Spacil v. Crowe

489 F.2d 614, 1974 A.M.C. 287
Court of Appeals for the Fifth Circuit·Decided February 13, 1974·No. No. 73-3599·Published·Cited by 25 cases

Opinion

WISDOM, Circuit Judge:

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’ [615] and to refrain from exercising any jurisdiction over that ship and over the action entitled Industria Azucerera Na-cional, S.A., et al v. Empresa Navega-ción 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.

I.

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 Navegación Mambisa (Mambisa), abruptly left Chilean waters.1 11The 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, Compañía de Refinería de Azúcar de Vina del Mar (Refinería). 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. Re-finería 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:

“The Department has been informed by the Embassy of the Czechoslovak Socialist Republic, as representative of the interests of the Government of the Republic of Cuba in the United States of America, that the M.N. Imias is a vessel belonging to the Government of Cuba and that the Government of Cuba requests that the said vessel be granted immunity from the jurisdiction of United States courts.
The Department recognizes and allows immunity of the M.N. Imias from the jurisdiction of United States courts for the purpose of arrest, attachment, suit, or any other legal process in the above captioned action.
The Department would be grateful to you if you would cause an appropriate suggestion of immunity to be filed with the United States District Court [616] for the Canal Zone.” (Emphasis added.)

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:

“The Department’s decision to recognize and allow immunity in this case was made on the basis of the most careful consideration of all the circumstances and after appropriate consultation by the Office of the Legal Adviser with the other interested bureaus and officials in the Department. The Department’s practice in sovereign immunity cases does not provide for an appeal, or any presentation by counsel, to the Secretary of State. The Department’s decision has been taken, and, it. is the Department’s view that the public interest and United States foreign relations are best served by the prompt release of the vessel.”

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 air 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.

II.

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Spacil v. Crowe, 489 F.2d 614, 1974 A.M.C. 287 (5th Cir. 1974).

489 F.2d 614 (Spacil v. Crowe) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Fallahi v. Raisolsadati
S.D. New York, 2022
Kasippillai Manoharan v. Percy Rajapaksa
711 F.3d 178 (D.C. Circuit, 2013)
Habyarimana Ex Rel. Habyarimana v. Kagame
696 F.3d 1029 (Tenth Circuit, 2012)
Habyarimana v. Kagame
821 F. Supp. 2d 1244 (W.D. Oklahoma, 2011)
Spectrum Stores, Inc. v. Citgo Petroleum Corp.
632 F.3d 938 (Fifth Circuit, 2011)
Weixum v. Xilai
568 F. Supp. 2d 35 (District of Columbia, 2008)
Potts v. Dyncorp International LLC
465 F. Supp. 2d 1245 (M.D. Alabama, 2006)
Ye, Wei v. Zemin, Jiang
Seventh Circuit, 2004
First American Corp. v. Al-Nahyan
948 F. Supp. 1107 (District of Columbia, 1996)
Corazon Tabion v. Faris Mufti Lana Mufti
73 F.3d 535 (Fourth Circuit, 1996)
Aketepe v. United States
925 F. Supp. 731 (M.D. Florida, 1996)
Milena Ship Management Co. Ltd. v. Newcomb
804 F. Supp. 846 (E.D. Louisiana, 1992)
Gregris v. Edberg
645 F. Supp. 1153 (W.D. Pennsylvania, 1986)
In Re the Complaint of Sedco, Inc.
543 F. Supp. 561 (S.D. Texas, 1982)
Rex v. Cia. Pervana De Vapores, S. A.
660 F.2d 61 (Third Circuit, 1981)