Axell and Lucrezia Emmanuel v. the United States of America and Hans Isbrandtsen

United States Court of Appeals
For the First Circuit
No. 00-1618
AXELL AND LUCREZIA EMMANUEL,
Plaintiffs, Appellants,
v.
THE UNITED STATES OF AMERICA
AND HANS ISBRANDTSEN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lipez, Circuit Judges.
Stephen B. Hrones, with whom Hrones & Garrity was on brief, for
appellants.
Mark B. Stern, with whom David W. Ogden, Assistant Attorney
General, Donald K. Stern, United States Attorney, and Alisa B. Klein
were on brief, for appellees.
June 11, 2001

-- 1 of 7 --

-2-

-- 2 of 7 --

-3-
TORRUELLA, Chief Judge. Appellants Axell and Lucrezia
Emmanuel appeal a district court decision granting the United States
summary judgment on all counts. We affirm.
BACKGROUND
While the Emmanuels contend that many of the underlying facts
remain in dispute, the following bare-bones version of events is
uncontested. Axell and Lucrezia Emmanuel, a married couple, had
chartered a ship from Hans Isbrandtsen for the business purpose of
transporting cars from Boston, Massachusetts to Haiti. In December
1995, they arrived in St. Marc, Haiti on said ship with vehicles for
unloading. A dispute arose between the Emmanuels and Isbrandtsen which
prompted Isbrandtsen to contact the United States embassy, report his
concern for the safety of the ship's crew, and request assistance.
An embassy official then contacted the United Nations Mission
in Haiti ("UNMIH"). Major Roy Thomas (a Canadian military officer) of
the UNMIH sent a United Nations military unit commanded by Captain
Garth Estadt, a U.S. Army officer, to the scene to investigate the
disturbance. Once there, a physical confrontation between Lucrezia
Emmanuel and Master Sergeant Francis Norbury occurred, resulting in
injuries to both of them. The Emmanuels brought this suit in federal
court in Massachusetts against Isbrandtsen and the United States.
Their claims against the United States, which are the only relevant

-- 3 of 7 --

1 The district court also dismissed the Emmanuels' Federal Tort Claims
Act claims that were based on negligence of United States embassy
personnel, finding that any acts or omissions attributed to U.S.
embassy personnel were not the proximate cause of any harm that came to
the Emmanuels. The Emmanuels have not appealed the dismissal of their
FTCA claims.
2 United Nations immunity is absolute unless expressly waived. United
Nations Convention on Privileges and Immunities of the United Nations,
Feb. 13, 1946, art. II, § 2, 21 U.S.T. 1418, 1422, T.I.A.S. 6900,
acceded to by the United States in 1970. See Askir v. Boutros-Ghali,
933 F. Supp. 368, 371 (S.D.N.Y. 1996) (Op. and Order).
-4-
ones for purposes of this appeal, allege negligence and tortious acts
of United States agents resulting in personal and financial injury.
The district court granted summary judgment in favor of the
United States and ordered all claims against the United States to be
dismissed. Emmanuel v. United States, Civ. No. 97-12787-RWZ (D. Mass.
May 6, 2000) (Mem. of Decision). The court held that the Emmanuels'
claims were barred due to the immunity afforded the United States under
the Status of Forces Agreement between the United Nations and Haiti.1
DISCUSSION
As explained by the district court, the UNMIH assumed full
responsibility for United Nations peacekeeping operations in Haiti in
1994. In order to effectuate this goal, the United Nations and Haiti
executed a Status of Forces Agreement ("U.N.-Haiti SOFA"), formally
known as the "Agreement Between the United Nations and the Government
of Haiti on the Status of the United Nations Mission in Haiti." The
U.N.-Haiti SOFA extends the immunity enjoyed by the United Nations2 to

-- 4 of 7 --

3 "'Participating State' means a State contributing personnel to the
aforementioned components of UNMIH." U.N.-Haiti SOFA, ¶ 1(d). It is
undisputed that the United States contributes such personnel.
-5-
the UNMIH, as well as "to the property, funds and assets of
participating States used in connection with the UNMIH." U.N.-Haiti
SOFA, ¶ 4. The United States is a "participating state"3 and,
accordingly, entitled to immunity from claims arising from UNMIH
conduct.
The Emmanuels attempt to dodge this immunity by claiming
that: (1) the U.N.-Haiti SOFA does not apply to them, as an agreement
exclusively between the government of Haiti and the United Nations; and
(2) the dispatch of a United Nations unit to the scene of the dispute
between the Emmanuels and Isbrandtsen was an action outside the scope
of the UNMIH mandate, and not entitled to United Nations immunity.
Both assertions are easily rebutted.
The language of the U.N.-Haiti SOFA demonstrates that the
agreement covers claims such as the one brought by the Emmanuels:
Except as provided in paragraph 52, any dispute
or claim of a private law character to which
UNMIH or any member thereof is a party and over
which the courts of Haiti do not have
jurisdiction because of any provision of the
present Agreement, shall be settled by a standing
claims commission to be established for that
purpose.

-- 5 of 7 --

4 Paragraph 52 does not apply to this case, covering only disputes
"between UNMIH and the Government [of Haiti]." U.N.-Haiti SOFA, ¶ 52.
-6-
U.N.-Haiti SOFA, ¶ 50 (emphasis added).4 The agreement, in referencing
"any dispute or claim of a private law character" without mentioning
the government of Haiti, dispels any argument that the U.N.-Haiti SOFA
applies only to Haiti and the UNMIH and not to individuals in Haiti.
In addition, the absolute immunity enjoyed by the United Nations and
extended unequivocally to the UNMIH covers all suits brought by any
party, including private individuals like the Emmanuels. See Askir v.
Boutros-Ghali, 933 F. Supp. 368, 368-371 (S.D.N.Y. 1996) (Op. and
Order) (finding that the United Nations enjoyed immunity against
damages suit brought by a Somali citizen). The argument, then, that
the U.N.-Haiti SOFA does not apply to the Emmanuels is meritless.
The second argument, that the particular actions taken here
were outside the scope of the UNMIH mandate and not entitled to United
Nations immunity, is equally unavailing. The Emmanuels claim that
their dispute with Isbrandtsen was within the exclusive jurisdiction of
the Haitian Port Authority. The district court disagreed, concluding
from affidavits submitted by the United States that "the UNMIH
routinely dispatched troops to respond to reported civil disturbances
because of the lack of trained Haitian police." Emmanuel, Civ. No. 97-
12787-RWZ, at 5. The district court went on, holding that, regardless
of the propriety of the intervention by the UNMIH unit, the order to

-- 6 of 7 --

-7-
investigate "came from the U.N. through its chain of command." Id.
The military personnel that were involved in the altercation were
accordingly "acting in connection with the U.N. mission." Id.; see
Askir, 933 F. Supp. at 370 n.3 ("The mere allegation that the United
Nations did not possess the authority to undertake its mission in
Somalia does not make whatever actions Connor may have taken to carry
out those missions any less a part of his official function."). We
find the reasoning of the district court to be unassailable, and adopt
the district court's opinion regarding this issue in full.
CONCLUSION
The district court decision granting summary judgment and
dismissing the United States from this suit is affirmed.

-- 7 of 7 --