moval," (2) the original jurisdiction provided in the Immunities Act "is prospective only," (3) the statutory "cause shown" requirement for removal was not "automatically satisfied" by the passage of the Immunities Act, and (4) removal of the action from the State court after that court had already begun work on the case "would create a needless duplication of judicial effort.

Id. 1037-1038.

The Court summarized the facts of the case, the defendant's contention, and its decision as follows:

Plaintiff Martropico Compania Naviera S.A. has moved by order to show cause to remand this action to the State court. The action was commenced on July 22, 1976, in the Supreme Court of the State of New York by a motion for summary judgment in lieu of complaint, to N.Y.C.P.L.R. § 3213, to enforce instruments for the payment of money. It was removed to this Court by petition and notice dated January 21, 1977. An extensive and voluminous record has been accumulated to date in the State court.

Defendant Perusahaan Pertambangan Minyak Dan Gas Bumi Negara ("Pertamina") argues that removal was proper under section 6 of the Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891, codified at 28 U.S.C. 1441 (d) ("Immunities Act" or "Act"). This section enlarged the removal jurisdiction of the Federal district court by providing:

"(d) Any civil action brought in a State court against a foreign state as defined in section 1603 (a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446 (b) of this chapter may be enlarged at any time for cause shown."

Although the Immunities Act was enacted on October 21, 1976, it did not become effective until January 21, 1977, after a 90-day waiting period. Immunities Act § 8.

The defendant contends that the removal provision of the Act was meant to apply to cases then pending in the State courts on the effective date and that ample "cause shown" exists to permit the Court to enlarge the time for removal pursuant to the last sentence of the section. For the reasons stated below, the Court finds the defendant's arguments without merit. Accordingly, this case is remanded to the State court.

Id. 1036-1037.

The Court construed the "cause shown" phrase in section 1441(d) of the Immunities Act in the light of section 1446 (b) as follows:

The intention of Congress not to have the removal provisions apply to pending actions can also be gleaned from a careful reading of the removal section itself, which states: "Where removal is

based upon this subsection, the time limitations of section 1446 (b) of this chapter may be enlarged at any time for cause shown." 28 U.S.C. 1441 (d). Section 1446 (b) provides:

(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. Under the terms of section 1446 (b) the removal clock begins to run upon the defendant's receipt of the State court pleading or summons, or, if no grounds for removal is apparent at that time, then upon the receipt of the "paper from which it may first be ascertained" that removal is possible (emphasis added). The cases have construed this latter provision to be triggered only by a voluntary act of the plaintiff. See 1A Moore's Federal Practice 0.168[3.-5] at 487 (2d ed. 1974). In the case at bar, the State action was commenced in July. The plaintiff performed no voluntary act which made the case removable; rather, removal is grounded solely on an involuntary act, the change in the statute. . . . In the absence of any indication of . . . congressional intention [to the contrary] the Court must assume that the terms of section 1446 (b) are to be strictly observed. Thus, the removal clock must be assumed to have commenced running in July of last year, well beyond the 30 days specified in the statute.

Id. 1038.

The full title of this case is Martropico Compania Naviera S.A. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina).

Admiralty

On April 30, 1977, the U.S. District Court for the District of the Canal Zone, Balboa Division, issued an opinion In re Complaint of Compañia Nacional de Navegación, S.A., as owner of the m/v Tairona, Civil No. 76-0349-B, which interpreted some of the admiralty provisions in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1605 (b) and 1606. The Court, Judge Guthrie F. Crowe, held, inter alia, that an instrumentality of the Republic of Colombia could not sustain a motion for summary judgment based on the limitation of liability provisions regarding maritime liens contained in section

1605 (b) of the Act after having made a general appearance prior to the date that the Act became effective. The case arose when Tairona, which was owned by the defendant Colombian instrumentality, sank in Cristobal harbor in the Panama Canal Zone. Portions of the opinion. of the Court appear below:

At about 0030 hours on the morning of April 29, 1976, the m/v Tairona, owned by Compañia Nacional de Navegación (NAVENAL), struck the breakwater at the entrance to Cristobal harbor. Shortly thereafter the vessel sank inside the breakwater, partially blocking the entrance channel. No pilot was on board, nor was one required to be on board.

The Panama Canal Company undertook to remove the wreck from its position in the entrance channel and filed suit against NAVENAL in personam and the m/v Tairona, in rem, Civil Action No. 76-0172-B. On May 15, 1976, the m/v Acaima was found in Canal Zone waters and attached by the Panama Canal Company, the Acaima also being owned by NAVENAL. On May 20, 1976, NAVENAL appeared generally and after posting a letter of undertaking the Acaima was released. On October 22, 1976, NAVENAL instituted these proceedings seeking exoneration from or limitation of liability and an order issued from this court restraining further prosecution of related suits, particularly the Panama Canal Company's suit for wreck removal costs. On December 10, 1976, the Canal Company moved the court for relaxation of this restraining order as applied to its wreck removal suit.

On January 19, 1977, Public Law 94-583, involving jurisdictional immunities of foreign states, became effective. NAVENAL is an instrumentality of the Republic of Colombia, it being owned 98% by that government. Section 1605 (b) of Public Law 94-583. 28 U.S.Č. 1605 (b), states in part that:

in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state... *** a court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose. . .

...

