Rex v. Cia. Pervana de Vapores, Civ. A. No. 78-3694.

Decision Date24 June 1980
Docket NumberCiv. A. No. 78-3694.
Citation493 F. Supp. 459
PartiesCalvin REX v. CIA. PERVANA DE VAPORES, S.A.
CourtU.S. District Court — Eastern District of Pennsylvania

Charles Sovel, Freedman & Lorry, Philadelphia, Pa., for plaintiff.

E. Alfred Smith, Krusen, Evans & Byrne, Philadelphia, Pa., for defendant.

MEMORANDUM

CAHN, District Judge.

I. FACTS

Plaintiff is a longshoreman. On August 14, 1978, plaintiff was employed by Northern Shipping Co. (a stevedore) and was engaged in discharging cargo from the M/V Chocano. M/V Chocano is a merchant vessel owned and operated by the defendant, Cia. Pervana De Vapores, S.A. During the course of his work, plaintiff was injured. Alleging that his injuries were caused by the negligence of defendant, plaintiff instituted the instant action for damages pursuant to § 5(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). Plaintiff's complaint contained a demand for a jury trial. Jurisdiction over plaintiff's action in this court was allegedly based on 28 U.S.C. § 1332, commonly called diversity jurisdiction. In brief and argument plaintiff's counsel also asserted jurisdiction under 28 U.S.C. §§ 1330 and 1331.

M/V Chocano is an ocean-going vessel engaged in foreign commerce and is registered in Peru. Defendant is a Peruvian corporation all of whose stock is owned by the sovereign State of Peru. Defendant alleges that, as an "agent or instrumentality of a foreign state" as defined in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602, 1603(b)(2), jurisdiction in this court may only be based on 28 U.S.C. § 1330(a). Since jurisdiction under 28 U.S.C. § 1330(a) is limited to "nonjury" civil actions, defendant has made a motion to strike plaintiff's demand for a jury trial. That motion, and the question of statutory interpretation which it presents, is the issue before the court.

II. BACKGROUND

As a doctrine of international law, foreign sovereigns have enjoyed a limited immunity from suit in United States courts. Courts have traditionally deferred to the practice and policies of the State Department of the federal government in deciding on the application of the immunity doctrine to a foreign sovereign. See Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976); Mexico v. Hoffman, 324 U.S. 30, 65 S.Ct. 530, 89 L.Ed. 1014 (1945); H.R.Rep.No.94-1487, U.S.Code Cong. & Admin.News 1976, p. 6604, 122 Cong.Rec. 6604 (1976) (hereinafter House Report). This system presented various practical problems in modern times, and after years of deliberation and consultation with the State Department, the Office of Foreign Litigation of the Justice Department, and the private bar, Congress formulated a comprehensive new approach to procedural issues involving suits against a foreign sovereign. The result was the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602, et seq. (hereinafter the FSIA).

The main purpose of the FSIA was to confer on the United States District Courts the authority to determine when the doctrine of sovereign immunity is to be invoked to bar an action against a foreign sovereign and to provide standards for that determination. See 28 U.S.C. § 1602; House Report. In addition the FSIA sought to provide comprehensive guidelines for attachments, service of process, jurisdiction, and other procedural problems related to suits against foreign sovereigns. In doing so the FSIA amended and added to the sections of Title 28, Chapter 95 of the United States Code which set forth the jurisdiction of the United States District Courts. Therein lies the crux of the present problem.

A. STATUTORY CHANGES UNDER THE FSIA

Prior to the FSIA, 28 U.S.C. § 1332(a) read:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between —
(1) citizens of different States;
(2) citizens of a State, and foreign states or citizens or subjects thereof; and
(3) citizens of different States and in which foreign states or citizens or subjects thereof are additional parties;

The FSIA amended § 1332 as follows:

SEC. 3 That section 1332 of title 28, United States Code, is amended by striking subsections (a)(2) and (3) and substituting in their place the following:
`(2) citizens of a State and citizens or subjects of a foreign state;
`(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
`(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or different States.'

In addition the FSIA inserted the following new section into Chapter 95 of Title 28:

§ 1330. Actions against foreign states
(a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.

The rest of the FSIA was inserted into Title 28 as a new chapter, Chapter 97, entitled "Jurisdictional Immunities of Foreign States." Section 1603 of the new chapter provided:

§ 1603. Definitions
For purposes of this chapter —
(a) A `foreign state', except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).
(b) An `agency or instrumentality of a foreign state' means any entity —
(1) which is a separate legal person, corporation or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.
III. POSITIONS OF THE PARTIES

Defendant's position is that the FSIA comprehensively codified those instances in which jurisdiction over a foreign sovereign could be maintained in the federal courts. According to defendant, the FSIA was the result of years of intense effort, and its content should not be viewed as a product of hasty legislative work. Defendant points out that the FSIA accomplished three things simultaneously: first, it eliminated from 28 U.S.C. § 1332 district court jurisdiction over civil suits to be tried by a jury between a citizen and a foreign state as a defendant; second, it created district court jurisdiction over nonjury civil suits between a citizen and a foreign state as a defendant in new section 28 U.S.C. § 1330; third, it included in the definition of a foreign state a corporation like the defendant which is controlled by the former statute and otherwise meets the tests of 28 U.S.C. § 1603(b). Defendant argues that the FSIA unequivocally took away from this court jurisdiction over a jury trial in the instant case, and that this court has jurisdiction based on § 1330 only if the demand for a jury trial is stricken from the complaint.

