Compania Naviera Vascongado v. Steamship "Cristina"

[1938]		485
A.C.

[HOUSE OF LORDS.]

COMPANIA NAVIERA VASCONGADO

APPELLANTS;

AND

STEAMSHIP "CRISTINA" AND PERSONS CLAIMING AN INTEREST THEREIN

RESPONDENTS.

1938 Jan. 13, 14, 17, 18, 20; March 3.

LORD ATKIN, LORD THANKERTON, LORD MACMILLAN, LORD WRIGHT, and LORD MAUGHAM.

International law - Vessel registered in Spain - Vessel in English port - Spanish decree requisitioning vessel - Possession of vessel taken on behalf of Spanish Government - Claim for possession by original owners - Impleading foreign sovereign State.

A ship, called the Cristina, belonging to the appellants, a Spanish company, and registered at the port of Bilbao, was lying in the port of Cardiff. Shortly before her arrival there, but after she had left Spain, a decree was made by the Spanish Government requisitioning all vessels registered at the port of Bilbao, and in view of this, and acting on the instructions of the Spanish Government, the Spanish consul at Cardiff went on board the Cristina, stated that she had been requisitioned, dismissed the master and put a new master in charge. Thereupon the appellants issued a writ in rem claiming possession of the Cristina as their property. The Spanish Government entered a conditional appearance, and gave notice of motion for an order that the writ should be set aside inasmuch as it impleaded a foreign sovereign State:-

Held, that the Courts of this country will not allow the arrest of a ship, including a trading ship, which is in the possession of, and which has been requisitioned for public purposes by, a foreign sovereign State, inasmuch as to do so would be an infraction of the rule well established in international law that a sovereign State cannot, directly or indirectly, be impleaded without its consent, and, therefore, that the writ and all subsequent proceedings must be set aside: The Broadmayne [1916] P. 64, The Messicano (1916) 32 Times L. R. 519; The Crimdon(1918) 35 Times L. R. 81; The Gagara [1919] P. 95; and The Jupiter [1924] P. 236 approved and applied.

Opinion reserved by Lord Thankerton and Lord Macmillan as to the correctness of the decision in The Porto Alexandre [1920] P. 30.

Observations by Lord Maugham both as to the decision in The Porto Alexandre, supra, and as to the position according to our law of State-owned commercial ships.

Decision of Court of Appeal affirmed.

APPEAL from a decision of the Court of Appeal affirming a decision of Bucknill J.

[1938]		486
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))

The appellant company issued a writ in rem claiming as sole owners of the steamship Cristina, which was registered at the port of Bilbao, to have possession of the ship, then lying in the port of Cardiff, adjudged to them.

The respondents were the Government of the Spanish Republic, who entered a conditional appearance and stated that they were owners or parties interested. They further gave notice of motion for an order that the writ and all subsequent proceedings should be set aside for the following reasons:-

"That the steamship Cristina was at the time the writ in this action was issued the property of the Government of Spain a recognized foreign independent State and that the said State declines to sanction the institution of these proceedings in this Court. That at the time of the issue of the writ in this action the steamship Cristina was in the possession of the Spanish Government by its duly authorized agent. That at the time of the issue of the writ in this action the Spanish Republican Government had a right to the possession of the steamship Cristina. That this action impleads a foreign sovereign State, namely, the Government of Spain."

The ground on which the Spanish Government claimed to have the writ and arrest set aside was that by a decree of June 28, 1937, they had purported to requisition all vessels registered in the port of Bilbao (including the Cristina), and by reason thereof they claimed that they were entitled to the possession of the Cristina and that they were therefore impleaded by the proceedings. It was alleged that the Spanish Consul at Cardiff had in fact requisitioned the Cristina in pursuance of the decree above mentioned and that the Spanish Government were in fact in possession of her through a new master appointed by the Spanish Consul.

[1938]		487
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))

The company appealed.

