The Maritime Lien Exception

AuthorErnesto Sanchez
e U.S. Supreme Court’s 1812 Schooner Exchange decision evidences how the doctrine of for-
eign sovereign immunity originated in a maritime context.1 at case, to recap, concerned an
unsuccessful attempt by the former private owners of a vessel seized by France to repossess the
vessel while it was docked in Philadelphia.2 Supreme Court decisions in admiralty matters dur-
ing the rst half of the twentieth century were at the forefront of debate ultimately culminating
in the U.S.’s adoption of restrictive foreign sovereign immunity.3
Today, the international shipping industry carries around 90 percent of world trade,4 but is
not implicated in U.S. foreign sovereign immunity cases to the same degree that it once was.
States nonetheless continue to operate ships for commercial trading purposes, often through
such agencies or instrumentalities as commercial shipping enterprises, some of which are the
largest in the industry. e FSIA treats these companies and their ships the same as other state-
owned commercial enterprises.
Subject to subsequent procedural requirements,5 28 U.S.C. § 1605(b) states:
A foreign state shall not be immune from the jurisdiction of the courts of the United
States in any case in which a suit in admiralty is brought to enforce a maritime lien against
a vessel or cargo of the foreign state, which maritime lien is based upon a commercial
activity of the foreign state . . .6
1. e Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 117-20, 136-37, 147 (1812).
2. See id. at 117-20.
3. See, e.g., Republic of Mexico v. Homan, 324 U.S. 30, 35-36 (1945) (denying immunity to Mexican state-owned
commercial vessel because “[i]t is . . . not for the courts to deny an immunity which our government has seen t to allow,
or to allow an immunity on new grounds which the government has not seen t to recognize”); Ex parte Peru, 318 U.S.
578, 589 (1943) (immunizing Peruvian government-owned vessel from jurisdiction in commercial case because State
Department’s suggestion of immunity “must be accepted by the courts as a conclusive determination by the political
arm of the government that the continued retention of the vessel interferes with the proper conduct of our foreign rela-
tions.”); Compañia Española de Navegación Maritima, S.A. v. e Navemar, 303 U.S. 68, 70-71, 74-75 (1938) (denying
immunity with respect to a vessel where its owner, a Mexican state-owned shipping company, was not in actual posses-
sion of vessel); Berizzi Brothers v. e Pesaro, 271 U.S. 562, 569-70 (1926) (upholding dismissal of an action based on
the failure of a merchant vessel to deliver a cargo accepted in Italy for carnage to New York, however, on sole ground
that vessel was owned by Italian government).
4. See International Chamber of Shipping/International Shipping Federation – Shipping Facts/Shipping and World
Tra de, available at
5. 28 U.S.C. § 1605(b)(1)-(2), (c).
6. Id. at (b).
ForSovImmunAct_book.indb 193 4/11/13 3:32 PM

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