising in a foreign country," and the basic question before the Court is whether Antarctica is a "foreign country" within the meaning of the statute. That issue has never before been decided and, for a variety of reasons, it is not free from doubt.
Antarctica is unique on the surface of the earth
in that it is not subject to the sovereign rule of any nation; it has never been part of any such sovereignty; and there are no plans to subject it to such rule in the future. The United States itself has taken the position that the continent and surrounding ice shelves are not subject to its own rule or that of any other nation.
Indeed, under Article IV of the Antarctica Treaty, signed on December 1, 1959, the contracting nations
agreed not to assert any territorial claim in Antarctica or to establish rights of sovereignty there.
It is also true, on the other hand, that Antarctica is not part of the United States.
The government builds upon that fact to argue that Congress meant, or must have meant, to exclude it from the reach of the Federal Tort Claims Act on the theory that the Act applies only to territory over which the United States exercises jurisdiction and sovereignty.
Unfortunately, there appears to be no legislative history to provide enlightenment. And, as will now be seen, extrinsic aids to construction in the main support application of the Act to torts of American personnel in Antarctica although, again, there are also some grounds for reaching a contrary conclusion.
First. A line of cases exemplified by United States v. Spelar, 338 U.S. 217, 94 L. Ed. 3, 70 S. Ct. 10 (1949) strongly suggest that section 2680(k) should not be construed to bar this suit.
Spelar was a Federal Tort Claims Act action arising on a American airbase in Newfoundland which had been leased by Great Britain to the United States for ninety-nine years as part of the famous exchange of bases for destroyers in the early days of World War II. The Supreme Court held that the suit was barred by the section 2680(k) exception because (1) sovereignty was vested in another nation, and (2) Congress did not wish to subject the United States government to liability depending upon the law of a foreign power. The Court emphasized colloquy during House Judiciary Committee hearings between Assistant Attorney General Shea and Congressman Robinson as follows:
Mr. Shea. . . . Claims arising in a foreign country have been exempted from this bill, H.R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty.
Mr. Robinson. You mean that any representative of the United States who committed a tort in England or some other country could not be reached under this?
Mr. Shea. That is right. That would have to come to the Committee on ...