Justia International Law Opinion SummariesArticles Posted in Government & Administrative Law
Badar v. Swissport USA, Inc.
Pakistan International Airlines (“PIA”) failed to transport the body of N.B. to Pakistan for burial due to a miscommunication by employees of Swissport USA, PIA’s cargo loading agent. N.B.’s family members sued PIA and Swissport in New York state court under state law; PIA removed the action to the district court. Following cross-motions for summary judgment and an evidentiary hearing, the district court held that Plaintiffs’ claims are preempted by the Montreal Convention and dismissed the suit. On appeal, Plaintiffs argued that the Montreal Convention, which preempts state-law claims arising from delayed cargo, does not apply because human remains are not “cargo” for purposes of the Montreal Convention and because their particular claims are not for “delay.” The Second Circuit affirmed. The court explained that human remains are cargo for purposes of the Montreal Convention; and on the facts found by the district court, the claims arise from delay. The claims are therefore preempted by the Montreal Convention. The court further wrote that it was Plaintiffs who cut off PIA’s ability to perform under the terms of the waybill. That decision was understandable given the need to bury N.B. quickly, and it cannot be doubted that Plaintiffs found themselves in a hard situation. But their only recourse against PIA and Swissport was a claim under the Montreal Convention, a claim which they have consistently declined to assert. View "Badar v. Swissport USA, Inc." on Justia Law
Hill & Stout, PLLC v. Mut. of Enumclaw Ins. Co.
In early 2020, to help curtail the spread of COVID-19, Washington Governor Inslee issued Proclamation 20-24 prohibiting non emergency dental care. The issue this case presented for the Washington Supreme Court’s review centered on the lost business income from the Proclamation and the interpretation of an insurance contract under which the insurance company covered lost business income for the “direct physical loss of or damage to Covered Property” and excluded coverage for loss or damage caused by a “virus.” Drs. Sarah Hill and Joseph Stout were dentists who operated two dental offices under their business Hill and Stout PLLC (HS). HS bought a property insurance policy from Mutual of Enumclaw Insurance Company (MOE) that covered business income lost due to “direct physical loss of or damage to” the properties. HS sued MOE for coverage because of its inability to use its offices for nonemergency dental practice under the Proclamation and later amended to add a putative class action. MOE moved to dismiss, arguing that HS failed to show a “direct physical loss of or damage to” the property and that the virus exclusion applied. The trial court denied the motion. After review, the Supreme Court affirmed the trial court granting summary judgment in favor of MOE. “It is unreasonable to read ‘direct physical loss of . . . property’ in a property insurance policy to include constructive loss of intended use of property. Such a loss is not ‘physical.’ Accordingly, the Proclamation did not trigger coverage under the policy.” View "Hill & Stout, PLLC v. Mut. of Enumclaw Ins. Co." on Justia Law
Christine Levinson et al. v. Kuwait Finance House (Malaysia) Berhad
Appellees hold a Foreign Sovereign Immunities Act of 1976 (FSIA) judgment against the Islamic Republic of Iran. Based on that judgment, Appellees moved for a writ of execution against the assets of Kuwait Finance House (KFH) Malaysia in district court. The district court granted the writ before making any findings as to whether KFH Malaysia is an “agency or instrumentality” of Iran or whether the assets at issue are “blocked.” The primary issue on appeal is whether the Terrorism Risk Insurance Act of 2002 (TRIA) permits those assets to be executed prior to such findings. The Second Circuit denied Appellees’ motion to dismiss the appeal, denied KFH Malaysia’s petition for a writ of mandamus, vacated the order granting the writ of execution, and remanded to the district court for further proceedings. The court explained to be entitled to attachment or execution under the TRIA a plaintiff must first establish defendant’s status as an agency or instrumentality. Here, these procedures were not followed. Article 52 permits parties to commence turnover proceedings to enforce money judgments. Below, that turnover proceeding commenced, but the district court granted the relief sought in that proceeding—a writ of execution—before it considered the antecedent issue of whether KFH Malaysia is an agency or instrumentality of Iran or whether the assets at issue are “blocked.” Without such findings, there has been no showing that KFH Malaysia is in possession of property. Accordingly, Appellees failed to meet the statutory and, and consequently, they failed to establish that they were entitled to a writ of execution. View "Christine Levinson et al. v. Kuwait Finance House (Malaysia) Berhad" on Justia Law
Cassirer v. Thyssen-Bornemisza Collection Foundation
