Amicus Curiae Brief — Argentine Republic v. Amerada Hess Shipping Corp.

No. 87-1372

IN THE

Supreme Court of the United States

OcToser Term, 1987

AUG 2 5 1988

ARGENTINE REPUBLIC.

Petitioner.

We

AMERADA Hess SHIPPING CORPORATION

and

UNiTep CARRIers. INC..

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND JUDICIAL CIRCUIT

MOTION FOR LEAVE TO FILE A BRIEF AS

AMICUS CURIAE

and

BRIEF FOR THE REPUBLIC OF LIBERIA AS

AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

FRANK L. Wiswatt. Jr

Counsel for the

Republic of Liberia

11870-D Sunrise Valley Drive

Reston, Virginia 22091-3303

(703) 620-6780

——_ — —_——__

— ———_—_S_=_———

oe

TABLE OF CONTENTS

Page

, 0 ii

Motion of the Republic of Liberia for leave to file a

iE l

Brief of the Republic of Liberia as amicus curiae....... 3

eT 3

Constitutional Provisions Involved ........................00+. 4

ee nD Ge cerermsnesscnssnsncnssssnsneneesenssssnee 4

ETE 6

ee 7

carrera trerenetnennnnenetmmennnes 8

ee Ge CR ene 9

ARGUMENT:

I. The Treaty of Friendship, Commerce and

Navigation between the United States and

Liberia tees to Respondents stand-

ing equal to that of Citizens of the United -

ee

Il. Application of the Alien Tort Statute to

the instant case is consistent with mari-

time international law..........................00« 15

III. Petitioner enjoys no immunity from suit

SE aE 17

(a) The Alien Tort Statute .............ccc0000« 17

(b) The Foreign Sovereign Immunities Act 19

IV. Respondents have no alternative forum.. 27

TABLE OF AUTHORITIES

CASES:

The Amiable Nancy, 16 U.S. (3 Wheat.) 546 (1818)

Asakura v. Seattle, 265 U.S. 332 (1924) ...ccccccccecccnee

The Bello Corrunes, 19 U.S. (6 Wheat.) 153 (1821)

DeLovio v. Boit, 7 F. Cas. 418 (No. 3776) (C.C.

MASS. 1815) censor ae

Dennis v. Liberia, | Liberian L.R. 323 (1898) ........

The Estrella, 17 U.S. (4 Wheat.) 298 (1819) ...........

Farmanfarmaian v. Gulf Oil Corp., 589 F.2d 880

aCe. ee ee

Glass v. The Betsey, 3 U.S. (3 Dall.) 6 (1794)..........

Jennings v. Carson, 8 U.S. (4 Cranch) 2 (1807)......

L Invincible, 14 U.S. (1 Wheat.) 238 (1816)............

The Marianna Flora, 24 U.S. (11 Wheat.) 1 (1826)

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

Montgomery v. Henry, 1 U.S. (1 Dall.) 149 (1790).

Murray v. Schooner Charming Betsy, 6 U

Cranch) 64 (1804) ............. _ muapennenenmenanede = Ss

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

ney ie es 654 F.2d 147, 1980 AMC 309

BB. BF 7G) 22.2c.cecesececocececeresevenecstseneasenenssnennsnesn

Penhallow v. Doane's Administrators, 3 U

ol} ), Ee - haa

7” ae Trinidad, 20 U.S. (7 Wheat.) 183

Schooner Excha . M’Faddon, 11 7

Talbot v. Commanders and Owners of Three Brigs,

1 U.S. (1 Dall.) 95 (1 oo mmeneninneedien

The Tubantia, [1924] P. 78, 18 L1.L.R. 158 (1924)

Tucker v. Alexandroff, \83 U.S. 424 (1901) ............

CONSTITUTION:

Article I, Section 8, Clause 10 oo... cccccccccccccceees

Article II], Section 2, Clause 1 oo... cccccccccccceceecceceee

17

25

19-20

13-14

21-22

4,10,18

4.9.19,

22-24,28

—

TREATIES:

of Friendship, Commerce and Navigation

ig ~ 5h the United States and Liberia. Signed

at Monrovia, August 8, 1938 ............scsseeseereeeees

Asticte VII ...cccccccccocccccccsccscsscocecccsccccccccscnecssssssseees

Aathee KV A .cccoccccccccccccccccccccccscsccscccscccccccsssccccsscocses

Agtiete KV ID ..cccccccccccccscccsssccecccsccocccccccccccssssssococees

Geneva Convention on the High Seas, 1958,

Article 23(7) ......-esccccsssccccsessseerseeesssssssecsssssnsssrenees

United Nations Convention on the Law of the Sea,

19B2......cccccccscceserssccsssevccccceescesscessserscesccccsonssonseesses

STATUTES:

Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 77....... se

28 U.S.C. § 1333 (Admiralty, maritime and prize

28 U.S.C. § 1333 (2)...ccccecseeeereerssrsneesessrsersersennsensees

28 U.S.C. § 1350 (Alien Tort Statute) ..........--0+-0+++

ion Sovereign Immunities Act of 1976, Publ.

ForeRo. 94.583" 5 90 Stat. 2891 (28 U.S.C. §§ 1330,

1602 Cf SOG.)...cc.ssccssseccsssserseereesssesssscessssnseseceneeens

28 U.S.C. § 1602 ......ccccccereereerseessereseeserssnssenserssnnenes

28 U.S.C. § 1605(a)(3) ....-.-cceeserseeesersencnrsersersnenennsees

28 U.S.C. § 1605(a)(5S) .....-ececeeceerseeeeencersererereeensensens

28 U.S.C. § 1605(D).......ceceeceeesseeeerserserseesenssneenssnees

28 U.S.C. § 1605-1607 ......cccececseseeeerserssnserseeseneseees

15,17-19,

6-7,11,19,

21,25,27

6,25

19

iv

Title 5 of the Liberian Code of Laws Revised

[The Liberian Business Corporation Act of 1976]

ST Bi, We ee cccstiticernienssatbiinentermcacicecsninatainsnemcese

Title 22 of the Liberian Code of Laws of 1956

[The Liberian Maritime Law] .................c.0ccc000.

SE ie EIEN li icsteisuietiernenasencensstasteieiiennsnntenesens

MISCELLANEOUS:

Benedict on Admiralty (7th ed. rev. 1985)...............

