The "common-law regime" of foreign sovereign immunity: the actual possession rule in admiralty.

• Author: Bederman, David J.
• Position: Symposium: Foreign State Immunity at Home and Abroad

ABSTRACT

It has been a long-standing rule in admiralty that in order for a foreign sovereign to assert immunity in U.S. courts, the res that is the object of the maritime claim must be in the actual possession of the foreign state at the time the case is brought. Inasmuch as Samantar recognized the existence of a "common-law regime" that preexisted the Foreign Sovereign Immunities Act (FSIA), this Article examines whether the actual possession rule remains in force today. The FSIA codified the actual possession rule in its provisions for the handling of admiralty claims against foreign sovereigns, but this has been hotly disputed. Resolution of this question has broad implications, including the measure of deference that should be given to executive branch positions and the extent to which foreign sovereign interests should be accommodated in all forms of collective proceedings.

TABLE OF CONTENTS I. THE GENERAL STATUS OF FOREIGN SOVEREIGN IMMUNITY COMMON LAW II. THE ACTUAL POSSESSION RULE FOR SOVEREIGN IMMUNITY IN ADMIRALTY III. THE FSIA AND THE ACTUAL POSSESSION RULE IV. COMPLICATIONS: EXECUTIVE BRANCH DEFERENCE AND COLLECTIVE PROCEEDINGS V. CONCLUSION The U.S. Supreme Court's June 2010 decision in Samantar v. Yousuf (1) not only revolutionized our understanding of foreign sovereign immunities for individual foreign officials, but also placed in renewed perspective the status of the common law on this subject--before it was codified in the 1976 Foreign Sovereign Immunities Act (FSIA). (2) In the briefing before the Court, (3) and in recent commentary, (4) it was apparently assumed that the only common law enclaves of foreign sovereign immunity that survived the FSIA concerned the immunities of individual foreign officials and heads of state. This short contribution raises the point that there are other pockets of pre-FSIA common law that continue to exert an influence on doctrine in this area. The existence of these other doctrinal enclosures has surprising implications for the entirety of foreign sovereign immunity (FSI) litigation.

The example selected for discussion here is one arising from the admiralty law's requirement that in order to resist the jurisdiction of a U.S. court a foreign sovereign must be in actual possession of a vessel

or cargo that is the subject of a pending maritime claim. This requirement is pervasive for all sovereign immunity contexts--whether the sovereign at issue is the United States (under federal common law), the states of the Union (under the Constitution's Eleventh Amendment), (5) or foreign nations. Admiralty actions against foreign sovereigns--whether proceeding in personam (against a named foreign sovereign) or in rem (against a specified res that is the subject of a maritime lien)--are not a major staple of FSI litigation in U.S. courts today. However, prior to 1976 (and especially before World War II and the issuance of the 1952 Tate Letter (6)), these types of proceedings were common in U.S. courts. (7) Thus, there is a rich corpus of pre-FSIA common law on this topic, and the contours of this doctrine continue to develop. Today there are broad implications for questions relating to deference to executive branch positions in FSI cases and other procedural problems in instances of intervention by a foreign sovereign in a collective action in a U.S. court.

This contribution will unfold in several steps. First, I will take stock of the general status of common law foreign sovereign immunities in the wake of Samantar. This discussion should make clear that the Supreme Court's 2010 decision, as well as prior holdings, should extend in application to doctrinal pockets other than that for the immunities of current or former foreign officials. Next, I will explore the evolution of the maritime law's actual possession rule in FSI litigation. The principle that U.S. admiralty courts are free to adjudicate a foreign sovereign's claim to maritime property (whether a vessel or cargo), so long as that sovereign was not ousted of its actual possession at the institution of the proceeding, is one of long-standing and pedigree. (8) It is also supported by a substantial logic that when maritime property is not in the actual possession of a foreign sovereign, it is likely being employed for commercial and private (9) purposes and thus amenable to the adjudication of a maritime lien.

