Argentine Republic v. Amerada Hess Shipping Corporation, No. 87-1372

• Court: United States Supreme Court
• Writing for the Court: REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed an opinion concurring in part, in which MARSHALL
• Citation: 109 S.Ct. 683,488 U.S. 428,102 L.Ed.2d 818
• Decision Date: 23 January 1989
• Docket Number: No. 87-1372
• Parties: ARGENTINE REPUBLIC, Petitioner v. AMERADA HESS SHIPPING CORPORATION et al

488 U.S. 428 109 S.Ct. 683 102 L.Ed.2d 818 ARGENTINE REPUBLIC, Petitioner

v.

AMERADA HESS SHIPPING CORPORATION et al.

No. 87-1372. Argued Dec. 6, 1988. Decided Jan. 23, 1989. Syllabus

A crude oil tanker owned by respondent United Carriers, Inc., a Liberian corporation, and chartered respondent Amerada Hess Corp., also a Liberian corporation, was severely damaged when it was attacked in international waters by Argentine military aircraft during the war between Great Britain and petitioner Argentine Republic over the Falkland Islands (Malvinas) off the Argentine coast. Respondents brought separate actions against petitioner in Federal District Court for the damage they sustained in the attack. They invoked the District Court's jurisdiction under the Alien Tort Statute (ATS), which confers original jurisdiction on district courts over civil actions by an alien for a tort committed in violation of the law of nations or a treaty of the United States. Amerada Hess also brought suit under the general admiralty and maritime jurisdiction of federal courts, 28 U.S.C. § 1333, and "the principle of universal jurisdiction, recognized in customary international law." The District Court dismissed respondents' complaints for lack of subject-matter jurisdiction, ruling that their actions were barred by the Foreign Sovereign Immunities Act of 1976 (FSIA). The FSIA provides in 28 U.S.C. § 1604 that "[s]ubject to existing international agreements to which the United States [was] a party at the time of the enactment of this Act[,] a foreign state shall be immune from the jurisdiction" of United States courts except as provided in 28 U.S.C. §§ 1605-1607, and further provides in 28 U.S.C. § 1330(a) that "[t]he district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity" under §§ 1605-1607 or any applicable international agreement. The Court of Appeals reversed, holding that the District Court had jurisdiction over respondents' consolidated action under the ATS.

Held: The FSIA provides the sole basis for obtaining jurisdiction over a foreign state in United States courts, and the District Court correctly dismissed the action because the FSIA did not authorize jurisdiction over petitioner under the facts of this case. Pp. 433-443.

(a) The FSIA's text and structure demonstrate Congress' intention that the FSIA be the sole basis for obtaining jurisdiction over a foreign

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state in United States courts. Sections 1604 and 1330(a) work in tandem: § 1604 bars United States courts from exercising jurisdiction when a foreign state is entitled to immunity, and § 1330(a) confers jurisdiction on district courts to hear suits brought by both United States citizens and aliens when a foreign state is not entitled to immunity. Pp. 435-436.

(b) From Congress' decision in the FSIA to deny immunity to foreign states in cases involving property taken in violation of international law in § 1605(a)(3), the plain implication is that immunity is granted in those cases involving alleged violations of international law that do not come within one of the FSIA's exceptions. Pp. 435—436.

(c) Congress' failure in the FSIA to enact a pro tanto repealer of the ATS when it passed the FSIA in 1976 may be explained at least in part by the lack of certainty as to whether the ATS conferred jurisdiction in suits against foreign states. In light of the comprehensiveness of the FSIA's scheme, it is doubtful that even the most meticulous draftsman would have concluded that Congress also needed to amend pro tanto the ATS and presumably other grants of subject-matter jurisdiction in Title 28. Pp. 436-438.

(d) The rule of statutory construction under which repeals by implication are disfavored does not apply here. This case does not involve two statutes that supplement one another, nor is it a case where a more general statute is claimed to have repealed by implication an earlier statute dealing with a narrower subject. Congress' decision to deal comprehensively with the subject of foreign sovereign immunity in the FSIA, and the express provision in § 1604 that "a foreign state shall be immune from the jurisdiction" of United States courts except as provided in §§ 1605-1607, preclude a construction of the ATS that permits the instant action. P. 438.

