Ruggiero v. Compania Peruana De Vapores Inca Capac Yupanqui
| Decision Date | 15 January 1981 |
| Docket Number | 698 and 699,Nos. 577,D,s. 577 |
| Citation | 639 F.2d 872 |
| Parties | Domenico RUGGIERO, Plaintiff-Appellant, v. COMPANIA PERUANA DE VAPORES "INCA CAPAC YUPANQUI", Defendant-Appellee. Simon DODSON, Plaintiff-Appellant, v. POLSKI LINIE OCEANICZNE GDYNIA, "DOMEYKO", Defendant-Appellee. Ciro LOCASCIO, Plaintiff-Appellant, v. P. M. JAKARTA LLOYD "DJATIPRANA", Defendant-Appellee. ockets 80-7595, 80-7597 and 80-7599. |
| Court | U.S. Court of Appeals — Second Circuit |
Irving B. Bushlow, Brooklyn, N. Y., for plaintiffs-appellants.
Thomas Healey, New York City, Healey & McCaffrey, New York City, for defendant-appellee Polski Linie Oceaniczne Gdynia, "Domeyko".
Giallorenzi & Campbell, New York City, for defendant-appellee P. M. Jakarta Lloyd "Djatiprana".
Cichanowicz & Callan, New York City, for defendant-appellee Compania Peruana De Vapores "Inca Capac Yupanqui".
Bruno A. Ristau, Dept. of Justice, Washington, D. C., Alice Daniel, Asst. Atty. Gen., Eloise E. Davies, Dept. of Justice, Washington, D. C., Edward R. Korman, U. S. Atty., E. D. New York, Brooklyn, N. Y., for intervenor-appellee United States of America.
Before FEINBERG, Chief Judge, and FRIENDLY and KEARSE, Circuit Judges.
The plaintiffs in these three cases are longshoremen seeking damages for personal injuries incurred in New York due to the alleged negligence of a shipowner, as authorized by the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b). 1 In each case the defendant is a shipping company incorporated under the laws of and wholly owned by a foreign government Peru, Poland and Indonesia, respectively. In each case the plaintiff made a jury demand, F.R.Civ.P. 38(b), and the defendant moved to strike it as inconsistent with the Foreign Sovereign Immunities Act of 1976 (the "Immunities Act"), 90 Stat. 2891 (1976). In a well-considered opinion, 498 F.Supp. 10, the district court granted the defendants' motions but wisely included the certificate for interlocutory appeals specified by 28 U.S.C. § 1292(b). This court gave leave for such appeals. The United States as intervenor, 28 U.S.C. § 2403(a), submitted a thorough brief in support of the district court's action. The district court's decision runs counter to those of some district courts in other circuits 2 and we are advised by counsel that the issue is pending on appeal in at least two of them. 3
The Immunities Act was intended to be a comprehensive revision of the law with respect to suits against foreign states or entities owned by them. As said in the report of the House Committee, House Report No. 94-1487, 94th Cong.2d Sess., p. 6, reprinted in, (1976) 5 U.S.Code Cong. & Ad.News, pp. 6604, 6604:
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 and to provide when a foreign state is entitled to sovereign immunity.
The extent of the changes wrought by the Immunities Act so far as concerns the question before us can be best understood by comparing 28 U.S.C. § 1332, as it stood before the 1976 enactment (below, on the left), so far as here pertinent, with 28 U.S.C. §§ 1330(a) and 1332(a) as they existed thereafter (on the right).
Sec. 1332. Diversity of Sec. 1330. Actions against
citizenship; amount in foreign states
controversy; costs
(a) The district courts shall
(a) The district courts have original jursidiction
shall have original without regard
jurisdiction of all to amount in
civil actions where the controversy of any nonjury
matter in controversy civil action against a foreign
exceeds the sum or value of $10,000, state as defined in section
exclusive of interest and costs, 1603(a) of this title as to any
and is between- claim for relief in personam
with respect to which the
(1) citizens of different foreign state is not entitled to
States; immunity either under sections
(2) citizens of a State, and 1605-1607 of this title or#
foreign states or citizens or under any applicable
subjects thereof: and international agreement
(3) citizens of different Sec. 1332. Diversity of citizenship
States and in which foreign amount in Controversy; costs
states or citizens or subjects
thereof are additional parties (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
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 of different States.
To this must be added some of the provisions referred to in the new § 1330(a). 4 Sections 1603(a) and (b) provide:
§ 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, corporate 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.
Section 1605(a)(2) provides:
§ 1605. General exceptions to the jurisdictional immunity of a foreign state
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
The Immunities Act also added a new 28 U.S.C. § 1441(d), reading as follows:
§ 1441. Actions removable generally
(d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.
One need scarcely go beyond this to conclude that, as a matter of statutory construction, no jury can be had in an action in a federal court against a foreign state as broadly defined in § 1603 a definition within which the defendants here concededly fall when, as here, federal jurisdiction is sought to be predicated on § 1332(a). The provisions of former § 1332(a)(2) and (3), which would have provided a basis of jurisdiction over actions by a citizen against a foreign state prior to 1976, were deleted and were replaced by § 1330(a), which by its clear terms provides only for a non-jury civil action against foreign states as the statute generously defines them.
We find no force in plaintiffs' argument that their actions may be maintained against state-owned corporations, although not as against states themselves, under § 1332(a)(2) authorizing suits between "citizens of a State and citizens or subjects of a foreign state", which imposes no restriction on jury trial. It had long been settled that a corporation created under the laws of a foreign state was regarded for purposes of diversity jurisdiction as a "citizen or subject" of that state. Steamship Co. v. Tugman, 106 U.S. 118, 1 S.Ct. 58, 27 L.Ed. 87 (1882). 5 Hence, the argument runs, a plaintiff suing entities like these defendants has an option. He can sue them as foreign states under § 1330(a), with a bar against a jury trial being demanded by either side; alternatively he can sue them under § 1332(a)(2), and where, as here, the action is in tort or any other subject ordinarily triable to a jury, he may have a jury trial on demand as other diversity plaintiffs may.
We are convinced that so such option exists. The argument ignores the provision of § 1330(a) which defines each of these defendants as a foreign state. The same entity cannot be both a foreign state and a citizen or subject of a foreign state. The historic justification for considering foreign corporations to...
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...a tripartite division--federal question cases, diversity cases and actions against foreign states." Ruggiero v. Compania Peruana De Vapores, etc., 639 F.2d 872, 876 (2d Cir.1981).8 We realize that Arango discusses pendent party jurisdiction in a manner now discredited by Finley. 621 F.2d at......
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...division--federal question cases, diversity cases and actions against foreign states." Ruggiero v. Compania Peruana De Vapores "Inca Capac Yupanqui", 639 F.2d 872, 876 (2d Cir.1981) (Friendly, J.).7 As explained above, the district court lacked diversity jurisdiction or any other type of su......
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