Appendix — Arango v. Compania Dominicana de Aviacion

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(9) Supreme Court, U.S,

85-5 23% | FILED

AUG 19 1985

NO. JOSEPH F. SPANIOL, JR.

CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984 |

RAMIRO ARANGO, Petitioner

COMPANIA DOMINICANA,

de AVIACION, Respondent

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

SUPPLEMENTAL APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

ON WRIT OF CERTIORARI TO THE

MIGUEL SAN PEDRO, ESQ.

Attorney for Petitioner

154 Gireld- Avenue

Coral Gables, Florica 33134

Telephone: 305-448-4728

INDEX

Opinion of the U.S. Circuit

Court for the Fifth Circuit in

the case subjudice, dated on

7-25-1980

Opinion of the U.S. Circuit

Court for the Eleventh Circuit

in the case subjudice, dated

on 6-4-1985

— 2 -

57-110

eee Aen samo.

Ramiro ARANGO and Gabriella Arango,

Individually, etc., et al., Plaintiffs-

Appellants,

Vv.

GUZMAN TRAVEL ADVISORS CORPORATION, etc.,

et al., Defendants-Appellees.

No. 79-1280.

United States Court of Appeals,

Fifth Circuit.

July 25, 1980.

Based on nonperformance of vacation

tour contract and the injuries and in-

conveniences suffered in “involuntary re-

routing" from Dominican Republic vacation

site, plaintiffs brought suit in state

court against four defendants, all al-

leged to have collaborated in the mar-

keting and formation of the package tour

so as to create a joint venture for pur-

poses of the action arising therefrom.

One defendant, the national airline of

the Dominican Republic, removed the

claims to federal district court. On ap-

peal from an order of the United States

District Court for the Southern District

of Florida, at Miami, James Lawrence

King, J., dismissing suit against the

airlime, the Court of Appeals, Reavley,

Circuit Judge, held, inter alia, that

the removal statute, when invoked by a

"foreign state" defendant, operates to re-

move the entire action pending in state

court against all defendants, private and

domestic, as well as the foreign sover-

eign; accordingly, in the instant case,

when the national airline of the Domini-

can Republic removed plaintiffs’ claims

against it to federal court, it carried

with it the remaining parties in the

state proceeding; thus, the order of dis-

siemeaienemnemiendieeeteieen dette th tarees Cee ee

missal as to the airline did not adjudi-

cate the rights and liabilities of all

parties and was not an appealable final

judgment.

Appeal dismissed and cause remanded.

1. Federal Courts --542

Though neither party raised the is-

sue of appealability, it is axiomatic

that the Court of Appeals may, indeed

must, undertake such a jurisdictional

inquiry sua sponte. 28 U.S.C.A. $ 1291.

2. Federal Courts --599,660

Ordinarily, an order, however desic-

nated that adjudicates the rights and

liabilities of fewer than all parties is

not final or appealable unless the dis-

trict court "certifies" appealability by

making an express determination that

there is no just reason for delay and

then explicitly directs the entry of

judgment on the order; this principle

applies even to dismissals based on

jurisdictional or immunity grounds not

pertinent to the rights and liabilities

of the remaining parties. 28 U.S.C.A.

$ 1291; Fed.Rules Civ.Proc. Rule 54(b),

28 U.S.C.A.

3. Federal Courts --600

Removal of Cases --58

Removal statute, when invoked by a

"foreign state” defendant, operates to

remove the entire action pending in state

court against all defendants, private and

domestic, as well as the foreign sover-

eign; accordingly, in the instant case,

when national airline of the Dominican

Republic removed plaintiffs' claims a-

gainst it to federal court, it carried

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with it the remaining parties in the

state proceeding; thus, the order of dis-

' missal as to the airline did not adjudi-

cate the rights and liabilities of all

parties and was not an appealable final

judgment. 28 U.S.C.A. 88 1291, 1441(d);

Fed.Rules Civ.Proc. Rule 54(b), 28 U.S.C.

4. International Law -- 10.33

While defendant national airline,

wholly owned by the Dominican Government,

undisputably was a "foreign state" as de-

fined for purposes of the For2ign Sover-

eign Immunities Act, it failed to demons-

trate, with respect to the entirety of

plaintiffs' action against it, that the

claims did not lie within any exception

specified in the Act; although the air-

line's actions in: connection with the

"inveluntary re-routing" of the vacation

our plaintiffs were not commercial and

ithus did not come within exception to the

lanket grant of immunity, the same could

gnot be said of plaintiffs' claims for

breach of warranty and contract based on

the miscarriage and nonperformance of the

jtour and apparent failure of defendants to

refund the price paid. 28 U.S.C.A. 38

1603(a), (d, e), 1694, 1605-1607, 1605 (a)

(2).

5. International Law --10.8

Act of state doctrine is an embodi-

ment of the deference to be accorded the

sovereignty of other nations; it averts

potential diplomatic embarrassment from

the courts of one sovereign sitting in

judgment over the public acts of another.

6. International Law --10.8

Act of state doctrine does not simply

relieve the foreign government of liabili-

ty for its acts, but operates as an issue

preclusion device, foreclosing judicial

inquiry into the validity or propriety of

such acts in litigation between any set of

parties.

7. International Law --10.9, 10.33

Plaintiffs' battery and false impris-

onment claims against airline wholly owned

by the Dominican Republic were foreclosed

under the act of state doctrine, as well

as under the Foreign Sovereign Immunities

Act, since those claims would, by defini-

tion, require an adjudication of the

propriety and legality of the acts of the

Dominican immigration authorities--and,

more, specifically, of airline employees

while effectively deployed as agents of

that government under orders of those

authorities-in the performance of their

official governmental duties in denying

plaintiffs entry into the Dominican Repu-

blic and effecting their removal. 28

U.S.C.A. & 1604.

8. International Law --10.8

Act of state doctrine only precludes

judicial inquiry into the legality, va-

lidity and propriety of the acts and moti-

vations of foreign sovereigns acting in

their governmental roles within their own

boundaries; it does not preclude judicial

resolution of all commercial consequences

stemming from the occurrence of such

public acts.

9. International Law --10.9

Sale of airline tickets and tourist

cards to plaintiffs by the national air-

line of the Dominican Republic and its

activities and omissions in connection

therewith, which took place wholly in the

United States, were not “acts of state"

insulated under the act of state doctrine.

10. Carriers --280(1.), 303(7)

Under the law of Florida, the state

in which contract for air transportation

was executed and in which performance

commenced, common carrier was required to

exercise the highest degree of care, fore-

sight, prudence, and diligence toward its

passengers; this specifically included a

duty to warn a passenger, upon the pur-

chase of a ticket, of potential danyers

from third parties at the point of

arrival.

ll. Carriers --303(1)

If plaintiffs could demonstrate

either that defendant national airline of

the Dominican Republic, with knowledge of

a list of undesired foreigners who would

be denied entry into the Dominican Repu-

blic, sold plaintiffs “tourist cards" upon

the false assertion that those cards, a-

lone, would assure their entry into the

country, or that the airline had access

tc list, knew or should have known that

plaintiffs' names were on it, and there-

fore that the object of their vacation

tour contract was impossible, yet pro-

ceeded to arrange for their vacation air

transportation, a cognizable cliim against

the airline would be proved.

Appeal from the United States Dis-

trict Court for the Southern District of

Florida.

Before GOLDBERG, GARZA and REAVLEY,

Circuit Judges.

REAVLEY, Circuit Jud-7:

Plaintiffs-appellants, Ramiro Arango

and his family, attack the district

court's dismissal of their tort and

breach of contract claims against ap-

pellee, Compania Dominicana de Aviacion

("Dominicana"), the national airline of

the Dominican Republic. Dominicana, one

of four defendants against whom suit had

originally been filed in a Florida State

court, had removed the claims to federal

district court pursuant to 28 U.S.C. 3

1441(d). We conclude that § 1441(d)

operated to remove tne claims against the

remaining state court defendants, as

well, and, consequently, that the order

dismissing Dominicana, alone, did not

constitute a final judgment appelable

under 28 U.S.C. 31291 because it failed

to adjudicate the rights and liabilities

of all parties properly before the court.

Fed.R.Civ.P. 54(b). Therefore, we dis-

miss the appeal.

The Arangos' claims arose from the

events of an abortive package vacation tour

from Miami, Florida to the Dominican Re-

public. The Arangos' jaunt terminated

abruptly and prematurely when Dominican

immigration officials denied them entry

into that country upon their arrival at

the airport in Santo Domingo, apparently

because of their inclusion on an official

list of "undesiranle aliens". The of-

ficials then compelled the Arangos' im-

mediate, “involuntary re-routing" back to

the United States via Dominicana, the air

jae

carrier on which they had arrived. Be-

cause of the unavailability of immediate

return flights directly to Miami, the

requirement that the Arangos leave the

country resulted in their being shunted

first to San Juan, Puerto Rico, and the

next day to Port-au-Prince, Haiti, where

they apparently were left to arrange and

pay for their own return to Miami, which

they finally -were able to accomplish four

days later.

Based on the non-performance of the

facation contract and the sundry injuries

and inconveniences suffered in their "in-

voluntary re-routing”, the Arangos brought

F suit in state court.against four defen-

dants, all alleged os have collaborated

in the marketing and formation of the

package tour so as to create a joint ven-

ture for purposes of the action arising

therefrom: Guzman Travel Advisors Corp.,

a Plotide corporation and the actual pur-

veyor of the package tour; Trailways

Travel & Tourism International Corp.,

also a Florida corporation and the tour

organi-*r; Sheraton Hotels & Inns, World

Corp., a foreign corporation whose local

hotel was to provide food and lodging;

and the appellee here, Dominicana, which

was to provide air transportation and

"tourist cards" necessary for entering

the Dominican Republic and which had been

responsible for the Arangos' carriage

during their "re-routing" to the United

States. Wholly owned by the Dominican

government, Dominicana exercised its pre-

rogative under the relevant provisions of

the Foreign Sovereign Immunities Act of

1976 ("FSIA") as a "foreign state," 28

e.$.C. . 1603,- to remove the action to

1. 28 U.S.C. 1603 provides, in

pertinent. part:

For pusposes of this chazter-

(a) A “foreign state"...in-

cludes ...an agency or ins-

trumentality of-@ foreign

state as defined in subsec-

tion (b).

(b) An “agency or instrumen-

tality of a foreign state"

means any entity-.

(1) which is a separate legal

person, corporate or other-

wise, and ;

(2) which is an organ of a

foreign state or political

subdivision thereof, or a ma-

jority of whose shares or

other ownership interest is

owned by a foreign state or

political subdivision thereof, .

and .