On April 11, 1977, NAVENAL filed a motion for summary judgment in this court claiming 28 U.S.C. 1605 (b) precludes recovery by the Panama Canal Company of any amount in excess of the value of the wrecked Tairona. The Panama Canal Company filed a memorandum in opposition to NAVENAL's motion and asked that its motion for relaxation of the restraining order be heard at the same time.

On April 21, 1977, both motions came on for hearing and for the reasons set forth below, both were denied.

NAVENAL's Motion

NAVENAL's contention that 28 U.S.C. 1605 (b) creates a new species of liability limitation for defendant sovereigns cannot be sustained. The purpose of Public Law 94-583, as stated both in the

Act itself and in the House Judiciary Committee's report of September 9, 1976, is to provide means for bringing suits against foreign sovereigns for wrongs growing out of their private acts. Section 1606 of the Act states in part:

As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances. .

Given the purpose of this Act, and the content of the above-quoted § 1606, it seems highly unlikely that Congress intended by § 1605 (b) to limit the recovery of admiralty plaintiffs to an amount less than they would have received prior to enactment of Public Law 94–583. It remains then, to determine whether § 1605 (b) might nevertheless effect that unintended result.

The section speaks to suits in admiralty "brought to enforce a maritime lien against a vessel. . . ." This is the normal in rem suit in admiralty. Under the Act, however, in rem suits, as such, are not allowed against vessels of foreign sovereigns. When the steps outlined in § 1605 (b) have been performed by the plaintiff, an in personam jurisdiction is obtained over the foreign sovereign owner. Without the proviso of § 1605 (b) limiting recovery in these otherwise in rem suits, the foreign sovereign defendant would not be treated like a private litigant as provided in § 1606, but would be placed in a considerably worse position than a private litigant.

There are advantages and disadvantages to filing suits in rem. One very important advantage is the ability to obtain jurisdiction over the res in any judicial district in which it is found. A plaintiff does not have to find the shipowner within the court's jurisdiction in order to commence his suit. The disadvantage to an in rem suit is the inability to recover more than the value of the res if the owner chooses not to submit himself to the personal jurisdiction of the court. Without its limiting proviso, § 1605 (b) would subject foreign sovereign defendants to unlimited in personam jurisdiction in any judicial district in which their ships are found. It would seem logical to assume that the purpose of the limiting proviso of § 1605 (b) is designed to prevent this by creating a new form of in personam jurisdiction which coincides with the limits of the traditional in rem jurisdiction. The only significant difference between the in personam jurisdiction of § 1605 (b) and the in rem jurisdiction of the general maritime law, then, would be elimination of the inconvenience to the defendant arising from seizure of his ship. That this was in fact the effect sought by the legislature may be found in the Report of the House Committee on the Judiciary dated September 9, 1976. On page 22 of that report it is stated:

Section 1605(b) would not preclude a suit in accordance with other provisions of the bill-e.g., section 1605 (a) (2). Nor would it preclude a second action, otherwise permissible, to recover the amount by which the value of the maritime lien exceeds the recovery in the first suit.

It seems inescapable that the intent of Congress was not to provide a new type of liability limitation for foreign sovereigns, but to place

them on an equal footing with other defendants (except for preventing seizure of their vessels).

In the case at bar, the Canal Company has filed an in personam suit. It claims that the liability it seeks to recover for is a personal liability of NAVENAL. By its general appearance in this case, defendant NAVENAL has submitted itself to the in personam jurisdiction of this court. Defendant's motion for summary judgment cannot be sustained. The court's determination concerning the proper interpretation of § 1605 (b) makes it unnecessary to reach the question of whether any part of Public Law 94-583 is applicable to events occurring prior to its effective date.

ORDERED: NAVENAL's motion for summary judgment is denied. The Panama Canal Company's motion for relaxation of the order of this court restraining suits is denied. . . .

U.S.D.C., D. Canal Zone, Balboa Div., Civ. No. 76-0349-B. (Footnote omitted.)

Agency of Foreign State Defined

On December 6, 1977, the U.S. District Court for the District of Columbia ruled in Edlow International Co. v. Nuklearna Elektrarna Krsko (Civ. No. 77-1117) that the defendant workers' organization, founded under the constitution and laws of the Socialist Federal Republic of Yugoslavia for the purpose of constructing and operating a nuclear power generating facility at Krsko, Yugoslavia, was not "an organ of a foreign state or political subdivision thereof" within the meaning of the Foreign Sovereign Immunities Act because the Yugoslav Government did not control defendant's daily operations. A District of Columbia corporation had brought the cause of action to recover broker's fees allegedly due in connection with a sale of uranium fuel to the defendant. The Court also found that the proper plaintiff in the cause of action was a Bermuda based affiliate of the District of Columbia corporation which initiated the cause of action. In an opinion by District Judge John H. Pratt, the Court ruled that it lacked subject matter jurisdiction over the defendant under 28 U.S.C. 1330, which applies to a "foreign state," and under 28 U.S.C. 1332, which applies to actions between "citizens of a State and citizens or subjects of a foreign state." The Court granted the defendant's motion to dismiss.

Portions of the Court's opinion appear below:

Plaintiff Edlow International is a District of Columbia corporation, the activities of which include acting as broker in connection with sales of nuclear fuels. The corporation is owned and managed largely by the Edlow family, members of which also hold all but a fraction of the stock of a Bermuda enterprise known as Edlow Resources Ltd. Defendant Nuklearna Elektrarna Krsko