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

No. 87-1372

74 “"

~

In the

Supreme Court of the United States

OCTOBER TERM, 1987

ARGENTINE REPUBLIC,

Petitioner,

v

AmeERADA Hess SuipPinc CORPORATION

and Unrrep Caarauiers, INc.,

Respondents.

On Wart or Certiorari TO THE UNtTep STATES

Court oF APPEALS FoR THE SECOND Circurt

Maagityn L. Lytie

Counsel of Record

Douctas A. JACOBSEN

BiGHAM ENGLaR Jones & Houston

14 Wall Street

New York, New York 10005

(212) 732-4646

Attorneys for the American

Institute of Marine Underwriters

Amicus Curiae

TABLE OF CONTENTS

Statement of Interest of the American Institute of

Marine Underwriters and Motion for Leave to

Intervene as Amicus Curiae in Support of the

Brief of the American Institute of Marine Under-

writers as Amicus Curiae in Support of the

I. The illegal bombing by Argentina of a neutral

vessel on the high seas violates the “Law of

Nations” so as to confer jurisdiction under the

Alien Tort Statute, 28 U.S.C. §1350...........

Il. Argentina should be denied immunity under

the Foreign Sovereign Immunities Act, 28 U.S.C.

§1602, et eq. and the Alien Tort Statute, 28

U.S.C, §1350, for the illegal bombing of a

neutral vessel on the high seas and for refusal

to make restitutiom .... 2.66. 6c cc cee ences

Secste hy oiuietng teoationel enn

C. The Foreign Sovereign Immunities Act must

be interpreted in a manner consistent with

D. Congress did not intend to repeal the Alien

Tort Statute when it enacted the Foreign

Sovereign Immunities Act ...............

10

u TABLE OF CONTENTS

E. Under the “tort exception” to the Foreign

Soverergn Immuniues Act §1605(a5), Argen-

una should be subject to the jurisdiction of

U.S. CRUSE cc cccccccccccscceseseneeeenee 12

Ill. The United States has a strong interest in the

outcome of this dispute which warrants a hear-

img im U.S. courts . . . . 6 6 ee ee ene ewe eweeee 14

Camehesia® ..cccccccccceceseeseesenenenenl 17

TasLe OF AUTHORITIES

Cases:

Amerada Hess Shipping Corp. v. Argentine Republic,

65S F.28 <2) (O6 Cie. BGBF) .. cccccccecsccesesesss 5, 11

Amencan Mantime Association v. Blumenthal, 590

F.2d 1156 (D.C. Cir. 1978) . .. 2... ce cn nnn nnn nnees 15

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

(BEBE .ccccccccccesescesecesesseeeneneeee 7

The Bermuda, 70 U.S. 514 (1865) ~~... 2... cnn nnuns il

Boichos v. Darrell, 3 F. Cas. 810 (D-CS.C. 1795)

CE SS Stt—“‘i‘CS 5

The Charming Betsy, 6 U.S. (2 Cramch) 64 (1804)

(Dasshall, C.J.) .. ccccccccccccccccccseceseueus il

Consumer Product Safety Comm'n v. GTE Sylvania,

Bac.. 069 UG. BGR CIBER .cccccccccesesccessceet |

Executwe Jet Amation, Inc. v. Cleveland, 408 U.S.

BED (OBER 2 cc cccccccccecesoseeseseneneeal 13

Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir. 1980)... 8

HT v. Vencap Lid., 519 F.2d 1001 (2d Cir. 1975) .... 6

in Re Yamashita, 327 U.S. | (1946)... .... 6... annus 5

TABLE OF AUTHORITIES

Jansen v. The Vrow Christina Magdalena, 13 F. Cas.

356 (D.C.S.C. 1794) (No. 7,216) ........622eeeees

Khedivial Line, S.A.E. v. Seafarers’ International

Union, 278 F.2d 49 (2d Cir. 1960) ...............

Lopes v. Reedere: Richard Schroder, 225 F. Supp.

