Digest of United States Practice in International Law

contacts with other maritime nations: Great Britain (the place of the accident); Panama (the state of the vessel's flag); Portugal (the state of the injured seaman's nationality); the Netherlands Antilles (the shipowner's state of allegiance); and the Netherlands (the place of contracting).

The Court, Judge Fisher said, was not "misled" by the facade of Panamanian vessels and Netherlands Antilles corporations. The three Jackson Marine defendants operated as a whole throughout the world, since Jackson Marine, Inc., headquartered in Texas, controlled Jackson Marine, S.A. and Jackson Marine Services, N.V. through stock ownership, interlocking directorates, and control of assets. The Court was "compelled to conclude that for the purposes of subject matter jurisdiction the Plaintiff was employed by an American corporation on an American ship which, for all practical purposes, was operated from a home office in Texas."

The court also denied the defendants' motion for stay pending the outcome of an earlier action filed in England by the plaintiff against Brown & Root (U.K.) Ltd., and afterwards amended to name Jackson Marine, S.A. as a defendant. The plantiff had sought, without success, to discontinue the English action prior to bringing suit in the Eastern District of Texas; and the British court had also "perpetually" enjoined him from proceeding in the United States or elsewhere against any of several potential defendants. Rejecting recognition of the injunction as a matter of comity, the Court pointed out that the parties in the two actions were not identical, and that even if the plaintiff were to recover in the English courts against Jackson Marine, S.A., a Panamanian corporation, he might be unable to collect on the judgment as that defendant might not have reachable assets. It was thus fairly possible, the Court said, that a stay would "work damage" to the plaintiff. Judge Fisher assumed, but did not decide, that modern principles of collateral estoppel would preclude the plaintiff from litigating issues resolved adversely to him in a previous proceeding.

United Nations Convention on Contracts for the

International Sale of Goods

The United States Delegation to the United Nations Conference on Contracts for the International Sale of Goods, held at Vienna, March 10-April 11, 1980, reported to the Department of State at its conclusion that the conference of 62 states had on April 10 adopted the final text of a United Nations convention on that subject as well as a

protocol to conform the 1974 Convention on the Limitation Period in the International Sale of Goods to the newly adopted convention (both opened for signature on April 11, 1980).

American Embassy Vienna to Dept. of State, tel. 4515, Apr. 11, 1980.

The U.S. delegation consisted of Professor E. Allan Farnsworth, Columbia University School of Law, Professor John O. Honnold, Jr., University of Pennsylvania Law School, and Peter H. Pfund, Assistant Legal Adviser for Private International Law, Department of State. Professors Farnsworth and Honnold acted as co-chairmen of the delegation.

The United Nations Convention on Contracts for the International Sale of Goods (CIGS) provides uniform substantive law on the formation of the sales contract and the rights and obligations of the buyer and seller, provided the contract is silent on applicable law and the parties have not, by the express terms of the contract, derogated from any of the Convention's provisions, or entirely opted out of having it apply.

The Convention was the culmination of a half-century of international collaboration, beginning with the establishment by the International Institute for the Unification of Private Law (UNIDROIT) in 1930 of a committee of experts to prepare a uniform law for international sales. An international conference held at The Hague, Apr. 2-Apr. 25, 1964, adopted two UNIDROIT-prepared conventions, which were opened for signature, July 1, 1964: the Convention on the Uniform Law on the International Sale of Goods, 834 UNTS 107; and the Convention on the Uniform Law on the Formation of Contracts for the International Sale of Goods, 834 UNTS 169.

In the meantime, the Hague Conference on Private International Law had approved a Convention on the Law Applicable to International Sales of Goods, on June 15, 1955. The United Nations Commission on International Trade Law established at its second session, held in 1969, a Working Group on the International Sale of Goods, charged, inter alia, with ascertaining what modifications of the texts of the three conventions would render them more widely acceptable by countries of different legal, social, and economic systems, or whether it would be necessary to draw up a new text for the same purpose. At the Commission's eleventh session, in 1978, it adopted a draft Convention on Contracts for the International Sale of Goods and recommended convening an international conference of plenipotentiaries to consider the draft. In its resolution 33/93, adopted Dec. 16, 1978, the U.N. General Assembly adopted the recommendation, deciding also, that the conference consider the desirability of preparing a Protocol to the Convention on the Limitation Period in the International Sale of Goods, adopted at New York, June 14, 1974.

For the text of the Convention, see United Nations Conference on Contracts for the International Sale of Goods, Off. Rec., A/CONF. 97/19 (1981); Int'l Legal Materials, Vol. 19 (1980), pp. 668-699. The U.N.-certified English text of the Convention, appended to Dept. of State Public Notice 1004, may be found at Fed. Reg., Vol. 52, No. 40, Mar. 2, 1987, at pp. 6264-6280. A comprehensive analysis of the Convention and its background is at Honnold, Uniform Law for International Sales under the 1980 United Nations Convention (1982). See, also, as to the background of the Convention, Winship, "The Scope of the Vienna Convention on International Sales Contracts", in Galston and Smit, ed., International Sales: The United Nations Convention on Contracts for the International Sale of Goods (1984), pp. 1-3 — 1-13, and works therein cited.

