Australian Maritime Museum

Case 3:17-cv-00817-CSH Document 32-1 Filed 11/22/17 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

ANDERSON TRUCKING SERVICE, INC., Plaintiff,

CIVIL ACTION NO. 2:17-CV-00817

v. EAGLE UNDERWRITING GROUP, INC.; WOODS HOLE OCEANOGRAPHIC INSTITUTION; RIDGEWAY INTERNATIONAL USA, INC.; AUSTRALIAN NATIONAL MARITIME MUSEUM, Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Pursuant to Rule 7 of the Local Rules of this Court and Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure, Defendant AUSTRALIAN NATIONAL MARITIME MUSEUM (the “Museum”)1 appears specially and not generally and files this Memorandum of Law in support of its Motion to Dismiss directed at the entirety of Plaintiff’s Complaint. The Complaint and all causes of action therein are subject to dismissal because the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq. (“FSIA”), prohibits this Court from exercising jurisdiction over the Museum. The Museum is owned by and is an arm of the government of the Commonwealth of Australia, and accordingly, suits against it are barred by the FSIA. 28 U.S.C. § 1604.

1

The Museum is not subject to personal jurisdiction in either the United States or Connecticut, inter alia, because it lacks significant contacts with both the United States and Connecticut. Should the Court deny this Motion to Dismiss, the Museum will file a motion to dismiss for lack of personal jurisdiction.

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I.

ALLEGED FACTS2

Plaintiff alleges that it is a Minnesota corporation which contracted to transport a submarine from Woods Hole, Massachusetts to Baltimore, Maryland. ¶¶ 1, 22.

Complaint (Dkt 23),

The Complaint further alleges that the submarine was damaged during transit.

Id., ¶ 26. Plaintiff admits that the Museum is an agency of the Commonwealth of Australia with its principal place of business in Australia. Id., ¶ 5. The Museum was established in 1990 by an act of the Australian Parliament, the Australian National Maritime Museum Act 1990 (No. 90, 1990). See, declaration of Peter Rout, filed herewith, ¶ 2. The Museum is entirely owned by the Australian government, on behalf of the people of Australia. Id. The functions of the Museum are to exhibit material from the national maritime collection of Australia, and maritime historical material loaned to the Museum. Other functions are to develop, preserve and maintain the national maritime collection of Australia, to disseminate information relating to Australian maritime history, and to conduct and arrange for research into matters relating to Australian maritime history. Id., ¶ 3. The Museum is funded by the Australian government; it operates on a not-for-profit basis, and in fact it does not make a profit. Id., ¶ 4. Accordingly, no exception to the FSIA applies, and there is no subject matter jurisdiction over the Museum.

2

Because this is a motion to dismiss, the facts (but not legal conclusions) alleged in Plaintiff’s Complaint must be taken as true. Nothing in this motion is intended as, or should be taken as, an admission of the truth of any facts alleged.

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II. A.

DISCUSSION

Standard for a Motion to Dismiss

The FSIA deprives courts in the United States of jurisdiction to adjudicate claims against foreign sovereigns and their agencies and instrumentalities. 28 U.S.C. §§ 1604, 1603. The Act reflects the U.S. policy of restrictive immunity by granting foreign agencies and their instrumentalities presumptive immunity from suit. 28 U.S.C. §§ 1602, 1604. Under the FSIA, a foreign state – including “a political subdivision of a foreign state or an agency or instrumentality of a foreign state,” 28 U.S.C. § 1603(a), is immune from the jurisdiction of the courts of the United States. United States courts lack subject matter jurisdiction over actions against foreign states and their agencies unless an exception applies (and here, none does, as will be discussed infra). Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493-94 (1983). Since the Museum is clearly an agency or instrumentality of Australia, in the words of the FSIA, this Court lacks subject matter jurisdiction over the Museum, and all claims herein against the Museum must be dismissed. B.

The Commercial Activity Exception to the FSIA Does Not Apply

The provision of the FSIA denying United States courts subject matter jurisdiction over agencies of foreign states does not apply to “commercial activities” of the foreign state. 28 U.S.C. § 1605(a)(2). To determine whether conduct falls within the exception, the Supreme Court has held that courts must determine whether the conduct at issue is the type which private parties engage in for “trade and traffic or commerce”. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992). If the conduct involved is “peculiar to sovereigns” and of a type in which private citizens cannot engage, the commercial activity exception does not apply. Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993) (quoting Weltover, 504 U.S. at 614).

