A Federal Court: No Sovereign Immunity for Namibia, Which Failed to Comply with New York City Building Code
The Republic of Namibia was not granted sovereign immunity in a case over construction work for which it contracted. This decision of the United States Court of Appeals for the 2nd Circuit was based on the compliance requirements of the New York City Building Code. A suit was brought to recover damages to a building next to a townhouse being renovated for the diplomatic mission of Namibia in Manhattan. The Republic of Namibia had hired a contractor to renovate a building for the Namibian Mission. The contractor hired a subcontractor to pour concrete to reinforce a wall standing between the Mission’s property and the adjacent building. During this work the wall collapsed, causing damage to the other property.
The building’s owner filed a claim with his insurance company, and received $397,000 in damages. Consequently, the insurance company, as subrogee, filed a claim against the Namibian Mission and its contractors to recoup their monies paid, claiming negligence, nuisance, trespass and ultra-hazardous activity. In response, the Republic filed a motion to dismiss the charges on the basis of its sovereign immunity. Although the court dismissed the damage-related counts it denied overall dismissal of the case, deeming that the Republic of Namibia was not entitled to sovereign immunity and the case is valid under tort liability of New York law.
The Mission once again appealed, stating it is not responsible for the negligence of independent contractors. The 2nd Circuit upheld its ruling; according to the New York City Building Code, a person causing construction, in this case the Republic of Namibia, is responsible to maintain and protect the structural integrity of party walls. The court concluded that Namibia was negligent and that it does not enjoy immunity under sovereign immunity in this case, as its activities were commercial in nature.