Opposition Brief — Argentine Republic v. Amerada Hess Shipping Corp.

No. 87-1372

In the -

Supreme Court of the United States

OCTOBER TERM, 1987

ARGENTINE REPUBLIC,

AMERADA HESS SHIPPING CORPORATION and

UNITED CARRIERS, INC.,

Petitioner,

VU.

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SS a a I ETT A IIIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

a a a EIT TIE EE a TTT DST IPE III

Douc Las R. BuRNETT

Counsel of Record

Hitt, Rivkins, Carey,

LOESBERG, O'BRIEN

& MULROY

Attorneys for

Respondent

AMERADA HEss SHIPPING

CORPORATION

21 West Street «¢

New York, New York 10006

(212) 825-1000

RICHARD H. WEBBER

Of Counsel

RAYMOND J. BuRKE, JR.

Counsel of Record

BuRKE & PARSONS

Attorneys for Respondent

UNITED CARRIERS, INC.

1114 Avenue of the Americas

New York, New York 10036

(212) 354-3800

FRANCES C. PETERS

Of Counsel

Questions Presented

|. Whether the Alien Tort Statute of 1789 provides jurisdicuon

over a claim by a neutral shipowner, engaged in the United

States domestic trade, for an illegal attack against its vessel on

the high seas by a foreign state, where the state has also

declined redress in violation of international law.

9. Whether the Foreign Sovereign Immunities Act of 1976

(“FSIA”) must be construed as preempting the Alien Tort

Statute, and as extending immunity to foreign states where

international law would not accord it.

3. Whether (i) admiralty jurisdiction and (ii) universal juris-

diction are present in this case.

4. Whether jurisdiction is present in this case under FSIA.

The caption of the case in this court contains the names of

all the parties.

DX <<<

TABLE OF CONTENTS

Opinions Below .......-.e. eee ee eee reer eeeeeees |

Jurisdiction 22.2... eee cece eee eee eee ee eeees l

| Treaty Provisions and Statutes Involved.........-+-- l

Statement of the Case ........0e cece eee eee ee eeees 4

REASONS FOR DENYING THE WRIT

A. The decision below upholds the right of a neutral

ship to free passage on the high seas, and turns

squarely on peculiar facts unlikely to recur ......-. 9

B. The ‘‘conflicts”’ alleged by petitioner do not warrant

review by this Court........-.eeee eee eee cence 12

cc ceccccccccecesssccccceseccccces 16

AppeNpIx—Brief of the Republic of Liberia as Amicus

Curiae in the United States Court of Appeals for the

Second Circuit ......ccccccccccccccccscsccccces la

TABLE OF AUTHORITIES

Cases Cited:

American Maritime Association v. Blumenthal, 590

F.2d 1156 (D.C. Cir. 1978) ...... 2c eee cece ee eees 4,5, 11

Calder v. Jones, 465 U.S. 783 (1984)... 6.6202 ee ee eee 14

Executive Jet Aviation Co. v. Cleveland, 409 U.S. 249

eee ke sedccnsseecrccecccccccccce 12

First National City Bank v. Banco Para El Com., 462

EE occ cacccceccscecccccccceccccess 15

In Re Korean Airlines Disaster of September 1, 1983,

597 F. Supp. 613 (D.D.C. 1984). ... 62-02 eee eee e eee 15

Martins v. Ballard, 16 F. Cas. 923 (D.S.C. 1794) (No.

EES TT TT TIP 12

O'Reilly de Camara v. Brooke, 209 U.S. 45 (1908) ..... 12

Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) 12

Rodrigues v. United States, 480 U.S. ——, 108 S.Ct.

___, 94 L.Ed.2d 533 (1987) 2... 6. ee eee eee eee eee 12

ul TABLE OF AUTHORITIES

Siderman v. Republic of Argentina, No. CV 82-1772-

RMT (C.D. Cal., March 7, 1985).......---00e eee eee 15

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.

Cir. 1984), cert. denied, 470 U.S. 1003 (1985).......-- 15

The Charming Betsey, 6 U.S. (2 Cranch) 64 (1804)..... 12

The Plymouth, 70 U.S. (3 Wall.) 20 (1865) ......-++-+- 12

The Steamship Appam, 243 U.S. 124 (1917) .......5+5: 12

Verlinden B. V. v. Central Bank of Nigeria, 461 U.S.

ABO (19BB) ... ccc ccccccccccccccccccceccccsccsesesess 15

Von Dardel v. U.S.S.R., 623 F. Supp. 246 (D.D.C. 1985) 15

West v. Multibanco Comermex, 807 F.2d 820 ( Oth Cir.

1987), cert. denied, 55 U.S. L.W. 3807 (1987) .....--- 13

United States v. Great Northern Railway Co., 343 U.S. 562

ODD ooo occcdsnccsesocesncncsccetucnsdecsvecounes 13

Statutes Cited:

Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §

1330, 1GO2-161] 20... . cece ee eee cere weer eee neerences passim

Alien Tort Statute, 28 U.S.C. § 1350)... 6... eee eens passim

The Merchant Marine Act of 1920, 46 U.S.C. § 877.... 4, 11

Other Authorities:

| Op. Atty. Gen. 57 (1795) ... 00. e eee e eee e eee ee eee e es 12

Foreign Relations of the United States, Diplomatic

Papers, 1944, Vol. IV .......- 000 eee eee eee ee neces 1]

Scheina. Latin America, A Naval History—1810-1987

OO . occ cncdccdncnnendacexcsdenccesennendadeannns 10

Stanley, Prelude to Pearl Harbor (1965) .....-++++++++: 10

Restatement of Foreign Relations Law of the United

States (Tent. Draft No. 6, April 12, 1985, adopted

May 1986) ........ccccecceeceencererscesceeneeesens 15

The Second Report of The Commission on Merchant

Marine and Defense: Recommendations, Decembet

31, 1987

TABLE OF AUTHORITIES

Smeheaeseseeaeaseee ee cee aeneaeaneoecoeweseeaesresecrrerer"

ll

1]

In the

Supreme Court of the United States

OCTOBER TERM, 1987

ARGENTINE REPUBLIC,

Petitioner,

AMERADA HESS SHIPPING CORPORATION and

UNITED CARRIERS, INC.,

Respondents,

Own PetiTION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Opinions Below

The opinion of the court of appeals (Pet. App. la-2la'), 1s

reported at 830 F.2d 421 (1987). The opinion of the United

States District Court for the Southern District of New York

‘Pet. App. 25a-35a) is reported at 638 F. Supp. 73 (1986).

Jurisdiction

The judgment of the court of appeals was entered September

11, 1987 (Pet. App. 22a). The petitioner's petiuon for rehearing

and suggestion for rehearing en banc were denied on November

18, 1987 (Pet. App. 24a). The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

Treaty Provisions and Statutes Involved?

|. The Merchant Marine Act of 1920, 28 U.S.C. § 877,

reads in relevant part as follows:

| “Pet. App.” refers to pages in the Appendix to the Petition.

