The Federal Tort Claims Act, which is inapplicable, by its
terms, to any claim "arising in a foreign country," does not
authorize an action against the United States for an allegedly
wrongful death occurring at a Newfoundland air base under long-term
lease from Great Britain to the United States and allegedly
resulting from the negligent operation of the air base by the
United States.
Vermilya-Brown Co. v. Connell, 335 U.
S. 377, distinguished. Pp.
338 U. S.
218-222.
171 F.2d 208 reversed.
The District Court dismissed an action brought against the
United States under the Federal Tort Claims Act, to recover for the
allegedly wrongful death of a flight engineer at an air field in
Newfoundland leased by the United States from Great Britain. 75 F.
Supp. 967. The Court of Appeals reversed. 171 F.2d 208. This Court
granted certiorari. 336 U.S. 950.
Reversed, p.
338 U. S.
222.
Page 338 U. S. 218
MR. JUSTICE REED delivered the opinion of the Court.
The Federal Tort Claims Act is inapplicable by its terms to "any
claim arising in a foreign country." [
Footnote 1] The Court of Appeals for the Second Circuit
has held that this provision does not bar suit against the
Government for an allegedly wrongful death occurring at a
Newfoundland air base under long-term lease to the United States.
[
Footnote 2] We are here asked
to review that decision.
Flight engineer Mark Spelar, an employee of American Overseas
Airlines, was killed on October 3, 1946, in a take-off crash at
Harmon Field, Newfoundland. This airbase is one of the areas leased
for ninety-nine years by Great Britain to the United States
pursuant to the same executive agreement and leases discussed at
length in
Vermilya-Brown Co., Inc. v. Connell,
335 U. S. 377.
Spelar's administratrix, respondent here, initiated this action
against the United States under the Federal Tort Claims Act in the
District Court of the United States for the Eastern District of New
York, the district where she resides. She alleges that the fatal
accident was caused by the Government's negligent operation of
Harmon Field. The local law which underlies her cause of action is
Newfoundland's wrongful death statute authorizing the executor or
administrator to bring suit for death arising from negligence.
[
Footnote 3] Upon the
Government's motion, the District Court held the claim to be one
"arising in a foreign
Page 338 U. S. 219
country," and dismissed the complaint for want of jurisdiction.
The Court of Appeals reversed. Our decision in
Vermilya-Brown that the Fair Labor Standards Act applies
to such leased military bases was deemed "persuasive, if not well
nigh conclusive" of the issue here. [
Footnote 4] Because of this broad interpretation put upon
our opinion in
Vermilya-Brown, and because the decision
substantially affects the area of private suit against the
Government, we granted certiorari, 336 U.S. 950.
We are of the opinion that the court below has erred. Sufficient
basis for our conclusion lies in the express words of the statute.
We know of no more accurate phrase in common English usage than
"foreign country" to denote territory subject to the sovereignty of
another nation. [
Footnote 5] By
the exclusion of "claims arising in a foreign country," the
coverage of the Federal Tort Claims Act was geared to the
sovereignty of the United States. We repeat what was said in
Vermilya-Brown at page
335 U. S.
380.
"The arrangements under which the leased bases were acquired
from Great Britain did not, and were not intended to, transfer
sovereignty over the leased areas from Great Britain to the United
States."
Harmon Field, where this claim "arose," remained subject to the
sovereignty of Great Britain, and lay within a "foreign country."
The claim must be barred.
If the words of the statute were not enough, however, to sustain
our result, we think the legislative history behind this provision
concludes all doubt. The Federal Tort Claims Act of 1946 was the
product of some twenty-eight years of congressional drafting and
redrafting,
Page 338 U. S. 220
amendment and counter-amendment. [
Footnote 6] The draft being considered in 1942 by the
House Committee on the Judiciary exempted all claims "arising in a
foreign country in behalf of an alien." [
Footnote 7] At the suggestion of the Attorney General,
the last five words were excised in a revised version of the bill,
[
Footnote 8] so that the
exemption provision assumed the form which was ultimately enacted
into law. [
Footnote 9] The
superseded draft had made the waiver of the Government's
traditional immunity turn upon the fortuitous circumstance of the
injured party's citizenship. The
Page 338 U. S. 221
amended version identified the coverage of the Act with the
scope of United States sovereignty. The record of the Hearings
tells us why. We quote the pertinent colloquy between Assistant
Attorney General Francis M. Shea, who explained the Attorney
General's revised version of the bill to the House Committee on the
Judiciary, and Congressman Robsion 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. ROBSION. 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 Congress. [
Footnote 10]"
In brief, though Congress was ready to lay aside a great portion
of the sovereign's ancient and unquestioned immunity from suit, it
was unwilling to subject the United States to liabilities depending
upon the laws of a foreign power. The legislative will must be
respected. The present suit, premised entirely upon Newfoundland's
law, may not be asserted against the United States in contravention
of that will.
