Eck v. N. V. Nederlandsch Amerikaansche Stoomvaart Maatschappij

Opinion Per Curiam. In July, 1938, plaintiff, a Jewish resident of Vienna, purchased, at defendant’s office in that city, “ provided room is available ”, four cabin class tickets for himself, wife and two daughters on steamer Nieuw Amsterdam “ for departure on summer season ” from Rotterdam or Boulogne-sur-Mer to New York. Although it is stated in the anweisung (so-called receipt or ticket) that the amount paid was $1,728 the payment was actually made in reichsmarks. He subsequently paid 603 marks for shipboard expenses. Plaintiff testified that at the time of purchase defendant’s director told him the receipt was good for two years. Plaintiff’s two daughters obtained American visas in August, 1939, and they were given third-class passage — not cabin passage as provided by the contract — in September, 1939, on the steamship Volendam. No visa was procured for plaintiff and his wife until March 9, 1940; he then demanded first-class passage on the New Amsterdam, but was told that the passage ticket was invalid. Plaintiff thereupon again paid for passage and arrived with his wife in New York April 17, 1940. Defendant proved the pertinent German law in force in Austria from the time of the absorption of Austria into the German Reich, prior to the booking by plaintiff, through March 27, 1941, nearly a year after plaintiff arrived in this country, by the introduction of official publications containing the written laws and by translations thereof and the testimony of an expert on German law; and also showed that neither currency marks-(which plaintiff paid for his passage) nor nontransferable auswanderer marks (in which alone plaintiff would be entitled to a refund under German law) had a market value in the United States measurable in dollars. By the provisions of one of the decrees relied on, which became effective January 1, 1939, “ open passages * * * can only be maintained if the reservation of the vessel and the [693] sailing date are effected on or before December 31, 1938, and if the sailing of the vessel to the port of destination of the emigrant takes place by March 31, 1939,” and it would seem therefore that the open booking was rendered invalid. Further, at the time plaintiff paid for his accommodations the German law was that refund of passage money paid in Vienna could only be made in marks in the German Reich; and under German regulations defendant could not get the money; in the circumstances the marks could not be exchanged into any other currency. To allow plaintiff, after dealing with defendant solely on a basis of reichsmarks (now valueless), a recovery in United States dollars would, in our opinion, constitute a grave injustice to defendant. No claim may be made that defendant has been unjustly enriched, for as indicated above, defendant could not get the reichsmarks out of Germany. Judgment was awarded plaintiff in the sum of $2,259.81, the full amount demanded in the complaint. This court has held in this class of cases, upon similar facts, that the German law affords a defense to such actions (Steinfink v. North German Lloyd Steamship Co., 176 Misc. 413; Schlein v. N. V. Nederlandsch, 34 N. V. S. 2d 720; Translateur v. United States Lines Co., 179 Misc. 843), and the plea as such has apparently been upheld (Werfel v. Zivnostenska Banka, 287 N. Y. 91, 93), the court in that case saying: “ Among the issues to be tried are the terms of the contract; what is the foreign law which either party claims to be applicable and in what respect may such law have been rendered inoperative, by reason of events happening subsequent to the making of the contract.” No such events are claimed to be disclosed by the present record. Respondent contends that the German law is inapplicable because of the alleged statement of the United States Secretary of State released to the.press July 27, 1942, that This government has never taken the position that Austria was legally absorbed into the German Reich.” We do not see how the nonapproval of the seizure of Austria by Germany renders the defense of German law inoperative. In Samiloff & Co. v. Standard Oil Co. (262 N. Y. 220, 227) the court says: The courts may not recognize'the Soviet government as the de jure government until the State Department gives the word. They may, however, say that it is a government, maintaining internal peace and order, providing for national defense and the general welfare, carrying on relations with our own government and others. To refuse to recognize that Soviet Russia is a government regulating the internal [694] affairs of the country is to give to fictions an air of reality which they do not deserve. “ The courts cannot create a foreign wrong contrary to the law of the place of the act. (Slater v. Mexican Nat. R. R. Co., 194 U. S. 120; American Banana Co. v. United Fruit Co., 213 U. S. 347.) The cause of action herein arose where the act of confiscation occurred and it must be governed by the law of Soviet Russia. According to the law of nations it did no legal wrong when it confiscated the oil of its own nationals and sold it in Russia to the defendants. Such conduct may lead to governmental refusal to recognize Russia as a country with which the United States may have diplomatic dealings. The confiscation is none the less effective. The government may be objectionable in a political sense. It is not unrecognizable as a real governmental power which can give title to property within its limits.” Further, in currency legislation the policy of the sovereign governs the medium of payment, even though such payment is provided for outside of the territorial jurisdiction of that sovereign. (Guaranty Trust Co. v. Henwood, 307 U. S. 247; Norman, v. B. & O. R. Co., 294 U. S. 240.) Moscow Fire Ins. Co. v. Bank of New York (280 N. Y. 286, affd. by an equally divided court, 309 U. S. 624) has no bearing on the controversy here; that litigation was with respect to “ property within this state and subject to the law of the state ”, and otherwise the facts there do not come within the scope of this case. The judgment should be reversed, with costs, and judgment directed for defendant, with costs.