also in force in a great number of other jurisdictions. They provide an effective remedy to persons injured in diplomatic traffic accidents, without infringing upon the personal inviolability of the diplomatic drivers.

The Department of Justice considers it imperative that a direct action provision against insurers of diplomats be enacted if the United States is to modernize fully and comprehensively its archaic laws dealing with diplomatic immunity.

Dept. of Justice Press Release, Feb. 5, 1978.

H.R. 7679, referred to, ante, was incorporated in amended form into the Diplomatic Relations Act (1978) as sec. 7.

The summary of the survey conducted in 1977 by United States diplomatic missions abroad, as to host states' insurance requirements, referred to, ante, is reproduced below (and is also in S. Rept. 95–958, pp. 6-7):

REQUIREMENTS

FOR AUTOMOBILE LIABILITY INSURANCE IMPOSED BY SELECTED HOST COUNTRIES ON U.S. DIPLOMATIC MISSIONS*

Legend:

-No mandatory insurance.

-No mandatory insurance but insurance required of diplomats or to clear diplomatic vehicles through Customs.

-Mandatory liability insurance required on all automobiles-where known, minimum amount for 3d party liability for injury or death per accident shown.

Direct action against insurance carrier provided by law.

REQUIREMENTS FOR AUTOMOBILE LIABILITY INSURANCE IMPOSED BY SELECTED HOST COUNTRIES ON U.S. DIPLOMATIC MISSIONS*-Continued

*All liability insurance contracts taken out by diplomats contain a "diplomatic clause" which reads as follows: "Notwithstanding that the insured is or may be entitled under the privileges accorded to the diplomatic body to refuse to submit to the jurisdiction of the courts in connection with any claim against him, the association will not call upon him so to refuse."

The Department of State supported the mandatory liability insurance requirement, reinforced by the direct action provision incorporated into Public Law 95-393 as section 7. Ambassador Evan S. Dobelle, Chief of Protocol, had also testified to this effect on February 6, 1978, before the Subcommittee on Citizens and Shareholders Rights and Remedies of the United States Senate Committee on the Judiciary. Mr. Gookin, the Assistant Chief of Protocol, made clear, however, in his statement before the Senate Committee on Foreign Relations on May 24, 1978, that the vast majority of diplomats cooperated to the fullest extent in effecting settlement of claims. He said:

In our view financial responsibility laws provide inadequate protection of those who become the victims of persons entitled to a claim of immunity of one form or another. Diplomats and their family members will still, following repeal of the old statute, enjoy full immunity from civil jurisdiction in all cases involving automobile accidents, and foreign governments, in our experience, are most reluctant to waive immunity in such cases, however strongly the State Department may urge it in a given case. And while family members of employees of the administrative and technical staff and of the service staff of a diplomatic mission do not now and will not in the future possess immunity from civil jurisdiction, the employees themselves will, under the Vienna Convention, enjoy

immunity in respect of acts "performed in the course of their duties;" since claims of "official acts" immunity are subject to judicial scrutiny on the basis of the facts and arguments presented, recovery in a civil action against the employee is certainly not assured in every case.

For all these reasons, the State Department firmly believes that the members of diplomatic missions constitute a distinct class of persons meriting the special attention of the Federal Government in the form of a mandatory liability insurance requirement.

In saying this, let me emphasize, we do not mean to suggest that we believe that the diplomatic community contains an abnormally large number of high-risk drivers, nor that its members have been responsible for an excessive number of accidents involving severe personal injury. Quite the contrary, it has been our experience that, aside from a small number of serious cases which have generated much publicity and justifiable congressional interest, the overall driving record of this group bears up remarkably well in comparison with that of the general driving public.

Although the State Department sees a need for a mandatory insurance program directed at diplomats, we at the same time know that most diplomats already carry insurance coverage adequate to comply with applicable State standards. Not only do these persons assume the responsibility of acquiring coverage, which is not always readily available because of their special status, but it is the State Department's experience that the vast majority of these persons cooperate to the fullest extent in an effort to effect just settlements of claims made under their policies.

However, testimony by representatives of the insurance industry during the February hearing before the Senate Judiciary Subcommittee forcefully confirmed what our experience has at times demonstrated to us, that it is not the diplomat with whom fault should be found in all instances for a victim's failure to secure recovery under the diplomat's insurance policy. If, as some insurance representatives would have us believe, the insurance company is constrained from waiver of the defense of diplomatic immunity because it is one to which the insured is entitled under the policy, it is clear that mandatory insurance is not the simple answer.

Some action must be taken so that insurance companies will not accept premiums from diplomats for the express purpose of protecting them against third-party claims but then effectively thwart any such claims by using the immunity of the insured as a basis for denying settlement of the claim, however meritorious it might be. Consequently a direct action approach, such as that embodied in H.R. 7679, seems to be the most equitable way of avoiding this clearly undesirable result. We consider it pertinent in this connection that direct legal action against insurers of diplomatic personnel is authorized by local law in 56 percent of the host countries covered in our recent survey of American Foreign Service posts. Diplomatic Immunity Legislation, Hearing on H.R. 7819, before the Committee on Foreign Relations, United States Senate, 95th Cong., 2d Sess. (1978), pp. 19-21.