TD ciccesecssccccscccccccccccce

Martins v. Ballard, 16 F. Cas. 923 (D.C.S.C. 1794)

DEED BESS eScesecccccecesccsecccccccccces

Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793)

ee ocak cesececoccocesoceces

EEE EES IEE LEE EEE POPPE ESTE EE

The Paquete Habana, 175 U.S. 677 (1900)..........

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

Rodriguez v. United States, 480 U.S. 522 (1987) .....

The Santissima Trinidad, 20 U.S. (7 Wheat.) 283

GREED SOS esecsesecccccccccccccccccccccccccces

The Schooner Exchange v. McFaddon, 1|\ U.S. (7

tt pierkescéecccscccccecccccces

Talbot v. Jansen, 3 U.S. (3 Dall.) 133 (1795) ........

Tel-Oren v: Libyan Arab Republic, 726 F.2d 774

SD EEE occcccccccccccocccccccccccccces

Trans-Continental Investment Corporation, S.A. v.

Bank of the Commonwealth, 500 F. Supp. 565

TT Recsbesecesescccocecceccocecccce

Valanga v. Metropolitan Life Insurance Company,

259 F. Supp. 324 (E.D. Pa. 1966) ................

ill

IV TABLE OF AUTHORITIES

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

GBD (IGEB) . c ccccccccccccccccccccccccccescccecs ll

Von Dardel v. Union of Soviet Socialist Republics,

623 F. Supp. 246 (D.C. D.C. 1985)... .... cece ees 10

Constitutional Provisions, Statutes and Rules:

U.S. Constitution, Art. I, §8, Cl. 10........666 eee: 4

Alien Tort Statute, 28 U.S.C. §1350 (1982), Judiciary

Act of 1789, Ch. 20, 1 Stat. 73, 77.......-.0eeeees passim

Foreign Sovereign Immunities Act of 1976, Pub. L.

No. 94-583, 90 Stat. 2891 (codified at 28 U.S.C.

1330, 1391(f), 1602, et seq.)

Gemaselby on ccccccccccccccccccccccccesccccsess passim

SIGOR(C). cn cccccccccccccccccccccscccessseees 12, 13

BIGOS .. cc cccccccccccccccccccesccesscesscees 9

S1GOS(al) .... cc eccccccccccccccccccessccceees 10

§$1GO5(aY(5) 2... ccc cece ecccccccceececeseeeceees 12, 13

18 U.S.C. 1651 (1962) 0... ccc cccccccccccccccceces 4

28 U.S.C. 1251(a)(2) (1982) 2... cece eee ee eee eee 4

46 C.F.R. §308.1b (1987) 2.2.6.2 cece ee eeeeeeeeeee = 14

Conventions and Treaties:

Declaration of Panama, October 3, 1939, U.S. Dept.

of State Bulletin, Vol. 1, p. 331 (See A. 313) ......

Declaration of Paris, March 30, 1856 (See A. 253) ...

Geneva Convention on the High Seas, April 29,

1958, 13 U.S.T. 2312 (See A. 317)... 6... ee ee eee 7,9, 10

ee ee

TABLE OF AUTHORITIES

International Convention Concerning the Rights

and Duties of Neutral Powers in Naval War

(Hague Convention), October 18, 1907, 36 Stat.

GUUS Beeb OED Scseccesoccccccsccccececececeses

London Naval Conference, February 26, 1909, Ameri-

can Journal of International Law 179 (See A. 269

BAAR Pccccccccccscccccescceccccececececeseses

Pan American Convention Relating to Maritime

Neutrality, Feb. 20, 1928, 47 Stat. 1989, T.S. 845

GEED Be, Tipo ccccccccscccccccccccsevceccceces 6, 9, 10

The United Nations Law of the Sea Convention,

December 10, 1982, U.N. Doc. A/Conf. 62/122.

DTT ciedcntctebcn de eeedeedndamnseneans

Miscellaneous:

W. Blackstone, Commentaries on the Laws of Eng-

land (London, 14th Ed. 1803)................0..

Business Insurance, May 23, 1988, at 4, col. 1 .......

W. Casto, The Federal Courts’ Protective Jurisdiction

Over Torts Committed in Violation of the Law of

Nations, 18 Conn. Law Review 467 (1986) .......