2 Treaties and statutes cited herein are in addition to those in the

Petition at pp. 2-4.

2

§ 877. Coastwise laws extended to island Terri-

tories and possessions

From and after February 1, 1922, the coastwise laws

of the Uniied States shall extend to the island Tern-

tories and possessions of the United States .. . . And

provided further, That the coastwise laws of the

United States shall not extend to the Virgin Islands

3

4. The Geneva Convention on the High Seas of 1958, 13

U.S.T. 2312, reads in relevant parts as follows:

5. Where hot pursuit is effected by an aircraft:

(a) The provisions of paragraphs | to 3 of the present

article shall apply mutatis mutandis;

(b) The aircraft giving the order to stop must itself

actively pursue the ship unul a ship or aircraft of the

coastal State, summoned by the aircraft, arrives to

take over the pursuit, unless the aircraft is itself able

to arrest the ship. It does not suffice to justify an

arrest on the high seas that the ship was merely

9. The Foreign Sovereign Immunities Act of 1976 (“FSIA”), po gay song Ba arom ao a

9 bf x o .

28 U.S.C. § 1330, 1602-1611, reads in relevant part as follows: pursued by the aircraft itself or 0 cher aiecralt or ships

§ 1603. Definitions which continue the pursuit without interrupuon.

For purposes of this chapter—

of the United States until the President of the United

States shall, by proclamation, declare that such coast-

wise laws shall extend to the Virgin Islands and fix a

date for the going into effect of same.

7. Where a ship has been stopped or arrested on the

(c) The “United States” includes all territory and high seas in circumstances which do not justify the

waters, continental or insular, subject to the juris- exercise of the right of hot pursuit, it shall be

diction of the United States. compensated for any loss or damage that may have

3 The Pan American Convention Relating to Maritime been thereby sustained.

Neutrality of 1928 , 47 Stat. 1989, reads in relevant part as 5. The Treaty of Friendship, Commerce, and Navigation

follows: : Between the United States of America and Liberia of 1938, 54

Stat. 1739, reads in relevant parts as follows:

,

Belligerents to respects rghts of neutral Powers.

Article 1. Belligerents are bound to respect the sover-

eign rights of neutral Powers and to abstain, in

neutral territory or neutral waters, from any act

which would, if knowingly permitted by any Power,

constitute a violation of neutrality.

Section IV.—Fulfilment and Observance of the Laws

of Neutrality

Art. 27. A belligerent shall indemnify the damage

caused by its violations of the foregoing provisions. It

shall likewise be responsible for the acts of persons

who may belong to its armed forces.

ARTICLE I

The nationals of each High Contracting Party shall

enjoy freedom of access to the courts of justice of the

other on conforming to the local laws, as well as for

prosecution as for defense of their rights, and all

decrees of jurisdiction established by law.

The nationals of each High Contracting Party

shall receive within the territories of the other,

upon submitting to conditions imposed upon its

nationals, the most constant protection and security

for their persons and property, and shall enjoy n

4

this respect that degree of protection that is required

by international law. Their property shall not be

taken without due process of law and without pay-

ment of just compensation.

Statement of the Case

In 1977, United Carmers, Inc. (““United’’), owner of the oil

tanker HERCULES, time-chartered that vessel to Amerada Hess

Shipping Corporation (“Amerada Hess”’).’ The agreement be-

tween Amerada Hess and United contained a charter hire pay-

ment clause which provided that monthly payments to United

for the use of HERCULES were to be made in New York (A41).*

From the opening of the Trans-Alaska Pipeline System in

1977 until the incident which forms the basis of these actions,

HERCULES was continuously employed by Amerada Hess in the

United States domestic wade, carrying crude oil from Alaska

around the southern tip of South America to its refinery in the

U.S. Virgin Islands. The Liberian flag HERCULES was permitted

to sail in the coastwise trade of the United States—which is

otherwise restricted exclusively to American flag vessels by the

cabotage provisions of the Merchant Marine Act of 1920°—

under a narrow excepuon to the cabotage laws exempting trade

between ports of the United States Virgin Islands and ports of

the United States and its territories.°

* Amerada Hess Shipping Corporation, a Liberian corporation,

is a Subsidiary of Amerada Hess Corporation, incorporated in the

State of Delaware, United States.

United Carriers, Inc., is a privately held corporation organized

and exisung under the laws of the \_-~ of Liberia. United is a

subsidiary of one privately held foreign corporation, and is

affiliated with various foreign Pang yen all of which are

privately held. The shares of Um ts parent and affiliates are

not publicly waded.

* “A” refers to page references in the Joint Appendix on record

in the court of appeals.

» 46 U.S.C. § 883.

® 46 U.S.C. § 877. The peculiar status of Hercuces as a foreign-

flag vessel trading in domestic, interstate U.S. commerce was deter-

mined in American Mantime Ass'n v. Blumenthal, 590 F.2d 1156,

1158-1160, 1166-1168 (D.C. Cir. 1978), showing, for example, that

(footnote continued on following page)

7

)

HERCULES routinely transitted the South Atlantic’ where, in

Apmnil 1982, an armed conflict broke out between the Argentine

Republic (“Argentina”) and the United Kingdom which has

since become known as the Falklands/ Malvinas War. On May

25, 1982, Hercutes departed the Virgin Islands in ballast,

although fully fueled, an a return voyage to Alaska. On June 3,

1982, the United States Maritime Administration transmitted to

both the Argentine Republic and the United Kingdom a list of

United States flag ships and United States interest ships—

including Hercutes—which would be crossing the South

Auanuc, in an effort to ensure safe passage there for these

neutral merchant vessels (A60). During her voyage through the

South Atlanuc, HeRcULEs continued her usual practice of

keeping the United States Coast Guard informed of her course,

speed, cargo and destination through a radio station operated

by the Argentine government (A62, A67-68, A70, A77).

Without provocation or warning, on June 8, 1982, Argentine

military aircraft subjected the neutral HERCULEs to three separate

bombing strikes, at a point on the high seas well outside the

exclusion zones declared by the parties to the conflict.* Although

not destroyed, HERCULES suffered extensive damage from the

attacks, and later had to be scuttled due to the unreasonable

hazard involved in attempting to remove an undetonated bomb

lodged in one of her tanks. Amerada Hess suffered the loss of

$1,901 ,257.07 in fuel which went down with the vessel. United's

loss came to $10,000.00

Subsequent attempts by respondents to obtain redress in

Argentina for the loss of HeRcuLes were to no avail. Formal

(footnote continued from preceding page)

typically 83% of the refined products derived from HERCULES’ car-

goes was consumed in the continental United States, with the bal-

ance purchased directly by the U.S. government, at 1158 incl. n. 10.

