Hellenic Lines, Limited v. Moore

• Decision Date: 25 March 1965
• Docket Number: No. 18265.,18265.
• Citation: 345 F.2d 978
• Parties: HELLENIC LINES, LIMITED, Appellant, v. Luke C. MOORE, United States Marshal for the District of Columbia, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

345 F.2d 978 (1965)

HELLENIC LINES, LIMITED, Appellant, v. Luke C. MOORE, United States Marshal for the District of Columbia, Appellee.

No. 18265.

United States Court of Appeals District of Columbia Circuit.

Argued April 20, 1964.

Decided March 25, 1965.

Mr. Charles F. Warren, Washington, D. C., for appellant.

Mr. Bruno A. Ristau, Attorney, Department of Justice, with whom Asst. Atty. Gen. John W. Douglas, Messrs. David C. Acheson, U. S. Atty., and Morton Hollander, Attorney, Department of Justice, were on the brief, for appellee.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and WASHINGTON, Circuit Judge.

BAZELON, Chief Judge:

Appellant filed a libel in personam against the Republic of Tunisia. D.D.C. Admiralty No. 27-62. A summons was issued addressed to the Republic to be served upon the Tunisian Ambassador to the United States. Appellee, the United States Marshal, made the following return upon the unexecuted summons: "The within named principal agent having Diplomatic Immunity and being listed in the Diplomatic List of the State Department cannot be served at Washington, D. C. * * *" Appellant then filed this mandamus action to compel appellee to serve the summons "in conformity with the dignity and respect to be accorded representatives of a foreign government." The court granted appellee's motion to dismiss.

The only issue is whether the Marshal's return provided an adequate reason for his refusal to serve the summons. The return indicated that the Ambassador was entitled to diplomatic immunity. If the Ambassador's diplomatic immunity would in fact have been violated by service of process, the Marshal's return was sufficient. For although courts will not allow a Marshal to avoid his duty to serve process merely because he notices the availability of a defense to the suit,¹ they must protect him if service would violate international law and might subject him to the criminal law of the United States.² Since we think that the Ambassador's diplomatic immunity would have been violated by any compulsory service of process on him by the Marshal,³ we conclude that the return was sufficient, and the district court's dismissal was proper.

Although we have held that diplomatic immunity is violated by joining a diplomatic officer as a defendant to a suit, Carrera v. Carrera, 84 U.S.App. D.C. 333, 174 F.2d 496 (1949), we have never decided whether it is violated by service of process on a diplomatic officer in an attempt to join, not him, but his sending state. There is little authority in international law concerning whether service of process on a diplomatic officer as an agent of his sending country is an "attack on his person, freedom or dignity" prohibited by diplomatic immunity.⁴ Because application of the doctrine of diplomatic immunity exempts a person from the legal procedures necessary to ordered society and often deprives others of remedies for harm they have suffered, courts hesitate to invoke the doctrine in a novel situation unless its purposes will certainly be served. These purposes are to "contribute to the development of friendly relations among nations" and "to ensure the efficient performance of the functions of diplomatic missions." Vienna Convention on Diplomatic Relations Signed at Vienna, April 18, 1961, preamble, 55 Am.J.Int'l.L. 1064 (1961). We requested the views of the Department of State concerning the effect of service in this type of case on international relations and on the performance of diplomatic duties. The Department replied that service would prejudice the United States foreign relations and would probably impair the performance of diplomatic functions.⁵ We conclude that the purposes of diplomatic immunity forbid service in this case.⁶ Therefore, the Ambassador is not subject to service of process, and the return was adequate.

The judgment is

Affirmed.

WASHINGTON, Circuit Judge (concurring):

I concur in the result for reasons which will appear. First, I believe it desirable to describe with some particularity the factual situation here presented.

