2008 International Law Update, Volume 14, Number 11 (November)

2008 International Law Update, Volume 14, Number 11 (November)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

DEPOSITIONS ABROAD (CRIMINAL CASES)

In federal prosecution for lying on refugee forms, Seventh Circuit affirms trial court’s discretionary refusal of African admittee to have government pay for taking depositions of various persons in uncertain African locations who allegedly could support Defendant’s denial of involvement with black‑listed armed groups

During the 1990s several civil conflicts were wracking Liberia. The Department of State, the Office of U. N. High Commissioner for Refugees, and the Department of Homeland Security (DHS) began a U.S. resettlement program for Liberians in the Ivory Coast who could not return to Liberia or remain in the Ivory Coast because of the civil unrest.

Eligible individuals could apply to enter the U.S. as refugees. Prince Solomon Knox (Defendant) was from Sierra Leone, but his wife, Elizabeth being from Liberia, could apply for her entire family. Defendant, Elizabeth and their daughter applied under this program. To be admitted, applicants had to meet the qualifications, one of which deemed persons who had belonged to, or assisted, disfavored armed groups ineligible.

There are three relevant rebel groups: the National Patriotic Front of Liberia (NPFL), the Independent National Patriotic Front of Liberia (INPFL), and the Revolutionary United Front (RUF). The RUF was known for grievous human rights violations, see Kamara v. Attorney General of the United States, 420 F.3d 202, 207 (3d Cir. 2005) (describing some of the RUF’s  grievous human rights violations”). Since December 2001, the State Department has designated the RUF as a terrorist organization on its exclusion list.

A State Department employee interviewed the Knox family in Abidjan, Ivory Coast on December 9, 2003. At that time, in response to questions from DHS immigration officer David Radel, Defendant denied that he had ever been a member of any disfavored armed groups, denied that he had assisted them, and denied having served or taken part in military service or armed conflict. Similarly, on Form I‑590, Registration for Classification as Refugee, Defendant answered that he had no membership in, and provided no aid to, these armed groups. He also answered “none” when directed on the form to list political, professional or social organizations of which he is now or has been a member or with which he is now, or has been, affiliated since his 16th birthday.

On Defendant’s behalf, Radel also completed Form G‑646, Sworn Statement of Refugee Applying for Admission, into the U.S. Defendant answered  no  to the following questions: (1)  Have you ever provided support, including housing, transportation, communications, funds, documents, weapons or training for any person or organization that has ever engaged in or conspired to engage in sabotage, kidnaping, assassination, hijacking, or any other form of terrorist activity?” and (2) “Have you ever been a representative or member of a terrorist organization or a member of a group which endorses terrorist activity?” Radel’s interview notes embody these and other similar statements.

Radel recommended that Defendant be resettled in the U.S. Defendant entered the U.S. at Chicago on April 14, 2004. He presented the I‑590 Form stamped by Radel to the DHS officer at O’Hare Airport. Defendant then moved to St. Louis, Missouri where federal officers arrested him on December 21, 2006. The government had become convinced that Defendant had belonged to, or supported, the RUF, NPFL, and/or INPFL, and therefore, had lied on the forms and to Radel.

An Illinois federal grand jury charged Defendant on two counts for making materially false statements to federal agents and two counts for visa fraud. The district court found Defendant indigent and appointed him a defense counsel.

The key issues in the case are whether Defendant lied about his involvement in these rebel groups. The majority of the events related to the charges occurred in Sierra Leone, Liberia, and Ivory Coast. Accordingly, the defense sought to investigate and possibly depose potential witnesses in West Africa. Defendant applied in writing for judicial authorization of extraordinary and substantial travel and expert witness expenses with the intent to ultimately take depositions abroad under Federal Rule of Criminal Procedure 15. The district judge denied the application without prejudice due to “vagueness” and a “failure to address the legal basis for taking foreign depositions in three unidentified West African countries.”

Defendant filed another similar motion and identified four prospective witnesses by name and address; he believed them to have personal first‑hand knowledge concerning whether the Defendant was a member of any of the relevant groups. (Defendant also noted that the government itself would be bringing over witnesses from Africa.).

The court next gave Defendant a chance to supply additional information (costs, etc.), including in camera disclosures of the bases for believing the witnesses would appear voluntarily, how they would be contacted, etc. The government opposed Defendant’s request(s).

The court ultimate decided that the defense had failed to provide enough detailed information, Defendant having only explained that travel to West Africa was necessary to investigate, locate, and interview these individuals and that then more information would be available. The court found this  problematic and unworkable.  The defense was unable to provide the requisite notice of when and where he would take the depositions.

The district court also faulted Defendant for failing to address the legality of the proposed investigations under the sovereign laws of the relevant foreign nations or the diplomatic implications for the U.S. The court found it  speculative  that Defendant’s proposed depositions would ever even occur or that they would preserve material evidence under these unreliable circumstances. In a separate ruling, the court also denied expenses for travel and expert services in Africa. Defendant persisted nonetheless, filing an emergency motion and an amended emergency motion for the district court to reconsider. The district court was not persuaded, and denied the motions for reconsideration.

At trial the government’s witnesses testified to the following: they saw Defendant serving as a bodyguard for an RUF leader, saw him carrying an AK‑47 rifle, saw him at RUF meetings, observed him in the company of RUF members, heard him go by the name of a leader of the INPFL, saw him in RUF apparel, heard him brag about being a rebel fighter, overheard him tell about killing a family, and knew that he was having an affair with an RUF leader’s wife. Defendant’s only trial witness was his estranged wife, who did not meet him until 1996 or 1997 (a government witness testified about events dating as far back as 1992). She denied ever seeing him in rebel garb or associating with the rebel groups.

The jury convicted Defendant on all four counts. Defendant appealed his convictions. The international issue centers on a review of the district court’s decision to deny Defendant’s request to go to West Africa to investigate and depose potential witnesses. Having served his sentence, Defendant is currently in the custody of the Bureau of Immigration and Customs Enforcement, which has filed removal proceedings.  

The Seventh Circuit affirms Defendant’s convictions and set out its reasoning. “Defendant applied for funds to travel to West Africa to investigate and depose witnesses under 18 U.S.C. § 3006A(e)(1) and Federal Rule of Criminal Procedure 15; the district judge denied his requests. The statute authorizes investigative and expert expenditures on behalf of indigent defendants when necessary for adequate representation. We review a district court’s decision to grant or deny such funds for abuse of discretion. See United States v. Smith, 502 F.3d 680, 686 (7th Cir. 2007). Rule 15 of the Federal Rules of Criminal Procedure also permits a defendant to make a motion to depose witnesses – an unusual occurrence in a criminal case – when ‘exceptional circumstances’ warrant it. This is also reviewed for abuse of discretion.”

“We addressed the Rule 15  exceptional circumstances  requirement briefly in United States v. Morrison, 946 F.2d 484, 490 (7th Cir. 1991), where we affirmed a district court’s denial of a request for money to travel to Puerto Rico to interview witnesses, take depositions, and investigate the scene of a drug ring’s alleged operations. We explained that ‘a showing of exceptional circumstances must be considerably more concrete and particularized than mere speculation about the possible need for depositions in the future.’ Id. Beyond this brief treatment in Morrison, we have not had the occasion to outline any ‘test’ for when the ‘exceptional circumstances’ threshold would be met justifying authorization of foreign depositions; therefore we take note of some factors considered relevant by other circuits.”

