source: Caselaw Access Project

author: Justice O’Connor Justice Stevens,

license: Public Domain

text:
    FIRST NATIONAL CITY BANK v. BANCO PARA EL COMERCIO EXTERIOR DE CUBA
    No. 81-984.
    Argued March 28, 1983
    Decided June 17, 1983

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Powell, and Rehnquist, JJ., joined, and in Parts I, II, III-A, and III-B of which Brennan, Blackmun, and Stevens, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Brennan, and Blackmun, JJ., joined, post, p. 634.

      Henry Harfield argued the cause for petitioner. With him on the briefs were John E. Hoffman, Jr., and Charles B. Manuel, Jr.

      Richard G. Wilkins argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, Geoffrey S. Stewart, Davis R. Robinson, Fred L. Morrison, and Ronald W. Kleinman.

      Michael Krinsky argued the cause for respondent. With him on the brief were Victor Rabinowitz, Judith Levin, and Jules Lobel.

        John J. McGrath, Jr., filed a brief for Kalamazoo Spice Extraction Co. as amicus curiae urging reversal.

        Richard F. Bellman filed a brief for the International Center for Law in Development as amicus curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

In 1960 the Government of the Republic of Cuba established respondent Banco Para el Comercio Exterior de Cuba (Bancec) to serve as “[a]n official autonomous credit institution for foreign trade . . . with full juridical capacity ... of its own . . . .” Law No. 793, Art. 1 (1960), App. to Pet. for Cert. 2d. In September 1960 Bancec sought to collect on a letter of credit issued by petitioner First National City Bank (now Citibank) in its favor in support of a contract for delivery of Cuban sugar to a buyer in the United States. Within days after Citibank received the request for collection, all of its assets in Cuba were seized and nationalized by the Cuban Government. When Bancec brought suit on the letter of credit in United States District Court, Citibank counterclaimed, asserting a right to set off the value of its seized Cuban assets. The question before us is whether Citibank may obtain such a setoff, notwithstanding the fact that Bancec was established as a separate juridical entity. Applying principles of equity common to international law and federal common law, we conclude that Citibank may apply a setoff.

h-t

Resolution of the question presented by this case requires us to describe in some detail the events giving rise to the current controversy.

Bancec was established by Law No. 793, of April 25, 1960, as the legal successor to the Banco Cubano del Comercio Exterior (Cuban Foreign Trade Bank), a trading bank established by the Cuban Government in 1954 and jointly owned by the Government and private banks. Law No. 793 contains detailed “By-laws” specifying Bancec’s purpose, structure, and administration. Bancec’s stated purpose was “to contribute to, and collaborate with, the international trade policy of the Government and the application of the measures concerning foreign trade adopted by the ‘Banco Nacional de Cuba,”’ Cuba’s central bank (Banco Nacional). Art. 1, No. VIII, App. to Pet. for Cert. 4d. Bancec was empowered to act as the Cuban Government’s exclusive agent in foreign trade. The Government supplied all of its capital and owned all of its stock. The General Treasury of the Republic received all of Bancec’s profits, after deduction of amounts for capital reserves. A Governing Board consisting of delegates from Cuban governmental ministries governed and managed Bancec. Its president was Ernesto Che Guevara, who also was Minister of State and president of Banco Nacional. A General Manager appointed by the Governing Board was charged with directing Bancec’s day-to-day operations in a manner consistent with its enabling statute.

In contracts signed on August 12, 1960, Bancec agreed to purchase a quantity of sugar from El Institutio Nacional de Reforma Agraria (INRA), an instrumentality of the Cuban Government which owned and operated Cuba’s nationalized sugar industry, and to sell it to the Cuban Canadian Sugar Company. The latter sale agreement was supported by an irrevocable letter of credit in favor of Bancec issued by Citibank on August 18,1960, which Bancec assigned to Banco Nacional for collection.

Meanwhile, in July 1960 the Cuban Government enacted Law No. 851, which provided for the nationalization of the Cuban properties of United States citizens. By Resolution No. 2 of September 17, 1960, the Government ordered that all of the Cuban property of three United States banks, including Citibank, be nationalized through forced expropriation. The “Bank Nationalization Law,” Law No. 891, of October 13, 1960, declared that the banking function could be carried on only by instrumentalities created by the State, and ordered Banco Nacional to effect the nationalization.

On or about September 15, 1960, before the banks were nationalized, Bancec’s draft was presented to Citibank for payment by Banco Nacional. The amount sought was $193,280.30 for sugar delivered at Pascagoula, Miss. On September 20, 1960, after its branches were nationalized, Citibank credited the requested amount to Banco National's account and applied the balance in Banco National's account as a setoff against the value of its Cuban branches.

On February 1, 1961, Bancec brought this diversity action to recover on the letter of credit in the United States District Court for the Southern District of New York.

On February 23, 1961, by Law No. 930, Bancec was dissolved and its capital was split between Banco Nacional and “the foreign trade enterprises or houses of the Ministry of Foreign Trade,” which were established by Law No. 934 the same day. App. to Pet. for Cert. 16d. All of Bancec's rights, claims, and assets “peculiar to the banking business” were vested in Banco Nacional, which also succeeded to its banking obligations. Ibid. All of Bancec’s “trading functions” were to be assumed by “the foreign trade enterprises or houses of the Ministry of Foreign Trade.” By Resolution No. 1, dated March 1, 1961, the Ministry of Foreign Trade created Empresa Cubana de Exportaciones (Cuban Enterprise for Exports) (Empresa), which was empowered to conduct all commercial export transactions formerly conducted by Bancec “remaining subrogated in the rights and obligations of said bank [Bancec] as regards the commercial export activities.” App. to Pet. for Cert. 26d. Three hundred thousand of the two million pesos distributed to the Ministry of Foreign Trade when Bancec was dissolved were assigned to Empresa. Id., at 27d. By Resolution No. 102, dated December 31, 1961, and Resolution No. 1, dated January 1, 1962, Empresa was dissolved and Bancec’s rights relating to foreign commerce in sugar were assigned to Empresa Cu-baña Exportadora de Azúcar y sus Derivados (Cubazucar), a state trading company, which is apparently still in existence.

On March 8, 1961, after Bancec had been dissolved, Citibank filed its answer, which sought a setoff for the value of its seized branches, not an affirmative recovery of damages. On July 7, 1961, Bancec filed a stipulation signed by the parties stating that Bancec had been dissolved and that its claim had been transferred to the Ministry of Foreign Trade, and agreeing that the Republic of Cuba may be substituted as plaintiff. The District Court approved the stipulation, but no amended complaint was filed.

Apparently the case lay dormant until May 1975, when respondent filed a motion seeking an order substituting Cubazucar as plaintiff. The motion was supported by an affidavit by counsel stating that Bancec’s claim had passed through the Ministry of Foreign Trade and Empresa to Cu-bazucar, all by operation of the laws and resolutions cited above. Counsel for petitioner opposed the motion, and the District Court denied it in August 1975, stating that “to permit such a substitution ... would only multiply complications in this already complicated litigation.” App. 160.

A bench trial was held in 1977, after which the District Court granted judgment in favor of Citibank. 505 F. Supp. 412 (1980). The court rejected Bancec’s contention that its separate juridical status shielded it from liability for the acts of the Cuban Government.