’ The vessel's width precluded passage through the locks of the

Panama Canal.

* Shortly after the bombing, the Republic of Liberia sought

clarification of the incident from Argentina by diplomatic notes,

and a formal oral demarche regarding the unprovoked attack was

delivered to a senior official of the Argenune embassy in Washing-

ton by the U.S. Department of State (A131). Argentina never

responded to either of these communications.

6

demands for restituuon presented to the government of Presi-

dent Alfonsin were rejected. Leading Argentine law firms

approached by respondents, in turn, declined—evidently for

poliucal reasons—to pursue Amerada Hess’ and United's claims

against their government in the Argentine courts (A136-A216).

Unable to obtain so much as a hearing of their claims in

Argentina, on June 7, 1985, Amerada Hess and United brought

suit against the petitioner in the United States District Court

for the Southern District of New York. Respondents sought

damages in tort for the loss of the vessel and bunkers (ship's

fuel), and alleged that Argentina had violated international law

in attacking, without cause, the neutral merchant vessel HER-

CULES on the high seas, and thereafter in refusing to pay

compensation.

The jurisdiction of the district court was invoked under the

Alien Tort Statute, under the general admiralty and maritime

jurisdiction, and under the principle of universal jurisdiction

recognized in international law. Petitioner moved to dismiss

under F.R. Civ. P. 12(b) for lack of subject matter and personal

jurisdicuon, on the ground that FSIA was the sole source of

jurisdiction in all suits against foreign states, and that petitioner

was immune from suit under that act for the violations of

international law alleged by Amerada Hess and United.

The district court dismissed respondents’ complaints for lack

of subject-matter jurisdicuon. The court held that ‘‘a foreign

state is subject to jurisdiction in the courts of this country if,

and only if, an FSIA exception empowers the court to hear the

case” (Pet. App. 29a). In so holding, the court recognized that

its interpretation of FSIA narrowed the jurisdictional scope

encompassed by the language of the Alien Tort Statute (Pet.

App. 32a). To the district court it was “irrevelant that repeal by

implicauion is disfavored” since, in the court's view, the elimina-

tion of a class of defendants under the Alien Tort Statute

effected no repeal (Pet. App. 32a-33a). The court ruled that

respondents’ claims fell outside of “the exceptions to blanket

foreign sovereign immunity provided by the FSIA”’ (Pet. App.

30a), and further found that respondents could “claim no loss

whatsoever occurring in the United States” (2:7. ).

7

The court of appeals reversed, holding that the Alien Tort

Statute provides jurisdiction over respondents’ claims, and that

the FSIA does not bar it (Pet. App. 3a).°

The court initially examined whether the facts alleged by

respondents were sufficient to state a violation of international

law. Finding that the right of innocent neutral ships to free

passage on the high seas was recognized in a series of “‘inter-

national treaties and conventions dating at least as far back as

the last century,” that ‘‘federal courts have long recognized in a

variety of contexts that attacking a merchant ship without

warning or seizing a neutral’s goods on the high seas requires

restituuion,”’ and that the academic literature was similarly “of

one voice with regard to a neutral’s right of passage,”’ the court

concluded that it was “beyond controversy that attacking a

neutral ship in international waters, without proper cause for

suspicion or investigation, violates international law.”

The court next determined that respondents’ acuons met the

requirements for federal district court jurisdiction set forth in

the Alien Tort Statute. The court held that:

Although seldom employed, the Alien Tort Statute

means what it says. If an alien brings a suit, for a tort

only, that sufficiently alleges a violation of the law of

nations, then the district court has jurisdiction. See

Filartiga, 630 F.2d 876. All of these requirements are

met in the instant case. Appellants are aliens; they are

Liberian corporations. This suit is for a tort only—

the bombing of a ship without justification. Also. . .

the suit alleges a violation of international law. (Pet.

App. 7a-8a).

The court rejected petitioner's contention that the Alien Tort

Statute could only be invoked against individual defendants,

since Congress did not explicitly provide for jurisdicuon over

states and absolute sovereign immunity was recognized at the

time of its enactment. While expressing doubt as to whether

absolute sovereign immunity would have governed then under

* A dissenting opinion was filed by one member of the panel.

8

the circumstances of this case,'® the court held that the jurisdic-

tional grant of the Alien Tort Statute is to be construed accord-

ing to current standards of international law (Pet. App. 8a-9a).

The court found that modern international law does not

extend immunity to states for international law violations.

Noting, inter alia, such developments in this century as the

rejection of sovereign immunity defenses by the Nuremberg

wibunal and the emerging international law prohibition of

genocide, the court reasoned that, were the result otherwise,

. “the exception would nearly swallow the rule’ and inter-

national law, even in theory, would have little meaning (Pet.

App. 9a-10a). Having established that the sinking of a neutral

vessel on the high seas without justification violates a substan-

tive principle of international law for which there is no

immunity, the court held that the Alien Tort Statute provides

jurisdicuon over Argentina (Pet. App. 10a).

The court then addressed petitioner's argument that the

jurisdictionai grant of the Alien Tort Statute was preempted by

FSIA. While the court held that FSIA as a general rule is the

sole basis for United States jurisdiction over foreign states, it

found that the act’s principal goals—to restrict the rules of

immunity respecting the commercial activities of states, to

remove immunity decisions from the executive to the judicial

branch so as to ensure these decisions were made on purely

legal grounds, and to unify the rules of procedure relating to

suits against foreign states—did not evince an intent on the part

of Congress to extinguish existing remedies in United States

courts for violations of international law of the type alleged by

respondents (Pet. App. | la-13a).

Since Congress had expressed its intent to incorporate stand-

ards recognized under international law in its enactment of

FSIA, and moreover had left the Alien Tort Statute intact, the

court held that FSIA would not bar jurisdiction under the

unusual circumstances of this case (Pet. App. 13a). The court

‘© The court had earlier observed that “[wJhere the attacker has

refused to compensate the neutral, such action is akin to piracy,

one of the earliest recognized violations of international law’’ (Pet.

App. 7a).

9

found personal jurisdiction over Argentina was proper since,

inter alia, the act complained of was tortious injury to a vessel

plying the United States domestic trade pursuant to a contract

calling for payment in the United States, and the United States

government's direct communication to Argentina of its interest

in HERCULES’ safety was sufficient to put Argentina on notice

that it might be sued here. The court was further mindful of

considerations of fairness, since respondents had been denied an

Argenune forum in which to pursue their claims.

