dissenting.
I agree with the majority’s conclusion that when the Foreign Sovereign Immunities Act is fairly read, it must be construed as providing the sole basis of federal jurisdiction in actions against foreign states and their instrumentalities, as defined in the statute. Therefore, I agree that we cannot avoid the constitutional issue presented by the elimination of the right to jury trial in *70actions against corporations which are conducting the commercial enterprises of foreign states.
I dissent from the holding of the majority that a suit for damages against a corporation owned by a foreign state is not a suit “at common law” within the meaning of the Seventh Amendment. I believe that the majority deviates from the relevant precedent when it looks to the nature of the defendant rather than to the nature of plaintiff’s claim or rights. Further, I believe that the right to jury trial preserved by the Seventh Amendment may not be extinguished by Congress’ action in defining a “foreign state” to automatically include a corporation whose stock is owned by a foreign government. Accordingly, I would hold that the Foreign Sovereign Immunities Act is unconstitutional insofar as it denies plaintiff a jury trial merely because the defendant is a corporation in which a foreign state owns a controlling interest.
I.
Any analysis of the scope of the Seventh Amendment must begin with two guidelines enunciated by the Supreme Court in Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974). The Court there focused on the Seventh Amendment’s reference to suits “at common law” and stated that (1) “the right extends beyond the common-law forms of action recognized [in 1791]”, id. at 374, 94 S.Ct. at 1729 (quoting Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1974)) and (2) “[the Seventh] Amendment requires trial by jury in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action in equity or admiralty.” Id. at 375, 94 S.Ct. at 1729 (emphasis added).
The majority’s acknowledgement that the Seventh Amendment does not view common law as frozen in 1791 is mandated by the applicable precedent. See Pernell v. Southall Realty, 416 U.S. at 374-75, 94 S.Ct. at 1729; Curtis v. Loether, 415 U.S. at 193-95, 94 S.Ct. at 1007-1008; Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 735, 24 L.Ed.2d 729 (1970); Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-47, 7 L.Ed. 732 (1830); In re Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069,1078 (3d Cir. 1980). The relevant inquiry is whether the “rights and remedies” at issue are “of the sort” enforced at common law. Plaintiff in the present case is a United States citizen who seeks to recover tort damages for personal injuries he sustained as a longshoreman on a vessel owned by defendant while the ship was moored at a pier in Philadelphia. One cannot reasonably view the remedy sought as anything other than a traditional common law remedy. As the Court stated in Curtis v. Loether, 415 U.S. at 196, 94 S.Ct. at 1009, “the relief sought here— actual and punitive damages — is the traditional form of relief offered in the courts of law.”
The majority has jumped, without fully articulating why, from the question of the nature of the legal remedy sought to the question of the amenability of foreign sovereigns to suit at common law. The majority appears to have reframed the relevant question into whether there was a “right” to sue a foreign sovereign at common law. Since the majority concludes from The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812), and its progeny that there was no such right, it follows for the majority that there is no Seventh Amendment protection for the suit in question. In its route to this conclusion, the majority leapfrogs over pertinent factual, legal and historical distinctions, which, for me, impair the logic of both its analysis and conclusion.
Central to the majority’s focus on the nature of the defendant are the Supreme Court cases holding that suits against the United States, even when they are for monetary damages, do not require jury trials. See Lehman v. Nakshian, - U.S. -, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981); Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943). The majority *71analogizes the sovereign immunity of the United States to the immunity accorded to foreign sovereigns, and reasons that if the Seventh Amendment does not compel jury trials in suits against the former, it follows that it does not compel jury trials in suits against the latter. At 66. The analogy is inapt.
The sovereign immunity of the United States has been attributed to a variety of constitutional, historical, and metaphysical principles. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 517, 83 L.Ed. 784 (1939). Monaco v. Mississippi, 292 U.S. 313, 321, 54 S.Ct. 745, 747, 78 L.Ed. 1282 (1934) (sovereign immunity implicit in constitutional plan); Williams v. United States, 289 U.S. 553, 573, 53 S.Ct. 751, 757, 77 L.Ed. 1372 (1933) (same); Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907) (“[T]here can be no legal right as against the authority that makes the law on which the right depends.”) It may inhere in the separation of powers under which we conduct our affairs. Whatever its theoretical basis, since the United States as sovereign cannot be sued in its own courts without its consent,1 it follows that it may attach conditions to its consent to be sued, and that one of the conditions can be the elimination of trial by jury. See Glidden Co. v. Zdanok, 370 U.S. 530, 572, 82 S.Ct. 1459, 1484, 8 L.Ed.2d 671 (1962); United States v. Sherwood, 312 U.S. 584, 587, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941).
