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Tarros S.p.A. v. United States

United States District Court, S.D. New York

November 19, 2013

TARROS S.p.A., Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant

Page 326

For Tarros S.p.A., Plaintiff: Thomas Leonard Tisdale, Tisdale Law Offices, L.L.C., New York, NY; Timothy James Nast, Tisdale Law Offices, New York, NY.

For The United States of America, Defendant: Jill Dahlmann Rosa, LEAD ATTORNEY, U.S. Department of Justice, Civil Division, Washington, DC; Thomas Mackinnon Brown, U.S. Department of Justice, Washington, DC.

OPINION

Page 327

OPINION AND ORDER

J. PAUL OETKEN, United States District Judge.

Tarros S.p.A. (" Plaintiff" ) brings this tort action against the United States of America (" Government" ) pursuant to the Suits in Admiralty Act (" SIAA" ), 46 U.S.C. § 30901 et seq., and the Public Vessels Act (" PVA" ), 46 U.S.C. § 31101 et seq., to recover damages allegedly incurred when a United States naval warship--the USS STOUT (" Stout" )--blockaded and diverted Plaintiff's chartered vessel--the M/V VENTO DI PONENTE (" Vento" )--in international waters near Tripoli, Libya during Joint Task Force Operation Odyssey Dawn. Plaintiff contends that the Stout's actions violated United Nations Security Council Resolutions 1970 and 1973 (" Resolution 1970" and " Resolution 1973" ), NATO's Navigation Warning/Warning to Mariners (" NAVWARN/NTM" ), and international maritime law as set forth in the United Nations Convention on the Law of the Sea (" UNCLOS" ). The Government has moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the ground that this case presents a non-justiciable political question. Because adjudication would require reexamination of discretionary military decisions related to military operations, and because the international agreements relied upon by Plaintiff are not enforceable in United States courts, the Government's motion to dismiss is granted.

I. Background

A. Factual Background

The following facts are, unless otherwise indicated, taken from the allegations in the Complaint ( see Dkt. No. 1 (" Compl." ).)

1. The Libyan Civil War and the International Community's Response

In February 2011, amid widespread demonstrations and protests in parts of the Middle East and North Africa, citizens in Libya began protesting against the government of Colonel Muammar Qadhafi. In an effort to swiftly crush the protests, Qadhafi authorized the use of military force, " including strafing of protesters and shelling, bombing, and other violence deliberately targeting civilians." (Dkt. No. 8

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(" Rosa Decl." ), Ex. A (" DOJ Mem. Op." ).) The United Nations Security Council (" Security Council" ) responded on February 26, 2011 by unanimously adopting Resolution 1970, which demanded an immediate end to violence against Libyan citizens and instituted an arms embargo upon the Libyan government, as well as a travel ban and asset freeze upon certain individuals. S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011). With respect to the arms embargo, Resolution 1970 provided that " Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya . . . of arms and related materiel of all types." Id. ¶ 9. To accomplish this, Member States were instructed " to inspect . . . consistent with international law, in particular the law of the sea . . . all cargo to and from the Libyan Arab Jamahiriya . . . if the State concerned has information that provides reasonable grounds to believe the cargo contains items prohibited" under the embargo, id. ¶ 11; to " seize and dispose" of any contraband, id. ¶ 12; and to " submit promptly an initial written report to the Committee [established pursuant to the Resolution] containing . . . [an] explanation" of the grounds, results, and details of the inspection, id. ¶ 13.

On March 1, the United States Senate passed Resolution 85, urging the Security Council to take further action to protect Libyan citizens. S. Res. 85, 112th Cong. § § 2, 3, 7 (2011). On March 17, as Qadhafi prepared to retake the city of Benghazi and threatened to show no mercy to opposition forces (DOJ Mem. Op.,) the Security Council adopted Resolution 1973, which imposed a no-fly zone, authorized military force to protect civilians, and extended the arms embargo, travel ban, and asset freeze, S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011). With respect to protection of civilians, Member States were authorized " to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 . . . to protect civilians, and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya." Id. ¶ 4. " [I]n order to ensure strict compliance with the arms embargo," Member States were now authorized " to use all measures commensurate to the specific circumstances to carry out . . . inspections, id. ¶ 13, but were " [r]equest[ed] . . . to inform the Secretary-General and the Committee . . . immediately of measures taken in the exercise of [such] authority," id. ¶ 14. Like Resolution 1970, Resolution 1973 " [r]equire[d] any Member State . . . when it undertakes an inspection . . . to submit promptly an initial written report to the Committee containing . . . [an] explanation" of the grounds, results, and details of the inspection. Id. ¶ 15.

In remarks on March 18, President Obama demanded that Qadhafi cease hostilities to avoid military intervention by the United States to enforce Resolution 1973, and identified several national interests justifying U.S. involvement, including the atrocities committed against the Libyan people, destabilization in the region, and the need to enforce the international community's commands. (DOJ Mem. Op.) Although Libya's foreign minister stated that Libya would honor the requested ceasefire, the Libyan government continued to use force against civilians. ( Id.) On March 19, the United States and its coalition partners launched airstrikes against Libyan targets. ( Id.) Pursuant to the War Powers Resolution, 50 U.S.C. § 1543(a), within forty-eight hours of the operation the President submitted an explanatory report to Congress, which described the airstrikes as " limited in their nature, duration, and scope" and undertaken in furtherance of the international coalition's enforcement of Resolution 1973. ( Id.) As authority for the

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operation, the President invoked his " constitutional authority to conduct U.S. foreign relations" and his authority as " Commander in Chief and Chief Executive," and cited the national interests identified during his remarks on March 18. ( Id.)

