Sullivan v. State of Sao Paulo

Decision Date04 August 1941
Docket NumberNo. 315,316.,315
Citation122 F.2d 355
PartiesSULLIVAN v. STATE OF SAO PAULO. SAME v. STATE OF RIO GRANDE DO SUL.
CourtU.S. Court of Appeals — Second Circuit

Isidor J. Kresel, of New York City (Morris F. Goldstein, Wm. Peyton Marin, and Abraham P. Inselstein, all of New York City, on the brief), for appellant.

Wilmurt B. Linker, of New York City (Delafield, Marsh, Porter & Hope, Ramon Siaca, and Gardner C. Klein, all of New York City, on the brief), for respondents.

Before L. HAND, CHASE and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Defendants are constituent states of the United States of Brazil. These actions against them, in respect of principal and interest alleged to be due on certain of defendants' bonds, were begun in the New York Supreme Court by attachment of New York bank accounts of defendants and service by publication. After both actions had been removed to the federal court, defendants appeared specially to move dismissal of the actions and vacation of the attachments on the ground of their sovereign immunity to suit.

While these motions were pending, the United States Attorney for the Eastern District of New York submitted to the court on the request of the Secretary of State a note from the Brazilian Ambassador asserting defendants' immunity to suit, and asserting further that the interest in the funds of the federal government of Brazil was such as to render them immune to attachment. Attached to the note were copies of certain Brazilian decrees, by which the Brazilian federal government's interest was allegedly established. The communication from the United States Attorney expressly disavowed any intention to appear in the suit on behalf of Brazil, the defendants, or the United States, and nowhere vouched for the validity of the claims.

Shortly thereafter the court addressed to the Secretary of State a letter asking whether the State Department had "recognized and allowed" the claims of immunity within the meaning of those words as used in Compania Espanola v. The Navemar, 303 U.S. 68, 74, 58 S.Ct. 432, 82 L.Ed. 667. In answer to this it was informed that the "Department * * * had no doubt as to the accuracy of the statements" in the Brazilian Ambassador's note "as to the status of the Brazilian States" and likewise as to "the ownership and disposition of the funds in question," but that "it is the practice of the Department to leave such questions of granting or withholding immunity for determination by the courts, applying the principles of international law to the facts and circumstances of the particular cases."1

In a second letter the court pressed for a categorical answer to the question whether or not the claims had been "recognized and allowed," and received an answer in the following terms:

"The Department's earlier statements on this subject were not intended to indicate that it had `recognized and allowed' the claim of immunity as a conclusion of law, but rather were intended, as indicated, to show that the Department felt that a prima facie case had been made out by the Government of Brazil, which justified the Department in having the statements presented to the court for its consideration. The Department's action necessarily implied an acceptance, as true, of the statements of fact made by the Brazilian Government. It was felt, however, that the ultimate decision of the question of immunity, in view of the political status of the States of Rio Grande do Sul and Sao Paulo, and of the relationship of the Brazilian Government to the funds in question, should be left to the court. The action taken by the Department in these cases was similar to that taken in other cases where the Department felt that there was merit to the contention of the foreign government but did not undertake to pass upon such contention as a conclusion of law. I may state, however, that, aside from the question of the political status of the two defendant States, it is the view of the Department that the interest of the Government of Brazil in the funds, as explained in the Brazilian Ambassador's note of July 11, 1940, is of such character as to entitle them to immunity from attachment by private litigants."

On the basis of these representations, and without any hearing on either the nature of Brazil's interest in the funds or the status of the defendants, the complaints were dismissed and the attachments vacated.

The parties are in serious dispute as to the significance to be attributed to the actions of the State Department and the District Attorney. Were these officials acting merely as the automatic conduit of the Brazilian Ambassador's claim, or did they also place upon it the stamp of indorsement of the Department? Evidently some favorable implication must be drawn, for sometimes the Department has declined to act at all, as in Compania Espanola v. The Navemar, supra, and Molina v. Comision Reguladora, 91 N.J.L. 382, 103 A. 397, and has even positively expressed itself as opposed to a claim of immunity. The Pesaro, D.C.S.D.N.Y., 277 F. 473. It is said that in only two instances, one involving the arrest of a foreign warship, The Schooner Exchange v. M'Faddon, 7 Cranch 116, 11 U.S. 116, 3 L.Ed. 287, and the other a suit directly against a foreign sovereign, Hassard v. United States of Mexico, 173 N.Y. 645, 66 N.E. 1110, has the Executive ever actually appeared in a suit to move dismissal on these grounds. Deák, The Plea of Sovereign Immunity, 40 Col.L.Rev. 453, 461. Whether or not it does so is not necessarily a test of its attitude toward the validity of a claim, or its "recognition and allowance" thereof within the sense of Compania Espanola v. The Navemar, supra. Cf. The Attualita, 4 Cir., 238 F. 909; Puente v. Spanish National State, 2 Cir., 116 F.2d 43.

