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VULCAN IRON WORKS v. POLISH AMERICAN MACH. CORP.

November 14, 1979

VULCAN IRON WORKS, INC., S&S MACHINERY CO. and VULCAN MACHINE TOOLS, INC., Plaintiffs, against POLISH AMERICAN MACHINERY CORPORATION, STANISLAUW TRZECIAK, STEFAN MYSLIWIEC, METALEXPORT, ALEKSANDER JUNG, ANDRZEJ DISZY, MISCZVSKAW NITEFOR, WLADYSLAW BIELA, OSWALD JEREMIAS, DALIMPEX LTD., Defendants.


The opinion of the court was delivered by: LASKER

The plaintiffs served subpoenas on two employees of the Polish Commercial Counselor's Office in New York City, Anataliusz Inowolski and Wladyslaw Golab, seeking to depose them in connection with litigation pending in the United States District Court for the District of New Jersey. Inowolski and Golab refused to respond to the subpoenas, asserting that they are immune from judicial process by reason of their diplomatic status. The plaintiffs moved for an order holding Inowolski and Golab in contempt. We denied the motion, concluding that the Commercial Counselor's Office is a branch of the Polish Embassy rather than a consulate, that accordingly the diplomatic immunity of individuals connected to the Commercial Counselor's Office is to be determined by reference to the Vienna Convention on Diplomatic Relations *fn1" rather than to the Polish Consular Convention, *fn2" and finally, that under Articles 31(2) and 37(2) of the Convention Inowolski and Golab are entitled to immunity as members of the "technical and administrative staff" of the Commercial Counselor's Office. *fn3" 472 F. Supp. 77 (S.D.N.Y.1979).

Plaintiffs move to reargue the motion. They press an argument that was not addressed by the parties earlier and was not considered by the court in reaching its conclusion that Inowolski and Golab are immune. This is not the function of reargument, which is to bring to the court's attention "matters or controlling decisions which counsel believes the court has overlooked," rather than to introduce new material or arguments. General Rule 9(m), Rules of the United States District Courts for the Southern and Eastern Districts of New York. We will treat plaintiffs' motion as one under Rules 59 or 60(b), Fed.R.Civ.P., and reconsider our prior decision in light of the new material before us.

Stated briefly, plaintiffs' new argument is that the evidence of record establishes that the State Department was never "notified" of Golab's appointment to the Commercial Counselor's Office, and that under the Vienna Convention an official is not entitled to immunity until and unless such notification has been received. Golab disputes this, and counters with the claim that even if plaintiffs are correct on the question of notification, he is immune by reason of a State Department "suggestion of immunity."

 The first question to be addressed is whether immunity is indeed conditioned on notification. Article 10 of the Vienna Convention provides:

 
"1. The Ministry for Foreign Affairs of the receiving state, or such other ministry as may be agreed, shall be notified of:
 
(a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission . . . ."

 This provision establishes a requirement that the State Department be notified of the appointment of individuals to positions with foreign missions in the United States, but it does not, on its face, condition diplomatic immunity on compliance with the notification requirement. However, it is reasonable to assume that the drafters of the Convention intended that recognition of an individual's status as a member of a diplomatic mission, and recognition of the privileges and immunities attendant on such status, should depend on the formal notification required by Article 10. For several reasons we conclude that this is what the drafters intended.

 First, Article 39(1) of the Convention, the only article that deals explicitly with the issue of when immunity attaches to the person of a foreign diplomat, provides:

 
"Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed."

 Under this provision notification is required before persons who are present in the receiving state when appointed to a diplomatic mission can enjoy immunity. There is no apparent reason why the receiving state should recognize the immunity of individuals prior to notification of their appointment simply because they entered the territory subsequent to their appointment, when it would not recognize their immunity if they had been within its territory at the time of their appointment. That Article 39(1) does not expressly state that notification is a prerequisite in all cases seems due to the fact that the Convention contemplates notification prior to or contemporaneously with an official's entry into the receiving territory "on proceeding to take up his post," the moment from which an official entering the country after appointment does enjoy immunity under Article 39(1).

 Second, prior federal statutes respecting diplomatic immunity, which were repealed in favor of the Vienna Convention's narrower and more precise standards, *fn4" required notification as a condition of immunity. Act of April 30, 1790, ch. 9 §§ 25-27, 1 Stat. 117-18 (previously codified as 22 U.S.C. §§ 252-254), Repealed, Pub.L. No. 95-393, § 3(a)(1), 92 Stat. 808 (1978); See Carrera v. Carrera, 84 U.S. App. D.C. 333, 174 F.2d 496, 498 (D.C.Cir. 1948); Trost v. Tompkins, 44 A.2d 226, 229-31 (Mun.Ct.App.D.C.1945); Haley v. State, 200 Md. 72, 88 A.2d 312, 316 (Md.1952). In the absence of any language in the Vienna Convention disapproving of prior practices, it is reasonable to look to those practices, which had been in effect in the United States for some twenty years when the United Nations Conference on Diplomatic Intercourse and Immunities met in Vienna in 1961, in divining the intent of the conferees.

 Finally, the Department of State apparently considers notification a prerequisite to recognition of a foreign official's immunity. In a letter responding to the court's request for the Department's views on the proper interpretation of the Vienna Convention, the Legal Adviser's office described the normal notification procedure, and indicated that compliance with that procedure will confer diplomatic immunity. The Department's letter reads:

 
"(T)he normal procedure is for the sending state to notify the receiving state in advance of the intended assignment of a member of a mission, at which time an appropriate visa is issued by the U.S. Embassy in the sending country. That visa notifies the Department of State that the individual will arrive in the United States and will be accepted at that time as an official attached to the sending state's diplomatic mission. Immediately upon the actual arrival of the individual, the Embassy of the sending state is required to submit a Department of State form to the Office of Protocol, setting forth the individual's curriculum vitae. After that form is processed, appropriate identification and other documents will be issued. To summarize, If proper visa application procedures and subsequent registration procedures are taken, the diplomatic mission employee should enjoy immunity from the moment of entry into the United States." (emphasis supplied)

 Although it is the court's function to interpret the law, and not that of the State Department, the Department's views are instructive, since it is the agency most intimately ...


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