Ngoc Quang Trinh v. Citibank, N.A. , 850 F.2d 1164 ( 1988 )

NATHANIEL R. JONES, Circuit Judge.

Defendant-appellant Citibank, N.A. (“Citibank”) appeals from a judgment holding it liable to plaintiff-appellee Ngoc Quang Trinh (“Trinh”) for payment on Trinh’s savings account in Citibank’s former branch bank in Saigon, South Vietnam. The district court, relying primarily on Vishipco Line v. Chase Manhattan Bank, 660 F.2d 854 (2d Cir.1981), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982), concluded that the home office of the Saigon branch of Citibank was liable on deposits placed in the foreign branch when the branch was forced to close in 1975 as a result of the impending overthrow of Saigon by revolutionary forces. Trinh v. Citibank, 623 F.Supp. 1526 (E.D.Mich.1985). In effect, the lower court placed the risk of loss arising from a political revolution on the domestic home office of the American bank rather than on the individual depositors. Because we agree that this is precisely where the risk of loss belongs — and because neither the deposit agreement construed in light of the Vietnamese law of force majeure nor the affirmative defense asserted by Citibank convinces us otherwise — we affirm the judgment of the district court.

I.

Citibank is an international banking corporation based in New York with branch offices all over the world. Prior to 1975, it operated a branch in Saigon, South Vietnam known as Citibank Saigon. Under Vietnamese law, Citibank could not have operated in Vietnam through a separate corporation or subsidiary; Citibank was limited to operating as a branch. Moreover, Vietnamese law required that a branch maintain all of its assets in the local currency and keep all the branch’s capital, assets, funds, books and records separate and apart from those of the home office. Vietnamese law also required that branch banks have a paid-in capital reserve equal to a certain percentage of its customer’s deposits and that this capital be earmarked and transferred to the branch by the home office,¹

On July 25, 1974, plaintiff’s father, Quang Quy Trinh, a retired senator in the South Vietnamese government, opened a joint savings account at Citibank Saigon in his name and that of his son. The account paid annual interest at a rate of 19% compounded daily. At the time Trinh’s father opened the account, Trinh was a student residing in Michigan. He became a United States citizen in 1979 and has never returned to Vietnam.

The deposit agreement governing the account provided that “withdrawals [would] be permitted only at Citibank’s place of business” — which was designated as “28-30 Nguyen Van Thinh, Saigon 1, Republic of Vietnam” — and that deposits were payable only in Vietnamese piasters. The agreement further provided as follows:

Citibank does not accept responsibility for any loss or damage suffered or incurred by any depositor resulting from government orders, laws ... or from any other cause beyond its control.

J. App. at 126.

In early April 1975, the situation in Saigon was becoming desperate as the North Vietnamese forces closed in on the city. During this period, American embassy officials met often with the branch officers of the American banks in Saigon to consider what actions should be taken to protect the safety of employees, both American and Vietnamese. These meetings produced a contingency plan for emergency evacuation. During this time, the branch bank encouraged concerned depositors to withdraw their money, although the situation did not safely allow for the posting of formal notices suggesting such withdrawals.

On April 24, 1975, on the eve of Saigon’s fall to the North Vietnamese, Citibank closed its Saigon branch, and its personnel left the city in conjunction with the general evacuation of American citizens and Vietnamese employees planned by the United States Embassy. All of the branch’s documents, files, records, and books were left in the branch. Cash from the branch, as well as the branch’s keys, vault combination, and official documents, were entrusted to embassy officials with a request to turn them over to the National Bank of Vietnam, South Vietnam’s central banking authority.

The following day, on April 25, 1975, the South Vietnamese government issued a joint communique stating that Citibank, and two other American banks, had “closed temporarily without asking for permission”; that these banks would be sanctioned; and that the National Bank and the Finance Ministry guaranteed to return all the money legally deposited.

Less than one week later, on April 30, 1975, the South Vietnamese government in Saigon fell. On May 1, 1975, the new revolutionary administration of Vietnam declared victory and confiscated all banks. Thus, all Saigon banks, including Citibank’s branch, were “placed under the management of the Saigon-Gio Dinh Military Management Committee banking committee,” and their operations suspended. The National Bank of Vietnam, the central bank, reopened under North Vietnamese control, and over the course of several weeks made a number of announcements concerning its plans for the future. Specifically, the central bank announced:

The Vietnam National Bank ... is ready to recover former debts incurred by banks through lending and to conduct settlement of debts, deposits, savings and all other sources of capital in the economy.