“Under all of the relevant circumstances shown in this record, ... it is clear that Bancec lacked an independent existence, and was a mere arm of the Cuban Government, performing a purely governmental function. The control of Bancec was exclusively in the hands of the Government, and Bancec was established solely to further Governmental purposes. Moreover, Bancec was totally dependent on the Government for financing and required to remit all of its profits to the Government.
“Bancec is not a mere private corporation, the stock of which is owned by the Cuban Government, but an agency of the Cuban Government in the conduct of the sort of matters which even in a country characterized by private capitalism, tend to be supervised and managed by Government. Where the equities are so strong in favor of the counter-claiming defendants, as they are in this case, the Court should recognize the practicalities of the transactions. . . . The Court concludes that Bancee is an alter ego of the Cuban Government.” Id., at 427-428.

Without determining the exact value of Citibank’s assets seized by Cuba, the court held that “the value of the confiscated branches . . . substantially exceeds the sums already recovered, and therefore the set-off pleaded here may be granted in full in favor of Citibank.” Id., at 467. It therefore entered judgment dismissing the complaint.

The United States Court of Appeals for the Second Circuit reversed. 658 F. 2d 913 (1981). While expressing agreement with the District Court’s “descriptions of Bancec’s functions and its status as a wholly-owned instrumentality of the Cuban government,” the court concluded that “Bancec was not an alter ego of the Cuban government for the purpose of [Citibank’s] counterclaims.” Id., at 917. It stated that, as a general matter, courts would respect the independent identity of a governmental instrumentality created as “a separate and distinct juridical entity under the laws of the state that owns it” — except “when the subject matter of the counterclaim assertible against the state is state conduct in which the instrumentality had a key role.” Id., at 918. As an example of such a situation the Court of Appeals cited Banco Nacional de Cuba v. First National City Bank, 478 F. 2d 191 (CA2 1973), in which it had ruled that Banco Nacional could be held liable by way of setoff for the value of Citibank’s seized Cuban assets because of the role it played in the expropriations. But the court declined to hold that “a trading corporation wholly owned by a foreign government, but created and operating as a separate juridical entity, is an alter ego of that government for the purpose of recovery for wrongs of the government totally unrelated to the operations, conduct or authority of the instrumentality.” 658 F. 2d, at 920.

Citibank moved for rehearing, arguing, inter alia, that the panel had ignored the fact that Bancec had been dissolved in February 1961. The motion, and a suggestion of rehearing en banc, were denied. This Court granted certiorari. 459 U. S. 942 (1982). We reverse, and remand the case for further proceedings.

II

A

As an initial matter, Bancec contends that the Foreign Sovereign Immunities Act of 1976, 28 U. S. C. §§ 1602-1611 (FSIA), immunizes an instrumentality owned by a foreign government from suit on a counterclaim based on actions taken by that government. Bancec correctly concedes that, under 28 U. S. C. § 1607(c), an instrumentality of a foreign state bringing suit in a United States court is not entitled to immunity “with respect to any counterclaim ... to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought by the [instrumentality].” It contends, however, that as a substantive matter the FSIA prohibits holding a foreign instrumentality owned and controlled by a foreign government responsible for actions taken by that government.

We disagree. The language and history of the FSIA clearly establish that the Act was not intended to affect the substantive law determining the liability of a foreign state or instrumentality, or the attribution of liability among instru-mentalities of a foreign state. Section 1606 of the FSIA provides in relevant part that “[a]s to any claim for relief with respect to which a foreign state is not entitled to immunity . . . , the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances . . . .” The House Report on the FSIA states:

“The bill is not intended to affect the substantive law of liability. Nor is it intended to affect. . . the attribution of responsibility between or among entities of a foreign state; for example, whether the proper entity of a foreign state has been sued, or whether an entity sued is liable in whole or in part for the claimed wrong.” H. R. Rep. No. 94-1487, p. 12 (1976).

Thus, we conclude that the FSIA does not control the determination of whether Citibank may set off the value of its seized Cuban assets against Bancec’s claim. Nevertheless, our resolution of that question is guided by the policies articulated by Congress in enacting the FSIA. See infra, at

We must next decide which body of law determines the effect to be given to Bancec’s separate juridical status. Bancec contends that internationally recognized conflict-of-law principles require the application of the law of the state that establishes a government instrumentality — here Cuba— to determine whether the instrumentality may be held liable for actions taken by the sovereign.

We cannot agree. As a general matter, the law of the state of incorporation normally determines issues relating to the internal affairs of a corporation. Application of that body of law achieves the need for certainty and predictability of result while generally protecting the justified expectations of parties with interests in the corporation. See Restatement (Second) of Conflict of Laws § 302, Comments a and e (1971). Cf. Cort v. Ash, 422 U. S. 66, 84 (1975). Different conflicts principles apply, however, where the rights of third parties external to the corporation are at issue. See Restatement (Second) of Conflict of Laws, supra, §301. To give conclusive effect to the law of the chartering state in determining whether the separate juridical status of its instrumentality should be respected would permit the state to violate with impunity the rights of third parties under international law while effectively insulating itself from liability in foreign courts. We decline to permit such a result.

Bancec contends in the alternative that international law must determine the resolution of the question presented. Citibank, on the other hand, suggests that federal common law governs. The expropriation claim against which Bancec seeks to interpose its separate juridical status arises under international law, which, as we have frequently reiterated, “is part of our law . . . The Paquete Habana, 175 U. S. 677, 700 (1900). As we set forth below, see infra, at 624-630, and nn. 19, 20, the principles governing this case are common to both international law and federal common law, which in these circumstances is necessarily informed both by international law principles and by articulated congressional policies.

Ill

A

Before examining the controlling principles, a preliminary observation is appropriate. The parties and amici have repeatedly referred to the phrases that have tended to dominate discussion about the independent status of separately constituted juridical entities, debating whether “to pierce the corporate veil,” and whether Bancec is an “alter ego” or a “mere instrumentality” of the Cuban Government. In Berkey v. Third Avenue R. Co., 244 N. Y. 84, 155 N. E. 58 (1926), Justice (then Judge) Cardozo warned in circumstances similar to those presented here against permitting worn epithets to substitute for rigorous analysis.

“The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” Id., at 94, 155 N. E., at 61.

With this in mind, we examine briefly the nature of government instrumentalities.

Increasingly during this century, governments throughout the world have established separately constituted legal entities to perform a variety of tasks. The organization and control of these entities vary considerably, but many possess a number of common features. A typical government instrumentality, if one can be said to exist, is created by an enabling statute that prescribes the powers and duties of the instrumentality, and specifies that it is to be managed by a board selected by the government in a manner consistent with the enabling law. The instrumentality is typically established as a separate juridical entity, with the powers to hold and sell property and to sue and be sued. Except for appropriations to provide capital or to cover losses, the instrumentality is primarily responsible for its own finances. The instrumentality is run as a distinct economic enterprise; often it is not subject to the same budgetary and personnel requirements with which government agencies must comply.

These distinctive features permit government instrumen-talities to manage their operations on an enterprise basis while granting them a greater degree of flexibility and independence from close political control than is generally enjoyed by government agencies. These same features frequently prompt governments in developing countries to establish separate juridical entities as the vehicles through which to obtain the financial resources needed to make large-scale national investments.

