VICTORY TANSPORT INCORPORATED V COMISARIA GENERAL
Comisaria Generals claim of sovereign immunity should be denied in
as much as the particular acts out of which the cause of action arose are not
to be shown as purely governmental character. Since the State
Departments failure or refusal to suggest immunity that has not been
recognized and allowed by the State Department unless it is plain that the
activity in question falls within one of the categories of strictly political or
public acts about which sovereigns have traditionally been quite sensitive.
Such acts are limited to:
a. Internal administrative acts (i.e. expulsion of aliens)
b. Legislative acts (i.e. nationalization)
c. Acts concerning armed forces
d. Acts concerning diplomatic activity
e. Public Loans
Transport of a purchase wheat is not strictly public or political act. It
partakes far more of the characteristic of a private commercial act than a
public act. A contract relating to maritme transport is a private contract
where the owner merely puts his ship or ships crew at the disposal of the
State and does not take direct part in the performance of the public service
undertaken by the State in the latters capacity as a charterer.
UNDERHILL V HERNANDEZ
Act of State Doctrine
Every sovereign state is bound to respect the independence of every
other sovereign state, and the courts of one country will not sit in judgment
on the acts of the government of another, one within its own territory.
Redress of grievances by reason of such acts must be obtained through the
means open to be availed of by sovereign powers as between themselves.
The acts complained of were the acts of a military commander
representing the authority of the de facto government in the prosecution of
war and he cannot be civilly responsible therefore.
The immunity of individuals from suits brought in foreign tribunals for
acts done within their own states, in the exercise of governmental authority
whether as civil officers or as military commanders, must necessarily extend
to the agents of governments ruling by paramount force as a matter of fact.
LUTHER V SAGOR
Once a government is recognized, its acts will be granted validity even prior
to its recognition, known as retrospective effect.
There is no difference in effect between recognition of a government as
a government de jure and recognition of a government de factor. In either
case, the recognition validates acts done by the government from the time
when it can be ascertained as the government which is subsequently
recognized. After it has been recognized, its acts cannot be questioned in a
Court of Law.
BROWN CLAIM
No liability ever passed to or was assumed by the British Government.
Neither in the terms of peace granted at the time of the surrender of the
Boer Forces, nor in the Proclamation of the Annexation, can there be found
any provision referring to the assumption of liabilities of this nature. The case
was simply a pending claim for damages against certain officials and had
never become a liquidated debt of the former State. Nor is there any
question of State succession involved.
THE SCHOONER EXCHANGE
The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. All exception to the full and complete power of a
nation within its own territories must be traced up to the consent of the
nation itself, and no other legitimate source. The consent may express or
implied. The latter is less determinable, exposed more to the uncertainties of
construction, but if understood, not less obligatory.
The Schooner Exchange being a public armed ship, currently under the
control and supervision of foreign power, who at the time of the ships entry
into U.S. was at peace with U.S., must be viewed as having entered the
States territory under an implied promise that while in such environment,
would be exempt from jurisdiction of the country. National ships of war are
viewed as been exempted by consent of the power of the friendly jurisdiction
whose port of the ship enters.
The Schooner doctrine is one of implied consent by the territorial
sovereign to exempt the foreign sovereign from its exclusive and absolute
jurisdiction, the implication deriving from standards of public morality, fair
dealing, reciprocal self-interest and respect for the power and dignity of the
foreign sovereign.
HAILEE SELASSIE V CABLE WIRELESS
A foreign sovereign must establish his title to a chose in action before
he can claim immunity. The limitation of recognition to recognition de facto
deprives the de facto sovereign of none of the legal attributes of sovereignty.
It seems to follow that the continued recognition of a de jure sovereign as
well must be regarded as a merely political act, without juridical
consequence. The recognition by His Majestys Government that the King of
Italy has in fact become sovereign of Ethiopia would of itself operate to
preclude Haile Selassie from maintaining in the English courts a claim as
sovereign.
NATIONAL BANK V REPUBLIC OF CHINA
We have a foreign government invoking our law but resisting a claim
against it which fairly would curtail its recovery. It wants our law, like any
other litigant, but it wants our law free from the claims of justice. Thus it
seems only fair to subject a foreign sovereign, coming into our courts by its
own choice, to a liability substantially less than our own Government long
ago willingly assumed.
Respondent urges that fiscal management falls within the category of
immune operations of a foreign government as defined by the State
Department's pronouncement. This is not to be denied, but it is beside the
point. A sovereign has freely come as a suitor into our courts; our State
Department neither has been asked nor has it given the slightest intimation
that in its judgment allowance of counterclaims in such a situation would
embarrass friendly relations with the Republic of China.
It is recognized that a counterclaim based on the subject matter of a
sovereigns suit is allowed to cut into the doctrine of immunity. This proof is
positive that the doctrine is not absolute, and that consideration of fair play
must be taken into account in its application. But the limitation of based on
the subject matter is too indeterminate, indeed too capricious, to mark the
bounds of the limitation on the doctrine of sovereign immunity.