(e) Congress dealt with the admiralty jurisdiction of the federal courts when it enacted the FSIA. Section 1605(b) expressly permits an in personam suit in admiralty to enforce a maritime lien against a vessel or cargo of a foreign state. Unless the present case is within § 1605(b) or another exception to the FSIA, the statute conferring general admiralty and maritime jurisdiction on the federal courts does not authorize this suit against petitioner. Pp. 438-439.

(f) The District Court correctly determined that none of the exceptions enumerated in the FSIA applies to the facts of this case. The exception for noncommercial torts in § 1605(a)(5) is limited by its terms to cases in which the damage to or loss of property occurs in the United States. The FSIA's definition of "United States" in § 1603(c) as including all "territory and waters, continental and insular, subject to the jurisdiction of the United States" cannot be construed to include petitioner's attack on the high seas. Pp. 439-441.

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(g) The Geneva Convention on the High Seas and the Pan-American Maritime Neutrality Convention entered into by petitioner and the United States do not create an exception to the FSIA. A foreign state cannot waive its immunity under § 1605(a)(1) by signing an international agreement that does not mention a waiver of immunity to suit in United States courts or even the availability of a cause of action in the United States. Nor does the Treaty of Friendship, Commerce and Navigation between the United States and Liberia carve out an exception to the FSIA. That Treaty provides that United States and Liberian nationals shall have access to the courts of each country "on conforming to the local laws," and the FSIA is clearly one of the "local laws" to which respondents must conform before bringing suit in United States courts. Pp. 441-443.

830 F.2d 421 (CA2 1987), reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed an opinion concurring in part, in which MARSHALL, J., joined, post, p. 443.

Bruno A. Ristau, Washington, D.C., for petitioner.

Charles Fried, Sol. Gen., Washington, D.C., for United States as amicus curiae, supporting the petitioner, by special leave of Court.

Douglas R. Burnett, New York City, for respondents.

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Chief Justice REHNQUIST delivered the opinion of the Court.

Two Liberian corporations sued the Argentine Republic in a United States District Court to recover damages for a tort allegedly committed by its armed forces on the high seas in violation of international law. We hold that the District Court correctly dismissed the action, because the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1330 et seq., does not authorize jurisdiction over a foreign state in this situation.

Respondents alleged the following facts in their complaints. Respondent United Carriers, Inc., a Liberian corporation, chartered one of its oil tankers, the Hercules, to respondent Amerada Hess Shipping Corporation, also a Liberian corporation. The contract was executed in New York City. Amerada Hess used the Hercules to transport crude oil from the southern terminus of the Trans-Alaska Pipeline in Valdez, Alaska, around Cape Horn in South America, to the Hess refinery in the United States Virgin Islands. On May 25, 1982, the Hercules began a return voyage, without cargo but fully fueled, from the Virgin Islands to Alaska. At that time, Great Britain and petitioner Argentine Republic were at war over an archipelago of some 200 islands—the Falkland Islands to the British, and the Islas Malvinas to the Argentineans—in the South Atlantic off the Argentine coast. On June 3, United States officials informed the two belligerents of the location of United States vessels and Liberian tankers owned by United States interests then traversing the South Atlantic, including the Hercules, to avoid any attacks on neutral shipping.

By June 8, 1982, after a stop in Brazil, the Hercules was in international waters about 600 nautical miles from Argentina and 500 miles from the Falklands; she was outside the "war zones" designated by Britain and Argentina. At 12:15 Greenwich mean time, the ship's master made a routine report by radio to Argentine officials, providing the ship's

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name, international call sign, registry, position, course, speed, and voyage description. About 45 minutes later, an Argentine military aircraft began to circle the Hercules. The ship's master repeated his earlier message by radio to Argentine officials, who acknowledged receiving it. Six minutes later, without provocation, another Argentine military plane began to bomb the Hercules; the master immediately hoisted a white flag. A second bombing soon followed, and a third attack came about two hours later, when an Argentine jet struck the ship with an air-to-surface rocket. Disabled but not destroyed, the Hercules reversed course and sailed to Rio de Janeiro, the nearest safe port. At Rio de Janeiro, respondent United Carriers determined that the ship had suffered extensive deck and hull damage, and that an undetonated bomb remained lodged in her No. 2 tank. After an investigation by the Brazilian Navy, United Carriers decided that it would be too hazardous to remove the undetonated bomb, and on July 20, 1982, the Hercules was scuttled 250 miles off the Brazilian coast.

Following unsuccessful attempts to...