Amicus Curiae Brief — Flores de Brenes v. Transportes Aereos Nacionales, S. A.

REILE

) MAY 19 894

No. 93-1814 oFEICE OE THE CLERMM

In The

Supreme Court of the United States

October Term, 1993

*

TANIA FLORES DE BRENES, Individually and as

Executor, Administrator or Personal Representative

of the Estate of ERICK ANTONIO BRENES, Decedent;

and CLAUDIA CROW, for herself and as Executor,

Administrator or Personal Representative of the

Estate of ALFONSO G. WONG-VALLE

and MARIA WONG-VALLE, Decedents,

Petitioners,

VS.

TRANSPORTES AEREOS NACIONALES, S.A., a foreign

corporation, and SERVICIO AEREO DE HONDURAS,

S.A., a foreign corporation,

Respondents.

*

On Petition For Writ Of Certiorari

To The District Court Of Appeal Of Florida

Third District

ef

AMICUS CURIAE BRIEF OF THE REPUBLIC

OF NICARAGUA IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

*

DanieEL S. PEARSON, Esa.

(Counsel of Record)

Ho.LtAND & KNIGHT

701 Brickell Avenue

Miami, Florida 33131

(305) 374-8500

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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THE INTEREST OF THE REPUBLIC OF

NICARAGUA IN THIS CONTROVERSY ......... 6

SUMMARY OF THE ARGUMENT ................. 6

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CPOE Seek babe) usb nwades ¢ d¥encbeete ods eek 10

TABLE OF AUTHORITIES

Page

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

CTSGE) . nc cnucadncdsdseudvouumesleneeteeauneines 8, 9

Oetjen v. Central Leather Co., 246 U.S. 297 (1918)...... 8

Ricaud v. American Metal Co., 246 U.S. 304 (1918) ...8, 9

Sun Oil Co. v. Wortman, 486 U.S. 717 (1988).......... 6

Underhill v. Hernandez, 168 U.S. 250 (1987)............ 8

United States v. Pink, 315 U.S. 203 (1941)............. 7

W.S. Kirkpatrick & Co. v. Environmental Tectonics

Corp., Intl., 493 U.S. 400 (1990) ....ccccceccevees 8, 9

The Republic of Nicaragua, by and through the

undersigned counsel, and with the consent of all parties,

respectfully submits the following brief amicus curiae in

support of the petition for writ of certiorari.

SJ

PROCEDURAL HISTORY

In October of 1989, a Boeing 727 aircraft operated by

Respondents Transportes Aereos Nacionales, S.A. and

Servicio Aereo de Honduras, S.A. (hereinafter collectively

referred to as “TAN-SAHSA”) crashed in Honduras,

resulting in the death of 127 passengers and four crew

members. Thirty-four wrongful-death actions - all filed

by survivors of Nicaraguan decedents - were filed in the

Florida circuit court; thirty-one of them were consoli-

dated for pre-trial purposes. The parties stipulated that

Nicaraguan law governed the issue of damages; and

TAN-SAHSA stipulated that it would not contest liability

for any compensatory damages held to be recoverable

under Nicaraguan law. The only question in dispute was

whether Nicaraguan law permitted the recovery of moral

damages — principally damages for grief and mental

anguish of the survivors, identical to the non-economic

damages permissible under Florida law - in a wrongful-

death case.

After an evidentiary hearing, including testimony for -

the Petitioners from a former Chief Justice of the

Nicaraguan Supreme Court, the Florida trial court held

that moral damages are recoverable under Nicaraguan

law, and liquidated the damages awardable in the two

above-captioned cases, resulting in the two final judg-

ments which were appealed to the District Court of

Appeal of Florida, Third District. The additional 32 cases

remain pending in the trial court, and by stipulation will

be governed by the disposition of the instant cases.

