(a) civil aircraft of the United States; (b) aircraft of the national defense forces of the United States; and (i) within the United States, or (ii) outside the United States which has its next scheduled destination or last point of departure in the United States provided that in either case it next actually lands in the United States. For the purpose of this definition, an aircraft is considered to be in flight from the moment when power is applied for the purpose of takeoff until the moment when the landing run ends. On July 9, 1974, the United States Mission to the United Nations sent a note to the U.N. Secretary-General stating that the United States did not find acceptable the reservations made on December 27, 1973, by the Geman Democratic Republic (G.D.R.) to Article 20 of the 1958 Convention on the Territorial Sea and the Contiguous Zone (TIAS 5639; 15 UST 1606; entered into force for the United States September 10, 1964), and to Article 9 of the 1958 Convention on the High Seas (TIAS 5200; 13 UST 2312; entered into force for the United States September 30, 1962). The G.D.R. reservation to Article 20 of the Convention on the Territorial Sea and the Contiguous Zone provides that the G.D.R. "considers that government ships in foreign territorial waters have immunity and that the measures set forth in this Article may therefore apply to such ships only with the consent of the flag state." The reservation to Article 9 of the Convention on the High Seas states that the G.D.R. "considers that the principle of international law according to which a ship on the high seas is not subject to any jurisdiction except that of the flag state applies without restriction to all government ships." The U.S. note of July 9 said that the U.S. Government "does not find acceptable" the reservations, but "considers those Conventions as continuing in force between it and the German Democratic Republic except that provisions to which the above-mentioned reservations are addressed shall apply only to the extent that they are not affected by those reservations." Dept. of State File No. P74 0132-0262. The G.D.R. reservations may also be found at U.N. reference C.N. 272.1973. TREATIES-6, Feb 8, 1974 Art. 20 of the Convention on the Territorial Sea and the Contiguous Zone provides: 1. The coastal state should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. 2. The coastal state may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal state. 3. The provisions of the previous paragraph are without prejudice to the right of the coastal state, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. Article 9 of the Convention on the High Seas provides: Ships owned or operated by a state and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any state other than the flag state. On May 10, 1974, the United States Court of Appeals for the Ninth Circuit held, in In re Letters Rogatory from the City of Haugesund, Norway, 497 F.2d 378 (1974), that service of a Norwegian notice on the appellant was proper under 28 U.S.C. 1782 relating to service in foreign and international litigation. 28 U.S.C. 1782 provides in part: (a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued. . . by a foreign . . tribunal . . . and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. . . . A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. In November 1971, the Embassy of Norway in Washington transmitted to the U.S. Government a request for judicial assistance under 28 U.S.C. 1782 in connection with a letter rogatory issued by the City Court of Haugesund, Norway. The letter rogatory sought testimony from appellant regarding a paternity suit instituted against him in Norway and also requested delivery to appellant of a "Notice to Party to Appear at Final Hearing" if he refused to waive notice of subsesequent court proceedings in Norway. A U.S. magistrate had been appointed by the U.S. District Court for the District of Oregon to carry out the request of the letter rogatory. A notice of deposition was served on appellant in November 1971, whereupon he moved for a protective order to stay the taking of the de position and the service upon him of the Norwegian notice, but this motion was denied, and a hearing held in January 1972. Appellant refused to answer the question whether he had been in Norway in 1969 on the ground of self-incrimination in Norway. He was directed to answer and again refused. The Magistrate then asked him whether he waived notice of later court proceedings in Norway. He refused to waive notice, and was served with the "Notice to Party to Appear at Final Hearing." Appellant moved in the District Court to quash service of the Norwegian notice and appealed the ruling of the Magistrate to the Court. The District Court denied his motions for a protective order and to quash service of the notice. He was ordered to answer the questions put to him in the proceedings. He then appealed to the Ninth Circuit. The Court of Appeals held first that the District Court order that he answer the questions was interlocutory, not final, and thus the Court of Appeals could not review it. The Court held further that the service upon the appellant of the "Notice to Party to Appear at Final Hearing" upon his refusal to waive notice of subsequent proceedings in Norway was proper. The Court cited 28 U.S.C. 1696 (a) which provides, in pertinent part: The district court of the district in which a person resides or is found may order service upon him of any document issued in connection with a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued . . . by a foreign tribunal . . . . Service pursuant to this subsection does not, of itself, require the recognition or enforcement in the United States of a judgment, decree, or order rendered by a foreign tribunal. The Court stated that the cases cited by appellant (such as In re Letters Rogatory Out of First Civil Court of City of Mexico, 261 F. 652 (S.D.N.Y. 1919) and In re Romero, 56 Misc. 319, 107 N.Y.S. 621 (Sup. Ct. 1907)) were decided long before the modern development of "long arm" jurisdiction. Further, they preceded the enactment of § 1696 (a) in 1964. The