“[PJublic enterprise, largely in the form of development corporations, has become an essential instrument of economic development in the economically backward countries which have insufficient private venture capital to develop the utilities and industries which are given priority in the national development plan. Not infrequently, these public development corporations . . . directly or through subsidiaries, enter into partnerships with national or foreign private enterprises, or they offer shares to the public.” Friedmann, Government Enterprise: A Comparative Analysis, in Government Enterprise: A Comparative Study 303, 333-334 (W. Fried-mann & J. Garner eds. 1970).

Separate legal personality has been described as “an almost indispensable aspect of the public corporation.” Id., at 314. Provisions in the corporate charter stating that the instrumentality may sue and be sued have been construed to waive the sovereign immunity accorded to many governmental activities, thereby enabling third parties to deal with the instrumentality knowing that they may seek relief in the courts. Similarly, the instrumentality’s assets and liabilities must be treated as distinct from those of its sovereign in order to facilitate credit transactions with third parties. Id., at 315. Thus what the Court stated with respect to private corporations in Anderson v. Abbott, 321 U. S. 349 (1944), is true also for governmental corporations:

“Limited liability is the rule, not the exception; and on that assumption large undertakings are rested, vast enterprises are launched, and huge sums of capital attracted.” Id., at 362.

Freely ignoring the separate status of government instru-mentalities would result in substantial uncertainty over whether an instrumentality’s assets would be diverted to satisfy a claim against the sovereign, and might thereby cause third parties to hesitate before extending credit to a government instrumentality without the government’s guarantee. As a result, the efforts of sovereign nations to structure their governmental activities in a manner deemed necessary to promote economic development and efficient administration would surely be frustrated. Due respect for the actions taken by foreign sovereigns and for principles of comity between nations, see Hilton v. Guyot, 159 U. S. 113, 163-164 (1895), leads us to conclude — as the courts of Great Britain have concluded in other circumstances — that government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.

We find support for this conclusion in the legislative history of the FSIA. During its deliberations, Congress clearly expressed its intention that duly created instrumentalities of a foreign state are to be accorded a presumption of independent status. In its discussion of FSIA § 1610(b), the provision dealing with the circumstances under which a judgment creditor may execute upon the assets of an instrumentality of a foreign government, the House Report states:

“Section 1610(b) will not permit execution against the property of one agency or instrumentality to satisfy a judgment against another, unrelated agency or instrumentality. There are compelling reasons for this. If U. S. law did not respect the separate juridical identities of different agencies or instrumentalities, it might encourage foreign jurisdictions to disregard the juridical divisions between different U. S. corporations or between a U. S. corporation and its independent subsidiary. However, a court might find that property held by one agency is really the property of another.” H. R. Rep. No. 94-1487, pp. 29-30 (1976) (citation omitted).

Thus, the presumption that a foreign government’s determination that its instrumentality is to be accorded separate legal status is buttressed by this congressional determination. We next examine whether this presumption may be overcome in certain circumstances.

B

In discussing the legal status of private corporations, courts in the United States and abroad, have recognized that an incorporated entity — described by Chief Justice Marshall as “an artificial being, invisible, intangible, and existing only in contemplation of law” — is not to be regarded as legally separate from its owners in all circumstances. Thus, where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created, we have held that one may be held liable for the actions of the other. See NLRB v. Deena Artware, Inc., 361 U. S. 398, 402-404 (1960). In addition, our cases have long recognized “the broader equitable principle that the doctrine of corporate entity, recognized generally and for most purposes, will not be regarded when to do so would work fraud or injustice.” Taylor v. Standard Gas Co., 306 U. S. 307, 322 (1939). See Pepper v. Litton, 308 U. S. 295, 310 (1939). In particular, the Court has consistently refused to give effect to the corporate form where it is interposed to defeat legislative policies. E. g., Anderson v. Abbott, 321 U. S., at 362-363. And in Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co., 417 U. S. 703 (1974), we concluded:

“Although a corporation and its shareholders are deemed separate entities for most purposes, the corporate form may be disregarded in the interests of justice where it is used to defeat an overriding public policy. . . . [W]here equity would preclude the shareholders from maintaining an action in their own right, the corporation would also be precluded. . . . [T]he principal beneficiary of any recovery and itself estopped from complaining of petitioners’ alleged wrongs, cannot avoid the command of equity through the guise of proceeding in the name of . . . corporations which it owns and controls.” Id., at 713 (citations omitted).

C

We conclude today that similar equitable principles must be applied here. In National City Bank v. Republic of China, 348 U. S. 356 (1955), the Court ruled that when a foreign sovereign asserts a claim in a United States court, “the consideration of fair dealing” bars the state from asserting a defense of sovereign immunity to defeat a setoff or counterclaim. Id., at 365. See 28 U. S. C. § 1607(c). As a general matter, therefore, the Cuban Government could not bring suit in a United States court without also subjecting itself to its adversary’s counterclaim. Here there is apparently no dispute that, as the District Court found, and the Court of Appeals apparently agreed, see 658 F. 2d, at 916, n. 4, “the devolution of [Bancec’s] claim, however viewed, brings it into the hands of the Ministry [of Foreign Trade], or Banco Nacional,” each a party that may be held liable for the expropriation of Citibank’s assets. 505 F. Supp., at 425. See Banco Nacional de Cuba v. First National City Bank, 478 F. 2d, at 194. Bancec was dissolved even before Citibank filed its answer in this case, apparently in order to effect “the consolidation and operation of the economic and social conquests of the Revolution,” particularly the nationalization of the banks ordered by Law No. 891. Thus, the Cuban Government and Banco Nacional, not any third parties that may have relied on Bancec’s separate juridical identity, would be the only beneficiaries of any recovery.

In our view, this situation is similar to that in the Republic of China case.

“We have a foreign government invoking our law but resisting a claim against it which fairly would curtail its recovery. It wants our law, like any other litigant, but it wants our law free from the claims of justice.” 348 U. S., at 361-362 (footnote omitted).

Giving effect to Bancec’s separate juridical status in these circumstances, even though it has long been dissolved, would permit the real beneficiary of such an action, the Government of the Republic of Cuba, to obtain relief in our courts that it could not obtain in its own right without waiving its sovereign immunity and answering for the seizure of Citibank’s assets — a seizure previously held by the Court of Appeals to have violated international law. We decline to adhere blindly to the corporate form where doing so would cause such an injustice. See Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co., supra, at 713.

Respondent contends, however, that the transfer of Bancec’s assets from the Ministry of Foreign Trade or Banco Nacional to Empresa and Cubazucar effectively insulates it from Citibank’s counterclaim. We disagree. Having dissolved Bancec and transferred its assets to entities that may be held liable on Citibank’s counterclaim, Cuba cannot escape liability for acts in violation of international law simply by retransferring the assets to separate juridical entities. To hold otherwise would permit governments to avoid the requirements of international law simply by creating juridical entities whenever the need arises. Cf. Federal Republic of Germany v. Elicofon, 358 F. Supp. 747, 757 (EDNY 1972), aff’d, 478 F. 2d 231 (CA2 1973), cert. denied, 415 U. S. 931 (1974). See n. 25, supra. We therefore hold that Citibank may set off the value of its assets seized by the Cuban Government against the amount sought by Bancec.

