Jurisdiction Commons^™

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Case Digest ================

1. Admiralty

Provisions of Carriage of Goods by Sea Act Incorporated by Reference in Bill of Lading are to be Given Effect Consistent with other Bill of Lading and Tariff Provisions

Voyage Charter Extended to Cover Contract Setting Termination Date in Order to Avoid "Secret" Maritime Liens

2. International Patent Regulation

In a Patentee's Dealing with Licensees, the Policies Underlying the Patent System do not Override those of the Sherman Act

3. Jurisdiction and Procedure

Foreign Sovereign Immunities Act § 1611 operates when Treaty Waiver does not specifically include a Certain Type of Property

Transactions involving Options …

Reciprocal Influence Of British And United States Law, Clark C. Siewert

Vanderbilt Journal of Transnational Law

The influence of British and United States courts on each other's statutory and decisional law has been primarily indirect. Although few fundamental differences exist between the legal principles, methods, and concepts of the two major common law jurisdictions, the courts in both countries have resisted the use of the other's case law. This is unfortunate because a United States or an English case might provide a fresh perspective for a domestic court that otherwise feels bound by a previous line of reasoning. Since cases from foreign jurisdictions are most relevant in dealing with a question of international or transnational law, …

Recent Decisions, Thomas L. Raleigh, Iii, Jay W. Mccann

Vanderbilt Journal of Transnational Law

Jurisdiction--Application of Doctrine of Forum Non Conveniens Justified when Defendant Consents to Jurisdiction of a Non-United States Forum

Thomas L. Raleigh, III

Securities Regulation--Extraterritorial Application of Antifraud Provisions--Allegation of Deception of Foreign Fundholders by Foreign Directors Insufficient to Invoke Jurisdiction of the Securities Laws

Jay W. McCann

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY-- An Owner Must Arbitrate a Claim that a Parent Company Assigned to its Subsidiary when the Owner Contemplated such Arbitration in a Contract with the Subsidiary

2. DIPLOMATIC IMMUNITY-- United Nations Employees not Accorded Diplomatic Immunity in Cases of Espionage; Recapture of Stolen Classified Information Diplomat does not Violate Diplomatic Immunity

3. EXTRADITION-- United States Extradition Treaty Applicable to all Enumerated Crimes regardless of the Sentence Imposed

4. INTERNATIONAL PATENT REGULATION-- Motion Requesting Benefit of Foreign Patent in Patent Interference Action is Proper without Supporting Statement of Reasons when Opponent can Fairly Respond

5. JURISDICTION AND PROCEDURE-- Dismissal …

The Applicability Of Shaffer To The Quasi-In-Rem Attachment Of Foreigners' Assets, Steven H. Becker

Vanderbilt Journal of Transnational Law

This Note proposes to examine the nature of United States contacts availed of by foreign defendants, and to determine the impact of Shaffer on the potential assertion of quasi-in-rem jurisdiction based on those contacts. It is instructive to consider quasi-in-rem jurisdiction's relation to four possible scenarios involving a foreign defendant: (1) the foreign defendant who owns real estate in this country; or (2) maintains deposits in United States banks; or (3) invests in securities that are registered locally; or (4) extends credit to United States companies or individuals on a regular basis. This Note ultimately concludes that in light of …

Recent Decisions, James A. Walker, Charles A. Daughtrey, A. Dale Wilson

Vanderbilt Journal of Transnational Law

ADMINISTRATIVE LAW--PRESIDENT'S ATTEMPT UNDER EXECUTIVE ORDER TO REMOVE PRESIDENTIALLY APPROVED CAB ORDER FROM SCOPE OF THE WATERMAN DOCTRINE

James A. Walker

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EUROPEAN COMMUNITIES--TRADEMARK RIGHTS--COURT OF JUSTICE PREVENTS THIRD PARTY FROM AFFIXING TRADEMARK TO GOODS SOLD UNDER ANOTHER MARK

Charles Anthony Daughtrey

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THE TREATY POWER--THE PROPERTY CLAUSE PERMITS THE TRANSFER OF UNITED STATES PROPERTY THROUGH SELF-EXECUTING TREATY

A. Dale Wilson

Recent Decisions, Lloyd F. Leroy, Shelley B. O'Neill, Thomas E. Settles

Vanderbilt Journal of Transnational Law

Commodity Futures Trading Commission Act of 1974--Commodity Futures Trading Commission Regulating that Restrict Dealers in Foreign Options More Severely than Dealers in Futures Contracts are not Arbitrary or Capricious

