293 F. 133 | S.D.N.Y. | 1919
The motion is to dismiss the action, and for such other relief as may be proper, on the ground that there was not in existence “the Russian government,” and therefore no plaintiff. Defendant also requests the court to address a communication to the Secretary of State of the United States of America, inquiring as to certain diplomatic matters revolving around the status of the Russian government in its relations with the government of the United States.
Referring to the merits of the motion, the facts, briefly stated, follow :
On July 29, 1916, defendant, a common carrier, had in its possession certain property belonging to the then Imperial Russian government, under bills of lading which restricted the right to sue for loss or darn age to two years. On July 29 or 30, 1916, the so-called Black Tom explosion occurred, and the property was destroyed, and therefore any cause of action available to the Russian government expired on July 30, 1918. After vain efforts to obtain an extension of time to commence suit, the attorneys for the Russian government obtained authority from one Boris Bakhmetieff to commence these actions. This
The continuing recognition of Bakhmetieff, as ambassador, by the United States, has been brought practically down to date (a) by a certificate of the Secretary of State, dated October 31, 1918; and (b) by a certificate of the Acting Secretary of State, dated January 2, 1919. These are as follows:
“To All to Whom These Present Shall Come — Greeting:
“Know ye, that X, Kobert Lansing, Secretary of State of the United States of America, do hereby certify that Boris Bakhmetieff presented his letter of credence to the President of the United States and was officially received by the President as ambassador extraordinary and plenipotentiary of Kussia on the fifth day of July, 1917, and that the said Boris Bakhmetieff has accordingly since that date been recognized by the Department of State as ambassador of Kussia, and as entitled to all the rights, privileges and immunities of such status.
“In witness whereof, I have hereunto subscribed my name and caused the seal of the Department of State to be affixed.
“Done in the city of Washington, this thirty-first day of October, one thousand nine hundred and eighteen.
“[Seal.] ■ Kobert Lansing.”
“To All 'to Whom These Present Shall Come — Greeting:
“Know ye, that X, Prank L. Polk, Acting Secretary of State of the United States of America, do hereby certify that Boris Bakhmetieff presented his letter of credence to the ITesident of the United States and was officially received by the President as ambassador extraordinary and plenipotentiary of Kussia on the fifth day of July, 1917; that the said Boris Bakhmetieff has accordingly since that date been recognized by the Department of State as ambassador of Kussia; that on the third day of December, 1918, the said Boris Bakhmetieff officially informed the Department of State that he was proceeding temporarily to Prance, and was that day turning over the affairs of the embassy to Mr. Serge Ughet, financial attaché of the Kussian embassy, who would act as chargé d’affaires during his absence; that since the third day of December, 1918, the said Serge Ughet has been treated by the Department of State as chargé d’affaires ad interim, of Kussia.
“In witness whereof I have hereunto subscribed my name and caused the seal of the Department of State to be affixed.
“Done in the city of Washington this second day of January, one thousand nine hundred and nineteen. Prank L. Polk.”
Counsel earnestly presses the arguments which were fully considered in Canadian Car Co. v. American Can Co., supra, and insists that the court may make its independent investigation to determine who and what the Russian' government is.
The contentions are further made, in effect: (1) That from the certificates above quoted it cannot be held that Ambassador Bakhmetieff had authority to instruct counsel to bring these actions; and (2) that the court may resort to newspaper reports and comments, to inform itself that there is at the moment no recognized Russian government.
It may, however, be observed that the importance of recognizing governmental continuity, quite irrespective of considerations as to the
Finally, it may be suggested that it is at least doubtful whether the relief sought by defendant can be reached by a motion such as this, but I have preferred to go to the merits, rather than to decide the motion uposn a point of procedure.
Motion denied.
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