I — I <

Our decision today announces no mechanical formula for determining the circumstances under which the normally separate juridical status of a government instrumentality is to be disregarded. Instead, it is the product of the application of internationally recognized equitable principles to avoid the injustice that would result from permitting a foreign state to reap the benefits of our courts while avoiding the obligations of international law.

The District Court determined that the value of Citibank’s Cuban assets exceeded Bancec’s claim. Bancec challenged this determination on appeal, but the Court of Appeals did not reach the question. It therefore remains open on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Brennan and Justice Blackmun join,

concurring in part and dissenting in part.

Today the Court correctly rejects the contention that American courts should readily “pierce the corporate veils” of separate juridical entities established by foreign governments to perform governmental functions. Accordingly, I join Parts I, II, III-A, and III-B of the Court’s opinion. But I respectfully dissent from Part III — C, in which the Court endeavors to apply the general principles it has enunciated. Instead I would vacate the judgment and remand the case to the Court of Appeals for further proceedings.

As the Court acknowledges, the evidence presented to the District Court did not focus on the factual issue that the Court now determines to be dispositive. Only a single witness testified on matters relating to Bancec’s legal status and operational autonomy. The record before the District Court also included English translations of various Cuban statutes and resolutions, but there was no expert testimony on the significance of those foreign legal documents. Finally, as the Court notes, the record includes a July 1961 stipulation of the parties and a May 1975 affidavit by counsel for respondent. Ante, at 616-617, n. 3. It is clear to me that the materials of record that have been made available to this Court are not sufficient to enable us to determine the rights of the parties.

The Court relies heavily on the District Court’s statement that “the devolution of [Bancec’s] claim, however viewed, brings it into the hands of the Ministry [of Foreign Trade], or Banco Nacional.” But that statement should not be given dispositive significance, for the District Court made no inquiry into the capacity in which either entity might have taken Bancec’s claim. If the Ministry of Foreign Trade held the claim on its own account, arguably the Cuban Government could be subject to Citibank’s setoff. But it is clear that the Ministry held the claim for six days at most, during the interval between the promulgation of Laws No. 930 and No. 934 on February 23, 1961, and the issuance of Resolution No. 1 on March 1. It is thus possible that these legal documents reflected a single, integrated plan of corporate reorganization carried out over a 6-day period, which resulted in the vesting of specified assets of Bancec in a new, juridically autonomous corporation, Empresa. Respondent argues that the Ministry played the role of a trustee, “entrusted and legally bound to transfer Bancec’s assets to the new empresa [foreign trade enterprise]. . . . The Republic having acted as a trustee, there could be no counterclaim based upon its acts in an individual capacity.” Brief for Respondent 57.

Of course, the Court may have reached a correct assessment of the transactions at issue. But I continue to believe that the Court should not decide factual issues that can be resolved more accurately and effectively by other federal judges, particularly when the record presented to this Court is so sparse and uninformative.

       Law No. 934 provides that “[a]ll the functions of a mercantile character heretofore assigned to [Bancec] are hereby transferred and vested in the foreign trade enterprises or houses set up hereunder, which are subro-gated to the rights and obligations of said former Bank in pursuance of the assignment of those functions ordered by the Minister.” App. to Pet. for Cert. 24d.

       Citibank’s answer alleged that the suit was “brought by and for the benefit of the Republic of Cuba by and through its agent and wholly-owned instrumentality, . . . which is in fact and law and in form and function an integral part of and indistinguishable from the Republic of Cuba.” App. 113.

       The bulk of the evidence at trial was directed to the question whether the value of Citibank’s confiscated branches exceeded the amount Citibank had already recovered from Cuba, including a setoff it had successfully asserted in Banco Nacional de Cuba v. First National City Bank, 478 F. 2d 191 (CA2 1978) (Banco I), the decision on remand from this Court’s decision in First National City Bank v. Banco Nacional de Cuba, 406 U. S. 759 (1972). Only one witness, Raul Lopez, testified on matters touching upon the question presented. (A second witness, Juan Sanchez, described the operations of Bancec’s predecessor. App. 185-186.) Lopez, who was called by Bancec, served as a lawyer for Banco Nacional from 1953 to 1965, when he went to work for the Foreign Trade Ministry. He testified that “Bancec was an autonomous organization that was supervised by the Cuban Government but not controlled by it.” Id., at 197. According to Lopez, under Cuban law Bancec had independent legal status, and could sue and be sued. Lopez stated that Bancec’s capital was supplied by the Cuban Government and that its net profits, after reserves, were paid to Cuba’s Treasury, but that Bancec did not pay taxes to the Government. Id., at 196.
      The District Court also took into evidence translations of the Cuban statutes and resolutions, as well as the July 1961 stipulation for leave to file a motion to file an amended complaint substituting the Republic of Cuba as plaintiff. The court stated that the stipulation would be taken “for what it is worth,” and acknowledged respondent’s representation that it was based on an “erroneous” interpretation of Cuba’s law. Id., at 207-209.

       Judge van Pelt Bryan, before whom the case was tried, died before issuing a decision. With the parties’ consent, Judge Brieant decided the case based on the record of the earlier proceedings. 505 F. Supp. 412. 418 (1980).

       The District Court stated that the events surrounding Bancec’s dissolution “naturally inject a question of ‘real party in interest’ into the discussion of Bancec’s claim,” but it attached “no significance or validity to arguments based on that concept.” Id., at 425. It indicated that when Bancee was dissolved, the claim on the letter of credit was “the sort of asset, right and claim peculiar to the banking business, and accordingly, probably should be regarded as vested in Banco Nacional. .. .” Id., at 424. Noting that the Court of Appeals, in Banco I, had affirmed a ruling that Banco Nacional could be held liable by way of setoff for the value of Citibank’s seized Cuban assets, the court concluded:
      “[T]he devolution of [Bancec’s] claim, however viewed, brings it into the hands of the Ministry, or Banco Nacional, each an alter ego of the Cuban Government. . . . [W]e accept the present contention of plaintiff’s counsel that the order of this Court of July 6th [1961] permitting, but apparently not requiring, the service of an amended complaint in which the Republic of Cuba itself would appear as a party plaintiff in lieu of Bancec was based on counsel’s erroneous assumption, or an erroneous interpretation of the laws and resolutions providing for the devolution of the assets of Bancec. Assuming this to be true, it is of no moment. The Ministry of Foreign Trade is no different than the Government of which its minister is a member.” 505 F. Supp., at 425 (emphasis in original).

       In a footnote, the Court of Appeals referred to Bancec’s dissolution and listed its successors, but its opinion attached no significance to that event. 658 F. 2d, at 916, n. 4.

       In relevant part, 28 U. S. C. § 1607 provides:
      “In any action brought by a foreign state ... in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim—
      “(c) to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind from that sought by the foreign state.”
      As used in 28 U. S. C. § 1607, a “foreign state” includes an "agency or instrumentality of a foreign state . . . .” 28 U. S. C. § 1608(a).
      Section 1607(c) codifies our decision in National City Bank v. Republic of China, 348 U. S. 356 (1955). See H. R. Rep. No. 94-1487, p. 23 (1976).

       See also id., at 28 (in deciding whether property in the United States of a foreign state is immune from attachment and execution under 28 U. S. C. § 1610(a)(2), “[t]he courts will have to determine whether property ‘in the custody of’ an agency or instrumentality is property ‘of’ the agency or instrumentality, whether property held by one agency should be deemed to be property of another, [and] whether property held by an agency is property of the foreign state”).