On Sept. 21, 1983, President Ronald Reagan transmitted the United Nations Convention on Contracts for the International Sale of Goods, opened for signature at

Vienna, Apr. 11, 1980 (which was signed on behalf of the United States at U.N. Headquarters on Aug. 31, 1981), to the Senate for advice and consent to ratification. The President's letter of transmittal was accompanied by a report on the Convention from Secretary of State George P. Shultz, dated Aug. 20, 1983, and a legal analysis relating Convention provisions to the corresponding provisions of the Uniform Commercial Code, Sales Article. S. Treaty Doc. 98-9, 98th Cong., 1st sess. (1983).

For the hearings, including subsequent written questions and answers, see International Sale of Goods: Hearing on Treaty Doc. 98-9, Proposed United Nations Convention on Contracts for the International Sale of Goods, before the Sen. Comm. on For. Relations, S. Hrg. 98-837, 98th Cong., 2d sess. (1984).

See, also, S. Ex. Rept. 99-20, 99th Cong., 2d sess. (1986).

On Oct. 9, 1986, by a vote of 98 yeas to no nays, with two Senators absent and not voting, the Senate gave its advice and consent to ratification of the U.N. Convention on Contracts for the International Sale of Goods, subject to a declaration that pursuant to Art. 95 the United States would not be bound by subpar. (1)(b) of Art. 1. The effect of the declaration, which the Dept. of State recommended, is that an American court would apply the Convention only under the circumstances provided for by subpar. (1)(a) of Art. 1; namely, to sales with an international character, i.e., the seller and the buyer have their places of business in different countries (in both of which the Convention is in force).

For the Senate vote, see Cong. Rec., Vol. 132, No. 139 (daily ed. Oct. 9, 1986), pp. S15768, S15773.

Hague Convention on the Civil Aspects of
International Child Abduction

On October 24, 1980, the Fourteenth [Quadrennial] Session of the Hague Conference on Private International Law unanimously adopted the Hague Convention on the Civil Aspects of International Child Abduction, which was opened for signature the following day, October 25, 1980.

The Convention is "designed to deter the international abduction of children in custody-related disputes" by establishing "an expedited and simplified legal proceeding for the prompt return of an abducted child and a system of governmental 'Central Authorities' in each country to assist with locating and returning abducted children." Dept. of State File No. P82 0007-1520.

In the Report of the United States Delegation to the Fourteenth Session of the Hague Conference on Private International Law at The Hague, The Netherlands, October 6-25, 1980, submitted to the Secretary of State, the Chairman of the Delegation, Peter H. Pfund, Assistant Legal Adviser for Private International Law, stated that the delegation had forcefully argued for provisions necessary to make the Convention potentially acceptable to the United States; and he made the following other comments and recommendation:

While the Convention is, perhaps, not the ideal that the United States delegation might have wished, it represents nonetheless a document reflecting a painstakingly achieved consensus of impressive experts from the participating states.

The United States played an important part in the preparation of the final convention and many of its major proposals at the 14th Session were accepted. The delegation is not aware of any provision now in the Convention that would bar the United States from becoming a party to it, nor were any provisions vital for United States acceptance left out.

The eventual success of the Convention will depend on whether states become parties to it and how they, i.e., their courts, implement its return obligations. The final convention has, we believe, good prospects of making a real and favorable contribution to resolving the problems of international child abduction.

The delegation recommends that the Secretary of State's Advisory Committee on Private International Law and the Department of State itself give favorable consideration to this Convention with a view to having the United States become a signatory state as soon as possible, and with a view to ratifying the Convention without delay once the details of its implementation have been studied and worked out.

Dept. of State File No. P84 0102-0709.

In a memorandum to then Acting Secretary of State William Clark, dated Dec. 9, 1981, recommending U.S. signature of the Convention, Davis R. Robinson, then the Legal Adviser of the Department of State, enclosed a Memorandum of Law prepared by Asst. Legal Adviser Pfund, that read in part:

This is an appropriate exercise of the treaty power. Federal legislation was recently enacted with respect to interstate child abductions, requiring that full faith and credit be given by every State to child custody determinations of other States that meet requirements reflecting those of the Uniform Child Custody Jurisdiction Act (UCCJA). This legislation, entitled the Parental Kidnaping Prevention Act of 1980 (P.L. 96-611), authorizes use of the Federal Parent Locator Service in connection with the enforcement or determination of child custody and in cases of parental kidnaping, also with respect to federal assistance in kidnaping under the Fugitive Felon Act (18 U.S.C. 1073). Eventual ratification and implementation of the Hague Convention would extend federal government involvement in this area of family law to cases of international child abduction.

Dept. of State Staff Secretariat Doc. No. 8135635.

The Convention was signed for the United States on Dec. 23, 1981.

The Fourteenth Session of the Hague Conference on Private International Law also recommended to States becoming Parties to the Convention on the Civil Aspects of International Child Abduction that a form for making applications for the return of wrongfully removed or retained children contain as a minimum the following information:

REQUEST FOR RETURN

Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.