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United States: Court of Appeals for the Fifth Circuit Decision in Spacil v. Crowe (Sovereign Immunity; Commercial Transaction between Entities Owned by Two Foreign States Engaged in Political Dispute; Attachment of Vessel in Panama Canal)*

Published online by Cambridge University Press:  04 April 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 13 , Issue 2 , March 1974 , pp. 436 - 443
Copyright
Copyright © American Society of International Law 1974

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Footnotes

*

[Earlier documentation concerning this case appears at 13 International Legal Materials 120–63 (1974).]

References

1 According to Mambisa, the Playa Larga was approached and threatened by Chilean naval vessels on the morning of September 11, and a member of the crew was arrested by a military patrol while ashore. In the early evening, the master of the vessel, fearing for the security of the vessel and its crew, took the ship out of Chilean territory.

2 State Department procedures provide for acceptance of memoranda from both parties and, at the request of either party, an informal hearing. Representatives of both parties may attend the hearing to present their views to a panel of members of the Office of the Legal Adviser. No presentation of evidence or testimony is permitted. No transcript is made of the proceedings. See 64 Am.J.Int’l L. 650 (1970).

3 There have been exceptions to this practice, but they have been extremely rare. See, e. g, Stephen v. Zivnostenska Banka Nationale Corp., 1962, 12 N.Y.2d 781, 235 N.Y.S.2d 1, 186 N.E.2d 676.

4 See, e. g., National City Bank v. China, 348 U.S. 356, 358, 75 S.Ct. 423, 99 L.Ed. 389; Isbrandtsen Tankers, Inc. v. President of India, supra, 446 F.2d at 1201; Rich v. Naviera Vacuba, S.A., supra, 295 F.2d at 26. See also Davis, Administrative Arbitrariness—A Postscript, 114 U.Pa.L.Rev. 823, 832 (1966).

5 See Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 1948, 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568; Jaffe, The Right to Judicial Review, 71 Harv.L.Rev. 401, 769, 778 (1958). See also Davis, Administrative Arbitrariness Is Not Always Reviewable, 51 Minn.L. Rev. 643 (1967).

6 Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp. supra, 333 U.S. at 111; United States v. Pink, 1942, 315 U.S. 203, 222, 62 S.Ct. 552, 86 L.Ed. 796; United States v. Belmont, 1937, 301 U.S. 324, 328, 57 S.Ct. 758, 81 L.Ed. 1134; Oetjen v. Central Leather Co., 1918, 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726.

7 We do not mean to imply that any agency action touching foreign relations, however tenuously, is entitled to a presumption against review. We agree with the District of Columbia Circuit that a government agency “cannot wrap its decision[s] in some mystique of foreign policy or purported expertise in international negotiation to achieve a nonreviewable status for the facts underlying its most important and sensitive decisions”. Pillai v. CAB, D.C. Cir. 1973, 485 F.2d 1018 at 1023. On the other hand, even that Circuit apparently would agree with us that decisions bound up with substantial foreign policy questions are not reviewable. In Peoples v. United States Department of Agriculture, 1970, 138 U.S.App.D.C. 291, 427 F.2d 561, 567, the Court said: “The general rule, subject only to rare exceptions, [is] that the action of a government agency in the domestic sphere, as contrasted with actions in the spheres of foreign affairs or national security, is subject to judicial review for arbitrariness and abuse of discretion”. (Emphasis supplied.) Compare Pillai v. CAB, supra; National Air Carrier Ass'n v. CAB, 1971, 143 U.S.App.D.C. 140, 442 F.2d 862; National Air Carriers Ass’n v. CAB, 1970, 141 U.S.App.D.C. 31, 436 F.2d 185 (CAB decisions approving international air line rates are reviewable) and Rusk v. Cort, 1962, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (decisions by the State Department denying passport renewal are reviewable) with Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., supra, 333 U.S. 103 (orders of the CAB, approved by the President, to grant or deny applications to engage in overseas and foreign air transportation are not reviewable) and United States v. Pink, supra, 315 U.S. 203 (decisions by the State Department to grant or deny diplomatic recognition to foreign nations are not reviewable).

There is no question of the tight relationship between foreign policy and the State Department’s decision to certify a suggestion of immunity to the courts. See Ex parte Peru, supra, 318 U.S. at 587. Indeed, the political aspects of such a decision are inescapable. The State Department has found that it cannot deny a claim of immunity without risking adverse effects on foreign relations. Thus the Administration has sought legislation transferring to the courts the responsibility for determining whether a claim of immunity should be honored. See H.R. 3493, 93d Cong., 1 Sess. (1973). The bill would take the State Department out of the business of suggesting immunity to the courts. Hearing on H.R. 3493 Before the Sub-comm. on Claims and Governmental Relations of the House Comm. on the Judiciary, 93d Cong., 1 Sess. 34 (1973).

8 In 1952 in a letter to Acting Attorney General Philip B. Perlman, Acting Legal Adviser Jack B. Tate announced that the State Department would generally adhere to the restrictive theory of sovereign immunity, recognizing immunity for public acts of a foreign sovereign (jure imperii) and denying immunity for commercial acts (jure questionis). 26 Dep’t State Bull. 984 (1952). The Tate letter has never been officially abandoned, and in correspondence with the plaintiffs’ counsel, the State Department implied that the standards outlined in the Tate letter would be applied to the instant situation. The plaintiffs contend that it is impossible to tell whether the State Department applied the standards of the Tate letter, and that, in fact, it appears that the Department used some other standard. The defendant argues that the Tate letter is a guide to State Department policy, not an unalterable rule. See the Solicitor General’s comments in the memorandum for the United States in opposition to the application to the Supreme Court for a stay in Rich v. Naviera Vacuba, S.A., supra. Because we hold that the executive’s decision to recognize and allow a claim of sovereign immunity is unreviewable, we need not enter this debate.

9 The district court concluded that the suit should be dismissed in accordance with Ex parte Peru, supra, 318 U.S. 578, but stated its desire that the plaintiffs have “an opportunity to have a ruling from the Appellate Court”. In ordering the stay, the district court seemed to contemplate and invite the plaintiffs to obtain review of the case through the most expeditious means: “I guess what you would do would be to go to the Court of Appeals and get a writ of prohibition or something of that kind. I don’t know what your procedure is going to be to get to the Court of Appeals.”