Banco Nacional de Cuba v. Farr, 60 Civ. 3929.

Decision Date15 November 1965
Docket NumberNo. 60 Civ. 3929.,60 Civ. 3929.
PartiesBANCO NACIONAL de CUBA, Plaintiff, v. F. Shelton FARR, William F. Prescott, Emmet Whitlock, Lawrence H. Dixon, H. Bartow Farr, Elizabeth C. Prescott, Fabio Freyre and Helen G. Downs, Co-Partners doing business as Farr, Whitlock & Co., Defendants and Third-Party Plaintiffs, v. COMPANIA AZUCARERA VERTIENTES-CAMAGUEY de CUBA and Lehman Brothers, Third-Party Defendants.
CourtU.S. District Court — Southern District of New York

Rabinowitz & Boudin, New York City, for plaintiff; Victor Rabinowitz, New York City, of counsel.

Baker, Nelson, Williams & Mitchell, New York City, for defendants and third-party plaintiffs; C. Dickerman Williams, New York City, of counsel.

Simpson, Thacher & Bartlett, New York City, for third-party defendants; Whitney North Seymour, Sr.; Eastman Birkett, John A. Guzzetta, Gerald M. Levin, Joel S. Hoffman, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty., for the United States, amicus curiae; J. William Doolittle, First Asst., Civ. Div., Dept. of Justice, Eugene R. Anderson, Asst. U. S. Atty. Southern Dist. of New York, Bruna A. Ristau, Carl F. Goodman, Attys., Dept. of Justice, Washington, D. C., of counsel.

Brush & Bloch, New York City, for Cuban cigar manufacturers, amici curiae; Monroe Percy Bloch, Jac M. Wolff, New York City, of counsel.

Milbank, Tweed, Hadley & McCloy, New York City, for Chase Manhattan Bank, amicus curiae; A. Donald MacKinnon, Roy C. Haberkern, Jr., Andrew J. Connick, New York City, of counsel.

John G. Laylin, Washington, D. C., for North American Sugar Industries, Inc., Cuban American Sugar Mills Co., and Cuban-American Mercantile Corp., amici curiae; William H. Allen, William A. Dobrovir, Covington & Burling, Washington, D. C., of counsel.

Katz & Sommerich, New York City, for Cultural, S. A. and Robert I. Williams, amici curiae; Otto C. Sommerich, Benjamin Busch, New York City, of counsel.

Shearman & Sterling, New York City, for First Nat. City Bank, amicus curiae; Henry Harfield, William Harvey Reeves, New York City, of counsel.

MEMORANDUM

FREDERICK van PELT BRYAN, District Judge:

In my opinion dated July 30, 1965 D.C., 243 F.Supp. 957, I held that the Hickenlooper Amendment included in the Foreign Assistance Act of 1964 (Section 301(d) (4) of the Public Law 88-633, 78 Stat. 1009, 1013, 22 U.S.C. § 2370(e) (2)), applied to the case at bar, now before me on remand from the Supreme Court of the United States.1

The Amendment removed the bar of the act of state doctrine as enunciated by the Supreme Court in this case, (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)), to a determination on the merits as to whether the expropriation by the Castro government of the cargo of sugar involved here violated the principles of international law, unless the President determined and suggested to the court that the application of the doctrine was required by the foreign policy interests of the United States.

Up to the time when the opinion of July 30, 1965 was filed there had been no determination by the President that the application of the act of state doctrine to this case was required by the foreign policy interests of the United States, and no suggestion to that effect had been filed with the court. However, the record was incomplete and unclear as to the position which the President might desire to take on this question.

In order to afford the executive arm full opportunity to make such a determination and to express its view to the court if it so desired, I withheld decision for a period of sixty (60) days as to whether final judgment dismissing the complaint in this action should be entered. Prior to the expiration of that period the court received a letter from the United States Attorney for the Southern District of New York dated September 29, 1965, reading as follows:

"In its decision of July 30, 1965 this Court afforded the Executive Branch the opportunity to file a suggestion indicating whether the application of the act of state doctrine is required by the foreign policy interests of the United States, as provided for in Section 620(e) (2) of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2370(e) (2)). I am instructed to inform the Court that no determination has been made that application of the act of state doctrine is required in this case by the foreign policy interests of the United States.
"So that there will be no ambiguity, the Court is advised that no such determination is contemplated."

This letter makes it clear that the President will make no suggestion to the court in this case as to the application of the act of state doctrine pursuant to the Hickenlooper Amendment. The court must therefore determine the defendants' motion for judgment dismissing the complaint.

The moving defendants urge that entry of final judgment in their favor is now required by the prior decision of the Court of Appeals in this case, 307 F.2d 845 (1964). In that decision the Court of Appeals affirmed the judgment of the district court dismissing the complaint granted on the defendants' motion for summary judgment. It held that the act of state doctrine did not bar determination on the merits in this case...

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12 cases
  • Banco Nacional de Cuba v. Chase Manhattan Bank
    • United States
    • U.S. District Court — Southern District of New York
    • 4 Enero 1980
    ...rev'd. 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); on remand, sub nom. Banco Nacional de Cuba v. Farr, 243 F.Supp. 957 and 272 F.Supp. 836 (S.D.N.Y.1965), aff'd. 383 F.2d 166 (2d Cir. 1967), cert. denied 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151, reh. denied 390 U.S. 1037, 88 S.Ct......
  • Alfred Dunhill of London, Inc v. Republic of Cuba
    • United States
    • U.S. Supreme Court
    • 10 Diciembre 1974
    ...of the act of state doctrine is required in this case by the foreign policy interests of the United States." Banco Nacional de Cuba v. Farr, 272 F.Supp. 836, 837 (S.D.N.Y.), aff'd. 383 F.2d 166 (C.A. 2), certiorari denied, 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151. Having taken note of t......
  • Banco Nacional de Cuba v. Farr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 31 Julio 1967
    ...ruled in favor of the defendants in an opinion reported at 243 F.Supp. 957 (July 30, 1965), later supplemented by opinion of November 16, 1965, 272 F.Supp. 836, at the time judgment was This action, which has served as the test case1 for litigation concerning Cuban expropriations, involves ......
  • Libra Bank Ltd. v. Banco Nacional de Costa Rica
    • United States
    • U.S. District Court — Southern District of New York
    • 12 Agosto 1983
    ...rev'd, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964), on remand sub nom. Banco Nacional de Cuba v. Farr, 243 F.Supp. 957 and 272 F.Supp. 836 (S.D.N.Y.1965), aff'd, 383 F.2d 166 (2d Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1038, 19 L.Ed.2d 1151 (1968). In Banco Nacional de Cuba v......
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