J. App. at 152. It was further announced that:

[T]he national bank guarantees that the savings accounts of workers, who legitimately earn their income through their own efforts and labor, will gradually be paid to them....

As regards banks whose owners have fled the country, the national bank will inventory and re-evaluate their assets and settle their accounts in order to determine their ability to return the savings of account holders....

Id. at 156-57.

Shortly after the fall of Saigon, plaintiff’s father was placed in a reeducation camp. After his release in 1980, he sent the Citibank Saigon passbook to his son in Michigan. In May 1980, Trinh called the International Division of Citibank in New York to inquire about the deposit. Trinh was told that the National Bank of Vietnam was now responsible for the deposit. On November 5, 1980, Trinh wrote to Walter Wriston, Chairman of Citibank, expressing dissatisfaction with this reply, and was again told that the National Bank was responsible for the deposit. This lawsuit was commenced in the Eastern District of Michigan on June 14, 1984.

Applying Vietnamese law, the district court found in favor of Trinh. Trinh v. Citibank, 623 F. Supp. 1526 (E.D.Mich.1985). As mentioned, the court relied primarily on Judge Mansfield’s opinion in Vishipco, where on similar facts, the Second Circuit found the Chase Manhattan Bank liable to depositors in its former Saigon branch. In this respect, the court concluded that the deposit agreement with Trinh formed an underlying basis for recovery against the bank and that, as in Vishipco, the Vietnamese law of force majeure did not relieve Citibank of its liability on that deposit. 623 F. Supp. at 1532. Although the court recognized that in Vish-ipco the underlying obligation had been construed under New York law, as opposed to Vietnamese law, the court did not find this distinction to be significant. Id. In the first place, the court noted that Citibank never argued that, under Vietnamese law, Trinh’s deposits did not equal a debt of the bank or form an underlying basis for recovery. Moreover, since the Vishipco court did apply Vietnamese law to the argument that force majeure relieved the bank of liability — the same argument that Citibank makes here — the fact that it addressed this argument as an affirmative defense to liability (rather than as a threshold basis for denying recovery on the underlying obligation) was not, the court believed, the basis for a meaningful distinction. Id.

The court then stated that, even if it accepted Citibank’s proposition that the doctrine of force majeure was incorporated into the bank’s underlying obligation on the deposits, the application of that doctrine to these facts would nevertheless not relieve Citibank of liability. Id. at 1533. Specifically, the court reasoned that Citibank’s decision to close its Saigon branch was a matter of “voluntary choice,” not an act of God, act of government, or “fortuitous cause beyond its control,” as required by Vietnamese law. Id. at 1533-34.

Further, the court rejected Citibank’s argument that Citibank Saigon had been nationalized by the revolutionary government and that the National Bank of Vietnam was its successor in interest. Id. at 1534. The court concluded that the argument failed for two reasons. First, the court found that the situs of the deposit was no longer Vietnam at the time the expropriation took place because it had “spr[ung] back” to the head office of Citibank when Citibank Saigon was voluntarily closed. Id. at 1536. Second, the court found that Citibank had failed to prove that the Vietnamese government had clearly assumed the liabilities as well as the assets of Citibank Saigon. Id. at 1534-35. Accordingly, the district court ordered Citibank to pay Trinh the dollar value of his account, $1403.67, plus prejudgment interest of $1792.69, for a total of $3196.36.

II.

A.

Citibank’s primary argument on appeal is that the deposit agreement construed under Vietnamese law² places the risk of loss for a political revolution on the depositor not on the domestic home office. In this respect, the bank points to the express terms of the agreement, signed by Trinh’s father, which provides both that “Citibank does not accept responsibility for any loss or damage suffered or incurred by any depositor resulting from government orders, laws ... or from any other cause beyond its control,” and that payment on accounts would be made only in Vietnam and only in piasters. In the bank’s view, these provisions of the agreement create an implicit distinction between credit risk and sovereign risk, with the bank bearing only the former. Thus, where a branch is unable to pay its depositors as a result of, for instance, financial mismanagement, robbery, or insolvency — the typical kinds of economic or credit risks normally assumed by companies doing business internationally — Citibank concedes that the home office would be liable for the deposits because, in such circumstances, payment could nevertheless be made in Vietnam and in piasters. However, where, as here, revolutionary conditions make payment in Vietnam in piasters impossible, Citibank believes that, under the deposit agreement, the depositor, not the domestic home office, must bear the loss.