BROwNE, Compendious View of the Civil Law and

the Law of the Admiralty, (1802) ...........cccc.eeeceeeee

Immunities of Foreign States: Hearing on H.R. 3493

Before the Subcomm. on Claims and Governmen-

tal Relations of the House Comm. on the Judi-

ciary, 93rd Cong., Ist Sess. (1973) ........cccccccceeeeeee

Maopison, The Federalist No. 42 (1788) .........cc..e0-.

O’CONNELL, The International Law of the Sea (1984)

Story, Commentaries on the Constitution of the

United States (5th ed. 1891)......cccccccccccsesccceeeesecees

15,23

IN THE

Supreme Court of the United States

OcTOBER TERM, 1987

No. 87-1372

ARGENTINE REPUBLIC,

Petitioner,

Nh

AMERADA HeEss SHIPPING CORPORATION

and

UNITED CARRIERS, INC.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND JUDICIAL CIRCUIT

MOTION OF THE REPUBLIC OF LIBERIA

FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE

The Republic of Liberia hereby respectfully moves the

Court for leave to file the within brief as amicus curiae in the

matter captioned above. Counsel for Respondents Amerada

Hess Shipping Corporation and United Carriers, Inc. have

consented to the filing of the brief; Counsel for Petitioner

Argentine Republic has not consented.

This case arises directly under the Constitutional grant

of admiralty and maritime jurisdiction, including jurisdiction

in prize and neutrality cases. Liberia is the neutral State in the

present case, which puts before the Court certain important

issues which it has not considered in more than 150 years.

The HERCULES was an unarmed merchant ship of

Liberia, engaged in the domestic trade exclusively between

ports of the United States at the time she was attacked by

Petitioner's forces. Respondents, the time charterer and the

owner of the HERCULES, are Liberian corporate nationals

doing business in the United States.

2

The interests of the Republic of Liberia in the instant

case are limited but important. They are (i) to ensure that

the Treaty of Friendship, Commerce and Navigation between

the United States and Liberia is justified, recognized and

applied; and (ii) to support the principle that an unprovoked

armed attack by a sovereign state upon a neutral merchant

ship on the high seas is under the Law of Nations an act

which avoids the natural immunity of the attacking sovereign

and which requires absolutely the cooperation of neutral

courts to ensure that compensation is made.

The Republic of Liberia wants nothing more than justice

for its nationals; but of equal importance is the demand of

the Law of Nations that the innocent victims of armed attack

on the high seas shall have an effective remedy for their

injuries.

Liberia is concerned that, because of the emphasis placed

below upon the sovereignty of Petitioner, it may be assumed

that any foreign sovereign would assume the position of

absolute immunity advocated by Petitioner and by the United

States as amicus. It is important to Liberia that it be given

the opportunity as another sovereign-—one whose neutrality

has been outrageously violated—to make its argument to the

Court that there are good and sufficient grounds for the

absence of immunity in the present case.

It is for these reasons that the Republic of Liberia requests

this Honorable Court to grant its motion for leave to file the

following brief.

Respectfully submitted,

FRANK L. WiswALL, JR.,

Counsel for the

Republic of Liberia

11870-D Sunrise Valley Drive

Reston, Virginia 22091-3303

(703) 620-6780

Dated: August 25, 1988

IN THE

Supreme Court of the United States

OcTosBerR TERM, 1987

No. 87-1372

ARGENTINE REPUBLIC,

Petitioner,

—_—Vo—

AMERADA Hess SHIPPING CORPORATION

and

UNITED CARRIERS, INC.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND JUDICIAL CIRCUIT

BRIEF FOR THE REPUBLIC OF

LIBERIA AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

Opinions Below

The opinion of the Second Circuit is reported at 830

F.2d 421, 1987 AMC 2705 (1987). The opinion of the

District Court is reported at 638 F. Supp. 73 (S.D.N.Y. 1986).

Both opinions are reproduced in the Appendix to the Petition

for Certiorari (hereafter “P.A.”), pp. la—3Sa.

The caption of the case in this Court contains the names of al! the

parties.

4

Constitutional Provisions Involved

U.S. Const. Art. I, § 8, Cl. 10

The Congress shall have power...

To define and punish Piracies and Felonies committed

on the high seas, and Offenses against the Law of Nations;

U.S. Const. Art. III, § 2, Cl. 1

The judicial Power shall extend . . . to all Cases of admi-

ralty and maritime Jurisdiction;

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 rights, and in all degrees of jurisdiction

established by law.

The nationals of each High Contracting Party shall re-

ceive 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 in 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 payment of

just compensation.

ARTICLE XVII

Limited liability and other corporations and associations,

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

hereafter be organized in accordance with and under the laws,

National, State or Provincial, of either High Contracting

Party 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 conform-

ing to the laws regulating the matter, as well for the prosecu-

tion as for the defense of rights in all the degrees of jurisdiction

established by law.

GENEVA CONVENTION ON THE HIGH SEAS, 1958

(13 U.S.T. 2312, T.1.A.S. No. 5200, 450 U.N.T.S. 82)

ARTICLE 23

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

seas in circumstances which do not justify the exercise of the

right of hot pursuit, it shall be compensated for any loss or

damage that may have been thereby sustained.

6

Statutes

JUDICIARY ACT OF 1789

28 U.S.C.

§ 1333. Admiralty, maritime and prize cases

The district courts shall have original jurisdiction, exclu-

sive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdic-

tion, saving to suitors in all cases all other remedies to

which they are otherwise entitled.

(2) Any prize brought into the United States and

all proceedings for the condemnation of property taken

as prize.

§ 1350. Alien’s action for tort

The district courts shall have original jurisdiction of any

civil action by an alien for a tort only, committed in violation

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

FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976

28 U.S.C.

§ 1605. General exceptions to the jurisdictional immunity of

a foreign state

(a) A foreign state shall not be immune from the

jurisdiction of courts of the United States or of the

States in any case—

(5)...in which money damages are

sought against a foreign state

for . . . damage to or loss of property, oc-

curring in the United States and caused

7

by the tortious act or omission of that

foreign state...

