are satisfied. The first requirement is that the defendant must either abscond from or be a nonresident of this state. There is little doubt that I.R.I.A.F. is not a resident of New Jersey. I.R.I.A.F. is an agency or instrumentality of a foreign state, Iran. 28 U.S.C. § 1603. It is not created under the laws of this state. It has not obtained a certificate of authority to do business here. It maintains no offices here. Its sole presence in this state consists of the occasional visits of I.R.I.A.F. cargo planes to McGuire Air Force Base to pick up shipments of goods, and the occasional visits of I.R.I.A.F. employees to Behring's Edison, New Jersey, warehouse to inspect its purchases. These contacts with this state fall short of making New Jersey I.R.I.A.F."s residence as that term is used in the statute. See Baldwin v. Flagg, 43 N.J.L. 495 (Sup.Ct.1881); Augustus Co. v. Manzella, 19 N.J.Misc. 29, 17 A.2d 68 (Atlantic Co.Ct.1940). I therefore find that the first requirement set out in N.J.S.A. 2A:26-2(b) satisfied.
The second requirement of the statute is that the defendant must not be subject to service of process in this state. The statute, in clarification of this requirement, states that "a summons can be served on a person in this state where service can duly be made upon some one on his behalf in the state. . . . " N.J.S.A. 2A:26-2. I.R.I.A.F. argues that its representative in this country, Colonel Khatami, could have been duly served with a summons on its behalf in this state pursuant to 28 U.S.C. § 1608(b)(2).
Behring claims that he could not.
Resolution of the conflict demands that I first determine when it was that service could have been made upon defendant in this state. The state cases indicate that the presence or absence of this requirement is to be determined at the time the writ is to be issued. E. g. Baldwin, supra, 43 N.J.L. at 498; Augustus Co., supra, 19 N.J.Misc. at 31, 17 A.2d 68. Technically, any writ of attachment authorized by this opinion should look to whether the defendant or someone who could be served on its behalf was subject to service of summons within this state on the hearing date of June 1, 1979.
Plaintiff, however, argues that the Court should look to February 28, 1979, when it first sought the writ of attachment and when the Temporary Restraining Order in the nature of an attachment was issued. I agree. For the purposes of this element, I believe it proper to act as if the Court issued a writ of attachment on February 28, 1979 and treat the present opinion as if addressing a motion to dissolve the attachment brought pursuant to New Jersey Civil Practice Rule 4:60-11. Cf. Sampson v. Murray, 415 U.S. 61, 86-87 & n. 58, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974) (regarding the propriety of treating a temporary restraining order as a preliminary injunction under Fed.R.Civ.P. 65). This accords with the express statutory directive that the Attachment Statute "be liberally construed, as a remedial law for the protection of resident and nonresident creditors and claimants". N.J.S.A. 2A:26-1. E. g. United States Steel Corporation v. Commercial Contracting Corp., 168 F. Supp. 375 (D.N.J.1958); Mueller v. Seaboard Commercial Corp., 5 N.J. 28, 39, 73 A.2d 905 (1950).
On February 28, 1979 Colonel Khatami was not present in this state for the purpose of accepting service of process on behalf of the defendant I.R.I.A.F.
Even if he had been in the state on that date, I would hold that he was not one upon whom service could duly be made on I.I.A.F. or I.R.I.A.F."s behalf pursuant to 28 U.S.C. § 1608(b)(2). At that time, events in Iran were such that Behring could not be certain of Khatami's status with the defendant. In fact, the defendant with which Colonel Khatami was then affiliated, the I.I.A.F., is now apparently defunct and only its successor I.R.I.A.F. has appeared. It is not apparent from the record when or how Colonel Khatami became a representative of the successor organization. I therefore conclude that Khatami was not someone on whom service could have been made on behalf of I.R.I.A.F.
I therefore conclude that the second requirement of N.J.S.A. 2A:26-2(b) is met.
I cannot yet conclude, however, that the statutory grounds for the issuance of a writ of attachment are completely satisfied. I.R.I.A.F. contends that N.J.S.A. 2A:26-2(b) provides for attachment only as an aid to jurisdiction, and that it is not available when jurisdiction In personam may be obtained over the defendants. I.R.I.A.F., however, cites no cases in direct support of this proposition.
The New Jersey Attachment Statute has been in substantially the same form for over a century. See Hotel Registry Corp. v. Stafford, 70 N.J.L. 528, 57 A. 145 (Sup.Ct.1904). As a result, most of the cases interpreting the attachment act and its predecessors involve jurisdictional attachments prior to the widespread enactment of "long arm" statutes occasioned by International Shoe Corp. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). I am satisfied, however, that a writ of attachment is authorized by the New Jersey statute under the circumstances of this case even though plaintiff has obtained In personam jurisdiction of the defendant I.R.I.A.F.
