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United States District Court for the Southern District of New York Order and Memorandum in East Europe Domestic International Sales Corp v. Terra*

Published online by Cambridge University Press:  20 March 2017

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Abstract

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 18 , Issue 4 , July 1979 , pp. 977 - 982
Copyright
Copyright © American Society of International Law 1979

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Footnotes

*

[Reproduced from 467 F. Supp. 383, 384-91 (1979).

[The U.S. Foreign Sovereign Immunities Act of 1976 appears at 15 I.L.M. 1388 (1976). The Department of State regulations under the Act on notice of suit and service on foreign states appear at 16 I.L.M. 159 (1977). A Department of State memorandum on judicial assistance under the Act appears at I.L.M. page 1177.]

References

1 The actual addendum executed by Vitrocim on March 28th, and not received by plaintiff until April 7th provides: “Letter of Credit in good order and with all details must reach the Romanian Bank for Foreign Trade Bucharest latest April lo, 1977 [sic] otherwise the contract may be cancelled by the Seller.” Ross affidavit. Exh. 8.

2 Subsequently, plaintiff extended Terra's time to open the letter of credit until March 29, 1977.

3 During this same period, plaintiff seems to have confused Terra as to whether the cement Terra was purchasing was subject to a prior sale. In a telex on March 30th, plaintiff informed Terra, allegedly by mistake, Koss affidavit ‘ 7 at p. 8, that the cement was “subject to prior sale [and] we regret to inform you that we have sold this cement.” Plaintiff claims that it meant to say, “we are selling this cement.” Id. On April -1th, plaintiff also attempted to purchase an additional 20,000 mtons from Vitrocim, Tlx Nr. 15650, id. Exh. 26, but was told that Vitrocim could not “offer any additional quautitit-s.” Tlx i'S o1S23.I1M. dated April 7, 1977, id.. Exh. 28.

4 The grant of jurisdiction to the district courts is original,but not exclusive. See 28 U.S.C § 1605(a).

5 Terra has a listing in the Romania Pocket Commercial Guide 1970—a description of Romanian trading companies and Romania's Economic and Commercial Offices abroad. We do not regard this as evidence of merit that Terra actually conducted business in the United States.

6 East Europe also argues that the publication, “Romania Pocket Commercial Guide 1970,” see fn. 5, supra, is further evidence of the principalagency relationship because the names given some of Romania's “Economic and Commercial Offices Abroad” include words like “agency” or “representation.” We cannot accept the argument that name is necessarily descriptive of function.