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United States: District Court for the District of Columbia Decision in Icenogle v. Olympic Airways, S.A.*
Published online by Cambridge University Press: 20 March 2017
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- Type
- Judicial and Similar Proceedings
- Information
- Copyright
- Copyright © American Society of International Law 1979
Footnotes
*
[Reproduced from the text provided by the U.S. District Court for the District of Columbia.]
[The U.S. Foreign Sovereign Immunities Act of 1976 appears at 15 I.L.M. 1388 (1976). The Department of State regulations under the Act on notice of suit and service on foreign states appear at 16 I.L.M. 159 (1977). A Department of State memorandum on judicial assistance under the Act appears at I.L.M. page 1177.]
References
1/ For a recent reiteration of “the right of trial by Jury in civil cases at common law” as “fundamental to our history and jurisprudence,” see Parklane Hosiery Company, Inc. v. Shore and authorities there collected,by U.S.L.W. 4079, 4U4B (January 9, 1969) (Rehnquist, J.,dissenting).
2/ See generally Mehren, von,“The Foreign Sovereign Immunities Act of 1976,” 17 Columbia Journal of Transnational Law 33 (1977) and authorities there collectedGoogle Scholar.
3/ Oliver American Trading Co. v. Mexico, 5 F.2d 659 (2d Cir. 1924), cert, denl 267 U.S. 596. Compare Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926). But see Alfred Lord Dunhill of Lohdon v. Cuba, 425 U.S. 682, 699 (1966) and Mexico v. Hoffman, 324 U.S. 30 (1945).
4/ Indeed, the Civil Aeronautics Board requires a foreign air carrier to waive any Sovereign immunity it might claim up to $75,000 before it i$ privileged to operate in the United States. See Agreement CAB 18900, approved by CAB Order E-23680, May 13> 1966 (Docket 17325); 14 C.F.R.221.175-176.
5/ In addition, as a matter of grammar, the broader undefined term “foreign states” as now used in Section 1332(a)(2) modifies and stands in contrast to “subjects and citizens.” Thus, the term “foreign state” as now used in Section 1332(a)(2) does not encompass a foreign government-owned corporation; such a corporation cannot have “citizens or subjects.”
6/ And compare 28 U.S.C. § 2402, providing that in actions against the United States under the Federal Tort Claims Act:
“Any action against the United States … shall be tried by the court without a jury…”
7/ New section 1441 of Title 28 provides that:
“any civil action brought in state court against a foreign state as defined in section 1603 … may. be removed by the foreign state to the district court … . Upon removal the action shall be tried to the court without jury.”
8/ See 28 U.S.C §(1605)(a)(2).
9/ See, e.g., Bank of the United States v. Planters' Bank of Georgia, 9 Wheat 904 (1824); Sloan Shipyards Corporation v. U.S.S.B. Emergency Fleet Corporation, 258 U.S.549 (1922); Olson v. United States Spruce Production Corporation, 267 U.S. 462 (1925); Keifer & Keifer v. R.F.C., 306 U.S. 381 (1939); F.H.A. v. Burr, 309 U.S. 242 (1940). Compare Federal Land Bank v. Pnddy,-295 U.S. 229, 231(1935); Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309 (1958).
10/ See Sloan Shipyards Corporation, supra; PP anama R. Co. v. Curran, 256 F. 768 (5th Cir. 1919). See also Panama Railroad~Company v. Minnix, 2 82 F. 47 (5th Cir. 1922); F.H.A. v. Burr, supra, 309” U.S. at 245. Compare Filbin Corporation v. United States, 265 F. 354 {E.D.S.C. 1920); United States v. McGrane, 270 F. 761, 764 (3rd Cir. 1921).
11/ Compare United States v. Strang, 254 U.S. 491 (1921) with Federal Land Bank v. Priddy, supra; Panama Canal Co. v. Grace Line, Inc., supra; Safeway Portland E.F.C.U. v. Federal Pep. Ins. Corp., 506 F.2d 1213 (9th Cir. 1974).
12/ AMTRAK is a mixed-ownership government corporation designated a common carrier by railroad. 31 U.S.C. § 856; 45 U.S.C. § 545(a). AMTRAK is supported in part by federal appropriations and by loan funds guaranteed by the Secretary of Transportation, which constitute general obligations of the United States. 45 U.S.C. §§ 601(a), 602(a)-(b). The majority of AMTRAK's present directors are appointed by the President of the United States with the advice and consent of the Senate. 45 U.S.Ct. § 543(a)(1). The Rail Passenger Service Act specifically^ provides that AMTRAK will not be an agency or establishment of the United States government. 45 U.S.C. § 541. There is-therefore no limitation upon the jury trial of legal claims involving AMTRAK and such claims are commonly tried before a jury. See, e.g., Christian v.National Railroad Passenger Corporation, C.A. No. 77-1138(D.C.D.C.).
See generally Adams, , “The National Railroad Passenger Corporation — A Modern Hybrid Neither Private nor Public,” 31 Bus. L. 601 (1976)Google Scholar.
See also 28 U.S.C. § 2680, exempting the Tennessee Valley Authority from ttye limitations of the Federal Tort Claims Act. Compare Frd J. Early, Sr., Co., Inc., Massman Construction Coj and WAI4ATA V” Wagner, No. 11964 (App. D.C. Aug. 17, 1978); La)j:e Country Est-ates, Inc. y. Tahoe Regional Planning Agency, 47 U.S.L.W. 4256 (1979).