Flota Maritima Browning de Cuba v. Motor Vessel Ciudad, No. 9127.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtHAYNSWORTH, BOREMAN and BRYAN, Circuit
Citation335 F.2d 619
PartiesFLOTA MARITIMA BROWNING DE CUBA, SOCIADAD ANONIMA, Libelant, Appellee, v. MOTOR VESSEL CIUDAD DE LA HABANA, her Motors, Tackle, etc., Appellant. BANCO CUBANO DEL COMERCIO EXTERIOR, succeeded by Banco Para El Comercio Exterior, De Cuba, Respondent, Banco Para El Comercio Exterior De Cuba, successor to Banco Cubano Del Comercio Exterior, Cross-Libelant, Appellee, v. SOCIADAD ANONIMA, Cross-Respondent, Flota Maritima Browning De Cuba, Appellant.
Decision Date14 July 1964
Docket NumberNo. 9127.

335 F.2d 619 (1964)

FLOTA MARITIMA BROWNING DE CUBA, SOCIADAD ANONIMA, Libelant, Appellee,
v.
MOTOR VESSEL CIUDAD DE LA HABANA, her Motors, Tackle, etc., Appellant.

BANCO CUBANO DEL COMERCIO EXTERIOR, succeeded by Banco Para El Comercio Exterior, De Cuba, Respondent,
Banco Para El Comercio Exterior De Cuba, successor to Banco Cubano Del Comercio Exterior, Cross-Libelant, Appellee,
v.
SOCIADAD ANONIMA, Cross-Respondent,
Flota Maritima Browning De Cuba, Appellant.

No. 9127.

United States Court of Appeals Fourth Circuit.

Argued November 5, 1963.

Decided July 14, 1964.


335 F.2d 620
COPYRIGHT MATERIAL OMITTED
335 F.2d 621
Leonard B. Boudin, Washington, D. C. (Robert H. Williams, Jr., and Niles, Barton, Gans & Markell, Baltimore, Md., on brief), for appellant Motor Vessel Ciudad De La Habana, etc

William A. Grimes, Baltimore, Md. (Ober, Williams, Grimes & Stinson, Baltimore, Md., on brief), for appellee Flota Maritima Browning De Cuba, etc.

Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.

HAYNSWORTH, Circuit Judge:

Sovereign immunity, asserted on behalf of the Republic of Cuba, was held by the District Court to be unavailing. It found that Cuba's immunity, if any, had been waived when it filed answers to the libels without suggesting its immunity. We agree.

Banco Cubano Del Comercio Exterior and its successor, Banco Para El Comercio Exterior, De Cuba, were Cuban corporations organized by the Republic of Cuba for advancement of her foreign trade. Banco entered into a contract for the construction of certain vessels in England and Japan, and into another contract for the purchase of eight Canadian vessels, then lying in Halifax Harbor. It engaged the services of an American citizen, Browning, for the operation of Banco's vessels, and, for that purpose, Browning organized a Cuban corporation, Flota Maritima Browning De Cuba, Sociadad Anonima. Banco and Flota Maritima then entered into an agreement, which, in effect, was a bareboat charter of the Canadian vessels and an option to Flota Maritima to purchase them. It required that the vessels be transferred to Cuban registry and be manned by Cubans.

Under that agreement, Flota Maritima took possession of the eight Canadian vessels and moved one of them, the M/V Ciudad De La Habana, to Baltimore, where, on September 8, 1958, she entered a shipyard to be refitted for commercial operations.

Shortly before the work on the Habana was completed, the Cuban seamen were withdrawn from the eight vessels, Flota Maritima then took the position that, by the withdrawal of the Cuban seamen and other acts, Banco had broken the lease-purchase agreement. On October 30, 1958, it cabled Banco that it was terminating the lease-purchase contract, because of Banco's asserted breach, and that it would no longer keep possession of the eight vessels or be responsible for them. Flota Maritima previously had retained Hinkin's Steamship Agency to represent the Habana, and, on November

335 F.2d 622
13, 1958, Banco engaged Hinkin's to act for it

On June 9, 1959, Banco sold the eight Canadian ships to the Republic of Cuba and notified Hinkin's that "all future instructions would come from" an agency of that Government.

On June 22, 1959, Flota Maritima filed a libel against the Habana in rem and against Banco in personam with a clause for foreign attachment of the ship. The libel sought damages for Banco's alleged breach of the lease-purchase contract with respect to all eight of the vessels. An amended libel was filed on October 9, 1959. Thereafter, three intervening libels were filed by others seeking compensation for services rendered to the Habana in Baltimore.