For example, “the Ninth Circuit considered whether the deponent would be available at the proposed location of the deposition, whether the deponent would be willing to testify, and the safety of U.S. officials in going to the foreign location. See United States v. Olafson, 203 F.3d 560, 567 (9th Cir. 2000). The Eleventh Circuit focused on the materiality of the proposed testimony, the availability of the witness, whether injustice will otherwise result without the material testimony that the deposition could provide, and whether countervailing factors would make the deposition unjust to the nonmoving party. [Cite]. The D.C. Circuit listed as critical factors the materiality of the testimony and the unavailability of the witness to testify at trial and also noted that there is ‘typically some showing, beyond  unsubstantiated speculation,  that the evidence exculpates the defendant.’ Kelley, supra, at 1125 (citing cases from the Third, Fifth, and Ninth Circuits).”

“As we described, Defendant made many attempts to obtain authorization for expenses to investigate and depose witnesses in the West African countries of Sierra Leone, Liberia, and Ivory Coast. We are not unsympathetic to his desire to investigate and depose witnesses there – he is correct that many of the events relevant to his case occurred there. However, we do not find that the district court abused its discretion in denying funds for a proposal accurately characterized by the district court as ‘problematic and unworkable.’” [717]

“Specifically addressing Rule 15’s requirements, we conclude [that] Defendant’s request was not sufficiently ‘concrete and particularized’ to justify authorizing the expenditures. [Cite] Moreover, Defendant’s request would fail under nearly all of the factors we cited from other circuits. Defendant could not provide when or where the potential witnesses would be found. He had their addresses but offered nothing to establish [that] the individuals would be present at any given date or time – or how he would get over the hurdle of no phones or e‑mails.”

“For example, one witness’s address was in Sierra Leone, but Defendant indicated that the witness was also believed to spend time in [Ivory Coast] and that he might be found there; plans for tracking this witness down were not offered. Considering this search would involve crossing international borders, it is not an insignificant question. Such an absence of attention to detail pervaded Defendant’s entire request. Similarly, the materiality of the potential testimony seemed based entirely on conjecture and speculation. No details were given regarding the expected substance of their testimony or how it would exculpate Defendant. Defendant also did not disclose any basis, other than a familial relation to the Defendant, for why these individuals would be willing to testify voluntarily.”

“There was also a rather cavalier attitude toward international law and diplomatic concerns raised by the district judge. Defendant argued that such matters were not his concern; nevertheless, surely he cannot expect a U.S. court to authorize such expenses to engage in investigating terrorist group membership without detail on the legality of investigating and taking depositions in these countries. In the end Defendant simply did not demonstrate the requisite ‘exceptional circumstances’ for Rule 15 depositions.”

“Defendant argues that he may have been able to furnish these answers if he had been given investigative funding under § 3006A(e)(1). He asserts that his request was a two‑step process and that he could have been given funds to go investigate, after which he could satisfy the Rule 15 requirements. But we conclude his § 3006A(e)(1) requests failed for many of the same reasons. He could not provide sufficient details for the trip regarding when, where, and how he would make contact with the witnesses. We understand that there were difficulties given the undeveloped communications infrastructure in some areas; however, Defendant did not suggest how he intended to overcome this challenge.”

“He provided only a vague trip itinerary, and the estimated expenses were equally broad and without detail, as well as possibly in excess of the statutory amount. See 18 U.S.C. § 3006A(e)(3) (‘Compensation to be paid to a person for services rendered by him to a person under this subsection, or to be paid to an organization for services rendered by an employee thereof, shall not exceed $1,600, exclusive of reimbursement for expenses reasonably incurred, unless payment in excess of that limit is certified by the court....’).”

“His ‘spreadsheet’ for the 12‑day trip had only six itemized entries and totaled $34,565.30. (Although in a later motion he did indicate the costs would be less.) Defendant did not make a convincing showing that these expenses were ‘necessary’ for adequate representation and that ‘a reasonable attorney would engage such services for a client having the independent financial means to pay for them.’” [718]

Citation: United States v. Knox, 540 F.3d 708 (7th Cir. 2008).

JUDGMENTS OF FOREIGN COURTS (RECOGNITION AND ENFORCEMENT)

Maine Supreme Judicial Court rules that judgment rendered by German courts was entitled to recognition and enforcement under Maine’s Uniform Foreign Money Judgments Recognition Act and its Enforcement Act

Manfred Zorn (Defendant) worked in Germany as a freelance broker on the Frankfurt Securities Exchange. His work included settling security transactions through Lombardkasse AG, a German company that is now known as GENUJO LOK Beteiligungs GmbH. (Plaintiff). When Defendant was doing business with Plaintiff, his sole domicile was Maine.

In the course of his dealings with Plaintiff, Defendant ran up a debt of 2.4 million deutsche marks (DM) to the company. On May 18, 1998, Defendant executed and delivered to Plaintiff a German notarized Recognition of Debt, also known as an “enforceable deed,” which is similar to a settlement agreement in Maine. In the Recognition, the parties agreed that Defendant would pay Plaintiff 1.6 DM, according to an agreed repayment plan, as settlement for Plaintiff’s claim.

The agreement included the following relevant conditions: (1) the acknowledgment of indebtedness shall itself provide the basis for Defendant’s liability; (2) with respect to the payment of a partial amount of the overall debt in the amount of 1.6 DM, Defendant is liable to the immediate compulsory attachment of his entire assets; (3) Defendant expressly waives the right to all forms of appeal concerning the basis or the amount of the debt; (4) if Defendant fails to comply with the repayment plan, he must pay back the remaining amount of the original 2.4 DM debt; (5) all claims arising in connection with or as a result of the agreement or claims relating to its validity are subject to German law; and (6) the place of jurisdiction for all disputes arising in connection with or as a result of the agreement or disputes relating to its termination or validity shall be Frankfurt am Main, Germany. Defendant had no significant assets in Germany when the parties entered into the Recognition.

Defendant repaid 358,576.46 DM but failed to comply with the remainder of the repayment plan, leaving 2,041,423.54 DM unpaid. Because Defendant agreed in the Recognition to compulsory attachment of his assets, the Recognition was automatically enforceable in Germany. Defendant’s only assets, however, lay in the United States. Therefore, Plaintiff instituted court proceedings in Frankfurt am Main, Germany to obtain a judgment, which it could then seek to enforce in the United States.

Plaintiff served Defendant in the United States on August 19, 2003. Defendant appeared before the Frankfurt am Main Regional Court, through his German attorney, and raised a number of jurisdictional and substantive arguments. These included (1) that the Frankfurt am Main Regional Court lacked jurisdiction; (2) that Defendant was at a disadvantage during the notarization of the deed because he did not have an attorney; (3) the parties intended the Recognition to apply in the event of Defendant’s success in another lawsuit and thus did not create any new grounds for indebtedness; and (4) Plaintiff had no legitimate interest in taking legal action.

The Frankfurt am Main Regional Court rejected Defendant’s arguments and issued a judgment on May 10, 2004, ordering Defendant to pay off the debt, plus interest, and to pay the costs of the lawsuit. The court issued the judgment in the name of GENUJO LOK Beteiligungs GmbH, as Plaintiff’s successor, for the purpose of judicial enforcement.

Defendant appealed that decision to the Frankfurt am Main Higher Regional Court, which affirmed the judgment on May 25, 2005. That Court then issued two orders, on June 15, 2005 and July 29, 2005, fixing the costs that Defendant had to pay pursuant to its May 10, 2004 decision and the appellate court’s decision of May 25, 2005, affirming that decision.

On March 17, 2006, Plaintiff filed the four German rulings with the clerk of the Cumberland County Superior Court pursuant to Maine’s Enforcement Act, 14 M. R. S. §§ 8001‑8008, and authenticated them pursuant to M. R. Civ. P. 44(a)(2). Defendant moved for nonrecognition of the German judgments and asked for an evidentiary hearing on this issue. After considering his substantive arguments against recognition and determining that Defendant did not raise any issues that could not be resolved in the absence of an evidentiary hearing, the court denied Defendant’s motion. The court then ruled that Plaintiff was entitled to enforce the German judgments in Maine.