       See also Hadari, The Choice of National Law Applicable to the Multinational Enterprise and the Nationality of Such Enterprises, 1974 Duke L. J. 1, 15-19.

       Cf. Anderson v. Abbott, 321 U. S. 349, 365 (1944) (declining to apply the law of the State of incorporation to determine whether a banking corporation complied with the requirements of federal banking laws because “no State may endow its corporate creatures with the power to place themselves above the Congress of the United States and defeat the federal policy concerning national banks which Congress has announced”).

       Pointing out that 28 U. S. C. § 1606, see supra, at 620, contains language identical to the Federal Tort Claims Act (FTCA), 28 U. S. C. § 2674, Bancec also contends alternatively that the FSIA, like the FTCA, requires application of the law of the forum State — here New York — including its conflicts principles. We disagree. Section 1606 provides that “[a]s to any claim for relief with respect to which a foreign state is not entitled to immunity . . . , the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Thus, where state law provides a rule of liability governing private individuals, the FSIA requires the application of that rule to foreign states in like circumstances. The statute is silent, however, concerning the rule governing the attribution of liability among entities of a foreign state. In Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 425 (1964), this Court declined to apply the State of New York’s act of state doctrine in a diversity action between a United States national and an instrumentality of a foreign state, concluding that matters bearing on the Nation’s foreign relations “should not be left to divergent and perhaps parochial state interpretations.” When it enacted the FSIA, Congress expressly acknowledged “the importance of developing a uniform body of law” concerning the amenability of a foreign sovereign to suit in United States courts. H. R. Rep. No. 94-1487, p. 32 (1976). See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 489 (1983). In our view, these same considerations preclude the application of New York law here.

       Although this Court has never been required to consider the separate status of a foreign instrumentality, it has considered the legal status under federal law of United States Government instrumentalities in a number of contexts, none of which are relevant here. See, e. g., Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381 (1939) (determining that Congress did not intend to endow corporations chartered by the Reconstruction Finance Corporation with immunity from suit).

       Friedmann, Government Enterprise: A Comparative Analysis, in Government Enterprise: A Comparative Study 303, 306-307 (W. Friedmann & J. Garner eds. 1970). See D. Coombes, State Enterprise: Business or Politics? (1971) (United Kingdom); Dallmayr, Public and Semi-Public Corporations in France, 26 Law & Contemp. Prob. 755 (1961); J. Quigley, The Soviet Foreign Trade Monopoly 48-49, 119-120 (1974); Seidman, Government-sponsored Enterprise in the United States, in The New Political Economy 83, 85 (B. Smith ed. 1975); Supranowitz, The Law of State-Owned Enterprises in a Socialist State, 26 Law & Contemp. Prob. 794 (1961); United Nations, Department of Economic and Social Affairs, Organization, Management and Supervision of Public Enterprises in Developing Countries 63-69 (1974) (hereinafter United Nations Study); A. Walsh, The Public’s Business: The Politics and Practices of Government Corporations 313-321 (1978) (Europe).

       Friedmann, supra, at 334; United Nations Study 63-65.

       President Franklin D. Roosevelt described the Tennessee Valley Authority, perhaps the best known of the American public corporations, as “a corporation clothed with the power of Government but possessed of the flexibility and initiative of a private enterprise.” 77 Cong. Rec. 1423 (1933). See also J. Thurston, Government Proprietary Corporations in the English-Speaking Countries 7 (1937).

         Id., at 43-44. This principle has long been recognized in courts in common-law nations. See Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904 (1824); Tamlin v. Hannaford, [1950] 1 K. B. 18, 24 (C. A.).

       See Posner, The Rights of Creditors of Affiliated Corporations, 43 U. Chi. L. Rev. 499, 516-617 (1976) (discussing private corporations).

       The British courts, applying principles we have not embraced as universally acceptable, have shown marked reluctance to attribute the acts of a foreign government to an instrumentality owned by that government. In I Congreso del Partido, [1983] A. C. 244, a decision discussing the so-called “restrictive” doctrine of sovereign immunity and its application to three Cuban state-owned enterprises, including Cubazucar, Lord Wilberforce described the legal status of government instrumentalities:
      “State-controlled enterprises, with legal personality, ability to trade and to enter into contracts of private law, though wholly subject to the control of their state, are a well-known feature of the modem commercial scene. The distinction between them, and their governing state, may appear artificial: but it is an accepted distinction in the law of England and other states. Quite different considerations apply to a state-controlled enterprise acting on government directions on the one hand, and a state, exercising sovereign functions, on the other.” Id., at 258 (citation omitted).
      Later in his opinion, Lord Wilberforce rejected the contention that commercial transactions entered into by state-owned organizations could be attributed to the Cuban Government. “The status of these organisations is familiar in our courts, and it has never been held that the relevant state is in law answerable for their actions.” Id., at 271. See also Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] Q. B. 529, in which the Court of Appeal ruled that the Central Bank of Nigeria was not an “alter ego or organ” of the Nigerian Government for the purpose of determining whether it could assert sovereign immunity. Id., at 559.
      In C. Czarnikow Ltd. v. Rolimpex, [1979] A. C. 351, the House of Lords affirmed a decision holding that Rolimpex, a Polish state trading enterprise that sold Polish sugar overseas, could successfully assert a defense offorce majeure in an action for breach of a contract to sell sugar. Rolimpex had defended on the ground that the Polish Government had instituted a ban on the foreign sale of Polish sugar. Lord Wilberforce agreed with the conclusion of the court below that, in the absence of “clear evidence and definite findings” that the foreign government took the action “purely in order to extricate a state enterprise from contractual liability,” the enterprise cannot be regarded as an organ of the state. Rolimpex, he concluded, “is not so closely connected with the government of Poland that it is precluded from relying on the ban [on foreign sales] as government intervention. . . ." Id., at 364.

       See 1W. Fletcher, Cyclopedia of the Law of Private Corporations § 41 (rev. perm. ed. 1983):
      “[A] corporation will be looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears; but, when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons.” Id., at 389 (footnote omitted).
      See generally H. Henn, Handbook of the Law of Corporations § 146 (2d ed. 1970); I. Wormser, Disregard of the Corporate Fiction and Allied Corporation Problems 42-85 (1927).

       In Case Concerning The Barcelona Traction, Light & Power Co., 1970 I. C. J. 3, the International Court of Justice acknowledged that, as a matter of international law, the separate status of an incorporated entity may be disregarded in certain exceptional circumstances:
      “Forms of incorporation and their legal personality have sometimes not been employed for the sole purposes they were originally intended to serve; sometimes the corporate entity has been unable to protect the rights of those who entrusted their financial resources to it; thus inevitably there have arisen dangers of abuse, as in the case of many other institutions of law. Here, then, as elsewhere, the law, confronted with economic realities, has had to provide protective measures and remedies in the interests of those within the corporate entity as well as of those outside who have dealings with it: the law has recognized that the independent existence of the legal entity cannot be treated as an absolute. It is in this context that the process of ‘lifting the corporate veil’ or ‘disregarding the legal entity’ has been found justified and equitable in certain circumstances or for certain purposes. The wealth of practice already accumulated on the subject in municipal law indicates that the veil is lifted, for instance, to prevent the misuse of the privileges of legal personality, as in certain cases of fraud or malfeasance, to protect third persons such as a creditor or purchaser, or to prevent the evasion of legal requirements or of obligations.
      “In accordance with the principle expounded above, the process of lifting the veil, being an exceptional one admitted by municipal law in respect of an institution of its own making, is equally admissible to play a similar role in international law. ...” Id., at 38-39.
      On the application of these principles by European courts, see Cohn & Simitis, “Lifting the Veil” in the Company Laws of the European Continent, 12 Int’l & Comp. L. Q. 189 (1963); Hadari, The Structure of the Private Multinational Enterprise, 71 Mich. L. Rev. 729, 771, n. 260 (1973).

        Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819).

       Pointing to the parties’ failure to seek findings of fact in the District Court concerning Bancec’s dissolution and its aftermath, Bancec contends that the District Court’s order denying its motion to substitute Cubazucar as plaintiff precludes further consideration of the effect of the dissolution. While it is true that the District Court did not hear evidence concerning which agency or instrumentality of the Cuban Government, under Cuban law, succeeded to Bancec’s claim against Citibank on the letter of credit, resolution of that question has no bearing on our inquiry. We rely only on the fact that Bancec was dissolved by the Cuban Government and its assets transferred to entities that may be held liable on Citibank’s counterclaim — undisputed facts readily ascertainable from the statutes and orders offered in the District Court by Bancec in support of its motion to substitute Cubazucar.

       Law No. 930, the law dissolving Bancec, contains the following recitations:
      “WHEREAS, the measures adopted by the Revolutionary Government in pursuance of the Program of the Revolution have resulted, within a short time, in profound social changes and considerable institutional transformations of the national economy.
      “WHEREAS, among these institutional transformations there is one which is specially significant due to its transcendence in the economic and financial fields, which is the nationalization of the banks ordered by Law No. 891, of October 13,1960, by virtue of which the banking functions will hereafter be the exclusive province of the Cuban Government.
      “WHEREAS, the consolidation and the operation of the economic and social conquests of the Revolution require the restructuration into a sole and centralized banking system, operated by the State, constituted by the [Banco Nacional], which will foster the development and stimulation of all productive activities of the Nation through the accumulation of the financial resources thereof, and their most economic and reasonable utilization.” App. to Pet. for Cert. 14d-15d.

       The parties agree that, under the Cuban Assets Control Regulations, 31 CFR pt. 515 (1982), any judgment entered in favor of an instrumentality of the Cuban Government would be frozen pending settlement of claims between the United States and Cuba.

       See also First National City Bank v. Banco Nacional de Cuba, 406 U. S., at 770-773 (Douglas, J., concurring in result); Federal Republic of Germany v. Elicofon, 358 F. Supp. 747 (EDNY 1972), aff’d, 478 F. 2d 231 (CA2 1973), cert. denied, 415 U. S. 931 (1974). In Elicofon, the District Court held that a separate juridical entity of a foreign state not recognized by the United States may not appear in a United States court. A contrary holding, the court reasoned, “would permit non-recognized governments to use our courts at will by creating ‘juridical entities’ whenever the need arises.” 358 F. Supp., at 757.

       See Banco I, 478 F. 2d, at 194.

       The District Court adopted, and both Citibank and the Solicitor General urge upon the Court, a standard in which the determination whether or not to give effect to the separate juridical status of a government instrumentality turns in part on whether the instrumentality in question performed a “governmental function.” We decline to adopt such a standard in this case, as our decision is based on other grounds. We do observe that the concept of a “usual” or a “proper” governmental function changes over time and varies from nation to nation. Cf. New York v. United States, 326 U. S. 572, 580 (1946) (opinion of Frankfurter, J.) (“To rest the federal taxing power on what is ‘normally’ conducted by private enterprise in contradiction to the ‘usual’ governmental functions is too shifting a basis for determining constitutional power and too entangled in expediency to serve as a dependable legal criterion”); id., at 586 (Stone, C. J., concurring); id., at 591 (Douglas, J., dissenting). See also Friedmann, The Legal Status and Organization of the Public Corporation, 16 Law & Contemp. Prob. 576, 589-591 (1951).

       Bancec does not suggest, and we do not believe, that the act of state doctrine, see, e. g., Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964), precludes this Court from determining whether Citibank may set off the value of its seized Cuban assets against Baneec’s claim. Bancec does contend that the doctrine prohibits this Court from inquiring into the motives of the Cuban Government for incorporating Bancec. Brief for Respondent 16-18. We need not reach this contention, however, because our conclusion does not rest on any such assessment.

       Law No. 930 provided, in part, that Bancec’s “trade functions will be assumed by the foreign trade enterprises or houses of the Ministry of Foreign Trade,” App. to Pet. for Cert. 16d; App. 104. Law No. 934, correspondingly, stated: “All the functions of a mercantile character heretofore assigned to said Foreign Trade Bank of Cuba are hereby transferred and vested in the foreign trade enterprises or houses set up hereunder, which are subrogated to the rights and obligations of said former Bank in pursuance of the assignment of those functions ordered by the Minister.” App. to Pet. for Cert. 24d. The preamble of Resolution No. 1 of 1961, issued on March 1,1961, explained that Law No. 934 had provided “that all functions of a commercial nature that were assigned to the former Cuban Bank for Foreign Trade are attributed to the enterprises or foreign trade houses which are subrogated in the rights and obligations of said Bank.” Nothing in the affidavit filed by respondent in May 1975 elucidates the precise nature of these transactions, or explains how Bancec’s former trading functions were exercised during the 6-day interval. App. 132-137.

       Nor do I agree that a contrary result “would cause such an injustice.” Ante, at 632. Petitioner is only one of many American citizens whose property was nationalized by the Cuban Government. It seeks to minimize its losses by retaining $193,280.30 that a purchaser of Cuban sugar had deposited with it for the purpose of paying for the merchandise, which was delivered in due course. Having won this lawsuit, petitioner will simply retain that money. If petitioner’s contentions in this case had been rejected, the money would be placed in a fund comprised of frozen Cuban assets, to be distributed equitably among all the American victims of Cuban nationalizations. Ante, at 632, n. 24. Even though petitioner has suffered a serious injustice at the hands of the Cuban Government, no special equities militate in favor of giving this petitioner a preference over all other victims simply because of its participation in a discrete, completed, commercial transaction involving the sale of a load of Cuban sugar.


author: Per Curiam. Chief Justice Burger,

text:
    FLORIDA v. CASAL et al.
    No. 81-2318.
    Argued February 23, 1983
    Decided June 17, 1983

      Carolyn M. Snurkowski, Assistant Attorney General of Florida, argued the cause for petitioner. With her on the briefs was Jim Smith, Attorney General.

      Arthur F. McCormick argued the cause and filed a brief for respondents.
   Per Curiam.

The writ is dismissed as improvidently granted, it appearing that the judgment of the court below rested on independent and adequate state grounds.

Chief Justice Burger,

concurring.

