hawaiioceanlaw.com: Venezuela Seizes Boat Fleet - Actionable Claims in U.S. Courts?

A former shipmate of mine asked me for my thoughts on the recourse an American company would have after a fleet of its boats were seized by a foreign government. Per this Marinelog.com post, Venezuela has apparently seized/nationalized an American company's vessel fleet in Lake Maracaibo.

My shipmate's question is a very complicated one worthy of several books, cases and law reviews (many exist), but in the interest of brevity and overview, here goes:

The "nationalization" or expropriation of assets is not a new happening on the world stage. From a legal perspective, a country's seizure of property within its borders was not viewed upon as actionable under U.S. law. See Banco Nacional de Cuba v. Sabatino, 376 U.S. 298 (1964)(adopting the act of state doctrine to exempt such seizures from review in U.S. courts).

In the wake of the Cuba expropriations and the Supreme Court's Banco decision, Congress adopted federal law that superceded the decision. This law, 22. U.S.C. 2370 provides:

(e) Nationalization, expropriation or seizure of property of United States citizens, or taxation or other exaction having same effect; failure to compensate or to provide relief from taxes, exactions, or conditions; report on full value of property by Foreign Claims Settlement Commission; act of state doctrine.
   (1) The President shall suspend assistance to the government of any country to which assistance is provided under this or any other Act when the government of such country or any government agency or subdivision within such country on or after January 1, 1962--
      (A) has nationalized or expropriated or seized ownership or control of property owned by any United States citizen or by any corporation, partnership or association not less than 50 per centum beneficially owned by United States citizens, or
      (B) has taken steps to repudiate or nullify existing contracts or agreements with any United States citizen or any corporation, partnership, or association not less than 50 per centum beneficially owned by United States citizens, or
      (C) has imposed or enforced discriminatory taxes or other exactions, or restrictive maintenance or operational conditions, or has taken other actions, which have the effect of nationalizing, expropriating, or otherwise seizing ownership or control of property so owned, and such country, government agency, or government subdivision fails within a reasonable time (not more than six months after such action, or, in the event of a referral to the Foreign Claims Settlement Commission of the United States within such period as provided herein, not more than twenty days after the report of the Commission is received) to take appropriate steps, which may include arbitration, to discharge its obligations under international law toward such citizen or entity, including speedy compensation for such property in convertible foreign exchange, equivalent to the full value thereof, as required by international law, or fails to take steps designed to provide relief from such taxes, exactions, or conditions, as the case may be; and such suspension shall continue until the President is satisfied that appropriate steps are being taken, and the provisions of this subsection shall not be waived with respect to any country unless the President determines and certifies that such a waiver is important to the national interests of the United States. Such certification shall be reported immediately to Congress.
   Upon request of the President (within seventy days after such action referred to in subparagraphs (A), (B), or (C) of paragraph (1)), the Foreign Claims Settlement Commission of the United States (established pursuant to Reorganization Plan No. 1 of 1954, 68 Stat. 1279 note]) is hereby authorized to evaluate expropriated property, determining the full value of any property nationalized, expropriated, or seized, or subjected to discriminatory or other actions as aforesaid, for purposes of this subsection and to render an advisory report to the President within ninety days after such request. Unless authorized by the President, the Commission shall not publish its advisory report except to the citizen or entity owning such property. There is hereby authorized to be appropriated such amount, to remain available until expended, as may be necessary from time to time to enable the Commission to carry out expeditiously its functions under this subsection.
   (2) Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of that state in violation of the principles of international law, including the principles of compensation and the other standards set out in this subsection: Provided, That this subparagraph shall not be applicable (1) in any case in which an act of a foreign state is not contrary to international law or with respect to a claim of title or other right to property acquired pursuant to an irrevocable letter of credit of not more than 180 days duration issued in good faith prior to the time of the confiscation or other taking, or (2) in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that case with the court.

The seizure may implicate U.S. law and give rise to claims against Venezuela if the expropriation was done in violation of international law. United Nations General Assembly Resolution 1803 may provide such violation if the seizure was done without compensation. If the owner is compensated, then it may not have recourse.

One mechanism used for other cases of expropriation is the Foreign Claims Settlement Commission. It appears that most of its cases are not run-of-the-mill claims but post-war, post-terrorist incident type matters.

Interesting issue to watch in these uncertain economic times.