contractor would indemnify the Embassy for all claims arising from the construction. Humphreys thereafter engaged various subcontractors and excavation began. In November, 1969, plaintiffs noticed that their land was shifting and settling, allegedly because of the excavation which ran to within several feet of plaintiffs' property. As excavation and building progressed, the settling continued, causing considerable damage to plaintiffs' driveway, garage and house. Plaintiffs sought assurances from defendants that repairs would be made but no agreement was reached. This suit was then commenced in October, 1972.
Defendant Brazil moved to dismiss the complaint on grounds of sovereign immunity on December 14, 1972. That motion was denied without prejudice so that Brazil could seek a suggestion of immunity from the Department of State. On January 30, 1974, the Department of State, after studying briefs and hearing oral argument, advised the Brazilian Ambassador that "the present case is not one where a suggestion of sovereign immunity should be made."
Brazil's motion to dismiss presents two basic issues for this Court's consideration. First, this Court must decide whether the Department of State's unequivocal and definite refusal to suggest immunity is conclusive or whether the Court, notwithstanding such a refusal, still may grant immunity. Second, if this Court concludes that such a refusal is not conclusive, should immunity be granted under the circumstances of this case.
I. Whether the Department of State's refusal to grant immunity is conclusive.
The doctrine of sovereign immunity for foreign nations is invoked "chiefly to avoid possible embarrassment to those responsible for the conduct of the nation's foreign relations." Victory Transport, Inc. v. Comisaria General, 336 F.2d 354, 357 (2d Cir. 1964), cert. denied, 381 U.S. 934, 85 S. Ct. 1763, 14 L. Ed. 2d 698 (1965); accord, National City Bank of New York v. Republic of China, 348 U.S. 356, 361, 99 L. Ed. 389, 75 S. Ct. 423 (1955); Republic of Mexico v. Hoffman, 324 U.S. 30, 34-36, 89 L. Ed. 729, 65 S. Ct. 530 (1945); New York & Cuba Mail Steamship Co. v. Republic of Korea, 132 F. Supp. 684, 686 (S.D.N.Y. 1955). Accordingly, both parties agree that a suggestion of immunity is conclusive and binding on the courts.
In addition the courts have recognized that it may be "equally embarrassing" if the courts recognize a claim of immunity on grounds not sanctioned by the political department of the United States Government. Republic of Mexico v. Hoffman, supra at 36; see Victory Transport Inc. v. Comisaria General, supra at 358. Thus, the Second Circuit, in construing Hoffman, has stated
that courts should deny immunity where the State Department has indicated, either directly or indirectly, that immunity need not be accorded. It makes no sense for the courts to deny a litigant his day in court and to permit the disregard of legal obligations to avoid embarrassing the State Department if that agency indicates it will not be embarrassed. Id.