756 F.2d 91 (D.C. Cir. 1984), 84-5413, Beattie v. United States

Docket Nº:84-5413.
Citation:756 F.2d 91
Party Name:Martin John BEATTIE, et al. v. UNITED STATES of America, Appellant.
Case Date:December 31, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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756 F.2d 91 (D.C. Cir. 1984)

Martin John BEATTIE, et al.


UNITED STATES of America, Appellant.

No. 84-5413.

United States Court of Appeals, District of Columbia Circuit

December 31, 1984

Dissent and Concurrence Filed 26 Feb. 1985.

As Amended 26 Feb. 1985.

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Gary W. Allen, Asst. Director, Torts Branch, U.S. Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., U.S. Dept. of Justice, and Joseph E. diGenova, U.S. Atty., Washington, D.C., were on brief for appellant.

Philip Silverman, Washington, D.C., with whom Juanita M. Madole, Washington, D.C., was on brief for appellee.

Before WALD and SCALIA, Circuit Judges, and WILKEY, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILKEY.

Opinion dissenting filed by Circuit Judge SCALIA.

Opinion concurring filed by Circuit Judge WALD.

WILKEY, Senior Circuit Judge:

This case arises out of the crash of an Air New Zealand aircraft into Mount Erebus, Antarctica, on 28 November 1979. All

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persons on board were killed. On 12 January 1983 plaintiffs filed a complaint in the United States District Court for the District of Columbia, seeking recovery against the United States for wrongful death under the Federal Tort Claims Act (FTCA). 1 Plaintiffs' amended complaint ultimately alleged negligence of United States Navy Air Traffic Controllers at McMurdo Naval Air Station, Antarctica, as well as negligence in the selection, training, and supervision of the navy personnel at McMurdo Base by officials of the Department of Defense.

The United States filed a motion to dismiss under Rule 12(b)(1), (3), and (6), claiming that the District Court lacked subject matter jurisdiction, that plaintiffs had failed to state a cause of action upon which relief could be granted, and that venue was improper. The primary basis for the motion was the "foreign country" exception to the Federal Tort Claims Act. 2 This exception removes from the scope of the FTCA "[a]ny claim arising in a foreign country." 3

The issue before the District Court was one of first impression: Is Antarctica, a continent which is not now subject to the sovereignty of any nation, a "foreign country" within the meaning of the FTCA? By interlocutory order on 25 June 1984 the District Court denied the government's motion to dismiss, 592 F.Supp. 780, and certified this case for consideration by this Court in conformity with 28 U.S.C. Sec. 1292(b). The government sought permission to appeal, which we granted.

To resolve the question before us, we must deal with three broad issues. The first issue is whether the District Court has subject matter jurisdiction. This issue hinges on a determination of whether Antarctica is a foreign country within the meaning of the FTCA. The second issue is whether the venue rules of the FTCA have been satisfied. The final issue involves a determination of which forum's law to apply. Our analysis of these issues leads us to affirm the interlocutory order of the District Court.


  1. The Exception of Section 2680(k)

    The FTCA acts as a waiver of sovereign immunity in specified types of cases. Section 2680 of the FTCA lists several exceptions to that waiver. One of those retentions of sovereign immunity is involved here: section 2680(k), which withholds FTCA jurisdiction from "[a]ny claim arising in a foreign country." 4 As previously noted, the question of whether the District Court has subject matter jurisdiction depends on whether Antarctica is a foreign country within the meaning of the FTCA.