The court emphasized that its holding ‘is a narrow one,”

and that—

[ijt should also be noted that the burden on a

plainuff moving under the Alien Tort Statute remains

great. The class of actions that are recognized as

international law violations, as distinguished from a

mere tort, is quite small. Moreover the sovereign

defendant or its action must have sufficient contacts

to satisfy the constitutional requirements of personal

jurisdiction. And finally, the procedural requirements

of the FSIA, restricting execution of judgment for

example, see Letelier v. Republic of Chile, 748 F.2d

790 (2d Cir. 1984), cert. denied, 471 U.S. 1125, 105

S.Ct. 2656, 86 L.Ed. 2d 273 (1985) would still have to

be considered .. . .

The dissent did not address itself to the meaning of the Alien

Tort Statute, or to the question of immunity under inter-

national law for the actions complained of by respondents,

since it concluded that FSIA had foreclosed consideration of

respondents’ claims.

REASONS FOR DENYING THE WRIT

A. The decision below upholds the right of a neutral

ship to free passage on the high seas, and turns

squarely on peculiar facts unlikely to recur.

The decision below is important, not for the reasons stated

by petitioner, but as a contemporary reaffirmation of inter-

nauional law on the neutral’s mght of innocent passage in

10

modern warfare. The opinion carefully recites the overwhelming

precedent under both American and international law, codifying

and enforcing the neutral shipowner’s private nght under

international law to restitution for violation of the right of

innocent passage (Pet. App. 5a-7a). As Chief Judge Feinberg’s

opinion notes, “the relative paucity of cases litigating this

customary rule of international law underscores the long

standing nature of this aspect of freedom of the high seas.”

(Pet. App. 7a). Indeed, when neutral Argentine ships have been

sunk by a belligerent, petitioner has adamantly demanded,

and received, compensation. '!

It is plain that petitioner's acts in unlawfully attacking a

neutral ship on the high seas and then refusing the neutral a

forum or compensation are wide of the mark universally

accepted by states under international law. By diplomacy,

private arbitration, or prize courts, virtually all states meet their

compensauon obligations under international law.'? Argentina

has consistenly failed to respond to all attempts to resolve this

dispute, whether by diplomacy, negotiation or private arbitra-

uon. Argenuna’s responsibility for these high seas attacks on

the neutral HERCULES is not in issue. Even the United States

government admits that “Argentina should bear responsibility

for its actions chat are the subject of the instant litigation.”

(Brief for the United States as Amicus Curtae in Support of

Appellee’s Pettuon for Rehearing En Banc, filed September 29,

1987.) Further review by this Court of the neutral shipowner’s

right of innocent passage, one of the most ancient “norms” of

internauonal law, is not warranted.

‘! Argenuna demanded and received compensation from Ger-

many for the sinking of two neutral Argentine merchant ships on

the high seas by U-boats. New York Times, August 24, 1917, p. 1.,

and Scheina, Latin America, A Naval History—1810-1987 (1987),

pp. 101-102.

'? Recent non-prize cases show no waivering by foreign states

in their obligation to honor resutution claims of neutral ships.

In 1938, Japan paid $2,211,007 for restitution claims arising

from attacks by Japanese Navy aircraft on USS Panay and

three neutral American oil tankers under her escort. Stanley,

Prelude to Pearl Harbor (1965), n. 11 at 106); im 1944, the

(footnote continued on following page)

1]

The holding in this case rests on unique facts unlikely to

recur. The opinion below correctly recognized the special

facts of this case and properly described its holding as ‘‘a

narrow one.” (Pet. App. 15a) As noted previously, the lawful

participation of a foreign-flag ship like Hercues in U-S.

domestic trade derives from a 1920 anomaly created by Congress

in this nation’s cabotage laws for the U.S. Virgin Islands, 46

U.S.C. § 877. It was not until HercuLes’ maiden voyage

with Alaskan oil that this obscure statutory exception even

came to the attention of the courts. American Maritime Associa-

tion v. Blumenthal, 590 F.2d 1156 (D.C. Cir. 1978). The

statute’s express language makes its continued existence subject

to unilateral action by the President.'> Within the past three

months, the Commission on Merchant Marine and Defense

strongly recommended that the President consider closing the

U.S. Virgin Islands “‘loophole.”’ '* These first-of-their-kind

facts, involving a state attacking a foreign-flag ship in U.S.

domestic trade, and then refusing compensation or a forum, are

unlikely to recur. The statutory basis upon which the facts

arose, so crucial to the decision below, is exceedingly narrow.

(footnote continued from preceding page)

United States agreed to compensate the Soviet Union for damage

sustained to the neutral Russian tanker EMBA, attacked on the

high seas by a U.S. Army Air Force bomber. U.S. Government

Printing Office, Foreign Relations of the United States, Diplomatic

Papers, 1944, Vol. IV, at 990, 1031-1032; in 1987, an arbitration

panel in Switzerland awarded British owners of the Greenpeace

ship Rainsow Warrior $5,000,000 in compensation and $1,200,000

in aggravated damages against France for the sinking of the ship

by French frogmen, Oct. 2, 1987, United Press International; and

in 1988, Iraq agreed to compensate the U.S. Government and

survivors of the USS Stark, The New York Times, January 31,

1988, p. 9.

'S “[T]}he coastwise laws of the United States shall not extend

to the Virgin Islands of the United States until the President of the

United States shall, by proclamation, declare that such laws shall

extend to the Virgin Islands . . . . ’’ 46 U.S.C § 877.

'* The Second Report of The Commission on Merchant Marine

and Defense: Recommendations, December 31, 1987, pp. 2 and

20-21. Pursuant to P.L. 98-525, the Commission was established to

report to the President and Congress on strengthening maritime

transportation in a national emergency.

1?

Foreign-flag shipping participation in U.S. domestic trade is by

statute small and may be terminated at any time by either the

President or Congress. The singular statutory framework giving

rise to the facts in this case, when combined with petitioner's

equally aberrant conduct in refusing to provide the injured neu-

tral either a forum or compensation, highlight the unique char-

acter of this case and the unlikelihood of further cases of its kind.'°

B. The “conflicts” alleged by petitioner do not warrant

review by this Court.

Contrary to petitioner’s assertion that the decision below was

rendered ‘in total disregard’’ of FSIA (Pet. 10), the court of

appeals examined fully the purpose and provisions of that act,

and in considering its effect on the Alien Tort Statute arrived at

a result in this case which is consonant with international law

and with long-standing principles of statutory construction.

It is axiomatic that repeals by implication are not favored,

Rodrigues v. United States, 480 U.S. ——, 108 S.Ct. __, 94

L.Ed.2d 533, 536 (1987). Absent Congressional intent to repeal

which is “clear and manifest,’ where two statutes are capable of

co-existence it is the duty of the courts to regard each as effective,

Radzanower v. Touche Ross & Co., 426 U.S. 148, 155-158 (1976).

