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Case 3:17-cv-00817-CSH Document 32-1 Filed 11/22/17 Page 1 of 6




Plaintiff, CIVIL ACTION NO. 2:17-CV-00817







Pursuant to Rule 7 of the Local Rules of this Court and Rules 12(b)(1) and (6) of the

Federal Rules of Civil Procedure, Defendant AUSTRALIAN NATIONAL MARITIME

MUSEUM (the “Museum”)1 appears specially and not generally and files this Memorandum of

Law in support of its Motion to Dismiss directed at the entirety of Plaintiff’s Complaint. The

Complaint and all causes of action therein are subject to dismissal because the Foreign Sovereign

Immunities Act, 28 U.S.C. §§ 1602 et seq. (“FSIA”), prohibits this Court from exercising

jurisdiction over the Museum. The Museum is owned by and is an arm of the government of the

Commonwealth of Australia, and accordingly, suits against it are barred by the FSIA.

28 U.S.C. § 1604.

The Museum is not subject to personal jurisdiction in either the United States or Connecticut, inter alia, because it
lacks significant contacts with both the United States and Connecticut. Should the Court deny this Motion to
Dismiss, the Museum will file a motion to dismiss for lack of personal jurisdiction.

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Plaintiff alleges that it is a Minnesota corporation which contracted to transport a

submarine from Woods Hole, Massachusetts to Baltimore, Maryland. Complaint (Dkt 23),

¶¶ 1, 22. The Complaint further alleges that the submarine was damaged during transit.

Id., ¶ 26.

Plaintiff admits that the Museum is an agency of the Commonwealth of Australia with its

principal place of business in Australia. Id., ¶ 5.

The Museum was established in 1990 by an act of the Australian Parliament, the

Australian National Maritime Museum Act 1990 (No. 90, 1990). See, declaration of Peter Rout,

filed herewith, ¶ 2. The Museum is entirely owned by the Australian government, on behalf of

the people of Australia. Id. The functions of the Museum are to exhibit material from the

national maritime collection of Australia, and maritime historical material loaned to the Museum.

Other functions are to develop, preserve and maintain the national maritime collection of

Australia, to disseminate information relating to Australian maritime history, and to conduct and

arrange for research into matters relating to Australian maritime history. Id., ¶ 3. The Museum

is funded by the Australian government; it operates on a not-for-profit basis, and in fact it does

not make a profit. Id., ¶ 4. Accordingly, no exception to the FSIA applies, and there is no

subject matter jurisdiction over the Museum.

Because this is a motion to dismiss, the facts (but not legal conclusions) alleged in Plaintiff’s Complaint must be
taken as true. Nothing in this motion is intended as, or should be taken as, an admission of the truth of any
facts alleged.

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A. Standard for a Motion to Dismiss

The FSIA deprives courts in the United States of jurisdiction to adjudicate claims against

foreign sovereigns and their agencies and instrumentalities. 28 U.S.C. §§ 1604, 1603. The Act

reflects the U.S. policy of restrictive immunity by granting foreign agencies and their

instrumentalities presumptive immunity from suit. 28 U.S.C. §§ 1602, 1604. Under the FSIA, a

foreign state – including “a political subdivision of a foreign state or an agency or

instrumentality of a foreign state,” 28 U.S.C. § 1603(a), is immune from the jurisdiction of the

courts of the United States. United States courts lack subject matter jurisdiction over actions

against foreign states and their agencies unless an exception applies (and here, none does, as will

be discussed infra). Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439

(1989); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493-94 (1983).

Since the Museum is clearly an agency or instrumentality of Australia, in the words of the

FSIA, this Court lacks subject matter jurisdiction over the Museum, and all claims herein against

the Museum must be dismissed.

B. The Commercial Activity Exception to the FSIA Does Not Apply

The provision of the FSIA denying United States courts subject matter jurisdiction over

agencies of foreign states does not apply to “commercial activities” of the foreign state. 28

U.S.C. § 1605(a)(2). To determine whether conduct falls within the exception, the Supreme

Court has held that courts must determine whether the conduct at issue is the type which private

parties engage in for “trade and traffic or commerce”. Republic of Argentina v. Weltover, Inc.,

504 U.S. 607, 614 (1992). If the conduct involved is “peculiar to sovereigns” and of a type in

which private citizens cannot engage, the commercial activity exception does not apply. Saudi

Arabia v. Nelson, 507 U.S. 349, 360 (1993) (quoting Weltover, 504 U.S. at 614). The

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commercial activity exception applies equally to foreign states and their political subdivisions,

agencies and instrumentalities.