In contrast, the sovereign immunity of foreign states has no constitutional underpinning. National City Bank v. Republic of China, 348 U.S. 356, 359, 75 S.Ct. 423, 426, 99 L.Ed. 389 (1955); Wacker v. Bisson, 348 F.2d 602, 609 (5th Cir. 1965). Foreign sovereign immunity stems from notions of comity and expediency in the conduct of foreign affairs. See First National Bank v. Banco Nacional City de Cuba, 406 U.S. 759, 762, 92 S.Ct. 1808, 1810, 32 L.Ed.2d 466 (1972) (plurality opinion).2 The limits of the doctrine of foreign sovereign immunity were expressly noted by Justice Story in The Santissima Trinidad & The St. Andre, 20 U.S. (7 Wheat.) 283, 352-53, 5 L.Ed. 454 (1822):
In the case of The Exchange (7 Cranch 116, 3 L.Ed. 287), the grounds of the exemption of public ships were fully discussed and expounded. It was there shown, that it was not founded upon any notion that a foreign sovereign had an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another sovereign, when it came within his territory; for that would be to give him sovereign power beyond the limits of his own empire. But it stands upon principles of public comity and convenience, and arises from the presumed consent or license of nations, that foreign public ships coming into their ports, and demeaning themselves according to law, and in a friendly manner, shall be exempt from the local jurisdiction. But as such consent and license is implied only from the general usage of nations, it may be withdrawn upon notice, at any time, without just offence, and if afterwards such public ships come into our ports, they are amenable to our laws, in the same manner as other vessels. (Emphasis supplied)
*72Therefore, I believe the majority errs in assuming that the immunity of foreign states rests on the same basis as that of the United States. Since the analogy itself is misconceived, it cannot persuasively justify elimination of jury trials when a foreign sovereign is sued.
II.
It is not now necessary for us to decide the extent of Seventh Amendment applicability when suit is against a foreign sovereign for official actions taken in its governmental capacity. No such issue is presented because the FSIA provides immunity from suit in such instances. 28 U.S.C. § 1604. It is important, however, that we recognize that there has been a distinction historically observed between the foreign sovereign itself and its ownership interests.
Enterprises such as the defendant in the present case, a corporation wholly owned by the government of Peru, did not exist at the time the Seventh Amendment was adopted.3 When foreign state-owned corporations began to be formed, they were not accorded presumptive immunity from suit. More often than not, such corporations were amenable to suit and in no case was ownership determinative. Indeed, it seems that courts have uniformly declined to give decisive weight to the mere fact of ownership. In Coale v. Societe Co-operative Suisse des Charbons, 21 F.2d 180 (S.D.N.Y. 1921), the defendant was a Swiss corporation organized for the purpose of- importing and distributing coal. The Swiss government appointed seven of the seventeen directors, reserved the right to approve the by-laws, and was entitled to all net profits above 6 per cent. Plaintiff sued for breach of a sales contract signed for the defendant by the Swiss Finance Minister. In dismissing defendant’s claim of immunity, Judge Augustus Hand stated that “if the Swiss government chose to do its business by means of the Societe, the latter, as a corporate entity, was liable for its corporate obligations. I find no case which holds otherwise.” Id. at 181.