2. The Incident

Plaintiff is a shipping company specializing in maritime liner service for the transport of general cargo in maritime containers within the Mediterranean Sea. Plaintiff's principal place of business is in La Spezia, Italy. On or about December 16, 2010, Plaintiff entered into a contract with Nautique Shipping Co. Ltd. for the hire of the Vento.[1] The Vento is a general cargo ship and at all times relevant to this matter flew the flag of Cyprus.

On or about March 18, 2011, the Vento sailed from La Spezia to Tripoli carrying 168 containers of general cargo.[2] Prior to departure, Plaintiff was informed by its local shipping agents in Tripoli that the city's port was open and fully operational. Plaintiff also notified the Crisis Unit of the Italian Ministry of Foreign Affairs of its intended voyage and submitted the ship's cargo manifest to the Customs Authority, which released an authorization of compliance. On March 21, Plaintiff's shipping agents reiterated via fax that the port was " working normally without any problems or disturb[ances] and . . . able to accept any vessels."

On March 22, 2011, at approximately 0410 hours, the Vento was stopped in international waters outside of Tripoli by the Stout, a United States naval warship acting in support of Operation Odyssey Dawn. Via radio, the Stout inquired about the identity of the owner and charterer of the Vento, the nationality of its master, and its cargo, crew, passengers, and destination. The Stout then informed the Vento that " in accordance with United Nations Council Resolutions 1970 and 1973 [the Stout] was directed not to allow the Vento . . . to enter Libyan territorial waters and [the Vento] was instead directed to proceed to Trapani, Italy." At no time did the Stout request to board the Vento to inspect the ship or its cargo.

The Vento's master informed the Stout that he would sail the ship to within 30 miles of Tripoli and stop its main engines. At approximately 0500 hours, the master stated that he needed to wait until morning to contact the Vento's owners for instructions, and stopped the ship's main engines. At approximately 0535 hours, the Stout ordered the Vento to proceed to its next destination immediately. The master replied that he would restart the ship's main engines and set a course for Malta. At approximately 0600 hours, the Vento proceeded toward Malta, escorted by the Stout. At approximately 0711 hours, the Stout approached the port quarter of the Vento, which caused the alarm for the " Fire on Bridge Deck" to go off and the ship's navigation and communications equipment to malfunction. The Vento and Stout continued to Malta and arrived at approximately 1530 hours, at which point the Stout departed. The Vento remained in the vicinity of Malta until March 25, when Plaintiff, realizing the impossibility of completing the voyage, directed the ship to return to La Spezia.

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B. Procedural Background

Plaintiff duly filed a claim with the Department of the Navy, which was denied by U.S. Navy Judge Advocate General Captain A.B. Fisher in letters dated March 4 and March 18, 2013. (Tisdale Decl., Ex. B (" March 4 Letter" ); Ex. C (" March 18 Letter" ).)[3] Plaintiff filed this action on March 22, 2013, seeking approximately $675,000 in damages plus interest under theories of negligence, negligent or intentional intervention on the high seas, intentional interference with commercial activity, intentional destruction of property, and negligent destruction of property. (Compl.)[4] The Government moved to dismiss on June 5, 2013. (Dkt. No. 7 (" Def.'s Mem." ).) Plaintiff opposed the motion on June 19, 2013. (Pl.'s Opp'n.) The Government replied on June 26, 2013. (Dkt. No. 16 (" Def.'s Rep." ).)

II. Legal Standard

" The political question doctrine is more properly characterized as a 'justiciability' question than as a question of subject matter jurisdiction. Nevertheless, it is properly raised on a motion under Rule 12(b)(1)." Aiello v. Kellogg, Brown & Root Servs., Inc., No. 09 Civ. 7908 (PKC), 751 F.Supp.2d 698, 702 (S.D.N.Y. 2011) (citations omitted). A motion to dismiss under Rule 12(b)(1) is decided under the same standard as a motion to dismiss under Rule 12(b)(6). Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003). The Court must accept all material facts alleged in the Complaint as true and draw all reasonable inferences liberally in Plaintiff's favor. Kwiatkowski v. Polish & Slavic Fed. Credit Union, 511 Fed. App'x 117, 118 (2d Cir. 2013). The Court may consider evidence outside of the pleadings. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008).

III. Discussion

A. Political Question Doctrine

The political question doctrine is " essentially a function of the separation of powers," Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and " excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch," Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986); see also Massachusetts v. E.P.A., 549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (" It is therefore familiar learning that no justiciable 'controversy' exists when parties seek adjudication of a political question." ); Lane v. Halliburton, 529 F.3d 548, 559 (5th Cir. 2008) (where a claim raises a political question, " the very design of our federal government compels the Plaintiff to seek redress from the political branches" ).[5] The doctrine has its origin in

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Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60 (1803), where, even as Chief Justice Marshall proclaimed that " [i]t is emphatically the province and duty of the judicial department to say what the law is," id. at 177, he recognized that:

The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and ...

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