Is the Kree Empire financially responsible for the damaged caused by people exposed to the Terrigen Mist? Can those exposed to the Mist sue the Kree for damages?
The Agents of SHIELD episode “Who You Really Are?” set the stage for these questions with the Kree Vin-Tak’s visit to Earth. Let’s summon our Cosmic Awareness to answer can the Kree be sued on Earth?
Jurisdiction in the United States
The Commonwealth of Puerto Rico, a territory of the United States, would be the proper venue to hear any cases pertaining to Terrigen Mist exposure, because the Kree city is located below Puerto Rico. The fact the Kree used that area as a base for their experiments should meet jurisdictional requirements for damages resulting from exposure to the Terrigen Mist. Additionally, wherever an Inhuman or Deviant causes property damage or injuries people would be the proper place to sue the Kree based where that injury occurred.
However, suing an alien empire from another planet is legally untested. While litigation in the United States has been against foreign countries hostile to the United States, those normally end in frozen bank accounts or garnishing payments made to companies doing business with said hostile nation. The Kree not participating in the global economy, let alone any embassies on Earth, would make judgment enforcement extremely difficult.
Can the Kree Empire Even be Sued?
A human attorney retained by the Kree Empire, or a Kree lawyer seeking pro hac vice status in a US Court, would argue that the Foreign Sovereign Immunities Act protects the Kree Empire as a foreign state would be immune from the jurisdiction of the courts of the United States under 28 U.S.C.S. § 1604.
There are exceptions to the Foreign Sovereign Immunities Act which could subject the Kree to jurisdiction in a US Court. The first is the rights in property in the United States acquired by succession under 28 USCS § 1605(4) or when money damages are sought against a foreign state for personal injury or death under 28 USCS § 1605(5).
The United States acquired Puerto Rico from the Spanish Empire after the Spanish-American War in 1898. The Kree had abandoned their outpost several hundred, or thousand, years earlier (which raises a question of whether the Kree have a document retention policy of only 7 years or if 5,000 year old Kree data could be translated into a reasonably useable form for a review application). An argument could be made that the Kree outpost is a toxic danger from how it can turn people into killing mind-controlled puppets; convert human with Inhuman DNA beings into non-humans; and the Terrigen Mist is fatal to humans without Inhuman ancestry.
Toxic tort cases can trace property ownership back for decades in order to determine liability for different insurance policies. In the case of the Kree, this would be a first going back for potentially to the time of the Pyramids, but causation could be traced back the Kree Empire’s experiments ages ago when the environmental damage was done to the soil in Puerto Rico. This would put Terrigen Mist in a similar position to Agent Orange, asbestos in shipyards, or toxic waste litigation, where individuals who suffered harm as an exception to foreign sovereign immunity.
The Foreign Sovereign Immunities Act specifically includes a terrorist act exception to immunity from suit. 28 U.S.C.S. § 1605(a)(7). It will be difficult to charge the Kree Empire with terrorism for abandoning Diviners on Earth, however the fact there has been loss of life from those transformed should be enough to meet the personal injury exception.
Superseding Events Limiting Kree Liability
The Kree have a strong argument that they left their outpost sealed and but for HYDRA locating the Diviners, there is nothing to subject the Kree to liability.
Engaging in ultra hazardous activities carry strict liability. As the Kree were turning humans into living weapons centuries ago, leaving devices that would either kill or transform humans into weapons is like a country denying liability for land mines left after a war.
A lawyer could argue the Kree violated the “Bombing Convention” which makes it a crime to bomb public places with the intent to cause death or serious bodily harm. Almog v. Arab Bank, PLC (E.D.N.Y. 2007) 471 F.Supp.2d 257, 277; 18 USCS § 2332f. However, the Kree lacked the intent to cause such harm after several thousand years, so the issue may turn to negligence, opposed to acts of terrorism.
Those who would be subject to charges of terrorism would be the humans using the Diviners and Terrigen Mist to kill or transform people. The best causes of action against the Kree would include toxic torts, environmental damage, and deaths resulting from negligence for leaving ultra-hazardous materials on Earth.
There is a strong argument that people who willingly enter the Terrigen Mist do so at their own risk and would excuse the Kree Empire from any liability for personal injury. Such individuals need to understand that they are making a “life long” choice that could turn someone who is a fashion model into a giant teleporting dog. Given the fact that the Mist is a real crapshoot that can turn a person into a giant fish, such individuals could not turn around to sue an Empire that purposefully stopped such experiments centuries ago.
The real question is who can effectively serve the Kree Empire? SETI might be able to provide alternative service of process.