Harris & Co. Advertising, Inc. v. Republic of Cuba, 60-412

• Decision Date: 02 March 1961
• Docket Number: No. 60-412,60-412
• Citation: 127 So.2d 687
• Parties: HARRIS AND COMPANY ADVERTISING, INC., a Florida corporation, Appellant, v. REPUBLIC OF CUBA, Appellee.
• Court: Florida District Court of Appeals

Page 687

127 So.2d 687

HARRIS AND COMPANY ADVERTISING, INC., a Florida corporation, Appellant, v. REPUBLIC OF CUBA, Appellee.

No. 60-412.

District Court of Appeal of Florida, Third District.

March 2, 1961.

Rehearing Denied March 24, 1961.

Guilmartin & Schneiderman, Miami, for appellant.

Bergstresser & Taylor, Miami, for appellee.

BARNS, PAUL D., Associate Judge.

The appellant-plaintiff, Harris and Company Advertising, Inc., brought an action in assumpsit against the appellee-defendant, Republic of Cuba, and procured the issuance and execution of various writs of attachment against chattels of the defendant and attachments by garnishment of debts owing the defendant by various garnishable defendants. The action was in personam but the remedy sought was in rem; hence a quasi-in-rem action.

Thereafter, a pseudo motion to dismiss was filed on July 15, 1960; and motions to strike said motion to dismiss were filed July 26, 1960. On July 26, 1960, plaintiff's attorneys gave notice of a hearing of all pending motions, said hearing to be on July 27th. At said hearing, the judge sustained the motion to dismiss and overruled the motions to strike the motion to dismiss, and orders were entered accordingly.

After the conclusion of the foregoing hearing, an ex parte motion to dissolve excessive attachments was presented to the judge by one not a party to the action, and an order was made, on July 27, 1960, dissolving all attachments and garnishments other than the attachment by garnishment of some $98,000 in United States currency held by the Florida National Bank & Trust Company.

Thereafter, on August 3, 1960, the plaintiff entered its appeal from (1) the order dismissing the action; (2) the order dissolving writs of attachment and garnishment as excessive; and (3) the order denying plaintiff's motions to strike the motion to dismiss. Of course, the latter order was not an appealable order, but it was assigned as error in the appeal from the judgment of dismissal. The other two orders were also assigned as error.

Before proceeding to treat the questions of jurisdiction and immunity of the Republic of Cuba, we will address ourselves to the pseudo motion to dismiss. The motion is as follows:

'Motion to Dismiss by Virtue of Special Appearance Solely to Contest Jurisdiction

'Comes now Bergstresser & Taylor, by and through Abelardo A. Leon Blanco, Consul General of the Republic of Cuba, a foreign nation, and alleges:

'(1) That the above styled cause is not within the jurisdiction of this Court without the consent of the Defendant;

'(2) That the above styled Court has no jurisdiction of or over the defendant, a foreign nation;

'(3) That any jurisdiction of the defendant by and before this Court be and the same is hereby expressly denied, refuted and in addition thereto, the defendant specifically alleges the immunity of a foreign nation from being made a defendant in an action of this kind, specifically asserting said immunity herein.

'Further that all writs of attachment or garnishment specifically levied against the defendant Republic of Cuba or its priviledged assets by virtue of the above, be and the same be forthwith dissolved.

'Bergstresser & Taylor

'By /s/ Richard G. Taylor'

It will be noted that said motion does not purport to be made on behalf of the Republic of Cuba. Neither does the body of the motion move for anything on behalf of anyone. Doubtless, the lower court judge treated the title as a part of the motion. It is not clear who appears on behalf of whom; the law firm for the consul or the consul for the law firm. In either case, the Republic of Cuba is not sufficiently represented to present questions of immunity for reasons hereinafter stated, and the lower court erred in not striking the motion.

