The opinion of the court was delivered by: CAHN
Plaintiff is a longshoreman. On August 14, 1978, plaintiff was employed by Northern Shipping Co. (a stevedore) and was engaged in discharging cargo from the M/V Chocano. M/V Chocano is a merchant vessel owned and operated by the defendant, Cia. Pervana De Vapores, S.A. During the course of his work, plaintiff was injured. Alleging that his injuries were caused by the negligence of defendant, plaintiff instituted the instant action for damages pursuant to § 5(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). Plaintiff's complaint contained a demand for a jury trial. Jurisdiction over plaintiff's action in this court was allegedly based on 28 U.S.C. § 1332, commonly called diversity jurisdiction. In brief and argument plaintiff's counsel also asserted jurisdiction under 28 U.S.C. §§ 1330 and 1331.
M/V Chocano is an ocean-going vessel engaged in foreign commerce and is registered in Peru. Defendant is a Peruvian corporation all of whose stock is owned by the sovereign State of Peru. Defendant alleges that, as an "agen(t) or instrumentality of a foreign state" as defined in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602, 1603(b)(2), jurisdiction in this court may only be based on 28 U.S.C. § 1330(a). Since jurisdiction under 28 U.S.C. § 1330(a) is limited to "non-jury" civil actions, defendant has made a motion to strike plaintiff's demand for a jury trial. That motion, and the question of statutory interpretation which it presents, is the issue before the court.
As a doctrine of international law, foreign sovereigns have enjoyed a limited immunity from suit in United States courts. Courts have traditionally deferred to the practice and policies of the State Department of the federal government in deciding on the application of the immunity doctrine to a foreign sovereign. See Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 96 S. Ct. 1854, 48 L. Ed. 2d 301 (1976); Mexico v. Hoffman, 324 U.S. 30, 65 S. Ct. 530, 89 L. Ed. 729 (1945); H.R.Rep.No.94-1487, U.S. Code Cong. & Admin. News 1976, p. 6604, 122 Cong.Rec. 6604 (1976) (hereinafter House Report). This system presented various practical problems in modern times, and after years of deliberation and consultation with the State Department, the Office of Foreign Litigation of the Justice Department, and the private bar, Congress formulated a comprehensive new approach to procedural issues involving suits against a foreign sovereign. The result was the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602, et seq. (hereinafter the FSIA).
The main purpose of the FSIA was to confer on the United States District Courts the authority to determine when the doctrine of sovereign immunity is to be invoked to bar an action against a foreign sovereign and to provide standards for that determination. See 28 U.S.C. § 1602; House Report. In addition the FSIA sought to provide comprehensive guidelines for attachments, service of process, jurisdiction, and other procedural problems related to suits against foreign sovereigns. In doing so the FSIA amended and added to the sections of Title 28, Chapter 95 of the United States Code which set forth the jurisdiction of the United States District Courts. Therein lies the crux of the present problem.
A. STATUTORY CHANGES UNDER THE FSIA
Prior to the FSIA, 28 U.S.C. § 1332(a) read:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 10,000, exclusive of interest and costs, and is between
(1) citizens of different States;
(2) citizens of a State, and foreign states or citizens or subjects thereof; and
(3) citizens of different States and in which foreign states or citizens or subjects thereof are additional parties;
The FSIA amended § 1332 as follows:
SEC. 3 That section 1332 of title 28, United States Code, is amended by striking subsections (a)(2) and (3) and substituting in their place the following:
"(2) citizens of a State and citizens or subjects of a foreign state;
"(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
"(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or different States.'
In addition the FSIA inserted the following new section into Chapter 95 of Title 28:
(a) The district courts shall have original jurisdiction without regard to amount in controversy of any non-jury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.
The rest of the FSIA was inserted into Title 28 as a new chapter, Chapter 97, entitled "Jurisdictional Immunities of Foreign States." Section 1603 of the new chapter provided:
For purposes of this ...