Smith v. United States, 507 U.S. 197, 15 (1993)

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Cite as: 507 U. S. 197 (1993)

Stevens, J., dissenting

eign country" is precisely tailored to make the scope of the subsection (k) exception coextensive with its justification.


The Court seeks to buttress its interpretation of the "foreign country" exception by returning to the language of the jurisdictional grant in 1346(b). As I have noted, federal courts have jurisdiction of civil claims against the United States "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." 11 Emphasizing the last dozen words, the Court essentially argues that Antarctica is "a place that has no law" and therefore it would be "bizarre" to predicate federal liability on its governing law. Ante, at 202.12

Although the words the Court has italicized indicate that Congress may not have actually thought about sovereignless regions, they surely do not support the Court's conclusion.

11 The Court inaccurately refers to the jurisdictional grant as the section that "waives the sovereign immunity of the United States," ante, at 201. 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 212-213, there is a governing "law of the place" within the meaning of the FTCA.


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