The statute itself requires no more than an inability to serve a defendant within the state; it does not require that personal jurisdiction over the defendant not be obtainable. In fact, even the older cases using attachment as a jurisdictional device recognized that a diligent plaintiff-creditor could often obtain personal jurisdiction over a defendant by waiting until he entered the state, yet nonetheless allowed the writ to issue. See, e.g., Baldwin, supra, 43 N.J.L. at 498 (wherein the court states: "(A debtor) may come into the state so frequently and openly, that a creditor by watching an opportunity may obtain personal service of process upon him, and still be liable to process of attachment."). It is obvious to the Court that one of the major, accepted purposes of attachment is to protect a prospective fund from which plaintiff could satisfy a judgment to be rendered in the future in an action on a contract from being dissipated. See Lundy v. Collitti, 155 N.J.Super. 34, 38, 382 A.2d 94 (L.Div.1977); Prozel & Steigman v. International Fruit Distributors, 171 F. Supp. 196, 199 (D.N.J.1959). That purpose recognizes that debtors having little contact with this state, even though those contacts may be more than minimal, will suffer little by withdrawing altogether from this state in an effort to frustrate the judgment won by the creditor. Additionally, it is clear that under other sections of the Attachment Statute, a writ of attachment is authorized even though the debtor is within the state and subject to personal jurisdiction. E. g. Seiden v. Fishtein, 44 N.J.Super. 370, 376, 130 A.2d 645 (App.Div.1957) (allowing the attachment of the property of a resident debtor under N.J.S.A. 2A:26-2(a)).
I therefore conclude that there exists a statutory basis for the issuance of a writ of attachment in N.J.S.A. 2A:26-2(b) and that the second element of New Jersey Civil Practice Rule 4:60-5(a) is present.
C. The Presence of Property in this State Subject to Attachment.
I turn now to the final requirement of New Jersey Civil Practice Rule 4:60-5(a): "that there is real or personal property of the defendant at a specific location within (New Jersey) subject to attachment." The defendant's personal property located at plaintiff's Edison, New Jersey warehouse satisfies this requirement in all but possibly one respect. Defendant argues that its property enjoys immunity from attachment under the Foreign Sovereign Immunities Act of 1976, Pub.L.No. 94-583, 90 Stat. 2891 (codified in scattered sections of 28 U.S.C.) (hereinafter "Immunities Act" or "Act") because it is intended for use in connection with a military activity. 28 U.S.C. § 1611(b)(2). See also Aerotrade Inc. v. Republic of Haiti, 376 F. Supp. 1281 (S.D.N.Y.1974).
My Opinion Maintaining Restraints resolved two central questions. I first held that I.R.I.A.F. property was Not subject to attachment prior to judgment under the Immunities Act, sections 1609, 1610(b) and (d). However, I then held that Iran had waived its immunity from such attachments in the Treaty of Amity, Economic Relations and Consular Rights Between the United States of America and Iran, August 15, 1955, art. XI, para. 4 (1957) 8 U.S.T. 899; T.I.A.S. No. 3583 (hereinafter "Treaty of Amity" or "Treaty"), and that that waiver had to be given effect under section 1609 of the Immunities Act. Although I.R.I.A.F. raised its contentions with respect to section 1611(b) of the Act, I refrained from deciding that issue because the record was barren of any facts supporting its claim. In spite of the continued barrenness of the record, which again causes me to conclude that I.R.I.A.F. has not carried its burden of showing that its property is immune,
I will address this argument in more detail at this time.
As it was the starting point for discussion in my prior opinion, the starting point for this discussion is the Immunities Act. See Opinion Maintaining Restraints, Supra, at 13 & n. 21. Section 1609 of the Act sets out as a general rule that the property, of whatever nature, of a foreign state is immune from attachment.
Exceptions to this general rule are found within the Act in section 1610, and without the Act in certain international agreements which section 1609 explicitly saves from repeal. The exceptions established in section 1610 are based upon the activities in which a foreign state engages, and not upon the type of property involved. The exceptions established without the Act by international agreement do not follow any general rule, but are a product of the negotiations between the United States and foreign states, differing from one agreement to the next. Section 1611 provides that certain types of property will be immune from execution regardless of prior waivers.
At issue here is section 1611(b)(2) which provides immunity for certain types of military equipment. Although section 1611(b)(2) does restore the immunity, otherwise waived in section 1610, of military equipment, I must reject I.R.I.A.F."s contention that section 1611(b)(2) restores the immunity of military equipment when that immunity has been waived by an international agreement saved by section 1609.