G. Gilmore and C. Black, The Law of Admiralty,

SP SES GEE ecccuucccescosecaceses

P. Loree, Hercules and the Gulf, Fairplay, February

Se MO EES © Sucoceccceonsesesocenesee:

Memorandum for the United States as Amicus Curiae,

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)

reprinted in 19 I.L.M. 582 (1980) ................

W. Winter, Marine Insurance, 423-424 (3d Ed. 1952).

16

-

)

.

In the

Supreme Court of the United States

OCTOBER TERM, 1987

ARGENTINE REPUBLIC,

Petitioner,

v.

AMERADA Hess SHIPPING CORPORATION

and Unrrep Carriers, INc.,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE SECOND CIRCUIT

Statement of Interest of the American Institute of

Marine Underwriters and Motion for Leave to Inter-

vene as Amicus Curiae in Support of the Respondents.

The American Institute of Marine Underwriters (AIMU)

hereby requests permission to file a brief amicus curiae in

the above matter. Consent of all parties has been duly

requested. Respondents have consented to the filing of this

brief. Counsel for the petitioner has referred the matter to

the Argentine Foreign Ministry but no response has been

received.

AIMU is a national trade association of over 110 insur-

ance companies, each of which is authorized to engage in

the business of marine insurance in one or more states of

the United States. Issues of extreme importance to AIMU

and its member companies are presented in this case.

AIMU’s membership underwrites approximately 90% of

the marine insurance written in the United States. The

insurance covers vessels and cargoes engaged in worldwide

2

commerce and losses that may occur anywhere in the

world.

In filing this brief amicus cursae, AIMU is acting in

support of the American marine insurance community as

well as all maritime interests engaged in U.S. domestic or

foreign trade. The United States has a vital interest in the

protection of neutral shipping on the high seas. Today,

only a small percentage of the ocean-borne foreign trade

of the United States is carried on U.S.-flag ships. U.S.

commerce relies heavily on foreign-flag vessels such as the

HERCULES.

A neutral shipowner engaged in U.S. domestic trade

must not be denied the right to adjudicate his claim in

American courts. Any narrowing of the admiralty jurisdic-

tion of U.S. courts would have a deleterious effect upon

the marine war-risk and other marine insurance markets.

Costs and availability would be adversely affected.

AIMU respectfully prays that this honorable Court

accept its brief amicus curiae.

Respectfully submitted,

MarILyN L. LytLe

Counsel of Record

Douc.as A. JACOBSEN

BIGHAM ENGLAR JoNnES & Houston

14 Wall Street

New York, New York 10005

(212) 732-4646

Attorneys for the A. erwan

Institute of Marine Underwriters

Amicus Curae

August 1988

i a tl Atami

In the

Supreme Court of the United States

OCTOBER TERM, 1987

ARGENTINE REPUBLIC,

Petitioner,

v.

AMERADA Hess SHIPPING CORPORATION

and Unrrep Carriers, INc.,

Respondents.

Own Wart oF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE Second Ciracurr

BRIEF OF THE AMERICAN INSTITUTE OF

MARINE UNDERWRITERS AS AMICUS CURIAE

IN SUPPORT OF THE RESPONDENTS

Summary of Argument

Argentina's illegal acuions in bombing the HERCULES on

the high seas without provocation or warning, failing to

provide a forum to adjudicate the rights of the owner and

charterer of the vessel, and refusing to make restitution for

the losses resulting from its actions violate the “Law of

Nations” so as to confer jurisdiction under the Alien Tort

Statute, 28 U.S.C. §1350. Argentina's actions, which alsc

violate several international agreements to which Argentina

and the United States subscribe, preclude immunity under

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

seq. The United States of America has a strong interest in

providing a forum to adjudicate the nghts of a neutral

shipowner engaged in U.S. domestic wade. Maritime

interests in the U.S. would be adversely affected by any

narrowing of U.S. admiralty jurisdiction.

4

ARGUMENT

L

The illegal bombing by Argentina of a neutral

vessel on the high seas violates the “Law of Nations”

so as to confer jurisdiction under the Alien Tort

Statute, 28 U.S.C. §1350.

