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Ruggiero v. Yupanqui

decided: January 15, 1981.

DOMENICO RUGGIERO, PLAINTIFF-APPELLANT,
v.
COMPANIA PERUANA DE VAPORES "INCA CAPAC YUPANQUI", DEFENDANT-APPELLEE; SIMON DODSON, PLAINTIFF-APPELLANT, V. POLSKI LINIE OCEANICZNE GDYNIA, "DOMEYKO", DEFENDANT-APPELLEE; CIRO LOCASCIO, PLAINTIFF-APPELLANT, V. P.M. JAKARTA LLOYD "DJATIPRANA", DEFENDANT-APPELLEE.



Appeals, pursuant to 28 U.S.C. § 1292(b), from orders of the District Court for the Eastern District of New York, Charles P. Sifton, Judge, striking plaintiffs' jury demands in three personal injury actions by longshoremen against shipping companies wholly owned by foreign governments. Affirmed.

Before Feinberg, Chief Judge, and Friendly and Kearse, Circuit Judges.

Author: Friendly

The plaintiffs in these three cases are longshoremen seeking damages for personal injuries incurred in New York due to the alleged negligence of a shipowner, as authorized by the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b).*fn1 In each case the defendant is a shipping company incorporated under the laws of and wholly owned by a foreign government Peru, Poland and Indonesia, respectively. In each case the plaintiff made a jury demand, F.R.Civ.P. 38(b), and the defendant moved to strike it as inconsistent with the Foreign Sovereign Immunities Act of 1976 (the "Immunities Act"), 90 Stat. 2891 (1976). In a well-considered opinion, 498 F. Supp. 10, the district court granted the defendants' motions but wisely included the certificate for interlocutory appeals specified by 28 U.S.C. § 1292(b). This court gave leave for such appeals. The United States as intervenor, 28 U.S.C. § 2403(a), submitted a thorough brief in support of the district court's action. The district court's decision runs counter to those of some district courts in other circuits*fn2 and we are advised by counsel that the issue is pending on appeal in at least two of them.*fn3

The Immunities Act was intended to be a comprehensive revision of the law with respect to suits against foreign states or entities owned by them. As said in the report of the House Committee, House Report No. 94-1487, 94th Cong.2d Sess., p. 6, reprinted in, (1976) 5 U.S.Code Cong. & Ad.News, pp. 6604, 6604:

The purpose of the proposed legislation as amended, is to provide when and how parties can maintain a lawsuit against a foreign state or its entities in the courts of the United States and to provide when a foreign state is entitled to sovereign immunity.

The extent of the changes wrought by the Immunities Act so far as concerns the question before us can be best understood by comparing 28 U.S.C. § 1332, as it stood before the 1976 enactment (below, on the left), so far as here pertinent, with 28 U.S.C. §§ 1330(a) and 1332(a) as they existed thereafter (on the right).

TABLE

To this must be added some of the provisions referred to in the new § 1330(a).*fn4 Sections 1603(a) and (b) provide:

§ 1603. Definitions

For purposes of this chapter

(a) A "foreign state', except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

(b) An "agency or instrumentality of a foreign state' means any entity

(1) which is a separate legal person, corporate or otherwise, and

(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created ...


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