Defendant filed a timely notice of appeal in the Supreme Judicial Court of Maine. This court affirms the judgment below.

The Court then explains the grounds for the Court’s ruling. “Maine’s Enforcement Act creates an expedited procedure for enforcing federal and state judgments that are entitled to full faith and credit in Maine. 14 M. R. S. § 8002. Any such judgment that is properly authenticated and filed with the clerk of the court ‘has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of [a court] of this State and may be enforced or satisfied in like manner.’ 14 M. R. S. § 8003.

“In contrast, the Uniform Foreign Money Judgment Recognition Act (UFMJRA) applies to judgments entered in foreign countries. Unless one of the statutory grounds for nonrecognition applies, a foreign country judgment that is ‘final, conclusive and enforceable where rendered,’ 14 M. R. S. § 8503, is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money and ‘is enforceable in the same manner as the judgment of a sister state that is entitled to full faith and credit.’ § 8504. Section 8505, entitled ‘Grounds for nonrecognition,’ lists three grounds upon which ‘[a] foreign judgment is not conclusive,’ § 8505(1), and seven grounds upon which ‘[a] foreign judgment need not be recognized,’ § 8505(2).”

“Defendant argues that the court erred in recognizing the German judgments because the Recognition of Debt is not a ‘foreign judgment’ within the meaning of the UFMJRA. § 8502(2), 8503. Defendant’s argument is misplaced. The issue is not whether the Recognition of Debt itself qualifies as a ‘foreign judgment,’ but whether the four German decisions, enforcing the recognition of debt, are ‘foreign judgments’ and therefore entitled to recognition.”

“The [UFMJRA] applies to ‘foreign judgments,’ § 8503, which it defines as ‘any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty or a judgment for support in matrimonial or family matters.’ § 8502(2). We review the interpretation of a statute de novo. When language is unambiguous, we give it its plain meaning.”

“In this case, the May 10, 2004 decision of the Frankfurt am Main Regional Court falls within the plain meaning of a ‘foreign judgment’ as it is defined in § 8502(2). The May 10, 2004 decision is titled ‘Judgement [sic];’ was issued by a foreign court and bears the seal of that court; grants recovery of a sum of money; and is not ‘a judgment for taxes, a fine or other penalty or a judgment for support in matrimonial or family matters.’ § 8502(2). Therefore, the court did not err in concluding that the May 10, 2004 judgment qualifies as a foreign judgment within the meaning of the Maine [UNFMJRA]§ 8502(2).”

“Defendant raised three grounds for nonrecognition: (1) ‘[t]he judgment was rendered under a system that does not provide ... procedures compatible with the requirements of due process of law,’§ 8505(1)(A); (2) ‘[t]he foreign court did not have personal jurisdiction over the defendant,’ § 8505(1)(B); and (3) ‘[t]he foreign court rendering the judgment would not recognize a comparable judgment of this State,’ § 8505(2)(G).”

“While each of these issues involve factual questions, or mixed questions of fact and law, on this record Defendant has not established that there is any material fact that he can dispute regarding the grounds for nonrecognition that he asserts. We proceed to address those three grounds.”

“Defendant argues that the court erred in recognizing the German judgments because the German proceedings did not comport with the requirements of due process of law. Pursuant to § 8505(1)(A), a foreign judgment is not conclusive if ‘[t]he judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.’”

“In interpreting language identical to that found in the [UFMJRA], courts have consistently read this section to require a determination of whether the foreign system that rendered the decision comports with due process, rather than ‘whether the particular judgments [being challenged] were issued in proceedings that conform to the requirements of due process of law.’ Society of Lloyd’s v. Ashenden, 233 F.3d 473, 476‑77 (7th Cir. 2000); CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 100 N.Y.2d 215, 762 N.Y.S.2d 5, 792 N.E.2d 155, 160 (2003) (reasoning [that] the statute is satisfied if the foreign court’s procedures are ‘compatible with the requirements of due process of law’).”

“In this case, the German judgments were rendered by a court system that provides procedures compatible with due process. See Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1520 (11th Cir. 1994) (‘Germany’s legal system clearly follows procedures that ensure that litigants will receive treatment that satisfies American notions of due process.’); see also Dresdner Bank AG v. Hague, 161 F. Supp.2d 259, 263 (S.D.N.Y.2001).”

“Furthermore, it does not appear from the record that, in this particular case, the German judgments were issued in proceedings that lacked due process. We have identified a number of factors to consider in determining whether a particular proceeding satisfies due process. When significant rights are at stake, due process requires: notice of the issues, an opportunity to be heard, the right to introduce evidence and present witnesses, the right to respond to claims and evidence, and an impartial fact‑finder. In re Chelsea C., 2005 ME 105,   16, 884 A.2d 97, 102 ...”.

“Here, Defendant received notice of Plaintiff’s German complaint when he was served with process in Maine and was given an opportunity to respond. He appeared in the German court, through his attorney, and raised a number of substantive and jurisdictional issues as to why the German court should not recognize the Recognition of Debt. The record suggests he was permitted to submit evidence and provides no reason to suspect that the German fact‑finder was not impartial. Therefore, Defendant’s due process argument is not persuasive.”

“Defendant argues that the court erred in recognizing the German decisions because the German courts did not have authority to exercise personal jurisdiction over him. One of the mandatory grounds for denying recognition of a foreign judgment is that ‘[t]he foreign court did not have personal jurisdiction over the defendant.’ § 8505(1)(B). The [UFMJRA] provides six bases for personal jurisdiction that, if found, conclusively establish that the foreign court had authority to exercise personal jurisdiction over the Defendant. § 8506(1). The [UFMJRA] also provides that these six bases for personal jurisdiction are not exclusive and that ‘courts of this State may recognize other bases of jurisdiction.’ § 8506(2).”

“Defendant’s personal jurisdiction argument fails for three reasons. First, the court properly concluded that Defendant ‘voluntarily appeared in the proceedings, other than for the purpose of ... contesting the jurisdiction of the court over the defendant,’ within the meaning of § 8506(1)(B). Defendant appeared, through his counsel, and raised not only jurisdictional grounds but also substantive grounds for dismissing the action.”

“Second, the court properly concluded that Defendant ‘prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved,’ within the meaning of § 8505(1)(c). In the notarized Recognition of Debt, the parties agreed that the place of jurisdiction for all disputes arising in connection with or as a result of their agreement would be Frankfurt am Main. This forum selection clause would be meaningless unless it provides courts in Frankfurt am Main with authority to exercise personal jurisdiction over the parties.”

“Therefore, the court properly concluded that Defendant [had] impliedly agreed to be subject to the jurisdiction of the German courts. See Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315‑316 (1964) (noting [that] ‘parties to a contract may agree in advance to submit to the jurisdiction of a given court’); Union Mutual Stock Life Ins. Co. of Am. v. Beneficial Life Ins. Co., 774 F.2d 524, 527 (1st Cir. 1985) (holding that a party who agreed to Maine as the forum for arbitration impliedly consented to personal jurisdiction in Maine courts).”

“Third, § 8506(2) of the [UFMJRA] permits a court to recognize a foreign country judgment based on any jurisdictional basis that would be recognized under the forum’s internal law, including the forum’s long‑arm statute. See, e.g., CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 296 A.D.2d 81, 743 N.Y.S.2d 408, 420 (N. Y. App. Div. 2002) (holding that the ‘question is not whether the foreign court properly exercised jurisdiction under its own laws’ but whether personal jurisdiction was present ‘as understood in our jurisprudence’).”

