Garcia v. Chase Manhattan Bank, N.A.

KEARSE, Circuit Judge,

dissenting:

With all due respect to the majority, I must dissent since I believe the act of state doctrine relieves defendant Chase Manhattan Bank, N.A. (“Chase”), of liability in this case. The majority correctly recognizes that that doctrine, see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416, 84 S.Ct. 923, 934, 11 L.Ed.2d 804 (1964), precludes our questioning the validity of acts of the Republic of Cuba within its borders (Majority opinion, ante at 650), and that “if the situs of Chase’s debt to Garcia were in Cuba, the Cuban government could validly seize it” (id.). However, it appears to me that the majority gives insufficient recognition to the facts that the debts in question were collectible in Cuba; that the contract was not intended to guarantee the safety of plaintiff’s funds against seizure by the Cuban government; and that, independently of the Cuban government’s subsequent seizure of Chase’s own assets and liabilities, that government in fact seized the assets of the plaintiff that are at issue here.

The applicability of the act of state doctrine to the present case depends on the power of the Cuban government to enforce or collect these debts within Cuba. See Menendez v. Saks & Co., 485 F.2d 1355, 1364 (2d Cir.1973), rev’d on other grounds sub nom. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976). A debt is an intangible asset that has no physical location. It has its situs, in the eyes of the law, wherever it can be collected. Harris v. Balk, 198 U.S. 215, 222-23, 25 S.Ct. 625, 626-27, 49 L.Ed. 1023 (1905). In general, the creditor may enforce or collect the debt wherever he can obtain jurisdiction over the debtor. Id. at 222-23, 225, 25 S.Ct. at 626-627. The parties may, however, reach agreement limiting the permissible places of collection, id. at 225, 25 S.Ct. at 627, and normally “ ‘[t]he situs of a bank’s debt on a deposit is considered to be at the branch where the deposit is carried____’” Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854, 862 (2d Cir.1981) (quoting Heininger, Liability of U.S. Banks for Deposits Placed in Their Foreign Branches, 11 Law & Pol.Int’l Bus. 903, 975 (1979)), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982). This common limitation on the situs of a banking debt is likewise subject to variation by agreement of the parties; the parties may agree that the debt may be collected at other locations, *652either instead of or in addition to the branch at which the deposit was made. Thus, although a debt is a single obligation, it may have many situses. Since, however, it is but a single obligation, once it is collected pursuant to a valid decree at any place where the creditor could have collected it, the debt is extinguished. Harris v. Balk, supra, 198 U.S. at 223, 226, 25 S.Ct. at 626, 628.

In the present case, when plaintiff Garcia and her husband (collectively “Garcia”) made their deposits and acquired their certificates, they agreed with Chase that the debts could be collected on presentation of the certificates anywhere that Chase had a branch. Cuba was not excluded. The parties could have agreed that the debts could be collected only outside of Cuba; but they did not. The jury, in response to special interrogatories with respect to each deposit, found that “the parties agreed that payment would be made upon presentation and demand ... anywhere that Chase Manhattan had offices including Cuba." (Special Interrogatories l.b., 2.b.; emphasis added.) Accordingly, Garcia could have collected the debts in Cuba. Since the debt was collectible in Cuba, it had one of its situses there.

Chase operated its Cuban branch until September 1960, when the Cuban government seized its assets and assumed its liabilities. Prior to September 1960, the Garcia deposits were collectible in Cuba, since that was the agreement of the parties. In 1959, while the Chase Cuban branch was in operation, the Cuban government froze Garcia’s assets and then ordered Chase to deliver those assets to the Cuban government. Because Garcia could have collected those debts within Cuba, I see no valid path to a conclusion that the debts were not subject to collection within Cuba by the Cuban government.

The fact that the certificates of deposit had been sent out of Cuba is immaterial; such a certificate is merely evidence of the debt, not the debt itself. See, e.g., 5B Michie on Banks & Banking § 313, at n. 276 (1973); 7A Michie on Banks & Banking § 180 (1973). Further, although presentation of the certificates would have been necessary in order for Garcia to collect the debt, we are not entitled, in light of the act of state doctrine, to question the Cuban government’s implicit declaration that it need not present that evidence of the debt in order to seize it — any more than we would be entitled, for example, to rule that the Cuban government could not seize another citizen’s savings account without presenting a passbook.

The majority states that the primary purpose of the parties’ agreement was to require Chase to “ensure the safety of Garcia’s funds.” (Majority opinion, ante at 650.) The parties could, of course, have agreed that even if the Cuban government required Chase to pay it a sum equal to Garcia’s account, Chase would still have a contractual obligation to pay Garcia. But the jury found that the parties did not contemplate that event in their agreement.1 The majority does not set aside *653any of the jury findings on any principled basis. It simply ignores them and substitutes its own views.

Accepting (1) the jury’s finding that the debts could be collected in Cuba, (2) the Cuban government’s unchallengeable seizure of Garcia's assets in Cuba, (3) the jury’s finding that the parties did not contemplate in their agreement that there might be such a seizure, and (4) the principle that a debt may validly be collected only once, I conclude that there is no basis for holding Chase to be an insurer and that the debts owed by Chase to Garcia ceased to exist upon their seizure by the Cuban government. I am not persuaded to take the contrary view by the majority’s statement that “[t]he result we reach will have no international repercussions.” (Majority opinion, ante at 651.) The majority’s result may not have such consequences in this case, but since it has no foundation whatever in the facts found by the jury it creates precedent that may be used in future cases that could involve such repercussions. Further, “[i]t ought to be and it is the object of the courts to prevent the payment of any debt twice over. Thus, if [Chase] owing a debt to [Garcia], paid it over under a valid [decree], to [the Cuban government, Chase] certainly ought not to be compelled to pay it a second time____” Harris v. Balk, supra, 198 U.S. at 226, 25 S.Ct. at 628.

I would reverse the judgment of the district court and direct that the complaint be dismissed.

. The jury answered interrogatories 4 and 5 as follows:

[4] Has it been established by a preponderance of the evidence that the Verdado [sic] branch of Chase Manhattan in 1959 paid over to the Cuban government a sum of money equal to the value of plaintiff's certificates of deposit?
Yes X No_
[5] If the answer is yes, did the parties contemplate in their agreements that such a payment might be made?
Yes_
No X

Having answered No. 5 in the negative, the jury did not reach question 6, which was:

[6] If the answer is yes, was it the intent of the parties that such a payment would satisfy all obligations of Chase Manhattan to plaintiff?

To the extent that the jury's answer to the specific question in interrogatory 5 conflicted with its affirmative answer to the general question “Do you find ... that defendant is liable to plaintiff ..." (Special Interrogatories 7, 8), the court should either have entered judgment in accordance with the specific findings in the answer to interrogatory 5 or have ordered reconsideration or a new trial. Fed.R.Civ.P. 49(b).