Similarly, in United States v. Deutsches Kalisyndikat Gesellschaft, 31 F.2d 199 (S.D.N.Y.1929), the court rejected the defense of sovereign immunity where defendant was a corporation owned and controlled by France engaged in mining potash: “A suit against a corporation is not a suit against a government merely because it has been incorporated by direction of the government, and is used as a governmental agent, and its stock is owned solely by the government.” Id. at 202. This same reasoning has led numerous other courts to reject claims of immunity interposed by corporate defendants. See, e. g., Hannes v. Kingdom of Roumania Monopolies Institute, 260 App.Div. 189, 198, 20 N.Y.S.2d 825, 833-34 (1940); Ulen & Co. v. Bank Gospodarstwa Krajowego, 261 App. Div. 1, 7, 24 N.Y.S.2d 201, 206 (1940); The Uxmal, 40 F.Supp. 258, 261 (D.Mass.1941); S. T. Tringali Co., Inc. v. The Tug Pemex XV, 274 F.Supp. 227, 230 (S.D.Tex.1967). Cf. Mexico v. Hoffman, 324 U.S. 30, 35 n. 1, 36-37, 65 S.Ct. 530, 532, 533 n. 1, 89 L.Ed. 729 (1945) (state ownership of merchant vessel does not, by itself, entitle vessel to immunity); The Beaton Park, 65 F.Supp. 211, 212-13 (D.D.C.1946) (same).
Even where the court ultimately recognized a claim of immunity, recognition was not based upon state ownership alone. For example, in In re Investigation of World Arrangements, 13 F.R.D. 280, 290 (D.D.C. 1952), the court, although holding that the Anglo-Iranian Oil Company was immune, stated that “in determining whether or not a given corporation is an instrumentality of its government it is not material whether the government owns all the stock.” The court defined the real question as “whether the corporate entity ... is of such a charac*73ter as to be recognized as a unit of the . . . Government.” Id. No case cited by appellant or the United States, which has intervened, undercuts or seriously challenges the line of authority set out above.4 Thus the relevant case law demonstrates that corporations such as the defendant in this case were subject to suit prior to the FSIA. The majority’s reliance on the immunity from suit of the foreign state itself is not to the contrary but is, rather, simply irrelevant.
Another reason to reject the majority’s automatic identification of the foreign state with commercial corporations in which the foreign state has an interest is the distinction observed at common law between the United States and the commercial corporations in which it had an interest. There is a consistent line of authority in the Supreme Court, the lower federal courts, and state courts holding that the attributes of sovereignty, including immunity, are not conferred upon a corporation by the mere fact of governmental ownership. See, e. g., Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. (9 Wheat.) 904, 906, 6 L.Ed. 244 (1824); United States v. Strang, 254 U.S. 491, 493, 41 S.Ct. 165, 166, 65 L.Ed. 368 (1921); Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S. 549, 565, 42 S.Ct. 386, 387, 66 L.Ed. 762 (1922); Olson v. United States Spruce Production Corp., 267 U.S. 462, 463, 45 S.Ct. 357, 357, 69 L.Ed. 738 (1925); Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 517, 83 L.Ed. 784 (1939); Federal Sugar Refining Co. v. United States Sugar Equalization Board, Inc., 268 F. 575, 585 (S.D.N.Y. 1920); Panama R. Co. v. Minnix, 282 F. 47, 49, 50 (5th Cir. 1922); Cox v. Lykes Brothers, 237 N.Y. 376, 382-83, 143 N.E. 226, 228 (1924).5 See also Thurston, Government Proprietary Corporations, 21 Va.L.Rev. 351, 372, 377 n. 67 (collecting cases), 379 n. 73 (collecting cases) (1935). As Chief Justice Marshall explained,
The suit is against the corporation, and the judgment is to be satisfied by the property of the corporation, not by that of the individual incorporators. The state does not, by becoming a corporator [sic], identify itself with the corporation.
Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. at 906. He continued,
The government of the Union held shares in the old Bank of the United States; but the privileges of the govern-*74merit were not imparted by that circumstance to the Bank.
Id. at 908.
The thread running through these cases, as with those dealing with foreign state-owned corporations, is that ownership itself raises no presumption of immunity. It followed that when plaintiffs could sue such defendants, they were accorded jury trials despite the sovereign character of the owner of the defendant corporation.6 Legette v. National Railroad Passenger Corp., 478 F.Supp. 1069 (E.D.Pa.1979) (U.S.); Washington v. National Railroad Passenger Corp., 477 F.Supp. 1134 (D.D.C.1979) (U.S.); see also MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971) (Canada).