The consul of a foreign country is not entitled under general international law, as well as under Consular Convention between Cuba and the United States of 1926, 44 U.S.Statutes 2471, and the Pan-American Consular Convention of 1932, 47 U.S.Statutes 1976, to represent the government of Cuba; such authority being exclusively within the privilege of diplomatic agents received as such by the United States. The local consul was unable to authorize the law firm to do something that he lacked authority to do. The claim of sovereign immunity is usually reserved to diplomatic representatives of the country involved, combined with suggestions to be obtained through the Department of State addressed to the court.

It is well known that the traditional rule of international law denied one sovereign the right to sit in court over another sovereign. As well stated in National City Bank of New York v. Republic of China, 348 U.S. 356, 75 S.Ct. 423, 426, 99 L.Ed. 389:

'The freedom of a foreign sovereign from being haled into court as a defendant has impressive title-deeds. Very early in our history this immunity was recognized [cases cited], and it has since become part of the fabric of our law.'

However, the opinion further states that different trends entered recently 'immediately touching the evolution of legal doctrines regarding a foreign sovereign's immunity,' namely 'the restrictive policy that our State Department has taken toward the claim of such immunity. As the responsible agency for the conduct of foreign affairs, the State Department in the normal means of suggesting to the courts that a sovereign be granted immunity from a particular suit. Ex parte Republic of Peru, 318 U.S. 578, 581, 63 S.Ct. 793, 795, 87 L.Ed. 1014, 1016. Its failure or refusal to suggest such immunity has been accorded significant weight by this Court. [cases cited] * * * Recently the State Department has pronounced broadly against recognizing sovereign immunity for the commercial operations of a foreign government, [Tate letter] 26 Dept. State Bull. 984 (1952), * * *' National City Bank of New York v. Republic of China, supra. Thus, the original rule of complete immunity from judicial jurisdiction to be exercised over a foreign government has been modified, first by the distinction between foreign sovereigns acting in their sovereign capacity (jury imperii) from acts of a business type (jure gestionis); the first form still entitling a foreign sovereign to immunity while the latter would put him on an equal footing with other private persons engaged in the same type of pursuits.

In an editorial comment in 47 American Journal of International Law, pp. 93-106 (1953) by William W. Bishop, Jr., entitled 'New United States Policy Limiting Sovereign Immunity,' it is stated:

'A new United States position with respect to the immunity from jurisdiction of the local courts enjoyed by foreign governments engaged in commerce was demonstrated in the letter of May 19, 1952, from the Acting Legal Adviser of the Department of State to the Acting Attorney General. In this letter Acting Legal Adviser Jack B. Tate wrote:

"The Department of State has for some time had under consideration the question whether the practice of the Government in granting immunity from suit to foreign governments made parties defendant in the courts of the United States without their consent should not be changed. The Department has not reached the conclusion that such immunity should no longer be granted in certain types of cases * * *.

"A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory of sovereign immunity, a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis) * * *.

"* * * The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy. Furthermore, the granting of sovereign immunity to foreign governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming immunity in foreign jurisdictions for its merchant vessels. Finally, the Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.'

'Through this action the Department is taking a position in accord with the practice of many countries. In Mr. Tate's letter, it was stated that the 'classical' theory of virtually absolute sovereign immunity had generally been followed in the courts of the United States, the British Commonwealth of Nations, Czechoslovakia, Estonia, and probably Poland. It was said that the decisions of courts in Brazil, Chile, China, Hungary, Japan, Luxembourg, Norway, and Portugal might also be deemed to support this theory, if one or two old decisions in each country, prior to the development and adoption of the more limited theory, would form a sufficient basis for such determination. He reported that the newer or restrictive theory of sovereign immunity had originated in Belgium and Italy, had then been adopted by the courts of Egypt and Switzerland, and had more recently been embraced by the courts of France, Austria, and Greece. Apparently it is also being followed by Rumania and Peru, by the lower courts in The Netherlands, and possibly by Denmark. These...