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IN RE RIO GRANDE TRANSP.

June 19, 1981

In the Matter of The Complaint of RIO GRANDE TRANSPORT, INC., as owner of S. S. YELLOWSTONE, for exoneration from or limitation of liability. In the Matter of The Complaint of COMPAGNIE NATIONALE ALGERIENNE DE NAVIGATION, as owner of the Motorvessel IBN BATOUTA, for exoneration from or limitation of liability


The opinion of the court was delivered by: PIERCE

OPINION AND ORDER

On June 12, 1978, the S.S. Yellowstone, a ship owned by Rio Grande Transport, Inc. ("Rio Grande"), a New York corporation, carrying a cargo of grain destined for Tunisia, collided in the Mediterranean Sea with the M/V Ibn Batouta, a cargo ship owned by Compagnie Nationale Algerienne de Navigation ("CNAN"). The collision allegedly resulted in the sinking of the Yellowstone, the death of five of her crewmembers, injury to several other crewmembers, the total loss of her cargo, property loss of her crewmembers, and damage to the Ibn Batouta.

 On June 13, 1978, Rio Grande filed a complaint pursuant to Rule F of the Supplemental Federal Rules of Procedure for Certain Admiralty and Maritime Claims ("Rule F"), for exoneration from or limitation of liability in connection with the June 12, 1978 collision. (78 Civ. 2702). Rio Grande posted a stipulation of value and, pursuant to orders of the Court and statutory notice, various claims for personal injury, wrongful death, and cargo loss were filed against Rio Grande. *fn1" On September 15, 1978, CNAN filed a "claim for declaratory judgment" by which it seeks a judgment declaring it immune from jurisdiction of the state and federal courts of the United States, under provisions of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. §§ 1330, 1602 et seq., with respect to all claims it anticipated would be filed against it. CNAN also filed a "conditional claim and answer", only to be considered in the event that its sovereign immunity claim is denied. Thereafter, Rio Grande filed a counterclaim against CNAN and all but one of the claimants filed cross-claims against CNAN. *fn2"

 On December 12, 1978, CNAN filed a complaint pursuant to Rule F for exoneration from or limitation of liability. (78 Civ. 5972). Like its conditional claim filed in 78 Civ. 2702, the Rule F complaint is to be considered only if CNAN's sovereign immunity claim is denied. CNAN posted a stipulation of value and, pursuant to the statutory orders and notice, claims for personal injury, wrongful death, and cargo loss were filed against CNAN. The claimants are substantially identical to those that filed claims against Rio Grande and cross-claims against CNAN in 78 Civ. 2702. *fn3"

 On October 20, 1978, CNAN moved for summary judgment with respect to its claim that it is sovereign immune under the FSIA. By Order dated June 20, 1979, the Court denied CNAN's motion, finding that genuine issues of material fact were present. Thereafter, the Court referred to Magistrate Gershon the supervision of discovery relevant to CNAN's immunity claim. By Order dated September 16, 1978, Rio Grande's action (78 Civ. 2702) and CNAN's action (78 Civ. 5972) were consolidated.

 Now before the Court is CNAN's renewed motion for summary judgment with respect to its claim of sovereign immunity. The motion raises apparently novel issues concerning the operation of the FSIA a relatively new statute in the peculiar procedural setting of two limitation of liability actions. For the reasons stated below, CNAN's motion for summary judgment is denied.

 Discussion

 The general grant of foreign sovereign immunity in the FSIA, 28 U.S.C. § 1604, provides:

 
"Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter."

 Simply stated, the Court must first determine whether CNAN is a foreign state and, if so, then determine whether any of the exceptions of the FSIA are applicable.

 I. CNAN as a Foreign State

 In support of its motion, CNAN has submitted an attestation of the Algerian Minister of Transportation and an affidavit of the Algerian Charges D'Affaires of Algeria to the United States (certified by the Deputy Chief of Protocol of the United States Department of State). These documents indicate, inter alia, that CNAN is a national corporation of the Republic of Algeria; that the capital of CNAN is provided exclusively by the Republic of Algeria which owns all its shares; and that CNAN was the sole owner of the M/V Ibn Batouta during 1978 and through the present. These documents, uncontroverted by Rio Grande or any claimant, clearly indicate that CNAN is an "agency or instrumentality of a foreign state" as defined by 28 U.S.C. § 1603(b). Accordingly, CNAN is entitled to sovereign immunity unless an exception in the FSIA is applicable.

 II. Applicability of FSIA Exceptions

 A. Waiver: § 1605(a)(1)

 28 U.S.C. § 1605(a)(1) states:

 
"A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of this waiver which the foreign state may purport to effect except in accordance with the terms of the waiver."

 The parties asserting claims against CNAN contend that CNAN's filing a conditional claim and answer in 78 Civ. 2702 and its filing a conditional limitation proceeding (78 Civ. 5972) constitute a waiver of immunity.

 The Court rules that CNAN's actions, viewed in the peculiar procedural context presented herein, did not constitute a waiver of sovereign immunity. CNAN's conditional claim and its limitation complaint reiterate their conditional nature; both are to be considered only in the ...


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