Banco

Nacional de Cuba v. Sabbatino

Brief Fact Summary. The bills of lading for a shipment of sugar contracted
between Farr, Whitlock & Co an American commodities broker was assigned
by Banco Nacional de Cuba (P), but another Cuban bank instituted this action
alleging conversion of the bills of lading and sought to recover the proceeds
thereof from Farr and to enjoin Sabbatino (D), a court-appointed receiver
from exercising control over such proceeds.
Synopsis of Rule of Law. The judiciary, in line with the Act of State Doctrine
will not examine the validity of a taking of property within its own territory by
a foreign sovereign government recognized by this country in the absence of
international agreements to the contrary, even if the taking violates
customary international law.
Facts. A contract to purchase Cuban sugar from a wholly owned subsidaiary of
Compania Azucarera Vertientes-Camaquey de Cuba (CAV) a corporation
organized under Cuban law was made by Farr, Whitlock & Co. (Farr) an
American commodities broker. The CAV stock was principally owned by
United States residents. The agreement was for Farr to pay for the sugar in
New York upon the presentation of the shipping documents. After this deal, a
law was enacted in Cuba which empowered the government to nationalize
forcefully, expropriation of property or enterprise in which American
nationals had an interest.
Hence, the sugar which Farr had contracted was expropriated from Compania
Azucarera. Farr however entered into contracts which was similar to the one
made with CAV with the Banco Para el Comercio de Cuba, which was an
instrumentality of the government. This was done by Farr in order to obtain
consent from the Cuban government before a ship carrying sugar could leave
Cuba.A bill of lading which was also an instrumentality of the Cuban
government was assigned by the bank to Banco Para el Comercio de Cuba,
who presented the bills and a sight draft as required under the contract to
Farr in New York in return for payment. After CAV notified Farr of its claim to
the proceeds as rightful owner of the sugar, Farr refused the documents.

This action of Farr resulted in a court order which appointed Sabbatino (D) as
receiver of CAVs New York assets and enjoined it from removing the
payments from the state. Based on the allegation of the conversion of the bills
of lading seeking to recover the proceeds thereof from Farr and to enjoin
Sabbatino (D), the receiver from exercising dominion over such proceeds, the
Banco Nacional (P) instituted this action. A summary judgment was granted
against Banco Nacional (P) by the district court on the grounds that the Act of
State Doctrine does not apply when the foreign act in question is in violation
of international law. The court of appeals also upheld this judgment.




Issue. Does the judiciary have the authority to examine the validity of a taking
of property within its own territory by a foreign sovereign even if the taking
violated international law?
Held. (Harlan, J). No. The judiciary, in line with the Act of State Doctrine will
not examine the validity of a taking of property within its own territory by a
foreign sovereign government recognized by this country in the absence of
international agreements to the contrary, even if the taking violates
customary international law. Even in a situation whereby international law
has been violated, the clear implication of past cases is that the Act of State
Doctrine is applicable because the Act of State doctrine does not deprive the
courts of jurisdiction once acquire over a case. The damages of adjudicating
the propriety of such expropriation acts, regardless of whether the State
Department has it did in this case, asserted that the act violated international
law are too far-reaching for the judicial branch to attempt. Hence the
judgment of the court of appeals is reverse and the case remanded back to the
district court.

Dissent. (White, J). American courts are not required by the Act of State
Doctrine to decide cases in disregard of international law and of the rights of
litigants to a full determination on the merits.
Discussion. Even in the diversity of citizenship cases, the Court concluded that
the Act of State Doctrine must be determined according to federal rather than
state law. The court also made it clear that it is constrained to make it clear
that an issue concerned with a basic choice regarding the competence and
function of the judiciary and national executive in ordering our relationships
with other members of the international community must be treated
exclusively as an aspect of federal law.