Banco filed exceptions and exceptive allegations to the original libel and to the amended one, raising questions of Admiralty's jurisdiction and the propriety of its exercise in the light of some of the stipulations of the agreement. These exceptions were overruled in February 1960.1 Thereafter, Banco answered the libel, and, at the same time, the Republic of Cuba, itself, entered the case claiming ownership of the Habana, seeking leave to defend, and filing an answer to the libel. It also filed exceptions to one of the intervening libels.

In none of these several motions and pleadings filed on behalf of Banco and the Republic of Cuba, itself, was there any suggestion of sovereign immunity. There was no such suggestion in the case until May 11, 1962, when the Czechoslovakian Ambassador, on behalf of Cuba,2 filed a plea and motion asserting exemption of the vessel from seizure under the doctrine of sovereign immunity.

In the meanwhile, Flota Maritima had proceeded against the other seven Canadian vessels in the Nova Scotia Admiralty Court. There, the question of sovereign immunity was promptly tendered and denied. On appeal to the Exchequer Court of Canada, the denial of sovereign immunity was reversed3 and the judgment of the Exchequer Court was affirmed by the Supreme Court of Canada.4

In refusing to recognize the claim of sovereign immunity, the District Court expressed the opinion that the Canadian judgment was not res judicata nor the basis of a collateral estoppel, because, in the Court's opinion, there were certain differences in the factual questions and in the governing legal principles, but it clearly denied the plea on the basis of waiver. We find it necessary to consider only the waiver question, for, even if the Canadian judgment was res judicata if the question of sovereign immunity had been promptly and properly tendered, it has no bearing upon the question of whether the immunity had been waived and was no longer open for assertion in these proceedings.

The doctrine of sovereign immunity is of ancient vintage. It was established in this country as an absolute protection of an armed vessel in the services of a friendly sovereign in 1812.5 Chief Justice Marshall reasoned from the premise that a visiting king of a friendly power and his ministers were entitled to personal immunity, a doctrine which was recognized throughout the western world. There was also the immunity of troops of a foreign power granted free passage through a friendly nation. The Court reasoned that our ports were open to naval vessels of a friendly power, and that the implied invitation carried with it an implied promise of immunity. Arrest of a naval vessel in the service of a friendly foreign sovereign would constitute the same kind of affront to his dignity as would arrest

335 F.2d 623
of his person, or that of his ministers, while on a friendly visit

The doctrine has been extended to commercial vessels and other kinds of property owned by a friendly foreign power.6

The doctrine, which restricts otherwise clearly declared jurisdiction of the courts, or limits its exercise, is founded in recognition of its aid in the maintenance of friendly relations with friendly powers. Since the conduct of foreign affairs is a function of the Executive, it not unnaturally evolved that immunity in a particular case was extended to particular property without judicial inquiry, if suggested to the court by the Executive. The practice has been for the State Department, in an appropriate case, to suggest to the court, through the Attorney General of the United States, or a United States Attorney, that the particular property was immune from seizure. In such a case property is released without judicial inquiry into the facts or reasoning underlying the Executive suggestion.7 This is necessarily so, because the Executive decision to recognize sovereign immunity in a particular case may depend upon intimate knowledge of matters affecting foreign affairs which are not public information and which are not fit subjects of judicial inquiry. Thus, this Court, unquestioningly, dismissed a Cuban ship and her cargo upon the Executive suggestion of sovereign immunity, even though the cargo claimant had introduced into the record evidence of waiver of sovereign immunity with respect to the determination and collection of that claim.8

Here, there has been no suggestion of immunity. It was sought of the State Department, but has not been forthcoming. That does not settle the matter, for, in the absence of such a suggestion, applicability of the doctrine is an appropriate subject of judicial inquiry.9 When Executive suggestions of sovereign immunity are regularly sought and, in appropriate cases, readily granted, however, the absence of such a suggestion does indicate that the court is not venturing into a sensitive area in which its possible decrees might gravely embarrass the Executive's conduct of the Nation's foreign affairs. Though judicial inquiry, in such circumstances, may lead to a determination that the case is within the limits of the rule, its underlying reason is not commandingly present.10

335 F.2d 624

Any sovereign immune from suit may consent to be sued and waive the immunity. When it does so, it subjects itself to the jurisdiction of the court and its exercise just as a private individual. Thus, in People of Porto Rico v. Ramos, 232 U.S. 627, 34 S.Ct. 461, 58 L.Ed. 763, Porto Rico was held to have waived her immunity when she affirmatively sought to be made a party defendant in order to assert her claim to the disputed property by escheat. Similarly, the Supreme Court held in Richardson, as Treasurer of Porto Rico v. Fajardo Sugar Company,

335 F.2d 625
241 U.S. 44, 36 S.Ct. 476, 60 L.Ed. 879, that Porto Rico waived her immunity when she answered the complaints filed against her Treasurer, agreed upon a trial date, and permitted eight months to elapse. There are similar holdings of subordinate courts.11

Consent to suit is manifested and waiver of sovereign immunity accomplished when the sovereign enters a general appearance, certainly if the general appearance is unaccompanied by a claim of immunity. This has been repeatedly stated.12 It is the rule suggested by the proposed official draft of May 3, 1962 of the American Law Institute's...