To the extent that
Vermilya-Brown Co., Inc. v. Connell
has any application to the case at bar, it stands as authority for
our result here, for it postulates that the executive agreement and
leases effected no transfer of sovereignty
Page 338 U. S. 222
with respect to the military bases concerned. [
Footnote 11] For the rest, we there held no
more than that the word "possessions" does not necessarily imply
sovereignty, and concluded as a matter of interpretation of the
legislative history of the Fair Labor Standards Act that the leased
bases, not in existence at the time the Act was passed, were to be
included as "possessions" in the sense in which that word was used
in that statute. The statutory language and the legislative record
relating to the ambit of the Federal Tort Claims Act differ
entirely from those pertinent to the Fair Labor Standards Act, and,
since the bases had been leased to the United States prior to the
enactment of the statute here involved, the
Vermilya-Brown
problem of determining what Congress would have done when faced
with a new situation does not exist at all in the present case.
In
Foley Bros. v. Filardo, [
Footnote 12] we had occasion to refer to the
"canon of construction which teaches that legislation of
Congress, unless a contrary intent appears, is meant to apply only
within the territorial jurisdiction of the United States. . .
."
That presumption, far from being overcome here, is doubly
fortified by the language of this statute and the legislative
purpose underlying it.
The decision must be
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
62 Stat. 984, 28 U.S.C. (Supp. II) § 2680(k). The language was
identical at the time this suit was instituted, though at that time
contained in 60 Stat. 846, 28 U.S.C. § 943(k).
[
Footnote 2]
Spelar v. United States, 171 F.2d 208.
[
Footnote 3]
Cons.Stats. of Newfoundland (3d Series), c. 213. Local law must
be pleaded, since the Federal Tort Claims Act permits suit only
"where the United States, if a private person, would be liable .
. . in accordance with the law of the place where the act or
omission occurred."
60 Stat. 843, 28 U.S.C. §931(a). The substance of this provision
is now embodied in 62 Stat. 933, 28 U.S.C.(Supp. II), §
1346(b).
[
Footnote 4]
Spelar v. United States, 171 F.2d 208, 209.
[
Footnote 5]
See Mr. Justice Brown for the Court in
De Lima v.
Bidwell, 182 U. S. 1,
182 U. S.
180:
"A foreign country was defined by Mr. Chief Justice Marshall and
Mr. Justice Story to be one exclusively within the sovereignty of a
foreign nation, and without the sovereignty of the United States.
The Eliza, 2 Gall. 4;
Taber v. United States, 1
Story 1;
The Adventure, 1 Brock. 235, 241."
[
Footnote 6]
Agitation for reform of the cumbersome private bill procedure
bore its first fruit in H.R. 14737, introduced in the third Session
of the Sixty-fifth Congress in 1919. The subject was almost
continuously before one House or the other until the final passage
of the substance of the present Act by the Seventy-ninth Congress.
In the revision of the Judicial Code, Act of June 25, 1948, 62
Stat. 869, minor amendments, not relevant here, were made.
[
Footnote 7]
H.R. 5373, 77th Cong., 2d Sess., § 303 (12).
[
Footnote 8]
Hearings, H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess., pp. 29,
35, 66. The Attorney General's revised version was H.R. 6463, §
402(12).
[
Footnote 9]
The shape of the Federal Tort Claims Act was largely determined
during its consideration in the course of the 77th Congress.
Subsequently, the bill was reintroduced without substantial
modification or further hearings until its enactment during the
79th Congress. The revised version of the tort claims bill
introduced during the 2d session of the 77th Congress, S. 2221, was
reported favorably by the Senate Committee on the Judiciary (S.
Rep. No. 1196, 77th Cong., 2d Sess.), and passed the Senate. 88
Cong.Rec. 3174. The House Committee on the Judiciary, to which it
was then referred, and which had been holding hearings on H.R.
6463, the companion measure to S. 2221, the bill passed by the
Senate, reported the bill favorably (H.Rep.No.2245, 77th Cong., 2d
Sess.), but it was never considered by the House. It was
reintroduced in the 78th Congress (H.R. 1356, 78th Cong., 1st
Sess.; S. 1114, 78th Cong., 1st Sess.), but no action was taken,
and again in the 79th Congress (H.R. 181, reported in
H.Rep.No.1287, 79th Cong., 1st Sess.). It was finally passed by the
79th Congress as part of the omnibus Legislative Reorganization
Act. 60 Stat. 842.