“Here, there is no question that Maine’s long‑arm statute would authorize a court to exercise personal jurisdiction over a foreign individual who incurs a substantial amount of debt from doing business in Maine with a Maine corporation. See 14 M. R. S. § 704‑A(2)(A) (2007) (providing that a person submits himself to personal jurisdiction in Maine by transacting any business within the State); see also Interstate Food Processing Corp. v. Pellerito Foods, Inc., 622 A.2d 1189, 1192 (Me. 1993) (holding [that] long‑arm statute authorizes personal jurisdiction over a foreign defendant who has established a continuing business relationship with a resident of Maine). Therefore, the court did not err in determining that the German courts had authority to exercise personal jurisdiction over Defendant and properly rejected Defendant’s arguments to the contrary.”

“Defendant argues [that] the court [below] erred in recognizing the German judgments because Germany would not recognize a comparable judgment from Maine. Maine is one of the few states that have adopted a nonuniform amendment to the [UFMJRA] regarding reciprocity. In Maine, a ‘foreign country judgment need not be recognized’ if the foreign country ‘would not recognize a comparable judgment of this State.’ § 8505(2). Reciprocity is, therefore, not mandatory.”

“In contrast, Germany requires that the rendering court grant reciprocity to German judgments as a mandatory condition of recognizing a foreign country money judgment. Zivilprozessordnung [ZPO] [Code of Civil Procedure] § 328. Today, German courts read this requirement broadly and have assumed reciprocity even though the rendering state has not yet recognized a comparable German judgment or provided a guarantee that it intends to recognize German judgments in return. See Wolfgang Wurmnest, Recognition and Enforcement of U.S. Money Judgments in Germany, 23 Berkeley J. Int’l Law 175, 187 (2005); Dennis Campbell and Dharmendra Popat, Enforcing American Money Judgments in the United Kingdom and Germany, 18 S. Ill. L. J. 517, 546‑47 (1994).”

“German courts will recognize a foreign settlement or recognition of debt so long as it has been subjected to court approval. Wurmnest at 183. Therefore, German courts would likely recognize a comparable judgment from Maine, and the Superior Court did not err in rejecting Defendant’s argument to the contrary.”

“Defendant argues that the court erred in reaching its decision without holding an evidentiary hearing. Whether the Recognition and Enforcement Acts entitle a party opposing recognition to any procedural opportunities in which to raise grounds for nonrecognition of a foreign country judgment is an issue of first impression for this Court. It is a matter of statutory interpretation that we review de novo. See Diecidue, 2007 ME 137, 10, 931 A.2d at 1080. The main objective in statutory interpretation is to give effect to the Legislature’s intent. Arsenault v. Sec’y of State, 2006 ME 111,   11, 905 A.2d 285, 288. If a statute is silent or ambiguous, we look to the legislative history and other extraneous (sic) aids to assist us in interpreting the statute’s meaning. See Foley v. Verizon, 2007 ME 128,   10, 931 A.2d 1058, 1061.”

“We agree with those courts that have distinguished between the issues of recognition and enforcement of foreign country judgments. See, e.g., Guinness PLC v. Ward, 955 F.2d 875, 889 (4th Cir. 1992) (holding that questions of whether a foreign country judgment should be recognized pursuant to the [UFMJRA] ‘are distinct and separate inquiries from those concerning whether such a judgment, once recognized, is entitled to enforcement’); Pinilla v. Harza Eng’g Co., 324 Ill.App.3d 803, 257 Ill.Dec. 921, 755 N.E.2d 23, 26 (2001) (holding that the [UFMJRA] only provides the means to recognize, not the procedure to file or enforce foreign judgment). Before a foreign country judgment can be enforced, it must be recognized. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE U.S. § 481, cmt. b (1987) (providing in comment b, titled ‘[r]ecognition and enforcement distinguished[,]’ ‘The judgment of a foreign state may not be enforced unless it is entitled to recognition.’).”

“The [UFMJRA] does not expressly require an evidentiary hearing on the issue of recognition. However, because the [UFMJRA] lists grounds for nonrecognition, it implies that a judgment debtor, or other party with standing, should have some opportunity to argue that one or more of those grounds applies. Similarly, due process requires that such a party receive notice and an opportunity to be heard on the issue of recognition. See Chelsea C., supra at 105,   16, 884 A.2d at 102.”

“That opportunity to raise grounds for nonrecognition and to be heard on the issue, however, can be exercised by filing a motion contesting recognition, as Defendant did here. Therefore, the court did not err in concluding that neither the [UFMJRA] nor the requirements of due process demanded an evidentiary hearing.”

“Once Defendant filed his motion, whether to hold an evidentiary hearing on the issues he raised was within the discretion of the trial court. See M. R. Civ. P. 7(b)(7). In this case, Defendant did not raise any issues that necessitated an evidentiary hearing. Therefore, the court acted within the bounds of its discretion in ruling on the issue of nonrecognition without holding an evidentiary hearing. See M. R. Civ. P. 7(b)(7); see also Guardianship of K‑M, 2005 ME 8,   37, 866 A.2d 106, 117 (holding [that] an evidentiary hearing is not required when the documentary information is adequate).” [¶¶ 9‑28].

Citation: Genujo Lok Beteiligungs GmbH v. Zorn, 943 A.2d 573, 2008 ME 50 (2008).

POLITICAL QUESTION DOCTRINE

In dispute over interest on World War II reparations from Germany, Third Circuit finds that Joint Statement and 2000 Berlin Accords that provide for reparations fund are international political documents not enforceable contracts and do not confer private rights of action upon beneficiaries

The Berlin Accords came into being in July 2000 after intense negotiations to resolve long‑pending claims over Nazi‑era slave labor, forced labor, appropriations of personal property, and dishonored insurance policies. Germany and a consortium of German companies each agreed to contribute 5 billion German Marks to the Reparations Fund created by the Berlin Accords. The parties’ Joint Statement envisioned a collection schedule that would generate at least 100 million German Marks in interest. The parties, however, failed to transfer the funds as quickly as expected.

Several claimants, as third‑party beneficiaries, filed suit in New Jersey federal court to enforce the “interest” provision of the Joint Statement. Here, the Claimants argue that the defendant German companies “owe” interest on their payments to the reparations fund. The district court found the claims non‑justiciable and dismissed them.

On the first appeal, the Third Circuit reversed even though the claims did implicate foreign policy issues. On remand, the district court found that the Joint Statement is not a contract but a political document and thus does not confer a private right of action on the Claimants. The Claimants again appealed. The Third Circuit affirms, largely agreeing with the district court; it holds that the disputed interest provision in the Joint Statement did not create or confer a privately enforceable cause of action.

The appellate Court first recognizes the unique importance of the Berlin Accords. “‘July 17, 2000, was the occasion of one of the most remarkable diplomatic achievements since the end of World War II.’ ... It was on that day that eight sovereign nations, a consortium representing numerous German companies, an international organization devoted to Nazi‑era claims, and U.S. Plaintiffs’ attorneys together signed the Joint Statement of the Berlin Accords.

Appellants cannot reasonably dispute the significant political nature of the talks leading to the Accords. Granted, one objective was to settle then‑pending U.S. litigation between the Plaintiffs and the Defendant German companies, but we [must] weigh that private aspect of the resolution against the Berlin Accords’ political, diplomatic, and historical significance.”

“The creation of the Berlin Accords was more than a mere settlement; it was a profound

expiation by the Federal Republic of Germany and the German companies. Indeed, from the start of the negotiations, Deputy Secretary Eizenstat, the lead U.S. negotiator, ‘was determined that the responsible foreign government [i.e., Germany], not just private companies, would have to be directly involved and directly engaged through a senior official who would be [Eizenstat’s] counterpart.’”

“We recognize that the Joint Statement is not a formal treaty; nevertheless, it constitutes part of the understanding reached among sovereign nations and private parties. Negotiations occurred during plenary sessions comprising high‑level executives of foreign nations. The signatories of the Joint Statement itself include the representatives of eight different nations. Further, the Joint Statement has meaning only in the context of the entire Berlin Accords.”