The prefatory language of section 1611(b) states only that "notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune from attachment" if certain conditions are met. This language states that the subsection operates notwithstanding the provisions of only section 1610; section 1609 is not mentioned. A central premise of my Opinion Maintaining Restraints was that section 1609 saved from repeal any existing international agreement to which the United States was a party at the time the Act was enacted.
Section 1611(b), by referring only to section 1610, cannot be read to abrogate existing treaties saved from repeal by section 1609 to the extent that military equipment might be involved.
The Treaty of Amity is therefore the next point of departure. My first concern must be whether the Treaty addresses the problem of military equipment. If the Treaty expresses a rule which conflicts with the Immunities Act, I must give effect to that rule, whatever it may be. If the Treaty is silent on that issue, however, then the provisions of the Immunities Act will, in accord with Congress' intent, govern the outcome of this case.
My first task is therefore to determine whether the Treaty is silent on the issue of military property.
The grants and waivers of immunity provided by the Immunities Act are based upon four variable factors: the nature of the foreign entity, the nature of the activity in which the foreign entity is engaged, the nature of the liability sought to be enforced against that foreign entity, and the nature of the property of the foreign entity sought to be attached. In enacting the Act, Congress clearly considered each of these four categories and expressed its intentions with regard to each of them.
Keeping these four categories in mind while examining the pertinent provisions of the Treaty of Amity, I must conclude that in negotiating and ratifying the Treaty, the United States and Iran only expressed their intentions as to the first three of these variables; the Treaty is silent as to the fourth. The relevant portion of the Treaty is article XI, paragraph 4, which provides:
No Enterprise of either High Contracting Party (referring to the United States of America and Iran), Including corporations, associations, and government agencies and instrumentalities, which is publicly owned or controlled shall, if it engages in Commercial, industrial, shipping or other business activities within the territories of the other High Contracting Party, claim or enjoy, either for itself or for its property, immunity therein From taxation, suit, execution of judgment, or other liability to which privately owned and controlled enterprises are subject therein. (Emphasis added.)
(1957) 8 U.S.T. at 901. Behring argues that this Court's prior interpretation of this language, that the parties desired to be treated as private ordinary citizens, necessitates a conclusion that any and all property of the defendant must be subject to attachment. I disagree.
My decision that the United States and Iran desired to be treated as ordinary individuals in the other's courts operates only with regard to the liabilities to which they would be subject. In the Treaty, the parties waived immunity "from taxation, suit, execution of judgment or other liability to which privately owned and controlled enterprises are subject". In my Opinion Maintaining Restraints, Supra, at 395, I accepted Behring's argument that the "or other liability" language which the parties employed indicated that the specific language preceding it was language of illustration and not of limitation. I therefore concluded that the United States and Iran expressed their intention that the waiver be read broadly to include pre-judgment attachments. This phrase, however, deals only with one of the four variables which Congress addressed in the Immunities Act the liabilities to which the parties would be subject.
The Treaty uses similarly broad language with respect to two other variables: the nature of the foreign entity and the nature of the activity in which that entity is engaged. With respect to the former, the waiver of immunity is effective for all "enterprises" of the United States and Iran, "including corporations, associations, and government agencies and instrumentalities". The list indicates that the parties considered the proper scope of the waiver with regard to the variable and stated a position on it. With respect to the latter variable, the waiver of immunity is effective whenever the foreign entity engages in "commercial, industrial, shipping or other business activities". Again I must conclude that the parties considered the proper scope of the waiver with respect to this variable and stated a position on it. In each case illustrative lists or catch-all "or other . . ." language is used to indicate the desired breadth of the waiver.
The Treaty, however, does not use such language with respect to the variable presently at issue: the nature of the property. It states only that the foreign entity shall not enjoy immunity "for itself or its property". The ". . . or its property" language is almost an afterthought. No illustrative list precedes the word property. No catch-all "or other property" or "of whatever kind" language is used. It is not obvious that the United States and Iran considered the question of differentiating between types of property, and I therefore cannot conclude that they stated, or intended to state, a position on this issue.
I must therefore conclude that the Treaty is silent with respect to whether certain types of property are subject to attachment. This being the case, the legislative history, See note 14, Supra, makes perfectly clear that I must look to the Immunities Act, in this case section 1611, to determine whether certain types of property are immune from attachment. Section 1611(b)(2) states:
(b) . . . the property of a foreign state shall be immune from attachment and from execution, if
(2) the property is, or is intended to be, used in connection with a military activity And