Willink K.C., Willmer and V. R. Idelson for the appellants. There is no doctrine of immunity from the jurisdiction of the Court, established by international law, covering the present facts. As was held in In re Blanshard (1) the Court of Admiralty has, in a cause of possession, jurisdiction to take a vessel from a mere wrongdoer, and to deliver it to the rightful owner. In Duke of Brunswick v. King of Hanover (2)Lord Langdale M.R. pointed out that where our Courts have been called upon to distribute a fund in which some foreign sovereign or State had an interest, and it has been thought expedient to make such sovereign or State a party, the effect has not been to compel, or seek to compel, such sovereign or State to come in and submit to judgment in the ordinary course, but to give him or it an opportunity to come in to establish his interest in the subject-matter; the Master of the Rolls then proceeded: "Coming in to make his claim, he would, by doing so, submit himself to the jurisdiction of the Court in that matter." There the possibility of a foreign sovereign being a defendant was envisaged. But in this case the Spanish Government was not a defendant. The proceeding was a writ in rem.

[LORD ATKIN referred to Dicey's Conflict of Laws, 5th ed., p. 194, where it is said that "no action or other proceeding can be taken in the Courts of this country against a foreign sovereign, nor can the property of a foreign sovereign be seized or arrested, even if it be merely a ship engaged in commerce."]

There is no adverse comment in Dicey on the rule laid down by Lord Langdale. In Vavasseur v. Krupp (3), where the Mikado intervened in a suit to claim the property of certain shells, the Court held that he was entitled to them, but it is to be noted that he proved his property in them, so that the decision did not rest on his mere assertion of property. In The Parlement Belge (4), it was held that an unarmed

(1) (1823) 2 B. & C. 244.

(2) (1844) 6 Beav. 1, 39.

(3) (1878) 9 Ch. D. 351.

(4) (1880) 5 P. D. 197.

[1938]		488
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))

packet belonging to the sovereign of a foreign State, in the hands of officers commissioned by him, and employed in carrying mails, was not liable to be seized in a suit in rem to recover redress for a collision and that this immunity was not lost by reason of the fact that the packet also carried merchandise and passengers for hire. It will be observed, however, that the ship there in question was the property of the foreign State. In the present case the vessel is on the Bilbao register as the property of the appellants and it arrived in this country with that status. It will no doubt be contended that the effect of the Spanish decree requisitioning all ships on the Bilbao register transferred the right to possession of the ship to the Spanish Government. That decree, however, can have no extra-territorial force: see Russian Bank for Foreign Trade v. Excess Insurance Co. (1) A ship, the property, and in the possession, of a private person or body which comes within the jurisdiction of His Majesty, cannot while here be taken out of that possession by some one merely alleging that he is the representative of a foreign Power. The writ did not implead the Spanish Government or call upon it to intervene. The fundamental concept of international law is that each country is omni-competent within its own jurisdiction. Except in so far as it can be shown that the sovereign of this realm has voluntarily abandoned his sovereign rights, his Courts are entitled to adjudicate upon all matters arising within the territorial jurisdiction. Apart from what has already been specifically recognized, the burden is upon a foreign State to show that our Courts have abandoned jurisdiction in a matter which they have begun to assert when the writ in rem has been issued. As was pointed out in The Exchange (2) a man-of-war which was allowed to come into a harbour of the United States, came in under an implied licence. So a sovereign comes in on the like conditions. With regard to the requisition cases, The Broadmayne (3); The MessicanoFN(4), and The CrimdonFN(5), none of these dealt

(1) [1918] 2 K. B. 123.

(2) (1812) 7 Cranch, 116.

(3) [1916] P. 64.

(4) (1916) 32 Times L. R. 519.

(5) (1918) 35 Times L. R. 81.

[1938]		489
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))

with a position like the present where it is sought to enforce a Spanish municipal decree against property within His Majesty's jurisdiction. The Jupiter (1), upon which the Court of Appeal based its decision, was wrong and should be overruled.