Assuming that there is a body of preexisting FSI common law (as confirmed in Samantar) and that admiralty's actual possession rule is part of that law, I will then examine whether Congress intended in the 1976 FSIA (and subsequent amendments (10)) to alter that common law, in whole or in part. This was, of course, the fighting issue in Samantar--at least as to the immunities of foreign officials. (11) Given the complexities of Congress's codification in the FSIA of provisions concerning maritime claims, (12) congressional intent could well be a point of conflict for suits in admiralty as well. Nevertheless, I conclude here that the actual possession rule did survive the FSIA's codification on this subject and, indeed, is textually mandated by the FSIA's relevant provisions. (13)

That leaves two other matters to be addressed here--both having broad import for FSI litigation. The first is the measure of judicial regard courts should afford to executive branch positions in cases involving these FSI common law enclaves. In the wake of Samantar, it seems clear that the Executive Branch desires substantial, if not absolute, respect to be given to its litigation positions in common law cases, especially on the ultimate question of whether a foreign sovereign defendant should be granted immunity. (14) But the pre-FSIA common law of the actual possession rule in admiralty cases is suggestive of a different result; one that could be regarded as rather less deferential to executive branch positions. (15) In a similar vein, the U.S. Supreme Court's 2008 decision in Republic of the Philippines v. Pimentel (16) has implications whenever a foreign sovereign intrudes into a collective proceeding in a U.S. court. Such collective proceedings would not only include in rem admiralty actions (where there are competing claims to ares), but also bankruptcy and forfeiture actions. The Supreme Court held in Pimentel (involving a foreign sovereign that was not joined in an interpleader action) that "where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign." (17) In short, Pimentel established a principle of indispensable parties in FSI litigation. (18) But such a dictate may be incompatible with inherently collective proceedings--especially those sounding in admiralty. When a foreign sovereign has been denied immunity under the pre-FSIA common law actual possession rule, it should not (in effect) be immunized by application of Pimentel's indispensable party holding.

The existence of other doctrinal pockets of common law foreign sovereign immunity should hardly come as a surprise for scholars and practitioners of FSI litigation. But the common law surrounding admiralty's actual possession rules does appear to have a number of unexpected and significant consequences. This contribution will briefly explore these.

1. THE GENERAL STATUS OF FOREIGN SOVEREIGN IMMUNITY COMMON LAW

   Samantar v. Yousuf was not the first instance in which the Supreme Court recognized that the 1976 FSIA may not have entirely supplanted the common law of foreign sovereign immunity. In Permanent Mission of India to the United Nations v. City of New York, (19) the issue before the Court was whether liens (for unpaid taxes) against real property owned by foreign sovereigns could be litigated. Although not strictly necessary for the Court's decision, it was noted that its textual reading of the FSIA was consistent with "two well-recognized and related purposes of the FSIA: adoption of the restrictive view of sovereign immunity and codification of international law at the time of the FSIA's enactment." (20) Inasmuch as the "restrictive view of sovereign immunity"--as enshrined in the Tate Letter (21)--was part of the pre-FSIA common law of the subject, this seems like an implicit recognition of the continued vitality of that common law corpus. The Court also relied on "international practice at the time of the FSIA's enactment" (22) to bolster its holding as to the proper reading of the statute, even though the source most-quoted was the contemporaneous American Law Institute Restatement section on point. (23) All of this is suggestive that the Court has been concerned as to the content of the common law background rules that formed the basis for the FSIA's codification. (24)

   In Samantar, Justice Stevens, writing for the Court, made clear that "the doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976." (25) The Court then reviewed the developments which led up to Congress's enactment of the FSIA--including its primary objectives of codifying the restrictive view of FSI and transferring primary responsibility for resolving FSI disputes to the courts (as opposed to the Executive Branch). (26) Then, somewhat enigmatically, the Court noted that "[a]fter the enactment of the FSIA, the Act--and not the preexisting common law--indisputably governs the determination of whether a foreign state is entitled to sovereign immunity." (27) That statement, of course, begged the question of whether the FSIA actually purported to codify or cover any rules as to the immunities of an individual foreign official (whether so presently or formerly employed), as distinct from a foreign state itself or an agency or instrumentality of a foreign sovereign. (28) The Court framed the issue in this manner:

   Because of this relationship between the Act and the common law that...