Moreover, it has long been settled that “an act of Congress ought

never to be construed to violate the law of mations, if any other

possible construction remains,” The Charming Betsey, 6 U.S.

(2 Cranch) 64, 116 (1804) (Marshall, C.].).

There is no mention of the Alien Tort Statute in FSIA, and

the court of appeals in a close examination of the legislative

history of that act found no intention on the part of Congress

to remove existing remedies'® in United States courts for

'S This Court’s own experience in decidis = duestions of a neuwal

shipowner’s right to restitution against a foreign state is illustrative

of the infrequency of these disputes in U.S. courts. The last case

decided by this Court was The Steamship Appam, 243 U.S. 124

(1917).

16 See 1 Op. Atty Gen 57-59 (179); Martins v. Ballard, 16 F. Cas.

923 (D.S.C. 1794) (No. 9,175). The Supreme Court has also recog-

nized in O’Reilly de Camara v. Brooke, 209 U.S. 45, 50 (1908),

that jurisdiction under the Alien Tort Statute “depends upon the

(footnote continued on following page)

13

international law violations of the type presented by this case.

Since a principal purpose of FSIA is to restrict immunity with

regard to commercial activities, the court correctly reasoned that

“it would be odd to hold that, by enacting a statute designed to

narrow the scope of sovereign immunity in the commercial

context, Congress, though silent on the subject, intended to

broaden the scope of sovereign immunity for violations of

international law” (Pet. App. 12a). As current international law

denies immunity for such violations, the court declined to

arrive at an interpretation of FSIA which would bring it into

conflict with international law in the absence of clear Congres-

sional intent. Rather than adopting an interpretation of FSIA

which would effect an implied repeal of the Alien Tort Statute,

the court reconciled the jurisdictional provisions of these two

statutes in a manner consistent with the immunity rules of

current international law.'? As the court of appeals acknowl-

edged (Pet. App. 16a), if Congress wishes to amend the Alien

Tort Statute, it may do so, but it is not the province of the

judiciary to rewrite the plain language of a statute, United

States v. Great Northern Railway Co., 343 U.S. 562, 575 (1957).

Respondents argued below that the result in this case is also

proper under § 1605(a)(5) of FSLA. Under § 1603(c) of FSIA, the

term “United States’’ includes ‘‘all territory and waters, conti-

nental and insular, subject to the jurisdiction of the United

States” (emphasis added). The attack on HERCULES took place

on the high seas, “waters . . . subject to the jurisdiction of the

United States” For example, in The Plymouth, 70 U.S. (3

Wall.) 20, 36 (1865), the Supreme Court defined tort jurisdiction

in admiralty as follows:

(footnote continued from preceding page)

establishment of a ‘tort only in violation of the law of nations or a

treaty of the United States,’ ’’ elements the plaintiff was unable to

establish in that case.

‘7 The Ninth Circuit has also recognized that exceptions to

immunity in FSIA are “based upon the general presumption that

states abide by international law and, hence, violations of inter-

national law are not ‘sovereign’ acts,"” West v. Multibanco Comer-

mex, 807 F.2d 820, 826 (9th Cir. 1987), cert. denied, 55 U.S.L.W.

3807 (1987) (emphasis added).

l4

‘Every species of tort, however occurring, and whether

onboard a vessel or not, if upon high seas or navigable

waters, is of admiralty cognizance.” (Emphasis added)'*

Under 28 U.S.C. § 1603(c), therefore, the tortious attack on

HERCULES occured within the “United States.” The loss of

charter hire payments due to United in New York satisfies the

statute's requirement of an “injury occurring within the United

States,"” as does the disruption to Amerada Hess’ American

refining operations caused by the loss of use of the vessel.

Accordingly, since both the tort and the injury occurred within

the United States, jurisdiction may be found over Argentina

under 1605(a)(5). See Brief of the Republic of Liberia as Amicus

Curiae, dated September 10, 1987 (App. la). The issue of 1605

(a)(5) jurisdiction was not reached by the court of appeals, and

would remain for determination on remand (Pet. App. 17a, n. 3).

There is no “conflict” engendered by the court of appeals’

assertion of personal jurisdiction over Argentina. The court’s

consideration of fairness in its decision to exercise jurisdiction 1s

entirely appropriate, since principles of equity are common to

both federal common law and international law, First National

City Bank v. Banco Para El Com., 462 U.S. 611 (1983). Petitioner's

argument that it is only the defendant’s contacts with the forum

which are relevant to an assertion of personal jurisdiction is

erroneous. Personal jurisdiction may be based upon the effects

which a defendant's actions have caused within the forum, Calder

uv. Jones, 465 U.S. 783 (1984). The action of Argentina in attacking

the neutral HERCULES was directed against a vessel in the United

States domestic trade, and resulted in the disrupuon of contractual

payments due in the United States. The effect of Argentina’s

attack was to cause injury within the United States; the fact that

the attack itself occurred on the high seas does not prevent a

United States court from exercising jurisdiction over a cause of

action arising out of that injury. /d. at 787-790.

'8§ This was modified in Executive Jet Aviation Co. v. Cleveland,

409 U.S. 249 (1972) to “require also that the wrong bear a significant

relationship to traditional maritime activity.” Jd. at 268.

15

Subsection (2)(k) of § 421 of the Restatement of Foreign

Relations Law of the United States (Tent. Draft No. 6, April 12,

1985) (“‘Revised Restatement’’) recognizes a similar ‘‘effects’’

test with respect to jurisdiction to adjudicate under inter-

national law. Moreover, comment (a) to § 404 of the Revised

Restatement, entitled “Universal Jurisdiction to Define and

Punish Selected Offenses’ makes it clear that universal jurisdic-

tion is also recognized in “the corresponding section concerning

jurisdiction to adjudicate (§ 423).”’ § 423 is concerned with the

jurisdiction of states ‘‘to adjudicate in aid of universal and

other non-territorial crimes.’’ Comment (b) to § 404 makes it

clear that universal jurisdiction may extend to civil cases. The

principle of universality is plainly applicable, to both jurisdic-

tion to prescribe and jurisdiction to adjudicate.

The decision of the court of appeals does not ‘‘conflict’”’ with

the decision in Verlinden B. V. v. Central Bank of Nigeria, 461

U.S. 480 (1983), nor does it ‘“‘conflict’”’ with any decision in the

circuit courts. Verlinden examined FSIA to determine its

constitutionality. The question of jurisdiction under the Alien

Tort Statute is not presented in that case, any more than it is

presented in any of the circuit court decisions relied on by

petitioner.'? There has been no other decision in any circuit

court as to the effect of these two statutes where a claim of

violation of international law is asserted against a foreign

state. That issue has been decided in only three cases in the

district courts, ail of which concerned injuries alleged to

have occurred within the territory of a foreign state.?° In

'§ Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir.