The Court today concludes that the Florida Supreme Court relied on independent and adequate state grounds when it affirmed the suppression of over 100 pounds of marihuana discovered aboard a fishing vessel — the evidence upon which respondents’ convictions for possession and importation of marihuana were based. The Florida Supreme Court did not expressly declare that its holding rested on state grounds, and the principal state case cited for the probable-cause standard, Florida v. Smith, 233 So. 2d 396 (1970), is based entirely upon this Court’s interpretation of the Fourth Amendment of the Federal Constitution. I write not to challenge today’s determination that the state court relied on independent and adequate state grounds, however, but rather to emphasize that this Court has decided that Florida law, and not federal law or any decision of this Court, is responsible for the untoward result in this case.

The two bases of state law upon which the Florida Supreme Court appears to have relied are Art. I, § 12, of the State Constitution and Fla. Stat. §371.58 (1977), currently codified at Fla. Stat. §327.56 (1981). Article I, § 12, of the Florida Constitution is similar to the Fourth Amendment of the Federal Constitution. I question that anything in the language of either the Fourth Amendment of the United States Constitution or Art. I, § 12, of the Florida Constitution required suppression of the drugs as evidence. However, the Florida Supreme Court apparently concluded that state law required suppression of the evidence, independent of the Fourth Amendment of the United States Constitution.

The people of Florida have since shown acute awareness of the means to prevent such inconsistent interpretations of the two constitutional provisions. In the general election of November 2, 1982, the people of Florida amended Art. I, § 12, of the State Constitution. That section now provides:

“This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”

As amended, that section ensures that the Florida courts will no longer be able to rely on the State Constitution to suppress evidence that would be admissible under the decisions of the Supreme Court of the United States.

In requiring suppression of the evidence, the Florida Supreme Court also may have been relying upon Fla. Stat. §371.58 (1977), currently codified at Fla. Stat. §327.56 (1981). That statute permits a state marine patrol officer to board a vessel for a safety inspection only if there is consent or probable cause to believe a crime is being committed. The Florida Legislature enacted that statute, and the people of Florida and their representatives have full responsibility for the burden it places on the State’s law enforcement officers.

With our dual system of state and federal laws, administered by parallel state and federal courts, different standards may arise in various areas. But when state courts interpret state law to require more than the Federal Constitution requires, the citizens of the state must be aware that they have the power to amend state law to ensure rational law enforcement. The people of Florida have now done so with respect to Art. I, § 12, of the State Constitution; they have it within their power to do so with respect to Fla. Stat. § 327.56 (1981).

      In contrast, 19 U. S. C. § 1581(a) provides: “Any officer of the customs may at any time go on board of any vessel... at any place in the United States or within the customs waters . . . and examine, inspect, and search the vessel. . . and every part thereof. ...” See United States v. Villamonte-Marquez, ante, p. 579.


author: Chief Justice Burger Justice Marshall,

text:
    ILLINOIS v. LAFAYETTE
    No. 81-1859.
    Argued April 20, 1983
    Decided June 20, 1983
    Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Marshall, J., filed an opinion concurring in the judgment, in which Brennan, J., joined, post, p. 649.

      Michael A. Ficaro, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the briefs were Neil F. Hartigan, Attorney General, Tyrone C. Fahner, former Attorney General, Paul P. Biebel, Jr., First Assistant Attorney General, and Steven F. Molo, Assistant Attorney General.

      Peter A. Carusona argued the cause for respondent. With him on the brief were Robert Agostinelli and Frank W. Ralph.

       Briefs of amici curiae urging reversal were filed by Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and Elliott Schulder for the United States; and by Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Howard G. Berringer, Richard J. Brzeczek, David Crump, Courtney A. Evans, Daniel B. Hales, James A. Murphy, and Evelle J. Younger for the Chicago Police Department et al.

        Quin Denvir and George L. Schraer filed a brief for the California State Public Defender as amicus curiae urging affirmance.

   Chief Justice Burger

delivered the opinion of the Court.

The question presented is whether, at the time an arrested person arrives at a police station, the police may, without obtaining a warrant, search a shoulder bag carried by that person.

1

On September 1, 1980, at about 10 p. m., Officer Maurice Mietzner of the Kankakee City Police arrived at the Town Cinema in Kankakee, Ill., in response to a call about a disturbance. There he found respondent involved in an altercation with the theater manager. He arrested respondent for disturbing the peace, handcuffed him, and took him to the police station. Respondent carried a purse-type shoulder bag on the trip to the station.

At the police station respondent was taken to the booking room; there, Officer Mietzner removed the handcuffs from respondent and ordered him to empty his pockets and place the contents on the counter. After doing so, respondent took a package of cigarettes from his shoulder bag and placed the bag on the counter. Mietzner then removed the contents of the bag, and found 10 amphetamine pills inside the plastic wrap of a cigarette package.

Respondent was subsequently charged with violating § 402(b) of the Illinois Controlled Substances Act, Ill. Rev. Stat., ch. 56/2, ¶ 1402(b) (1981), on the basis of the controlled substances found in his shoulder bag. A pretrial suppression hearing was held at which the State argued that the search of the shoulder bag was a valid inventory search under South Dakota v. Opperman, 428 U. S. 364 (1976). Officer Mietz-ner testified that he examined the bag’s contents because it was standard procedure to inventory “everything” in the possession of an arrested person. App. 15, 16. He testified that he was not seeking and did not expect to find drugs or weapons when he searched the bag, and he conceded that the shoulder bag was small enough that it could have been placed and sealed in a bag, container, or locker for protective purposes. Id., at 15. After the hearing, but before any ruling, the State submitted a brief in which it argued for the first time that the search was valid as a delayed search incident to arrest. Thereafter, the trial court ordered the suppression of the amphetamine pills. Id., at 22.

On appeal, the Illinois Appellate Court affirmed. 99 Ill. App. 3d 830, 425 N. E. 2d 1383 (3d Dist. 1981). It first held that the State had waived the argument that the search was incident to a valid arrest by failing to raise that argument at the suppression hearing. Id., at 832, 425 N. E. 2d, at 1385. However, the court went on to discuss and reject the State’s argument: “[E]ven assuming, arguendo, that the State has not waived this argument, the stationhouse search of the shoulder bag did not constitute a valid search incident to a lawful arrest.” Id., at 833, 425 N. E. 2d, at 1385.

The state court also held that the search was not a valid inventory of respondent’s belongings. It purported to distinguish South Dakota v. Opperman, supra, on the basis that there is a greater privacy interest in a purse-type shoulder bag than in an automobile, and that the State’s legitimate interests could have been met in a less intrusive manner, by “sealing [the shoulder bag] within a plastic bag or box and placing it in a secured locker.” 99 Ill. App. 3d, at 834-835, 425 N. E. 2d, at 1386. The Illinois court concluded:

“Therefore, the postponed warrantless search of the [respondent’s] shoulder bag was neither incident to his lawful arrest nor a valid inventory of his belongings, and thus, violated the fourth amendment.” Id., at 835, 425 N. E. 2d, at 1386.

The Illinois Supreme Court denied discretionary review. App. to Pet. for Cert. lb. We granted certiorari, 459 U. S. 986 (1982), because of the frequency with which this question confronts police and courts, and we reverse.

I — Í h-1

The question here is whether, consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Indeed, we have previously established that the inventory search constitutes a well-defined exception to the warrant requirement. See South Dakota v. Opperman, supra. The Illinois court and respondent rely on United States v. Chadwick, 433 U. S. 1 (1977), and Arkansas v. Sanders, 442 U. S. 753 (1979); in the former, we noted that “probable cause to search is irrelevant” in inventory searches and went on to state:

“This is so because the salutary functions of a warrant simply have no application in that context; the constitutional reasonableness of inventory searches must be determined on other bases.” 433 U. S., at 10, n. 5.