1. The Republic of Tunisia, a sovereign state, was alone named as the respondent in the libel in personam filed on November 30, 1962, by a Greek corporation as libelant. No attachment of any property of the Republic was attempted. The libel prayed that process issue against the Republic of Tunisia.¹ After consultation with the United States Attorney, the United States Marshal declined to attempt to serve the Republic and the summons was withdrawn unserved. On April 25, 1963, the libelant procured from the District Court a new summons directing that it be served upon the Republic's "principal agent residing in this District," the then Ambassador of Tunisia to the United States. After further consultation with the United States Attorney and with the United States Department of State, the Marshal made a return on May 16, 1963, indicating that the "named principal agent having Diplomatic Immunity and being listed in the Diplomatic List of the State Department cannot be served" in the District. The Greek libelant at no time has made any sort of showing that the Ambassador has consented, or is authorized, to accept service of process on behalf half of the government which he represents for diplomatic purposes in this country.

Pursuant to our request, the Attorney General communicated to us the views of the Department of State, as expressed in a letter dated August 10, 1964, and signed by its Acting Legal Adviser, on this matter. The Department there advised us, inter alia, that "diplomatic representatives of foreign governments are not generally authorized to accept service of process on behalf of their government"; that "The establishment by one country of a diplomatic mission in the territory of another does not implicitly or explicitly empower that mission to act as agent of the sending state for the purpose of accepting service of process"; and that the "Department of State, as in the case of any other foreign office, may not impute such authority to the diplomatic mission of the sending state."

The State Department also told us that in the fall of 1962 the then Tunisian desk officer at the Department made "several informal inquiries" of officials of the Tunisian Embassy as to "whether the Embassy of Tunisia would be willing to accept service of summons in this case," and that he was informed that "the Tunisian Embassy would be unwilling to accept service of process."² The Department of State advised further that it "would not, in the absence of express statutory or treaty provision, attempt to transmit the summons by an official diplomatic note to the embassy of a sending state, unless the embassy indicated a willingness to accept the summons."

This advice was supplemented by the State Department at the request of two members of the court in a second letter dated January 13, 1965. We were there advised, inter alia, in response to specific questions, that under the law of nations a duly accredited ambassador of another state is entitled to immunity from personal service by the United States Marshal of all process, inside or outside his Embassy, even though the basic suit names his sending state, rather than himself, as the party respondent;³ that "The maintenance of friendly foreign relations between the United States and the sending state concerned would certainly be prejudiced by service of process on an ambassabor against his will"; and that although service of process on an ambassador by registered mail⁴ "might avoid some of the problems inherent in personal service by a marshal * * *, it would raise others —"⁵

In view of the advice of the Department, which we must respect (see footnote 7 infra), that the Ambassador of Tunisia has indicated that he is unwilling to accept service and that he is therefore immune from personal service in this suit under international law,⁶ I join in holding that diplomatic immunity forbids personal service by the Marshal in this suit.

2. I agree that the Marshal's return of May 16, 1963, was more than adequate, even though he failed to state that he had attempted to ascertain whether the Ambassador would accept service. (As already pointed out, the record here suggests that he did so ascertain.) I would agree that the proper course of a complaining party seeking to serve process upon an accredited ambassador is to request the State Department to ascertain under accepted diplomatic practice whether diplomatic immunity, will be waived and service will be accepted in a particular case. I would also hold that the complaining party's proper course, if the answer is affirmative, is to request that the State Department make the diplomat's answer available to the court, and if the answer is negative the complainant should ordinarily discontinue its suit.⁷ Compare, however, the so-called Tate letter (26 DEPT. STATE BULL. 984-985 (June 23, 1952)).

3. The libel in this case was filed by a foreign corporation and seeks a money judgment in the nature of damages against a foreign sovereign because of acts which took place at the port of La Gaulette, Tunis, Tunisia.⁸ Neither does it appear that Tunisia has any property in the United States which has been attached or which could be levied upon if judgment were obtained. Cf. Puente v. Spanish National State, supra, and New York and Cuba M.S.S. Co. v. Republic of Korea, supra.⁹ In the circumstances here — where both parties to the basic suit are foreign to this country, and the respondent is a foreign sovereign government, where the acts alleged to have given rise to the claim occurred wholly outside the United States, where the witnesses to such acts all appear to be located outside this country, where any money judgment rendered against the foreign state would be unenforceable in this country in the absence of a showing that there is property of the sovereign which could be attached — it is clear that no American interest is...