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TRANSAMERICAN S.S. CORP. v. SOMALI DEMOCRATIC REPU

July 23, 1984

TRANSAMERICAN STEAMSHIP CORPORATION, Plaintiff,
v.
SOMALI DEMOCRATIC REPUBLIC and SOMALI SHIPPING AGENCY, Defendants



The opinion of the court was delivered by: SMITH, JR.

 Plaintiff Transamerican Steamship Corporation brings this action for declaratory and monetary relief against defendants Somali Democratic Republic ("SDR") and Somali Shipping Agency ("SSA"). Currently before the Court are defendants' motion to dismiss for lack of subject-matter jurisdiction, lack of personal jurisdiction, and forum non conveniens.

 At this point the problems began. Plaintiff alleges that its vessel "was ready to sail from Kismayu on July 26, 1981, but defendants . . . wrongfully detained plaintiff's vessel until August 3, 1981." Amended Complaint paras. 21, 25. Plaintiff further alleges that defendants "demanded that plaintiff pay an additional $ 28, 312.30 in U.S. funds to the Embassy of the [SDR] in Washington, D.C. in order to obtain the release of its vessel from Kismayu." Id. at para. 22. Because "detention of the vessel was costing plaintiff at least $ 10,000 for each day of delay under its time charter party with the vessel's owners," plaintiff made the payment "in accordance with the Embassy's directions." Id. at para. 25. Plaintiff's efforts to recover detention damages and other claims against defendants through diplomatic means were unsuccessful, and plaintiff filed this suit on July 22, 1982.

 Defendants contend that both the SDR and SSA are immune from suit and therefore the Court lacks subject-matter jurisdiction; that neither defendant has sufficient "contacts" with the United States to satisfy due process limitations on the exercise of personal jurisdiction; and that, in any event, the case should be dismissed under the forum non conveniens doctrine. Upon consideration, the Court concludes that the case should be dismissed as to the SDR, but may go forward against the SSA.

 1. Somali Democratic Republic: Subject-Matter Jurisdiction

 Disposition of the SDR's Rule 12(b)(1) motion turns upon an application of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1330 et seq. Under the Act, a federal district court has subject-matter jurisdiction in civil actions against "foreign states" whenever the state is "not entitled to immunity" under the Act or international agreement. Id. at § 1330. Foreign states are immune from suit except as provided in §§ 1605-07; the exceptions pertinent in this case are found in § 1605:

 
"(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case --
 
(1) in which the foreign state has waived its immunity either explicitly or by implication. . . .
 
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or
 
(3) upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere;

 Plaintiff contends that the SDR is not immune by virtue of both the commercial activity and waiver exceptions. The Court, however, concludes that defendant's conduct does not fall within the sweep of either § 1605(a)(1) or (2), and therefore its motion to dismiss must be granted.

 A. Commercial Activity

 Resolution of a § 1605(a)(2) case requires a three-part inquiry: 1) identifying the relevant conduct; 2) determining whether that conduct consists of or is related to "commercial activity;" and 3) whether that commercial activity "bears the relation to the cause of action and to the United States described by one of the three phrases of § 1605(a)(2)." Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 308 (2d Cir. 1981), cert. denied 454 U.S. 1148, 71 L. Ed. 2d 301, 102 S. Ct. 1012 (1982). Courts devote substantial and often exasperated attention to understanding the "three phrases of § 1605(a)(2)", see, e.g., Vencedora Oceanica Navigacion v. C.N.A.N., 730 F.2d 195, 199-204 (5th Cir. 1984), but an unusually explicit legislative history contributes to easier application of the statute in this factual setting.

 Plaintiff finds jurisdictional significance in essentially two sets of events involving the SDR. First, plaintiff argues that the SDR engaged in commercial or commercially-related acts in the United States by signing the transfer authorization and by "acquiring legal ownership" of the grain before shipment. See Plt. Opp. Mo. Dis. at 22. Second and more importantly, plaintiff suggests that the SDR became "directly involved" in the conceded commercial activity of the SSA "by acting as the SSA's designated agent to collect funds demanded from plaintiff as a condition for releasing the ship." Id. at 14. Plaintiff points to the SDR's role in accepting and retaining the July and August 1981 payments at its Washington bank, and to its personnel's participation in meetings with plaintiff. In sum, plaintiff argues, the SDR was "at least as involved" as the SSA in "commercial activities." Id.

 In evaluating the SSA's conduct, it is important to recall that the Act distinguishes between commercial activity "carried on in the United States" (clause 1), and "acts" or "effects" in the United States connected with a "commercial act of the foreign state elsewhere" (clauses 2, 3). Cf. Gibbons v. Udaras na Gaeltachta, 549 F. Supp. 1094, 1112 (S.D.N.Y. 1982). There is no question that the SSA engaged in commercial activity elsewhere, but there are no such allegations about the SDR. *fn3" Consequently, the only basis for § 1605(a)(2) jurisdiction is found in clause 1, and the only question is whether the SDR's conduct in the United States constitutes "commercial activity" within the meaning of the Act.

 The Act's definition of commercial activity (28 U.S.C. 1603, supra note 2) is deliberately vague, see Texas Trading, supra, 647 F.2d at 308-09 (citing H.R. Rep. No. 94-1487, 94th Cong., 2d Sess., reprinted in 1976 U.S. Code Cong. & Ad. News 6604), but the ambiguity of the statutory language is, in this instance, cured by the specificity of the legislative history. In its analysis of § 1603, the House Report reads in part:

 
"By contrast, a foreign state's mere participation in a foreign assistance program administered by the Agency for International Development (AID) is an activity whose essential nature is public or governmental, and it would not itself constitute a commercial activity. By the same token, a foreign state's activities in and 'contacts' with the United States resulting from or necessitated by participation in such a program would not in themselves constitute a sufficient commercial nexus with the United States so as to give rise to jurisdiction (see sec. 1330) or to assets which could be subjected to attachment or execution with respect to unrelated commercial transactions (see sec. 1610(b)). However, a ...

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