(3) which is neither a citizen |

of a State of the United States

as defined in section 1332(c)

and (d) of this title, nor

created under the laws of any

third country (emphasis added).

} federal district court: pursuant to

has pean aap oan ee

ae ome Tae

Sindcheacath SA RA SEO OES. Ae PN SOT et AL TS ee ee

28 U.S.C. 8 1441 (a) 7. Once in federal

court, Dominicana moved to dismiss the

action under Fed.R.Civ.P. 12(b) (1), (6),

arguing first, that as a foreign sover-

eign, it was immune from the jurisdiction

| of the court under the pertinent provi-

jsions of the FSIA, 28 U.S.c. $8 1604-

407; and second, that the Arangos' com-

plaint stated no claim upon which relief

2. 28 U.S.c. 8 1441(d) provides:

(ad) Any civil action brought

against a foreign state as de-

fined in section 1603(a) of

this title may be removed by

the foreign state to the dis-

trict court of the United

States for the district and

division embracing the place

where such action is pending.

Upon removal the action shall

be tried by the court without

jury. Where removal is based

upon this subsection, the time

limitations of section 1446 (b)

of this chapter may be enlarged

at any time for cause shown.

eould be granted because all alleged

injuries derived from the official acts

of Dominican immigration authorities,

which acts are insulated from judicial

scrutiny in United States courts by the

"act of state" doctrine. Without spe-

cifying upon which ground it relied, the

district court granted the motion and

dismissed the suit against Dominicana.

I. APPEALABILITY OF THE ORDER

(1) The question that must precede

review of the order of dismissal as to

Dominicana is whether that order is at

this point a final judgment within our

appellate jurisdiction., 28 U.sS.c. 8

1291. Though neither party raised the

issue of appealability, it is axiomatic

hat this court may, indeed must, under-

take such a jurisdictional inquiry sua

sponte. Oswalt v. Scripto, Inc., 616 F.2d

191, 192 (5th Cir. 1980).

(2) The basis for our concern here

is whether the order dismissing the suit

with respect to Dominicana disposed of all

parties before the district court. Ordi-

narily, under Fed.R.Civ.P. 54(b) an order,

however designated, that adjudicates the

rights and liabilities of fewer than all

parties is not final or appealable under

$1291 unless the district court "certi-

fies" appealability by making an express

determination that there is no just reason

for delay and then explicitly directs the

entry of judgment on the order. Oswalt

v. Scripto, Inc., 616 F.2d at 194; Huckeby

§V. Frozen Food Express, 555 F.2d 542-545-46

(Sth Cir. 1977). See Curtiss-Wright Corp.

v. General Electric Co., --U.S.--, 100 S.

Ct. 1460, 1465-67, 64 L.Ed.2d 1 (1980)

(guidelines for issuance of rule 54(b)

"“certificate"). This principle

applies even to dismissals based on

jurisdictional or immunity grounds not

pertinent to the rights and liabilities

of the remaining parties. See, e.g.,

Morrisson v. City of Baton Rouge, 614

F.2d 77 (5th Cir. 1980); Cason v. Owen,

578 F.2d 572, 573-74 (5th Cir. 1978);

Huckeby v. Frozen Food Express, 555 F.2d

at 545-49.

Since Dominicana was the sole propo-

nent and subject of the dismissal order

and since no rule 54(b) “certificate” ac-

companied that order, our inquiry is di-

rected merely to whether or not there

were any other parties properly before

the court. This ordinarily simple ques-

tion is complicated here by the uncertain

scope of removal under $1441(d). If only

the claims against Dominicana were re-

moved to federal court, the order dis-

missing Dominicana obviously was final.

If, on the other hand, Dominicana's 21441

(d) petition precipitated a removal of the

entire case involving all defendants, the

rights and liabilities of those other de-

fendants have yet to be adjudicated, and,

consequently, the dismissal of Dominicana

is not yet final or appealable.

The district court, as well as the

state court and all the parties involved,

apparantently understood the removal to

have encompassed only the claims against

Dominicana. Neither the record nor mi-

nutes of the federal proceeding reflect

any filings by any of the other three de-

fendants or any judicial recognition of

their presence. > The state court pro-

ceeded with the claims against the

supposedly remaining defendants, and, in

fact, later dismissed the action as to

Sheraton and Trailways Travel. Nonethe-

3. Curiously, the Arangos did file

requests for admissions. Fed R.Civ

P.36. directed to Guzman and Trail~

ways Travel with the federal court.

R. at 37, 41,42. No answers or

further actions on these requests,

nor any recognition of them by the

court, are indicated in the record,

however.

4. Of course, as these two parties

will no doubts be chagrined to learn,

since we decide here that the removal

petition filed by Dominicana effected

the removal of the entire action

against all parties, all state pro-

ceedings in the case subsequent to

that court's receipt of the removal

petition, including these dismissals,

are void. 28 U.S.C. $1446(e); 1A

MOORE'S FEDERAL PRACTICE 0.168( 3 8),

at 515 16 (2d ed 1979). See e.g.,

Heniford v. American Motors Sales

Corp., 471 F.Supp. 328 (D.S.C.1979).

wless, while the confusion of the parties

and trial courts here is understandable -

this appears to be a question of first im-

pression - we are convinced that the

better -interpretation of $8 1441(d) is that

when a "foreign state" defendant in a

multiparty suit removes under that pro-

vision, the entire action against all

defendants accompanies it to federal

court.

The language of $1441(d) does not

expressly address its operation in mul-

tiparty lawsuits. Cf. 28 U.S.C. 31441 (c)

(explicitly providing for removal of "en-

tire case" when otherwise removable

claims are joined with a "separate and

independent" non-removable claim). None-

theless, its legislative history indicates

a rather clear congressional intent that

when a "foreign state," joined with other

non-foreign codefendants in state court,

petitions for removal, it is the action -

embracing all defendants - that is to be

transferred to federal court. The Report

of the House Judiciary Committee in its

section-by-section analysis of the FSIA,

states that "(n)ew subsection (d) of

section 1441 permits the removal of any

Such action at the discretion of the

foreign state, even if there are multiple

defendants and some of these defendants

desire not to remove the action or are

citizens of the State in which the action

has been brought". H.R.Rep. No. 94-1437,

94th Cong., 2d Sess. 32, reprinted in

(1976) U.S.Code Cong. & Admin. News. pp.

6604, 6631 (emplasis added) hereinafter

"H.R.Rep.") See also 14 C. Wright, A.

Miller & E. Cooper, Federal Practice &

Procedure § 3729 (Supp. 1979).

Since 2 1441(d) by its terms requires

no defendant other than the "foreign

state" to assent to or to join the removal

petition, the desires as to removal and

the citizenship of the non-foreign defen-

dants obviously would be wholly irrelle-

vant and would have warranted no comment

by the Committee if the action with res-

pect to them were not also to be‘removed.

Further, by its explicit delineation of

the imavietality of domestic, forum-

state citizenship of some of the defen-

dants, we are given a reflection of

Congress' specific intent that removal of

multi-party actions under the acgis of

this limited new provision should not be

susceptible to the general bar of 28 U.S.

c. 8 1441(b) against removal of multi-

party non-federal-question suits where

| any defendant is a citizen of the forum

state. Thus, the strong inference from

, the statement quoted above is that Con-

gress understood that a petition under

$1441 (a) would effect the removal of

_ the entirety of an action against mul-

: tiple defendants, foreign or domestic.

The language of the section, though

: it does not compel this interpretation,

: certainly accommodates it nicely.

. Section 1441(d) provides for the removal

| of "civil actions", not simply claims,

| involving "foreign state" defendants.

The same phrase in the remaining sub-

sections of $ 1441> denotes the entirety

5. The remainder of 28 U.S.C. &

1441, the general removal statute,

provides:

(a) Except as otherwise

pressly provided by Act of Congress,

any civil action brought in a State

court of which the district courts

of the United States have original

jurisdiction, may be removed by the

defendant or the defendants, to the

district court of the United States

for the district and division em-

bracing the place where such action

is pending.

(b) Any civil action of which

the district courts have original

jurisdiction founded on a claim or

right arising under the Constitution,

treaties or laws of the United States

shall be removable without regard to

the citizenship or residence of the

parties. Any other such action shall

be removable only if none of the

parties in interest properly joined

and served as defendants is a citizen

of the State in which such action is

brought.

dependent claim or cause of action,

which would be removable if sued upon

alone, is joined with one or more

otherwise non-removable claims or

causes of action, the entire case may

be removed and the district court may

determine all issues therein, or, in

its discretion, may remand all

matters not othérwise within its

original jurisdiction.

f the proceedings in question, not merely

ose aspects involving discrete federal

chaims or parties. Section 1441(b), for

Zexample, provides that no "civil action",

other than those based on rederal ques-

tions, may be removed where there are

multiple defendants and any one of them

is a citizen of the forum state; the

“civil action's" removability is deter-

mined as to its entirety, not as to par-

ticular claims or parties. See also

Naylor v. Case & Mc.Grath, Inc., 585 F..

557, 560-61 (2d Cird. 1978), and 14 C.

Wright, A. Miller & E. Cooper, supra 3

3722 at 573 (pendent jurisdiction allows

removal of entire case, federal an

claims, under $1441(a)).

Moreover, the same or similar lan-

guage in other limited removal provi-

sions, available only to particular types

of defendants as is 2 1441(d), has consis-

tently been construed and applied to ef-

fect the removal of the entire action in

multi-party suits. For instance, this

§ court has previously held that when a

federal officer exercises his prero-

i gative under 28 U.S.C. 8 1442(a) (1)

to remove any "civil action" commenced

against him in state court, the entire

| case against all defendants, federal and

non-federal, is removed to federal court

regardless of the wishes of his co-defen-

dants. Fowler v. Souther Bell Telephone

& Telegraph Co., 343 F.2d 150, 152 (5th

Cir. 1965). Accord, e. g., Murphy v.

Kodz, 351 F.2d 163, 165-67 (9th Cir.

1965); Bottos v. Avakian, 477 F.Supp. 610,

6ll n. 3 (N.D.Ind.1979); Howes v. Chil-

ders, 426 F.Supp. 358, 359 (E.D.Ky. 1977).

The same power of removal of the entire

cause of action against all parties has

been recognized in cases of removal of

"civil actions" in tort against federal

employees pursuant to 28 U.S.C., 8 2679

(d). 14 C. Wright, A. Miller & E. Cooper,

supra 3 3727, at 693. See e.g., Darnell

lv. Starks, 258 F.Supp. 31 (D.Ore. 1966).

Applications of other removal provisions

are similarly consistent with our inter-

pretation of 3 1441 (a) °, See Farina v.