Mr. Gookin pointed out the complementing relationship between the diplomatic immunity legislation and the Foreign Sovereign Immunities Act (P.L. 94-583, 90 Stat. 2891, Oct. 21, 1976), saying:

I should note, in closing, that the approach to liability I have just recommended is already reflected in part in the existing legislation on sovereign immunity. The Foreign Sovereign Immunities Act (28 U.S.C. 1605 (A) (5)) provides that a foreign government is not immune from actions arising from tortious acts or omissions of its employees in the course of their official duties.

Thus, to the extent that a member of the administrative and technical staff, or a member of the service staff, of a diplomatic mission is entitled to claim official acts immunity, his employing government is subject to suit. Mandatory insurance and direct action against insurers would complement this principle of channeling financial responsibility to the party who is liable under generally accepted legal principles.

Ibid., p. 21.

The Senate Committee on the Judiciary stated in its report on H.R. 7819 (the Senate Committee on Foreign Relations made a separate report upon the bill, S. 95-958, ante), in regard to the conforming amendments to title 28, United States Code, contained in section 8:

(2) Title 28 U.S.C. 1351 presently vests in the district courts original jurisdiction, exclusive of the courts of the States, of all suits against consuls or vice consuls of foreign states. Section 8(a) of the bill amends section 1351 in two respects: First, the amendment adds to the existing jurisdiction of the district courts jurisdiction of suits against members of a mission or members of their families. Such an amendment is needed to provide a convenient forum for suits against diplomatic personnel under circumstances where such suits will lie under the Vienna Convention, as complemented by this bill. Second, the term "all actions and proceedings" appearing in present section 1351 would be qualified by the word "civil," to remove the inadvertent prohibition on the exercise of criminal jurisdiction by State courts which came about in 1949 when the present language was substituted for "any civil action" which appeared in the 1948 codification of the Judiciary Code.

In the first Judiciary Act, Congress granted the Federal courts exclusive jurisdiction over all actions against foreign consuls. (Act of September 24, 1789, ch. 20, § 9, 1 Stat. 73.) This provision was repealed in 1875, giving State courts concurrent jurisdiction over such cases. (Act of February 18, 1875, ch. 80, § 300 (B), 18 Stat. 316.) In 1911 Congress reinstated exclusive Federal jurisdiction. (Act of March 3, 1911, ch. 231, § 256(8), 36 Stat. 1087.)

Congress substituted the words "civil action" for the words "all suits and proceedings" in 1948, manifesting an intent that Federal courts were to have exclusive jurisdiction only in civil actions against foreign consuls. (Act of June 25, 1948, ch. 85, § 1351, 62 Stat. 937.) But that manifestation was negated 1 year later when the statute was amended by substituting the term "any civil action" with "all actions and proceedings"-the present language.

The reviser's note to 28 U.S.C. 1351 (1970 ed.) states that the 1948 codification made only changes "in phraseology" to conform the statutory language to the language used in rule 2 of the Federal Rules of Civil Procedure; but compare Senate Report No. 303 (81st Cong., 1st sess.) which states that the 1949 revision of section 1351 "restores language of prior law. The term 'civil actions' as used in the [1948] revision was not adequate to cover all suits and proceedings as provided in the prior law."

As a result of that amendment, foreign consular officers have enjoyed since 1949 a de facto immunity from the criminal jurisdiction of our courts in most instances where under existing conventions or treaties they are subject to prosecution (see, for example, the Vienna Convention on Consular Relations, TIAS No. 6820, 21 U.S.T. 77, Art. [41]).* Unless this anomaly is removed, diplomatic personnel who will now become subject to the criminal jurisdiction of the United States would also be granted a de facto immunity.

Section 8(a) of the bill makes it clear that State courts are not denied jurisdiction to enforce the criminal laws of the States against members of a mission or members of their families, or against foreign consular officials under circumstances where existing law does not immunize such persons from the criminal jurisdiction of the United States.

Section 8(b) amends 28 U.S.C. 1251, which at the present time grants original and exclusive jurisdiction to the Supreme Court in "all actions or proceedings against ambassadors or other public ministers of foreign states or their domestics or domestic servants." Section 1251 is also derived from the Judiciary Act of 1789, and has remained in that form virtually unchanged for almost two centuries. There is no justification for continuing to vest original and exclusive jurisdiction in the Supreme Court in those instances where foreign ambassadors, members of diplomatic missions, or members of their families will be subject to suit in the courts of the United States under this bill. The Supreme Court should not be burdened with such litigation on its original docket. As noted earlier, section 8(a) of the bill will grant to district courts original jurisdiction in civil suits against members of diplomatic missions and their families. Therefore, section 1251 (a) (2) is being deleted in its totality. The district courts' jurisdiction in such suits will, however, remain concurrent with the jurisdiction of the Supreme Court. Article III, section 2, of the Constitution provides that "In all Cases affecting Ambassadors, other public Ministers and Consuls the Supreme Court shall have original Jurisdiction." Congress may not deny to the Supreme Court jurisdiction which is expressly granted to it by the Constitution, Marbury v. Madison, 1 Cranch 137, 173 (1803). But from the time of the Judiciary Act of 1789, inferior Federal courts have been given concurrent jurisdiction over certain cases of which the Supreme Court has original jurisdiction, and such legislation has been consistently upheld. Bors v. Preston, 111 U.S. 252, 256-261 (1884); United States v. California, 297 U.S. 175, 187 (1936).

To conform the Judiciary Code to the constitutional mandate, subsection (b) (1) of section 1251 is amended by section 8 (b) of the