tempt to correct errors, if any there were, in their procedures and decisions. It would be inappropriate and probably offensive or an affront to the Mexican Government for it to do so. In fact, the Mexican Government through its embassy in Washington has submitted a diplomatic note to the State Department which in effect asks the State Department to request this Court to abstain from continuing with the present action.

If plaintiff seeks to obtain redress from the actions of the commissions he must resort to whatever channels, if any there are, available to him in Mexico. The fact that there may be none does not justify this Court exercising its jurisdiction in the matter.

The motion of the defendant for summary judgment will be granted.

422 F. Supp. 1281-1291 (footnotes omitted).

For further information concerning this case and the Payne-Warren Agreement of 1923, see ante, Ch. 5, § 6, pp. 418-423. See also the 1975 Digest, Ch. 6, § 8. pp. 371–372.

For further discussion of the Dunhill case, see the 1975 Digest, Ch. 6, § 8, pp. 372-375, and the 1976 Digest, Ch. 6, § 8, pp. 332-335, 338.

On October 21, 1977, A. Daniel Fusaro, Clerk of the U.S. Court of Appeals for the Second Circuit, wrote Herbert J. Hansell, Legal Adviser of the Department of State, to request the views of the Department on certain aspects of the cases of The Muslim Commercial Bank Limited v. M. Golodetz & Company and Waterman Steamship Corp. and Pubali Bank, Rupali Bank, Sonali Bank and Adamjee Jute Mills, Ltd. v. M. Golodetz & Company and Waterman Steamship Corp. (77-7227). The cases involved some bills of lading expropriated by the Government of Bangladesh subsequent to the establishment of its independence from Pakistan. Mr. Fusaro posed to Mr. Hansell as well as the attorneys for the plaintiffs and defendants nine specific questions and the following general question concerning the act of state doctrine:

The Court desires generally to have the views of the Department of State on the applicability of the act of state doctrine, as modified by the Hickenlooper amendment, to the facts of this case. In particular, would a decision in favor of or against recognition of the Bangladesh decrees adversely affect the foreign relations of the United States?

Dept. of State File No. P78 0005-1847.

On December 8, 1977, Lee R. Marks, Deputy Legal Adviser of the Department of State, responded to this inquiry by indicating in part that the Department did "not have special knowledge or interest" in the first nine questions and "therefore offers no views on them." However, as to the act of state doctrine, Mr. Marks indicated that the

Department was of the view that the Hickenlooper amendment was inapplicable because this legislation "does not apply to expropriation of property not owned by Americans."

A memorandum prepared on December 7, 1977, by T. Michael Peay, Office of the Assistant Legal Adviser for Near Eastern and South Asian Affairs, concerning this inquiry for Messrs. Hansell and Marks reads in part as follows:

The subject matter of this litigation is a fund of $521,568.00 plus accrued interest, which represents the proceeds from the sale of jute. The claimants to the fund and the only parties with a stake in the outcome are the Muslim Commercial Bank, i.e., the Pakistani claimant, and Rupali Bank, Sonali Bank, Pubali Bank and Adamjee Jute Mills, Ltd., collectively referred to as the Bangladeshi claimants. M. Golodetz and Company (hereafter "Golodetz") and the Waterman Steamship Company (hereafter "Waterman"), both of which are American citizens, are captioned as defendants in both actions, but are mere "stakeholders" who have by consent of all parties been discharged from liability upon Golodetz's deposit of the fund in escrow pending adjudication of the claims against the fund.

On or about November 10, 1971, in the territory of East Pakistan (now the Republic of Bangladesh), Waterman, an ocean carrier, issued two order bills of lading in connection with a shipment of a quantity of jute from East Pakistan to the Dominican Republic. The bills were payable to the order of the Pakistani claimant and were to be delivered to Golodetz, a New York jute brokerage firm and intermediary buyer in this transaction.

