OPINION
Plaintiffs are Ecuadorian crew members of a fishing boat. The United States Coast Guard saw their boat in international waters near the Galapagos Islands and suspected it of involvement with smuggling drugs. The Coast Guard stopped Plaintiffs’ boat and boarded it. Tests performed on the vessel yielded suspicious but inconclusive results and, with the consent of the Ecuadorian government, the Coast Guard tоwed the boat to Ecuador. Further tests conducted by the Ecuadorian government uncovered no contraband, and no charges were filed against Plaintiffs.
Plaintiffs then sued the United States for damages resulting from these events. The district court held that the United States had not waived its sovereign immunity over this action and, accordingly, dismissed the action. Reviewing de novo,
Harger v. Dep’t of Labor,
FACTUAL AND PROCEDURAL HISTORY
Because the district court dismissed this action on the pleadings, we take as true the allegations of the complaint.
Cell Therapeutics Inc. v. Lash Grp. Inc.,
The United States filed a motion to dismiss under Federal Rule of Civil Procеdure 12(b)(1) for lack of subject matter jurisdiction on the ground that the United States has not waived sovereign immunity. The district court agreed and dismissed this action. Plaintiffs timely appeal.
*1195 DISCUSSION
The primary question before us is whether the United States has waived sovereign immunity. “We will consider the issue of sovereign immunity on the merits because it can be raised at any time by the government, as it goes to a court’s jurisdiсtion.” IRS v. Fed. Labor Relations Auth., 521 F.3d 1148, 1152 (9th Cir.2008). 1
“It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. A waiver of sovereign immunity cannot be implied but must be unequivocally expressed.”
United States v. Mitchell,
In their complaint, Plaintiffs offered a number of sources of an alleged waiver of sovereign immunity by the United States. Plaintiffs also filed a motion to amend their complaint to add two additional sources. The district court denied the motion on the ground that the proposed amendment could not cure the sovereign-immunity defect. Like the district court, we consider all sources. Those sources include: the Public Vessels Act (“PVA”), 46 U.S.C. §§ 31101-31113; the Suits in Admiralty Act (“SAA”), 46 U.S.C. §§ 30901-30918; 2 the Federal Tort Claims Act (“FTCA”); the Alien Tort Statutе, 28 U.S.C. § 1350; the Military Claims Act, 10 U.S.C. §§ 2731-2739; a regulation, 49 C.F.R. § 1.46(b); the Convention on the Law of the Sea; the International Covenant on Civil and Political Rights (“ICCPR”); a bilateral treaty between Ecuador and the United States concerning the use of an Air Force base at Manta, Ecuador; and a letter from the United States embassy to the Ecuadorian government requesting permission to board Plaintiffs’ vessel.
A. Non-Congressional Sources
The regulation and the letter are not acts of Congress, so they cannot effect a waiver of sovereign immunity.
United States v. Park Place Assocs., Ltd.,
B. Military Claims Act, Alien Tort Statute, and Treaties
The Military Claims Act dоes not mention, and therefore does not waive, sovereign immunity.
See Murphy ex rel. Estate of Payne v. United States,
“[T]he Alien Tоrt Statute has been interpreted as a jurisdiction statute only— it has not been held to imply any waiver of sovereign immunity.”
Goldstar (Panama) S.A. v. United States,
The United States has signed, but has not ratified, the Convention on the Law of the Sea. In the absence of congressional action, the Convention does not waive sovereign immunity.
The United States has ratified the ICCPR. But that treaty is not self-executing and therefore “did not itself create obligations enforceable in the federal courts.”
Sosa v. Alvarez-Machain,
Finally, the bilateral treaty concerning the Air Force base at Manta, Ecuador, concerns, naturally enough, the Air Force base at Manta, Ecuador, which played no part in thе Coast Guard’s actions here. The treaty does not mention the Coast Guard, payment for the types of damage alleged by Plaintiffs, judicial remedies, or sovereign immunity. That being so, the treaty does not waive the United States’ sovereign immunity.
C. The Public Vessels Act, Suits in Admiralty Act, and Federal Tort Claims Act
Each of these three Acts provides an explicit waiver of sovereign immunity. The PVA waives sovereign immunity for suits for “damages caused by a public vessel of the United States.” 46 U.S.C. § 31102(a)(1). But the PVA contains a reciprocity requirement: A national of a foreign country may sue under the PVA only if the government of that foreign country would permit a United States national to bring the same suit in its courts.
Id.
§ 31111. The SAA waives sovereign immunity, subject to some exceptions, in admiralty cases when a civil action cоuld otherwise be brought if the United States were not a party.
Id.
§ 30903(a);
see Earles v. United States,
Because each of those three Acts provides a separate, explicit waiver of sovereign immunity, one might expect thаt any of the three waivers would suffice. For example, one would think that a claim brought under the SAA could proceed if the waiver requirements for that Act were *1197 met. For historical reasons, however, that is not how the Acts work together.
In
United States v. United Continental Tuna Corp.,
D. Whether Plaintiffs’ Claims Fall Within the Scope of the PVA
A claim falls within the scope of the PVA if the claim comes within federal admiralty jurisdiction and if the damages were caused by a public vessel.
Taghadomi
1. Locality Requirement
“[T]he situs of a tort for the purpose of determining admiralty jurisdiction is the place where the injury occurs.” Id. at 1084. As in Taghadomi Plaintiffs herе “do not claim that the injuries occurred anywhere but at sea. Thus, the locality requirement is satisfied.” Id. at 1086. Even if one construed Plaintiffs’ allegations as encompassing some negligent activity elsewhere, we have held that it is “clear that this rule [that the place where the injury occurs controls] holds even when some of the negligent activity occurs on land.” Id. at 1084.