[
Footnote 10]
Hearings,
supra, note
8 p. 35.
[
Footnote 11]
Vermilya-Brown Co., Inc. v. Connell, 335 U.
S. 377,
335 U. S.
380.
[
Footnote 12]
336 U. S. 336 U.S.
281,
336 U. S. 285.
The case holds the Eight Hour Law inapplicable to Government
contractors working on military bases not under lease to the United
States.
MR. JUSTICE FRANKFURTER, concurring.
In some aspects, no doubt, every statute presents a unique
problem for interpretation. But the presuppositions of the judicial
process in construing legislation
Page 338 U. S. 223
should be neither capricious nor
ad hoc. While
normally, therefore, it is not very fruitful to express
disagreement either with the rendering of a particular statute or
the mode by which that is reached, where this involves implications
touching the very process of judicial construction, silence may
carry significance beyond the immediate case.
I agree that the Federal Tort Claims Act does not afford a right
of action for the negligent conduct of the Government, through its
employees, at one of the bases held by the United States under the
long-term arrangements made with Great Britain. But the road
traveled by the Court's opinion in reaching this result does not
seem to me the way to get there.
The Court's opinion finds the phrase "foreign country," in that
Act's restriction against "claims arising in a foreign country," to
be as compelling in excluding the Newfoundland air base, under the
kind of control that the United States exercises at these bases, as
less than a year ago it found the term "possessions" in the Fair
Labor Standards Act to be compelling in including these bases.
Vermilya-Brown Co. v. Connell, 335 U.
S. 377. To assume that terms like "foreign country" and
"possessions" are self-defining, not at all involving a choice of
judicial judgment, is mechanical jurisprudence at its best. These
terms do not have fixed and inclusive meanings, as is true of
mathematical and other scientific terms. Both "possessions" and
"foreign country" have penumbral meanings, which is not true, for
instance, of the verbal designations for weights and measures. It
is this precision of content which differentiates scientific from
most political, legislative, and legal language.
A "foreign country" in which the United States has no
territorial control does not bear the same relation to the United
States as a "foreign country" in which the United States does have
the territorial control that it has in the air base in
Newfoundland. In the entangling relationships
Page 338 U. S. 224
between such nations as Great Britain and this country, it is
not compelling that "foreign country" means today what it may have
meant in the days of Chief Justice Marshall, or even in those of
Mr. Justice Brown. The very concept of "sovereignty" is in a state
of more or less solution these days. To find a single and
undeviating content for "foreign country" necessarily excluding
these bases, while "possessions" of the United States is to be
deemed as necessarily including them, despite the momentum of
historic meaning and experience leading to a contrary significance
of "possessions," is to give the appearance of logically compulsive
force to decisions. It fails to recognize the scope of supple words
that are the raw materials of legislation and adjudication, and is
unmindful of those considerations of policy which underlie,
consciously or unconsciously, seemingly variant decisions. When so
many able judges can so misconceive the implications of our
decision in
Vermilya-Brown Co. v. Connell, supra, as they
have been found to misconceive them, the source of difficulty
cannot be wholly with these able lawyer court judges.
The considerations that led me to join in the dissent in
Vermilya-Brown Co. v. Connell, supra, lead me to concur
with the Court's construction of the Tort Claims Act in this
case.
MR. JUSTICE JACKSON, concurring.
I reach the same result, but I could hardly do so, as does the
Court, by reiteration of the prevailing opinion in
Vermilya-Brown Co. v. Connell, 335 U.
S. 377. That decision, taken with the present one, adds
up to this: if an employee should chance to work overtime on a
leased air base, he can maintain an action for extra wages,
penalties, and interest, because the Court finds the air base to be
a "possession" of the United States. However, if he is injured at
the same place, he may not proceed under
Page 338 U. S. 225
the Tort Claims Act to recover, because the Court finds the air
base then to be a "foreign country." To those uninitiated in modern
methods of statutory construction, it may seem a somewhat esoteric
doctrine that the same place, at the same time, may legally be both
a possession of the United States and a foreign country. This
disparity results from holding that Congress, when it refers to our
leased air bases, at one time calls them "possessions" and at
another "foreign countries." While congressional incoherence of
thought or of speech is not unconstitutional, and Congress can use
a contrariety of terms to describe the same thing, we should pay
Congress the respect of not assuming lightly that it indulges in
inconsistencies of speech which make the English language almost
meaningless. There is some reason to think the inconsistency lies
in the Court's rendering of the statutes, rather than in the way
Congress has written them. At all events, the present decision
seems to me correct, and, so far as it is contradicted by the
effect of
Vermilya-Brown, I think we should retreat from
the latter.