“Indeed, the Joint Statement by itself is incomplete, as it talks of the Foundation, but understanding what the Foundation is requires resort to the Foundation Law. In sum, the Joint Statement appears to be a unique document, the objectives of which are to memorialize the efforts of the diplomatic talks resolving both political and legal issues. Thus, for at least these reasons, we agree with the district court that the law of international agreements provides the appropriate jurisprudential guidance in the analysis of whether the Joint Statement creates a private cause of action.” [Slip op. 4]

To determine whether an international agreement creates a private cause of action, the Court first looks at its text. A court’s role in this regard is limited to giving effect to the intent of the treaty parties. Here, the text of the Joint Statement and the entire Berlin Accords support the district court’s conclusion. The parties did not intend to create a private cause of action. The purpose of the Berlin Accords is to bring about a lawful peace.

Furthermore, in line with political documents, it refers to “participants,” not “parties,” who “declare” rather than “undertake.” This choice of words strongly suggests that the document neither creates, nor allows for, privately enforceable rights.

Citation: Gross v. The German Foundation Industrial Initiative, 549 F.3d 605 (3rd Cir. 2008).

SOVEREIGN IMMUNITY

In action by alleged victims of torture in Somalia, Fourth Circuit holds that FSIA does not immunize former government officials and thus individual torturer is not entitled to claim sovereign immunity

The Plaintiffs in the following case are Somalia natives who claim that government agents of the regime of Mohamed Siad Barre tortured and otherwise mistreated them. The Defendant is Mohamed Ali Samantar who took part in the socialist coup of General Mohamed Barre in 1969; later he became a high‑ranking government official and served as an army commander. He served as Somalia’s Minister of Defense from January 1980 to December 1986, and as Prime Minister from January 1987 to September 1990. In either capacity, he knew or should have known about the torture and human rights abuses, and tacitly approved them. The Barre regime collapsed in 1991, and Samantar ended up in Virginia where the Plaintiffs found him.

Plaintiffs sued in a Virginia federal court based on the Torture Victim Protection Act of 1991 (TVPA), Pub. L. 102‑256, 106 Stat. 73 (1992), and the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350. Samantar moved to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(6) because he is immune under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602‑1611. The district court agreed with Samantar and dismissed for lack of subject matter jurisdiction. The district court followed the majority view that the FSIA can apply to individuals, noting that the current Somalia government expressed its view that Samantar had taken the alleged actions in his official capacity.

The U.S. Court of Appeals for the Fourth Circuit reverses and remands. Since the FSIA does not apply to individuals like Defendant, it did not deprive the district court of jurisdiction as against Samantar.

The Plaintiffs do not claim that Samantar personally committed the atrocities. Instead, the perpetrators acted with the tacit approval and permission of the armed forces and commander Samantar. Defendant’s fundamental argument is that Congress did intend to enable individual foreign officials to claim sovereign immunity under the FSIA. Disagreeing, the court held that the FSIA applies to foreign states and their instrumentalities, not to individuals.

Since the FSIA does not mention individuals or natural persons, this is still an open question in the Fourth Circuit. The Court then analyzes whether Congress intended to confer sovereign immunity under the FSIA on an individual formerly acting within the scope of his authority. After reviewing Seventh Circuit precedent, the FSIA itself, and the House Committee Report on the FSIA, the Court concludes that the FSIA does not apply to individual foreign government agents like Samantar. Thus, the FSIA does not now apply to Samantar.

The Court then turns to the Plaintiff’s related argument, that Congress did not intend to shield former government agents from suit under the FSIA. Here, the Court agrees.

“In sum, we conclude that even if an individual foreign official could be an ‘agency or instrumentality under the FSIA,’ sovereign immunity would be available only if the individual were still an ‘agency or instrumentality’ at the time of suit. Dole Food Co. v. Patrickson, 538 U.S. 480 (2003) guides our resolution of this issue, regardless of whether the purported agency or instrumentality is a corporation owned by a foreign government or an individual foreign official; we see nothing in the statute or its underlying purpose to suggest otherwise. Samantar was certainly no longer a Somali government official at the time the plaintiffs brought this action and is therefore not entitled to immunity under the FSIA.”

“Samantar suggests, despite the adverse ruling on the question of FSIA immunity, that we ought to affirm the result on alternative grounds. Samantar contends that ... he is shielded from suit by a common law immunity doctrine such as head‑of‑state immunity.”

He also contends that Plaintiffs’ claims under the ATCA and the TVPA are time‑barred, and that Plaintiffs’ failure to exhaust their legal remedies in Somalia also precludes their suit. In view of its conclusion that it lacked jurisdiction, the district court did not reach these issues below. We conclude that the district court should address these questions in the first instance and therefore decline to address them now. “We conclude only that Samantar is not entitled to sovereign immunity under the FSIA; whether he can successfully invoke an immunity doctrine arising under pre‑FSIA common law is an open question which Samantar is free to pursue on remand, along with the aforementioned procedural questions.” [Slip op. 8]

Citation: Yousuf v. Samantar, 2009 WL 40942; No. 07‑1893 (4th Cir. 2009).

SOVEREIGN IMMUNITY

Sixth Circuit affirms dismissal of many but not all counts of class action against state of Holy See for failure to act upon alleged sexual abuse by U.S. clergy as having taken place outside U.S. or as not falling within exceptions of FSIA

In June 2004, alleged victims of sexual abuse by Roman Catholic clergy filed a class action in Kentucky federal court against the Holy See. Among the Plaintiffs is James O’Bryan who claimed to have been sexually abused by a Catholic priest in the 1920s, and who was allegedly acting within the authority granted by the Holy See. The Holy See is both a foreign state and an unincorporated association. It is also the central government of the Roman Catholic Church. In 1962, it issued a confidential policy to keep secret any reported instances of sexual abuse (the “1962 Policy”).

The U.S. intervened as amicus curiae and supported the legal immunities of the Holy See as a foreign state. The district court partially granted the Holy See’s motion to dismiss the claims due to lack of subject matter jurisdiction as the Holy See is immune on several claims under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602. Plaintiffs appealed, arguing that the FSIA does not immunize the Holy See from suit on the grounds alleged in their complaint, and the district court thus does have subject matter jurisdiction. The U.S. Court of Appeals for the Sixth Circuit affirms the district court.

As for proving immunity, “[t]he burden will remain on the foreign state to produce evidence in support of its claim of immunity. Thus, evidence must be produced to establish that a foreign state or one of its subdivisions, agencies or instrumentalities is the defendant in the suit and that the plaintiff’s claim relates to a public act of the foreign state — that is, an act not within the exceptions in §§ 1605‑1607. Once the foreign state has produced such prima facie evidence of immunity, the burden of going forward would shift to the plaintiff to produce evidence establishing that the foreign state is not entitled to immunity. The ultimate burden of proving immunity would rest with the foreign state.” [Slip op. 5]

“The district court correctly applied the FSIA’s burden shifting process. It first determined that the Holy See was a foreign state and thus eligible for immunity from suit under the FSIA. ... Having done so, it considered the allegations in Plaintiffs’ complaint that a number of exceptions to FSIA immunity applied and concluded that the tortious act exception did in fact apply. ... As the district court correctly noted, the Holy See could still retain immunity if it could ‘prove that the exceptions do not apply.’ ...Such proof would presumably amount to a ‘factual attack’ pursuant to Rule 12(b)(1).”

The Court then considers the various exceptions to sovereign immunity under the FSIA. The Commercial Activity exceptions 28 U.S.C. § 1605(a)(2) do not apply. In Saudi Arabia v. Nelson, 507 U.S. 349, 363 (1993), the Supreme Court instructed lower courts to look at the true essence of the lawsuit and whether it is really commercial in nature. Here, even though property damage is alleged, the lawsuit revolves around the tort of sexual abuse.