Until enactment of the FSIA, the critical factor in determining whether a claim of sovereign immunity was appropriate was not mere ownership but was instead the nature of the foreign sovereign’s action or activity at issue. Immunity was accorded for official actions of foreign sovereigns and denied for their commercial or proprietary activities. See Victory Transport Inc. v. Comisaria General, 336 F.2d 354, 360-62 (2d Cir. 1964), cert. denied, 381 U.S. 934, 85 5. Ct. 1763, 14 L.Ed.2d 698 (1965). That distinction was maintained in the 1952 “Tate Letter” which formalized the State Department’s adherence to the “restrictive theory” of foreign sovereign immunity. While it is of course true that immunity was extended to.a merchant vessel in Berizzi Bros. Co. v. Pesaro, 271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088 (1926), that decision was reached in the face of the State Department’s position that the “merchant vessels or vessels under requisition of governments whose flag they fly employed in commerce should not be regarded as entitled to the immunities accorded public vessels of war.” See Mexico v. Hoffman, 324 U.S. at 39, 65 S.Ct. at 534 (Frankfurter, J., concurring); 2 G. Hackworth, Digest of International Law 437, 444-45 (1941). The Court rested its decision on an expansive notion of what constituted sovereign acts and “public property”. It may be that in the late 19th and early 20th century, when the vision of the commercial empire flourished, a court could conclude that an armed commercial fleet7 was a necessary arm of sovereignty and so extend to it the immunity normally reserved to the state itself. It is ironic that such an outdated and discredited notion8 should be resurrected by the majority as the basis for extinguishing the “fundamental and sacred” right to trial by jury. See Jacob v. New York City, 315 U.S. 752, 752, 62 S.Ct. 854, 854, 86 L.Ed. 1166 (1942).
III.
To recapitulate, I believe the majority’s analysis is flawed because it erroneously equates foreign and domestic sovereignty and fails to differentiate between the official and the commercial actions of the foreign sovereign.9 I turn then to the majori*75ty’s reliance on the presumption of constitutionality for legislative acts and the “importance of the congressional decisions reflected in the FSIA of the nation’s foreign policy” as additional support for its conclusion that the Seventh Amendment is inapplicable to legal claims against corporations which happen to be owned in whole or in part by foreign states. See at 65. Congress has not made a policy determination that suits against foreign sovereign-owned instrumentalities engaged in commercial activities are inimical to our foreign policy interests. Quite the contrary. In the FSIA, Congress has expressly provided that commercial activities of foreign states are not immune from suit in the federal courts. The only issue is whether Congress had the power to deprive plaintiffs in such actions of their right to jury trials.
As to the presumption of constitutionality, I believe that any federal judge who determines, after independent analysis, that Congress has acted beyond the scope of its powers does so reluctantly. Nonetheless, the responsibility of the judiciary to determine when Congress has exceeded the permissible scope of its powers occupies too central a place in the success of our system of government to be avoided under the rubric of the presumption of validity of legislative actions. Unquestionably, Congress could, if it chose, limit the jurisdiction of the federal courts by excluding therefrom not only suits against foreign sovereigns for their official actions but also suits against foreign sovereign-owned instrumentalities engaged in commercial activities. But having chosen not to do so, the congressional power to control the jurisdiction of the federal courts may not be used as a justification for congressional action which denies substantive constitutional rights. See United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1872); Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied, 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425 (1948).
I, too, believe that, where possible, courts should defer to the wisdom of Congress when, acting on the advice of the executive, it enacts legislation dealing with foreign affairs. However, I am unwilling to accept the majority’s relegation of the judiciary’s role to one of “absolute judicial fealty to executive decisionmaking.” At 68. All exercises of governmental power must be tested against the constraints imposed by the Constitution. The area of foreign affairs, however delicate, is no exception:
The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes.
Reid v. Covert, 354 U.S. 1, 14, 77 S.Ct. 1223, 1229, 1 L.Ed.2d 1148 (1957). See also Geisser v. United States, 513 F.2d 862 (5th Cir. 1975), on remand Petition of Geisser, 414 F.Supp. 49 (S.D.Fla.1976), vacated, Geisser v. United States, 627 F.2d 745 (5th Cir. 1980) (en banc), cert. denied, Bauer v. United States, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981).