The bank argues that its intention to create an implicit distinction between credit risk and sovereign risk is suggested, not only by the plain terms of the agreement, but also by a construction of those terms in light of applicable Vietnamese commercial law. More specifically, the bank argues that it should be presumed that the parties intended for their agreement to be consistent with the Vietnamese law of force maj-eure,³ which, according to the testimony of the bank's Vietnamese law expert, placed the risk of loss on the depositor in the unique circumstances presented here.

For these reasons, Citibank contends that the only reasonable expectation of depositors was to receive piasters at Citibank Saigon. In the bank’s view, by allowing the plaintiff to recover, the district court effectively re-wrote key provisions of the deposit agreement and, further, gave the depositor something he could not have gotten — and could not have expected to get— under that agreement construed in light of Vietnamese law: United States dollars in the United States at a rate of interest (19%) which would have been illegal for Citibank to pay under U.S. law.

We are not persuaded by the bank’s arguments. In the first place, as the district court correctly recognized, it is a general banking principle that the home office is ultimately liable on a deposit placed in its foreign branch if, as here, the branch closes or otherwise wrongfully refuses to return a deposit. Sokoloff v. National City Bank, 130 Misc. 66, 73, 224 N.Y.S. 102, 114 (N.Y. Sup.Ct.1927); see also Bluebird Undergarment Corp. v. Gomez, 139 Misc. 742, 249 N.Y.S. 319 (City Ct. N.Y. 1931); Heininger, Liability of U.S. Banks for Deposits Placed in Their Foreign Branches, 11 Law & Pol.Int’l Bus. 903, 926 (1979). This well-established general principle of ultimate liability is not inconsistent with Citibank’s assertion that a branch bank is a separate and distinct business entity. See Brief of Citibank at 30-32. To this end, the bank is surely correct in arguing that absent special circumstances, deposits made in branch banks are payable only there. Id. (citing Bluebird Undergarment Corp. v. Gomez, 139 Misc. 742, 249 N.Y.S. 319 (City Ct. N.Y. 1931)). However, as we read Sokoloff, Bluebird and similar cases, one of the “special circumstances” triggering liability against the home office is the closing of a branch. Bluebird, 249 N.Y.S. at 321-22. Thus, while it is true that the payment obligation exists primarily between the branch bank and the depositor, the ultimate obligation on the deposits remains with the home office. Id.; Vishipco, 660 F.2d at 863; see also Annotation, Branch Banks, 136 A.L.R. 471, 493-97 (1942).

That the home office of the branch was to be ultimately liable for the deposits of its foreign customers is further suggested, we think, by the Vietnamese laws under which foreign banks operated. These laws permitted foreign banks to operate only through branches, and required the home office of a branch to “clearly earmark and transfer to the branch in Vietnam” an amount of capital equal to a certain percentage of the branch’s deposits. See supra at note 1. The home office was required to maintain this paid-in reserve amount at its proper level, and so as deposits increased, transfers to the branch would increase as well. In our view, by prohibiting foreign banks from operating through locally incorporated subsidiaries, and by requiring parent banks to maintain paid-in capital reserves at their Vietnamese branches, Vietnamese law sought to remove any ambiguity as to where the responsibility would ultimately lie for the liabilities of branch banks. In this respect, South Vietnam furthered its national policy, as recognized by the court in Vishipco, of enabling “those depositing in foreign branches to gain more protection than they would have received had their money been deposited in locally incorporated subsidiaries of foreign banks.” Vishipco, 660 F.2d at 863.

While not denying that in some circumstances the home office would be ultimately liable for deposits placed in its foreign branch, Citibank argues that in this case the deposit agreement construed under Vietnamese law limits the home office’s ultimate liability to only those situations in which the branch’s failure to pay is the result of credit, as opposed to sovereign, risks. More specifically, as outlined above, Citibank concedes that the home office would be liable under the deposit agreement if the branch’s failure to pay was the result of insolvency, financial mismanagement, or any other circumstance in which payment could still be made in Vietnam and in piasters. The bank maintains, however, that it is not liable under the agreement where, as here, political events have made payment in Vietnam in piasters impossible. We are not persuaded that such a distinction is evident here or that one is required by application of the Vietnamese law of force majeure.