1984), cert. denied, 470 U.S. 1003 (1985) (Pet. 15, n. 5) involved alleged

acts of terrorism, a subject as to which there is no international

consensus. Although differing as to rationale, the panel held that

jurisdiction had not been established under the Alien Tort Statute,

and further that the action was time-barred. The references to FSIA

in two of the concurrences are therefore dicta.

20 Von Dardel v. U.S.S.R., 623 F. Supp. 246 (D.D.C. 1985)

(finding jurisdiction over the Soviet Union for violation of

(footnote continued on following page)

16

contrast, the decision below involves an injury occurming on the

high seas, where the act-of-state doctrine does not apply, as well .

as the violation of principles which have been the subject of

consensus among nations since ancient times. Respondents are

aware of no similar case in any court, and the holding below,

which is tied to singular facts, is too narrow to warrant review

by the Court on certiorari.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Douc.tas R. BuRNF T RAYMOND J. BURKE, JR.

Counsel of Recora Counsel of Record

Hiii, Rivkins, Carey, BurRKE & PARSONS

LOESBERG, O'BRIEN Attorneys for Respondent

& MULROY UniTep Carriers, INC.

Attorneys for 1114 Avenue of the Americas

Respondent New York, New York 10036

AMERADA HEss SHIPPING (212) 354-3800

CORPORATION Frances C. Peters

21 West Street Of Counsel

New York, New York 10006

(212) 825-1000

RICHARD H. WEBBER

Of Counsel

(footnote continued from preceding page)

diplomatic immunity); contra, In Re Korean Airlines Disaster of

September 1, 1983, 597 F. Supp. 613 (D.D.C. 1984) and Siderman v.

Republic of Argentina, No. CV 82-1772-RMT (C.D. Cal., March 7,

1985). Further proceedings are pending in Von Dardel and Siderman.

~t

APPENDIX

la

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

6-7602,03

IN THE

United States Court of Appeals

For THE SECOND JupiciaL Ciacur

AMERADA HESS SHIPPING CORPORATION,

Appellant,

Vv.

ARGENTINE REPUBLIC,

Appellee.

85 CIV 4365 (RLC)

UNITED CARRIERS, INC.,

Appellant,

Vv.

ARGENTINE REPUBLIC,

Appellee.

85 CIV 4378 (RLC)

BRIEF OF THE REPUBLIC OF LIBERIA

AS AMICUS CURIAE

Frank L. Wiswaxt, Jr,

Counsel for The Republic of

Liberia as amicus curiae

11870-D Sunnse Valley Drive

Reston, Virginia 22091-3303

(703) 620-6780

2a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

INDEX

en ee Reems

I IU cnccnnssressesessenscsssssccscsescersssssserecsccsssensesesnesees

SD FID ccrcncsseessenssenssenennsssnseessenenneeen

ey I ccennsssneremenseennmennen

PD BP FING cemncerscsssecnsnsenssscsesasssesserssemssecnesneces

i iertienmeneneemmmemen

Ge RE emeenenennn

ARGUMENT:

I. The Treaty of Fnendship, Commerce and Navi-

gation Between the United States and Libena

guarantees to the Plainuffs-Appellants a Right of

Access to the Courts of the United States Equal to

That of Citizens of the United States ......................

II. The Republic of Argentina Enjoys no Immunity

CD CET crnncrensesusnresnesenrieneerenpncertes

Il. Plainuffs have no Alternative Forum .....................

A EE RC

lacie

3a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

*

Tabie of Authorities

CASES:

Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2

Cir. 1978)..

McAllister v. United States, 348 U.S. 19 (1954)..........

The Nordic Regent (Alcoa S.S. Co., Inc. v. m/v

Nordic Regent), 654 F.2d 147, 1980 AMC 309 (2

8

BDES ) .cccccecereseeccessscscescsssssevsssnssssuscsuessscssssssessscsssoooooess

STATUTES:

54 Stat. 1739

Treaty of Friendship, Commerce and Navigaton

Between the United States and Liberna. Signed at

Monrovia, August 8, 1938 .............ccccccccceeeseeneeeneeeesees

Title 5 of the Liberian Code of Laws Revised,

Chapter 2 [The Liberian Business Corporation Act

6 |

iH

www ns wd

> >

4a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

APPEAL NOS. 86-7602, 03

IN THE

United States Court of Appeals

For THE SECOND JupiciaL CiracurtT

AMERADA HESS SHIPPING CORPORATION,

Appellant,

Vv.

ARGENTINE REPUBLIC,

Appellee.

85 CIV 4365 (RLC)

UNrITED CARRIERS, INC..,

Appellant,

Vv.

ARGENTINE REPUBLIC,

Appellee.

85 CIV 4378 (RLC)

BRIEF OF THE REPUBLIC OF LIBERIA

AS AMICUS CURIAE

Opinion Below

The Memorandum and Order of the United States Distnect

Court for the Southern Distnct of New York is set forth in the

jount Appendix to the Bnefs, A. 541-53.

5a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

2

Questions Presented

(1) Whether the Treaty of Friendship, Commerce and

Navigation between the United States and Liberia grants to

appellants standing to litigate their claims in the Courts of the

United States.

(II) Whether the District Court erred in dismissing appel-

lants’ complaints.

Treaty Provisions Involved

TREATY OF FRIENDSHIP, COMMERCE

AND NAVIGATION

BETWEEN

THE UNITED STATES AND LIBERIA.

SIGNED AT MONROVIA, AUGUST 8, 1938

(54 STAT. 1739, T.S. NO. 956).

ARTICLE I

The nationals of each High Contracting Party shall enjoy

freedom of access to the courts of justice of the other on

conforming to the local laws, as well for the prosecution as for

the defense of their nghts, and in all degrees of junsdiction

established by law.

The nationals of each High Contracting Party shall receive

within the territones of the other, upon submitting to conditions

imposed upon its nationals, the most constant protection and

security for their persons and property, and shall enjoy in this

respect that degree of protection that is required by inter-

national law. Their property shall not be taken without due

process of law and without payment of just compensation.

6a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

3

ARTICLE VII

Between the territories of the High Contracting Parties

there shall be freedom of commerce and navigation. The

nationals of each of the High Contracting Parties equally with

those of the most-favored nation, shall have liberty freely to

come with their vessels and cargoes to all places, ports and

waters of every kind within the territorial limits of the other

which are or may be open to foreign commerce and navigation.