    1. The Nature of Antarctica

    Antarctica can properly be characterized as something of an international anomaly. It is a large continent which has never been and is not now subject to the sovereignty of any nation. Under the Antarctica Treaty of 1959 the signatory nations agreed not to exercise sovereignty in Antarctica, although their claims to sovereignty were not extinguished. 5

    The United States currently operates four active year-round stations, several summer camps, and numerous temporary tent cities in Antarctica. 6 McMurdo Base is America's largest station, with a summer population in excess of 850 persons and a winter population of about 92. It consists of approximately 130 buildings. McMurdo Station has been assigned a zip code by the United States Postal Service. 7

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    McMurdo Station has an airfield which supports frequent flights to and from New Zealand during the Antarctic summer. The airfield has two air traffic control facilities. One is Ice Tower; it is located adjacent to the runway, and has radio communication capability with incoming aircraft. The second facility is Mac Center, which has both radio capability to communicate with aircraft and radar capability to locate aircraft via radar returns. 8

    These United States activities are not set forth to demonstrate that, by virtue of extensive involvement, the United States can bring some distant land within the scope of United States sovereignty. These activities are relevant only to a fairly narrow and straightforward issue--is Antarctica a foreign country? The answer to this question is determined in part by answering the question of whether the United States treats this admittedly sovereignless land like a foreign country. The answer is that it does not.

    During the pendency of the Antarctica Treaty the United States has consistently reaffirmed its position regarding Antarctica. In 1981, for example, Assistant Secretary of State James L. Malone reiterated that, while the United States does not recognize territorial sovereignty in Antarctica, it maintains its own basis to claims of sovereignty in Antarctica. 9

    Based on the foregoing information, and on a common sense approach to the plain language of the statute, it would appear obvious that Antarctica is not a foreign country within any ordinary meaning of that term. That sort of "plain meaning" approach formed part of the basis of the District Court's decision. As the District Court explained:

    In view of this status of Antarctica, if the words of the statute are to be the decisive guide to statutory interpretation, the government's motion must fail, for clearly the instant claim did not arise in a foreign country as that term is commonly understood. Antarctica is not a foreign country; it is not a country at all; and it is not under the domination of any other foreign nation or country. Thus, if it be deduced from the language of the law that the section 2680(k) exception applies only where the government of a foreign nation has or asserts sovereignty, the Court would have to hold that with respect to Antarctica the exception does not, and the Act does, apply. 10

    Reference to the legislative history and relevant case law illustrates that Congress did not intend the term "foreign country" to extend beyond its ordinary meaning.

    2. The Legislative History

    The FTCA was the product of many years of congressional drafting and redrafting. A variety of amendments were proposed to the original legislation, including several different ways to structure the foreign country exception. A look at some of the rejected language highlights the meaning which should be given to the version which was eventually passed. In 1940 language was proposed to the foreign country exception which would have delineated the geographical jurisdiction of the FTCA to approximately the area the government now contends is covered, and by a positive inclusion instead of the negative exclusion we now have. The suggested language read:

    (12) This act shall be applicable only to damages or injury occurring within the geographical limits of the United States, Alaska, Hawaii, Puerto Rico or the Canal Zone. 11

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    Obviously, this language, if it had been accepted, would have limited the geographic jurisdictional scope of the FTCA to what the government now says it is. In fact, even if such language had never been suggested in the legislative history, the government would be hard put now to explain why, if the intent was to confine the FTCA solely to the geographical United States, the statute did not use straightforward language such as, "the applicability of the FTCA is limited to United States territory," or, "limited to claims arising in this country." However, no such language was accepted, and the previous "foreign country" version was retained. 12 We find it persuasive that Congress did not place a strict geographical limit on the scope of the FTCA, preferring simply to make an exception in the case of foreign countries.

    One instructive item of legislative history was highlighted in the only Supreme Court case to interpret this section of the FTCA, United States v. Spelar. 13 The Court quoted a pertinent colloquy between Assistant Attorney General Francis M. Shea, testifying to the House Committee on the Judiciary, and Congressman Robson of that Committee.

    Mr. Shea: Claims arising in a foreign country have been exempted from this bill, H.R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission, it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty.

    Mr. Robson: You mean by that any representative of the United States who committed a tort in England or some other country could not be reached under this?

    Mr. Shea: That is right. That would have to come to the Committee on Claims in the Congress. 14

    Although Mr. Shea did testify that it would be "wise to restrict the bill to claims arising in this...

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