A so-called inventory search is not an independent legal concept but rather an incidental administrative step following arrest and preceding incarceration. To determine whether the search of respondent’s shoulder bag was unreasonable we must “balanc[e] its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U. S. 648, 654 (1979).

In order to see an inventory search in proper perspective, it is necessary to study the evolution of interests along the continuum from arrest to incarceration. We have held that immediately upon arrest an officer may lawfully search the person of an arrestee, United States v. Robinson, 414 U. S. 218 (1973); he may also search the area within the arrestee’s immediate control, Chimel v. California, 395 U. S. 752 (1969). We explained the basis for this doctrine in United States v. Robinson, supra, where we said:

“A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 U. S., at 235 (emphasis added).

An arrested person is not invariably taken to a police station or confined; if an arrestee is taken to the police station, that is no more than a continuation of the custody inherent in the arrest status. Nonetheless, the factors justifying a search of the person and personal effects of an arrestee upon reaching a police station but prior to being placed in confinement are somewhat different from the factors justifying an immediate search at the time and place of arrest.

The governmental interests underlying a station-house search of the arrestee’s person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest. Consequently, the scope of a station-house search will often vary from that made at the time of arrest. Police conduct that would be impractical or unreasonable — or embarrassingly intrusive — on the street can more readily — and privately — be performed at the station. For example, the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street, but the practical necessities of routine jail administration may even justify taking a prisoner’s clothes before confining him, although that step would be rare. This was made clear in United States v. Edwards, 415 U. S. 800, 804 (1974): “With or without probable cause, the authorities were entitled [at the station house] not only to search [the arrestee’s] clothing but also to take it from him and keep it in official custody.”

At the station house, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests supports an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make false claims regarding what was taken from their possession at the station house. A standardized procedure for making a list or inventory as soon as reasonable after reaching the station house not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves — or others — with belts, knives, drugs, or other items on their person while being detained. Dangerous instru-mentalities — such as razor blades, bombs, or weapons — can be concealed in innocent-looking articles taken from the arrestee’s possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks — either while the items are in police possession or at the time they are returned to the arrestee upon his release. Examining all the items removed from the arrestee’s person or possession and listing or inventorying them is an entirely reasonable administrative procedure. It is immaterial whether the police actually fear any particular package or container; the need to protect against such risks arises independently of a particular officer’s subjective concerns. See United States v. Robinson, supra, at 235. Finally, inspection of an arrestee’s personal property may assist the police in ascertaining or verifying his identity. See 2 W. LaFave, Search and Seizure §5.3, pp. 306-307 (1978). In short, every consideration of orderly police administration benefiting both police and the public points toward the appropriateness of the examination of respondent’s shoulder bag prior to his incarceration.

Our prior cases amply support this conclusion. In South Dakota v. Opperman, 428 U. S. 364 (1976), we upheld a search of the contents of the glove compartment of an abandoned automobile lawfully impounded by the police. We held that the search was reasonable because it served legitimate governmental interests that outweighed the individual’s privacy interests in the contents of his car. Those measures protected the owner’s property while it was in the custody of the police and protected police against possible false claims of theft. We found no need to consider the existence of less intrusive means of protecting the police and the property in their custody — such as locking the car and impounding it in safe storage under guard. Similarly, standardized inventory procedures are appropriate to serve legitimate governmental interests at stake here.

The Illinois court held that the search of respondent’s shoulder bag was unreasonable because “preservation of the defendant’s property and protection of police from claims of lost or stolen property, ‘could have been achieved in a less intrusive manner.’ For example, . . . the defendant’s shoulder bag could easily have been secured by sealing it within a plastic bag or box and placing it in a secured locker.” 99 Ill. App. 3d, at 835, 425 N. E. 2d, at 1386 (citation omitted). Perhaps so, but the real question is not what “could have been achieved,” but whether the Fourth Amendment requires such steps; it is not our function to write a manual on administering routine, neutral procedures of the station house. Our role is to assure against violations of the Constitution.

The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means. In Cady v. Dombrowski, 413 U. S. 433 (1973), for example, we upheld the search of the trunk of a car to find a revolver suspected of being there. We rejected the contention that the public could equally well have been protected by the posting of a guard over the automobile. In language equally applicable to this case, we held, “[tjhe fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.” Id., at 447. See also United States v. Martinez-Fuerte, 428 U. S. 543, 557, n. 12 (1976). We are hardly in a position to second-guess police departments as to what practical administrative method will best deter theft by and false claims against its employees and preserve the security of the station house. It is evident that a station-house search of every item carried on or by a person who has lawfully been taken into custody by the police will amply serve the important and legitimate governmental interests involved.

Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit. Only recently in New York v. Belton, 453 U. S. 454 (1981), we stated that “‘[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’” Id., at 458, quoting Dunaway v. New York, 442 U. S. 200, 213-214 (1979). See also United States v. Ross, 456 U. S. 798, 821 (1982).

Applying these principles, we. hold that it is not “unreasonable” for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.

The judgment of the Illinois Appellate Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Justice Marshall,

with whom Justice Brennan joins,

concurring in the judgment.

I agree that the police do not need a warrant or probable cause to conduct an inventory search prior to incarcerating a suspect, and I therefore concur in the judgment. The practical necessities of securing persons and property in a jailhouse setting justify an inventory search as part of the standard procedure incident to incarceration.

A very different case would be presented if the State had relied solely on the fact of arrest to justify the search of respondent’s shoulder bag. A warrantless search incident to arrest must be justified by a need to remove weapons or prevent the destruction of evidence. See United States v. Robinson, 414 U. S. 218, 251 (1973) (Marshall, J., dissenting); Chimel v. California, 395 U. S. 752, 763 (1969); United States v. Rabinowitz, 339 U. S. 56, 72 (1950) (Frankfurter, J., dissenting). Officer Mietzner did not in fact deem it necessary to search the bag when he arrested respondent, and I seriously doubt that such a search would have been lawful. A search at the time of respondent’s arrest could not have been justified by a need to prevent the destruction of evidence, for there is no evidence or fruits of the offense— disturbing the peace — of which respondent was suspected. Moreover, although a concern about weapons might have justified seizure of the bag, such a concern could not have justified the further step of searching the bag following its seizure. Cf. United States v. Chadwick, 433 U. S. 1, 15 (1977); id., at 17, and n. 2 (Brennan, J., concurring).

       See also United States v. Edwards, 415 U. S. 800 (1974). In that case we addressed Cooper v. California, 386 U. S. 58 (1967), where the Court sustained a warrantless search of an automobile that occurred a week after its owner had been arrested. We explained Cooper in the following manner: “It was no answer to say that the police could have obtained a search warrant, for the Court held the test to be, not whether it was reasonable to procure a search warrant, but whether the search itself was reasonable, which it was.” 415 U. S., at 807 (emphasis added).

       We were not addressing in Edwards, and do not discuss here, the circumstances in which a strip search of an arrestee may or may not be appropriate.

       The record is unclear as to whether respondent was to have been incarcerated after being booked for disturbing the peace. That is an appropriate inquiry on remand.