The Tortious Act exception, 28 U.S.C. § 1605(a)(5) provides for subject matter jurisdiction over a foreign sovereign if a tortious act in the U.S., is committed by that foreign state or its official, acting within the scope of the tortfeasor’s employment. However, if the tortious act was (1) based upon the exercise or performance of a discretionary function, or (2) arose from misrepresentation or deceit, then the sovereign retains its immunity. In this area, the courts generally apply state substantive law.

“Looking first to the fourth requirement for the application of the tortious act exception, the Kentucky Supreme Court’s holding in [Osborne v. Payne, 31 S.W.3d 911, 915 (Ky. 2000)] leads to the inescapable conclusion that the alleged acts of sexual abuse were not done while the alleged tortfeasors were acting within the scope of their employment. Thus, the tortious act exception to the FSIA’s grant of immunity cannot apply to permit suit against the Holy See for sexual abuse by its clergy, even if the other requirements for its application are met.”

“Furthermore, as per the FSIA’s explicit terms, in order for the tortious act exception to apply, the tortious acts in question must have occurred in the United States. Therefore, any portion of Plaintiffs’ claims that relies upon acts committed by the Holy See abroad cannot survive. For example, the tortious act exception to the FSIA’s grant of immunity would not include any theory of liability premised on the Holy See’s own negligent supervision because such alleged acts presumably occurred abroad; moreover, a direct claim leveled against the Holy See for promulgating the 1962 Policy would not fall within the tortious act exception because it too presumably occurred abroad. In turn, Plaintiffs cannot pursue claims based upon the alleged sexual abuse of priests or based upon the acts of the Holy See that occurred abroad. ...”

“These conclusions are not wholly dispositive, however, of the claims against the Holy See. As noted before, Plaintiffs’ claims are not based solely on the conduct of the Holy See itself or the allegedly abusive conduct of priests. All of Plaintiffs’ claims also advance theories of liability premised on the conduct of Holy See employees in the United States engaged in the supervision of the allegedly abusive priests. These portions of Plaintiffs’ claims meet the four requirements for application of the tortious act exception.”

“First, and contrary to the Holy See’s protestations, Plaintiffs have pled both that the relevant archbishops, bishops and other Holy See personnel had knowledge of the alleged sexual abuse of priests and that they failed to act on that knowledge. In doing so, it would seem that the complaint also pleads that conduct of the archbishops, bishops and other Holy See personnel were a substantial factor in causing Plaintiffs’ damages, satisfying Kentucky’s causation requirements.”

“Also, for the conduct of bishops and archbishops and other Holy See personnel to serve as a basis for jurisdiction under the Tortious Act exception, these bishops, archbishops and Holy See personnel must have been employees of the Holy See. As noted above, under Kentucky law, this inquiry focuses on the degree of control exercised by the employer over the individual or individuals in question. In their complaint, Plaintiffs allege facts that demonstrate that the Holy See exercised a significant degree of control over the bishops and archbishops accused of having committed the tortious acts in question. Taking these allegations as true, Plaintiffs have sufficiently pled the employee element of the tortious activity exception. ...”

“However, although the four requirements are met for these claims, we must still consider whether either of the two exceptions to the Tortious Act exception applies and prevents its application: (1) the discretionary‑function exception and (2) the arising‑out‑of‑misrepresentation‑or‑deceit exception.”

“According to the allegations in Plaintiffs’ complaint, theories of liability premised upon the supervision of the allegedly abusive clergy do not implicate the discretionary function exception to the Tortious Act exception because the terms of the supervision were not discretionary. According to the complaint, the 1962 Policy ‘impose[d] the highest level of secrecy on the handling of clergy sexual abuse matters.’ Plaintiffs contend that this required secrecy prohibited Holy See personnel from, among other things, reporting childhood sexual abuse to government authorities. ... Thus, following the 1962 Policy cannot, on the pleadings in Plaintiffs’ complaint, be deemed discretionary.” [Slip op. 11‑12]

Finally, the Court applies further general conclusions to the Plaintiffs’ remaining claims: (1) Violation of Customary International Law does not survive against the Holy See as far as the promulgation is concerned, which occurred outside the U.S. It does survive to the extent that employees violated international laws through their tortious supervisory conduct over the allegedly abusive clergy; (2) Negligence claims do not survive, as negligent hiring would be a discretionary function, and any alleged negligence of the Holy See itself would have taken place outside the U.S.; (3) Breach of Fiduciary [Obligations], the claim of a “duty to warn” about perpetrators, does not survive because such tortious conduct would have occurred abroad; (4) Infliction of emotional distress does not survive because the abusive acts of the priests were not within the scope of their employment. It might survive to the extent that employees violated international law through tortious supervisory conduct over allegedly abusive clergy.

Citation: O’Bryan v. Holy See, 549 F.3d 431 (6th Cir. 2008).

TERRORISM (FINANCIAL SUPPORT OF)

Seventh Circuit sitting en banc reverses judgments in long‑pending case over killing of U.S.‑Israeli teenager by Hamas gunmen and outlines requirements for “secondary” liability under 18 U.S.C. §2333 for financially supporting terrorist organizations

In the following case, the Seventh Circuit revisits the long‑pending case of the killing of U.S.‑Israeli teenager David Boim, whom alleged Hamas members shot in 1996 near Jerusalem. Four years later, his parents sued Muhammad Salah, the Holy Land Foundation for Relief and Development, the American Muslim Society, the Quranic Literacy Institute, and others.

The Boims allege that the Defendants provided financial support to Hamas, and thereby contributed to David’s murder. 18 U.S.C. § 2333(a) provides that “any national of the United States injured in his or her person, property or business by an act of international terrorism, or his or her estate, survivors or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”

In 2001, the Illinois district court denied the Defendants’ motion to dismiss for failure to state a claim. Eventually, a jury awarded $52 million in damages against the Defendants. The court trebled the damages and added attorney’s fees. The Defendants appealed, and the Seventh Circuit directed the district court to redetermine liability. .. See 2007 International Law Update 233. The Plaintiffs petitioned for a rehearing en banc, which the Court granted to determine the elements under 18 U.S.C. § 2333 as applied to financial supporters of terrorism.

The en banc Court affirms several rulings below 7 to 3 except that (1) it reverses the judgment against Salah with instructions to enter judgment in his favor, (2) it reverses the judgment against Holy Land and remands for further proceedings, and (3) it orders the re‑examination of the award of attorney’s fees.

The Court first addresses whether the Statute applies to this case. Section 2333 does not mention “secondary” liability. Thus, it could be presumed that there is no such secondary liability for aiders and abettors. While Congress does have the power to impose liability for acts that occur outside the U.S. but have effects within the U.S., it did not do so in this case. Thus, to read secondary liability into § 2333 would unduly enlarge the extraterritorial jurisdiction of federal courts. In this case, however, it is possible to create secondary liability through a chain of incorporations into other laws, as the Panel determined in its first opinion.

What must a Plaintiff plead and prove to recover from a donor under § 2333? First of all, the donor must have contributed during the relevant time. Here, Salah was in an Israeli jail from 1993 until 1997 and could not have provided material support to Hamas during the relevant time. Thus, the Court has to reverse the judgment against Salah. Second, the donor must have known that terrorists would use the support or money to commit murders, or launch violent attacks, or similar terrorist activities. Here, for liability under § 2333, the Court must take into account the knowledge that the donor probably had when he or she had provided the material support.

The Court applies tort principles to analyze the tort liability for providers of material support to terrorism. Since Hamas engages in violence as declared tactics of the organization, anyone who provides material support to it, knowing its character, is punishable under § 2333, as long as he/she is within the statutory incorporations that create secondary liability.

