Mr. Ernest Angell of Messrs. Hardin & Hess to the Secretary of State

Sir: We address you with further reference to the case of Oliver American Trading Company, Inc., plaintiff, vs. The Government of the United States of Mexico and National Railways of Mexico, defendants, still pending in the United States District Court for the Southern District of New York, wherein we represent the defendants. Judge Knox has lately rendered a decision granting defendants’ motion for dismissal of the action and the vacating of the attachment on the ground that the defendants are entitled to the immunity accorded a friendly foreign sovereign. You may remember that I discussed some features of this case with you in Washington last May. We enclose copies of the opinion for your information.39 No order thereon has yet been entered.

Plaintiff has now served formal notice that it will appeal the decision by writ of error to the United States Supreme Court40 and [Page 576] that at the time of the entry of an order on Judge Knox’ decision, plaintiff will ask for a stay pending final determination by the Supreme Court. Such stay would normally have the effect of maintaining the existing levies of attachment on the property of the Government of the United States of Mexico in New York City for many months to come.

In view of the formal and complete recognition by the Government of the United States of the Government of the United States of Mexico, this litigation is, we venture to suggest, no longer private in character, and we believe the State Department should be fully advised of all further steps in the proceedings in order that appropriate action may be taken.

On behalf of the Government of the United States of Mexico we respectfully request that through the customary channels the United States Attorney in New York be requested to appear before Judge Knox, in conjunction with ourselves as attorneys of record for the defendants, upon the plaintiff’s application for a stay and for the maintenance of the existing levies of attachment on defendants’ property. The question of whether the property of a friendly foreign sovereign should be continued in sequestration by the operation of supersedeas, as in the ordinary action at law between private litigants, is a question of public international law. We will urge upon the court the contention that as no process may issue against such a foreign government duly recognized, so therefore no process against its property should be continued in force by supersedeas under international comity and practice, and that any present order, stay or supersedeas continuing the attachment would be in the nature of a deliberate affront to the foreign sovereign. We are confident the Department will desire to consider the implications of any such step and to express its views in the usual manner at the hearing.

Plaintiff’s application will probably be heard about the middle of next week and if the United States Attorney here will put himself in touch with us we will be pleased to cooperate with him. Very respectfully yours,

Ernest Angell
  1. New York Law Journal, Oct. 18, 1923, p. 209.
  2. See 264 U. S. 440. The case was transferred to the Circuit Court of Appeals for the Second Circuit, which sustained the decision of the District Court; see 5 Fed. (2d) 659.