By operating a branch office in Vietnam, Citibank indicated to its foreign depositors that it accepted the risk that, in at least some circumstances, it would be liable elsewhere for obligations incurred by its branch. Vishipco, 660 F.2d at 863. In so doing, it “reassure[d] [those] depositors that their deposits [would] be safer with them than they would be in a locally incorporated bank.” Id. (citing Heininger, supra, at 911-12). With the volatile situation in Vietnam in the early 1970’s, this assurance of safety was undoubtedly one of the primary factors motivating Vietnamese depositors, like Trinh, to place their money in Citibank.⁴ Certainly, these depositors expected that Citibank, with its worldwide assets and international reputation, would be “good” for the deposits if, for whatever reason — whether it be financial mismanagement, insolvency, or political events— Citibank Saigon could not return them. In our view, the deposit agreement did not dispel these expectations. That is, while we recognize that the deposit agreement absolved the branch office of responsibility for losses resulting from government orders and “any other cause beyond its control,” we do not find in that agreement any indication that the depositor could not proceed against the home office if the branch has failed to pay.

Consistent with this, we reject Citibank’s argument that the provision of the agreement limiting payment on deposits to Vietnam and to Vietnamese piasters was sufficient to inform depositors that they were to bear the risk of loss, and would have no recourse against the home office, if Citibank Saigon was forced to close due to revolutionary conditions. As we have emphasized, such an allocation of risk is contrary to the depositor’s expectations that the bank, by operating through a branch, has consented to be liable elsewhere for the branch’s obligation in the event the branch does not meet them. Banks certainly can, and will, seek to limit by contract the extent of their exposure to such liability; however, to be effective, such limitation provisions must be explicit and must clearly and unmistakably inform depositors that they have no right to proceed against the home office. The provision here, specifying the place where the branch will make payment and the currency it will use, is insufficient under this standard. In our view, a person who had signed a deposit agreement containing such a provision would not have been aware that he had given up his right to proceed against the home office in the event the branch was no longer in existence and could not pay its depositors.

We do not believe that the Vietnamese law of force majeure, applied to the deposit agreement, requires us to reach a contrary conclusion. Force majeure is a French term used to describe acts of God, acts of government, and any other fortuitous cause beyond the control of the parties in the contract. The doctrine was codified in section 1206 of the Vietnamese Commercial Code, which provided that the “depositary is not liable for accidents or risks resulting from force majeure, unless previously he has been given notice to return the deposited object.” See supra note 3. Citibank’s expert on Vietnamese law, Mr. Ta Van Tai, testified that in his opinion the takeover of the bank and the abolition of the piaster by the Vietcong was an act of government beyond the control of the bank. In his view, since Trinh did not previously request return of his deposits, Trinh must suffer the loss.

While we do not deny that the closing of a bank by revolutionary forces is the type of fortuitous cause contemplated by the law of force majeure, we do not agree that, where a parent/branch relationship is involved, application of that doctrine requires the conclusion that the depositor is to bear the risk of loss. As recognized by both the lower court here and the Second Circuit in Vishipco, impossibility of performance in Vietnam did not relieve Citibank of its obligation to perform elsewhere. Vishipco, 660 F.2d at 863-64. Citibank had accepted the risk of such an obligation by operating a branch in Vietnam. Since its Vietnamese depositors did not waive their right to proceed against the home office, Citibank cannot be heard to argue that the inability of its Saigon branch to perform relieves the home office of liability for the bank’s debts incurred in Saigon. In our view, Citibank, as an ongoing business entity, was able in April 1975, and remains able to this day, to discharge those debts either in New York or at a variety of other points outside of Vietnam.

For the above reasons, we are in agreement with the lower court that the deposit agreement construed under Vietnamese law does not foreclose Trinh from proceeding against Citibank’s New York office to recover on the deposits made at Citibank’s branch in Saigon. Accordingly, unless it is relieved of liability by some affirmative defense, Citibank is liable to Trinh for the amount deposited.

B.

