funds available under the letter of credit to pay those invoices once approved.
During this two-month interval, plaintiff was faced mostly with unknowns. The political turmoil in Iran left plaintiff in doubt as to the ability of the defendants to honor their obligations. I.I.A.F. personnel in New York City vacated their offices and returned to Iran. The Behring representative in Teheran, Iran, was unable to meet or communicate in any way with I.I.A.F. officials in Iran, and was eventually forced to evacuate the country. Plaintiff instituted this lawsuit on February 28, 1979.
II. PROCEDURAL HISTORY OF THIS ACTION
Accompanying the Verified Complaint was an Affidavit of Attachment and an application for the entry of an Order to Show Cause why an order should not be entered authorizing the issuance of a writ of attachment of the property of the defendants located at the Behring warehouse. See Fed.R.Civ.P. 64; N.J.S.A. 2A:26-1 Et seq. In the interim, plaintiff sought a Temporary Restraining Order in the nature of an attachment pending the Court's ruling on the Order to Show Cause. The temporary restraints sought prohibited the defendants from removing any of their property from the jurisdiction of this Court or from cancelling the letter of credit issued in Behring's behalf. On the day the suit was brought, the late Honorable George H. Barlow entered the Order to Show Cause, including the Temporary Restraining Order.
The return date of the Order to Show Cause was set for March 12, 1979. Due to the fact that service was required to be made pursuant to 28 U.S.C. § 1608, considerable delay occurred before service could be completed.
Preferring not to decide the questions raised by the Order to Show Cause without input from the defendants, the return date of the Order to Show Cause was carried numerous times, and argument was finally heard on that matter on June 1, 1979. At all times the temporary restraints were maintained in full force and effect.
It was not until April 26, 1979 that the defendant I.R.I.A.F. retained counsel and appeared in this action. Prior to the return date of the Order to Show Cause, I.R.I.A.F. filed two motions, one calling for the release of all restraints upon its property, and the other requesting the entry of a turnover order directing Behring to release the I.R.I.A.F. property in its possession to I.R.I.A.F. Reserving all of the other legal and factual determinations necessary to be made before a writ of attachment could be issued to the adjourned return date of the Order to Show Cause, I.R.I.A.F."s motions raised for immediate resolution by the Court the actually quite narrow legal question whether the Foreign Sovereign Immunities Act of 1976 prohibits the attachment of the property of a foreign sovereign prior to judgment under the circumstances of this case.
This opinion answers only that question and does not attempt to address any other issue connected with the issuance of a writ of attachment pursuant to Rule 65, Fed.R.Civ.P., and the New Jersey Attachment Statute, N.J.S.A. 2A:26-1 Et seq.
III. PRELIMINARY LEGAL ISSUES
Before addressing the central legal questions presented by this motion, there are certain preliminary questions involving this Court's jurisdiction over this action and these defendants which must be noted and determined.
The central goals of the Immunities Act are to codify the "restrictive theory" of sovereign immunity recognized under international law
as the statutory law of this country and to provide that the validity of claims of sovereign immunity interposed in suits against foreign states shall be determined by the United States courts rather than by the State Department. 28 U.S.C. § 1602; H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. 14 Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 6604, 6613 ("H.R.Rep. No. 94-1487"); National American Corp. v. Federal Republic of Nigeria, 448 F. Supp. 622, 638 (S.D.N.Y.1978).
Under the provisions of the Immunities Act this lawsuit and the defendant I.R.I.A.F. are properly before this Court. Subject matter jurisdiction exists under 28 U.S.C. § 1330(a), which provides:
(a) The district courts shall have original jurisdiction, without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief In personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.