6. A substantial policy factor also

favoring this interpretation is that

removal of the entire action ordina-

rily will promote judicial economy.

Particularly where, as here, the

claims are commonly lodged against

all defendants as a "joint venture"

and all such claims arise from a

Single, interlocked series of tran-

sactions, see American Fire & Casual-

ty Co..v. Finn, 341 U.S. 6, 14, 71

S.Ct. 534, 540, 95 L.Ed. 702 (1951),

one would justifiably expect to liti-

gate the merits of such claims in a

Single proceeding.

While the principal purpose of the

FS1A was to provide a federal forum

for the adjudication of assertions

of foreign sovereign immunity. 28

u.S.c. 8 1602, the federal hearing is

not restricted to this issue but must

proceed to the merits when the for-

eign a is found not to be immune.

If under 441(d) all parties, "for-

eign state" and domestic, are con-

Sidered to be removed to federal

court, in those instances in which

the foreign state is found not to be

‘immune, the federal court may proceed

to consider the merits of the claims

against the domestic defendants, just

as it is obliged to do with respect

to the non-immune foreign state.

See, e.g., Outboard Manne Corp. v.

Pezetel, 461 F.Supp. 384 (D.Del.1978).

Conversely, when the foreign sover-

eign is found to be immune and the

source of federal removal juris-

diction is thereby withdrawn from

the case, the district court is free

to exercise its discretion to re-

mand the remaining defendants to

state court,- and in most instances

will no doubt do so. See Overman v.

United States, 563 F.2d 1287, 1292

(8th Cir. 1977) (where claims

against federal officer, who removed

under § 1442(a) (1), were concluded,

court strongly suggested use of dis-

cretionary remand as to non-federal

defendants). Brough v. United Steel-

workers of America, 437 F.2d 743,

750 (lst Cir. 1971) (suggesting re-

mand of remaining parties after sum-

Mary judgment eliminated independent

federal jurisdictional base) Murphy

v. Kodz, 351 F.2d at 167-78. See

also United Mine Workers of America

v. Gibbs, 383 U.S. 715, 726, 86 S.Ct.

1130, 1139, 16 L.Ed.2d 218 (1966)

(recognizing discretion to maintain

or remand claims within the district

court pendent jurisdiction when fed-

eral jurisdictional basis drops out

of case before substantial commit-

ment of judicial resources). [In

either case the merits of plain-

tiff's claims may be adjudicated in

a Single proceeding without a need-

less duplication of effort and re-

sources.

Mission Investment Trust, 615 F.2d 1068

(Sth Cir. 1980) (sanctioning removal of

entire action against all defendants in a

suit removed by the FDIC pursuant to its

sole prerogative provided in 12 U.S.C. 3

1819(4)); In re Frankling National Bank

Securities Litigation v. Andersen, 532 F.

2d 842, 846 (2d Cir. 1976) (same).

(3) From the foregoing, we conclude

that Congress intended that $1441(d), when

invoked by a "foreign state" defendant,

should operate to remove the entire action

ee ——————£L£

pending in state court against all defen-

dants, private and domestic, as well as

the foreign sovereign. ’ Accorcingly, we

7. The statute, so interpreted,

does not entail an unconstitutional

arrogation of power to the federal

courts. Certainly, it is the con-

flict between a United States

citizen and a foreign state —.

taps the power of Article III, 82

("The judicial Power (of the United

States) shall extend ...to Contro-

versies between a State, or Citi-

zens thereof, and foreign States,

Citizens, or Subjects"). None-

theless, that power, once flowing,

may also extend to closely related

claims against other parties not

independently susceptible to feder-

al jurisdiction, pursuant to the

same rationale that supports the

exercise of "pendente party" juris-

diction, see Aldinger v. Howard,

427 U.8. I. 18, 96 3.Ct. 2413,

2422, 49 L.Ed.2d 276 (1976), and

the established principle that fed-

eral courts are constitutionally

able (though, in most instances,

not statutorily allowed) to en-

tertain actions between several

parties characterized by only

"minimal diversity” - i.e., "di-

versity of citizenship between two or

more (adverse parties) without regard

to the circumstances that other rival

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claimants may be co-citizens" State

Farm Fire & Casualty Co. v. Tashire,

386.U.S. 523, 530-31, 87 S.Ct. 1199,

1203, 18 L.Ed.2d 270 (1967).

The rationale underscoring these

concepts is that claims not them-

selves forming a basis for federal

jurisdiction may, nonetheless, be

within the ambit of the same Article

III “controversy” as that giving rise

to the federal claim, and therefore

be within the federal judicial power

over that entire controversy. The

bounds of this approach in the situa-

tion before us presumably are the

same or very similar to those pro-

vided by the Supreme Court, in

United Mine Workers of America v.

Gibbs, for Article III "Cases ...

arising under the constitution (or)

the laws of the United States” in

its delineation of federal judicial

power over pendent state claims;

that is, the pendent claims and the

claim activating federal jurisdic-

tion "must derive from a common

nucleus of operative fact" such that

one “would ordinarily be expected to

try them all in one judicial pro-

ceeding” 383 U.S. 715, 725, 86 S.Ct.

1130, 1138, 1G L.Ed.2d 218 (1966).

See Boudreaux v. Puckett, 611 F.2d

1028, 1030-31 (5th Cir. 1980) apply-

ing Gibbs to pendent party question).

Ortiz v. United States Government,

595 F.2d 65, 68 71 (lst Cir. 1979)

(same). See also, Aldinger v.

Howard, 427 U.S. at 20, 22, 96

S.Ct. at 2423 (Brennan, J. dis-

senting, applying Gibbs to pen-

dent party question) But see

Owen Equipment & Erection Co. v.

Kroger,437 U.S. 365, 98 S.Ct. 2396,

2402 n. 10, 57 L.Ed.2d 274 (1978)

(assuming, without deciding, that

Gibbs formulation accurately meas-

ures constitutional scope of "con-

troversies," as well as federal

question "cases," in pendent

party situation). Certainly the

claims against all defendants here

fall neatly within this rationale,

since all arose from the same acts

or series of events surrounding

the ill-fated vacation tour for

which all defendants allegedly are

commonly responsible as joint

ventures.

find that when Dominicana removed the

Arangos' claims against it to federal

court under 3 1441(d), it carried with

it the remaining parties in the state

proceeding. Since Guzman, Trailways

Travel and Sheraton were, therefore,

properly before that court, the order of

dismissal as to Dominicana did not adju-

dicate the rights and liabilities of all

parties and, therefore, was not an appea-

Flable final judgment. Consequently, we

hold that the Arangos' appeal of this dis-

| missal must, itself, be dismissed for want

of jurisdiction. °®

8. Appellee, Dominicana, urges us

to accept the appeal under the "col-

lateral order doctrine" articulated

in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 546-47, 69

S.Ct. 1221, 1225-26, 93 L.Ed. 1528

(1949). However "(t)o come within

the "small class' of decisions ex-

cepted from the final judgment rule

by Cohen, the order must conclusive-

ly determine the disputed question,

resolve an important issue completely

separate from the merits of the

action, and be effectively unreview-

able on appeal from a final judgment"

Coopers & Lybrand v. Livesay, 437

U.S. 463, 468, 98 S.Ct. 2454, 2458,

57 L.Ed.2d 351 (1978) (emphasis ad-

ded). The Cohen doctrine, which

should be strictly construed, is un-

availing here since, aside from any

questions as to the other criteria,

the order of dismissal as to Domini-

cana can be adequately reviewed upon

appeal from a judgment disposing of

all parties. In re Corrugated Con-

tainer Antitrust Litigation, 614 F.

2d. 358, 961 (3th Cir. 1980);

Huckeby v. Frozen Food Express,

555 F.2d at 549 (denying appea-

lability under Cohen doctrine

of doctrine of order dismissing

one defendant in a multi-party

suit where no one would be "“irre-

trievably injured should immediate

appellate review be withheld").

Because some of the theories upon

which the district court may have predi-

icated its dismissal of Dominicana may also

qbear upon the disposition of claims

Jagainst the other defendants and because

frule 54(b) explicitly renders even the

_ dismissing Dominicana still subject

deo revision by the district court, we

shall, in the interest of expediency,

proceed to offer that court some guid-

gance in its further handling of these is-

jsues. |

II. GROUNDS FOR DISMISSAL

A. Foreign Sovereign Immunity

EOP OPED: POR INE

(4) The first ground presented to

the district court on which it may have

relied” in dismissing the suit against Do-

| minicana is the immunity accorded foreign

sovereigns by the FSIA, 28 U.S.c., $ 1604.

Section 1604 - which, of course, has no

bearing on the ultimate disposition of the

claims against the defendants other than

Dominicana - provides a general grant of

immunity to "foreign‘*states," subject only

to the exceptions delineated elsewhere in

the FSIA, 28 U.S.C. $8 1605-07. The-bur-

den of establishing the applicability of

. this immunity naturally lay with the one

claiming it, Dominicana. H.R. Rep. at 17;

§ Behring International, Inc. v. Imperial

| Iranian Air Force, 475 F.Supp. 396, 405 &

fn. 9 (D.N.J.1979). Since Dominicana,

9. As noted above, the district

court did not specify the grounds

for its order of dismissal.

@wholly owned by the Dominican govern-

ment, undisputedly is a "foreign state"

as defined for purposes of the FSIA in

21603(s), supra note l, the only question

is whether it demonstrated that the Ar-

angos' claims did nck lie within any ex-

ception specified in 321605-07. H.R. Rep.

fat 17 (burden of proving non-applicability

ee aren

of specified exceptions lies with foreign

state). We do not believe Dominicana

shouldered this aspect of its burden with

respect to the entirety of the Arangos'

j actions against it.

Section 1605(a)(2) provides an excep-

tion to the blanket yrant of immunity in

§ 1604 for actions "based upon a commer-

} cial activity carried on in the United

States by the foreign state; or upon an

j act performed in the United States in

f connection with a commercial activity of

{

the foreign state elsewhere. Dominicana

has admitted before the district court, in

its Memorandum in Support of Its Motion .o

Dismiss, that its' airline operations, in-

cluding sales of tickets and “tourist

cards," carried on in the United States

constitute such acts and “commercial ac-

tivity" as would trigger $ 1605(a) (2). R.

Jat 99. See 28 u.s.c. § 1603(a), (e) (de-

fining relevant "commercial activity") 2°,

10. 28 U.S.c. $8 1603(d) & (e)

provide:

(dq) A “commercial activity" means

either a regular course of commercial

conduct or a particular commercial

transaction or act. The commercial

character of an activity shall be

determined by reference to the nature

of the covrrse of conduct or particu-

lar transaction or act, rather than

by reference to its purpose.