The constitutional issue arises in this case because Congress, in the FSIA, did more than meet what the legislative history shows were its primary concerns: to vest sovereign immunity decisions exclusively in the courts 10 and “to assure that American citizens are not deprived of normal legal redress against foreign states who engage *76in ordinary commercial transactions”.11 When Congress defined “foreign states” to include foreign sovereign-owned corporations engaged in commercial activities, it extended the scope of the statute beyond foreign policy considerations and collided with the fundamental interest in providing jury trials in civil cases. A growing number of foreign states have systems of government which extend state ownership to all forms of business enterprises, including airlines, steel companies, banks, and, as in this case, commercial ships. The statute as construed by the majority would deprive plaintiffs of their jury trials in a vast number of ordinary tort and contract actions against such entities. Such actions involve “rights and remedies of the sort traditionally enforced in an action at law.” Pernell v. Southall Realty, 416 U.S. at 375, 94 S.Ct. at 1729. Whether Congress chose to call the defending entities “foreign states,” “agencies or instrumentalities of foreign states,” or “camels” cannot be determinative of plaintiff’s Seventh Amendment right to jury trial. Where constitutional rights are at stake, the judiciary cannot play Polonius to Congress’ Hamlet and so permit legislative lexicography to defeat those rights.12
IV.
In summary, the right to jury trial in civil actions protected by the Seventh Amendment is a fundamental right which inures to federal plaintiffs when the rights and remedies they seek to enforce are of the sort traditionally enforced in an action at law. Actions for damages against corporations engaged in commercial activities which are owned in whole or in part by foreign sovereigns fall within that category. Neither the historic immunity accorded to foreign states nor the faulty analogy to the sovereign immunity of the United States can justify deprivation of a jury trial in cases against such corporations. To the extent that the FSIA deprives plaintiffs seeking damages of a jury trial in their actions against foreign sovereign-owned corporations, I believe it is unconstitutional. I also believe that provision for a nonjury trial in such cases can be severed from the remainder of the FSIA, and would therefore affirm the order of the district court refusing to strike the demand for jury trial.
. There has been an inexplicable failure to relate the constitutional provision that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . .”, U.S.Const. Art. I, § 9, cl. 7, to the doctrine of sovereign immunity. That provision, which conditions the United States’ liability on its own consent, puts the sovereign immunity of the United States on a far different basis than either the sovereign immunity of the constituent states or of a foreign state.
. Cf. 14 W. Holdsworth, A History of English Law 59 (1964) (sovereign immunity deemed necessary “for the preservation of the honour and dignity of nations”); Reisenfield, Sovereign Immunity of Foreign Vessels in Anglo-American Law: The Evolution of a Legal Doctrine, 25 Minn.L.Rev. 1, 3 n.12 (1940) (“It is very difficult to give any more substantial rationalization for the doctrine of sovereign immunity than the reference to international comity. Stating that the exercise of jurisdiction in these cases would infringe upon the ‘equality,’ the ‘independence,’ or the ‘honor’ of the foreign state is hardly more than using a facon de parler.”)
. See Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] W.L.R. 356, 366 (per Lord Denning); Compañía Naviera Vascongado v. The Christina, [1938] A.C. 485, 521 (per Lord Maugham); Berizzi Bros. Co. v. S. S. Pesaro, 271 U.S. 562. 573. 46 S.Ct. 611. 612. 70 L.Ed. 1088 (1926); S. Sucharitkul, State Immunities and Trading Activities in International Law 19 (1950). See also Mexico v. Hoffman, 324 U.S. 30, 40-41, 65 S.Ct. 530, 535, 89 L.Ed. 729 (1945) (Frankfurter, J., concurring).