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20 practice notes
  • Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian, Nos. H003831
    • United States
    • California Court of Appeals
    • March 14, 1990
    ...execution upon assets of a foreign state outside the United States. (Flota Maritima Browning de Cuba v. Motor Vessel Ciudad (4th Cir.1964) 335 F.2d 619, 626, fn. 20 and accompanying text; Dexter & Carpenter v. Kunglig Jarnvagsstyrelsen (2nd Cir.1930) 43 F.2d 705; Jet Line Services Inc. ......
  • Van Den Biggelaar v. Wagner, No. 3:96 CV 00401 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 25, 1997
    ...reconsideration dismissed; Flota Maritima Browning v. Motor Vessel Ciudad de la Habana, 218 F.Supp. 938 (D.C.Md.1963), aff'd, 335 F.2d 619 (4th Cir.1964); Zorgias v. S.S. Hellenic Star, 487 F.2d 519 (5th Cir.1973); Steinweg Nachf v. Steinway & Sons, 523 F.2d 1331 (2d 11. Some of the cas......
  • Ministry of Defense and Support v. Cubic Defense, No. 99-56498.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 7, 2004
    ...a waiver of its immunity from attachment of its property. See Flota Maritima Browning de Cuba, S.A. v. Motor Vessel Ciudad de la Habana, 335 F.2d 619, 626 (4th Cir.1964) ("A distinction has been drawn between jurisdictional immunity and immunity from execution of the property of a sove......
  • Chemical Natural Resources, Inc. v. Republic of Venezuela, No. 3
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 4, 1966
    ...303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667; Flota Maritima Browing De Cuba, Sociadad Anonina, v. Motor Vessel Ciudad de la Habana et al., 335 F.2d 619 (C.C.A. 4, 1964) and Victory Transport Inc. v. Comisaria General de Abastecimientos v. Transportes, 336 F.2d 354 (C.C.A. 2, 1964); New York and......
  • Request a trial to view additional results
20 cases
  • Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian, Nos. H003831
    • United States
    • California Court of Appeals
    • March 14, 1990
    ...execution upon assets of a foreign state outside the United States. (Flota Maritima Browning de Cuba v. Motor Vessel Ciudad (4th Cir.1964) 335 F.2d 619, 626, fn. 20 and accompanying text; Dexter & Carpenter v. Kunglig Jarnvagsstyrelsen (2nd Cir.1930) 43 F.2d 705; Jet Line Services Inc. ......
  • Van Den Biggelaar v. Wagner, No. 3:96 CV 00401 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • September 25, 1997
    ...reconsideration dismissed; Flota Maritima Browning v. Motor Vessel Ciudad de la Habana, 218 F.Supp. 938 (D.C.Md.1963), aff'd, 335 F.2d 619 (4th Cir.1964); Zorgias v. S.S. Hellenic Star, 487 F.2d 519 (5th Cir.1973); Steinweg Nachf v. Steinway & Sons, 523 F.2d 1331 (2d 11. Some of the cas......
  • Ministry of Defense and Support v. Cubic Defense, No. 99-56498.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 7, 2004
    ...a waiver of its immunity from attachment of its property. See Flota Maritima Browning de Cuba, S.A. v. Motor Vessel Ciudad de la Habana, 335 F.2d 619, 626 (4th Cir.1964) ("A distinction has been drawn between jurisdictional immunity and immunity from execution of the property of a sove......
  • Chemical Natural Resources, Inc. v. Republic of Venezuela, No. 3
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 4, 1966
    ...303 U.S. 68, 58 S.Ct. 432, 82 L.Ed. 667; Flota Maritima Browing De Cuba, Sociadad Anonina, v. Motor Vessel Ciudad de la Habana et al., 335 F.2d 619 (C.C.A. 4, 1964) and Victory Transport Inc. v. Comisaria General de Abastecimientos v. Transportes, 336 F.2d 354 (C.C.A. 2, 1964); New York and......
  • Request a trial to view additional results

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