(e) A “commercial activity carried

on in the United States by a foreign

state" means commercial activity

carried and having substantial con-

tact with the United States.

It argues, however, that 3 1605(a) (2) is

inapplicable because the Arangos' claims

arise not from this commercial activity,

but from the acts of Dominican immigration

officials in expelling the Arangos from

the Dominican Republic and from the events

of the noncommercial, “involuntary re-

routing” of the Arangos in which Dominica-

na was compelled by those authorities to

participate. With respect to certain of

the Arangos' claims, this is true, but as

to others it is not.

Two counts of the Arancgos' complaint

allege false imprisonment and battery

stemming from the Arangos' being forcibly

placed on board the Dominicana flight from

Santo Domingo to San Juan, Puerto Rico by

Dominican immigration officers, with the

aid of Dominicana employees, in connection

with the Arangos' “involuntary re-routing”,

ent

and from their allegedly being man-handled

during this procedure. In accordance with

its argument, above, Dominicana is not

answerable to these tort claims. The

focus of the exception to immunity recog-

nized in 8 1605(a) (2) is not on whether

the defendant generally engages in a4 com-

mercial enterprise or activity, as an air-

line such as Dominicana unquestionably

does; rather, it is on whether the parti-

cular conduct giving rise to the claim in

| question actually constitutes or is in

j connection with commercial activity, re-

| gardless of the defendant's generally com-

|} wéxrcial or governmental character. Yesse-

| ninVolpin v. Novosti Press Agency, 443 F.

Supp. 849, 855-56 (S.D.N.¥.1978) (holding

generally commercial Soviet news agencies

immune for allegedly libellous story pre-

duced for official Soviet state publica-

tions); see International Association of

Machinists and Aerospace Workers v. OPEC,

477 F.Supp. 553, 568-69 n. 14 (C.D.Cal.

1979).

Dominicana's actions in connection

with the “involuntary re-routing" were not

commercial. Dominicana was impressed into

service to perform these functions, for

which it apparently was not compensated,

by Dominican immigration officials pur-

suant to that country's laws. Dominicana

acted merely as an arm or agent of the Do-

minican government in carrying out this

assigned role, and, as such, is entitled

to the same immunity from any liability

arising from that governmental function as

would inure to the government, itself.

|} See Papagianakis v. SAMOS, 186 F.2d 257,

261-652 (4th Cir. 1950), cert. denied, 341

U.S. 921, 71 S.Ct. 741, 95 L.Ed. 1354

(1951) (similarly recognizing derivative

S iaiadaaes immunity for private vessel

owners and crew against false imprisonment

claim stemming from their incarceration of

jplaintiffs on board the vessel pursuant to

Bordexs from United States immigration of-

ificials). See also Peterson v. Weinberger,

g508 F.2d 45, 51 52 (5th Cir.), cert.

Hdenied, 423 U.S. 830, 96 ©.ct. 50, 46 L.Ed.

Hoa 47 (1975) (one who acts ad Medicare

jagent agent fro HEW is cloaked in HEW's

jgovernmental immunity).

Arangos' complaint also, however,

stated claims for breach of warranty and

icontract based on the miscarriage and non-

Leitecmence of the vacation tour and the

japparent failure of defendants to refund

the price paid for the tour. It further

alleged that, because Dominicana knew of

eg ARSE OM PINE IS AI

the official list of undesired foreigners

forbidden to enter the Dominican Republic

and because of its high duty of care as a

common carrier, Dominicana was negligent

|) in arranging the Arangos' vacation air

|} transportation without ascertaining whether

| they would even be allowed to enter the

Dominican Republic for the purpose of that

vacation or without, at least warning them

of the potential danger of exclusion based

on that list and its attendant costs and

‘consequences. Each of these claims, and

the duties alleged therein to have been

breached, arose directly from or in con-

nection with the marketing and execution

of contracts-i.e., the sale of airline

tickets and "tourist cards" necessary to

enter Dominican Republic-by Dominicana, a-

long with the other defendants, in the

normal course of its airline business in

_— ger ea

MO OME AION SP APOE LILI I LLL

the United States. Consequently, while

these claims may eventually fail for other

reasons, they plainly stem from Dominica-

na's "commercial activity" in the United

) States and are, therefore, not barred by

foreign covereign immunity. See United

Euram Corp. v. U.S.S.R., 461 F.Supp. 609

(S.D.N.¥.1978) (holding no immunity for

breach of contract for sale of service) ;

National American Corp. v. Federal Republic

of Nigeria, 448 F.Supp. 622 (S.D.N.Y.1978),

aff'd, 597 F.2d 314 (2d Cir. 1979).

B. ACT OF STATE DOCTRINE

(5) The second theory proffered to

ithe district court as grounds for dismiss-

al was the act of state doctrine. "The

act of state doctrine in its traditional

formulation precludes the courts of this

country from inquiring into the validity

(or legality) of the public acts a re-

cognized foreign sovereign power (has) com-

mitted within its own territory." Banco

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

398, 401, 84 S.Ct. 923, 926, 11 L.Ed.2d 804

(1964). Relegating grievances from acts of

) this sort to executive channels of inter-

national diplomacy, the rule is an embodi-

) ment of the deference to be accorded the

|sovereignity of other nations; it averts

potential diplomatic embarrassment from the

j}court of one sovereign sitting in judgment

over the public acts of another. Alfred

»Dunhill of London, Inc. v. Republic of

icuba, 425 U.S. 682, 697, 96 S.Ct. 1854,

1862, 48 L.Ed.2d 301 (1975); Underhill v.

Hernandes, 168 U.S. 250, 2, 18 S.Ct. 83,

85, 42 L.Ed. 456 (1897).

(6,7) Unlike foreign sovereign immu-

nity, the act-of state doctrine affects the

viability of the Arangos' claims against

all defendants. It does not simply re-.

lieve the foreign government of liability

for its acts, Fut operates as an issue

preclusion device, foreclosing judicial

inquiry into the validity or propriety of

such acts in litigation between any set of

parties. National American Corp. v. Fed-

eral Republic of Nigeria, 448 F.Supp. at

640; see, e. g., Hunt v. Mobil Oil Corp.,

550 F.2d 68 (2d Cir.), cert. denied, 434

U.S. 984, 98 S.Ct. 608, 54 L.Ed.2a 477,

(1977) (foreclosing antitrust conspiracy

suit against privete Oil companies that

would have required inquiry into alleged

untoward motives behind Libya's nation-

alization of its oil industry). Conse-

quently, the Arangos' battery and false

imprisonment claims would be foreclosed

under this doctrine, as well as under the

FSIA, since they would, by definition, re-

quire an adjudication of the propriety and

legality of the acts of the Dominican im-

migration authorities - and, more specifi-

cally, of Dominicana employees while ef-

fectively deployed as agents of that

government under the orders of these au-

thorities-in the performance of their of-

ficial governmental duties in denying the

Arangos' entry into the Dominican Repu-

blic and effecting their removal. See

Underhill v., Hernandez, 168 U.S. 250, 18

S.Ct. 83, 42 L.Ed. 456 (1897) (foreclosing

suit under act of state doctrine against

foreign agent who detained American citi-

zen); United States v. Henry, 604 F.2d

908, 942 (Sth Cir. 1979) (characterizing

exclusion of aliens as a sovereign govern-

tal act).

(8,9) Dominicana urges that, beyond this,

Since the Arangos' expulsion by Dominican

authorities was the precipitating factor

for all plaintiffs' claims, all should be

foreclosed by the act of state doctrine.

This contention accords that doctrine too

great a breadth. The act of state doc-

trine only precludes judicial inquiry into

the legality, validity, and propriety of

the acts and motivations of foreign

sovereigns acting in their governmental

roles within their own boundaries; ‘+ it

ll. Dominicana's sale of airline

tickets and tourist cards to the

Arangos and its activities and omis-

sions in connection therewith, which

took place wholly in the United

States, are not “acts of state”

insulated under the doctrine. Cf.

Alfred Dunhill of London, Inc. v. Re-

‘public of Cuba, 425 U.S. 605~706, 96

S.Ct. 1861-1866 (plurally of four

Justices ruling that act of state

doctrine does not apply to purely

commercial acts of a sovereign). Ac-

cord, Hunt v. Mobil Oil Corp., 550 F.

2d at 73; Behring International, Inc.

~ a, Seated cea

v. Imperial Iranian Air Force, 475 F.

Supp. at 401.

does not preclude judicial resolution of

all commercial consequences stemming from

the occurrence of such public acts. See

National American Corp. v. Federal Repu-

blic of Nigeria, 448 F.Supp. at 639-40.

| The Arangos' contract and negligence

_ claims require only a determination of the

| respective rights and duties of the par-

' ties in the wake of the sovereign acts of

the Dominican immigration authorities; the

claims raise the questions of who bears

the risk of loss foilowing such an inci-

dent and whether there existed a duty on

the part of any defendant to protect the

Arangos from, or to warn of, the possibi-

lity of its occurrence. They do not ne-

nessitate a consideration or evaluation of

the legitimacy of those “acts of state",

| themselves. Consequently, the act of

' state doctrine, like the FSIA, should

/ not nave required dismissal with respect

to the Arangos' contract and negligence

claims.

C. Legal Sufficiency of Claims

Finally, though they did not present

the question to the district court, the

parties have alluded on appeal to whether,

independent of the preclusive effects of

_foreign sovereign immunity and the act of

state doctrine, the Arangos have alleged

facts presenting a legally cognizable

claim. Keeping in mind that a complaint

is to be liberally construed in favor of

the plaintiff on a motion to dismiss for

failure to state a claim, Voter Informa-

Project, Inc. v. City of Baton Rouge, 612

F.2d 208, 210 (5th Cir. 1980), we believe

that a claim has been stated.

(10) Under the law of Florida, the

state in which the contract for air trans-

portation was executed and in which per-

formance commenced, a common carrier such

as Dominicana “is required to exercise the

highest degree of care, foresight, pruden-

ce, and diligence" toward its passengers.

Edwards v. Jacksonville Coach Co., 88 So.

2d 543, 544 (Fla.1956) (emphasis added).

This has been specifically construed to

include a duty tO warn a passenger, upon

the purchase of a ticket, of potential

dangers from third parties at the point of

arrival. Werndli v. Greyhound Corp., 365

So.2d 177, 178 (Fla. Arp.1978) (failure

to warn that bus terminal at destination

was in high crime area and would be locked

upon arrival stated cause of action

against carrier for injuries received at

Laie cl clit an tometer

destination at hands of third parties).