The Alien Tort Statute gives the distri t courts original

jurisdiction for suits by aliens for torts committed in

violation of the “Law of Nations” or a treaty of the

United States, 28 U.S.C. §1350. The plain language of the

statute provides that if an alien sues solely for a tort

committed in violation of the “Law of Nations,” the

district courts have jurisdiction to hear the case. “Once a

tort can be considered to be in violation of the law of

nations, §1350 allows immediate access to a Federal Court.”

Valanga v. Metropolitan Life Insurance Company, 259

F.Supp. 324, 328 (E.D. Pa. 1966).

Whether considered by eighteenth-century or modern-

day standards, the unprovoked attack without warning

upon an innocent, neutral merchant vessel on the high

seas without compensation violates the “Law of Nations.”

The Alien Tort Statute was enacted as part of the Judiciary

Act of 1789, Ch. 20, | Stat. 73, 77. The term “Law of

Nations” was employed elsewhere in eighteenth-century

legislation as well as in the U.S. Constitution. See, 28

U.S.C. §1251(a)(2) (original jurisdiction over actions against

ambassadors “not inconsistent with the law of nations”):

18 U.S.C. §1651 (punishment for those who commit “the

crime of piracy on the high seas as defined by the law of

nations... . ’’); and Art. I, §8, Cl. 10 of the U.S. Constitu-

tion (Congress has the power “[t)o define and punish Piracies

and Felonies committed on the high seas, and offenses

against the Law of Nations”). These enactments are

reflective of the generally accepted view in 1789 that the

“Law of Nations” included three primary offenses: “ ‘1.

5

Violation of safe-conducts; 2. Infringement of the rights of

embassadors; and 3. Piracy."’ Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774, 813 (D.C. Cir. 1984) quoting 4 W.

Blackstone, Commentaries, 68, 72. Violation of safe conduct

is the forerunner of the modern-day notion of neutrality.

Violations of safe conduct occurring at sea were decided by

the admiralty courts. 4 W. Blackstone, Commentaries, 69.

Leading eighteenth-century legal experts, including

Wilson and Blackstone, confirm that the “Law of Nations”

encompassed admiralty or the law maritime. See, The

Federal Courts’ Protective Jurisdiction Over Torts Com-

mitted in Violation of the Law of Nations, 18 Conn. Law

Review 467, 505. The notes of Oliver Ellsworth in drafting

the Alien Tort Statute show that the courts were to have

jurisdiction over seizures of vessels on the high seas in

violation of the “Law of Nations.” (J.A. 112).' The early

decisions recognizing and enforcing the ‘Law of Nations”

under Section 1350 primarily relate to maritime matters.

See, Lopes v. Reedere: Richard Schroder, 225 F. Supp. 292,

296 (E.D. Pa. 1963). Indeed, virtually every carly case

involving the Alien Tort Statute related to a violation of

safe conduct or the law of capture concerning neutrals at

sea. See, ¢.g., Jansen v. The Vrow Christina Magdalena, \3

F. Cas. 356, 358 (D.C.S.C. 1794) (No. 7,216), aff'd sub.

nom., Talbot v. Jansen, 3 U.S. (3 Dall.) 133 (1795);

Bolchos v. Darrell, 3 F. Cas. 810 (D.C.S.C. 1795) (No.

1,607); Martins v. Ballard, 16 F. Cas. 923, 924 (D.C.S.C.

1794) (No. 9,175); Moxon v. The Fanny, |7 F. Cas. 942,

947-948 (D. Pa. 1793) (No. 9,895). There is no aoubt that

the “Law of Nations” pertains to violations of the law of

war. In re Yamashita, 327 US. 1, 7 (1946).

The court below found that the uncompensated attack

upon an innocent merchant vessel on the high seas was

tamtamount to piracy. Amerada Hess Shipping Corp. v.

Argentine Republic, 830 F.2d 421, 424 (2d Cir. 1987). (Pet.

' Respondents’ Jomt Appendix.

6

App. la-2la).* That decision is consistent with eighteenth-

century legal practice and case law which held violations

of the rights of neutral vessels on the high seas contrary to

the “Law of Nations.”