(b) A foreign state shall not be immune from the

jurisdiction of the courts of the United States in

any case in which a suit in admiralty is brought to

enforce a maritime lien against a vessel or cargo of

the foreign state, which maritime lien is based upon

a commercial activity of the foreign state:

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

§ 2.5 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 rights and liabilities. The corporation is a

proper plaintiff in a suit to assert a legal right of the corpora-

tion and a proper defendant in a suit to assert a legal right

against the corporation; ....

LIBERIAN CODE OF LAWS OF 1956

TITLE 22: MARITIME LAW

[The Liberian Maritime Law]

CHAPTER 1. CONSTRUCTION

SECTION 30

Adoption of American General Maritime Law.—Insofar

as it does not conflict with any other provisions of this Title,

the non-statutory General Maritime Law of the United States

of America is hereby declared to be and is hereby adopted as

the General Maritime Law of the Republic of Liberia.

Statement of the Case

The Liberian tank vessel] HERCULES (Official Number

of Registry 3763) of 216,641 DWT, owned by Respondent

United Carriers, Inc. and time-chartered to Respondent Am-

erada Hess Shipping Corporation, had for several years prior

to her loss been engaged exclusively in the United States

domestic port-to-port trade, carrying crude oil in interstate

commerce from the port of Valdez, Alaska, south around

Cape Horn and north to a refinery at the port of St. Croix,

U.S. Virgin Islands, bunkering there and returning in ballast

along the same route to Valdez. Both Respondents are

and were at all times Liberian corporate nationals in good

standing.

On May 25, 1982, the HERCULES departed St. Croix

in ballast and fully bunkered for the round trip to Valdez.

At this time the Falklands/Malvinas War was in progress in

the South Atlantic, a conflict in which Liberia was at all times

a strictly neutral nation. Agencies of the U.S. Government

and the HERCULES herself (by radio) kept Argentine gov-

ernment agencies informed of her identity, her voyage and

her position.

On June 8, 1982, on the high seas and without warning,

Argentine government air forces made three separate bom-

9

bing sorties against the HERCULES between 1350 and 1625

G.M.T., damaging her severely and leaving an undetonated

bomb lodged tightly in the upper internal members of the

No.2 port wing cargo tank. After survey and expert advice

it was considered a practical impossibility to safely remove

the bomb, and Respondent United Carriers was forced to

scuttle the vessel more than a mile deep in open sea. As a

result of this unprovoked attack upon an unarmed neutral

merchant ship, Respondent owner United Carriers, Inc. lost a

vessel worth $10,000,000.00 and her charter, and Respondent

charterer Amerada Hess Shipping Corporation lost bunkers

worth $1,901,257.07 together with the future use of the

HERCULES.

After the attack upon the HERCULES, amicus sought

clarification of the incident from Petitioner through diplo-

matic channels; no satisfactory response was ever received,

and Petitioner has refused even to discuss the necessary

compensation of Respondents.

Summary of Argument

I. The Treaty of Friendship, Commerce and Navigation

(“FCN Treaty”) between the United States and Liberia enti-

tles the Respondents, both Liberian corporate nationals, a

right of access to the Courts of the United States upon an

equal footing with U.S. citizens. Because the present case

involves a matter of neutrality, arising directly under the

Constitution's grant of maritime jurisdiction in Article III,

§ 2, Cl. 1, the Courts of the United States become by virtue

of the FCN Treaty the courts of a neutral state for adjudica-

tion of Respondents’ rights under maritime international law.

Il. Customary maritime international law, which is

equally binding upon the United States, Argentina and Li-

beria, requires that the attacking state compensate the loss of

a neutral ship unjustifiably attacked on the high seas. While

the present case presents certain of these issues to the Court

for the first time in over a century and a half, there is ample

precedent in the late 18th and early 19th century decisions

10

of the Court. The attack which led to the destruction of the

HERCULES was not only a violation of international law,

but was a maritime tort, and application of the Alien Tort

Statute, 28 U.S.C. § 1350, is consistent with the requirements

of maritime international law that full compensation be paid

to Respondents for their actual loss and damage.

IIK(a). The Alien Tort Statute, 28 U.S.C. § 1350, carries

into law the power granted by the Constitution in Article I,

§8, Cl. 10 to “define... Offenses against the Law of

Nations.”" The FCN Treaty requires that Respondents re-

ceive within the United States “that degree of protection that

is required by international law” for their property capable

of protection by the United States, which must include their

property rights as neutrals where an offense against the law

of nations has been committed. The Alien Tort Statute, in

this respect, merely exercises the Constitutional authority of

Congress in a case arising under the Constitutional grant of

maritime jurisdiction to the Courts of the United States.

(b). The finding of the District Court that no loss

whatsoever occurred in the United States was clearly erro-

neous, as the undisputed facts show that both Respondents

suffered substantial losses within the United States which

were a direct consequence of the attack by Petitioner upon

the HERCULES. The District Ccurt could, therefore, have

utilized the tort exception of the Foreign Sovereign Immuni-

ties Act (“F.S.1.A.”), but instead held that the F.S.1.A. com-

pletely bars Respondents from obtaining relief. Both Peti-

tioner and the United States as its supporting amicus likewise

contend that the F.S.1.A. is absolutely controlling with regard

to any action whatsoever against a foreign sovereign in the

Courts of the United States. That argument blinks at two

fundamental obstacles: (1) that Congress clearly indicated in

28 U.S.C. § 1602 its intention that the F.S.I.A. apply in

cases involving the “commercial activities” of foreign states,

whereas this case involves the public governmental activity

of a foreign state resulting in a deliberate and tortious viola-

tion of maritime international law; and (2) that because

this case arises directly under the Constitutional grant of

admiralty and maritime jurisdiction. the logical conclusion

<< = lll

hee &

of the argument advanced by Petitioner and the United States

is that the F.S.1.A. may not merely regulate the application

but may actually bar the exercise of jurisdiction granted to

the courts by the Constitution. The Court has, in any case,

long held that no Act of Congress should be so construed as

to violate neutral rights, and the decision of the District Court

did indeed ignore those rights—not least by failing to apply

the F.S.1.A.’s tort exception in 28 U.S.C. § 1605(aX(5). That

approach would also have minimized the applicability of the

present case to other cases involving the loss of maritime

property by torts committed outside the jurisdiction of the

United States.