In a case closely analogous to this

one, the First Circuit in Compagnie Na-

tionale Air France v. Castano, 358 F.2d

203, 208-09 (lst Cir. 1966), ruled that

where an international air carrier failed

to warn a passenger, upon his purchase of

a ticket, that he would be prevented by

immigration officials from entering the

country of his destination unless he had

a proper visa, that carrier would be li-

able for all damages and injuries proxi-

mately flowing from the passenger's ex-

clusion from that country due to his fai-

lure to secure a visa.

(11) Dominicana has admitted that it

was aware of the list of undesired for

eigners and, in fact, had previously tran-

sported individuals who had been denied

entry into the Dominican Republic on the

'-basis of that list. R. at 76-77. Without

attempting to define all possible grounds

of recovery by the Arangos, we can see now

that if they can demonstrate either (1)

that Dominicana, with the foregoing know-

ledge, sold them "tourist cards" upon the

false assertion that these cards", alone,

would assure their entry into the country,

or (2) that Dominicana had access to the

list, knew or should have known the Aran-

gos' names were on it, and therefore, that

the object of their vacaticn contract was

impossible, yet proceeded to arrange for

their vacation air transportation, a cog-

nizable claim will have been proved. See

Dumas v. Town of Mt. Vernon, 612 F.2d 974,

980 (5th Cir. 1980), quoting Conley v.

Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,

101-102, 2 I..Ed.2d 80 (1957) (complaint

should not be dismissed for failure to

state a claim unless it appears beyond

doubt that plaintiff can prove no set of

Facts that would entitle him to relief on

his claim). Therefore, while there may

be flaws in the Arangos' particular theo-

ries of recovery that may even be as

sailed subsequently on summary judgment,

the complaint appears adequate to with-

stand a motion to dismiss.

For the reasons set forth in Section

I of this opinion, the appeal is DIS-

MISSED and the cause is REMANDED.

Ramiro ARANGO and Gabriella Arango

individually and as parents and best

friends for their minor children, Anna

C. Arango and Krishna O. Arango,

Plaintiffs-Apvellants,

GUZMAN TRAVEL ADVISORS, et

al., Defendants,

and

2 Compania Dominicana De Aviacion, C.

Por A. (Dominicana Airlines)

De fendant-Appellee.

No. 84-5266

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

June 4, 1985.

Airline passengers brought suit

against the national airline of the Domi-

nican Republic and two other defendants

seeking damages arising out of an attempt

to vacation in the Dominican Republic.

The United States District Court the

Southern District of Florida, James Law-

rence King, Chief Judge, rendered judgment

in favor of the airline, and passengers

appealed. The Court of Appeals, Kravitch,

Circuit Judge, held that: (1) absence of

default judgment entered against two de-

fendants which were in default for failure

to appear did not require dismissal of ap-

peal from judgment in favor of remaining

defendant where default judgment could be

entered against defaulting defendants on

remand since extent of damages had been

determined; (2) suit brought against na-

tional airline of Dominican Republic,

which was removed pursuant to Foreign

Sovereign Immunities Act, was properly

tried without a:jury and (3) airline could

not be held liable to passengers for fai-

lure to warn them that they might be

turned away from Dominican Republic by im-

migration officials since airline's failure

to warn was not the cause in fact of pas-

sengers' injury.

Affirmed.

1. Federal Civil Procedure 2417

An entry of default is not a default

judgment. Fed.Rules Civ.Proc.Rule 54(b),

28 U.S.C.A.

2. Federal Courts 599

Without presence of a certificate

under applicable rule, final decision rule

ordinarily operates to permit an appeal

only from a judgment that finally deter-

mines all claims as to all parties. Fed.

Rules Civ.Proc.Rule 54(b), 28 U.S.C.A.; 28

U.S.C.A. § 1291.

3. Federal Civil Procedure 2417

Default judgment can be entered by

clerk of court when a party is in default

for failure to appear. Fed.Rules Civ. Proc.

Rule 55(b) (1), 28 U.S.C.A.

4. Federal Courts 722

Absence of default judament

entered against two defendants which

were in default for failure to appear

did not require dismissal of appeal from

judgment in favor of remaining defendant

—_——- +

;}where default judgment could be entered

against defaulting defendants on remand

| since extent of damages had been deter-

nined. Fed.Rules Civ.Proc.Rule 55(b) (1,

(2), 28 U.S.C.A. |

, 5. Jury 14(1)

| Suit brought by airline passen-

gers against national airline of Domini-

can Republic, which was removed pursuant to

Foreign Sovexeien Immunities Act, was

properly tried without a jury. 28 U.S.C.A.

$8 1330, 1330(a), 1441(d), 1603.

EEE

6. Jury 31(1)

Foreign Sovereign Immunities

Act's nonjury trial requirement does not

offend Seventh Amendment. 28 U.S.C.A. 88

1330, 1330(a), 1441(d), 1603; U.S.C.A.

Const. Amend. 7.

7. Jury 12(1)

Suits brought against the

United States may be tried to a jury only

if the right is guaranteed by appropriate

statute.

8. Constitutional Law 249(7)

Congress' decision to classify

commercial entities owned by foreign

governments in the same category as the

governments themselves, for purposes of

Foreign Sovereign Immunities Act's re-

quirement of a nonjury trial, was not

violate of equal protection. 28 U.S.C.A.

$8 1330, 1330(a), 1441(d), 1603; U.S.C.A.

Const.Amend. 14.

9. Carriers 262

Airline could not be held liable

to passengers for failure to warn them

that they might be turned away from Domi-

nican Republic by immigration officials

Since airline's failure to warn was not

the cause in fact of passengers' injury.

10. Fraud 21

Since airline passenger admitted

he was aware that each nation had its own

rules with respect to admission of tou-

rists, passenger and his wife, who were

refused entry into Dominican Republic by

immigration officials, could not claim

that they relied upon alleged misrepresen-

tations contained in tourist visas pur-

chased from national airline of Dominican

Republic which stated terms under which a

tourist could travel in the country but

did not purport to guarantee that pos-

sesion of a card would ensure entry into

the country.

ll. Carriers 286,287(1), 303(1)

A common carrier is obligated

to exercise a high degree of care with

respect to boarding, carriage, and dis-

embarkment of its passengers; further-

more, requirement that carriers exercise

that degree of care may extend to provi-

sion of terminals into which passengers

enter upon exiting the carrier.

12. Carriers 277

Nat.onal airline of Dominican

Republic, which was ordered by immigra-

tion officials to transport passengers

out of the country on the very next flight

leaving for their country of origin, was

under no obligation to pay passengers’

food and lodging expenses incurred in

San Juan, Puerto Rico.

13. Carriers 262

National airline of Dominican

Republic, which was ordered by immigra-

tion etttetais to transport passengers

: out of Do~inican Republic and which issued

passengers tickets for passage to San Juan

and from San Juan to Miami, did not breach

its contract of carriage with passengers,

who returned to Miami from Haiti, after

passengers voluntarily decided to travel

to Haiti instead of returning to Miami.

‘Appeal from the United States Dis-

trict Court for the Southern District of

Florida.

Before GODBOLD, Chief Judge, KRAV-

ITCH and HATCHETT, Circuit Judges.

KRAVITCH, Circuit Judge:

~ This litigation, involving an action

for damages by a passenger against an air-

line, has once before travelled the appel-

late route. See Arango v. Guzman Travel

Advisors Corp., 621 F.2d 1371 (5th Cir.

. 1980). On the present journey, plain-

| tiffs-appellants, Ramiro Arango and his

family, claim that the district court

should have tried the case to a jury, and

that the court erred in ruling in favor of

the defendant-appellee, Compania Domini-

cana De Aviacion (Dominicana). We con-

clude that the district court properly

denied a jury trial in this action, and

correctly rendered judgment in favor of

the defendant. Sua sponte, we raised the

question whether we have jurisdiction to

hear this appeal. We conclude that we do,

but we instruct the district court to take

appropriate action upon receipt of our re-

eee

mand.

I. BACKGROUND

The Arangos' claim arose out of an

attempt to vacation in the Dominican Re-

public, They arranged their trip through

a travel agency by purchasing a "package

| tour" that included round-trip air trans-

pertatiom between Miami and Santo Domin-

| go via Dominicana. Food, lodging and

| transportation to and from the Santo

| Domingo Airport were to be provided by the

, local Sheraton Hotel. Unfortunately for

| the Arangos, their vacation plans went

‘awry when, upon their arrival at the Santo

Domingo Airport, Dominican Republic immi-

gration officials refused to permit Ramiro

Arango to enter the country. Apparently

|the Government of the Dominican Republic

maintained a list of "undesirable aliens,"

which included Ramiro Arango's name.

ei acid

Immigration officials ordered Dominicana

to take the Arangos out of the country on

its next flight departing for their

; country of origin. Accordingly, the

Arangos were taken to San Juan, Puerto

| Rico, where they spent the night. The

next day, they travelled to Port-au-

Prince, Haiti. Three days later, the

family returned to Miami.

The Arangos initiated this lawsuit

in state court in Florida against four

defendants; Guzman Travel Advisors Corpo-

ration, from whom appellants purchased

their tour package; Trailways Travel and

Tourism International Corporation, the

tour organizer; Sheraton Hotels and Inns,

whose Santo Domingo Hotel was to provide

food and lodging for appellants during

their stay and Dominicana. Their com-

Ad Aa OOD Sie. IE tells LA

plaint alleged negligence, breach of war-

ranty, breach of contract, false imprison-

ment, and battery. Dominicana, which is

the national airline of the Dominican Re-

public, wholly owned by that nation's

government, removed the lawsuit to federal

district court. There, Dominicana filed a

motion to dismiss, arguing that (1) it was

immune from liability, and (2) the com-

plaint failed to state a claim because all

of the alleged injuries were caused by the

actions of the Dominican Republic immi-

gration officials, and the Act of State

Doctrine precluded judicial scrutiny of

these acts. Without specifying the ground

upon which it relied, the district court

granted the motion to dismiss, and the

Arangos appealed. The former Fifth Cir-

cuit dismissed the appeal for lack of

jurisdiction because the district court's

order did not dispose of the claims

against the other defendants; thus, there

was not a final appealable order. Arango,

621 F.2d at 1378. Nevertheless, to expe-

dite the litigation, the court offered

some definitive guidelines to resolve the

plaintiff's claims, id. at 1378-82, and

remanded the case to the district court.

In accordance with these directives, the

district court dismissed defendant Shera-

ton from the lawsuit. The clerk of the

court then issued an entry of default

against defendants Guzman and Trailways,

toth of whom failed to enter an appea-

ranve or file a pleading after Dominicana

removed the case to federal court. Final

judgment, however, was never entered

against either party. When Dominicana

moved for summary judgment, the court

granted the motion as to the breach of

warranty claim, but set the contract and

negligence claims for trial. Pursuant to

the parties’ stipulation that Dominicana

was a foreign state within the meaning of

28 U.S.C. 8 1603(a), the court tried the

case without a jury. After the trial, the

court entered judgment for Dominicana.

