Smith v. United States

RESPONDENT: United States
LOCATION: Superior Court of the District of Columbia

DOCKET NO.: 91-1538
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 507 US 197 (1993)
ARGUED: Dec 07, 1992
DECIDED: Mar 08, 1993

Christopher J. Wright - on behalf of the Respondent
David J. Bederman - on behalf of the Petitioner
David J. Bederman - for petitioner

Facts of the case


Media for Smith v. United States

Audio Transcription for Oral Argument - December 07, 1992 in Smith v. United States

William H. Rehnquist:

We'll hear argument next in number 91-1538, Sandra Jean Smith v. the United States.

Mr. Bederman.

David J. Bederman:

Mr. Chief Justice, and may it please the Court:

Petitioner's husband, John Emmett Smith travelled to Antarctica as an employee of a Government contractor, and because of the Government's negligence died in Antarctica.

This case comes under the Federal Tort Claims Act, the sole avenue by which Mrs. Smith can sue the Government, and concerns the proper construction of the act's foreign country exception, which the Government contends bar jurisdiction here.

Petitioner maintains that the sole purpose of the foreign country exception is to ensure that the United States' liability under the act is not governed by the tort law of a foreign power.

It is undisputed here that Antarctica is a sovereignless region and has no civil tort law of its own, and therefore Petitioner maintains that Antarctica cannot be a foreign country for the purposes of the FTCA.

Now, averring to that point, the chief point, that the sole purpose of the Federal Tort Claims Act's foreign country exception was to prevent intrusion of foreign law into domestic litigation, we believe this conclusion is amply supported by this Court's only previous opportunity to review the foreign country exception, which was in Spelar v. the United States.

Moreover, petitioner submits that the emphasis on the presence or absence of a foreign tort law leads to consistent results, particularly when there is ambiguity over the presence or absence of a foreign territorial sovereign.

And thirdly, on this primary point, petitioner maintains that Congress is well aware of alternate formulations dealing with the notion foreign country, as I aver permissive, or in its mandatory forms, and therefore we can fairly interpret the foreign country exception to apply in this case to an area that is sovereignless, the one area on earth, apart from the high seas, we contend that is sovereignless.

If this is the case and if these premises are accepted, again it is undisputed in this case that Antarctica is, in fact, a sovereignless area having no civil tort law of its own.

Now, in view of this, petitioner maintains that it is, in fact, the Government's position which leads to illogical and peculiar results.

The first instance of the Government's position would be to interpret the act so that Antarctica is a foreign country, which would have the effect, the Government maintains, of barring Mrs. Smith's claim.

But it is clear on the record that if Mr. Smith had died because of the Government's negligence just a mile or two offshore of the McMurdo Station on the southern ocean, that that claim would cognizable under the Death on the High Seas Act, DOHSA, for the Suits in Admiralty Act.

It seems--

Is the... does the Death on the High Seas Act determine the law that will be applied?

David J. Bederman:

--The Death on the High Seas Act, the law applies in such an action is the Federal General Maritime Law--


David J. Bederman:

--as distinct, of course, from the Federal Tort Claims Act.

David H. Souter:

And as distinct from this... under the Tort Claims Act and hence is distinct in this case because there isn't any law in Antarctica.

David J. Bederman:

Well, and--

David H. Souter:

I mean there's no law... there's no tort law of the place of the tort, is there here?

So even if you win on your argument, why don't you lose on the ground that under the terms of the Tort Claims Act there is no law that can be applied and therefore it must not be intended to apply here?

David J. Bederman:

--Justice Souter, petitioner maintains that the primary object of the Federal Tort Claims Act is to place the Government in exactly the same position as a private individual if that private individual were a tort feasor.

There is no question that if this were a case between Mrs. Smith and the Government contractor, here ITT Antarctic Services, and that claim were brought in Oregon, that the law that would be applied in this case under either notions of personal sovereignty or under the conflicts restatement balancing tests, is the law of Oregon in this instance.

David H. Souter:

Well that... that... assuming that to be the case, the fact is we've still got the Tort Claims Act, and that's not what the Tort Claims Act provides.

David J. Bederman:


The Federal Tort Claims Act's choice of law provision refers to the place where the act or omission occurred.

There is no dispute in this case that the relevant act or omission occurred in Antarctica.

This is not a headquarters claim.