Exploring the Foreign Country Exception: Federal Tort Claims in Antarctica

• Main Author: Bederman, David J.
• Format: Text
• Language: unknown
• Published: Scholarship@Vanderbilt Law 1988
• Subjects: tort claims; negligence; international law; Antarctica; Torts; McMurdo Sound; New Zealand; Mount Erebus; Antarc*
• Online Access: https://scholarship.law.vanderbilt.edu/vjtl/vol21/iss4/2; https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=2127&context=vjtl

On November 28, 1979, an Air New Zealand DC-10 aircraft carrying tourists bound for an expedition to Antarctica crashed into the side of Mount Erebus, the highest peak on the frozen continent. All aboard perished. Four years later, the families of some of the New Zealander skilled in the accident brought suit against the United States Government under the Federal Tort Claims Act (FTCA). They claimed that the negligence of the air traffic controllers at the United States scientific base at McMurdo Sound, Antarctica, was the proximate cause of the crash. This Article considers numerous aspects of this litigation and the theoretical issues it raises for federal practitioners and international lawyers. Part II offers a complete survey of the foreign country exception to federal tort claims jurisdiction. Although the application of this exception hinges on the interpretation of the phrase "foreign country" and whether a claim actually arises in such a place, no consistent definition has ever been provided for those two words under the FTCA. This Article provides a taxonomy of cases in which the foreign country exception has been raised as a defense by the Government, systematizes the definitions that have been offered, and correlates these with the express and implicit policies underlying the exception. Part III answers the question whether Antarctica can or should be considered a foreign country. Such an analysis requires a careful assessment of certain aspects of the continent's international legal status, past American practice, and the analogy of criminal jurisdiction. It also requires the application of the various tests for a foreign country surveyed in Part II. Finally, Part IV explores the venue and choice of law problems arising from a federal tort claim originating in Antarctica.