IV. It is proper for the Court to bear in mind, when

deciding the disposition of this case, that a reinstatement of

the decision of the District Court would leave Respondents

without recourse to justice in any forum, and that result

would be contrary to a fundamental characteristic of the

admiralty jurisdiction. It would, however, be expected that

the District Court consider the issue of forum non conveniens

on remand.

ARGUMENT

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

tween the United States and Liberia Guarantees to the

Respondents Standing Equal to That of Citizens of the

United States.

The Treaty of Friendship, Commerce and Navigation of

1938 between the United States and Liberia, 54 Stat. 1739,

T.S. No. 956, guarantees generally in Article | (supra, p. 4) a

“freedom of access to the courts of justice” by Liberian

nationals seeking redress in the United States.’

' By Article XVII of the FCN Treaty (supra p. 5), this right is made

more specific with regard to Libenan corporations doing business in the

United States, to wit: “They shall enjoy free access to the courts of law

and equity, on conforming to the laws regulating the matter, as well as for

the prosecution as for the defense of rights in all the degrees of jurisdiction

established by law.”

12

The District Court recognized the juridical status of

Respondents, accepting as fact that they are Liberian corpora-

tions (P.A. 26a). Of course, both Respondents have the

capacity to sue and be sued. See § 2.5 of the Liberian Business

Corporation Act, supra, p. 7.

The law of the United States with regard to standing to

sue under such clauses as those in the present FCN Treaty

was well declared in The Nordic Regent, 654 F.2d 147, 1980

AMC 309 (2d Cir. 1978), cert. den. 449 U.S. 890 (1980),

where in writing for a majority of the entire Circuit bench

and commenting upon Farmanfarmaian v. Gulf Oil Corp.,

588 F.2d 880 (2d Cir. 1978), Judge Timbers noted that, with

regard to the standard FCN Treaty phrase “access to the

courts’, “Such access would have little value if the door that

admits is a revolving one.” 654 F.2d at 153, 1980 AMC at

318, n. 6.

Such right of access is, of course, independent of the

grounds upon which relief is sought, and Respondents must

bring a cognizable cause of action against a suable defendant;

but the underlying principle for application to cases such as

the present was settled long ago:

The courts of the captor are still open for redress.

The injured neutral, it is to be presumed, will there

receive indemnity for a wanton or illicit capture;

and if justice be refused him, his own nation is

bound to vindicate or indemnify him.

s* ees ®

The material questions necessary to be considered,

in order to dissipate these doubts, are, Ist. Does this

principle properly furnish a plea to the jurisdiction

of the admiralty courts? 2d. If not, then does not

jurisdiction over the subject-matter draw after it

every incidental or resulting question relative to the

disposal of the proceeds of the res subjecta?

The first of these questions was the only one

settled in the case of Glass v. The Betsey. [3 U.S. (3

Dall.) 6 (1794)], and the case was sent back with a

tS eT Ms ae

—

= sent os

13

view that the district court should exercise jurisdic-

tion, subject, however, to the law of nations on this

subject as the rule to govern its decision.

And this is certainly the correct course. Every

violent dispossession of property on the ocean is,

prima facie, a maritime tort; as such, it belongs to

the admiralty jurisdiction.

L'Invincible, 14 U.S. (1 Wheat.) 238, 256-57 (1816).

The phrase above used by Justice Johnson—". . . if jus-

tice be refused him, his own nation is bound to vindicate or

indemnify him”—certainly refers to vindication or indem-

nity through recourse to the courts of the offended neutral

state. But as the early cases show, the neutral admiralty court

of the United States was always open to aliens for vindication

and indemnity where their neutral rights had been violated,

even when that violation was committed by a foreign sover-

eign’s armed vessel. See infra, pp. 22-24. By virtue of the

FCN Treaty an admiralty court of the United States becomes

for these Liberian nationals the appropriate court of a neutral

state. As put by Justice Story, “We see no difficulty in

supporting the jurisdiction as concurrent in both [belligerent

and neutral] nations. But, if there be any choice, it seems

more properly to belong to the country of the injured than of

the offending party.” The Marianna Flora, 24 US. (11

Wheat.) 1, 57 (1826).

Liberia has adopted, by statutory reference, the entire

body of the non-statutory general maritime law of the United

States; see Section 30 of the Liberian Maritime Law, supra,

p. 8 Thereby the decisions of this Court in all cases of prize

and neutrality have become the law of Liberia. The interests

of aliens as well as Liberians were considered in choosing to

follow the American law, as explained in one respect by the

Supreme Court of Liberia nearly a century ago:

In admiralty the court is bound to determine

the cases submitted to its cognizance, upon equita-

ble principles and according to the rules of natural

justice. The grand object of doing justice between

14

the parties is superior to technical forms and rules,

and where the strictest practice of the English

common law or the civil law would turn a party out

of court, or defeat or pervert justice, by considering

an arbitrary rule of proceedings as paramount to all

other considerations, the American admiralty finds

in the educated reason and cultivated discretion of

the court the means of defeating chicanery, rectify-

ing mistakes, supplying deficiencies and suggesting

to the party the means of reconstructing his case, if

necessary, without the loss of such progress as he

may have already made. (Ben. Adml. p. 218, sec.

358). In admiralty, interests of great moment are

involved to the nation, whether in respect to its own

citizens, or to aliens. It upholds the nation’s majesty

and credit; largely, it effects its revenue, which is

its lifeblood, that which enables it to exist and to

maintain its independence, to develop its growth,

and to afford it the means of support and protection

to its citizens; therefore the law will not allow justice

to be defeated through technicalities, or mere form,

or slight nonessential omissions.

Dennis v. Liberia, | Liberian L.R. 323, 327-28 (1898) (empha-

sis added).

Since under Liberian maritime law a Liberian national

has the right to maintain suit against a wrongful attacker in

the courts of Liberia for indemnity in a case of violent

dispossession of property on the ocean, then under the FCN

treaty an American national with the same claim may also

maintain such a suit in the Courts of Liberia. And the

reverse must also apply in the present case of maritime tort

committed in violation of the law of nations. As Liberian

corporate nationals doing business in the United States,

Respondents need not resort to the courts of Liberia when

the courts of the United States are competent to grant relief

to an American citizen. Amerada Hess Shipping Corporation

and United Carriers, Inc. stand before an admiralty court of

the United States in the shoes of American citizens for

purposes of asserting their claims.