During the pendency of TAN-SAHSA’s appeal to the

district court, the Supreme Court of Nicaragua - in a

unanimous (9-0) advisory opinion rendered at the request

of the Chief District Judge of the Criminal Court in Man-

agua, on behalf of the plaintiffs in the various cases

arising from the crash in this case — declared unequivo-

cally that moral damages are recoverable in a wrongful

death action under both the Civil Code of Nicaragua and

the “quasi-criminal” (tort) provisions of its Criminal

Code (App. 12a). In relevant part, the opinion states:

In Articles 2509, and the subsequent, the Civil

Code of Nicaragua establishes civil liability for

damages in their entirety, without exclusion.

Meaning that it covers property damages as well

as moral damages. The law has no provision on

damage issues limiting it to property damages

exclusively, wherein moral damages are

excluded.

* * *

The Criminal Code of Nicaragua, in the

chapter on Rules to Determine Civil Liability,

Article 46, stipulates on the payment of property

and moral damages caused by a punishable act

[including negligence, under Article 2 of the

Criminal Code]. Dependent parties may file

claims for property and moral damages pur-

suant to Articles 46 and 48 Pn.

Article 10 Pn. indicates that a damaging act

or omission of an agent for whose actions a

person is responsible, by virtue of a civil rela-

tionship binding him/her to such agent, consti-

tutes a quasi crime. Civil liability proceeding

from a quasi crime is not annulled as a conse-

quence of a dismissal of the criminal liability of

the agent. Said civil liability allows for charges

on property and moral damages as well.

Notwithstanding this controlling pronouncement, the

Florida district court of appeal accepted unreflexively the

defendants’ contention that the Nicaraguan Civil Code

permits damages only for pecuniary losses, and that the

Criminal Code precludes liability for quasi-crimes if the

defendant or his agent has been acquitted of criminal

charges (App. 1a). The district court’s opinion makes no

mention of the unanimous Nicaraguan Supreme Court

opinion to the contrary on both points; the only passage

from the opinion which suggests the court’s reasoning is

its declaration that “Nicaragua is a civil-law jurisdiction,”

and “[i]t is axiomatic that in civil-law jurisdictions, law-

making is exclusively the function of the legislature”

(App. 4a). The Florida court may have concluded that in

civil-law jurisdictions, judicial interpretations of legisla-

tion are meaningless, and thus that it was not required to

pay any attention to the studied conclusion of the

Nicaraguan Supreme Court.

Not surprisingly, the district court’s decision - and espe-

cially its failure even to mention the unanimous Nicaraguan

Supreme Court opinion on the precise point at issue — caused

considerable consternation in the quarters of government in

Nicaragua. The reaction was especially aggressive in light of

the district court’s uninformed dismissal of judicial decision-

making in civil-law countries. Although the legislature

indeed is the primary interpretive authority under the

Nicaraguan Constitution, an historical legacy of interpretive

Nicaraguan Supreme Court decisions on a question is uni-

versally recognized as authoritative precedent; and the

Nicaraguan Supreme Court also has unquestioned constitu-

tional authority to summarize or restate a legislative direc-

tive, as opposed to interpreting it. Indeed, the very fact and

legacy of advisory opinions is an affirmation of that author-

ity. In light of the Florida court’s declaration that “in civil-

law jurisdictions, lawmaking is exclusively the function of

the legislature,” it is not surprising that the National Assem-

bly of Nicaragua became the primary focus of the reaction

occasioned by the court’s decision.

Before the time for rehearing of the Florida court's

decision had expired, the National Assembly of the

Republic of Nicaragua, pursuant to its express constitu-

tional authority, enacted an interpretive law declaring

that moral damages are recoverable and have been recov-

erable under Nicaraguan law (App. 16a). Under Article

138(2) of the Nicaraguan Constitution, the National

Assembly is granted the constitutional power to render

an “Authentic Interpretation” of the law of Nicaragua.

Such an interpretation, by definition, does not run afoul

of the constitutional prohibition against ex post facto laws,

because it is not a new law, but the interpretation of an

existing law. Indeed, the provision of the Civil Code

which codifies the ex post facto prohibition exempts “laws

which are limited to interpreting the meaning of other

laws ....” Were Nicaraguan law otherwise, there would

be no institution in Nicaragua empowered to interpret

the statutory law.

In words which mirror the Nicaraguan Supreme

Court's earlier declaration, the interpretive law (App.