The

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commercial activity exception applies equally to foreign states and their political subdivisions, agencies and instrumentalities. Plaintiff’s Complaint alleges a single act on the part of the Museum, namely requesting transportation of a submarine by truck from Woods Hole, Massachusetts to Baltimore, Maryland, for onward carriage to Australia. Complaint, ¶¶ 10, 20. The Complaint notes that the submarine was being provided to the Museum gratis. Obviously, operating a large public Museum is an activity “peculiar to sovereigns” (Saudi Arabia, supra, 507 U.S. at 360), and receiving the loan of a submarine gratis for public display is not an activity in which private citizens engage. Williams v. Nat'l Gallery of Art, No. 16-CV-6978, 2017 U.S. Dist. LEXIS 154445, at *19 (S.D.N.Y. Sep. 21, 2017) (loan of painting to a museum in the U.S. not enough to invoke the commercial activity exception to the FSIA). More importantly, however, a plaintiff’s claim does not properly rest upon a foreign state’s commercial activity in the United States, 28 U.S.C. § 1605(a)(2), when that activity is ‘incidental’ to the foreign state’s activities outside the United States. Leutwyler v. Office of Her Majesty Queen Rania Al Abdullah, 184 F. Supp. 2d 277, 292 (S.D.N.Y. 2001); EM Ltd. v. Banco Cent. De La Republica Argentina, 800 F.3d 78, 97-98 (2d Cir. 2015), cert. dismissed, 136 S.Ct. 1731 (2016). In order for there to be substantial contact with the United States within the meaning of § 1603(e), to establish an exception to Sovereign Immunity under § 1605, the commercial activity must be either a regular course of commercial conduct or a particular commercial transaction or act, the commercial character of which shall be determined by reference to its nature rather than its purpose. § 1603(d); Nelson, supra, 507 U.S. at 356. Most importantly, without substantial contacts in the United States outside of the act in question, there can be no commercial activity under the first clause of § 1605(a)(2). Schoeps v. Bayern, 27 F. Supp. 3d

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540, 545 (S.D.N.Y. 2014), aff’d sub nom. Schoeps v. Freistaat Bayern, 611 F. App’x 32 (2d Cir. 2015). Here, the sole act of receiving the gratis loan of the submarine to Australia, to the extent it was even an activity conducted in the United States at all, certainly does not meet the “substantial contact” test of § 1603(e). Therefore no exception to the Museum’s protections under the FSIA exists here. C.

The Public Policy of the United States is to Enforce the FSIA

The FSIA was passed to promote comity among nations. 28 U.S.C. § 1602. The United States does not wish to be sued in the courts of foreign countries, and to secure that political goal, the United States provides immunity to foreign countries in the courts of the United States. Furthermore, assertions that a country waived the protections of the FSIA are construed narrowly. Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991). Plaintiff’s Complaint demonstrates no legal, political or commercial reason why the FSIA should not provide complete immunity to the Museum.

Accordingly, the claims stated in Plaintiff’s

Complaint, and all causes of action therein, should be dismissed as to the Museum.

III.

CONCLUSION

Sovereign immunity and comity with the Commonwealth of Australia preclude this Court from exercising jurisdiction over the Museum. The Museum respectfully requests that the Court /// /// ///

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dismiss Plaintiff’s Complaint, and all causes of action therein, as to the Museum, with prejudice and without leave to amend. The Museum further requests oral argument of its motion.

Respectfully submitted, DEFENDANT AUSTRALIAN NATIONAL MARITIME MUSEUM By: Its Attorneys /s/ Pamela L. Schultz Pamela L. Schultz, ct27392 Cal. State Bar 269032 Forrest Booth HINSHAW & CULBERTSON LLP One California Street, 18th Floor San Francisco, CA 94111 Telephone: 415-362-6000 Facsimile: 415-834-9070 Email: [email protected]

CERTIFICATE OF SERVICE I certify that on November 22, 2017, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.

/s/ Pamela L. Schultz Pamela L. Schultz, ct27392

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Australian Maritime Museum

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