Petition of Petrol Shipping Corporation v. The Kingdom of Greece, Ministry of Commerce, Purchase Directorate

326 F.2d 117, 1964 U.S. App. LEXIS 6823

• Court: Court of Appeals for the Second Circuit
• Decided: January 7, 1964
• Docket: 119, Docket 28188
• Status: Published

Opinions

PER CURIAM.

Respondent chartered the petitioner’s tanker Atlantis to carry grain from Texas to Greece.¹ At Piraeus, Greece, the Respondent designated a berth at which the Atlantis could not safely lie afloat and sustained damage for which the Respondent disclaimed responsibility. The charter party contained an arbitration clause. Petitioner appointed an arbitrator and, in reliance on § 4 of the Arbitration Act, 9 U.S.C.A., moved in the court below for an order directing Respondent to appoint one.² The Greek Ambassador to the United States, appearing specially, suggested want of jurisdiction to sue a sovereign state without its consent. Judge Dawson so held. The petitioner has appealed. It contends that the court erred in accepting the unsupported suggestion of the Greek Ambassador and should have required the Respondent to establish its right to immunity through channels of our State Department.

The narrow issue presented by the appeal is one which was settled for this court in Puente v. Spanish National State, 2 Cir., 116 F.2d 43, cert. den. 314 U.S. 627, 62 S.Ct. 57, 86 L.Ed. 504. There the plaintiff sued for legal fees, No appearance was entered for defendant, but the Spanish Ambassador to the United States submitted to the Clerk of the District Court a letter which stated “that under prevailing principles of international law the Spanish Government as a Sovereign State is not subject to suit in your Court without its consent, which in this case it declines to accord.” In a well-reasoned and lucid opinion (in which Judge L. Hand and Judge Chase concurred) Judge Clark stated that the question for decision is “how the conceded immunity of a friendly foreign state from suit without its consent is to be presented to a court.” The Ambassador’s letter was held sufficient. The opinion points out the distinction between cases where this is true and those where a foreign sovereign lays claim to a vessel over which the District Court has already acquired jurisdiction. In the latter type of case, of which Ex parte Muir, 254 U.S. 522, 41 S.Ct. 185, 65 L.Ed. 383, is an illustration, the foreign sovereign must establish through channels of oui State Department its right to immunity, The Supreme Court has never, so far as we are advised, limited in any way the Puente decision.

The judgment is affirmed.

1 . The grain was purchased tinder an agreement between the United States and Greece made pursuant to the Agricultural Trade Development and Assistance Act, 7 U.S.C.A. § 1691 et seq.

2 . It should be noted that the arbitration clause provided that “for the purpose of enforcing any award, this agreement may be made a rule of the Court.” Petitioner’s suit sought an order directing appointment of an arbitrator, not an order enforcing an award.