16a) declares that “civil responsibility for the damages

and harms referred to [in various provisions of the

Nicaraguan code] is for damages in their entirety, without

exclusion, meaning both material damages and moral

damages. There is no provision whatsoever in the law

that limits damages strictly to material damages or that

excludes moral damages.” The National Assembly then

proceeded to address each of the relevant legislative pro-

visions misinterpreted by the Florida appellate court, and

to explain in detail its unequivocal declaration that moral

damages are permitted in the instant cases, notwithstand-

ing the acquittal of the defendants’ agents of criminal

charges in Honduras. The interpretive law subsequently

was signed by the President of Nicaragua, meaning that

all three branches of the government agree with it.

Although the Nicaraguan Supreme Court’s unanimous

opinion alone shuld have been dispositive of the contro-

versy, the unequivocal declaration of the National Assembly

certainly left no room for disagreement on the point at issue

before the Florida court. Indeed, it was the Florida court

itself which had declared in its opinion that “lawmaking is

exclusively the function of the legislature.” Nevertheless, the

district court of appeal issued an order which denied with-

out explanation the Petitioners’ motion for rehearing. The

Petitioners subsequently sought review by the Florida

Supreme Court, which has only !imited constitutional

authority to review district court decisions, and which

denied review without explanation.

.

THE INTEREST OF THE REPUBLIC OF NICARAGUA

IN THIS CONTROVERSY

The Florida district court’s decision is binding not

only on the parties in the two actions which were before

it, but also on the plaintiffs in 32 other cases currently

pending in the Florida trial court. Those plaintiffs have

not to date participated directly in this proceeding, and

yet they have suffered not only a deprivation of the

substantive rights to which they unquestionably are enti-

tled under the law of their country, but in addition -

along with the Petitioners —- a deprivation of their funda-

mental right of due process, which is violated whenever a

construction of foreign law “contradict[s] the ‘clearly

established’ law” of the foreign jurisdiction when such

law “has been brought to the court's attention.” Sun Oil

Co. v. Wortman, 486 U.S. 717, 731 (1988). In one sense, the

Republic of Nicaragua appears in this Court on behalf of

those citizens. In a larger sense, the Republic of

Nicaragua stands here for itself, as a member of the

community of nations, entitled to the deference for its

tradition and its institutions which all nations expect and

enjoy. From this perspective, the Florida court’s decision

not only is a tragic denial of the unquestioned rights of

private litigants; it is also an affront to the sovereignty of

another nation, and by implication to the sovereignty of

all nations.

SUMMARY OF THE ARGUMENT

The Republic of Nicaragua respectfully submits that

the decision of the District Court of Appeal of Florida,

Third District, constitutes a denial of the right of due

process of the Petitioners and the other plaintiffs sim-

ilarly situated, because it declines deference to the

unequivocal declarations of all three branches of the gov-

ernment of the Republic of Nicaragua, on a question of

Nicaraguan law. In addition, the Republic respectfully

submiis that the Florida court’s decision violates due

process because it violates the act of state doctrine, by

declaring invalid the official act of a foreign sovereign

performed within its own territory.

S

ARGUMENT

The Petitioners have demonstrated that the Florida

court’s analysis of Nicaraguan law (which reflects no

independent study of the issue, but instead accepts

wholesale the Respondents’ selective discussion of the

relevant statutes and judicial decisions) is fundamentally

erroneous in virtually every respect. In addition, the Flor-

ida court’s error implicates two fundamental policies of

federal law. The first, which is discussed at length in the

petition itself, is that, subject to narrow exceptions not

applicable here, the federal constitutional guarantee of

due process required the Florida court's deference to the

superior knowledge of the Nicaraguan government on an

issue of Nicaraguan law. Because the declarations of the

Nicaraguan Supreme Court and its National Assembly

are unambiguous and unequivocal - indeed, both

responded specifically to the issue raised in this particu-

lar case — the Florida court had no authority to revisit the

substantive propriety of those declarations. See, ¢.g.,

United States v. Pink, 315 U.S. 203, 220-21 (1941) (official

declaration of officer of the Russian government as to the

intended extraterritorial effect of a prior Russian decree

of nationalization is conclusive on the courts of this coun-

try).