Court said that this legislation "provides the statutory authority to serve upon appellant any document related to a foreign proceeding." The Court also cited the House Report on the statute which stated that § 1696 (a) "permits desirable cooperation with foreign countries in the making of service within the United States. First, it makes clear that the inherent authority of U.S. courts to grant international judicial assistance includes the power to comply with requests for the making of service contained in a letter rogatory issued abroad. . . . Second, it specifically provides that judicial assistance under this subsection shall not, as a matter of Federal law, add any weight to the claim that the judgment, decree, or order rendered abroad is entitled to recognition in the United States." (House Rept. No. 1052, 88th Cong., 1st Sess., December 17, 1963, pp. 6–7.) On October 25, 1974, the U.S. District Court for the Eastern District of Michigan held, in the case of In re Letter Rogatory from the Justice Court, District of Montreal, Canada, 383 F.Supp. 857 (1974), that 28 U.S.C. § 1782 permits the use of letters rogatory in criminal proceedings as well as in civil cases. The case involved a motion to quash a subpoena issued in an attempt by a Canadian prosecutor to obtain records from the Detroit Bank and Trust Company relative to an American defendant in a Canadian prosecution. Pursuant to 28 U.S.C. § 1782, a subpoena duces tecum was signed by a U.S. District Judge in the Eastern District of Michigan on September 5, 1974, and served on the Detroit Bank and Trust Company. The defendant received notice from the Company on October 7, 1974, and immediately filed a motion to quash, on the ground that section 1782 did not authorize the use of letters rogatory in criminal proceedings, or, in the alternative, on the ground that the Court in its discretion should refuse to grant the subpoena because the information could be used improperly in the Canadian trial. The Court noted that the statute was silent with respect to whether criminal proceedings were intended to be excluded, and that the case law included no decisions on the point. The Court then turned to the legislative history, stating: .. The only helpful route for illuminating the question is to examine the legislative history of the statute, which has undergone two major revisions. Prior to 1949, the pertinent part of the section read," ... to be used in any civil action." In 1949 the language was amended to apply to evidence to be used in any "judicial proceeding." Finally, in 1964 it was amended to its present form quoted above. More, at 4B Moore's Federal Practice, Section 28.-09(2), interprets this course of events to mean that letters rogatory can now be used in both civil and criminal proceedings, by contrast with the prior language limiting their use to civil proceedings. The legislative history as reported in the U.S. Code Congressional Service unenlightening, reflecting for the 1949 amendment only that, "This amendment corrects restrictive language in section 1782 of 28 U.S.C., in conformity with original law and permits depositions in any judicial proceeding without regard to whether the deponent is 'residing in the district or only sojourning there." 1949 U.S. Code Cong. Service 1270. The legislative history of the 1964 amendment reflects the intention of Congress to specify with more exactness the boundary between judicial proceedings, for which letters rogatory would issue, and administrative agency proceedings, for which they would not. See, 1964 U.S. Code Congressional and Administrative News 3788. Nor is the case law cited by the parties any more helpful. No case cited to or discovered by the Court deals with the granting of a subpoena pursuant to foreign letters rogatory. With no guidance, therefore, but the history of the statute, the Court can only interpret the language in the manner which logically presents itself. The language is held to permit the use of letters rogatory in criminal proceedings, as well as in civil cases. As for the contention that the Court should use its discretion to refuse to grant the subpoena, the Court said: The movant has asked that this Court exercise that discretion because of the alleged impropriety of the use of the information in a criminal proceeding. Apparently, this impropriety rests on the theory that a potential denial of Sixth Amendment rights might result is a deposition were taken for use in the criminal trial in a manner which would deny the defendant the right to cross-examine the witness. That argument is not persuasive here because the government has assured the Court that [the defendant] will have an opportunity to cross-examine the deponent at the hearing to be held by the rogatory commission. This Court is not informed as to the procedures followed by the Canadian courts in criminal trials; but it is not appropriate, simply on the basis of the allegation of a possible procedure which may violate the defendant's U.S. constitutional rights, to assume that such rights will receive no protection under Canadian procedures. Such a position would not be in keeping with the doctrine of comity and the good relations and high regard between these two countries. 87 Sovereign Immunity Restrictive Theory Application In the case of Renchard, et al. v. Humphreys & Harding, et al., 381 F.Supp. 382 (1974), before the United States District Court for the District of Columbia, the Government of Brazil sought from the Department of State a suggestion of sovereign immunity. The said cause of action arose due to the alleged damage to the property of the plaintiffs as a result of the construction of the Brazilian Chancery on property adjoining that of the plaintiffs. The Department of State, in a note delivered to the Brazilian Ambassador in Washington on January 30, 1974, declined to make a suggestion of sovereign immunity. The note stated that the Department had concluded that the activities in question were "essentially of a private nature under the standards set forth in the Tate letter." The Department said it was "impressed by the fact that the contract |