1 Pub. L. 88–633, § 301(d)(4), 78 Stat. 1009, 1013, as amended by Pub. L. 89–171, § 301(d), 79 Stat. 659. The statute is codified at 22 U.S.C. § 2370(e) (2). It was referred to by the court below as the Hickenlooper amendment. In some Congressional debates and law review articles it is referred to as the Sabbatino amendment.

la In 1963 the receivership was vacated and the funds in question were placed in escrow with Lehman Brothers, where they now repose.

2 References are to the Joint Appendix in the Court of Appeals, a certified copy of which is being filed herewith.

3 For a detailed discussion of the facts, see the opinion prepared for the Court by Chief Justice Taney, printed at 117 U.S. 567.

4 See, for instance, brief of respondent Farr on writ of certiorari in Sabbatino case, pp. 38–46.

5 Significantly, the District Court there cited State Department views as proving that there was no possibility of embarrassment. Of course not—but only so long as the court agreed with the State Department.

5a On July 24, 1961, an armed passenger “hijacked” an Eastern Airlines plane with passengers and crew aboard and forced the pilot to take the plane to Havana (New York Times, July 25, 1961). The plane was returned by the Cuban Government on August 16 (New York Times, August 17, p. 8, col. 6). The very next day the captain of the Cuban freighter, Bahia de Nipe, “hijacked” that ship and brought it into Chesapeake Bay (New York Times, August 18, p. 8, col. 3). It was obvious that from the political point of view the United States could not refuse to return the freighter and its cargo in view of the close proximity both in fact and in time to the Eastern Airlines incident. Certainly, we could not do less than Cuba had done on the very day preceding.

A claim for the cargo on the ship was made by United Fruit Company, the basis for the claim being exactly the same as the basis for the claim made by C.A.V. The same Cuban decree was involved, the same violations of international law were alleged, the same “lack of compensation” was present and, indeed, United Fruit relied on the District Court decision in Sabbatino. The District Court, the Court of Appeals and this Court all refused to pass on United Fruit’s claim “on the merits”.

* [The proceedings before the U.S. Supreme Court in Rich v. Naviera Vacuba are reported at 1 International Legal Materials 276 (1962).]

6 Text supplied to counsel by State Department. We are advised by the Department that the statement was distributed to the Committee but it does not appear in the printed hearings because the witness for the State Department, Mr. Leonard Meeker, Legal Advisor, was never given an opportunity to testify.

7 A transcript of these remarks is available from the Bar Association.

* [Sic: “Abram”, Ed.]

8 The Hickenlooper amendment was a rider to the Foreign Aid Bill of 1964 and became law when the President signed the bill on October 7, 1964, after resolution of the annual dispute over foreign aid between Congress and the President. Congress adjourned on the same day.

9 There were 1,443,921 shares of C.A.V. outstanding, held by about 6,000 shareholders. The record is silent as to their nationality; it refers only to their residence, which is, of course, quite a different thing, especially in this context.

10 These are not academic questions. In Menendez, Garcia & Co. v. Glaser Bros., now pending in the Superior Court of California, Docket No. 513122, City and County of San Francisco, a partnership organized in Cuba is claiming the benefit of the Hickenlooper amendment because one of the partners is alleged to be a Spanish citizen.

In Mann v. Trans-Cuba, pending in the New York State Supreme Court, Index No. 11172/1960, New York County, it appears that many stockholders of the corporation were Cubans and many were Americans. Although the corporation was organized in Cuba, there is no way of ascertaining how many of its stockholders had what citizenship. Indeed, there is not even any way of telling v. here many of the stockholders live.

11 The District Court stated that there were “some 35 cases” pending before it which were “likely to be affected if not determined by the decision on the present motions.” 243 F. Supp. at 962. Since that time some of these cases have been decided. In Palicio v. Brush & Block, supra, the court held that the Hickenlooper amendment did not apply to the expropriation of the property of Cuban corporations and applied the act of state doctrine. In Banco National v. First National City Bank, 270 F. Supp. 1004 (1967), the court denied plaintiff’s motion for summary judgment on the ground that the Hickenlooper amendment did apply. There are many other cases still pending undecided.

12 As the recital of facts set forth above shows, at the time the statute was passed, there were two applications pending before the court: one for the entry of judgment and the second for leave to join C.A.V. and Lehman Brothers as third party defendants. Neither application was more than a formality.

13 Even in Anglo-American law, concepts of when a government may expropriate the property of an alien and the extent to which compensation must be paid seems to be molded by political, rather than jurisprudential, considerations. In Sordino v. Federal Reserve Bank, 361 F. 2d 106 (2d Cir. 1966), cert. den. 385 U.S. 898, the Court of Appeals held that the United States Government could, without violating due process of law, deprive a non-resident alien of his property located within the United States without making any compensation therefore. In that case, which arose under the Cuban Assets Control Regulations, 31 C.F.R. § 515.101, et seq., the additional elements of “discrimination” and “retaliation” could be said to be present at least to the degree to which they were found to exist by the Court of Appeals in Sabbatino and in this case.

14 See petitioner’s brief on the writ of certiorari in Sabbatino, at pp. 34–51.

* [Sic: “ principles “ , Ed. ]

15 Except Anglo-Iranaian Oil Co. Ltd v. Jaffrate (The Rosemary) [1955], 1 Weekly L. R. 246. For a critique of this case see Reeves, The Act of State—Foreign Decisions Cited in the Sabbatino Case, supra.

* [Sic: “ right “ , Ed.]

* [See page 11, footnote 6, of this document for information on the background of the Department of State memorandum quoted, in this appendix. Ed.]