15

The basic question therefore becomes that of jurisdiction

over Petitioner, the Argentine Republic.

II. Application of the Alien Tort Statute to the instant case

is consistent with maritime international law.

Wrongs done to a ship on the high seas lie within the

ancient admiralty jurisdiction.’ The entire crux of this case

then is that the attack upon the HERCULES was committed

by a foreign sovereign.

Both the customary international law of the sea (by which

the United States, Argentina and Liberia are equally bound),

and the expression of the rule in conventional international

law (contained in Article 23 of the 1958 Geneva Convention

on the High Seas, supra, p. 5, to which the United States is a

Party), commit the nations of the world to ensure that when

a neutral ship is unjustifiably attacked by a coastal State on

the high seas, “it shall be compensated” by the attacking State

for the loss thereby sustained.’

Amicus submits that the best guidance to be had in

the present case is found in the late eighteenth and early

nineteenth century decisions of the Court, during the long

era of naval strife which began with the Revolution. It is to

be admitted at the outset that no case on precisely all fours

with the HERCULES has been found. There are, however,

2 “That the Court has jurisdiction over the matters in question | cannot

doubt. A suit in respect of injurious acts done upon the high seas was

within the undisputed jurisdiction of the Court of Admiralty, as appears

upon reference to Comyn’s Digest (Comyn’s Digest Tit. Admiralty, E. 7),

and to Blackstone’s Commentaries (Blackstone’s Commentaries Book III.,

Cap. 7/S.3)...” The Tubantia, [1924] P. 78, 18 LLL.R. 158, 159

(P.D.A.D., 1924), per Sir Henry Duke (Lord Merrivale), P. And see

Browne. Compendious View of the Civil Law and the Law of the Admiralty,

vol. 2, p. 110 (2nd ed.) London, 1802; cited in Jennings v. Carson, 8 U.S.

(4 Cranch) 2, 23 (1807).

> Scholarly opinion is unanimous to the effect that Article 23 of the

1958 Convention on the High Seas and its counterpart provision in Article

111 of the 1982 United Nations Convention on the Law of the Sea are

simply a codification of the long-established customary international! law.

See, ¢.g., O'ConneLt. The International Law of the Sea, vol. Il, pp. 1078,

1084, Oxford. 1984.

16

a number of cases offering useful parallels; and if there is no

recent authority to draw upon in respect of certain crucial

points, that owes very simply to the fact that this is the first

case in Over a century and a half to present these issues to

the Court.

In order to uphold the Law of Nations, and in particular

the public order of the high seas, it has long been held essential

for neutral maritime courts to assist in recovery of the

compensation which international law particularly demands

for such flagrant violations of the right of neutrals to freedom

of navigation. As expressed by Justice Story in The Amiable

Nancy:

The jurisdiction of the district court to entertain

this suit [for marine trespass] by virtue of its general

admiralty and maritime jurisdiction, and indepen-

dent of the special provisions of the Prize

Act... has been so repeatedly decided by this court,

that it cannot be permitted again to be judicially

brought into doubt. Upon the facts disclosed in the

evidence, this must be pronounced a case of gross

and wanton outrage, without any just provocation

or excuse.

16 U.S. (3 Wheat.) 546, 558 (1818) (emphasis added).

Neutral courts are bound to do more than simply con-

demn such actions as those of Petitioner in mounting the

prolonged attack on the HERCULES and then refusing to

entertain any claim for the losses sustained; and the Judiciary

Act of the United States offers a means for effective redress

for such tort when “committed in violation of the law of

nations....” 28 U.S.C. § 1350.

There exists a category of tortious violations of the Law

of Nations so grave that Congress must not be presumed, in

the absence of specific reference, to have abolished jurisdic-

tion over them in enacting the Foreign Sovereign Immunities

Act, 28 U.S.C. §§ 1330, 1602, et seg. See infra. pp. 21, 23-

24. It is difficult to imagine a tort more fitting to be a subject

of the Alien Tort Statute, 28 U.S.C. § 1350, than repeated

17

attack upon a clearly-identified neutral and unarmed mer-

chant ship on the high seas, nor a case more certainly meeting

the absolute requirement of international law for compensa-

tion. As again put by Justice Story:

Whatever may be the case, where a gross, fraudu-

lent, and unprovoked attack is made by one vessel

upon another upon the sea, which is attended with

grievous loss or injury, such effects are not to be

attributed to lighter faults or common negligence.

It may be just, in such cases, to award to the injured

party full compensation for his actual loss and

damage; ....

The Marianna Flora, 24 U.S. (11 Wheat.) 1, 40 (1826).

III. Petitioner enjoys no immunity from suit in this matter.

(a) The Alien Tort Statute

Respondents have invoked the Alien Tort Statute, 28

U.S.C. § 1350: “The district courts shall have original juris-

diction of any civil action by an alien for a tort only, committed

in violation of the law of nations or a treaty of the United

States.” (Emphasis added.) The U.S.-Liberia FCN Treaty

provides that: ““The nationals of each High Contracting Party

shall receive within the territories of the other, upon submit-

ting to conditions imposed upon its nationals, the most

constant protection and security for their persons and prop-

erty, and shall enjoy in this respect that degree of protection

that is required by international law.” (Article |, supra, p. 4;

emphasis added.)*

The significance of these plain words to amicus is that

“any civil action” grants jurisdiction notwithstanding the

Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602

“ This clause (and the FCN Treaty as a whole), is self-executing without

reference to statute. “It stands on the same footing of supremacy as do

the provisions of the Cons’ itution and laws of the United States. It operates

of itself, without the aid of any legislation, state or national; and it will be

applied and given authoritative effect by the courts.” Asakura v. Seattle,

265 U.S. 332, 340, 342 (1924). See also Tucker v. Alexandroff. 183 U.S.

424, 437 (1901).

