Ex Parte Republic of Peru
1943 U.S. LEXIS 1120, 63 S. Ct. 793, 318 U.S. 578 (1943)
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Rule of Law:
When the U.S. State Department recognizes and allows a friendly foreign sovereign's claim of immunity from suit, and this determination is certified to the court, the court must accept the determination as conclusive and relinquish jurisdiction over the sovereign's property.
Facts:
- Galban Lobo Co., S. A., a Cuban corporation, entered into a charter party agreement with a Peruvian corporation acting as an agent for the Republic of Peru.
- The agreement stipulated that the Ucayali, a steamship owned by the Peruvian government, would carry a cargo of sugar from a Peruvian port to New York.
- The Ucayali failed to perform the contracted voyage.
- The Republic of Peru, through its Ambassador, presented a formal claim of sovereign immunity for the vessel to the U.S. Department of State.
- The State Department formally recognized and allowed the Republic of Peru's claim of immunity.
- The State Department communicated its decision to the Attorney General, requesting that the district court be informed of the recognized immunity claim.
Procedural Posture:
- Galban Lobo Co., S. A. filed a libel in rem in the U.S. District Court for the Eastern District of Louisiana against the steamship Ucayali.
- The Republic of Peru, as claimant, intervened by filing a claim to the vessel, stating it was the sole owner and expressly reserving its defense of sovereign immunity.
- Peru procured the release of the vessel by filing a surety bond, which also contained a reservation of its immunity defense.
- Appearing specially, Peru's counsel took the deposition of the ship's master, again with a reservation of immunity.
- Peru moved for and obtained several extensions of time to answer or plead, with each motion reserving its immunity defense.
- The U.S. Attorney, on instruction from the Attorney General, filed a formal suggestion of immunity in the district court, presenting the State Department's recognition of Peru's claim.
- Peru then moved to dismiss the suit.
- The district court denied the motion, ruling that Peru had waived its immunity and made a general appearance through its actions in the case.
- The Republic of Peru filed a motion in the U.S. Supreme Court for leave to file a petition for a writ of prohibition or mandamus to direct the district court to cease jurisdiction.
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Issue:
Does a foreign sovereign waive its claim of sovereign immunity by appearing in a proceeding in rem against its vessel, obtaining the vessel's release by posting a bond, and taking other procedural steps, when it has expressly and consistently reserved its immunity defense throughout the proceedings and the U.S. State Department has subsequently recognized and allowed its claim of immunity?
Opinions:
Majority - Mr. Chief Justice Stone
No. A foreign sovereign does not waive its claim of sovereign immunity under these circumstances. The principle of sovereign immunity in U.S. courts is guided by the political branch of the government; when the State Department formally recognizes and allows a claim of immunity, it is the court's duty to relinquish jurisdiction. The seizure of a friendly sovereign's property can embarrass the executive arm in its conduct of foreign relations. Here, the State Department's certification of immunity is a conclusive determination that the court's continued retention of the vessel interferes with foreign relations. Peru consistently and expressly reserved its immunity defense at every step of its participation in the district court proceedings, including in its claim to the vessel, the release bond, and motions for time extensions. These actions, therefore, cannot be construed as an unqualified assent to the court's jurisdiction or a waiver of its overriding immunity claim.
Dissenting - Mr. Justice Frankfurter
The dissent does not directly answer the issue of waiver, instead arguing that the Supreme Court lacks jurisdiction to hear the case and, even if it had jurisdiction, should decline to exercise it. The Judiciary Act of 1925 was intended to drastically curtail the Supreme Court's direct appellate jurisdiction over district courts, forcing such cases to go through the Circuit Courts of Appeals first. Issuing an extraordinary writ like mandamus or prohibition in this instance circumvents the proper appellate channels and improperly expands the Court's jurisdiction beyond what Congress intended. The case involves no exceptional circumstances or matters of such public importance that would justify bypassing the normal appellate process, especially since the ship had already been released and the dispute was over a monetary bond. Remitting the case to the Circuit Court of Appeals is the proper course and respects the structure of the federal judicial system.
Analysis:
This case solidifies the doctrine of judicial deference to executive determinations of foreign sovereign immunity. It establishes the rule that a "suggestion of immunity" from the State Department is conclusive and binding upon the courts, effectively removing judicial discretion in the matter. This precedent reinforces the separation of powers by placing the sensitive conduct of foreign relations squarely within the executive branch's authority. The decision also clarifies that a sovereign can take necessary steps to defend its property in court without waiving immunity, so long as the claim of immunity is explicitly and consistently reserved, protecting sovereigns from being forced to choose between forfeiting their property by default or forfeiting their immunity by appearing.
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