1 Brief for the United States as Amicus Curiae, filed in the Supreme Court in the Sabbatino case, p. 44a. That Brief will hereinafter be referred to as “Amicus Brief”. The Brief contains an extensive review of the policy lying behind the Act of State doctrine as seen by the Departments of Justice and State of a previous Administration and is well worth reading, not only in connection with the issue raised by the Legal Adviser’s letter in this case, but in connection with the principal issues raised in this litigation. Because copies of that Amicus Brief may not be readily available to this Court and because we intend to make extended reference to it, we are taking the liberty of reprinting it, in its entirety, as Exhibit B hereto.

2 The Bernstein case has, in a few other instances, been cited, but not in relevant situations. For example, in Zwack v. Kraus Bros. & Co., 237 F. 2d 255 (2d Cir. 1956) and Republic of Iraq V. First National City Bank, 241 F. Supp. 567 (S.D.N.Y. 1965), the case was cited, although no Bernstein letter had been filed and the issue in the cases involved property located in the United States and hence not subject to the Act of State doctrine. In a few other instances the Bernstein case has been mentioned in passing, merely as an exception to the Act of State doctrine. Banco Nacional v. Farr, 243 F. Supp. 957 (D.C.N.Y. 1965); Palicio v. Brush, 256 F. Supp. 481 (D.C.N.Y. 1966); In Menendes Rodrigues v. Pan American Life Insurance Co., 311 F. 2d 429 (5th Cir. 1962), the court treated the correspondence referred to in the Court of Appeals decision in Sabbatino, supra, as a Bernstein letter, but, as is noted above, Sabbatino was reversed.

3 Legal commentators have differed in their treatment of the Bernstein doctrine. Reeves, The Act of State Doctrine — Foreign Decisions Cited in the Sabbatino Case; A Rebuttal and Memorandum of Law, 33 Fordham L. Rev. 599, 609-610 (1965); Reeves, Act of State Doctrine and the Rule of Law — A Reply, 50 Amer. J. Int. Law 141, 152, 155 (1960); Sherman, International Law: Effect Given by the United States Courts to Expropriation Decrees of Foreign Governments when in Violation of International Law, 46 Marquette L. Rev. 391, 369 (Winter 1962-63) ; Falk, The Role of Domestic Courts in the International Legal Order (Syracuse Univ. Press, 1964); Cardozo, Judicial Deference to State Department Suggestions: Recognition of Prerogative or Abdication to Usurper, 48 Cornell L. Q. 461, 482 (1963) ; Metzger, The Act of State Doctrine and Foreign Relations, 23 U. Pitt. L. Rev. 881, 889, 890 (1962). The last authority contains an interesting discussion of the origin of the Bernstein letter.

4 The present Legal Adviser to the State Department was then Chairman of the International Law Committee of the Bar Association. The same views were further expressed by Mr. Stevenson in 1963, in an editorial in 57 Amer. J. of Int. Law 97, entitled The Sabbatino Case — Three Steps Forward and Two Steps Back, a commentary on the Court of Appeals decision. Mr. Stevenson was then a member of the Board of Editors of the American Journal of International Law.

5 The same point was also made by the Executive Branch in its testimony before Congress when it was considering the Hickenlooper amendment. See hearings before Committee on Foreign Relations, United States Senate, 88th Cong., 2nd Sess. on S. 2659, 2660, 2662 and H.R. 11380, pp. 618, 619; Hearings before the Committee on Foreign Affairs, House of Representatives, 89th Cong., 1st Sess. on H.R. 7750, pp. 1234-1271.

6 The facts in the Bahia di Nipe litigation are set forth in some detail in Rich v. Naviera Vacuba, 197 F. Supp. 710, 712 (E.D. Va. 1961), aff’d 295 F.2d 24 (4th Cir. 1961). One highly relevant fact, however, does not appear in that opinion. On August 16, 1961, the day before the Bahia di Nipe sailed into United States waters, the Cuban Government had returned to the United States an Eastern Air Lines plane which had been hijacked three weeks prior (New York Times, August 17, 1961, p. 8, col. 6). From the political point of view, the United States could not refuse to return the freighter and its cargo in view of the fact that Cuba had just returned an airplane which had come into Cuban territory under comparable conditions.

Although the District Court opinion was based on a claim of sovereign immunity, this argument was fiercely contested by United Fruit Company, which claimed to own the cargo on the basis of facts which were a replica of those in Sabbatino. The Act of State doctrine was not discussed in the District Court nor in the Court of Appeals, but a stay pending certiorari was denied in the Supreme Court citing not sovereign immunity cases but Act of State cases such as Underbill v. Hernandez, 16S U.S. 250 and Oetjcn v. Central Leather Co., 246 U.S. 297 (not officially reported but reflected in original Court records).

* [See 10 I.L.M. 89 (1971).]

* Sitting by designation.

page 537 note 1 22 U.S.C. $2370(e)(2), as amended, 79 Stat. 658-59 (Sept. 6, 1965).

* [See 10 I.L.M. 89 (1971).]

page 543 note 2 The Bernstein case has, in a few other instances, been cited, but not in relevant situations. For example, in Zwack v. Kraus Bros. & Co., 237 F.2d 255 (2d Cir. 195G) and Bcpublia of Iraq V. First National City Bank, 241 F. Supp. 567 (S.D.N.Y. 1965), the wise was cited, although mi Bernstein letter had been filed and (ho issue in the cases involved property located in the United Slates and hence not subject to the Act of State doctrine. In a few other instances the Bernstein case has been mentioned in passing, merely as an exception to the act of state doctrine. Banco Nacional v. Farr, 243 F. Supp. 957 (DC.N.Y. .1905); Palicio v. Brush, 256 F. Supp. 481 (D.C.N.Y. 1965); Wymun v. United Males, 166 F. Supp. 766, 769 (Ct. CI. 1058). In Mcncndcz Radriyucs v. Van American Life Insurance Co., 33.1. F.2d 4.29 (5th Cir. 1002), the court treated the correspondence referred to in our decision in Sabbatino, as a Bernstein letter; but, as is noted above, our decision in Sabbatino was reversed by the Supreme Court.