Courts have held that, in the context of Section 1350, a

violation of the “Law of Nations’ means a violation of

those standards, rules or customs which affect the relation-

ship between states or between an individual and a foreign

pro pon ny ey eae an Se Ge een

or in ings inter se. Lopes, supra, at

_ — IIT v. Vencap Ltd., 519 F.2d 1001, 1015 (2d

, ).

International law clearly recognizes the right of innocent

passage, both through the territorial sea and on the high

seas. See, Khedivial Line, S.A.E. v. Seafarers’ International

Union, 278 F.2d 49, 52 (2d Cir. 1960). This principle of

law is of the utmost importance to all maritime nations.

International instruments and agreements protecting the

rights of neutrals at sea date as far back as the Declaration

of Paris in 1856 (A. 253).’ The Hague Convention of 1907

specifically requires belligerents to respect the rights of

neutrals in neutral waters and to abstain from any act

which would constitute a violation of neutrality. The

bombing of an unarmed, neutral merchant ship on the

high seas without provocation or warning is also a

violation of the London Naval Conference of 1909 (A. 269

and of the Pan American Convention Relating to Mari-

tome Neutrality of 1928 (A. 292). Argentina is a signatory

to both the Hague and Pan American Conventions. The

bombing of the Hercutes occurred in waters protected

from hostile acts by the Declaration of Panama of 1939 (A.

313). International law protects the rights of neutral

vessels on the high seas. An attack on an unarmed

merchant ship on the high seas by a belligerent violates

* Petnuoner s Appendix.

' Respondents Appendix in the Second Circuit

7

the standards of conduct to which nations universally

adhere.

The Law of the Sea Convention (A. 327) and the Geneva

Convention on the High Seas of 1958 (A. 317) both require

that neutral vessels be compensated for any loss or damage

sustained for violations of these standards. Argentina has

signed both Conventions. Not only has Argentina violated

the “Law of Nations” by attacking a neutral vessel, it has

refused to provide a forum to adjudicate the rights of

and refused to make restitution for the loss of

the ship and other property. This disregard for inter-

national standards of conduct is virtually unprecedented

in modern times.

Clearly, this controversy meets the generally settled test

for application of the Alien Tort Statute. Plaintiffs are

aliens and intentional destrucuon of a ship sounds in tort.

The dispute implicates several treaties and a body of

customary international law. See, Trans-Continental In-

vestment Corporation, S.A. v. Bank of the Commonwealth,

500 F. Supp. 565, 570 (C.D. Ca. 1980). The wrongs

complained of, the bombing of an innocent merchant

vessel and the denial of a forum for review, are of mutual

concern to the nations of the world expressed in several

international conventions. The conduct of Argentina so

offends universally accepted principles of civilized conduct

that it violates the “Law of Nations.” Argentina's illegal

bombing of the Hercuces is a violation of international

law within the meaning of the Alien Tort Statute.

The greater the degree of codification or consensus

concerning an area of international law, the more appro-

priate it is for our courts to render decisions regarding it.

See, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

(1964). International law is a part of the law of our land.

The Paquete Habana, |175 U.S. 677, 700 (1900). The right

of innocent passage on the high seas is so well codilied

internationally and ts so universally accepted by civilized

nations that U.S. courts can render decisions

rights of neutral vessels. The Alien Tort Stat

§

1

aF

U.S. 102, 108 (1980). The district courts have original

jurisdiction over suits by aliens for torts committed in

violanon of the “Law of Nations.”

Argentina should be denied immunity under the

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

et seq. and the Alien Tort Statute, 28 U.S.C. §1350,

for the illegal bombing of a neutral vessel on the

high seas and for refusal to make restitution.

The primary purpose in enacting the Foreign Sovereign

Immunities Act, 28 U.S.C. 1602, et seq., Pub. L. 94-583, 90

Judicial Branch of government, thereby hi

that such decisions would be made on legal rather than

political grounds.’’ National Airmotive v. Iran, 499 F.

Supp. 401 (D.C. D.C. 1980). Political expediency should

not play a role in the decision. In the past, the U.S

Department of State has taken the position that the Alsen

Tort Statute would provide jurisdiction over a foreign

sovereign for an attack on a neutral vessel.