Lloyd F. LeRoy

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Customs--Countervailing Duties--Rebates of Nonexcessive Excise Taxes Do Not Constitute a Bounty Subject to Countervailing Duties

Shelley B. O'Neill

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Jurisdiction--Exercise of in REM and Quasi in Rem Jurisdiction Justified only Where International Shoe Minimum Contacts Standard is Satisfied

Thomas E. Settles

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SECURITIES REGULATION--Extraterritorial Application of the Anti-fraud Provisions--Federal Securities Laws Grant Jurisdiction When There is Some Activity in Furtherance of a Fraudulent Scheme Committed Within the …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY LIABILITY LIMITATION IN SHIPPING CONTRACT SUBJECT TO CARRIAGE OF GOODS BY SEA ACT IS NULL AND VOID WHERE CONTRACT PROVIDES SHIPPER No OPPORTUNITY TO DECLARE CARGO'S HIGHER VALUE PRIOR TO SHIPMENT

2. ALIENS' RIGHTS STATE DENIAL OF RESIDENT ALIEN'S APPLICATION FOR MINISTERIAL OFFICE ON SOLE GROUND OF ALIENAGE VIOLATES FOURTEENTH AMENDMENT EQUAL PROTECTION CLAUSE

3. CUSTOMS DUTIES ACTUAL OWNER OF IMPORTED MERCHANDISE ENTERED BY A CUSTOM-HOUSE BROKER HAS STANDING UNDER 19 U.S.C. § 1514(b)(1) TO PROTEST CLASSIFICATION OF THE MERCHANDISE

4. JURISDICTION AND PROCEDURE QUASI IN REM JURISDICTION OVER FOREIGN CORPORATION CAN BE BASED ON A PRIOR ATTACHMENT …

Recent Decisions, Richard F. Cook, Jr., Edward C. Brewer, Iii, Daniel R. Wofsey, Sue D. Sheridan, Steven M. Morgan

Vanderbilt Journal of Transnational Law

Recent Decisions

Admiralty--Time Charter--Shipowner's Contractual Right to Withdraw Services of Vessel upon Charterer's Failure to Provide Punctual Payment is not Extinguished by Late Tender of Payment

Richard F. Cook, Jr.

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Antitrust--Treble Damages--A Foreign Sovereign is a "Person" entitled to Sue under Section 4 of the Clayton Act

Edward Cage Brewer, III

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Customs search of International Mail--A Customs Search of International Mail is Authorized by 19 C.F.R. § 145.2 and Incorporates the Reasonable Cause to Suspect Requirement of 19 U.S.C. § 482

Daniel R. Wofsey

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Jurisdiction and Procedure--Discovery--Party unable to comply with Discovery Order which Contravenes Foreign Nondisclosure …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

Code and Custom in a Thai Provincial Court

By David M. Engel

Tuscon, Arizona: The University of Arizona Press, 1978. Pp. 230. $4.95.

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Human Rights and Development: Report of a Seminar on Human Rights and Their Promotion in the Caribbean

By the International Commission of Jurists and The Organization of Commonwealth Bar Associations

Bridgetown, Barbados, W.I.: The Cedar Press, 1978. Pp. 190.

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Iceburg Utilization: Proceedings of the First International Conference Held at Ames, Iowa

Edited by A.A. Husseiny

New York, New York: Pergamon Press, 1978. Pp. 760. $35.00.

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. Admiralty A State has Standing to Sue to Recover the Cost of Replacing Natural Resources Destroyed by Pollution

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2. Aliens' Rights Executive Order Barring Lawfully Admitted Resident Aliens from Federal Civil Service is Valid

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3. Constitutional Law Scope of Lacey Act Limited to Foreign Laws Designed to Protect Wildlife

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4. European Economic Community Restrictive Resale Provisions, Discriminating Pricing Policies, and Refusals to Deal by Corporation with a Dominant Position in a Substantial Part of EEC Violates Article 86 of the EEC Treaty

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5. International Travel Statute Suspending Social Security Income Benefits for Recipient Temporarily Out …

Recent Decisions, Aubrey W. Bogle, Iii, Edward H. Lueckenhoff, Clark C. Siewert, Joe B. Foltz, Michael P. Peck

Vanderbilt Journal of Transnational Law

Admiralty--Requirement of Minimum Contacts for Jurisdiction to Attach Property of Nonresident Defendant is not Applicable to Maritime Attachment

Aubrey W. Bogle, III

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Buy American Statutes--New Jersey--Constitutionality of Buy American Statute Upheld by State Supreme Court

