Spacil v. Crowe
| Decision Date | 13 February 1974 |
| Docket Number | No. 73-3599.,73-3599. |
| Citation | 489 F.2d 614 |
| Parties | Dusan SPACIL, Ambassador of the Czechoslovak Socialist Republic, Petitioner, v. The Honorable Guthrie F. CROWE, United States District Court Judge for the District of the Canal Zone, et al., Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Leonard B. Boudin, Michael Krinsky, New York City, Bruno Ristau, Atty., Dept. of Justice, Civil Div., Washington, D. C., for petitioner.
Guthrie F. Crowe, Judge, Balboa Heights, Canal Zone, Robert E. Herzstein, Washington, D. C., Betty Olchin, Balboa, Canal Zone, Donald W. Doyle, Howard J. Smith, Donald W. Doyle, Jr., New Orleans, La., for respondents.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
This case concerns executive preemption of the decision to grant a foreign sovereign immunity from suit in our courts.
On November 13, 1973, we granted a petition for a writ of mandamus in this action, directing the district court for the district of the Canal Zone "to order the release of the vessel `M/V Imias' and to refrain from exercising any jurisdiction over that ship and over the action entitled Industria Azucerera Nacional, S.A., et al v. Empresa Navegacion Mambisa". Because of the urgency of the matter, we granted the petition without then stating our reasons in an opinion. We now state the reasons for our order granting the writ.
The controversy grew out of the recent military coup in Chile. On September 11, 1973, a military junta overthrew the government of President Salvador Allende Gossens. That same day the M/V Playa Larga, a vessel owned by the Cuban corporation Empresa Navegacion Mambisa (Mambisa), abruptly left Chilean waters.1 The Playa Larga had transported raw sugar from Cuba and had only partially unloaded its cargo at a pier in Valparaiso. The vessel left port so precipitately that it still had on board four unloading cranes owned by the Chilean corporation, Compania de Refineria de Azucar de Vina del Mar (Refineria). After leaving Chilean territory on September 11, the Playa Larga was damaged by strafing from Chilean Air Force planes and shelling from a Chilean destroyer. A second Mambisa vessel, the M/V Marble Island, also transporting sugar from Cuba, abandoned its course for Chile on September 12, 1973.
The sugar carried by both the Playa Larga and the Marble Island was consigned to Industria Azucarera Nacional, S.A. (Azucarera), a Chilean corporation. Azucarera instituted a breach of contract action against Mambisa in the Canal Zone district court, contending that it had fully paid for the sugar. Refineria joined as plaintiff, asserting a claim for the conversion of the four cranes carried off by the Playa Larga. The claims totaled more than $4 million. On October 2, 1973, the District Court for the Canal Zone issued a writ attaching the M/V Imias.
The Czechoslovak Ambassador, Dusan Spacil, representing the interests of Cuba in the United States, promptly requested the State Department to file a suggestion of immunity in the district court urging the release of the Imias and the dismissal of the action. In conformity with established procedures,2 members of the Legal Adviser's Office of the State Department heard arguments on behalf of the parties. On October 25 the Legal Adviser apprised the Attorney General of the United States of the State Department's decision:
In compliance with this request, the United States Attorney for the Canal Zone, at the direction of the Attorney General, certified a suggestion of immunity to the court, stating:
"The issue of immunity arises in connection with a determination reached by the Executive Branch of the Government of the United States in the implementation of its foreign policy and in the conduct of its international relations, which determination should be given effect by this Court."
Counsel for the plaintiffs requested an opportunity to appeal to the Secretary of State the Legal Adviser's decision to recognize and allow the claim of immunity. Counsel also requested a statement of the reasons for the Legal Adviser's decision. The Legal Adviser responded:
On November 1, 1973, the district court granted the defendant's motion to dismiss the suit and to release the Imias on grounds of sovereign immunity. The district judge stated orally in open court, however, that he would defer the entry of the order until November 5 and that if the plaintiffs posted a $25,000 bond the court would stay the effectiveness of the order pending appeal. The defendant petitioned for writs of mandamus and prohibition, seeking an order of this Court to require the district court to dismiss the action and order the immediate release of the vessel. The defendant and plaintiffs filed briefs in this Court. In addition, the United States filed a brief in support of the petition. Meanwhile the plaintiffs posted the bond, and the district court stayed the effectiveness of the order. This Court permitted counsel for the plaintiffs and the defendant and a representative of the United States to argue the case on November 12. The following day we granted the writ.
An accepted rule of law is that courts should recognize the immunity of a foreign sovereign. "Historically the rule may be traced to a time when most states were ruled by a personal soverign who, in a very real sense, personnified the State—`L'Etat C'est moi'". Draft Convention of the Competence of Courts in Regard to Foreign States, 26 Am.J.Int'l L. 451, 527, no. 1. The doctrine of foreign sovereign immunity cuts across the rights of individuals when governments engage in commercial or industrial activities reserved in many countries for private enterprise. In applying the doctrine in any particular case the judiciary must be sensitive to the overriding necessity that courts not interfere with the executive's proper handling of foreign affairs.
