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October 4, 1966

Mataushas VALANGA, a/k/a Mataushas Lalanga, a/k/a Mike Valanga

The opinion of the court was delivered by: LORD, JR.

 JOHN W. LORD, Jr., District Judge.

 This is a suit by a Russian beneficiary to recover the proceeds from a life insurance policy. Defendant, Metropolitan Life Insurance Company, has not filed an answer to plaintiff's complaint, but instead has presented a motion to dismiss for lack of subject matter jurisdiction, or, in the alternative, requests a stay of these proceedings pending the outcome of a prior state action begun by plaintiff involving the same insurance proceeds.

 The insured, Andy Valanga, was the plaintiff's deceased brother. Employed by a Pennsylvania steel spring manufacturer, the insured enrolled under a group insurance program provided by his employer and underwritten by Metropolitan. The policy was issued on March 1, 1950 for the face amount of $3,500. The insured designated the plaintiff as the beneficiary, indicating to Metropolitan that plaintiff was a Russian citizen by listing a Lithuania, U.S.S.R. address. Premiums were accepted by Metropolitan without any indication that listing a Russian beneficiary was an irregularity. The insured died on August 23, 1953. On April 19, 1954 Metropolitan notified plaintiff of his right to claim the proceeds of the policy. On October 28, 1963 plaintiff presented his claim to Metropolitan through an authorized Philadelphia attorney. Metropolitan's reply to the request for payment, dated November 6, 1963, was that a company policy barred any payment to a payee in a country behind the Iron Curtain such as Lithuania.

 Plaintiff brought suit by foreign attachment against Metropolitan in the Common Pleas Court of Philadelphia County, Pennsylvania, on December 17, 1965 (December Term, 1965, Common Pleas No. 5, No. 957). On May 31, 1966 he began the present action in this Court.


 Metropolitan's challenge to the subject matter jurisdiction of this Court at such an early juncture is proper, for if this Court is without proper jurisdiction, further proceedings become pointless. Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585, 588 (3rd Cir. 1962). Federal district courts are of limited jurisdiction and are dependent upon statutory implementation by Congress of the federal judicial power originating in Article III of the Constitution in order to have jurisdiction. Wright, Federal Courts § 7 (1963); Wechsler, The Courts and The Constitution 7 (1965). As a consequence, the jurisdiction of this Court must always be properly demonstrated. There is no presumption of jurisdiction. Hanford v. Davies, 163 U.S. 273, 16 S. Ct. 1051, 41 L. Ed. 157 (1896); Smith v. McCullough, 270 U.S. 456, 46 S. Ct. 338, 70 L. Ed. 682 (1926); Le Mieux Bros., Inc. v. Tremont Lumber Co., 140 F.2d 387 (5th Cir. 1944); Continental Carriers, Inc. v. Goodpasture, 169 F. Supp. 602 (M.D.Ga.1959). Conversely, overly technical dismissals because of inadvertent defects are to be avoided. Moore v. Coats Co., 270 F.2d 410 (3rd Cir. 1959). The right to amend is readily accessible. 28 U.S.C.A. § 1653 provides: "Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."

 Plaintiff asserts jurisdiction under 28 U.S.C.A. § 1350 (hereafter referred to as " § 1350"). This section provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

 This particular jurisdictional grant has proven troublesome. Originating in the Judiciary Act of 1789 (1 Stat. 73), the section has been preserved except for minor changes in language. In spite of the age of § 1350, "* * * authorities applying it are scant." Khedivial Line, S.A.E. v. Seafarers' International Union, 278 F.2d 49, 52 (2nd Cir. 1960). The most current comprehensive review of authorities construing § 1350 can be found in the excellent opinion of my colleague Judge Van Dusen in Lopes v. Reederei Richard Schroder, 225 F. Supp. 292 (E.D.Pa.1963). See also, Damaskinos v. Societa Navigacion Interamericana, S.A., Pan., 255 F. Supp. 919 (S.D.N.Y.1966). The Lopes case involved a suit by an alien longshoreman against his employer for personal injuries. The plaintiff alleged unseaworthiness and negligence as the basis for recovery. Jurisdiction was based on § 1350. Judge Van Dusen granted defendant's motion to dismiss for lack of subject matter jurisdiction. Without deciding the question of what constitutes a "tort only" as that phrase is used in § 1350, Judge Van Dusen held that neither unseaworthiness nor negligence constituted a "violation of the law of nations or a treaty of the United States" within the purview of § 1350.

 It is difficult to understand how plaintiff can persuasively contend that his obvious contract action attempting recovery of insurance proceeds should be typified a "tort only" under § 1350. While "tort" law embodies a broad spectrum of legal remedies, it is a word of legal art and it would be placing a severe strain on the framers' plain meaning to maintain that a suit to recover funds due to a beneficiary of an insurance contract should be construed for jurisdictional purposes to be a tort. However, further development of what conduct constitutes a "tort only" is unnecessary, for, quite plainly, plaintiff has failed to demonstrate any "violation of the law of nations or a treaty of the United States" which are indispensible prerequisites to proper jurisdiction under § 1350.

 Prior case law treatment of § 1350 jurisdiction does provide insight into the scope and meaning of the phrase "law of nations" as used within the ambit of § 1350. In the Lopes decision, these authorities were summarized as follows:

The judicial decisions recognizing and enforcing 'the law of nations' under § 1350 do not fully explain or define that phrase. At best, the cases arising under this section show only the connotation of 'in violation of the law of nations.' This phrase has been held to include acts such as the unlawful seizure of a vessel and its disposition as a prize, the seizure of neutral property upon the ship of a belligerent, unjustified seizure of an alien's property in a foreign country by a United States officer, failure to accord comity to ships of foreign countries, and concealment of a child's true nationality coupled with the wrongful inclusion of that child on another's passport. Ibid. at 296, n. 14-18.

 As the Lopes case suggests, not all the cases treating § 1350 are particularly helpful. A clear indication of what conduct will establish jurisdiction under § 1350 can be found in Abdul-Rahman Omar Adra v. Clift, 195 F. Supp. 857 (D.Md.1961). In the Adra case the plaintiff was an alien, a citizen of Lebanon. Plaintiff requested that the District Court award him custody of his daughter who was living with his divorced wife, the mother of the child and defendant to the suit. The father asserted jurisdiction under § 1350 and the court found such proper. The court found further that the unlawful deprivation of the child from the father was tortious. The element of a "violation of the law of nations", prerequisite for § 1350 jurisdiction, was established when it had been disclosed that the defendant was taking the child from country to country on her own passport by falsifying the true nationality of the child in clear and open violation of the laws of the United States and Lebanon. Conduct, such as that found in the Adra case, does indicate the type of conduct considered to be within the ambit of § 1350. Such conduct transcends the violation of local norms embodied in local domestic relations and personal injury actions since it is injected with overtones which impinge upon the standards which nations have ...

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