18

et seq., where the tort committed is “in violation of the law

of nations.” As the United States maintains (Brief, pp. 13-

14, 15), the word “any” is particularly significant and the

plain meaning of the statute decides the issue. Indeed it is

plain that the Alien Tort Statute was intended in 1789 to be

the instrument of the Constitution, carrying into law the

power granted to Congress “To define and punish Piracies

and Felonies upon the high Seas, and Offenses against the

Law of Nations.” U.S. Const. Art. I, § 8, Cl. 10. It cannot

be coincidence that “violation of the law of nations” is one

of the two grounds upon which the Alien Tort Statute, enacted

in the year following adoption of the Constitution, may

be invoked. As to contemporary interpretations, the sole

commentary upon this Constitutional clause in The Federalist

(by Madison, in No. 42) speaks only of the lack of provision

in the Articles of Confederation for “the case of offenses

against the law of nations,” and the discussion which follows

treats the power to “define” as quite separate and distinct

from the power to “punish.” The Alien Tort Statute is a clear

exercise of the power of Congress to “define... Offences

against the Law of Nations,” for the purpose of allowing civil

recovery for any tort so defined.

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 is the subject of protection

be located within the United States. What the FCN Treaty

does require (Article I, p. 4 supra) is that Respondents receive

within the United States “that degree of protection that is

required by international law” for their property capable of

protection by the United States, which must certainly include

the rights of Respondents in and to their property. It is the

gross violation of intern2tional law which resulted in the

destruction of Respondents’ neutral property that is at issue,

and Respondents have brought their claims within the United

States upon their rights to their destroyed property.

These alien Respondents seek the protection of their

property rights in an unarmed neutral merchant ship in the

Courts of the United States, alleging deprivation of that

property by a maritime tort committed in violation of the

on ee

19

law of nations. The law of the United States, under the

Constitutional grant of admiralty and maritime jurisdiction

(infra, n.5) and as expressed in the Alien Tort Statute and

the FCN Treaty, entitles Respondents to their day in the

District Court of the United States.

(b) The Foreign Sovereign Immunities Act

The District Court took the F.S.1.A. as controlling in this

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

that Respondents 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.” 638 F.

Supp. at 75. But in the same paragraph the District Court

noted that “breathtakingly” broad interpretation has been

given to language similar to that contained in § 1605(a)(5) in

deciding the issue of jurisdiction. (P.A. 30a.)

There are reliable principles to be drawn from the prize

and neutrality cases with respect to the present case. The

prize jurisdiction is a part of the admiralty and maritime

jurisdiction arising under U.S. Const. Art. Ill, § 2. Cl. 1; and

the Court held in Jennings v. Carson, 8 U.S. (4 Cranch) 2, 24

(1807), that the delegation of admiralty jurisdiction to the

federal courts carries with it the prize jurisdiction without

need for specific mention. See also The Amiable Nancy,

supra, p. 16.° Prize and capture is not a subject of criminal

* The understanding that prize and neutrality are part and parcel of

the admiralty jurisdiction well antedates the Constitution. As noted in

Benedict on Admiralty, vol. | (Jurisdiction), §101, p. 7-3, n. 9 (E. Jhirad

ei al. 7th ed. rev., New York, 1985) in Rhode Island under the Confedera-

tion the “Maritime Court for the Trial of Prize Causes” was reconstituted

in 1780 as a Court of Admiralty to exercise jurisdiction in respect of

“causes concerning...all other matters and things of a Maritime

Nature... .” Justice Story in his Commentaries on the Constitution, speak-

ing of the grant in Art. Ill, §2, Cl. |, says that “The word “maritime”

was, doubtless, added to guard against any narrow interpretation of the

preceding word, “admiralty’.” Sec. 1666, at p. 466 (Sth ed. 1891). In this

comment Story was encapsulating the definitive exposition of the admiralty

jurisdiction, given eighteen years earlier in his judgment in DeLovio v.

Boit, 7 F. Cas. 418 (No. 3776) (C.C. Mass. 1815):

But whatever may in Engiand be the binding authority of the

20

law but of maritime international law, yet it does not touch

the “commercial activities” which are almost exclusively

the subject of the F.S.1.A. as declared in 28 U.S.C. §1602.

Petitioner and the United States as its supporting amicus

argue that the on/y exceptions to immuniiy must be connected

to commercial activities® unless, under the tort exception in

common law decisions upon this subject, in the United States we

are at liberty to re-examine the doctrines, and to construe the

The constitution has delegated to the judicial power of the United

States cognizance “of all cases of admiralty and maritime

pursdiction;

What is the true interpretation of the clause “all cases of

admiralty and maritime junsdiction?” If we examine the etymol-

Ogy, Or received use, of the words “admiralty” and “maritime

jurisdiction,” we shall find, that they include jurisdiction of all

things done upon and relating to the sea, or, in other words. all

transactions and proceedings relative to commerce and naviga-

thon, and to damages or injures upon the sea.

Id. at 441.

The clause however of the constitution not only confers

admiralty jurisdiction, but the word “maritime” is superadded,

seemingly ex industria, to remove every latent doubt. “Cases of

maritime jurisdiction” must include all maritime contracts, torts

and injunes, which are in the understanding of the common law,

as well as of the admiralty, “Causae civiles et maritimae.”’ In this

view there is a peculiar propriety in the incorporation of the term

“mantime™ in the constitution. The disputes and discussions.

respecting what the admiralty jurisdiction was, could not but be

well known to the framers of that instrument. Montgomery

Henry, | Dall. [1 U.S.) 149 [(1790)}; Ta/bor vr. Commanders and

Owners of Three Brigs. Id. 95. One party sought to limit it by

locality, another by the subyect matter. It was wise, therefore, to

dissipate all question by giving cognizance of all “cases of man-

time jurmsdiction,” or, what is precisely equivalent, of all maritime

—_ oe wl nega yelling

mere - im this sense it has i

tautology. a peculiar and appro-

id. at 442-43.

Even compensation for expropriation in violation of internat:

law, cited by the United States for the proposition that Congress compre

hended such violation within the F.S.1.A. (Brief, pp. 23-24), is tied firmly

to the commercial activity requirement by 28 U.S.C. § 1605(a)(3).

21

§1605(a)(5), the actual physical act causing damage to or loss

of property occurs within the United States.