That test should naturally be supplied by the Executive's representations, not the technical nature of its appearance. Here the Executive chose to transmit the claim, which act alone has been held to be an implied recognition. Miller v. Ferrocarrill del Pacifico de Nicaragua, Me., 18 A.2d 688. Contra: Lamont v. Travelers Ins. Co., 281 N.Y. 362, 24 N.E.2d 81; Hannes v. Kingdom of Roumania Monopolies Institute, 260 App.Div. 189, 20 N.Y. S.2d 825. And when pressed, it did much more. It not only vouched for the accuracy of the statements of fact made by the Brazilian Ambassador, but also declared it to be "the view of the Department that the interest of the Government of Brazil in the funds, as explained in the Brazilian Ambassador's note of July 11, 1940, is of such character as to entitle them to immunity from attachment by private litigants." This appears to be a clear recognition of the claim of the Brazilian federal government so far as the Department is concerned, and the latter's refusal to recognize it "as a conclusion of law" can hardly be more than modest concern not to usurp the constitutional function of the courts.

We have no hesitation, therefore, in accepting these communications as the official representation of Executive acceptance of the Ambassador's claims. And therefore we accept for the purposes of decision herein the recitals of fact made by the Ambassador. Compare Banco de Espana v. Federal Reserve Bank, 2 Cir., 114 F.2d 438, 443. Next we must inquire whether the conclusion of immunity drawn by the Department from these facts is of the kind which the courts should and must accept as final.

Courts will undoubtedly accept as conclusive Executive pronouncements on whatever might be considered a "political," as opposed to a "judicial," question, Doe ex dem. Clark v. Braden, 16 How. 635, 57 U.S. 635, 14 L.Ed. 1090, including the question whether one is a sovereign, Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726; Duff Development Co. v. Kelantan Government, 1924 A.C. 797, and the question whether one is a sovereign's privileged diplomatic representative. United States v. Ortega, C.C.E.D.Pa., Fed.Cas.No.15,971; Engelke v. Musmann, 1928 A.C. 433; see Ex parte Baiz, 135 U.S. 403, 10 S.Ct. 854, 34 L.Ed. 222. Such questions as these must have been within the contemplation of the court in the Navemar case, when it said (303 U.S. page 74, 58 S.Ct. page 434, 82 L.Ed. 667): "If the claim is recognized and allowed by the Executive Branch of the government, 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." See Deák, supra, 40 Col.L.Rev. at page 462. For Executive action in respect to such questions, if not actually determinative of them, is at least the best evidence which it is possible to adduce. United States v. Liddle, C.C.E.D. Pa., Fed.Cas.No.15,598.

The adjudication of present rights to property within a court's jurisdiction is, however, a purely judicial function, which no Executive department of the government is constitutionally or practically equipped to discharge. Banco de Espana v. Federal Reserve Bank, supra. Every court has the general power to pass on questions affecting its own jurisdiction, Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; and where that jurisdiction is in rem or quasi in rem, as based upon property in its control, no Executive action can deprive the court of jurisdiction — or even constitute evidence of rights in the property — except in so far as such rights depend on the settlement of "political" questions, as on issues of sovereignty of a party or his assignor. United States v. Bank of New York & Trust Co., 296 U. S. 463, 56 S.Ct. 343, 80 L.Ed. 331; Berizzi Bros. Co. v. S. S. Pesaro, 271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088.2 See United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134.

So far, therefore, as decision turns upon the immunity of defendants' New York funds to attachment by reason of Brazil's alleged interest, it must rest upon what the court finds to be Brazil's actual interest. The Ambassador's...

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21 cases
  • United States v. Enger, Crim. No. 78-149.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 25, 1978
    ...construed as a nonreviewable political decision. In re Baiz, 135 U.S. 403, 10 S.Ct. 854, 34 L.Ed. 222 (1890); Sullivan v. State of Sao Paulo, 122 F.2d 355, 357-58 (2d Cir. 1941); United States v. Coplon, 84 F.Supp. 472, 475 (S.D.N.Y.1949). The case for allowing judicial review is stronger w......
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    • January 4, 1966
    ...... [215 A.2d 865] . Immunity made by the Department of State. The two actions. were consolidated here and will be considered together ...Navemar, 303 U.S. 68, 76, 58. S.Ct. 432, 82 L.Ed. 667; Sullivan v. State of Sao. Paulo, 122 F.2d 355, 360; Rich v. Naviera Vacuba. ......
  • Republic of Mexico v. Hoffman the Baja California
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    • February 5, 1945
    ...the aggravation of the indignity where the interference with the vessel ousts the possession of a foreign state, Sullivan v. State of Sao Paulo, 2 Cir., 122 F.2d 355, 360, it is plain that the distinction is supported by the overwhelming weight of authority. More important, and we think con......
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    ...36 (1966). Thus Wuerttemberg is entitled to sovereign immunity. Sullivan v. State of Sao Paulo, 36 F.Supp. 503 (E.D.N.Y.), affd., 122 F.2d 355 (2d Cir. 1941). As for West Germany, whose Parliament passed the 1967 Law, there can be no serious question about its status as a foreign "state" wi......
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1 books & journal articles
  • The "common-law regime" of foreign sovereign immunity: the actual possession rule in admiralty.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 44 No. 4, October 2011
    • October 1, 2011
    ...and Compania Naviera Vascongado v. S.S. Cristina, [1938] A.C. 485 (H.L.) (Eng.)). (106.) Id. at 38 (citing Sullivan v. State of Sao Paulo, 122 F.2d 355, 360 (2d Cir. 1941) (Hand, (107.) See id. at 35 ("[I]t is a guiding principle in determining whether a court should exercise or surrender i......

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