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Published online by Cambridge University Press: 27 February 2017
Plaintiffs and respondents, Amerada Hess Shipping Corp. and United Carriers, Inc., were respectively the charterer and owner of the Hercules, a crude oil tanker that was bombed in international waters by Argentine military aircraft during the war over the Malvinas or Falkland Islands. The ship was severely damaged and had to be scuttled off the coast of Brazil. After unsuccessfully seeking relief in Argentina, the companies filed suit against defendant and appellant, the Argentine Republic, in the Southern District of New York. Plaintiffs argued that the federal courts had jurisdiction under the Alien Tort Statute (28 U.S.C. §1350 (1982)), which confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The district court dismissed the suit for lack of subject matter jurisdiction, holding that the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1330, 1602-1611 (1982)) (FSIA) is by its terms the sole basis of federal jurisdiction over cases against foreign states. A divided panel of the U.S. Court of Appeals for the Second Circuit reversed. The Supreme Court (per Rehnquist, C.J.) unanimously reversed the Second Circuit and held that the FSIA provides the exclusive basis of federal jurisdiction over suits against foreign states.
* Jean A. Y. du Pont of the District of Columbia Bar assisted the Editor in the preparation of the summaries in this issue.
1 638 F.Supp. 73 (S.D.N.Y. 1986).
2 830 F.2d 421 (2d Cir. 1987) (Kearse, J., dissenting), summarized in 82 AJIL 126 (1988).
3 830 F.2d at 425. The court explained that the latter rule is “not surprising, when one considers that international law consists primarily of rules guiding the conduct of nations. If sovereign acts were immunized today from scrutiny under international law, the exception would nearly swallow the rule.” Id. at 425-26.
4 Id. at 426-27.
5 109 S.Ct. 683, 688.
6 Id. at 689.
7 Id. at 690.
8 Id.
9 See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal. 1987).
10 109 S.Ct. at 692–93 (Blackmun, J., concurring).
11 This exception applies in cases
in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.
28 U.S.C. §1605(a)(5) (1982).
12 109 S.Ct. at 690.
13 28 U.S.C. §1603(c) (1982).
14 109 S.Ct. at 691 (relying on The Plymouth, 70 U.S. (3 Wall.) 20, 36 (1866)).
15 Id. (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). The Court also held that it was irrelevant that the Argentine Republic’s action may have had effects in the United States because, unlike the commercial activities exception, 28 U.S.C. § 1605(a)(2), the noncommercial tort exception does not provide that effects in the United States may be the basis for suits against foreign states. 109 S.Ct. at 691.
16 109 S.Ct. at 691. The Court noted that the boundary of U.S. territorial waters was recently extended to 12 nautical miles. Proclamation No. 5928, 54 Fed. Reg. 777 (1989). 109 S.Ct. at 691 n.8.
17 Apr. 29, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82.
18 Feb. 20, 1928, 47 Stat. 1989, 1990–91, TS No. 845, 135 LNTS 187.
19 109 S.Ct. at 692.
20 Head Money Cases, 112 U.S. 580, 598–99 (1884); and Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).
21 See, e.g., H.R. Rep. NO. 1487, 94th Cong., 2d Sess. 12(1976), reprinted in 1976 U.S. Code Cong. & Admin. News 6604, 6610 (FSIA was “intended to preempt any other State or Federal law (excluding applicable international agreements) for according immunity to foreign sovereigns”).
22 See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring), cert. denied, 470 U.S. 1003 (1985).
23 See Restatement (Third) of Foreign Relations Law of the United States §111 (1987).
24 See, e.g., Hauenstein v. Lynham, 100 U.S. 483 (1879) (common law action in which treaty determined who had title to property).
25 In addition to the FSIA exceptions discussed by the Court, commentators have argued that other FSIA exceptions provide authority for some types of suits against foreign states that could have been brought under the Alien Tort Statute according to the Second Circuit’s holding. See, e.g., Comment, Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law, 77 Cal. L. Rev. 365 (1989).