Now the question must be posed: “What mischief does

this interpretation advocated by Petitioner and the United

States work in the case of a neutral merchant vessel of the

United States taken forcibly on the high seas by a foreign

sovereign in violation of the law of nations, which then flies

the flag of and is operated by that capturing sovereign as its

own commercial state-owned vessel, and which later comes

within the jurisdiction of the neutral courts of the United

States where she and her captor are proceeded against by her

rightful American owners?” Will the United States, in support

of Petitioner, argue that the F.S.1.A. has divested American

citizens of their historic neutral rights under the Constitu-

tional grant of jurisdiction in maritime and prize law? Will

it say that this was the intent of Congress? Or must it concede

that there is, after all, no application of the F.S.1.A. to cases

such as The Estrella, 17 U.S. (4 Wheat.) 298 (1819), which

arise directly under the Constitutional jurisdiction and are

clearly analogous in principle to the present case? There it

was declared by Justice Livingston that

A neutral nation, which knows its duty, will not

interfere between belligerents, so as to obstruct

them in the exercise of their undoubted right to

judge, through the medium of their own courts, of

the validity of every capture made under their

respective commissions, and to decide on every

question of prize law which may ‘arise’ in the prog-

ress of such discussion. But it is no departure from

this obligation, if, in a case in which a captured

vessel be brought or voluntarily comes, infra prae-

sidia, the neutral nation extends its examination so

far as to ascertain whether a trespass has been

committed on its own neutrality by the vessel which

has made the capture. So long as a nation does

not interfere in the war, but professes an exact

impartiality toward both parties, it is its duty, as

well as right, and its safety, good faith, and honor

demand of it, to be vigilant in preventing its neutral-

22

ity from being abused, for the purposes of hostility

against either of them. This may be done, not only

by guarding, in the first instance, as far as it can,

against all warlike preparations and equipments in

its own waters, but, also, by restoring to the original

owner such property as has been wrested from

him...

17 U.S. (4 Wheat.) 298, 308-09 (emphasis added).

And it is proper in such cases for a neutral court to

call into question the public non-commercial actions of the

attacking foreign sovereign:

That the mere fact of seizure as prize does not,

of itself, oust the neutral admiralty court of its

jurisdiction, is evident from this fact, that there are

acknowledged cases in which the courts of a neutral

may interfere to devest possessions; to wit: those in

which her own right to stand neutral is invaded;

and there is no case in which the court of a neutral

may not claim the right of determining whether

the capturing vessel be, in fact, the commissioned

cruiser of a belligerent power. Without the exercise

of jurisdiction thus far, in all cases, the power

of the admiralty would be inadequate to afford

protection from piratical capture.

L'Invincible, 14 U.S. (1 Wheat.) 238, 258 (1816).

The precedents of the prize and neutrality cases, and

those such as The Amiable Nancy, (supra, p. 16), which sound

in prize but arise squarely under the Constitutional grant of

maritime jurisdiction, are impossible to ignore in considering

the present case.’ If the interpretation of Petitioner and the

” The case of The Schooner Exchange v. M’Faddon, \\ U.S. (7 Cranch)

116 (1812), relied upon heavily by the United States (Brief, pp. 3, 20, 16),

is simply inapposite to the present case. That case is also distinguished

from all others cited herein by the first sentence of Chief Justice Marshall's

opinion:

This case involves the very delicate and important i juiry,

whether an American citizen can assert, in an American court, a

title to an armed national vessel, found within the waters of the

23

United States is accepted, then the Constitutional grant of

neutral jurisdiction to the courts of United States in prize

cases, is overridden by the F.S.1.A.; but if the language

“damage to or loss of property, occurring in the United

States” is seen to include damage which is caused by an act

which physically takes place outside the United States, then

American citizens may, as heretofore, vindicate those neutral

United States.

Id. at 135 (emphasis added).

As Justice Story pointed out in the decision of the Court in The

Santissima Trinidad, 20 U.S. (7 Wheat.) 283 (1822), the principle laid

down in The Schooner Exchange involved an entirely different doctrine of

maritime international law, viz., the immunity of warships in neutral

ports—a doctrine separate and apart from a sovereign’s responsibility for

violations of the law of nations:

In the case of The Exchange, 7 Cranch, 116, the grounds of

It was there shown that it was not founded upon any notion

that a foreign sovereign had an absolute right, in virtue of his

sovereignty, to an exemption of his property from the local

jurisdiction of another sovereign, when it came within his tern-

tory; for that would be to give him sovereign power eyond the

limits of his own empire. But it stands upon principles of public

comity and convenience, and arises from the presumed consent

or license of nations, that foreign public ships coming into their

ports, and demeaning themselves according to law, and ina friendly

manner, shall be exempt from the local jurisdiction. But as such

consent and license is implied only from the general usage of

nations, it may be withdrawn upon notice at any time, without

just offense, and if afterwards such public ships come into our

ports, they are amenable to our laws in the same manner as other

vessels.

Id. at 352-53 (emphasis supplied).

In the present day, the old term “public ships” has become “ships

owned or operated by a State and used only on government non-commercial

service”. See United Nations Convention on the Law of the Sea, | 982,

Art. 96. But the public ship described by Chief Justice Marshall in

The Schooner Exchange was also “an armed national vessel” and was

categorized in that decision with “ships of war” (20 U.S. 135, 141, 146).

The doctrine of immunity of warships in neutral ports is entirely separate

and distinct from the maritime jurisdiction over sovereign commercial

property in prize and neutrality cases. See The Santissima Trinidad. supra.

and O'Cownet. supra n. 3. vol. Il at pp. 1106-08.

24

property rights which they have always enjoyed under Article

Ill, §2, Cl. |—and which Congress never appears to have

intended to exclude in debating, fashioning and enacting the

F.S.LA. Those rights enjoyed for 200 years by American

vessel, not arising out of the commercial activity—but out of

the military activity—of that attacking

the same rights as those of Respondents in this case.

A better illustration of the vindication of these Constitu-

tional rights could hardly be desired than that of The Santis-

sima Trinidad, 20 U.S. (7 Wheat.) 293 (1822). There a

foreign neutral cargo seized by a warship on the high seas

and later brought by that warship into the United States was

It is only important then to examine the ques-

tion, whether the information of the sovereign or

executive government be the proper and only stan-

dard to which the court must refer, in matters

wherein not our own people, but foreign states are

concerned. Whatever the theory may be on this

subject, all know that, in point of fact, courts of

justice do and must decide upon the right of sover-

eigns, and that even in governments the most abso-

lute. For these courts must necessarily decide upon

the rights of private individuals and corporations,

and these are oft-times so interwoven with the rights

of their sovereigns, that to decide upon the one, is

to decide upon the other, not only in form, but

effect also.