This appeal ensued.

II. WHETHER THIS COURT HAS JURISDICTION

Preliminarily, we raise the question,

sua sponte, of whether we have jurisdic-

tion to hear this appeal. Upon the motion

of the Arangos, the clerk of the court be-

low issued entries of default against de-

fendants Guzman and Trailways. Fed.R.Civ.

P., 55(a). Following the trial, the dis-

trict court judge ruled from the bench in

favor of Dominicana, stating that he would

issue his findings and concludions in

written form at a later date. The Aran-

gos' attorney reminded the court that two

of the defendants were in default. The

judge responded that he did not under-

stand how either party could be respon-

sible for the failed vacation, but he

stated that "if there is a requirement

that they (plaintiffs) be reimbursed, the

amount of their actual damages would be

the amount of their actual damages would

be the amount of the $1,000 for the frus-

tration of their vacation and the amount

of their damages in San Juan, which they

have alleged or recited to be approximate-

ly $75, so those would be the amounts of

damages." The court incorporated these

conclusions in the order.

(1) Our examination of the record

and the docket sheet, however, indicates

that no final judgment was entered

against either Guzman or Trailways. An

entry of default is not a default judgc-

ment. See Fed.R.Civ.P. 55(b) (delineating

terms upon which judgment of default may

be entered); see also Fed.R.Civ.P. 58 (re-

quiring that every judgment be set forth

on a separate document).

(2) Under 28 U.S.C. § 1291, "The

cour’ « Of appeais ... have jurisdiction of

appeals from all final decisions of the

district courts of the United States.”

Without the presence of a certificate

under Federal Rule 54(b), the final deci-

sion rule ordinarily operates to permit an

appeal only from a judgment that finally

determines all claims as to all parties.

Tower v. Moss, 625 F.2d 1161, 1164 (5th

Cir. 1980). See generally 10 C. Wright

& A. Miller, Federal Practice and Proce-

dure $8 2653-2661 (1983).

In Bankers Trust Co. v. Mallis, 435

U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357

(1978) (per curiam), the Supreme Court

determined that the failure to comport

with all procedural rules governing entry

of judgments did not necessarily render

a court of appeals without jurisdiction.

The district court in that case issued a

combined opinion and order dismissing the

complaint, but failed to issue a separate

document entering a final judgment as re-

quired by Federal Rule 58. The Supreme

Court assumed without deciding that the

requirements for an effective judgment set

forth in the Federal Rules must be satis-

fied before an appeal could be brought un-

der section 1291, equating section 1291's

requirement of a "final decision,"™" with a

"Judgment" under the Federal Rules. 98 S.

Ct. at 1119 & n. 4. The Court concluded,

however, that the sole purpose of Rule

58's separate document requirement was to

clarify when the time for an appeal begins

to run. Id. at 1120; see 28 U.S.C. 8

2197; Fed.R.App.P. 4(a). This purpose

would not be furthered by a holding that

appellate jurisdiction does not exist

without a separate document entering

judament. 98 S.Ct. at 1120. Further-

more, the appellee never objected to the

appeal; thus, the Court deemed that the

parties had waived Rule 58's requirement.

Id. at 1121.

The Bankers Trust decision has been

used on several occasions to sustain

jurisdiction when there was no separate

document entering judgment, provided that

the district court clearly evidenced that

it had entered its final decision. See,

e.g., Diaz v. Schwerman Trucking Co., 709

F.2d 1371, 1372 n. 1 (11th Cir.1983); Han-

son v. Town of Flower Mound, 679 F.2d 497,

500-02 (Sth Cir.1982). Some courts have

taken jurisdiction even when the appellee

objected to the lack of a separate docu-

ment entering judgment. See, e.g., Inter-

national Brotherhood of Teamsters v. Wes-

tern Pa. Motor Carriers Ass'n, 660 F.2d 76,

79-80 (3d Cir.1981) (court did not discuss

fact that appellee sought to dismiss

appeal on this basis); Leonhard v. United

States, 633 F.2d 599, 611-12 (2d Cir.1980)

(party who objected failed to show how

entertaining appeal would be prejudicial),

cert. denied, 451 U.S. 908, 101 S.Ct.

1975, 68 L.Ed.2d (1981).

(3,4) Although we are aware of no

reported decision in which a court heard

an appeal from a multi-party lawsuit when

there was no default judgment entered

against a party in default, we believe

that the Bankers Trust rationale is ap-

plicable here, given the facts of this

case. A default judgment can be entered

by the clerk of the court, when, as here,

a party is in default for failure to ap-

pear. Fed.R.Civ.P. 55(b)(1). The Federal

Rules do not even require that parties who

default for failure es abasic receive

notice of the default judgment. 6 Moore's

Federal Practice (55-05(3) (2d Ed.1983).

The Arangos sought to have a default judg-

ment entered at the time they moved for

entry of default. The clerk may have re-

fused to enter judgment because the amount

of damages was not a sum-certain. Fed.R.

Civ.P. 55(b) (1). The extent of damages

now being determined, we see no obstacle

preventing entry of default judgment. The

district court was aware that the two de-

fendants were in default and determined

the extent of damage without requesting

the two defendants to appear at a hearing.

See Fed.R.Civ.P. 55(b) (2). The only mis-

sing item is an entry of judgment against

two parties who have never entered an ap-

pearance in this lawsuit from the time it

was removed to federal court in 1978. Al-

though dismissal of the appeal miyht serve

to deter careless practice by future liti-

gants we hold that under the circumstances

of this case, the absence of the default

judgment does not require dismissal. We

instruct the district court to take ap-

propriate action upon receipt of our re-

mand.

I. WHETHER THE DISTRICT COURT CORRECT-

LY TRIED THE CASE WITHOUT A JURY

(5) Dominicana's removal of the case

to federal court was based upon 28 U.S.C.

3 1441(d), which provides as follows:

Any civil action brought in a State

court against a foreign state as de-

fined in section 1603(a) of this

title may be removed by the foreign

state to the district court of the

United States for the district and

division embracing the place where

such action is pending. Upon removal

the action shall be tried by the

court without jury...

This section was part of the Foreign So-

vereign Immunities Act (FSIA), 28 U.S.<.

ss 1330, 1602-11, which represented a com-

Iihe liability in this case was not

alleged to be joint. Therefore, a

judgment in favor of Dominicana is

not inconsistent with liability that

would be imposed on the defaulting

defendants. See 6 J.Moore, Federal

Practice (55.06 (2d ed. 1983).

prehensive effort "to provide when and how

parties can maintain a lawsuit against a

foreign state or its entities in the.

courts of the United States and to provide

when a foreign state is entitled to sover-

eighn immunity". H.R.Rep. No. 1487, 94th

Code Cong. & Ad.News 6604, 6604.* Prior

to enactment of this legislation, juris-

diction over federal actions brought by

and against foreign states and their sub-

jects was based upon diversity of citizen-

ship. > Jurisdiction over actions invol-

2 ' ; ‘ , , ;'

The sovereign immunity issue in this

litigation was determined in the

prior appellate opinion. Arango,

621 F.2d at 1378-80.

Former 28 U.S.C. 1332(a)(2)provided:

(a)The district courts shall have

Original jurisdiction over all civil

actions where the matter in contro-

versy exceeds the sum or value of

$10,C00, exclusive of interest and

costs, and is between-

(2) citizens of a State, and for-

eign states or citizens or subjects

thereof; and

(3) citizens of different States and

in which foreign states or citizens

or subjects thereof are additional

parties.

ving foreign parties now depends upon

classification of the lawsuit according

to categories defined by Congress. For

example, 28 U.S.C. 8 1330 provides federal

jurisdiction over actions initiated

against foreign states:

(a) The district court shall have

original jurisdiction without regard to

amount in controversy of any nonjury civil

action against a foreign state as defined

in section 1603(a) of this title as to any

claim for which relief in personam with

respect to which the foreign state is not

entitled to immunity either under sections

1605-1607 of this title or under any ap-

licable international agreement.

5 sieaiaiiiil

A- foreign state defined as:

For purposes of this chapter-

(a) A ‘foreign state', except as used

in section 1608 of this title, includes a

political subdivision of a foreign state

or an agency or instrumentality of a for

eign state as defined in subsection (b).

(b) An ‘agency or instrumentality of

a foreign state' means any entity-

(1) which is a separate legal person,

corporate or otherwise, and

(2) which is an organ of a foreign

state or political subdivision thereof, or

a majority of whose shares or other owner-

ship interest is owned by a foreign state

or political subdivision thereof, and

(3) which is neither a citizen of a

State of the United States as defined in

section 1332(c) and (d) of this title, nor

created under the laws of any third coun-

try.

28 U.s.c. § 1603.4

By their express terms, 28 U.S.C.

$8 1330 and 14419d) prohibit a -ase

brought against a foreign state, as de-

fined in section 1603, from being tried

before a jury, whether the lawsuit is

initiated in federal court or removed by

the foreign state to that forum. Al-

though an issue of first impression in

this circuit, other circuits have con-

sidered and rejected efforts to circumvent

this prohibition against jury trials, con-

cluding that section 1330(a) is the sole

source of federal jurisdiction in suits

against foreign states. See McKeel v. Is-

lamic Republic of Iran, 722 F.2d 582 (9th

Cir.1983), cert. denied, - U.S. - , 105°

S.Ct. 243, 83 L.Ed.2d 182 (1984); Goar v.

Compania Peruana de Vapores, 688 F.2d

417 (5th Cir.1982); Rex v. CIA. Peruana

de Vapores S.A., 660 F.2d 61 (3d Cir.

1981), cert. denied, 456 U.S. 926, 192 S.

Ct. 1971, 72 L.Ed.2d 441 (1982); Wil-

liams Shipping Corp. of India v. The Way

v. Shipping Corp. of India, 653 F.2d 875

(4th Cir.1981), cert. denied, 455 U.S.

982, 102 S.Ct. 1490, 71 L.Ed.2d 691

(1982); Ruggiero v. Compania Peruana de

Vapores S.A., 639 F.2d 872 (2d Cir.1981).>

Jurisdiction over other actions

involving forei parties is based

upon 28 U.S.C. 1332(a) (2) (action

between citizen of a state and

citizen or subject of a foreign

state), (a)(3) (actions between

citizens of different states, in

which citizens or subject of foreign

state are additional parties), and

fa) (4) (action between foreign state

as plaintiff and citizens of a state

or of different states).

a The Supreme Court's opinion in

Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 103 S.Ct.

