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
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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
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).

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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
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.

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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.
4 Paragraph 52 does not apply to this case, covering only disputes

"between UNMIH and the Government [of Haiti]." U.N.-Haiti SOFA, ¶ 52.

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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
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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.