Cassirer inherited a Pissaro Impressionist painting. After the Nazis came to power in Germany, she surrendered the painting to obtain an exit visa. She and her grandson, Claude, eventually settled in the United States. The family’s post-war search for the painting was unsuccessful. In the 1990s, the painting was purchased by the Foundation, an entity created and controlled by the Kingdom of Spain.Claude sued the Foundation, invoking the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602, to establish jurisdiction. FSIA provides foreign states and their instrumentalities with immunity from suit unless the claim falls within a specified exception. The court held that the Nazi confiscation of the painting brought Claude’s suit within the FSIA exception for expropriated property. To determine what property law governed the dispute, the court had to apply a choice-of-law rule. The plaintiffs urged the use of California’s choice-of-law rule; the Foundation advocated federal common law. The Ninth Circuit affirmed the choice of the federal option, which commanded the use of the law of Spain, under which the Foundation was the rightful owner.The Supreme Court vacated. In an FSIA suit raising non-federal claims against a foreign state or instrumentality, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party. When a foreign state is not immune from suit under FSIA, it is subject to the same rules of liability as a private party. Only the same choice-of-law rule can guarantee the use of the same substantive law and guarantee the same liability. Judicial creation of federal common law to displace state-created rules must be “necessary to protect uniquely federal interests.” Even the federal government disclaims any necessity for a federal choice-of-law rule in FSIA suits raising non-federal claims. View "Cassirer v. Thyssen-Bornemisza Collection Foundation" on Justia Law
Mohammad v. General Consulate of the State of Kuwait in Los Angeles
Plaintiff was a Syrian national living in California as a legal permanent resident and is now a U.S. citizen. She is not and has never been a Kuwaiti national. In 2014, Plaintiff entered into a written employment contract with the Consulate to work as a secretary. Plaintiff alleges that the Consulate created a hostile work environment by harassing, discriminating, and retaliating against her on the basis of her gender, religion, and Syrian national origin, violated various wage and hour laws, and breached her employment contract. Claiming that she was constructively terminated from her employment, she filed suit.The Ninth Circuit affirmed the district court’s denial of the Consulate’s motion to dismiss. The commercial activity exception to the Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(2), applied. The employment of diplomatic, civil service, or military personnel is governmental and the employment of other personnel is commercial unless the foreign state shows that the employee’s duties included “powers peculiar to sovereigns.” The district court properly exercised its discretion in finding that Plaintiff, who was employed as an administrative assistant, was not a civil servant and that her duties did not include “powers peculiar to sovereigns.” View "Mohammad v. General Consulate of the State of Kuwait in Los Angeles" on Justia Law
CLMS Management Services Limited Partnership v, Amwins Brokerage of Georgia
Plaintiffs, domestic entities, entered into an insurance contract providing coverage for a Texas townhome complex that they own and operate. The Policy was underwritten by Lloyd’s, members of a foreign organization, and contains a mandatory arbitration provision, providing that the seat of the Arbitration shall be in New York and the Arbitration Tribunal shall apply the law of New York. In 2017, Hurricane Harvey caused an estimated $5,660,000 in damages to the townhome complex. A third-party claims administrator for Lloyd’s concluded that the Policy’s deductible was $3,600,000.Plaintiffs filed a complaint in the Western District of Washington asserting breach of contract, failure to communicate policy changes, and unfair claims handling practices in violation of Washington law, asserting that the deductible should be $600,000. Lloyd’s moved to compel arbitration and stay proceedings, arguing that the Policy’s arbitration provision falls within the scope of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Plaintiffs did not contest that the arbitration provision falls within the Convention’s scope but argued the provision is unenforceable because Washington law specifically prohibits the enforcement of arbitration clauses in insurance contracts. Plaintiffs cited the McCarran-Ferguson Act, 15 U.S.C. 1011–15, which provides that state insurance law preempts conflicting federal law. On interlocutory review, the Ninth Circuit upheld an order granting Lloyd’s motion. Article II, Section 3 of the Convention is self-executing, and therefore is not an “Act of Congress” subject to reverse-preemption under the McCarran-Ferguson Act. View "CLMS Management Services Limited Partnership v, Amwins Brokerage of Georgia" on Justia Law
Usoyan v. Republic of Turkey
On May 16, 2017, Turkish security forces clashed with protesters outside the Turkish ambassador’s Washington, D.C. residence. Injured protesters sued the Republic of Turkey, claiming that President Erdogan ordered the attack. They asserted various tort claims, violation of D.C. Code 22-3704, which creates a civil action for injuries that demonstrate an accused’s prejudice based on the victim’s race or national origin, and civil claims under the Justice Against Sponsors of Terrorism Act and under the Alien Tort Statute.After reviewing the videotape of the incident, the district court stated: [T]he protesters remained standing on the designated sidewalk. Turkish security forces ... crossed a police line to attack the protesters. The protesters ... either fell to the ground, where Turkish security forces continued to kick and hit them or ran away."The D.C. Circuit affirmed the denial of Turkey's motion to dismiss. Under the Foreign Sovereign Immunities Act, 28 U.S.C. 1602, a foreign state is “presumptively immune" from the jurisdiction of U.S. courts but a “tortious acts exception,” strips immunity if money damages are sought for personal injury or death, or damage to property, occurring in the U.S. and caused by the tortious act of a foreign state. The court rejected Turkey's argument that the “discretionary function” exception preserved its sovereign immunity. Although the Turkish security detail had a right to protect President Erdogan, Turkey did not have the discretion to commit criminal assaults. The decisions giving rise to the lawsuit were not “‘fraught with’ economic, political, or social judgments.” View "Usoyan v. Republic of Turkey" on Justia Law