“Nor should donors to terrorism be able to escape liability because terrorists and their supporters launder donations through a chain of intermediate organizations. Donor A gives to innocent‑appearing organization B which gives to innocent‑appearing organization C which gives to Hamas. As long as A either knows, or is reckless in failing to discover, that donations to B end up with Hamas, A is liable.”

“Equally important, however, if this knowledge requirement is not satisfied, the donor is not liable. And as the temporal chain lengthens, the likelihood that a donor has or should know of the donee’s connection to terrorism shrinks. But to set the knowledge and causal requirement higher than we have done in this opinion would be to invite money laundering, the proliferation of affiliated organizations, and two‑track terrorism (killing plus welfare). Donor liability would be eviscerated, and the statute would be a dead letter.” [Slip op. 10‑11]

Judge Rovner, joined by Judge Williams, concurs in part and dissents in part. The judge finds that the majority virtually eliminated the basic tort requirement that causation be proven. The Panel should have required the Plaintiffs to present evidence of causation and allow the factfinder to determine whether causation has been shown. Another flaw is that it treats all financial support for terrorism, whether it is money for a terrorist organization itself, to a charitable entity controlled by that organization, or to an intermediary organization, and regardless of what that money is actually used for.

Judge Wood also concurs in part and dissents in part, and would remand the entire case for further proceedings. “I believe that the following is a fair summary of the formal requirements that the en banc majority has announced for proving a case under § 2333:”

“1. Act requirement: the defendant must have provided material assistance, in the form of money or other acts, directly or indirectly, to an organization that commits terrorist acts.”

“2. State of mind requirement: the defendant must either know that the donee organization (or the ultimate recipient of the assistance) engages in such acts, or the defendant must be deliberately indifferent to whether or not it does so.”

“3. Causation: there is no requirement of showing classic “but‑for” causation, nor, apparently, is there even a requirement of showing that the defendant’s action would have been sufficient to support the primary actor’s unlawful activities or any limitation on remoteness of liability.”

“There is little to criticize in the first of these criteria, as an abstract matter. The second may also pass muster, again as an abstract matter. For both of these, my problem with the en banc majority’s opinion lies more in the way that they are applied to these facts, as I explain further below, than in their formal scope. With respect to the third requirement, there is both a theoretical problem and a problem with the application ...” [Slip op. 23]

The Panel is ill‑advised to exempt a plaintiff suing under Section 2333 on a “material assistance” theory from showing causation, because it appears to eliminate the need for showing “proximate cause.”

Citation: Boim v. Holy Land Foundation for Relief and Development,549 F.3d 685 (7th Cir. 2008).

TORTS (NEGLIGENT)

Australian Court rules, in case where Plaintiff’s eye injured by flying golf ball, that U.S. and U. K. golf rules did not, under circumstances, require warning shout to other golfers either before or after Defendant took his shot

During an Australian golf club competition, a ball driven by Defendant John Trude injured the eye of the Plaintiff, Dr. Earl John Pollard. At trial, Plaintiff failed to establish liability. While the notice of appeal contains many grounds, in essence the principal attack was on the trial judge’s conclusions that Defendant’s duty of care to Plaintiff did not oblige him to give a warning before he played his shot and it did not oblige him to shout “Fore” after he had played it; that Defendant had discharged any obligation to warn after playing the shot by shouting of a general warning, “Watch out”; and that neither a warning before the shot was taken nor a cry of “Fore” after it would have prevented Plaintiff’s injury.

The other golfers in the group in which Defendant and Plaintiff were playing were Messrs Wade and Walker. All four were competent golfers. When the ball injured Plaintiff, the group was at the second hole on a particular course. The distance between tee and green was 390 metres. A grove of melaleuca trees lined the left hand side of the fairway. Plaintiff was the first of the group to take his second shot. He hit his ball into the stand of melaleucas and went to look for it. His playing companions were behind him on the fairway.

Messrs. Wade and Walker took their second shots uneventfully. As he approached to take his second shot, Defendant’s ball lay at a point about 80 metres behind Plaintiff, slightly to the left of the middle of the fairway. Defendant said he had to wait a few minutes for people ahead on the green to clear. While he was waiting, he noticed Plaintiff ahead to the left standing in a clearing. Before actually making the shot, Defendant looked again, and saw that Plaintiff was no longer in sight. Defendant assumed that he “had gotten behind the trees”.

Defendant said that he was aiming to hit the ball to the right side of the green in order to keep clear of the trees projecting into the left hand side of the fairway. The ball traveled more to the left, however, than he had intended, and rose about 10 metres to enter the upper part of a tree at the edge of the fairway. He heard a noise consistent with its hitting a branch. As the ball went into the tree, Defendant called out “Watch it, Errol” or “Watch out, Errol”. His Honor found that Defendant intended the words as a warning.

Plaintiff’s account was that his ball had rolled through the growth of trees into a clearing just beyond it. When he found it, he moved behind it to get aligned to the green and then moved into position to take his next shot once Defendant had played his second shot. Plaintiff expected, from his knowledge of Defendant’s capabilities, that the latter would hit the ball all the way to the green. He realized that Defendant was waiting for another group to clear the green in order to take his shot. Once he saw the green clear, he assumed that Defendant would hit his ball within a very short time. As he stood waiting, facing ahead, Plaintiff heard a call, “Look out, Errol”. As he turned in the direction from which the call had come, a golf ball hit him on the edge of his right eye‑socket.

Various current and former office‑holders of the golf club testified as to club practices with respect to warnings as did Messrs. Wade and Walker. The net effect of their evidence was that it was a common practice for members of the club to shout “Fore” if they hit a ball in the direction of another player. Players would respond to such a call by turning away from the direction of play, bending over and covering their heads. On the other hand, one of the witnesses said that he had seen some golfers simply turn around and wonder where the call came from. None of those witnesses referred to any practice of calling a warning before hitting a shot.

Defendant did not testify about the general practice other than to say that “Fore” was the only warning call. If he heard such a call from close by and could tell that it was aimed at him, he would assumed a protective crouch and cover his head. Plaintiff said that he expected that other players in his group who were behind him would warn him before they took their shots. That would give him a chance either to take cover behind a large tree or to keep an eye on the ball as it was struck and to take evasive action if necessary. “Fore” was the customary call to warn that a ball was traveling “into the vicinity” of other players.

Plaintiff said he had seen other players react to a shout of “Fore” by turning away from the source of the sound, ducking, and protecting their heads. He claimed that had never been in a situation where someone had shouted “Fore” when a ball was coming from behind him. In his experience, there had been shouts of “Fore” from players on another fairway whose direction of play was toward him and not behind him. In that case, there was time to note the flight of the ball and to judge whether it was likely to cause him any danger.

The parties introduced into evidence the rules of the United States Golf Association (USGA) as well as the “Rules of Golf” approved by St. Andrews in the U. K. Both of them included the following rule: “If a player plays a ball in a direction where there is a danger of hitting someone, he should immediately shout a warning. The traditional word of warning in such situations is ‘fore’”

The judge below rejected Defendant’s submission that the risk of injury to Plaintiff was so “insignificant” as, by virtue of § 9 of the Civil Liability Act 2003 (Qld), not to require any warning. The risk was, his Honor concluded, not great, but it was real and above the threshold designated by “not insignificant’”. Invited to rate his own capacities, Defendant had said there was a 20% chance that any given shot he hit would go astray. If the ball did hit the trees, however, it could rebound unpredictable in any direction.