By November 19, 1971, the shipment had left East Pakistan territorial waters and subsequently arrived in the Dominican Republic on or about December 17, 1971. During that interval, Bengali insurgents, supported by regular Indian troops, engaged in armed hostilities with the Pakistani Army in East Pakistan. On December 29, 1971, the Government of the new Republic of Bangladesh, having successfully wrested political control from the Government of East Pakistan, assumed control of all branches of the Pakistani banks, including the Pakistani claimant, located in the new republic. By order dated February 28, 1972, the Bangladeshi Government expropriated all property owned by "enemy aliens", including the property and indebtedness of the Pakistani claimant. By order dated March 26, 1972, the government vested in Bangladeshi claimants Rupali Bank and Sonali Bank the previously expropriated assets of the Pakistani claimant including the two bills of lading involved in the sale of jute.

In 1972, the Bangladeshi claimants presented the expropriated bills of lading to Golodetz for payment. The Pakistani claimant also sought payment from Golodetz. Claiming no interest in the proceeds from the sale of the jute, Golodetz deposited the funds in escrow pending adjudication of this consolidated suit.

Recommended Disposition of the Court's Requests

The... judicial request to be disposed of is the Hickenlooper amendment/act of state issue. The Hickenlooper amendment, 22 U.S.C. 2370 (e) (2), provides in pertinent part that:

Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law, including the principles of compensation and the other standards set out in this subsection: Provided, that this subparagraph shall not be applicable ... (2) in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that case with the court.

As you know, for a number of years, the Department has taken the view that foreign policy interests do not ordinarily require U.S. courts to refrain from reviewing on the merits acts of foreign states that allegedly violate international law. Thus, in the cases that have arisen to date, the Department has found it unnecessary to invoke the proviso of the Hickenlooper amendment which allows the President, for foreign policy reasons, to require a court in the United States to give effect to the Federal act of state doctrine in cases involving foreign expropriations.

The Department's view in this regard was recently expressed in a letter submitted by a former Legal Adviser, Monroe Leigh, to the United States Solicitor General in connection with the case of Alfred Dunhill of London, Inc. v. The Republic of Cuba, 425 U.S. 682 (1976). On that occasion, the Legal Adviser stated,

Significantly, the [Banco Nacional de Cuba v. Farr, 383 F.2d 166 (2d Cir. 1967) cert. denied, 390 U.S. 956 (1968); Bernstein v. N.V. Nederlandsche-Amerikaasche Stoomvart-Maatschappij, 210 F.2d 375 (2d Cir. 1954); First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972)] cases each involved an executive branch determination which opened the way for U.S. courts to review an act of state on the merits under international law. In each of these cases, the claim or counterclaim in question alleged that an act of state violated customary international law. Thus, at least on a case-by-case basis, the trend in executive branch pronouncements has been that foreign relations considerations do not require application of the act of state doctrine to bar adjudications under international law.

In general this Department's experience provides little support for a presumption that adjudication of acts of foreign states in ac

cordance with relevant principles of international law would embarrass the conduct of foreign policy. Thus, it is our view that if the Court should decide to overrule the holding in Sabbatino so that acts of state would thereafter be subject to adjudication in American courts under international law, we would not anticipate embarrassment to the conduct of the foreign policy of the United States. E. C. McDowell, 1975 Digest of U.S. Practice in International Law, 373, 374.

In this particular case, however, there is a jurisdictional deficiency which precludes the applicability of the Hickenlooper amendment, namely, that there was no taking of American-owned property. As an earlier Second Circuit panel held, in Menendez v. Saks and Company, 485 F.2d 1355, 1372 (2d Cir. 1973),

In Banco Nacional de Cuba [v. First National City Bank, 431 F.2d 394 (1970)], Judge (then Chief Judge) Lumbard, after an exhaustive analysis of the amendment's legislative history, concluded that it was intended to be limited to cases involving claims of title with respect to American-owned property nationalized by a foreign government in violation of principles of international law. For instance, the amendment might be invoked by an American firm if an effort should be made to market the product of such an expropriation in the United States. (Emphasis added.)

Moreover, the Menendez Court noted in a footnote to its opinion that upon review of the Banco Nacional de Cuba case, the United States Supreme Court did not disturb that Court's conclusion that American-owned property must be involved before the Hickenlooper amendment can be invoked. 485 F.2d, supra, at 1372, n.

21.

