Jet Line Services, Inc. v. M/V Marsa El Hariga

• Decision Date: 27 November 1978
• Docket Number: Civ. No. Y-78-80.
• Citation: 462 F. Supp. 1165
• Parties: JET LINE SERVICES, INC. v. M/V MARSA EL HARIGA et al.
• Court: U.S. District Court — District of Maryland

462 F. Supp. 1165

JET LINE SERVICES, INC. v. M/V MARSA EL HARIGA et al.

Civ. No. Y-78-80.

United States District Court, D. Maryland.

November 27, 1978.

Charles M. Tatelbaum, Baltimore, Md., for plaintiff.

Richard R. Jackson, Jr., Baltimore, Md., for defendants.

JOSEPH H. YOUNG, District Judge.

I. THE FACTS

On January 17, 1978, Jet Line Services, Inc. ("Jet Line") intervened in a pending in rem action before this Court, Promet Marine Services Corp. v. ELRAKWA, Civil No. Y-78-62, to recover $11,283.29 for services rendered from October 8 to October 10, 1977 in connection with the cleanup of an oil spill from the M/V ELRAKWA. Also, on or about January 17, 1978, Jet Line filed its own complaint in this Court against the M/V ELRAKWA in rem. This suit was for breach of contract arising out of the alleged failure to pay for the services rendered the M/V ELRAKWA in August, 1977. Subsequently, the claims by Promet and Jet Line against the M/V ELRAKWA were settled, and, accordingly, the arrest of the M/V ELRAKWA in Civil Action No. Y-78-62 was released and that case is now moot.

On or about January 17, 1978, Jet Line filed a suit in this Court against the M/V MARSA EL HARIGA, in rem, and National Oil Company of Libya, erroneously referred to in the Complaint as the alleged owner of the M/V MARSA EL HARIGA. The Complaint sought to recover $91,310.00 for services allegedly performed with regard to the discharge of the M/V MARSA EL HARIGA in Sandwich, Massachusetts in August, 1977. When the suit was instituted, Jet Line prayed that the M/V ELRAKWA, which was still present within the District of Maryland and under arrest by virtue of the previous suit, Civil Action No. Y-78-62, be attached by issuance of process of maritime attachment and garnishment against the defendant, National Oil Company of Libya, and that the interest of the National Oil Company of Libya in the M/V ELRAKWA be attached. Accordingly, the United States Marshal attached the M/V ELRAKWA.

Upon discovering that the National Oil Company of Libya did not in fact own the M/V ELRAKWA, plaintiff moved to amend its complaint to name the General National Maritime Transportation Company ("GNMTC") as the proper owner of the M/V ELRAKWA. This motion was granted by Judge Harvey on January 19, 1978.

Shortly after the attachment of the M/V ELRAKWA by the Marshal, defendant GNMTC, through special appearance before this Court, moved to vacate the attachment of the vessel on the grounds that it is a corporation organized and created under the laws of The Socialist People's Libyan Arab Jamahiriya ("Libya"), and, under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1332, 1602-1611 (the "Immunities Act"), any arrest or attachment of the vessel was improper and void. Attached to the original motion to vacate was the statement of Shaban F. Gashut, Chargé d'Affaires of the Libyan Embassy in Washington, D.C., to the effect that GNMTC was a corporation organized under the laws of the Libyan government and has owned the M/V ELRAKWA and M/V MARSA EL HARIGA continuously from 1977 to the present.

On January 20, 1978, Judge Harvey conducted a hearing on the motion to vacate, at which time he denied the motion because, inter alia, Mr. Gashut's statement was not in proper affidavit form, lacked proper authentication, and did not specifically state that GNMTC was an "organ" of the Libyan government. Judge Harvey also ruled that the motion could be renewed once these deficiencies were cured.