“Indeed, it has long been established that in

certain situations, individuals may sue to enforce

their mghts under internauional law. For example

when a ship is seized on the high seas in violation

of international law, the owner of the ship may

sue to recover the ship as well as seek damages.”

Memorandum for the United States as Amicus

Curiae, in Filartiga v. Pena-lrala, 630 F.2d 876

(2d Cir. 1980) reprinted in 19 LL.M. 582, 602

(1980). (Emphasis added. )

Argentina is not entitled to immunity and should be

held accountable for its attack on a neutral merchant

vessel in contravention of international law. There are

for the denial of immunity under the

Foreign Sovereign Immunities Act. Each one alone would

be sufficient to bar immunity for Argentina in this matter

Together they constitute an overwhelming case for the

exercise of jurisdiction by U.S. courts over the Republic of

Argenuna in this matter.

ii

at the time of enactment of this Act.” 28 U.S.C. §1604. In

1976, whew the Foreign Sovereign Immunities Act was

was party to the Geneva Con-

:

payment of restitution in the event of any interference

with that right. The Republic of Argentina also has

signed both these treauies. Argentina s actions in bombing

B Argentina has waived any to soverergn ummunity

by vistating intentional Getioes onan

Section 1605(a\1) of the Foreign Sovereign Immunities

Act provides that a foreign state will not be immune in

any case in which that state has waived its immunity

either explicitly or implicitly. Argentina is a signatory to

Through its illegal actions in bombing the Heacutss and

refusing to make restitution thereafter, Argenuna has

torfened any claim it may have had to the shield of im-

munity. Von Derdel v. Umon of Soviet Socialist

hes, 623 F. Supp. 46 (D.C D.C. 1985); 28 U.S.C. §1605¢ay 1).

C The Foreign Soverergn immunities Act must be inter-

preted im a manner ‘onsistent with international law

The destruction of a neutral vessel on the bigh seas

without provocation violates well-codified prnaples of

imternauonal law Argentina's action violates the stand-

ards of mmternational conduct and thereby the United

Mates common law (supra, p. 7-8). “[Floreign soverergn

Il

immunity is a matter of grace and comity on the part of

the United States... . "’ Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 486 (1983). There is no justification

for granting foreign sovereign immunity to a country

which has violated its own international agreements and

departed from standard international conduct in refusing

to make restitution. ‘Neutral trade is entitled to protection

in all Courts.” The Bermuda, 70 U.S. 514, 551 (1865).

Argentina is not entitled to immunity.

“Since the sinking of a neutral vessel on the high

seas without justification violates a substantive

principle of international law, no matter who

does the sinking, there is no immunity under

international law in this case.’ Amerada Hess

Shipping Corp. v. Argentine Republic. Supra,

at p. 5.

There is no other forum in which Liberian plaintiffs in

this matter can obtain justice. The only place that the

owner and charterer of this neutral vessel can seek redress

is in U.S. courts. An “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... . '’ The Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.). It

would be inconsistent with international law to interpret

the Foreign Sovereign Immunities Act in a matter which

does not uphold the rights of neutral shipping.

D. Congress did not intend to repeal the Alien Tort

Statute when it enacted the Foreign Sovereign Im-

munities Act.

At the time of enactment of the Alien Tort Statute, a

sovereign could not violate the ‘‘Law of Nations” on the

high seas with impunity. As a general rule, there was no

blanket immunity for foreign states. The Schooner Ex-

change v. McFaddon, 11 U.S. (7 Cranch) 116 (1812). The

12

Alien Tort Statute was conceived as a vehicle to protect

the rights of neutral vessels against aggression by belliger-

ents. (See discussion, supra, p. 4-5). Foreign sovereigns

were only entitled to immunity if they acted within

international law. Foreign ships of war may receive im-

munity, as a matter of comity, only if they demean

themselves according to the law. The Santissima Trinidad,

20 U.S. (7 Wheat.) 283, 352 (1822). A foreign sovereign in

violation of the “Lav of Nations” is subject to the

jurisdiction of U.S. courts. Jd. at 349, 352-354.