Plaintiff’s Complaint alleges a single act on the part of the Museum, namely requesting

transportation of a submarine by truck from Woods Hole, Massachusetts to Baltimore, Maryland,

for onward carriage to Australia. Complaint, ¶¶ 10, 20. The Complaint notes that the submarine

was being provided to the Museum gratis. Obviously, operating a large public Museum is an

activity “peculiar to sovereigns” (Saudi Arabia, supra, 507 U.S. at 360), and receiving the loan

of a submarine gratis for public display is not an activity in which private citizens engage.

Williams v. Nat'l Gallery of Art, No. 16-CV-6978, 2017 U.S. Dist. LEXIS 154445, at *19

(S.D.N.Y. Sep. 21, 2017) (loan of painting to a museum in the U.S. not enough to invoke the

commercial activity exception to the FSIA). More importantly, however, a plaintiff’s claim does

not properly rest upon a foreign state’s commercial activity in the United States, 28 U.S.C.

§ 1605(a)(2), when that activity is ‘incidental’ to the foreign state’s activities outside the United

States. Leutwyler v. Office of Her Majesty Queen Rania Al Abdullah, 184 F. Supp. 2d 277, 292

(S.D.N.Y. 2001); EM Ltd. v. Banco Cent. De La Republica Argentina, 800 F.3d 78, 97-98 (2d

Cir. 2015), cert. dismissed, 136 S.Ct. 1731 (2016).

In order for there to be substantial contact with the United States within the meaning of

§ 1603(e), to establish an exception to Sovereign Immunity under § 1605, the commercial

activity must be either a regular course of commercial conduct or a particular commercial

transaction or act, the commercial character of which shall be determined by reference to its

nature rather than its purpose. § 1603(d); Nelson, supra, 507 U.S. at 356. Most importantly,

without substantial contacts in the United States outside of the act in question, there can be no

commercial activity under the first clause of § 1605(a)(2). Schoeps v. Bayern, 27 F. Supp. 3d

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540, 545 (S.D.N.Y. 2014), aff’d sub nom. Schoeps v. Freistaat Bayern, 611 F. App’x 32 (2d Cir.

2015). Here, the sole act of receiving the gratis loan of the submarine to Australia, to the extent

it was even an activity conducted in the United States at all, certainly does not meet the

“substantial contact” test of § 1603(e). Therefore no exception to the Museum’s protections

under the FSIA exists here.

C. The Public Policy of the United States is to Enforce the FSIA

The FSIA was passed to promote comity among nations. 28 U.S.C. § 1602. The United

States does not wish to be sued in the courts of foreign countries, and to secure that political

goal, the United States provides immunity to foreign countries in the courts of the United States.

Furthermore, assertions that a country waived the protections of the FSIA are construed

narrowly. Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991). Plaintiff’s

Complaint demonstrates no legal, political or commercial reason why the FSIA should not

provide complete immunity to the Museum. Accordingly, the claims stated in Plaintiff’s

Complaint, and all causes of action therein, should be dismissed as to the Museum.


Sovereign immunity and comity with the Commonwealth of Australia preclude this Court

from exercising jurisdiction over the Museum. The Museum respectfully requests that the Court




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dismiss Plaintiff’s Complaint, and all causes of action therein, as to the Museum, with prejudice

and without leave to amend. The Museum further requests oral argument of its motion.

Respectfully submitted,
By: Its Attorneys

/s/ Pamela L. Schultz

Pamela L. Schultz, ct27392
Cal. State Bar 269032
Forrest Booth
One California Street, 18th Floor
San Francisco, CA 94111
Telephone: 415-362-6000
Facsimile: 415-834-9070


I certify that on November 22, 2017, a copy of the foregoing was filed electronically and

served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by

e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone

unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may

access this filing through the Court’s CM/ECF System.

/s/ Pamela L. Schultz

Pamela L. Schultz, ct27392

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