Immunity from suit was denied by the Department in a letter of September 27, 1968 (quoted at 298 F. Supp. at 144), and in a note of February 6, 1969. The latter note stated in part:

The Ambassador's request for reconsideration is based upon the Department of State's unwillingness to consider evidence that me contract existed between the Bank of Korea and Amkor Corporstion. The Ambassador's note contends that in making its decision the Department assumed that the transaction in question was “a simple contract for the purchase of commercial articles on behalf of a commercial enterprise."

In considering a request for a suggestion of sovereign immunity, the Department must review the acts of the governmental agency for which immunity is claimed. Under the restrictive theory applied by the Department, these acts must be characterized as "govem mental" or "commercial," and the decision on sovereign immunity is based on that determination. Whether or not these acts would also constitute the elements of a contractual relationship are matters for the court and not the Department of State.

Accordingly, in this case, the Department made no legal or factual determination on the existence of a contract, or any other basis of liability. The Department did determine that the activities of the Bank of Korea relating to the acquisition of machinery, equipment and services in connection with construction of a caustic soda plant in Korea were commercial in nature. This finding would apply whether or not the activities also gave rise to a contractual relationship between the Bank and the Amkor Corporation. While the existence or nonexistence of a contract may affect the rights and liabilities of the parties, that issue is one for the court to resolve.

For these reasons, the Department of State is unable to modify its decision in this case not to suggest the sovereign immunity of the Bank of Korea.

Reported: 298 F. Supp. 143.

No. 62. Cole v. Heidtman (S.D.N.Y. 1968).

Diplomatic request (from the Ambassador of Jamaica): June 18.

1968.

In a note of November 29, 1968, the Department declined to suggest the immunity of the British West Indies Central Labour Organization and its liaison officer. Plaintiffs, Jamaican nationals "in the United States under a program providing agricultural labor for Florida growers," alleged a conspiracy among defendants to deprive plaintiffs of civil rights, to have them falsely arrested, imprisoned and blacklisted, and to deprive them of wages and other employee rights. The Department's note stated in part:

The Government of Jamaica has urged that the British West Indies Central Labour Organization is an official agency and arm of the Government acting without profit to itself in the conduct of public acts (arranging for the employment of the workers in the United States and representing the workers in various ways while

they are in the United States) and is, therefore, entitled to immunity from suit. By the same reasoning it is claimed that [a named person], acting as an agent of the British West Indies Central Labour Organization, is entitled to immunity.

The Department of State regrets that it cannot agree with these conclusions. In the opinion of the Department of State, the activities under consideration are of a private nature under the standards set forth in the Tate Letter. The Department of State is impressed by the fact that the activities of the British West Indies Central Labour Organization with regard to this program are very much akin to those that might be conducted by a labor union or by a private employment agency-arranging and servicing an agreement between private employers and employees. Although it may be argued that some of the acts performed by the British West Indies Central Labour Organization in this case are consular in nature, the Department believes that they arise from the involvement of the British West Indies Central Labour Organization in the private employeremployee contractual relationship rather than from a consular responsibility, and cannot be separated therefrom. It is not determinative that the British West Indies Central Labour Organization is a non-profit organization funded by the Caribbean Governments. The policy expressed in the Tate Letter focuses upon the nature of the activities of the government agency involved and not upon its character as a governmental agency or its purposes. That the functions performed by the British West Indies Central Labour Organization are inspired by an important governmental purpose, the Department of State does not question. However, when such a purpose is furthered by actions of a private nature and these actions are questioned in court, the restrictive theory prevents the Department of State from shielding them from judicial examination through a suggestion of sovereign immunity. The Department of State, therefore, finds it necessary to decline the request of the Government of Jamaica that a suggestion of sovereign immunity be made.

No. 63. Morrison, Inc. v. Servicio Autonomo Nacional de Acueductos y Alcantarillados, Civil No. 5092 (N.D. Ind. 1969).

Diplomatic request (from the Ambassador of Honduras): November 15, 1968.

Plaintiff, an American construction firm, commenced an action seeking damages of $20,500 for the failure of defendant, SANAA, to pay for work done by plaintiff on an aqueduct in Honduras. For the purpose of obtaining jurisdiction, equipment purchased by SANAA from another firm was attached.

Immunity from suit and attachment was denied by the Department in a note dated May 2, 1969, which stated in part:

The Government of Honduras urges that SANAA "was not engaged in a commercial enterprise, but in the construction and erection of the aqueduct project was engaged in a public act and said public act is entitled to protection under the doctrine of sovereign

immunity." The Department of State regrets that it cannot agree with these contentions. While supply of water is often carried out by governmental agencies, this is not universally the case. In the United States, for example, a great many private companies are engaged in this enterprise. Moreover, the nature of the enterprise is essentially one of offering a product for sale to the public. For these reasons, it is the opinion of the Department of State that the activities that are the subject of this suit are of a private nature under the standards set forth in the Tate Letter. SANAA therefore cannot be regarded as enjoying sovereign immunity from the present suit.

The goods attached in Indiana are valves and other equipment commercially purchased by SANAA from a third party for use in this construction. It is, therefore, also the opinion of the Departmert of State that the goods in question are not immune from attachment for jurisdictional purposes.

The Department does not consider that the use of United States Foreign Assistance funds affect the issue of sovereign immunity. Foreign Assistance programs frequently involve activities of a foreign government that are of a private nature under the standards set forth in the Tate Letter.

On the basis of these conclusions, the Department of State finds it necessary to decline the request of the Government of Honduras that the Department suggest the immunity from suit of SANAA and the immunity from attachment for jurisdictional purposes of the valves and equipment purchased from RMC Specialties, Inc.