. Mason v. Intercolonial Railway of Canada, 197 Mass. 349, 83 N.E. 876 (1908); Bradford v. Director General of Railroads of Mexico, 278 S.W. 251 (Tex.Civ.App.1925); Dunlap v. Banco Central del Ecuador, 41 N.Y.S.2d 650 (1943); United States of Mexico v. Schmuck, 293 N.Y. 264, 56 N.E.2d 577 (1944); and Stone Engineering Co. v. Petróleos Mexicanos, 352 Pa. 12, 42 A.2d 57 (1945), are cited by the United States for the proposition that corporate entities were on occasion entitled to immunity. Brief for the United States at 31 n. 15. I find most of these cases inapposite. A central factor to the holding in Mason was the fact that the railway was not a corporation and that no corporation had any interest in the railway. In Bradford, the court relied upon testimony that the railroad was not operated as a corporation, that all persons having any relationship to the operation of the railroad were “solely, exclusively and entirely employees of the Government of Mexico, and have no relation or connection with any corporate entity.” 278 S.W. at 251-52. Likewise, in Schmuck, the Mexican Charge d’Affaires specifically called to the attention of the Secretary of State the fact that defendant was not a corporate entity. 56 N.E.2d at 578. The two cases which are on point, Dunlap and Stone Engineering Co., do no more than restate the accepted distinction between public or governmental functions and private or commercial undertakings. The uncontroverted proposition remains that, mere state ownership did not entitle foreign corporations to the immunity granted the state itself.
. Even where property was held directly by the sovereign and not through the intermediary of a corporation, such property was not given immunity by virtue of ownership alone. See The Davis, 77 U.S. (10 Wall.) 15, 19 L.Ed. 875 (1869) (salvage lien enforceable against property of U.S. since not in actual possession of government); The Fidelity, 8 Fed.Cas. (16 Blatchf.) 1189, 1191 (C.C.N.Y.1879) (“Property does not necessarily become part of the sovereignty because it is owned by the sovereign. To make it so, it must be devoted to public use, and employed in carrying on the operations of government”); Berizzi Bros. Co. v. Pesaro, 271 U.S. at 575, 46 S.Ct. at 613 (quoting Briggs v. The Light Boats, 11 Allen 157, 165 (Mass.1865) (“Immunity . . . arises . . . because [the boats] are instruments of sovereignty . .. [and because of] the purpose to which they are devoted”).
. Actions against United States corporations were not treated as actions against the United States which would have been cognizable only in the Court of Claims, but instead were held to be properly brought in the district courts. Sloan Shipyards Corp. v. United States Fleet Corp., 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762 (1922).
. The merchant vessel which was the subject of the Berizzi opinion was armed. See 2 G. Hackworth, Digest of International Law 437 (1941).
. The wisdom of the Berizzi decision was questioned by Justice Frankfurter in his concurring opinion in Mexico v. Hoffman, 324 U.S. 30, 39, 40-41, 65 S.Ct. 530, 534, 535, 89 L.Ed. 729 (1945). More recently, four members of the Court agreed that the “authority of that case [Berizzi] has been severely diminished by later cases,” Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 699, 96 S.Ct. 1854, 1863, 48 L.Ed.2d 301 (1976), and that “Berizzi no longer correctly states the law.” Id. at 703, 96 S.Ct. at 1865.
. I do not suggest that the distinction between an official activity and a commercial activity of a foreign state is always clear. It is, however, a line which the FSIA has already drawn, since it defines “commercial activity” to mean “either a regular course of commercial conduct or a particular commercial transaction or act.” The act further provides that “The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” 28 U.S.C. § 1603(d).
. H.R.Rep.No.94-1487, 94th Cong., 2d Sess. 12, reprinted in [1976] U.S.Code Cong. & Ad. News 6610; Hearings Before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary, House of Representatives, on H.R. 11315, 94th Cong., 2d Sess. 25 (June 2, 1976) (Testimony of Monroe Leigh, Legal Adviser, Department of State) [hereinafter Hearings].
. Hearings, supra, Note 10 at 24 (Testimony of Monroe Leigh).
. HAMLET: Do you see yonder cloud that’s almost in shape of a camel?
POLONIUS: By th’ mass and ’tis, like a camel indeed.
HAMLET: Methinks it is like a weasel.
POLONIUS: It is backed like a weasel.
HAMLET: Or like a whale.
POLONIUS: Very like a whale.
Wm. Shakespeare, Hamlet, Prince of Denmark, Act III, ii (Peng. ed. 1969).