BAZELON, Chief Judge:
Appellant filed a libel in personam against the Republic of Tunisia. D.D.C. Admiralty No. 27-62. A summons was issued addressed to the Republic to be served upon the Tunisian Ambassador to the United States. Appellee, the United States Marshal, made the following return upon the unexecuted summons: "The within named principal agent having Diplomatic Immunity and being listed in the Diplomatic List of the State Department cannot be served at Washington, D. C. * * *" Appellant then filed this mandamus action to compel appellee to serve the summons "in conformity with the dignity and respect to be accorded representatives of a foreign government." The court granted appellee's motion to dismiss.
The only issue is whether the Marshal's return provided an adequate reason for his refusal to serve the summons. The return indicated that the Ambassador was entitled to diplomatic immunity. If the Ambassador's diplomatic immunity would in fact have been violated by service of process, the Marshal's return was sufficient. For although courts will not allow a Marshal to avoid his duty to serve process merely because he notices the availability of a defense to the suit,
Although we have held that diplomatic immunity is violated by joining a diplomatic officer as a defendant to a suit, Carrera v. Carrera, 84 U.S.App. D.C. 333, 174 F.2d 496 (1949), we have never decided whether it is violated by service of process on a diplomatic officer in an attempt to join, not him, but his sending state. There is little authority in international law concerning whether service of process on a diplomatic officer as an agent of his sending country is an "attack on his person, freedom or dignity" prohibited by diplomatic immunity.
The judgment is
WASHINGTON, Circuit Judge (concurring):
I concur in the result for reasons which will appear. First, I believe it desirable to describe with some particularity the factual situation here presented.
1. The Republic of Tunisia, a sovereign state, was alone named as the respondent in the libel in personam filed on November 30, 1962, by a Greek corporation as libelant. No attachment of any property of the Republic was attempted. The libel prayed that process issue against the Republic of Tunisia.
Pursuant to our request, the Attorney General communicated to us the views of the Department of State, as expressed in a letter dated August 10, 1964, and signed by its Acting Legal Adviser, on this matter. The Department there advised us, inter alia, that "diplomatic representatives of foreign governments are not generally authorized to accept service of process on behalf of their government"; that "The establishment by one country of a diplomatic mission in the territory of another does not implicitly or explicitly empower that mission to act as agent of the sending state for the purpose of accepting service of process"; and that the "Department of State, as in the case of any other foreign office, may not impute such authority to the diplomatic mission of the sending state."
The State Department also told us that in the fall of 1962 the then Tunisian desk officer at the Department made "several informal inquiries" of officials of the Tunisian Embassy as to "whether the Embassy of Tunisia would be willing to accept service of summons in this case," and that he was informed that "the Tunisian Embassy would be unwilling to accept service of process."
This advice was supplemented by the State Department at the request of two members of the court in a second letter dated January 13, 1965. We were there advised, inter alia, in response to specific questions, that under the law of nations a duly accredited ambassador of another state is entitled to immunity from personal service by the United States Marshal of all process, inside or outside his Embassy, even though the basic suit names his sending state, rather than himself, as the party respondent;
In view of the advice of the Department, which we must respect (see footnote 7 infra), that the Ambassador of Tunisia has indicated that he is unwilling to accept service and that he is therefore immune from personal service in this suit under international law,
2. I agree that the Marshal's return of May 16, 1963, was more than adequate, even though he failed to state that he had attempted to ascertain whether the Ambassador would accept service. (As already pointed out, the record here suggests that he did so ascertain.) I would agree that the proper course of a complaining party seeking to serve process upon an accredited ambassador is to request the State Department to ascertain under accepted diplomatic practice whether diplomatic immunity, will be waived and service will be accepted in a particular case. I would also hold that the complaining party's proper course, if the answer is affirmative, is to request that the State Department make the diplomat's answer available to the court, and if the answer is negative the complainant should ordinarily discontinue its suit.
3. The libel in this case was filed by a foreign corporation and seeks a money judgment in the nature of damages against a foreign sovereign because of acts which took place at the port of La Gaulette, Tunis, Tunisia.
To allow maintenance of this suit would tend, in my opinion, to make the District Court an international court of claims, open to suits for money judgments by citizens of any foreign country against their own or another foreign sovereign. Apart from the many other difficulties involved, I do not think the great burden of maintaining courts to handle international cases of the kind presented here should be imposed upon the taxpayers of this country. Perhaps the libeling Greek corporation can successfully pursue its claim against the Republic of Tunisia
Although an ambassador may be served if he consents to service, the failure of the Marshal to state on the return that he attempted to ascertain whether the Ambassador would accept service voluntarily did not render the return inadequate. We do not think that the Marshal should be burdened with a duty to investigate whether diplomatic immunity will be waived. Rather that burden should rest on the party seeking service.
The Vienna Convention has been signed by 63 states, including the United States. It came into force on April 24, 1964, having been finally accepted by 28 states. The treaty is now before the United States Senate for its advice and consent to ratification. See Maktos, Diplomatic Immunity, 31 D.C.BAR J. 227, 231 (1964).
We consider that we may properly (and perhaps must) consider as truthful and reliable the statements of the Department as to the activities of the Department and its officials in dealing with the representatives of Tunisia. See note 6, infra; cf. Shaffer v. Singh, 120 U.S. App.D.C. ___, 343 F.2d 324 (1965).
"The first question is whether the diplomatic immunity of an ambassador would preclude service on him by a United States marshal when the ambassador is outside of his embassy and when the process does not purport to join him as a party to a judicial action, or to compel his attendance in court, or to require other action by him, but rather purports to join his sending state as a party in a pending action. According to the law of nations, an ambassador who has been accepted and received as such by the President, and is still accredited, is entitled to personal inviolability. It has long been considered that an ambassador is immune from the service of all process, in the absence of a waiver of immunity, or of an indication that he is willing to accept service on behalf of his government or some other person. Diplomatic immunity is derived from the law of nations and is not limited to service of process in actions naming an ambassador as a party or requiring his presence in court.