From the early days of the Republic to the present, the United States judiciary has bowed to suggestions by the executive that certain suits against foreign sovereigns should not be entertained in United States courts. In the famous case of The Schooner Exchange v. McFaddon, 1812, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287, where the Supreme Court first enunciated the doctrine of immunity for foreign sovereigns, Chief Justice Marshall said: "There seems to be a necessity for admitting that the fact of immunity might be disclosed to the court by the suggestion of the attorney for the United States." 11 U.S. at 147.
The Supreme Court has stated the principle forcefully in later decisions. Writing for the Court in Compania Espanola De Navegacion Maritima v. The Navemar, 1938, 303 U.S. 68, 74, 58 S.Ct. 432, 82 L.Ed. 667, Justice Stone stated unequivocally that the courts would be bound by a claim of sovereign immunity "recognized and allowed" by the executive branch: "It is then the duty of the courts to release the vessel upon appropriate suggestion by the Attorney General of the United States, or other officer acting under his direction." This characterization of the function of the judiciary when faced with an executive suggestion of immunity was echoed in Ex parte Peru, 1943, 318 U.S. 578, 588, 63 S.Ct. 793, 87 L.Ed. 1014:
More recently, the Second and Fourth Circuits have reiterated that once the State Department has determined that immunity is warranted, and has submitted that ruling to the court through a suggestion, the matter is for diplomatic rather than judicial resolution. The suit must be dismissed, and any property attached must be released. Isbrandtsen Tankers, Inc. v. President of India, 2 Cir. 1971, 446 F.2d 1198, cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369; Rich v. Naviera Vacuba, S.A., 4 Cir. 1961, 295 F.2d 24.
The precedents are overwhelming. For more than 160 years...
To continue reading
Request your trial
-
Rex v. Cia. Pervana De Vapores, S. A.
...the courts have continued to recognize claims certified by the State Department, without further inquiry. E. g., Spacil v. Crowe, 489 F.2d 614 (5th Cir. 1974); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.) cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369 (......
-
First American Corp. v. Al-Nahyan
...are bound to accept such head of state determinations as conclusive. Ex parte Peru, 318 U.S. at 589, 63 S.Ct. at 800; Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir.1974); Lafontant, 844 F.Supp. at 137 & 139; see Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328, 1331 (11th Cir.1984); Carre......
-
Spectrum Stores Inc. v. Citgo Petroleum Corp..
...with or embarrass the executive in its constitutional role as the nation's primary organ of international policy.” Spacil v. Crowe, 489 F.2d 614, 619 (5th Cir.1974). As we have already outlined and as the government has emphasized to us in its briefing, “the United States, for more than the......
-
Habyarimana v. Kagame
...with or embarrass the executive in its constitutional role as the nation's primary organ of international policy.” Spacil v. Crowe, 489 F.2d 614, 619 (Canal Zone 1974). For most of the 165 years following McFaddon, the Executive Branch determined whether a foreign nation was entitled to imm......
-
Head of state immunity as sole executive lawmaking.
...or embarrass the executive in its constitutional role as the nation's primary organ of international policy.'" (quoting Spacil v. Crowe, 489 F.2d 614, 619 (5th Cir. 1974))); Jiang Zemin, 282 F. Supp. 2d at 880 ('"[T]he courts should not so act as to embarrass the executive arm in its conduc......
-
The "common-law regime" of foreign sovereign immunity: the actual possession rule in admiralty.
...id. at 1073 (citing Deep, Deep Ocean Prods., Inc. v. Union of Soviet Socialist Republics, 493 F.2d 1223 (1st Cir. 1974): Spacil v. Crowe, 489 F.2d 614 (5th Cir. 1974)) (providing instances in which the State Department did recognize immunity for a vessel engaged in a "public (114.) See The ......
-
The dog that caught the car: observations on the past, present, and future approaches of the office of the legal adviser to official acts immunities.
...were decidedly informal in nature; no evidence or testimony was presented, and no transcript made of the proceedings. See Spacil v. Crowe, 489 F.2d 614, 615 n.2 (5th Cir. 1974) (describing the State Department's (81.) See Samantar Amicus Brief, supra note 43, at 7 (discussing factors the St......
-
Foreign official immunity after Samantar: a United States government perspective.
...exist when the Executive Branch and courts first addressed the immunity of foreign government officials. (38.) See, e.g., Spacil v. Crowe, 489 F.2d 614, 619 (5th Cir. 1974) ("[T]he degree to which granting or denying a claim of immunity may be important to foreign policy is a question on wh......