Second, because the Nicaraguan Supreme Court deci-

sion and the National Assembly’s authoritative inter-

pretation both purported to resolve the very point at

issue in the instant litigation, the Florida court’s action

clearly violated due process by v‘olating established

priniciples of international comity, including the act of

state doctrine, which reflects “the strong sense of the

Judicial Branch that its engagement in the task of passing

on the validity of foreign acts of state may hinder rather

than further this country’s pursuit of goals both for itself

and for the community of nations as a whole in the

international sphere.” Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 423 (1964). As the Court put it in Oetjen v.

Central Leather Co., 246 U.S. 297, 304 (1918), quoting Under-

hill v. Hernandez, 168 U.S. 250 (1987): “To permit the

validity of the acts of one sovereign State to be re-

examined and perhaps condemned by the courts of

another would very certainly ‘imperil the amicable rela-

tionship between governments and vex the peace of

nations.’” Thus, the doctrine provides that “the act

within its own boundaries of one sovereign state-

... becomes . . . a rule of decision for the courts of this

country.” Ricaud v. American Metal Co., 246 U.S. 304, 310

(1918). The rule applies “[i]n every case in which... the

relief sought or the defense interposed would have

required a court of the United States to declare invalid

the official act of a foreign sovereign performed within its

own territory.” W.S. Kirkpatrick & Co. v. Environmental

Tectonics Corp., Intl., 493 U.S. 400, 405 (1990). Whenever

“it is made to appear that the foreign government has

acted in a given way on the subject-matter of the litiga-

tion, the details of such action or the merit of the result

cannot be questioned but must be accepted by our courts

as a rule for their decision.” Ricaud v. American Metal Co.,

246 U.S. at 309.

As thus defined, the doctrine derives from “[v]arious

constitutional and statutory provisions . . . reflecting a

concern for uniformity in this country’s dealings with

foreign nations and indicating a desire to give matters of

international significance to the jurisdiction of federal

institutions.” Banco Nacional de Cuba v. Sabbatino, 376 U.S.

at 823 n.25. Although the doctrine rests only partly upon

“ ‘constitutional’ underpinnings,” id. at 423, “it is plain

that the problems involved are uniquely federal in

nature,” id. at 424, reflecting the view that “rules of

international law should not be left to divergent and

perhaps parochial state interpretations.” Id. at 425. There-

fore, the issue necessarily “must be treated exclusively as

an aspect of federal law.” Id.

In the instant case, the Florida court not only ignored

the unanimous declaration of the Nicaraguan Supreme

Court on the precise point at issue, in the precise case at

issue; it also ignored the National Assembly’s legislative

reaction to the Florida court’s decision itself, in which the

National Assembly interposed its authority to correct the

Florida court’s mistake. At that point, if not before, the

Florida court’s adherence to its decision necessarily

declared “invalid the official act of a foreign sovereign

performed within its own territory,” W.S. Kirkpatrick &

10

Co. v. Environmental Tectonics Corp., Intl., 493 U.S. at 405,

which is forbidden by the act of state doctrine.

In light of the foregoing, there can be no question of

the Florida court's error. Nor, we respectfully submit, can

there be any question of the important policies implicated

by that error. It would be enough, we submit, to observe

that the survivors of 34 decedents who were victimized

by the Respondents’ wrongdoing not be victimized again

by the denial of redress to which they unquestionably are

enti.led under the laws of their nation. There are, in

addition, two important underlying policies of federal

constitutional dimension - the principle of comity, and

the act of state doctrine. The Republic of Nicaragua

entreats this Court to vindicate those policies by accept-

ing review in this case.

CONCLUSION

It is respectfully submitted that this Court should

grant the petition to review the decision of the District

Court of Appeal of Florida, Third District.

Respectfully submitted,

DaNnieEL S. PEARSON

Counsel of Record for the

Republic of Nicaragua

HoLtanpD & KNIGHT

701 Brickell Avenue

Miami, Fla. 33131

(305) 374-8500