On May 15, 1978, GNMTC, appearing specially before this Court in accordance with Rule E(8) of the Supplemental Rules of Federal Civil Procedure for Certain Admiralty and Maritime Claims, moved this Court to vacate and release the security posted pursuant to the Immunities Act, supra. The M/V ELRAKWA had already been released from attachment on the basis of a Letter of Undertaking to Jet Line signed by The West of England Ship Owners Mutual Protection and Indemnity Association (Luxembourg) ("West of England"), defendant's indemnitor, in which West of England agreed to appear on behalf of the owner of the M/V ELRAKWA in connection with this case and to pay and satisfy any final judgment entered in favor of Jet Line up to and not exceeding $102,600.00. GNMTC also advanced a separate ground for contesting the arrest and attachment, namely, that the procedure was defective and void in that it violated the due process clause of the Fifth Amendment and was not in accord with recent decisions of the U. S. Supreme Court dealing with prejudgment arrest and attachment of property.¹ To support its claim of immunity under the Immunities Act, GNMTC again submitted a statement from Mr. Shaban F. Gashut certifying and attesting to the effect that GNMTC: (1) is an entity of the Socialist People's Libyan Arab Jamahiriya, (2) is a corporation organized and created under the laws of Libya, is a separate legal person, and has offices located in Tripoli, (3) is an "organ" of Libya's government, (4) is not a citizen of the United States and was not created under the laws of any third country, and (5) is the sole owner of the M/V ELRAKWA and M/V MARSA EL HARIGA, and owned said vessels continuously during 1977 and up to the present. Accompanying this statement were certified statements from Stuart W. Rockwell, Deputy Chief of Protocol at the Department of State, indicating that Mr. Gashut's signature on his statement is, to the best of his knowledge, the same signature appearing on the official form submitted by the Libyan Embassy notifying the State Department of his appointment as a foreign diplomatic officer. Mr. Rockwell also stated that according to official State Department records, Mr. Gashut has been duly notified to the Department of State since September 25, 1975, as Counselor, Chargé d'Affaires ad interim at the Libyan Embassy, and in that capacity he acts provisionally as head of the mission.

On May 26, 1978, GNMTC, appearing again before this Court, moved to dismiss the complaint pursuant to F.R.Civ.P. 12. The memorandum, various documents and affidavits accompanying this motion stated that GNMTC had agreed to pay Jet Line no more than $18,000 for its services, and that the balance of its claim, the $74,480.75, must be obtained elsewhere. Defendant argued that in August, 1977, the M/V MARSA EL HARIGA was chartered to Messrs. Brega Naft who were represented in the United States and in Boston, Massachusetts, by their agents, SS&Y-TTT Ship Agencies. The documents submitted by GNMTC purported to establish that the contract pursuant to which claim is made by Jet Line in this case, if any, was made, if at all, by and between Jet Line and SS&Y-TTT Ship Agencies, as agents for Brega Naft, charterer of the M/V MARSA EL HARIGA. According to the defendant, SS&Y-TTT was neither an agent of GNMTC nor was it authorized to act on behalf of GNMTC with regard to the discharge of oil from the M/V MARSA EL HARIGA at Sandwich, Massachusetts in August, 1977. GNMTC submitted numerous telexes in support of its assertion that it was not a party to any contract between plaintiff and Brega Naft. As a result, defendant moves to dismiss claiming that in bringing a suit by writ of foreign attachment, Jet Line has sued a party with whom it has never contracted and that the proper action, if any, lay against SS&Y-TTT and/or Brega Naft, the principal of SS&Y-TTT. GNMTC claims it signed no contract with plaintiff nor authorized SS&Y-TTT to bind it in any contract with plaintiff.

Plaintiff has responded opposing both the motion to vacate and release security and the motion to dismiss. Specifically, plaintiff opposes these motions on four grounds: (1) that there are numerous factual discrepancies at issue, (2) that defendants fail to establish the applicability of the Immunities Act, (3) that the Letter of Undertaking is a binding private contract between Jet Line and a non-party to the litigation (i. e., West of England), and (4) that the arrest and attachment of the M/V ELRAKWA violated no constitutional provisions.

II. DISCUSSION

Sovereign immunity is a doctrine of international law under which domestic courts, given the proper circumstances, will relinquish jurisdiction over a foreign state. See generally N. E. Leech, C. T. Oliver, J. M. Sweeney, The International Legal System 306-91 (1973). Sovereign immunity may be distinguished from diplomatic immunity which involves a suit brought against an individual diplomat. Chief Justice Marshall first recognized the doctrine of sovereign immunity in American law in The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812), where he sustained a plea of immunity in light of support shown by the executive branch for such immunity by recognizing that affording immunity in such circumstances found support in the general law and practice of nations. In this century, however, the Supreme Court began to rely on the policies and practices of the Department of State and less and less on the law of nations in resolving particular sovereign immunity questions. See Foreign Sovereign Immunities Act of 1976, House Rep. No.94-1487, Sept. 9, 1976, to accompany H.R. 11315, reprinted in 1976 U.S.Code Cong. & Admin.News, pp. 6604, 6606. The high watermark of this trend was reached in Ex Parte Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014 (1943), and Mexico v. Hoffman, 324 U.S. 30, 65 S.Ct. 530, 89 L.Ed. 729 (1945).

Until the passage of the Immunities Act in 1976, judges were generally disposed to deny sovereign immunity claims which had not been "recognized and approved" by the Department of State unless it was clear that the particular activity came within one of the categories of strictly political or public acts about which sovereigns were typically sensitive. These acts were limited primarily to the following categories: (1) internal administrative acts such as the expulsion of aliens, (2) legislative acts such as naturalization, (3) acts concerning the armed...