Consequently, since the circumstances of this case do not involve the taking of American-owned property, the Hickenlooper amendment does not apply and thus no foreign policy determination pursuant to that amendment need be made.

...

Finally, it should be noted that the district court has already passed judgment on the expropriation decrees-without seeking comment from the Department-and has concluded that there were no "acts of state" involved, within the meaning of the act of state doctrine. Recalling the holding in Underhill v. Hernandez, 168 U.S. 250, 252 (1897), that the doctrine applies only with respect to acts

*The Department's authority to make a foreign policy determination pursuant to the Hickenlooper amendment proviso, in cases where it applies, derives from E.O. 10973, as amended, which delegates from the President to the Secretary of State all functions conferred upon the President by the Foreign Assistance Act of 1961, as amended, including § 620 (e), 22 U.S.C. 2370 (e) (2). Victor Vilaplana [Special Assistant to the Legal Adviser of the Department of State] informs me that the general practice has been to have the Legal Adviser convey the Department's views to the Attorney General in circumstances such as these. However, as indicated above, the proviso does not apply in this case and thus no determination pursuant to this authority is required.

of a foreign government done within its own territory, the district court found that the seizure of the bills of lading had not come to complete fruition within Bangladesh such as to amount to a "fait accompli", since both the jute and the proceeds from the sale of the jute were outside of the dominion of the Bangladeshi Government. Hence, the Court ruled, it cannot be said that the mere seizure of the bills, without more, was an "act of state" within the meaning of the doctrine.

Dept. of State File No. P78 0005-1850.

The portion of Mr. Mark's letter of December 8, 1977, responding to the act of state inquiry appears below:

In the Department's view, the Hickenlooper amendment is inapplicable in this case because it does not apply to expropriation of property not owned by Americans. Menendez v. Saks & Co., 485 F. 2d 1355, 1372 (2d Cir. 1973); Occidental of Umm Al Qay, Inc. v. Cities Service Oil Co., 396 F. Supp. 461, 472 (D.C. La. 1975). In general, the Department takes the view that foreign policy interests do not require U.S. courts to refrain from reviewing acts of foreign states on the merits. See, the Legal Adviser's letter to the United States Solicitor General in Alfred Dunhill of London, Inc. v. The Republic of Cuba, 425 U.S. 682, 706 (1976), app. 1. Similarly, in this case, the Department does not believe that United States foreign policy interests would be adversely affected were the Court to recognize or refuse to recognize the expropriation decrees at issue. However, the Department has not made a "determination" to this effect, as that term is used in the Hickenlooper amendment. Dept. of State File No. P78 0005-1857.

The nine questions posed by Clerk Fusaro appear below:

(1) Does the appellee dispute that endorsement of the bills of lading by Adamjee to NBP (Rule 9(g) Statement, paragraph 19, at A-14) transferred title to the jute to NBP to the extent of the Bank's security interest? If so, on what grounds?

(2) In light of NBP's holding of the bills of lading, did the delivery of the iute to the consignee in the Dominican Republic on December 17 and 21, 1971 (Stipulation of Facts, items 11, 13, 15(b) and 16, at A-38-39), affect the legal position of NBP?

(3) Is the armed clash in East Pakistan described in items 19 and 20 of the Stipulation of Facts, at A-39-40, properly characterized as a rebellion or as a war? Does such characterization make any difference with respect to the question whether the Administration Order or the Abandoned Property Order or the Nationalization Order (Stipulation of Facts, items 1, 21, 22, 23 and related exhibits) constituted violations of international law?

(4) If Pakistan and Bangladesh were at war, how long-given the cessation of combat on December 16, 1971,-did the state of war continue?

(5) What action, if any, has been taken by Pakistan with respect to property in Pakistan owned by citizens of what has become Bangladesh?

(6) Does the United States' recognition of Bangladesh on April 4, 1972, or Pakistan's recognition of Bangladesh (Stipulation of Facts, items 24 and 25. at A-41) have any bearing on the rights of the parties? Cf. Oetjen v. Central Leather Co., 246 U.S. 297, 302-03 (1918); Ricaud v. American Metal Co., 246