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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 428

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0653%3A12. Public record. Not legal advice.