The opinion of the court was delivered by: CONNER
This is an action for damages sustained by the S/T Eagle Voyager as a result of a collision with the S/T Manhattan.
In July, 1972 plaintiff and defendant Commodity Credit Corporation
entered into a voyage charter party whereby plaintiff agreed to let and defendant agreed to hire the S/T Eagle Voyager for a voyage from Gulf ports to Chittagong and/or Chalna, Bangladesh, with a cargo of wheat consigned to defendant, the Ministry of Food & Civil Supplies for the Government of the People's Republic of Bangladesh ("Ministry of Food").
On September 17, 1972 the Eagle Voyager was moored portside to the S/T Manhattan, which was anchored with her port anchor near Kutubdia Island, about 30 miles from Chittagong, Bangladesh for discharging operations. Due to the bad weather and strong current, the mooring lines between the vessels parted and the Eagle Voyager dragged her anchor, moving away from The Manhattan. After several days of continued bad weather, the two ships were again moored together, but were forced to continue maneuvering with their engines to maintain position against the strong current. In the course of such maneuvering, the mooring lines parted again and the collision occurred.
The action first came before the Court on plaintiff's motion for an order of attachment upon the property of the Ministry of Food pursuant to N.Y.C.P.L.R. Section 6201(1). A subsequent conference before the Court resulted in a motion by the Ministry of Food to dismiss the complaint for lack of jurisdiction. This motion is presently before the Court.
The Ministry of Food contends that it is entitled to sovereign immunity from the jurisdiction of this Court, and that the New York attachment statute, N.Y.C.P.L.R. Section 6201 et seq., is unconstitutional. Plaintiff, on the other hand, asserts that the New York attachment statute is valid for purposes of obtaining jurisdiction. It contends that it is unfamiliar with the nature of the activities of the Ministry of Food and seeks to gain jurisdiction over it in order to ascertain whether its activities may be deemed private, rendering defendant subject to process, or public, entitling it to sovereign immunity.
Since this Court has recently ruled that the New York attachment statute is valid for purposes of gaining jurisdiction over a defendant which is a "foreign corporation or not a resident or domiciliary of the state,"
N.Y.C.P.L.R. § 6201(1), the only substantial question presented here is whether the Ministry of Food may properly invoke the doctrine of sovereign immunity.
It is well settled that the doctrine of sovereign immunity is available to a state only when it is sued on a cause of action arising out of a public function. Victory Transport Inc. v. Comisaria General, 336 F.2d 354 (2d Cir. 1964), cert. denied, 381 U.S. 934, 14 L. Ed. 2d 698, 85 S. Ct. 1763 (1965); Aerotrade, Inc. v. Republic of Haiti, 376 F. Supp. 1281 (S.D.N.Y. 1974). Therefore, in order to determine whether the Ministry of Food has properly invoked the defense of sovereign immunity, it is necessary to determine whether the activities out of which this action arises were jure imperii (public or sovereign functions) or jure gestionis (private or commercial functions).
In support of its claim of sovereign immunity, defendant has submitted an affidavit of A. Karim Chowdhury, First Secretary of the Bangladesh Embassy in the United States, in which he asserts that the Ministry of Food is a governmental organ which engages in the purely governmental functions of distributing food and other necessities to the people of Bangladesh and does not engage in trade or commercial activities.
In Victory Transport Inc. v. Comisaria General, supra at 360, our Court of Appeals formulated the test which a court should follow, absent a formal recommendation from the State Department. The Court stated that immunity should be denied "unless it is plain that the activity in question falls within one of the categories of strictly political or public acts ...