To reinforce its position, defendant points to the legislative history of the FSIA. In H.R.Rep.No.94-1487, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Admin.News, p. 6604 (hereinafter House Report), which accompanied the FSIA to both the House and Senate floors and represented years of committee work, it was stated:

The purpose of the proposed legislation, as amended, is to provide when and how parties can maintain a lawsuit against a foreign state or its entities in the courts of the United States . . ..
. . . . .
SEC. 2. JURISDICTION IN ACTIONS AGAINST FOREIGN STATES
Section 2 of the bill adds a new section 1330 to title 28 of the United States Code, and provides for subject matter and personal jurisdiction of U. S. district courts over foreign states and their political subdivisions, agencies and instrumentalities. Section 1330 provides a comprehensive jurisdictional scheme in cases involving foreign states.
. . . . .
As in suits against the U. S. Government, jury trials are excluded. See 28 U.S.C. 2402.
. . . . .
SEC. 3. DIVERSITY JURISDICTION AS TO FOREIGN STATES
Section 3 of the bill amends those provisions of 28 U.S.C. 1332 which relate to diversity jurisdiction of U. S. district courts over foreign states. Since jurisdiction in actions against foreign states is comprehensively treated by the new section 1330, a similar jurisdictional basis under section 1332 becomes superfluous. The amendment deletes references to `foreign states' now found in paragraphs (2) and (3) of 28 U.S.C. 1332(a), and adds a new paragraph (4) to provide for diversity jurisdiction in actions brought by a foreign state as plaintiff. These changes would not affect the applicability of section 1332 to entities that are both owned by a foreign state and are also citizens of a state of the United States as defined in 28 U.S.C. 1332(c) and (d). See analysis to section 1603(b).

Defendant argues that this court cannot ignore the clear intent of Congress given Congress's constitutional power to establish the jurisdiction of the federal district court under Article III of the United States Constitution and Congress's power to control the relations of the United States with foreign states under Article I, Section 8, of the United States Constitution.

Plaintiff argues that defendant's construction of the statute is erroneous, and second that such an interpretation would place the statute in violation of the Seventh Amendment to the Constitution which preserves the right to a jury trial as known at common law.

Plaintiff's position is that, even though Congress may grant or deny jurisdiction in this case to the district court, if Congress grants that jurisdiction it cannot...

To continue reading

Request your trial
6 cases
  • Rex v. Cia. Pervana De Vapores, S. A.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 22 octobre 1981
    ...28 U.S.C. § 1292(b) from a district court decision granting plaintiff-appellee's motion for a jury trial. Rex v. Cia. Pervana De Vapores, S.A., 493 F.Supp. 459 (E.D.Pa.1980). The issues certified and accepted for our review are whether all actions brought under 28 U.S.C. § 1330(a), enacted ......
  • Ruggiero v. Compania Peruana De Vapores Inca Capac Yupanqui
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 15 janvier 1981
    ...theretofore provided in § 1332(a)(2), and that this entails a non-jury trial. 7 The district court in Rex v. Compania Peruana de Vapores, supra, 493 F.Supp. at 467, developed an alternative theory for allowing jury trial in actions such as these. This was that since such actions arose under......
  • Williams v. Shipping Corp. of India
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 7 juillet 1981
    ...removable under section 1441(a). In making this argument the plaintiff relies upon two district court decisions. Rex v. Cia. Pervana De Vapores, 493 F.Supp. 459 (E.D.Pa.1980) and Icenogle v. Olympic Airways, S. A., 82 F.R.D. 36 (D.D.C.1979). In each of those cases the district court avoided......
  • Herman v. El Al Israel Airlines, Ltd., 80 Civ. 574-CSH.
    • United States
    • U.S. District Court — Southern District of New York
    • 5 novembre 1980
    ...jurisdiction in cases filed originally in federal court, with an accompanying right to jury trial. See, e. g., Rex v. CIA Pervana de Vapores, S.A., 493 F.Supp. 459 (E.D.Pa.1980); Icenogle v. Olympic Airways, 82 F.R.D. 36 (D.D.C. 1979); Lonon v. Companhia de Navegacao Lloyd Basileiro, 85 F.R......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT