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June 25, 1984

MARTIN JOHN BEATTIE, et al., Plaintiffs,

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. *fn1" 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 *fn2" 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. *fn3" Indeed, under Article IV of the Antarctica Treaty, signed on December 1, 1959, the contracting nations *fn4" agreed not to assert any territorial claim in Antarctica or to establish rights of sovereignty there.

 In view of this status of Antarctica, *fn5" if the words of the statute are to be the decisive guide to statutory interpretation, the government's motion must fail, for clearly the instant claim did not arise in a foreign country as that term is commonly understood. Antarctica is not a foreign country; it is not a country at all; *fn6" and it is not under the domination of any other foreign nation or country. Thus, if it be deduced from the language of the law that the section 2680(k) exception applies only where the government of a foreign nation has or asserts sovereignty, the Court would have to hold that with respect to Antarctica the exception does not, and the Act does, apply.

 It is also true, on the other hand, that Antarctica is not part of the United States. *fn7" 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. *fn8" 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 Claims in the Congress.

 And the Court went on to state:


In brief, though Congress was ready to lay aside a great portion of the sovereign's ancient and unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power. The legislative will must be respected.

 (footnote omitted). 338 U.S. at 221; see also Sami v. United States, 199 U.S. App. D.C. 173, 617 F.2d 755, 762-63 (D.C. Cir. 1979); Callas v. United States, 253 F.2d 838, 839-40 (9th Cir. 1958); Pignataro v. United States, 172 F. Supp. 151 (E.D.N.Y. 1959); Roberts v. United States, 498 F.2d 520, 522 n.2 (9th Cir. 1974); Gerritson v. Vance, 488 F. Supp. 267, 268 (D. Mass. 1980); annotation 6 L. Ed. 2d 1476. *fn9" The reasoning of these cases inferentially supports an application of the Act to Antarctica since no nation claims sovereignty on that continent and the law to be applied would not be that of another nation. *fn10" See Part II infra.

 On the other hand, one court has held, *fn11" and another has concurred, *fn12" that among other possible reasons for the section 2680(k) exception, all of them applicable here, are a reluctance to extend the benefits of the Act to foreign populations, *fn13" the absence of United States courts at the situs of the tort, and the difficulty of bringing witnesses to a trial in the United States. In short, no clear-cut answer emerges from these materials.

 Second. In situations which are somewhat analogous to that created by the Federal Tort Claims Act, United States laws and practices have been applied to Antarctica. Thus, the income tax regulations *fn14" define "foreign country" as "territory under the sovereignty of a government other than that of the United States." The U.S. Tax Court, after reviewing the history and status of Antarctica, concluded that Antarctica is not a foreign country. Larry R. Martin v. Commissioner, 50 T.C. 59 (1968). Similarly, the Tariff Act of 1930, *fn15" the Interstate Transportation of Wagering Paraphernalia Act, *fn16" the State Conducted Lotteries Act, *fn17" the Foreign Bank Participation in Domestic Market Act, *fn18" and the International Flight Information Manual published by the Federal Aviation Administration *fn19" pursuant to the Federal Aviation Act, *fn20" all directly or by necessary implication exclude Antarctica from the "foreign country" category.

 Moreover, to the extent that there is any assertion of governmental authority in Antarctica, it appears to be predominantly that of the United States. The United States conducts all search and rescue operations in Antarctica and, significantly, it controls all air transportation. *fn21" Further, when Admiral Byrd first occupied Antarctica, he established a United States Post Office in the Ross Dependency. *fn22" That Post Office has since been abandoned but McMurdo base now operates under a United States zip code. United States dollars are the currency of exchange at that base, and all persons on flights that land there must fill in immigration cards. Id. at 62.

 Third. If the allegations of the complaint are true, personnel employed by the United States government were guilty of negligence, possibly recklessness, and as a consequence an airplane crashed and all passengers and crew were killed. If the government's motion to dismiss is granted, no one will be held liable for that negligence, and the survivors will not be able to claim or receive damages for these actions. *fn23" While, to be sure, there is not necessarily a remedy for every wrong, the Court is certainly justified in avoiding a construction of the governing statute which would lead to the result of a remediless wrong if that can fairly be done. *fn24"

 The Court concludes that, although the issue is not free from doubt, section 2680(k) does not bar this action.


 The government also argues that venue is improperly laid in this Court, and that District of Columbia law may not be applied. Both positions appear to the Court to be unsound.

 28 U.S.C. § 1402(b) provides that tort claims may be prosecuted only "in the judicial district . . . wherein the act or omission complained of occurred," and, says the government, since the situs of the acts or omissions is Antarctica, venue could not properly be here. This analysis neglects to consider that the complaint also alleges that the Department of Defense failed to use due care in the selection, training, and supervision of the naval personnel at the McMurdo base and to establish reasonable standards of training and performance for the operation of the facilities at the base. *fn25" A tort claim under the FTCA arises at the place where the negligent acts occurred; the place of the accident or injury is not necessarily controlling. Richards v. United States, 369 U.S. 1, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962).

 As a consequence of that principle, the FTCA has been applied a number of times in situations analogous to that involved here, and suits were allowed to be brought in the District of Columbia pursuant to District of Columbia law although the primary effect of the tort was abroad. See Sami v. United States, supra; Leaf v. United States, 588 F.2d 733 (9th Cir. 1978); In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D. Cal. 1975); Roberts v. United States, 498 F.2d 520 (9th Cir. 1974); see also, Lamont v. Haig, 192 U.S. App. D.C. 8, 590 F.2d 1124 (D.C. Cir. 1978).

 The appropriateness of District of Columbia law and venue are further supported by the fact that the necessary records relating to United States naval operations in Antarctica, and more particularly the records pertaining to this particular crash, are located in the District of Columbia. It may also be noted that the National Transportation Safety Board, headquartered in the District, sent to the site of the crash both its official representative and its flight recorder expert. The Federal Aviation Administration also sent a representative, and it returned the flight data recorder to the District of Columbia for analysis.

 In In re Air Crash Disaster Near Saigon, Vietnam on April 4, 1975, 476 F. Supp. 521, 527 (D.D.C. 1979), Judge Oberdorfer applied District of Columbia law to an air crash involving the U.S. Army in Vietnam, observing:


. . . officials acting at the Seat of the Government were the ultimately responsible actors in the chain of circumstances and specific events which ended in the deaths and injuries at issue here. Because of the national interests at stake here, the law of the forum, which is the law enacted by Congress for the Seat of the Government, should be displaced only if some other jurisdiction has an overwhelming policy interest in applying is own law (citations omitted).

 The Court concludes that it is appropriate to apply District of Columbia law to this controversy and to allow the suit to be brought here. *fn26"


 For the reasons stated, the motion to dismiss will be denied. However, it is obvious from what has been said that the order of dismissal involves at least one controlling question of law as to which there is substantial ground for difference of opinion. It also appears that an immediate appeal may materially advance the ultimate termination of the litigation. For these reasons, the Court will certify this case to the Court of Appeals for its consideration in conformity with 28 U.S.C. § 1292(b).

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