Edward H. Lueckenhoff

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Citizenship--The Fourteenth Amendment requires Proof by Clear, Convincing, and Unequivocal Evidence that Relinquishment of United States Citizenship is Voluntary

Clark C. Siewert

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Extradition--Double Jeopardy Provision of Extradition Treaty Applies even Where Crime Committed before Ratification

Michael P. Peck

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Sovereign Immunity--Service of Process in the United States on a Permanent Mission to the United Nations must Conform to the …

Nlrb Jurisdiction Over Foreign Governments, Dan T. Carter

Vanderbilt Journal of Transnational Law

In State Bank of India the National Labor Relations Board reversed its discretionary abstention policy and asserted jurisdiction over the American operations of a foreign government employer. Previously the Board had declined to assert jurisdiction over these employers out of deference to foreign sovereigns, and because of the Supreme Court's admonition against extraterritorial application of the National Labor Relations Act in the absence of "an affirmative intention of the Congress clearly expressed." The Board now believes that neither public policy nor the policies of the NLRA can justify abstention. Although the Board has deemed the recently enacted Foreign Sovereign Immunities …

Jurisdiction Over Palestine--An Analysis Of The Conflicting Arab-Israeli Claims Of Legal Title, Peter A. Schuller

Vanderbilt Journal of Transnational Law

The recent controversy over the establishment of Israeli settlements in occupied territory has resurrected a thirty year dispute over territorial sovereignty in the area referred to before 1948 as Palestine...

This note will attempt to analyze the conflicting legal claims to Palestine under a standard likely to be applied by an international judicial tribunal operating in conjunction with or under the auspices of the International Court of Justice. The analysis will be concerned not with the political or quasi-legal claims of the respective parties, examples of which are Israeli historical claims based upon decades of alleged persecution and Arab claims …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Offshore Sandblaster not Permanently Assigned to his Vessel is not a Seaman Under the Jones Act

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Freight for a Partial Shipment of Cargo which has been Loaded Aboard a Vessel is Subject to Maritime Garnishment

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Compensation Awarded to Shipbuilding Employee Injured at Shipyard during Maintenance Work on Previously Unused Crane

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY

ILA Collective Bargaining Agreements Affecting Containerized Cargo Held Invalid as "Work Acquisition" Measures

Damages from Successive, Independent Injuries may not be Cumulated to Determine "Constructive Total Loss" where Vessel has been restored to Seaworthy Condition between Injuries

Shipowner is Entitled to Lost Profits Measured by the Prevailing Market Rate During Off-Hire Extension Period

2. CUSTOMS

Trading with the Enemy Act Authorizes Treasury Regulations Prohibiting Import of Cuban Assets when the United States Interest Arises after the Effective Date of the Regulations

Standing to Protest Imposition of Dumping Duties Denied where Plaintiff unable to prove by Substantial and Convincing …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY

"CONTACTS" TEST BASED ON 99 PERCENT AMERICAN OWNERSHIP OF A FOREIGN CORPORATION WILL NOT BE APPLIED TO CIRCUMVENT THE RECIPROCITY PROVISION OF THE PUBLIC VESSELS ACT

SEARCH OF A U.S. VESSEL ON THE HIGH SEAS PURSUANT TO STATUTE AUTHORIZING SAFETY INSPECTIONS BY THE U.S. COAST GUARD MAY NOT BE ASSISTED BY AGENTS OF OTHER FEDERAL AGENCIES

LAND-BASED TORT PRINCIPLES OF NEGLIGENCE APPLY TO LIABILITY OF VESSELS FOR INJURIES TO LONGSHOREMEN RATHER THAN PRINCIPLES OF UNSEAWORTHINESS OR VIOLATION OF NONDELEGABLE DUTY

2. ALIEN'S RIGHTS

INTERRUPTION OF AN ALIEN'S PRESENCE IN THE UNITED STATES AND INVESTOR STATUS OF AN ALIEN …

Recent Decisions, Steven A. O'Rourke, Henry C. Wood, Jr., Christopher Ryan, Phyllis K. Fong, Clifford D. Harmon

Vanderbilt Journal of Transnational Law

Admiralty--Workmen's Compensation--Longshoremen's and Harbor Workers' Compensation Act covers Waterfront Injuries to Cargo Handlers Who sometimes work Offshore or Who unpack Containers

Steven A. O'Rourke

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European Communities--Restrictive Practices--Abuse of Dominant Position--Discriminatory or Unfair Pricing Policies among EEC Customers by a Corporation in a Dominant Market Position Infringes Article 86 of the EEC Treaty

Henry Clay Wood, Jr.

