Smith v. United States, 507 U.S. 197, 17 (1993)

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

Stevens, J., dissenting

Justice Holmes was referring to the assertion of extra-territorial jurisdiction by the United States rather than an individual State, but it is clear that the States also have ample power to exercise legislative jurisdiction over the conduct of their own citizens abroad or on the high seas. As we explained in Skiriotes v. Florida, 313 U. S. 69 (1941):

"If the United States may control the conduct of its citizens upon the high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest and where there is no conflict with acts of Congress." Id., at 77.14

Surely the State of Oregon, the forum State, has a substantial interest in applying its civil tort law to a case involving the allegedly wrongful death of the spouse of one of its residents. Certainly no other State has an interest in applying its law to these facts. Moreover, application of Oregon's substantive law would in no way conflict with an Act of Congress because Congress has expressly subjected the United States to the laws of the various States for torts committed by the United States and its agents. It is thus perfectly clear that were the defendant in this case a private party, there would be law to apply to determine that party's liability to petitioner. Given the plain language of 2674, I see no basis for the Court's refusal to follow the statutory command and hold the United States "liable . . . in the same manner and to the same extent as a private individual under like circumstances."

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 France to govern their own ships upon the high seas." The Hamilton, 207 U. S. 398, 403 (1907).

213

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