1°62, 1971, 1973, 76 L.Ed.2d 81

(1983), also supports this conclu-

sion.

ee ee

In Ruggiero, the Second Circuit

determined that jurisdiction in a suit

against a foreign corporation that falls

within the definition of a foreign state

cannot also be predicated on diversity of

citizenship, even if the amount in con-

troversy exceeds $10,000. 639 F.2d at

875-76. The court further rejected the

argument that the presence of a federal

question could provide an alternative

basis for jurisdiction. Id. at 876.

In spurning these arguments, the court

observed:

The courts must learn to accept that, in

place of the familiar dichotomy of fe-

deral question and diversity jurisdic-

tion, the Immunities Act has created a

tripartite division-federal question

cases, diversity cases and actions

against foreign states. If a case falls

within the third division, there is to

be no jury trial even it is might also

come within one of the other two.

Id. (footnote omitted). The Third,

Fourth, and Fifth Circuits followed the

Ruggiero court's decision. Goar, 688

F.2d at 421-23; Rex, 660 F.2d at 64-65;

Williams, 653 F.2d at 880-81; see also

McKeel, 722 F.2d at 586-87 (following

Reseieco on diversity jurisdiction;

federal question jurisdiction fails be-

cause of absence of federal issue in well-

pleaded complaint).

Rather than retrace the paths of

those who have tried and failed in their

quest for a jury trial, appellants here

argue that Dominicana is not an instru-

mentality of a foreign state within the

meaning of section 1603(a). Although

Dominicana is not incorporated in a

State within the United States, appel-

lants contend that it has several of-

fices within the United States, parti-

cularly Florida, has bank accounts in the

United States, and pays taxes to the City

of Miami, Dade County, the State of Flori-

da, and the United States. These factors,

appellants claim, make Dominicana a "de

facto local corporation," and remove it

from the definition of an instrumentality

of a foreign state. We disagree.

First, appellants' current assertion

is contrary to their actions in the court

below. When Dominicana removed this liti-

gation to federal court, appellants made a

demand for a jury trial, but did not ob-

ject to the basis for removal, section

1441(a). Only foreign states or their

instrumentalities can avail themselves of

this removal provision. Moreover, appel-

lants: stipulated that this lawsuit is

"a civil action seeking in personam relief

against a foreign state as defined in 28

c.8.c. a 1663(a)..."° Finally, in its

pre-trial order, the district court stated

that the case was set to be tried without

a jury. Appellants never objected to this

Order. We do not ordinarily consider ar-

guments on appeal that were not raised in

the court below. See Sanders v. United

States, 740 F.2d 886, 888 (llth Cir.

1984).

Even had appellants advanced this ar-

gument earlier, however, we would not

agree. Under the definition offered in

section 1603(a), a corporation, a majority

of whose shares are owned by a foreign

government, is a foreign state unless the

corporation is "a citizen of a State of

the United States as defined in section

Order Setting Cause for Trial at l;

Record and 462.

1332(c) and (d) of this title", or was

"created under tne laws of any third

country." 28 U.S.C. 8 1603(b)(3). Appel-

lants co not argue that Dominicana was

created under the laws of a third country.

Furthermore, section 1332(c) provides:

For the pu’seses of this section and

section 1443 of this title, a corpo-

ration shall be deemed a citizen of

any State by which its has been in-

corporated and of the State where it

-has its principal place of business.

The district court was presented with no

evidence that Dominicana is incorporated

in the State of Florida, or that Florida

is Dominicana's principal place of busi-

ness. Appellants cite no cases in support

of the view that Dominicana's activities

automatically render it a citizen of

Florida within the meaning of section

1332(c). Appellants' argument that Domi-

nicana should be treated as a citizen

Le a ae |

of Florida because it is a "de facto"

Florida corporation is particularly un-

persuasive, given Congress' definition of

a foreign state. Congress could have

chosen to exclude from foreign st: ce

Status a foreign corporation that does a

substantial part of its business in the

United States, or one that pays taxes in

the United States. It chose not to, and

there is no reason to question this judg-

ment.

(6) Appellants argue that to permit

jury trials in some actions but not in

this one violates the equal protection

principles subsumed within the due process

clause of the fifth amendment. Their ar-

gument is intertwined with the question of

whether there is a constitutional right to

a jury trial in actions against foreign

states... The seventh amendment provides in

part that "in suits at common law, where

the value in controversy shall exceed

twenty dollars, the right of a trial by

jury shall be preserved..." The seventh

amendment did not create a right to trial

by jury. 5 J. Moore, Federal Practice

(38-08(5) at 38-55 (2d. ed. 1984).

Rather, the amendment functions to pre-

serve the right that existed with respect

to particular kinds of actions at common

law. The reference to “common law” re-

quires that we examine the common law of

England in 1791, the year the seventh

amendment was adopted. 9 C. Wright & A.

Miller Federal Practice and Procedure

3 2302 at 14-15(1971). Because actions

against foreign sovereigns were not per-

mitted in 1791, we conclude that the

seventh amendment does not require a jury

in a suit against a corporation owned by a

foreign sovereign.

The Second, Third, Fourth, and Fifth

Circuits already have held that the FSIA's

requiremenc of a monjury trial does not

wolate the seventh amendment. Goar, 688

F.2d at 424-27; Rex, 660 F.2d at 65-69;

Williams, 653 F.2d at 881-83; Ruggiero,

639 F.2d at 878-81. Writing for the Sec-

ond Circuit in Ruggiero, Judge Friendly

reviewed the history of the immunity of

foreign sovereigns: from suits. 639 F.2d

at 878-879. At common law, suits against

foreign sovereigns were not permitted.

See The Schooner E’xchange v. McFacdcdo, ll

U.S. (7 Cranch) 116, 136-37, 3 L.Ed. 287

(1812). This immunity was based upon the

principle that all sovereigns possessed

"equal rights and equal independence” un-

der international law, and that a sover-

aoe

eign enters the territory of a friendly

foreign nation confident that immunities

conferred upon it by reason of its sover-

eignty will be preserved. Id. The same

immunity extended to commercial entities

owned by foreign governments. Berizzi

Brothers Co. v. S.S. Pesaro, 271 U.S. 562,

46 S.Ct. 611, 70 L.Ed. 1088 (1926).

During the middle of this century, inter-

national custom changed, and the Supreme

Court began to recognize that whether a

foreign government should be afforded im-

munity from liabilities arising out of

commercial transactions should depend upon

whether the State Department considered

the abolition of immunity in che circum-

stances to be inimical to United States

foreign relations. See Republic of Mexico

v. Hoffman, 324 U.S. 30, 65 S.Ct. 530, 89

L.Ed. 729 (1945); Ex Parte Republic of

Peru, 318 U.S. $78, 63 §.Ct. 793, 87 L.Ed.

1014 (1943). Congress, apparently dis-

Satisfied with the results obtained under

this system, directed the federal courts

to determine whether immunity should be

accorded in particular circumstances,

using the categories codified by the FSIA

as guidance. See H.R Rep. at 7, 1976 U.

S. Code Cong. & Ad.News at 6605-96.

Thus it is clear that suits against

foreign governments or commercial entities

controlled by them only recently have been

permitted to go forward. Even now, these

lawsuits have been allowed only because of

a change in executive und legislative

policy, not by operation of common law

principles-the law of liability of foreign

sovereigns is in fact suit generis. Rex,

660 F.2d at 68; Ruggiero, 639 F.2d at 88l.

If these suits were not permitted in

179i, it is inexorably clear that no right

to a jury trial attached under the seventh

amendment. Nothing has been presented

that contradicts this conclusion. There-

fore, we agree with the other circuits

that have considered the issue, that the

FSIA's nonjury trial requirement does not

offend the seventh amendment.’

ns We caution that our analysis does

not mean that the seventh amendment

is not applicable to any cause of

action created after 1791. Rather,

seventh amendment rights may attach

to a cause of action not in exis-

tence in 1791, "if it involves rights

and remedies of the sort traditio-

nally enforced in an action at law or

its nearest historical analog is an

action at common law." Goar, 688 F.

ad at 427; see Purnell v. Southall

Realty, 416 U.S. 363, 94 S.Ct. 1723,

40 L.Ed.2d 198 (1974); FDIC v. New

London Enterprises, 619 F.2d 1099

(5th Cir.1980). The distinction

involved in this case is that a

waiver of immunity creates rights and

remedies that never before existed.

Goar, 688 F.2d at 427; Ruggiero, 639

F.2d at 880-881.

(7, 8) Appellants' equal vrotection

argument is also without merit. There is

a rational basis for Congress' decision to

classify commercial entities owned by for-

eign governments in the same category as

the governments themselves, in that his-

torically both were afforded immunity as

foreign sovereigns. See Berizzi Bros.,

271 U.S. at 574, 46 S.Ct. at 612. The

stated reason for disallowing jury trials

in actions against foreign states was "to

promote a uniformity in decision when

foreign governments are involved." H.R.

Rep. No. 1487 at 13; 1976 U.S.Code Cong.

& Ad. News at 6611-12. Further, suits

brought against the United States may be

tried to a jury only if the right is

guaranteed by an appropriate statute.

Galloway v. United States, 319 U.S. 372,

63 S.Ct. 1077, 87 L.Ed. 1458 (1943). In

many instances it is not. See generally

5 J. Moore, Federal Practice (38.31(2) (2¢€

ed. 1984). Congress could have considered

that it should subject foreign states en-

gaged in commercial activity to lawsuits

on the same terms the United States must

defend itselr.°® Such a consideration can

e. Each of the courts that has up-

held the FSIA's nonjury trial re-

quirement has analoagized this pro-

vision to the denial of jury trials

in suits against the United States.

Goar, 688 F.2d at 426; Rex, 660 F.2d

at 67; Williams, 653 F.2d at 842;

Ruggiero, 639 F.2d at 879-81, The

Supreme Court on several occasions

has reaffirmed that there is no

seventh amendment right to a jury

trial in those instances when the

United States has waived its sover-

eign immunity. Lehman v. Nakshian,

453 U.S. 156, 101 S.Ct. 2698, 2701-

2701, 69 L.Ed.2d 548 (1981) (because

of United States' immunity from suit,

seventh amendment right never existed

with respect to suit against United

State, and does st attach when im-

munity has been »aived); Galloway v.

