374
Opinion of Kennedy, J.
The FSIA states that with respect to any claim against a foreign sovereign that falls within the statutory exceptions to immunity listed in § 1605, "the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances." 28 U. S. C. § 1606. The Act incorporates state law and "was not intended to affect the substantive law determining the liability of a foreign state." First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 620 (1983). If the governing state law, which has not yet been determined, would permit an injured person to plead and prove a tortious wrong for failure to warn against a private defendant under facts similar to those in this case, we have no authority under the FSIA to ordain otherwise for those suing a sovereign entity. "[W]here state law provides a rule of liability governing private individuals, the FSIA requires the application of that rule to foreign states in like circumstances." Id., at 622, n. 11.
The majority's citation of United States v. Shearer, 473
U. S. 52, 54-55 (1985) (opinion of Burger, C. J.), see ante, at 363, provides no authority for dismissing the failure to warn claims. Shearer refused to permit a plaintiff to recast in negligence terms what was essentially an intentional tort claim, but that case was decided under the doctrine of Feres v. United States, 340 U. S. 135 (1950). The Feres doctrine is a creature of federal common law that allows the Court much greater latitude to make rules of pleading than we have in the current case. Here, our only task is to interpret the explicit terms of the FSIA. The Court's conclusion in Shearer was also based upon the fact that the intentional tort exception to the Federal Tort Claims Act at issue there, 28 U. S. C. § 2680(h), precludes "[a]ny claim arising out of" the specified intentional torts. This language suggests that Congress intended immunity under the FTCA to cover more than those claims which simply sounded in intentional tort. There is no equivalent language in the commercial activity
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