ARTICLE XVI

Merchant vessels and other privately owned vessels under

the flag of either of the High Contracting Parties shall be

permitted to discharge portions of cargoes at any port open to

foreign commerce in the territories of the other High Con-

tracting Party, and to proceed with the remaining portions of

such cargoes to any other ports of the same territones open to

foreign commerce, without paying other or higher tonnage dues

or port charges in such cases than would be paid by national

vessels in like circumstances, and they shall be permitted to

load in like manner at different ports in.the same voyage

outward, provided, however, that the coasting trade of the High

Contracting Parties is exempt from the provisions of this Article

and from the other provisions of this Treaty, and is to be

regulated according to the laws of each High Contracting Party

in relation thereto. It is agreed, however, that nationals and

vessels of either High Contracting Party shall within the

territones of the other enjoy with respect to the coasting trade

most-favored-nation treatment.

ARTICLE XVII

Limited liability and other corporations and associations,

whether or not for pecumiary profit, which have been or may

hereafter be organized in accordance with and under the laws,

Nauonal, State or Provincial, of either High Contracting Party

7a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

4

and which maintain a central office within the territories

thereof, shall have their juridical status recognized by the other

High Contracting Party provided that they pursue no aims

within its territories contrary to its laws. They shall enjoy free

access to the courts of law and equity, on conforming to the

laws regulating the matter, as well for the prosecution as for the

defense of rights in all the degrees of jurisdiction established by

law.

Foreign Law Involved

LIBERIAN CODE OF LAWS REVISED

TITLE 5: ASSOCIATIONS LAW

PART I: BUSINESS CORPORATIONS

[The Liberian Business Corporation Act of 1976]

CHAPTER 2 CORPORATE PURPOSES AND POWERS

§ 25 Effect of incorporation: corporation as proper party to

action

A corporation is a legal entity, considered in law as a

fictional person distinct from its shareholders or members, and

with separate nghts and liabiliues. The corporation is a proper

plainuff in a suit to assert a legal right of the corporation and a

proper defendant in a suit to assert a legal nght against the

corporation; ....

8a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

5

CHAPTER 3. SERVICE OF PROCESS;

REGISTERED AGENT

§ 3.1. Registered agent for service of process.

1. Registered agent. Every domestic corporation or

foreign corporation authorized to do business in Libera or

foreign maritime trust or foreign maritime corporation regis-

tered under the provisions of section 13.1 shall designate a

registered agent in Liberia upon whom process against such

corporation or any notice or demand required or permitted by

law to be served may be served. The agent for a corporation

having a place of business in Libera shall be a resident

domestic corporation having a place of business in Libena or a

natural person, resident of and having a business address in

Liberia. The registered agent for a domestic or foreign

corporation not having a place of business in Libera or for a

foreign maritime trust or corporation shall be a domestic bank

or trust company with a paid in capital of not less than $50,000,

which is authorized by the Legislature of the Republic to act as

registered agent for such corporations or trusts. A domestic

corporation, authorized foreign corporation, foreign manume

trust or foreign maritime corporation whuch fails to maintain a

registered agent shall be dissolved or its authonty to do

business or registration shall be revoked, as the case may be, in

accordance with sections 11.3, 12.7 or 13.4.

Statement of the Case

Amicus adopts the Statement set forth in the joint Bnef of

Appellants. Summary of Argument

The law of the United States grants by Treaty a nght to

appellants to litigate their claims in the Courts of the United

States. Jurisdiction lies under both the Alien Tort Statute and

the Foreign Sovereign Immunities Act because appellants’

losses occurred in part within the United States, and appellee

enjoys no sovereign immunity from suit in this matter. There ts

no alternative forum open to appellants, and the Distnct Court

erred in dismissing their complaints.

Ya

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

6

ARGUMENT

I. The Treaty of Friendship, Commerce and Navigation Be-

tween the United States and Liberia guarantees to the

Piaintiffs-Appellants a Right of Access to the Courts of the

United States Equal to That of Citizens of the United

States.

The Treaty of Fnendship, Commerce and Navigation

between the United States and Liberia (FCN Treaty) of 1938,

54 Stat. 1739, T.S. No. 956, guarantees generally in Anicle I

(supra p. 2) “freedom of access to the courts of justice” by

Liberian nationals seeking redress in the United Siates.'

The Court below recognized the juridical status of appel-

lants, finding as a fact that they are Libenan corporations (A.

543). Amicus confirms that this is so, and that both are

corporate nationals in good standing. Of course, both appel-

lants have the capacity to sue and be sued. See § 2.5 of the

Liberian Business Corporation Act, supra, p. 4.

The law of this Court with regard to standing to sue under

such clauses as the omes in the present FCN Treaty was

declared most clearly in The Nordic Regent (Alcoa S.S. Co.,

Inc. v. m/v Nordic Regent), 654 F.2d 147, 1980 AMC 309 (2

Cir., 1980), cert. den. 449 U.S. 890 ( 1980), where in writing for

a majonty of the entire Circuit bench and commenting upon

Farmanfarmaian v. Guif Oil Corp. 588 F.2d 880 (2 Cir., 1978),

Judge Timbers noted that with regard to the standard FCN

Treaty phrase “access to the courts”: “Such access would have

' By Article XVII of the FCN Treaty (supra p. 3), this nght is made

more specific with regard to Libenan corporations doing business in ‘he

United States, to wit “They shail enjoy free access to the courts of law and

equity, on conforming to the laws reguiaung the matter, as well as for the

prosecution as for the defense of mghts im ail the degrees of junsdicuon

established by law.” While Arucie XVII is clearly intended to address the

conduct of business of corporauons of one Party within the terntory of the

other Party, it may be argued that the jumsdicuon clause of Arucie XVII 1s

applicable to this case. If so, then these corporate nauonais have aiso sausned

the requirement of maintaining a “central office” by complying with § 3.1 of

the Libenan Business Corporation Act ( supra, p. 5), and both have appointed

The Internauonai Trust Company of Libena as Registered Agent in Libena.

10a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

-

little value if the door that admits is a revolving one.” 654 F.2d

147, 153, 1980 AMC 309, 318, fn. 6. Such nght of access is, of

course, independent of the grounds upon which relief is sought,

and the appellants must bring a cognizable cause of action

against a suable defendant.

Amerada Hess Oil Corporation and United Carmers, Inc.

stand before the Courts of the United States in the shoes of

American citizens for purposes of asserting their claims. The

basic question therefore becomes that of jumsdicuon over

defendant-appellee, the Republic of Argentuna.

Il. The Republic of Argentina Enjoys no Immunity from Suit

in this Matter.

A. The Alien Tort Statute:

Plaintiffs-appellants have invoked the Alien Tort Statute,

28 U.S.C. 1350: “The district courts shall have onginal junsidic-

tion of any civil action by an alien for a tort only, commutted in

violation of the law of nations or a treaty of the United States.”