United States, 319 U.S. 372, 388-89,

63 S.Ct. 1077, 1086, 87 L.Ed. 1458

(1943) ("It can hardly be maintained

that under the common law in 1791

jury trial was a matter of right for

persons asserting claims against the

sovereign."); McElrath v. United

States, 102 U.S. (12 otto 426, 440,

26 L.Ed. 189 (1880) (suits ayainst

the United States in the Court of

Claims are not suits at common law;

the United States cannot be suit

without its consent and this princi-

ple necessarily permits the sovereign

to prescribe procedures to be used

in such suits). Although there are

different rationales for the immu-

nities, this does not affect the

seventh amendment issue. Goar, 688

F.2d at 426; Ruggiero, 639 F.2d at

880. "A suit against a foreign state

‘ was just as unknown to the common law

of 1791 as was a suit against the

United States." Ruggiero, 639 F.2d

at 880.

be viewed as important to the United

States' foreign relations. This does not

mean Congress could require that a case

be tried without a jury whenever it con-

cludes it is a good idea. Such a decision

would be subject to scrutiny under the

seventh amendment. But where, as here,

this decision does not invoke seventh

amendment implications, we can consider

. 97

only whether the decision bears a rational

relationship to a legitimate governmental

objective. See G.D.Searle & Co. v. Cohn,

455 U.S. 404, 102 S.Ct. 1137, 1141, 71 L.

Ed.2d 250 (1982); Harris v. McRae, 448 U.

S. 297, 100 S.Ct. 2671, 2691, 65 L.Ed. 2d

784 (1980). We conclude that it does.

Thus, the district court was correct

in trying the case without a jury.

IV. WHETHER THE DISTRICT COURT ERRED IN

RULING IN FAVOR OF APPELLANTS

Appellants next content that the dis-

trict court incorrectly rules in favor of

Dominicana on the negligence and breach of

contract claims. We reject their argu-

ments with respect to both claims.

A. Negligence: Breach of Duty to Warn

(9) Appellants argue that Florida

Law requires that Dominicana, as a common

carrier, exercise the "highest degree of

ee ae

care, foresight, prudence and diligence

reasonably demanded at any time by the

conditions or circumstances that affected

the passengers and the carriers." Werndli

v. Greyhound Corp., 365 So.2d 177, 178

(Fla.Dist.Ct.App.1978) (quoting Whitman

v. Red Top Sedan Service, Inc., 218 So.2d

213, 216 (Fla.Dist.ct.App.1969)).? Ac-

cording to appellant, Dominicana breached

its cuty to exercise this degree of care

because Dominicana previously had trans-

ported persons to the Dominican Republic

who were not permitted to enter the coun-

try by immigration officials. Aware of

this potential danger to its passengers,

me None of the parties filed any

papers stating an intent to raise an

issue of foreign law pursuant to Fed.

R.Civ.P. 44.1 Nor is there any con-

tention that any law other than

Florida's should govern the outcome

of this case.

Dominicana nevertheless failed to provide

any warning of this possibility.

We need not decide whether Florida

law would obligate an airline to ensure

that its passengers were aware that they

might not be permitted to enter a foreign

“nation, because Dominicana's failure to

warn cannot be seen as the cause in fact

10 See Stahl v. Me-

of appellants' injury.

aS. It is not even clear what such

a warning would entail, or how effec-

tive it would be. It may be one

thing to require that an airline

carrying passengers internationally

ensure that its passengers know that

a valid passport and travel visa are

necessary to enter a foreign country.

See Compagnie Nationale Air France v.

Castano, 358 F.2d 203, 208-09 (lst

Cir.1966). A Dominicana agent testi-

fied that appellee does make sure

that all passengers travelling in-

ternationally possess valid pass-

ports. To charge an airline that is

responsible for warning passengers

of other reasons why they may be

denied entry would impose on it a

difficult task. Cf. Sprayregen v.

American Airlines, 570 F.Supp. 16,

17-18 (S.D.N.Y¥.1983) (it would be un-

100

reasonable to require an airline to

warn of how altitude changes might

affect particular physical or emotio-

nal conditions of its passengers).

Foreign nations may not disclose the

reason why a person is denied entry.

For example, in this case, there is

nothing in the record that clearly

explains why Ramiro Arango was re-

fused entry into the Dominican Re-

public. Further, the court below

found that Dominicana did not have

access to the list of undesirable

foreigners. Thus, the airline could

do no more than state that for un-

known reasons, the Dominican Repu-

blic has refused to allow certain

travelers to enter its borders.

tropolitan Dade County, 438 So.2d 14, 17-

19 (Fla.Dist.Ct.App.1983); Restatement

(Second) of Torts 8 432(1). Appellant

Ramiro Arango testified at trial, and ad-

mitted in his deposition, that he knew

that foreign nations do not permit every-

one who attempts to travel within their

borders to do so. Moreover, Ramiro tes-

| tified that he himself had been denied

jentry into a foreign nation on three

101

occasions prior to the one that led to

this litigation. Under these circum-

Stances, Dominicana cannot be liable for

failure to warn appellants that they

might be turned away by immigration of-

ficials. See Perez v. National Presto In-

dustries, 431 So.2d 667, 669 (Fla.Dist.Ct.

App.1983); Wickham v. Baltimore Copper

Paint Co., 327 So.2d 826, 827 (Fla.Dist.

Ct.App.1976).

B. Misrepresentation

(10) Appellants advance another

theory in their effort to impose liability

upon Dominicana. Appellants purchased

from Dominicana, for two dollars apiece,

tourist visas that read “Welcome to the

Dominican Republic." The cards were blank

when they were tendered to the Arangos;

the Arangos filled in their names and the

102

————

Other required information. Appellants

now argue that Dominicana misrepresented

the nature of these cards, and that they

were given the impression that "all would

be taken care of with respect to their

trip." It is not clear what representa-

tions the Arangos claim they relied “oon.

The cards do state the terms under which

a tourist may travel in the Dominican

Republic, but do not purport to guarantee

that possession of a card will ensure

entry into the Dominican Republic, nor did

Ramiro Arango testify that any Dominicana

agent told him that they would. This de-

ficiency aside, the theory of recovery

fails anyway because Ramiro Arango admit-

ted that he was aware that each nation

had its own rules with respect to the ad-

mission of tourists. Hence, appellants

103

cannot reasonably claim that they relied

upon these alleged misrepresentations.

See Butts v. Dragstrem, 349 So.2d 1205,

1206-07, (Fla.Dist.Ct.App.1977).

C. Duty to Provide Food and Lodging

Appellants further argue that Domini-

cana breached its duty to exercise care on

behalf of its passengers by forcing them

to spend the night in San Juan at their

Own expense. After denying the Arangos

entry into the Dominican Republic, immi-

gration officials ordered Dominicana to

transport them out of the country. The

Arangos were rerouted to San Juan, where,

according to Ramiro Arango, they inquired

about flights to Miami. Ramiro testified

that Dominicana's San Juan agent told him

to come to the airport the next morning.

When Arango asked whether Dominicana would

provide his family with food and lodging

104

———— tt (i i‘COiéiC;O~™~””:CSN

for the evening, the Dominicana agent

responded in the negative. The Arangos

proceeded to a hotel, where they paid for

lodging and meals.

(11,12) A common carrier is obli-

gated to exercise a high degree of care

with respect to the boarding, carriage,

and disembarkment of its passengers.

Atlantic Greyhound Lines v. Lovett, 134

Fla. 505, 184 So. 133, 136 (1938); Pividal

v. City of Miami, 105 So.2d 502, 503 (Fla.

Dist.Ct.App.1958). The requirement that

carriers exercise this degree of care may

extend to the provision of terminals into

which passengers enter upon exiting the

carrier. Eastern Airlines v. Dixon. 310

So.2d 336, 338 (Fia.Dist.Ct.App.1975)

(Hendry, J., concurring). But see Werndl

v. Greyhound Lines, 412 So.2d 384, 386 &

n.3(Fla.Dist.Ct.App.1982). There is no

105

duty, however, that recuired Dominicana

to pay for the Arangos' food and lodging

in San Juan under the circumstances of

this case. Dominicana was ordered by

immigration officials to transport the

appellants out of the country on the

very next flight leaving for their

country of origin. Ramiro Arango tes-

tified that the police even escorted him

and his family through the airport and

onto the aircraft. Dominicana had no con-

trol over the civeumeeaneen under which

the Arangos were taken to San Juan. Fur-

thermore, the Arangos make no claim that

they were unable to pay for fooi and lodg-

ing for some reason attributadlu to the

airline. To impose the duty requested

would require airlines to guarantee the

success of its passengers' travel ven-

tures. We conclude, therefore, that Do-

106

Ph a a

mMinicana was under no obligation to pay

the Arangos' food and lodging expenses

incurred in Sak Juan.

D. Breach of Contract of Carriage

(13) Finally, appellants claim that

their contract with Dominicana, created by

the purchase of the airline ticket, was

breached, because Dominicana did not re-

turn them to Miami as promised or pay for

their transportation aboard another car-

rier. Once Dominicana was ordered to take

the Arangos out of the country. Dominica-

na issued them tickets for passage to San

Juan and from San Juan to Miami. The

trip from San Juan to Miami was arranged

aboard Eastern Airlines, »ecause at the

time Dominicana did not fly that route.

The Arangos were’ not scheduled for any

particular Eastern flight. The day after

they arrived in San Juan, they flew to

107

eee

Port-au-Prince, Haiti via Air France,

using new tickets issued by Dominicana.

Their return to Miami was aboard Pan Am.

Ramiro Arango testified that he paid cash

for the flight from Port-au-Prince to

Miami.

The court below concluded that there

was no breach of contract because the

court found that the Arangos voluntarily

decided to travel to Port-au-Prince ins-

tead of returning to Miami. This decision

was made to enable the Arangos to vacation

in Haiti as a substitute for their failed

plans. Although Ramiro Arango testified

that his family ‘slew to Haiti in an effort

to secure passage tv Miami, there is subs-

tantial evidence in the record that con-

tradicts this explanation. We can over-

turn the district court's finding on this

issue only if it is clearly erroneous, Fed.

108

R»sCiv.F. 52(a), and we conclude that it

is not. We hold therefore that Dominicana

did not breach its contract of carriage.

V. CONCLUSION

Unfortunately for the Arangos, their

vacation was not as planned. Under the

theories advanced in this case, however,

Dominicana cannot be held liable for their

losses. The judgment of the court below

in favor of Dominicana is therefore AF-

FIRMED. We instruct the district court to

take the appropriate action in entering

final judgment that will resolve the Aran-

gos' claims against defendants Guzman and

Trailways.

ai. ln their brief, appellants make

several references to the opinion that

disposed of the initial appeal in this

case, apparently in an effort to esta-

blish that the district court's opini-

on violates the law of the case. This

contention has no merit. The former

Fifth Circuit ruled only that some of

109

the appellant's claims sufficed to

survive a motion to dismiss, while

observing that flaws in the theories

of recovery may become evidence at a

later date. Arango, 621 F.2d at

1381-82.

110

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