2. Nexus Requirement
There are two prongs to the nexus requirement. First, a court “must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce.”
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
The incident in dispute did not merely have the potential to disrupt maritime commerce; it definitely disrupted maritime commerce. According to the operative complaint, the Coast Guard ruined Plaintiffs’ commercial fishing trip and towed them and their boat hundreds of miles. Thus the first prong is easily met.
See, e.g., Gruver v. Lesman Fisheries Inc.,
The second prong, which we have interpreted broadly, likewise is easily met. In
Gruver,
3. “Damages Caused by a Public Vessel ”
The PVA waives sovereign immunity for suits for “damages caused by a public vessel of the United States.” 46 U.S.C. § 31102(a)(1). “A ‘public vessel’ is one owned or operated by the United States and used in a public capacity.”
Taghadomi,
For decades, we — and the Supreme Court — have interpreted that phrase broadly. Indeed, 60 years ago we interpreted the phrase “damages caused by a public vessel” to encompass
all
tort and contract claims “arising] out of the possession or operation of the ship.”
Thomason v. United States,
Similarly, in
American Stevedores, Inc. v. Porello,
Given our broad interpretation of the phrase,
3
we conclude that Plaintiffs’ claims here assert “damages caused by a public vessel.” Taking the allegations of the complaint as true, the crew of the public vessel stopped Plaintiffs’ ship on the high seas, boarded it, damaged the cargo and other property, and towed the ship to Ecuador.' Although the public vessel itself played a direct role only in some of the actions (stopрing and towing Plaintiffs’ ship), the public vessel’s role in all of the actions of the crew is unmistakable. Even the actions of the crew members while aboard Plaintiffs’ private ship “ar[ose] out of the possession or operation of the ship.”
Thomason,
E. The PVA’s Reciprocity Requirement
The PVA’s waiver of sovereign immunity is conditioned on the following reciprocity requirement:
A national of a foreign country may not maintain a civil action under this chapter unless it appears to the satisfaction of the court in which the action is brought that the government of that country, in similar circumstanсes, allows nationals of the United States to sue in its courts.
46 U.S.C. § 31111. The district court held that the documents submitted by Plaintiffs — an affidavit by an Ecuadorian lawyer and a translated copy of the Ecuadorian constitution — were insufficient to establish that reciprocity exists. We agree.
The documents say nothing about sovereign immunity or about suits for damages caused by the Ecuadorian government. Nоn-Ecuadorians may have equal access to Ecuadorian courts and a guarantee of due process, but those issues do not speak to whether Ecuador would allow a United States citizen to sue the Ecuadorian government “in similar circumstances.” Id. The documents are simply inapposite. Indeed, the affidavit from the Ecuadorian lawyer does not state that any party can sue the Ecuadorian government. The documents demonstrate that a foreign citizen can bring suit to the same extent as an Ecuadorian citizen, but the documents do not address the key issue here: whether the Ecuadorian government would waive sovereign immunity in similar circumstances.
*1200
The failure of Plaintiffs’ documents to demonstrate reciprocity does not necеssarily end the inquiry. Under Federal Rule of Civil Procedure 44.1, “[i]n determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.”
See Pazcoguin v. Radcliffe,
Here, the district court held that, because Plaintiffs’ documents did not establish reciprocity, Plaintiffs failed to meet their burden of demonstrating reciprocity. We are uncertain whether a plaintiff bears the burden of establishing the content of foreign law for purposes of the PVA’s reciрrocity requirement.
Compare
Fed. R.Civ.P. 44.1 (instructing that the district court’s determination of foreign law is treated as a ruling on a question of law)
and Nicholas E. Vernicos Shipping Co. v. United States,
Whether reciprocity exists under Eсuadorian law remains undetermined. Notably, the attorney for the United States asserted at oral argument that he did not know whether such reciprocity exists. In these circumstances, we find it appropriate to give the parties and the court an additional opportunity to determine this threshold question. On remand, the court may instruct the parties to provide additional evidence, through testimony or other means; the court may conduct its own research; and the court may undertake any other inquiry consistent with Rule 44.1 to determine whether reciprocity exists under Ecuadorian law. 4
AFFIRMED in part, VACATED in part, and REMANDED. The parties shall bear their own costs on appeal.
Notes
. It is therefore irrelevant that, as Plaintiffs contend, the United States failed to assert with specificity the affirmative defense of sovereign immunity in its answer to the original complaint. Nor was it improper for the district court to consider the affidavits submitted by both parties; indeed, that is the correct procedure for jurisdictional challenges raised in a Rule 12(b)(1) motion.
Savage v. Glendale Union High Sch.,
. Until recently, these two Acts were codified at 46 U.S.C. §§ 781 et seq. (PVA) and 46 U.S.C. §§ 741 et seq. (SAA). We use the present-day numbering.
. We recognize that the Eleventh Circuit has disagreed with our broad reading of the PVA. See
Marine Coatings of Ala. v. United States,
. We make clear, however, thаt determining this question of foreign law will not necessarily require further discovery by Plaintiffs. Plaintiffs seek additional discovery concerning, for example, the actions of the crew. Such information is irrelevant as to the content of Ecuadorian law. The district court did not abuse its discretion in denying additional discovery. We do not, however, preclude such further discovery as the district court finds appropriate.