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Federal Jurisdiction--State Regulation of Interstate Commerce--Federal Courts have Jurisdiction to Enjoin State Officials from Enforcing State Laws Regulating Interstate Tanker Trade where Congress intended that Federal Regulations Pre-empt the Area

Christopher Ryan

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Securities Regulation--Jurisdiction--Allegations that an International Securities Transaction involving Stock …

Jurisdiction--The Short-Lived Death Of The Ker-Frisbie Doctrine, C. Jedson Nau

Vanderbilt Journal of Transnational Law

Why the Second Circuit Court of Appeals chose to retreat from its Toscanino holding is unclear. The drastic nature of the remedy afforded by Toscanino to any defendant illegally abducted has been criticized as too inflexible. On the other hand, the Lujan rule allows the remedy only in the limited circumstances of egregious conduct. The problem remains to determine what remedy, if any, should be available to victims who are subjected to illegal but not outrageous governmental conduct.

The government has vigorously argued that federal narcotics law enforcement depends upon the freedom of officers to abduct suspects, particularly from South …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. Admiralty

Employer is liable as a Pro Hac Vice Owner for Negligence of an Employee Engaged in Services other than Stevedoring

Submersible Oil Storage Facility use in Connection with Off-Shore Drilling is Classifiable as a "Vessel" within Provisions of Jones Act and General Maritime Jurisdiction

Exclusive Remedy Provision of the Puerto Rico Workmen's Accident Compensation Act does not apply to a Puerto Rican Citizen Injured outside the Territory of Puerto Rico

Determination of Unseaworthiness caused by Character of a Person Aboard is Limited to Crew Members' Condition

2. Common Market

European Community Directive Requires that in the Event of …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY

Payment of Wages to Discharged Seaman is not Limited to Direct Cash Payment if other Methods are more Appropriate

Rules for the Transfer of an Admiralty Suit to another Forum are the Same for in Rem as for In Personam Actions

Longshoremen Injured on Employer's Vessel have a Negligence Action against that Employer for Non-stevedore Caused Injuries

Lack of Subject Matter Jurisdiction and Availability of an Alternative Forum denies Foreign Seaman Access to Federal Courts

Longshoreman's Employer is not a Necessary or Indispensable Party to Longshoreman's Action against Shipowner for Negligence

Wrongful Death Remedy under Decisional Maritime Law …

Footnote To The Nuclear Test Cases: Abuse Of Right--A Blind Alley For Environmentalists, Jerome B. Elkind

Vanderbilt Journal of Transnational Law

In a recent article entitled "French Nuclear Tests and Article 41: Another Blow to the Authority of the Court," the author questioned the approach of the learned Judges of the International Court of Justice to article 41 of the Court's Statute. The title of that article was intended to deplore the recent tendency of States (most particularly France, but also Iceland) who are parties to the Statute of the International Court of Justice to arrogate to themselves the right to determine whether the Court has jurisdiction...

The judgment of December 20, 1974 is but one more example of the extremes …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ACT OF STATE DOCTRINE

Hickenlooper Amendment Inapplicable to Oil Drilling Concession Granted by Foreign Government

2. ADMIRALTY

Shipowner is Entitled to Indemnification from Tortfeasor when a Covenant of Workmanlike Performance by the Tortfeasor can Reasonably be Implied

Judicially-Created Maritime Wrongful Death Cause of Action Applies Retroactively as Exclusive Remedy Time-Charterer Not Entitled to Indemnification for Litigation Expenses when not Obligated to Provide Seaworthy Vessel

Claims within Scope of the Public Vessels Act Cannot be Brought under the Terms of the Suits in Admiralty Act

Lumber Employee Working on Saltwater Pond Held Not Engaged in Maritime Employment and Not Covered …

Obtaining Personal Jurisdiction Over Alien Corporations--A Survey Of U.S. Practice, John D. Gleissner, David C. Veeneman, S. Rodgers Wheaton

Vanderbilt Journal of Transnational Law

With the increase in international trade, civil litigation between persons of different nationalities has become increasingly important. Today alien and foreign corporations are being brought before American courts to defend actions arising out of products liability, contract, and tort. There is considerable authority holding alien and foreign corporations amenable to jurisdiction on the basis of a single act or business transaction. The states themselves are affecting international trade since state law is chosen to determine the amenability of alien and foreign corporations to suit in diversity actions in federal court.

