Smith v. United States, 507 U.S. 197, 16 (1993)

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Stevens, J., dissenting

Those words, in conjunction with 2674, require an answer to the question whether a private defendant, in like circumstances, would be liable to the complainant. The Court fails even to ask that question, possibly because it is so obvious that petitioner could maintain a cause of action against a private party whose negligence caused her husband's death in Antarctica. It is simply wrong to suggest, as the Court does, that Antarctica is "a place that has no law," ante, at 201.13

The relevant substantive law in this case is the law of the State of Oregon, where petitioner resides. As was well settled at English common law before our Republic was founded, a nation's personal sovereignty over its own citizens may support the exercise of civil jurisdiction in transitory actions arising in places not subject to any sovereign. Mostyn v. Fabrigas, 98 Eng. Rep. 1021, 1032 (K. B. 1774). See also Dutton v. Howell, 1 Eng. Rep. 17, 21 (H. L. 1693). This doctrine of personal sovereignty is well recognized in our cases. As Justice Holmes explained in American Banana Co. v. United Fruit Co., 213 U. S. 347 (1909):

"No doubt in regions subject to no sovereign, like the high seas, or to no law that civilized countries would recognize as adequate, such [civilized nations] may treat some relations between their citizens as governed by their own law, and keep to some extent the old notion of personal sovereignty alive." Id., at 355-356.

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(d)(2)(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 composed 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.

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