(Emphasis supplied.) The U.S.-Libena FCN Treaty provides

that: “The nationals of each High Contracting Party shall

receive within the territones of the other, upon submuttung to

conditions imposed upon its nationals, the most constant

protection and secunty for their persons and property, and

shall enjoy in this respect that degree of protection that is

required by international law.” ( Arucie |, supra, p. 2; emphasis

supplied. )

The significance of these words to aymicus is that “any civil

action” grants junsdiction notwithstanding the Foreign Sover-

eign Immunities Act ( FSIA), 28 U.S.C. §§ 1330, 1602 er seq.,

where the tort committed is “in violation of the law of nations”,

and this was the conclusion reached in Van Darde/ v. U.S.S.R.,

623 F. Supp. 246 (D.D.C. 1985). The Alien Tort Statute does

not require that the tort be committed within the United States,

nor does the FCN Treaty require that the property which 1s the

subject of protection be located within the United States. What

the FCN Treaty does require is that appellants receive within

the United States “that degree of protection that is required by

internauonail law” for their property capabie of protection 5x

lla

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

8

the United States, which must certainly include -he nghts of

appellants in and to their property. It is the violation of

international !aw which resulted in the destruction of appel-

lamts’ property that is at issue, and appellants have brought

their claims within the United States upon their nights to their

destroyed property.

These alien appellants seek the protection of their property

nights in the Courts of the United States, alleging deprivation by

a tort commutted in violation of the law of nations. The law of

the United States, as expressed in the Alien Tort Statute and the

FCN Treaty, entitles appellants to their day in the District

Court of the United States.

B. The Foreign Sovereign Immunities Act:

The Court below took the FSIA as controlling in this

matter, and granted appeilee’s motion to dismiss on grounds

that appellants had made out none of the exceptions to

immunity in 28 U.S.C. §§ 1605-1607. The District Court found

as a fact that “these Liberian plaintiffs... can claim no loss

whatsoever occurring in the United States.” (A. 548.) But in

the same paragraph the Court below noted that the language of

§ 1605(a) has been given broad interpretation in deciding the

issue of jurisdiction. (A. 547-48.)

The record before this Court shows by uncontradicted

evidence that both appeilants suffered losses of property within

the United States.

The District Court found as a fact that the HERCULES

was engaged under ume charter in a routine trade between two

ports of the United States. (A. 543.) The HERCULES was

carrying out this domestic U.S. port-to-port trade under Armucies

VII and XVI of the FCN Treaty ( supra, p. 3).

Appellant United Carners, Inc., owner of the HERCULES,

suffered the loss of their vessel while she was employed in the

U.S. domestic trade, and amicus submits that this is properly

regarded as the loss of a property mght occurmng in the United

States. Even more directly, the owner suffered loss of the U.S.

charter hire, payable in U.S. doilars in the United States. This

appears from Plainnuffs’ Exhibit |A, ( A. 42), which the Cour

l2a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

9

below was bound to accept as proven fact for purposes of ruling

upon the Motion to Dismiss, but which was ignored by the

Court.

As to appellant Amerada Hess Shipping Corporauon, their

loss was not only the bunkers aboard the vessel, which were

sold and delivered within the United States, but also the

frustration of the charterparty which caused them to lose their

right to the use of the vessel in the U.S. domesuic trade.

Amicus does not see how it is possible to characterize these

losses otherwise than as occurring in the United States, and

submits that the decision of the District Court was clearly

erroneous in finding that “no loss whatsoever” occurred in the

United States. McAllister v. United States, 348 U.S. 19 (1954).

Both the loss to her owner of future earnings from the

HERCULES and the loss to her charterer of future use of the

vessel, while not quantified as separate elements of the dam-

ages, are losses from the same operative cause and are sufficient

to vest jurisdiction under the FSIA, 28 U.S.C. § 1605(a)(5).

Ill. Plaintiffs have no Alternative Forum.

The District Court, in granting appellee’s Motion to Dis-

miss, had no occasion to address the issue of forum non

conveniens. But the record makes amply clear the total absence

of any forum in Argentina or of any mutual agreement upon

any other forum. There are no known assets of defendant-

appellee in Liberia, rendering meaningless any suit in this

matter in the Liberian Courts even before the quesuon of

jurisdiction anses. The only forum with both jumsdicuon and

the ability to grant relief is the United States Distnct Court.

While it would be for the Distnmct Court on remand to

consider the issue of forum non conveniens under either the

Alien Tort Statute and/or the FSIA, this Court is already aware

on the record before it that affirmance of the Distnct Court’s

decision will leave plainuffs-appellees without recourse to jus-

tice in amy forum. That, amicus submits, is an element of

fundamental importance which it ts proper for this Court to

bear in mind on the disposition of this appeal.

l3a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

10

CONCLUSION

/

Amicus submits that junsdicuon over defendant-appellee

lies under the Alien Tort Statute without regard to the FSIA,

but that the FSIA may be properly applied as well because both

appellants seek money damages for losses of property occurnng

in the United States and caused by the tortious act of appellee.

Where no other forum is available which can offer any

relief to appellants, and where the U.S.-Liberia FCN Treaty

guarantees their free access to the Courts of the United States,

the matter in question is an appropmate one for determination

on the merits by the United States District Court for the

Southern District of New York.

The Order of Dismissal below should be vacated, and

these cases remanded to the District Court for trial on the

merits.

Dated September 10, 1986

Respectfully submutted,

Frank L. WISWALL, Jr.,

Counsel for The Republic of

Liberia as amicus curiae

11870-D Sunrise Valley Drive

Reston, Virginia 22091-3303

( 703) 620-6780

Michae! Davies-Sekle, on the Bnef

l4a

Brief of the Republic of Liberia as Amicus Curiae

in the U.S. Court of Appeals for the Second Circuit

11

Certificate of Service

I hereby certify that on this 10th day of September, 1986,

two copies of the within Bnef amicus curiae were mailed,

postage prepaid, to each Counsel for the parties listed below. |

further certify that, as of this date, all parties required to be

served have been served.

FRANK L. WIswa Lt, Jr.,

Counsel for The Republic of

Libena as amicus curiae

11870-D Sunrise Valley Dnve

Reston, Virginia 22091-3303

(703) 620-6780

Counsel for Appellant Amerada Hess Shipping Corporation:

RICHARD H. Wesser, Esquire

Hill, Rivkins, Carey, Loesberg,

O’Bnen & Mulroy

21 West Street

New York, New York 10006

Counsel for Appellant United Carriers, Inc.:

RAYMOND J. Burke, Jr., Esquire

Burke & Parsons

1114 Avenue of the Amenicas

New York, New York 10036

Counsel for Appellee:

Bruno A. Rustau, Esquire

Kaplan, Russin & Vecchi

1218 16th Street, N.W.

Washington, D.C. 20036

ANTHONY E. Davis, Esquire

Kaplan, Russin, Vecchi & Kirkwood

28 West 44th Street

New York, New York 10036