Citibank argues, as a defense to liability, that the National Bank of Vietnam expressly assumed Citibank Saigon’s assets and liabilities, thereby becoming liable on Trinh’s account as Citibank Saigon's successor in interest. Citibank argues that this assumption of Citibank Saigon’s obligations was undertaken as early as April 25, 1975, when the National Bank of Vietnam, still operating under South Vietnamese rule, guaranteed to return all money legally deposited in the recently-evacuated U.S. branch banks. Citibank further argues that when the Vietcong overran Saigon less than a week later, the new government confirmed, rather than denied, this assumption of assets and liabilities. As evidence of this, Citibank points to a number of published declarations of the new government, including, most specifically, its declaration that “[a]ll ... banks ... will be confiscated and, from now on, managed by the revolutionary administration,” J.App. at 148, and its declaration that the newly-reorganized National Bank of Vietnam was “ready to recover former debts incurred by banks through lending and to conduct settlement of debts, deposits, savings and all other sources of capital in the economy.” Id. at 152. According to Citibank, the confiscation of the banks and the assumption of assets and liabilities were the acts of a sovereign state which, under the act of state doctrine, must be given their intended effect by United States courts.

We agree with the district court that this defense does not relieve Citibank of its obligation on the deposits. As an initial matter, we believe Judge Gilmore was correct in holding that the April 25, 1975 announcement of the South Vietnamese government was not binding on the new regime and was irrelevant to the issue of whether the liabilities of Citibank Saigon had been assumed by the National Bank of Vietnam. In so holding, we are not unmindful that, under basic principles of state succession, a promise of a former state is generally binding on the successor state. See, e.g., Vilas v. City of Manila, 220 U.S. 345, 357, 31 S.Ct. 416, 419, 55 L.Ed. 491 (1911) (quoting Chicago Rock Island & Pacific Ry. Co. v. McGlinn, 114 U.S. 542, 546, 5 S.Ct. 1005, 1006, 29 L.Ed. 270 (1885)). However, in these circumstances, where revolutionary forces were closing in on Saigon and the South Vietnamese government was squarely faced with its own imminent demise — a demise which became a reality only days later — we do not believe that a statement by the South Vietnamese government purporting to accept responsibility for the obligations of the evacuated U.S. branch banks is effective to bind the new regime with regard to those obligations.

Further, and more directly to the point, we are not at all persuaded that, by confiscating the nation’s banks, the new government undertook to assume the liabilities of foreign banks, like Citibank Saigon, that fled the country in the face of the fall of South Vietnam. As the district court accurately observed, and as evidenced by various statements of the new regime quoted in the court’s opinion (623 F. Supp. at 1535), Citibank’s proof with regard to the assumption of liabilities of foreign banks was “equivocal at best.” For example, in June of 1975, the National Bank issued a communique stating, among other things, that “all foreign banks must accept responsibility” for the liquidation of deposits. J.App. at 152. And, a September 7, 1975 newspaper announcement provided as follows:

As regards banks whose owners have fled the country, the national bank will inventory and re-evaluate their assets and settle their accounts in order to determine their ability to return the savings of account holders; the bank will issue a notice concerning these persons.

Id. at 157 (emphasis added). These announcements, and others of similar tone, do not as the district court held, “indicate an unqualified assumption of all liabilities” by the new government. Indeed, in our view, the announcements suggest that the new government specifically did not intend to assume the liabilities of foreign banks whose “owners fled the country,” but instead expected such liability to remain with those banks.

More importantly, the confiscation decree and other decrees of the new government regarding bank deposits would not, in any event, have had any effect on Citibank’s debt to Trinh because, as recognized in Vishipco and in the court below, the deposits in Citibank Saigon no longer had their “situs” in Vietnam at the time of the decrees.

Generally speaking, an act of state will go unquestioned in United States courts only to the extent that it affects property whose “situs” is within the territorial jurisdiction of the acting state. While this is a relatively simple concept to apply with respect to tangible property, it becomes more difficult with respect to intangible property such as the debts of a bank. As one court has observed: “The situs of intangible property is about as intangible a concept as is known to the law.” Tabacalera Severiano Jorge v. Standard Cigar Co., 392 F.2d 706, 714 (5th Cir.), cert. denied, 393 U.S. 924, 89 S.Ct. 255, 21 L.Ed.2d 260 (1968). We think the court in Vishipco had it right in concluding that, for purposes of the act of state doctrine, a debt does not have its “situs” in the foreign state unless the state has the power to enforce or collect it; a power which, the court explained, is dependent upon jurisdiction over the debtor. Vishipco, 660 F.2d at 862 (citing Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023 (1905)). Since in this case, as in Vish-ipco, the debtor (Citibank) abandoned its Saigon branch at the time of the Vietnamese decrees and no longer had any presence in Vietnam which would remain in existence after its departure, the revolutionary government had no jurisdiction over the debtor. Accordingly, the “situs” of the debts was not in Vietnam and the Vietnamese decrees could have no effect on Citibank’s debt to Trinh. See also Heininger, Liability of U.S. Banks, 11 Law & Pol. Int’l Bus. at 975.⁵

For the above-stated reasons, Citibank’s defense to liability fails and, accordingly, it is liable to Trinh on the deposit account.