No. 64. Pan American Tankers Corp. v. Republic of Vietnam, 68 Civil 3079 (S.D.N.Y. 1968).

First diplomatic request (from the Ambassador of the Republic of Vietnam) January 3, 1969.

Action in admiralty to recover unpaid freight and demurrage. Plaintiff had entered into a contract of affreightment with the Republic of Vietnam and a Vietnamese company for the transport of cement from Taiwan to South Vietnam. The transaction was financed through the Agency for International Development (AID), which provided U.S. dollars to the account of the Republic of Vietnam to pay plaintiff for any freight or demurrage earned under the contract. After six shipments were made, the defendants gave notice that they were suspending indefinitely further shipments under the contract. Defendants also allegedly ceased providing letters of credit for the cement suppliers in Taiwan.

Immunity from suit was denied in a Department note dated March 13, 1969, which stated in part:

In the instant case, the Republic of Viet-Nam has been made a party to an action arising out of the purchase and shipment of cement for use in Viet-Nam. In support of the request for a sugges tion of sovereign immunity, attorneys for the Republic of VietNam have suggested that the connection of Government officials

with the transaction in question was of a purely governmental nature, i.e., supervision of foreign exchange controls. In this regard, the Department has examined the documents submitted to it and has considered the written and oral arguments relating to this issue. On the basis of this review, the Department is unable to conclude that the Republic of Viet-Nam has demonstrated that its relation to this commercial transaction was limited to the performance of governmental acts. Consequently, the Department is unable to support the request of the Ambassador for a suggestion of sovereign immunity from suit in this case.

Second diplomatic request: September 18, 1969. The Department took no action on this request for immunity from execution, having been subsequently advised that the judgment had been satisfied.

Reported: 291 F. Supp. 49 (1968), 296 F. Supp. 361 (1969).

No. 65. Caribbean Maritime Company, Ltd. v. Directorate General of Commerce, Saigon, 68 Civil 801 (S.D.N.Y. 1968).

Diplomatic request (from the Ambassador of the Republic of Vietnam): October 23, 1969.

In a letter of February 27, 1970, the Department requeste:l the Attorney General to suggest immunity from execution upon accounts of the Banque Nationale du Viet Nam with certain New York banks, consisting of foreign exchange reserves; and also upon accounts of Credit Commerciale unless the court should find that immunity had been waived with respect to these accounts. The Department's letter stated in part:

The Department of State continues to adhere to the view that, absent a waiver of immunity, funds held by a foreign government in a bank in the United States are immune from execution.

Plaintiff has argued that the arbitration clause in the charter party entered into by the Directorate General of Commerce, Saigon. constitutes a waiver of immunity from execution with respect to its property used for commercial purposes and has asked that the Department of State find that the Republic of Viet-Nam has waived immunity in this respect. The Department of State accepts the principle set forth in Section 70 of Restatement. Second, Foreign Relations Law of the United States which provides, in part, that a state may waive the immunity to which it is entitled, "by international agreement or by agreement with a private party, including an agreement made before the institution of proceedings. . . . A waiver of immunity from suit or from a counterclaim does not, in the absence of clear indication to the contrary, imply waiver of immunity from execution." Since this case only involves an alleged waiver in respect of commercial assets, the question of the degree of specificity and clarity required to find a waiver with respect to funds held for public purposes does not arise and the Department expresses no opinion in this regard.

257-179 O-79-69

In the present case the Department considers the questions of whether immunity has been waived with respect to the Republic of Viet-Nam's assets used for commercial purposes and, if so, to what specific commercial assets such a waiver was intended to apply to involve principally matters of contract interpretation, upon which it is inappropriate for the Department to express an opinion. and which the district court is in the best position to determine

It is the Department of State's view, as previously set forth in respect of the case of Hellenic Lines, Ltd. v. Republic of South Viet-Nam, et al., that the accounts of the Banque Nationale du VietNam in the garnishee banks are foreign exchange reserves of the Republic of Viet-Nam used for public rather than commercial purposes. The nature of accounts of Credit Commerciale was not an issue in the Hellenic Lines case, and the Department expresses no opinion in the present case concerning whether funds of Credit Commerciale are used for commercial or for public purposes, in whole or in part.

Accordingly, the Department of State recognizes and allows the Republic of Viet-Nam's claim of immunity from execution for funds of the Banque Nationale du Viet-Nam in the garnishee banks. In addition, the Department recognizes and allows the claim of immunity from execution for funds of Credit Commerciale in the garnishee banks, unless the court should find that immunity has been waived in the present case with respect to such funds.

No. 66. Isbrandtsen Tankers, Inc. v. President of India, 68 Civ 407 (S.D.N.Y. 1968).

Diplomatic request (from the Ambassador of India): February 2.

1970.

Immunity from suit was recognized as to one cause of action only. in a letter to the Attorney General dated September 16, 1970, which stated in part:

The Department has been informed by the Government of India that it accepts the jurisdiction of the district court with respect to the claims set forth in the complaint for demurrage and freight under the charter party. However, it considers the claim for detention damages to involve governmental acts by officials of the Government of India and has claimed immunity from jurisdiction of the court with respect to the detention claim stated in the complaint. The Department of State considers that plaintiff's claim for damages for detention set forth in the second cause of action draws into issue acts of Indian Government officials which were governmental rather than commercial in nature. In consequence, the Department recognizes and allows the Indian Government's immunity from suit with respect to plaintiff's claim for detention damages. The Department of State's determination concerns only the issue of immunity of the Government of India from suit on the second cause of action and is without prejudice to the merits of the claims or other defenses asserted in this case.