20 U.S. (7 Wheat.) at 302-03.

25

The Republic of Liberia's rights in the present case are

interwoven with those of Respondents, as were the rights of

the Empire of Spain with its nationals in The Santissima

Trinidad.*

Amicus — that the interpretation of 28 U.S.C.

§ 1605(aX5) which should be adopted is that which does

not oust the rights arising under a historic Constitutional

jurisdiction in admiralty. This concern was specifically re-

ferred to in the section-by-section analysis of the proposed

F.S.LA. in 1973, which declared that it was not intended to

and prize law. 1973 Hearing 47; 119 Cong. Rec. 2219 (1973).

The United States argues (Brief, p. 17, n. 13) that this analysis

should be disregarded because the exceptions in § 1605(b)

were later added. The problem with accepting that argument

is that § 1605(b) deals with only one part of admiralty jurisdic-

tion, restricted again to “commercial activity of the foreign

state,” and does not mention the specialized admiralty and

maritime jurisdiction as a neutral in non-commercial activity

tort cases, let alone the jurisdiction in prize, capture and

neutrality cases, all arising directly under the Constitution

and as historically rooted in maritime international law.

Not only belligerents, but also neutrals have rights arising

out of conflicts such as the Falklands/Malvinas War, and the

Court in construing statutes of the United States has declared

a special obligation to uphold such neutrals’ rights and to

promote neutral commerce, viz.:

...@n act of congress ought never to be construed

to violate the law of nations if any other possible

construction remains, and, consequently, can never

be construed to violate neutral rights, or to affect

neutral commerce, further than is warranted by the

law of nations as understood in this country.

* indeed, if it were not for the FCN Treaty, Liberia's position would

be that of a party rather than amicus. See The Bello Corrunes, \9 US. (6

Wheat.) 153, 168 (1821).

26

These principles are believed to be correct, and

they ought to be kept in view in construing the act

now under consideration.

Marshall, C_J., in Murray v. Schooner Charming Betsy

(2 Cranch) 64, 118 (1804) (emphasis added). —

trade between two ports of the United States. 638 F.

at 73. The HERCULES was carrying out this domestic US

Puree oon Conde under Actisies VE and XVI ef Ge FON

the United States. Even more directly, the owner suffered

loss of the U.S. charter hire, payable in U.S. dollars in

United States. This appears from Plaintiffs’ Exhibit 1(A),

the charterparty, (J.A.-41), which the District Court was

bound to accept as proven fact for purposes of ruling upon

the Motion to Dismiss, but which was simply ignored by that

_As to Respondent Amerada Hess Shipping Corporation

their loss was not only the value of 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

exclusive U.S. domestic trade.

decision of the District Court was clearly erroneous in finding

that “no loss whatsoever” occurred in the United States.

VcAllister v. United States. 348 U.S. 19 (1954). Both the loss

27

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 damages, are losses

from the same operative cause and are sufficient to vest

jurisdiction under the F.S.1.A., 28 U.S.C. § 1605(a)(5).

Amicus, as a foreign sovereign, agrees that the Court

should properly be concerned that the District Courts of the

United States not sit unrestrained as ‘little international

courts of claims.’ But a /imited exercise of that function

is precisely what is contemplated by the F.S.1.A.; and the

peculiarly restrictive facts of the present case, involving the

loss of a foreign vessel engaged exclusively in the domestic

commerce of the United States, with charterparty made and

charter hire payable in the United States, are not likely to

provide fertile ground for future litigation.

IV. Respondents have no alternative forum.

The District Court, in granting Petitioner’s Motion to

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

conveniens. But the record makes painfully clear the total

absence of any forum in Argentina or of any mutual agreement

upon any other forum. Liberia's diplomatic efforts have

been rebuffed by Petitioner. There are no known assets of

Petitioner in Liberia, rendering meaningless any suit in this

matter in the Liberian Courts even before the question of

jurisdiction ari

It is the position of amicus that when an attacking

sovereign declines to open its courts, declines arbitration,

and declines to entertain any suggestion of remedy for the

neutral victims of its attack, then the victims are entitled to

pursue their remedy in an effective forum. It is further the

position of amicus that the District Courts of the United

States offer the on/y forum capable of granting an effective

remedy to the victims of the ultimate y fatal armed attack

upon the HERCULES, and that the United States District

Court for the Southern District of New York, over a period

of two centuries, has established an eminent ability in the

application of maritime international law.

28

While it would be for the District Court on remand to

consider the issue of forum non conveniens under the delega-

tion of jurisdiction in 28 U.S.C. § 1333, together with the

Alien Tort Statute and/or the F.S.1.A., this Honorable Court

is already aware on the record before it that reinstatement

of the District Court’s decision would leave Respondents

without recourse to justice in any forum. That, amicus

submits, is an element of fundamental importance which it

is proper for the Court to bear in mind on the disposition of

this writ.

This is a case of admiralty and maritime jurisdiction,

arising directly under Article III, § 2, Cl. 1 of the Constitution.

It has been the hallmark of the admiralty jurisdiction as

developed in the decisions of the Courts of the United States

that it is applied in cases of uncertainty so as to avoid leaving

the injured party with no forum. The principle has never

been better stated than by Justice Paterson:

The property was not restored to the libellants,

nor were they compensated in damages; of course

the decree in their favor remains unsatisfied. They

had no remedy at common law; they had none in

equity; the only forum competent to give redress is

the district court of New Hampshire, because it has

admiralty jurisdiction. There they applied, and, in

my opinion, with great propriety.

Judges may die, and courts be at an end; but

justice still lives, and, though she may sleep for a

while, will eventually awake and must be satisfied.

Penhallow v. Doane’s Administrators, 3 U.S. (3 Dall.) 54, 93

(1795).

29

Conclusion

The Order of the Second Circuit should be affirmed;

alternatively, the matter should be remanded to the District

Court for trial on the merits with instructions to apply the

maritime law of nations to the case.

Respectfully submitted,

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

Dated August 25, 1988