C.

As a final observation, we believe that the result reached by this opinion is fair and equitable under the circumstances. We are, of course, not unmindful of the fact that both Trinh and Citibank are innocent parties and, to a great extent, victims of circumstances beyond their control. However, as with many disputes involving innocent parties, it is our job as a court to determine which of those parties is to suffer the loss. Here, because we are not persuaded that either the deposit agreement or the Vietnamese law of force maj-eure requires a contrary conclusion, we conclude that the loss is to be borne by the bank.

To this end, we think Judge Mansfield was absolutely right in Vishipco, where he observed:

A bank which accepts deposits at a foreign branch becomes a debtor, not a bailee, with respect to its depositors. In the event that unsettled local conditions require it to cease operations, it should inform its depositors of the date when its branch will close and give them the opportunity to withdraw their deposits or, if conditions prevent such steps, enable them to obtain payment at an alternative location. In the rare event that such measures are either impossible or only partially successful, fairness dictates that the parent bank be liable for those deposits which it was unable to return abroad. To hold otherwise would be to undermine the seriousness of its obligations to its depositors and under some circumstances (not necessarily present here) to gain a windfall.

Vishipco, 660 F.2d at 864 (citations omitted).

III.

For all of the foregoing reasons, Citibank is liable to Trinh on the deposits made by his father in the Saigon branch of Citibank. The judgment of the district court is AFFIRMED.

1 . Article 26 of Decree Law 18 provides as follows:

The Vietnam branch of a foreign bank— ... the head office [of the foreign bank] must clearly earmark and transfer to the branch in Vietnam a capital commensurate with the conditions stipulated in articles 12 & 13 of this Decree Law.

J. App. at 136 (brackets in original). Articles 12 and 13 state in pertinent part:

Article 12. Each bank in Vietnam shall have a fully paid-in capital the minimum amount of which shall be determined for each type of bank by the Administrative Council of the National Bank....

Article 13... 1) The total of the capital already paid-in, the reserve amount and the undistributed profits of each bank shall always be maintained at a minimum percentage of the amount of deposits of its customers....

J. App. at 134.

2 . We agree with the district court that the law of Vietnam applies to this case. Generally, as the lower court explained, a court must apply the law of the forum with the most significant contacts with the case, the law where the contract was made, or the law where the branch was located. See, e.g., Zimmermann v. Sutherland, 274 U.S. 253, 47 S.Ct. 625, 71 L.Ed. 1034 (1927); Aaron Ferer & Sons, Ltd. v. Chase Manhattan Bank, 731 F.2d 112 (2d Cir.1984). Here, all of the indicators point to a conclusion that Vietnamese law applies. Plaintiffs citizenship was Vietnamese, and his father, Citibank Saigon, the banking relationship, the banking transactions, and the account currency were all located in Vietnam.

3 . Article 701 of the Vietnamese Commercial Code (V.C.C.) provided: ‘The debtor does not have to pay damages if his violation or non-performance of contractual obligations is due to a fortuitous cause or case of force majeure. ”

Article 1206 of the V.C.C. provided: 'The depositary is not liable for accidents or risks resulting from force majeure, unless previously he had been given notice to return the deposited objects."

4 . That Trinh relied on this safety factor is evidenced by an English translation of the agreement he signed when the account was originally opened on July 25, 1974. The agreement contains a section where the depositor is asked to indicate, by checking the relevant box, his reason for opening an account with Citibank. Trinh’s reason for banking at Citibank was: "My money is safer with Citibank.” See J. App. at 130-31.

5 . As Professor Heininger observed:

The situs of a bank’s debt on a deposit is considered to be at the branch where the deposit is carried, but if the branch is closed ... the depositor has a claim against the home office; thus, the situs of the debt represented by the deposit would spring back and cling to the home office. If the situs of the debt ceased to be within the territorial jurisdiction of [the confiscating state] from the time the branch was closed, then at the time the confiscatory decree was promulgated, [the confiscating state would] no longer [have] sufficient jurisdiction over it to affect it.... [U]nder the act of state doctrine, the courts of the United States are not bound to give effect to foreign acts of state as to property outside the acting state’s territorial jurisdiction.