The legislative history of the Foreign Sovereign Im-

munities Act is silent on the subject of the Alien Tort

Statute. As repeal by implication is frowned upon, Rod-

riguez v. U.S., 480 U.S. 522 (1987), amicus submits that

Congress did not intend to foreclose access to the federal

courts for an alien whose rights to neutrality have been

violated on the high seas. See, Affidavit of Dr. Ved P.

Nanda (J.A. 97, 99). Any other determination would

narrow the admiralty jurisdiction of the United States

courts and preclude alien plaintiffs whose neutral rights

had been violated in contravention of international law

from seeking redress in the United States courts as origi-

nally intended by the Alien Tort Statute.

Section 1605(a)(5) of the Foreign Sovereign Immunities

Act provides an additional exception to the application of

the Foreign Sovereign Immunities Act. Under the “tort

exception,’ 28 U.S.C. §1605(a)(5), a foreign state may not

be accorded immunity for damage to or loss of property

occurring in the United States and caused by the tortious

act or omission of that foreign state. Section 28 U.S.C.

1603(c) defines the term “United States” for purposes of

the Foreign Sovereign Immunities Act to include “all

13

territory and waters, continental and insular, subject to

the jurisdiction of the United States.”

The admiralty jurisdiction of U.S. courts extends to the

high seas. “Every species of tort, however occurring, and

whether on board a vessel or not, if upon the high seas or

navigable waters, is of admiralty cognizance.” The Ply-

mouth, 70 U.S. (3 Wall.) 20, 36 (1865).*

“Briefly, the admiralty jurisdiction of the United

States extends to all waters, salt or fresh, with or

without tides, natural or artificial, which are in

fact navigable in interstate or foreign water com-

merce..." G. Gilmore and C. Black, The Law

of Admiralty, 31-32 (2d Ed. 1975).

“Obviously the high seas are included . . . " id. at p. 31.

The attack on the Hercutes took place on the high

seas. The high seas are waters subject to the jurisdiction of

the United States as provided in 28 U.S.C. 1603(c). Accerd-

ingly, the bombing took place within waters over which

the United States has jurisdiction for purposes of §1605

(aX(5).

The attack caused direct injury to the American economy.

(See, infra, p. 15). Argentina should not be accorded im-

munity. The bombing of the Hercutes constituted a

tortious attack within the United States for purposes of

the Foreign Sovereign Immunities Act. Therefore, Argen-

tina may not be accorded immunity and the complaint of

Liberian plaintiffs in this matter should be heard.

‘In Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249

(1972), this definition was modified to require that the wrong

bear a significant relations ip to traditional maritime activity.

14

The United States has a strong interest in the

outcome of this dispute which warrants a hearing in

U.S. courts.

The United States has a vital interest in the protection of

neutral shipping on the high seas. Today, only a small

percentage of the ocean-borne foreign trade of the United

States is carried on U.S.-flag ships. The dependence of the

United States on such foreign commerce has increased

substantially since World War II. Yet the number of U.S.-

flag ships continues to dwindle. U.S. companies have

developed foreign-flag fleets under “flags of convenience’

from nations such as Liberia and Panama. The dependence

of U.S. foreign commerce on such foreign-flag ships is an

economic reality of the twentieth century. The U.S. Mari-

time Administration has taken the position that foreign-

flag vessels owned by American interests may be requisi-

tioned in time of war. They are also eligible to participate

in the government war-risk insurance program which

would go into effect in time of war. 46 C.F.R. §308.1b

(1987).

The importance of such foreign-flag vessels to the

American economy is exemplified by the employment of

the Hercuces (A. 220-223). From the opening of the

Trans-Alaska pipeline in 1977 until the destruction of the

HERCULES, the vessel was employed by Amerada Hess in

the United States domestic trade. The HERCULES carried

Alaskan crude oil to the Amerada Hess refinery in the U.S.

Virgin Islands. The Hercues was a foreign-flag vessel

trading in domestic, interstate U.S. commerce. Eighty-

three percent (83%) of the refined products manufactured

from the crude oil carried by the HERCULES was consumed

within the continental United States. It has been estab-

lished that the balance was marketed in the Virgin Islands

or purchased directly by the United States government.

