Case of the Day: Tobar v. United States

USS McClusky. Photo credit: US Navy
USS McClusky. Photo credit: US Navy
The case of the day is Tobar v. United States, 731 F.3d 938 (9th Cir. 2013). In October 2005, in international waters off the Galapagos Islands, Coast Guard personnel on the USS McClusky, a US Navy frigate, boarded and searched an Ecuadoran fishing boat, the Jostyn, suspected of drug smuggling, and then towed the boat to Ecuador. Before the encounter, the United States Coast Guard attaché in Quito had requested permission from Ecuador, writing: “If there are no drugs on board, and there are damages or losses sustained by the vessel, in accordance to the US laws and in a manner complying with international laws, the owner of the vessel will be compensated, as long as neither the vessel nor the crew have been involved in illicit actions.”

Members of the crew sued the United States for damage to their boat and for other damages under the Public Vessels Act. Under the Act, a civil action in personam in admiralty may be brought against the United States for damages caused by a public vessel of the United States. 46 U.S.C. § 31102. However, a foreign national cannot bring such an action unless the court finds that his country’s government, “in similar circumstances, allows nationals of the United States to sue in its courts.” 46 U.S.C. § 31111. The main question in the case is whether Ecuador provides such reciprocity.

The plaintiffs submitted affidavits in support of its position. In particular, it submitted an affidavit of Nestor Arbito Chica, formerly the Ecuadoran Minister of Justice and Human Rights, stating that “The concept of any immunity for the government for wrongs committed by its agents simply does not exist in Ecuador.” The affidavits of Karina Peralta Velasquez, Senior Legal Adviser to the Secretary of Media of the Presidency of the Republic, was to the same effect:

I have been advised that according to common law, an individual, a foreign person cannot sue the American government in cviil cases. This is different for Ecuador, because we have no statutory law, and no restriction, which may impede any individual (national or foreigner) to sue the government. It is a principle of law in our Constitution (Art. 11) that the State is liable for infringements of the rights of individuals for negligence or inadequacies in the provision of public services or for the deeds or omissions of their public officials and employees in the performance of their duties. The State is also held liable for arbitrary arrest and detention, miscarriage of justice, etc.

The United States’s expert, Dr. Ricardo Vaca Andrade, an Ecuadoran law professor and “supplemental Judge,” opined that an action in the Ecuadoran courts “could hardly (or never) be successful, and could hardly (or never) result in a money judgment against the Ecuadorian military or Ecuadorian government entities. In other words, as a practical matter, there is no reciprocity.

Regardless of what one argues about the role, if any, Sovereign immunity plays in Ecuadorian law, I can say that there is nothing in the Constitution of Ecuador … which would absolutely guarantee reciprocity as to the hypothetical action.

Whether reciprocity may exist to whatever degree as a legal matter based on Constitutional and legal rules, as a practical matter, I believe it will be very hard, not to say impossible, to get a judicial decision against the government of Ecuador or the Navy. One must assume that if intended suits against the government and its military are actually permitted, it would be practically, not to say unthinkably, unlikely to get a favorable decision to hypothetical plaintiffs, especially now when the executive branch is reorganizing the entire judiciary system. In other words, no reciprocity exists as a practical matter.

The district court held that the United States had not waived its immunity because the plaintiffs had not shown that Ecuador granted reciprocity as required by the statute, but on appeal the Ninth Circuit reversed. It noted that the government never really explained the “practical considerations” in Vaca’s affidavit. In any case, those “practical considerations” seem to relate to a suit’s chance of success, not whether the suit may be brought, which is the inquiry the statute directs.

I’ve written about this case mostly because the government’s treatment of the Ecuadoran courts is interesting in light of the Lago Agrio case. The government submits an affidavit that I read as a very quiet indictment of the independence of the Ecuadoran judiciary (“… especially now when the executive branch is reorganizing the entire judiciary system”). But the government pulls its punches and never really says out loud what its expert seems to mean. Nor does the government make a real showing of any problems with the Ecuadoran judiciary, as, say, Chevron has sought to do in the RICO case.

But leaving aside the question mark the case creates about the executive branch’s view of the Ecuadoran judiciary, the case is an example of judicial comity between the two countries that is worth pondering in light of other pending cases I could mention.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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