Foreign Relations of the United States: Diplomatic Papers, 1944, The American Republics, Volume VII

810.5051/44

Memorandum of Conversation, by Mr. Joseph N. DuBarry, Divisional Assistant, Supply and Resources Division

[Washington,] April 13, 1944.

Participants:	Mr. Francis A. Truslow, Rubber Development Corporation
	Mr. D. T. Easby, Jr., Foreign Economic Administration
	Mr. K. R. Iverson, CIAA42
	Mr. H. Clay Johnson, Reconstruction Finance Corporation
	Mr. Flournoy, Le43
	Mr. Wright, ARA44
	Mr. Keith, BOL45
	Mr. Atwood46
	Mr. DuBarry, SR

The meeting was called to discuss telegram 679 of April 11, 1944 from Bogotá (file 810.5051/44) which requests the Department to reconsider its decision that RDC should not submit to the jurisdiction of Colombian courts by any waiver of sovereign immunity.

Mr. Truslow pointed out that the first part of the numbered paragraph 1 in 679 seemed to be in direct conflict with A–50 of January 20 from Bogotá. He stated that the great majority of the types of claim mentioned are covered by insurance. Mr. Truslow also stated his disagreement with the second part of the same paragraph and pointed out that A–50 had in substance recommended that RDC take out insurance to protect itself against becoming a defendant in court actions abroad. He expressed his opinion that there would probably be more “unjustified” claims against RDC (and other agencies) if they agreed to submit to jurisdiction than if only diplomatic channels were open to claimants. He restated his point that RDC had been most liberal in settling out of court claims which might be considered justifiable. The representatives of the other agencies concurred generally.

It was felt, in regard to numbered paragraph 2, that refusal to submit to jurisdiction would not as a matter of law prevent US Government agencies from seeking recourse as plaintiffs, although it might as a matter of practice mean that agency claims should be submitted through diplomatic channels.

With reference to numbered paragraph 3, it was felt that an overall policy leading to claims of sovereign immunity in every case would, if anything, strengthen the position, prestige and effectiveness of the agencies abroad. Mr. Truslow pointed out that RDC had made every effort to set itself up in the minds of the people as a United States Government agency—as the US Government—and expressed his feeling that submission to jurisdiction would tend to destroy that position and RDC’s effectiveness.

It was pointed out, in reference to numbered paragraph 4, that the problem under consideration is immunity of an agency, as such, and not of an employee of the agency. It was also pointed out that American courts are most liberal in granting immunity in this country where foreign government agencies are defendants, at least where immunity is certified by the Department of State.

With respect to numbered paragraph 5, the difference between diplomatic immunity and sovereign immunity of an agency was recognized but not considered reason for an agency to submit to jurisdiction abroad.

It was pointed out that as far as the four agencies represented are involved this suit is apparently the first to arise in over two years of operation abroad. Hence, it would not appear that the volume of claims to be handled through diplomatic channels would be very large.

The FEA, RDC and RFC representatives expressed their desire for a policy of not submitting to jurisdiction in any country, at any time, on any claim. The CIAA representative expressed general agreement although he stated that CIAA might wish to examine individual cases. He stated that in all probability such examinations would result in decisions not to submit.

It was felt that any decision on this question might well have a broad effect, particularly since direct operation abroad by US agencies is a recent and widespread development and perhaps a lasting one. It was agreed that the decision is one of major policy, and it was suggested that the problem might be a subject for discussion by the Policy Committee of the Department of State. It was understood that Mr. Flournoy would see Mr. Hackworth,⁴⁷ asking him if he would care to place the matter before the Policy Committee.

42. Office of the Coordinator of Inter-American Affairs.
43. Richard W. Flournoy, Assistant to the Legal Adviser.
44. James H. Wright, Assistant to the Director, Office of American Republic Affairs.
45. Gerald Keith, Chief, Division of Bolivarian Affairs.
46. Rollin Salisbury Atwood, political economist, Division of North and West Coast Affairs.
47. Green H. Hackworth, Legal Adviser.