A

15

See, American Maritime Association v. Blumenthal, 590

F.2d 1156, 1158-1160 (D.C. Cir. 1978).

As a result of Argentina's unprovoked attack on the

Hercuces, the owners suffered the loss of a vessel employed

in U.S. domestic trade and the loss of U.S. charterhire

payable in U.S. dollars in the United States. The charterers

lost the use of the vessel in U.S. domestic trade and the

bunkers (fuel) on board the vessel which were sold and

delivered within the United States before the voyage. The

bombing of the HERCULES resulted in direct economic losses

in the U.S. economy.

The United States has a vital interest in protecting the

rights of neutral vessels on the high seas throughout the

world. Most recently, U.S. naval power has acuvely protected

the rights of merchant shipping in the Persian Gulf to keep

vital ship lanes open. Since May of 1981 at least 524 vessels

had been destroyed or damaged in the Persian Gulf. (Business

Insurance, May 23, 1988, at 4, col. 1.) Industry analysts have

indicated that few of such incidents would result in lawsuits

in the United States, P. Loree, Hercules and the Gulf,

Fairplay, February 11, 1988, at 12, col. 1. The threat to

neutral and American shipping remains strong and has a

courts must continue to provide a forum for the adjudication

of rights of American shipowners and of neutral ship-

owners engaged in U.S. domestic trade if the ocean-borne

commerce of the United States is to remain free. This ts

especially true in this rare case when no other forum is

available. See generally, Brief of the Republic of Liberia as

Amicus Curiae in Support of Respondents, at 27-28.

Another important economic factor to be considered 1s the

cost and availability of marine insurance. The market for

insuring blue water or ocean-going hulls such as the

Hercu ces is an international one. A large portion of the

war-risk insurance on vessels such as the Hercutes may be

placed in the American ocean marine insurance market.

16

Obviously, losses of the magnitude of the Hercutes affect

rates paid by other shipowners.

Traditionally, ocean marine insurers offset substantial

losses through “recovery programs” in which the rights of

the shipowner (who has been paid for his losses) are

subrogated to the underwriter. The insurer then proceeds

against the wrongdoer who caused the loss in an attempt to

recoup costs paid. Such recovery programs reduce insurance

costs. See, Winter, Marine Insurance, pp. 423-424, 3rd Ed.,

1952; Gilmore & Black, supra, p. 91-92. If marine insurers

anucipate that there will be no forum in which to vindicate

the nghts of neutral shipowners, the cost and availability of

marine war-risk insurance could be seriously affected.

The manume community, composed of shipowners, char-

terers, marine underwriters and others, is a complex inter-

dependent upon one another. It is vital that U.S. courts be

available for the protection of maritime commerce in which

the U.S. has an interest, including the rights of neutral vessels

matters must not be restricted in any way.

The admiralty jurisciction of the U.S. courts should not

be narrowed as a result of a decision in this matter. The Alien

Tort Statute was enacted in the eighteenth century to

provide a remedy for aliens whose rights were infringed

upon in violation of the “Law of Nations.” As originally

conceived, the statute was part of admiralty jurisdiction.

(See, supra, p. 5) Fortunately, in modern times it has not

been necessary to utilize the Alien Tort Statute to provide a

forum for neutral shipowners to litigate a violation of

their mghts, because most nations recognize and abide by

international agreements. It is imperative that the U.S.

district courts remain as a forum wherein the rights of

neutral merchant vessels attacked without provocation on

the high seas may be adjudicated. This is especially true in

the context of this unusual case. Deprived of a potential

17

_ American maritime interests would be unprotected

and dhs erighnal inal intent of the Judiciary Act of 1789 would

be vitiated.

CONCLUSION

It is respectfully submitted that the decision of the

lower court is correct and that respondents’ claims

should be heard.

Respectfully submitted,

Maarityn L. Lyte

Counsel —

DouGLAS ACOBSEN

BiGHAM ie Jones & Houston

14 Wall Sureet

New York, New York 10005

(2) 2) 732-4646

Attorneys for the American

Institute of Marine Underwriters

Amicus Curae

August 1988