Farrell v. Blinken
In 1994, Farrell, a U.S. citizen, moved to Switzerland. He married a Swiss citizen; they had a child. In 2004, he naturalized as a Swiss citizen, allegedly with the intent of relinquishing his U.S. nationality; 8 U.S.C. 1481(a)(1) refers to “voluntarily … with the intention of relinquishing United States nationality … obtaining naturalization in a foreign state.” He subsequently made no use of his U.S. citizenship and did not enter the U.S. In 2013, Farrell was arrested in Spain and extradited to the U.S. He pled guilty to interstate travel with intent to engage in sex with a minor and possession of child pornography, which he committed 10 years earlier in the U.S., and was sentenced to imprisonment in the U.S.Farrell corresponded with the State Department, requesting a certificate of loss of nationality (CLN). He was told he would have to sign forms in person in front of a consular officer. Farrell argued that he had already committed the expatriating act when he naturalized in Switzerland and was now attesting that he did so voluntarily with the intent to lose his nationality. The Embassy responded that Farrell could not lose his citizenship while he was imprisoned in the U.S. Farrell sued, claiming that the in-person requirement was contrary to statute and arbitrary. The D.C. Circuit reversed the district court. While the Department has statutory authority to impose an in-person requirement, it acted arbitrarily in denying Farrell a CLN by offering conflicting and ever-evolving reasons for denying the CLN. View "Farrell v. Blinken" on Justia Law
Jam v. International Finance Corp.
The plaintiffs are residents of Gujarat, India, an Indian governmental entity, and a nonprofit focused on fish workers' rights. IFC is an international organization of 185 member countries. The plaintiffs allege that they have been injured by operations of India's coal-fired Tata Mundra Power Plant, owned and operated by CGPL. IFC loaned funds for the project and conditioned disbursement of those funds on CGPL’s compliance with certain environmental standards. The plaintiffs allege that IFC negligently failed to ensure that the Plant’s design and operation complied with these environmental standards but nonetheless disbursed funds to CGPL. These supervisory omissions and disbursement decisions allegedly took place at IFC’s Washington, D.C. headquarters.On remand from the Supreme Court, which held that organizations such as IFC possess more limited immunity equivalent to that enjoyed by foreign governments, the district court again ruled that IFC was immune from the claims. The D.C. Circuit affirmed. United States courts lack subject-matter jurisdiction. The Foreign Sovereign Immunities Act provides that foreign states are immune from the jurisdiction of United States’ courts, 28 U.S.C. 1604; the commercial activity exception does not apply because the gravamen of the complaint is injurious activities that occurred in India. View "Jam v. International Finance Corp." on Justia Law
Weiss v. National Westminster Bank PLC
The Second Circuit affirmed the district court's dismissal of the operative amended complaints in two actions seeking to hold defendant bank liable under the Antiterrorism Act of 1990 (ATA), for providing banking services to a charitable organization with alleged ties to Hamas, a designated Foreign Terrorist Organization (FTO) alleged to have committed a series of terrorist attacks in Israel in 2001-2004. The actions also seek to deny leave to amend the complaints to allege aiding-and-abetting claims under the Justice Against Sponsors of Terrorism Act (JASTA).The court concluded that 18 U.S.C. 2333(a) principles announced in Linde v. Arab Bank, PLC, 882 F.3d 314 (2d Cir. 2018), were properly applied here. The court explained that, in order to establish NatWest's liability under the ATA as a principal, plaintiffs were required to present evidence sufficient to support all of section 2331(1)'s definitional requirements for an act of international terrorism. The court saw no error in the district court's conclusion that plaintiffs failed to proffer such evidence and thus NatWest was entitled to summary judgment dismissing those claims. The court also concluded that the district court appropriately assessed plaintiffs' request to add JASTA claims, given the undisputed evidence adduced, in connection with the summary judgment motions, as to the state of NatWest's knowledge. Therefore, based on the record, the district court did not err in denying leave to amend the complaints as futile on the ground that plaintiffs could not show that NatWest was knowingly providing substantial assistance to Hamas, or that NatWest was generally aware that it was playing a role in Hamas's acts of terrorism. The court dismissed the cross-appeal as moot. View "Weiss v. National Westminster Bank PLC" on Justia Law