This survey presents a cross-section of recent cases and attempts …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. Admiralty

State Port Authority Acting Incident to Maritime Carriage Subject to Admiralty Jurisdiction in Damage Suit

MARINE INSURANCE PROVIDING COVERAGE OF LOSSES "ARISING FROM OR OCCURRING FROM" SPECIFIED CONDITIONS DOES NOT COVER LOSSES OCCURRING AFTER PERIOD OF COVERAGE DUE TO CONDITIONS WHICH INITIALLY AROSE DURING THE PERIOD OF COVERAGE

FEDERAL COURT LACKS POWER UNDER SUITS IN ADMIRALTY ACT TO IMPOSE GOVERNMENTAL LIABILITY FOR HARM CAUSED BY FAILURE TO EXERCISE DISCRETIONARY FUNCTION

2. Alien's Rights

FAMILY RELATIONSHIP CAN BE SHOWN AS A MATTER OF FACT FOR IMMIGRATION PURPOSES WHERE APPLICABLE FOREIGN DOMESTIC LAW HOLDS MEANINGLESS THE CONCEPT OF LEGITIMACY

3. …

The Act Of State Doctrine: Alfred Dunhill Of London, Inc. V. Republic Of Cuba, John S. Williams

Vanderbilt Journal of Transnational Law

With its decision in Alfred Dunhill of London, Inc. v. Republic of Cuba, the Supreme Court has, for the third time in twelve years, rendered a significant if not landmark ruling on the act of state doctrine. Before 1964 the Court had not decided a case involving that doctrine for more than twenty years. During that intervening period many questions were raised in the learned writings on the subject, and the controversial decision, Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., was decided by the Second Circuit Court of Appeals in New York.

Recent Developments--Recent Decisions, Philip B. Barr, Jr., Michael Stukenberg

Vanderbilt Journal of Transnational Law

All nations recognize the enormous problem of marine pollution. The sources of marine pollution are definable, and there are methods by which these sources may be restricted. Virtually all mankind would prefer less pollution to more. Prevention, however, becomes less attractive in light of its costs, which assume both political and economic characteristics. Varying political and economic climates coupled with problems of sovereignty and national self-interest render agreement on the imposition of standards difficult. This Recent Development will chart past and present efforts at the preservation of the marine environment, consider the issues confronting the United Nations Third Conference on …

Jurisdiction And Procedure Of The Court Of Justice Of The European Communities, Robert A. Buchanan

Vanderbilt Journal of Transnational Law

The Court of Justice of the European Communities is the final adjudicatory body for questions arising under the three Community treaties--the European Economic Community Treaty (EEC), the European Coal and Steel Community Treaty (ECSC), and the European Atomic Energy Community Treaty (EUR-ATOM). Since none of the treaties confers upon the Court the power to adjudicate questions involving the domestic laws of Member States, the Court's jurisdiction extends only to interpretation of Community law. Basically, the jurisdiction of the Court can be divided into the following subject areas: actions against Member States, actions against Community institutions, claims for damages against the …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

ABSTRACTION AND USE OF WATER: A COMPARISON OF LEGAL REGIMES By Ludwik A. Teclaff

New York, United Nations Publications,1972. Pp. iv, 254. $5.50.

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CONSULATE OF THE SEA AND RELATED DOCUMENTS

By Stanley S. Jados

University, Alabama: The University of Alabama Press,1975. Pp. xvi, 326. $12.00

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FOOTSTEPS INTO THE FUTURE

by Rajni Kothari

New York: The Free Press, 1974. Pp. xxiii, 173. $8.95.

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THE FUTURE OF INTERNATIONAL FISHERIES MANAGEMENT

Edited by H. Gary Knight

St. Paul, Minnesota: West Publishing Co., 1975.Pp. xiii, 253. $14.00.

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THE ILLEGAL DIVERSION OF AIRCRAFT AND INTERNATIONAL LAW

By Edward McWhinney

Leiden: A.W. …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. Admiralty Shipowner's Warranty of Seaworthiness extends to any Regularly Used Mode of Ingress or Egress

Award of Prejudgment Interest in Admiralty may be Denied Party Substantially at Fault

Contribution will lie against the United States in Non-collision Maritime Cases when United States and Third Party Adjudged Mutually Negligent

Admiralty Jurisdiction does not Extend to Shoreside Injury Caused by Unloaded Cargo

Admiralty Jurisdiction does not Extend to Shoreside Injury Caused by Negligent Handling of Shipowner's Dunnage when Stevedore uses Own Equipment

2. ARBITRATION

Foreign Arbitration Award may be Enforceable at Bankruptcy although Issued after Initiation of Bankruptcy Proceedings

3. CONTRACTS …