Under the above circumstances, his Honor found that a warning was not necessary. The ball was on the left of the fairway and Defendant had aimed his shot to the right side of the green. Defendant was a “most proficient golfer” who would be likely to hit the ball in his intended direction. The trajectory of the ball, if struck properly and as Defendant intended, would take it “well above” and “well to the right of” Plaintiff. Plaintiff was in a grove of trees in which he could protect himself from any stray shot. When Defendant hit the ball, Plaintiff was out of sight; so Defendant thought that he had moved behind a tree. On this evidence, the common practice among competent golfers was not to give a warning to a player ahead before striking a ball. The United States and United Kingdom rules did not mandate such a warning. The only witness who suggested any practice of giving a prior warning was Plaintiff himself. The learned judge discounted his opinion as expressed with the benefit of hindsight and as possibly colored by Plaintiff’s interest in the outcome of his lawsuit.

The most meaningful aspect of the matter was that Plaintiff was expecting that Defendant would take the shot and was waiting for him to do so. Consequently, his Honor found, a warning from Defendant that he was about to take the shot would not have transmitted any information to Plaintiff which he did not already possess; thus, no warning was necessary.

In any event, the judge also pointed out that § 15 of the Civil Liability Act stipulated that a person has no duty to warn of an “obvious risk”. Section 13(1) defines that term as : “an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.” As § 13(3) further explains it: “A risk of something occurring can be an obvious risk even though it has a low probability of occurring.”

His Honor found that the risk in this case of Defendant’s ball striking the Plaintiff, although small, was an obvious one. That was another reason for concluding that failure to give a warning did not amount to a breach of duty. The court entered judgment for the Defendant. Plaintiff appealed. In a December 23, 2008 opinion, the Court of Appeal of the Supreme Court of Queensland affirms the judgment below.

“The Plaintiff complained that the learned judge’s conclusion that no warning was required was the product of a series of erroneous findings: that Defendant was the best golfer in the group; that the trees provided protection to Plaintiff (when in fact they exposed him to extra risk if the ball flew into them); that the intended line of Defendant’s stroke would take the ball well to the right of Plaintiff; and that Plaintiff had, at least on Defendant’s observation, taken shelter behind a tree.”

“The first of those complaints, in more detail, was that the trial judge had wrongly described Defendant, who had a handicap of nine or ten, as the best golfer of the four, when Walker had a better handicap of eight. It was suggested that that evidenced a misconception of Defendant’s prowess. I do not think that the mistake, if such it was, had any bearing. His Honour’s point was that Defendant was a competent player; his actual ranking within the group, whether it was first or second, was irrelevant.”

“In relation to the second of the findings said to be erroneous, the learned judge noted that a number of the trees were shown in the photograph to be of sufficient size for an adult male to conceal himself behind them. An examination of the photographs supports that view. It seems to me a matter of common sense that the trees afforded some protection to Plaintiff. While there existed some risk of a ball ricocheting from a trunk, in general terms, he was at considerably less risk of harm from a misdirected ball than he would have been in the open.”

“In relation to the third finding, it was said that the learned judge should have found that the line where Defendant was going to hit his ball was, in fact, close to the edge of the trees, not well to the right of Plaintiff. That submission seems to have been largely based on an argument that his Honour’s finding as to the position of Defendant’s ball (slightly to the left of the middle of the fairway) did not put it sufficiently far to the left, contrary to some of the evidence. But the trial judge’s finding was based on Plaintiff’s marking of Defendant’s position on the tendered image, made within 12 months of the accident. Not surprisingly, it was accepted by his Honour as likely to be the most reliable recollection; it also seems to have been consistent with Defendant’s recall. That finding was properly made.”

“Given that Defendant’s ball was only slightly to the left of the middle of the fairway, it was to be expected that aiming for the right of the green, he would miss the trees on its left by some considerable distance. In any case, Plaintiff had put his own position some way into the trees both in his marking of the aerial image and in a photograph taken later, which showed his approximate position; and he said in cross‑examination he was some eight metres in from the very edge of the fairway. Even if Defendant were starting from a position further left on the green, if he had succeeded in his intention to miss the trees, even by the slimmest of margins, it followed that his ball’s line of travel could properly be described as well to Plaintiff’s right.”

“The last complaint of the learned judge’s factual findings in this regard related to his acceptance of Defendant’s evidence that he looked to see whether Plaintiff was in front of him ‘out in the open’ and did not see him, which must have been because he was obscured by a tree. The submission was that that could not be so. At the time Defendant saw Plaintiff, he was standing, not moving, in a clearing in the trees. It followed that he must have by then found his ball. His Honour’s finding that Plaintiff intended to remain in the vicinity of his ball while Defendant took his second shot, and did so, was inconsistent with his acceptance of Defendant’s evidence that, when he looked a second time towards Plaintiff, he had disappeared from the clearing, leaving him to assume he had gone behind the trees.”

“But Plaintiff’s evidence was that, when he found his ball, he moved behind it to get a line to the green and then moved back into position to take his shot. It is entirely possible that when Defendant first saw him he was standing assessing his line to the green, and that when he moved, albeit marginally, to take his position for the shot, he moved out of Defendant’s line of sight. The trial judge’s acceptance of the evidence of both men did not entail any inconsistency.”

“The next submission for Plaintiff was that the trial judge erred in his approach to deciding whether a pre‑shot warning was required. It was said that his Honour decided that such a warning was not required purely on the basis of his resolution of a conflict in the evidence. He had rejected Plaintiff’s evidence that a warning was to be expected from a player behind about to play his shot and concluded, on the basis of what other witnesses had said, that there was no evidence of any such common practice. In that process he had failed to ask the critical question: what a reasonable person in Defendant’s position should have done.”

“But the finding that there was no common practice of giving a warning in such circumstances was merely one of a number of matters which led his Honour to the conclusion that a reasonable person would not have considered it necessary to give a warning. The most significant of those, on his Honour’s view, was that Plaintiff knew that Defendant was about to take his second shot. That was a cogent factor, and, taken with the others he identified, amply warranted his finding that Defendant’s failure to give a warning before hitting his shot was not negligent.” [¶¶ 22‑30].

Citation: Pollard v. Trude, 2008 Q.C.A. 421; 2008 WL 5431366 (Q.C.A. Aust.).

Federal Court awards significant damages against North Korea for mistreating crew of U.S.S. Pueblo. On December 31, 2008, a federal district judge in D.C. awarded a default judgment of more than $65 million to several U.S. Navy men whom North Korean authorities had captured and tortured after it had seized the U.S. intelligence‑gathering ship U.S.S. Pueblo in January 1968 during the Cold War. The Plaintiffs were William Thomas Massie, Donald Raymond McClarren, Dunnie Richard Tuck and the estate of Cdr. Lloyd Bucher (the former commanding officer) . North Korea claimed the ship had been inside its coastal zone while the U.S. Navy contended it lay in international waters. One of the U.S. ship’s 83 crew members was killed and 10 others were wounded. The North Koreans released the crew members after 11 months of captivity. Some of the torture described to the Court included “severe physical beatings with karate blows, broom handles, belt buckles, boards and chairs, along with punches with rifle butts and whatever else that was handy.” The court found that Plaintiffs Massie, Tuck, and McClarren suffered grave physical and mental harm over the past 39 years and will probably continue to do so for the rest of their lives. Cmdr. Bucher suffered such effects until he died in 2004. Plaintiffs Massie, McClarren and Tuck each received $16.7 million. Cdr. Bucher’s estate received $14.3 million and his wife, Rose, $1.25 million. The ship is still in North Korea’s possession, being the only active‑duty U.S. warship still in the hands of a foreign power. The judge pointed out that, in 1996, Congress had abolished sovereign immunity from suit for foreign states which the State Department has officially designated, such as North Korea, as state sponsors of terrorism. Citation: Associated Press (online), Washington, D.C., Thursday, December 31, 2008 at 13:25:24 GMT (byline of Jesse J. Holland, AP writer). For citation, see Massie v. North Korea,2008 WL 5423028 (D.D.C. 12/30/08).