G. St. C. Pilcher K.C., Owen L. Bateson and John Fosterfor the respondents. The appellants are seeking to limit a well established principle of law that a foreign sovereign State cannot be impleaded in our Courts against its will. The two matters for consideration are (a) Do these proceedings implead the Spanish Government? and (b) If they do, what is the extent of that Government's immunity in the circumstances of the case? In considering the former of these questions it has to be considered whether the Spanish Government through its agent, the Consul, had de facto possession of the vessel at the time of the issue of the writ? To that question, on the evidence, there can be no doubt that it had possession, and, as its right thereto is disputed by the appellants, the Spanish Government is obviously impleaded. Where a foreign Government is impleaded, its immunity from the jurisdiction of our Courts is absolute. There may be apparent exceptions, but in these it must be taken that the foreign State has impliedly submitted to the jurisdiction. What was done by the Spanish Consul was done on the instructions of the Spanish Government. In The Broadmayne (2) a vessel requisitioned by the Government was held to belong to the class of things, described in The Parlement Belge (3) as "things which are allowed to be, and from their nature must be, exempt and free from all private rights and claims of individuals, inasmuch as if these claims were to be allowed against them, the arrest, the judicial possession and judicial sale incident to such proceedings would divert them from those public uses to which they are destined." The present case comes directly within the decision of the Court of Appeal in The Gagara (4), where it was held that to permit the arrest of a vessel belonging to the Esthonian Government would be

(1) [1924] P. 236.

(2) [1916] P. 64.

(3) 5 P. D. 197, 210.

(4) [1919] P. 95.

[1938]		490
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))

contrary to principles of international comity, as it would compel that Government, whose sovereignty was entitled to be respected, to submit to the jurisdiction of the British Courts, and accordingly in that case the writ and all subsequent proceedings were set aside. See to the same effect The Porto Alexandre. (1) To purport to requisition the vessel as belonging to a port within the jurisdiction of the Spanish Government was in no way objectionable: see The Adriatic. (2)

Willink K.C. replied.

The House took time for consideration.

1938. March 3. LORD ATKIN. My Lords, the circumstances in which the writ in this action was issued and the Cristinawas arrested have been set out in the opinion of my noble and learned friend Lord Wright, which I have had the advantage of reading, and I need not repeat them.

The foundation for the application to set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute. The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.

The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control. There has been some difference in the practice of nations as to possible limitations of this second principle as to whether it extends to property only used for the commercial purposes of the sovereign or to personal private property. In this country it is in my opinion well settled that it applies to both.

I draw attention to the fact that there are two distinct immunities appertaining to foreign sovereigns: for at times

(1) [1920] P. 30.

(2) (1919) 258 Fed. Rep. 902.

[1938]		491
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Atkin.

they tend to become confused: and it is not always clear from the decisions whether the judges are dealing with one or the other or both. It seems to me clear that, in a simple case of a writ in rem issued by our Admiralty Court in a claim for collision damage against the owners of a public ship of a sovereign State in which the ship is arrested, both principles are broken. The sovereign is impleaded and his property is seized.

In my opinion the facts of this case establish the same breach of the two principles as in the illustration just given. I entertain no doubt that the effect, and the intended effect, of the action of the Spanish Consul at Cardiff in July, 1937, was to "purge" the officers and crew of the ship of those who were disaffected to the present Spanish Government and to secure that the new master, officers, and crew should hold the ship for the Government: and that from and after July 14 the master, officers, and crew held the ship not for the owners but for the Government: and that by the master, officers, and crew the Government were in fact in possession of the ship. I cannot pay serious attention to the suggestion that all that the Consul intended to do was to supply a well affected new master on behalf of the owners.

These being the facts I come to the conclusion that when the plaintiffs issued a writ in which they constituted as defendants the steamship or vessel Cristina and all persons claiming an interest therein, in the body of which the same ship and all persons claiming an interest therein were commanded within eight days to cause an appearance to be entered for them in the Probate, Divorce, and Admiralty Division, and on which they indorsed the claim to have possession adjudged to them of the said steamship or vessel Cristina, they were directly impleading the Spanish Government, whom they knew to be the only persons interested in the Cristina other than themselves, and from whom they desired that possession should be taken after it was adjudged to them. We have had an interesting exposition of the history of Admiralty practice and the evolution of the writ in rem. It is plain that it began with the arrest of a named

[1938]		492
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Atkin.

defendant; in his absence any of his property in the jurisdiction including his ship or ships could be arrested: eventually the ship over which some maritime claim was asserted could alone be arrested. But in all cases as in the present practice when a defendant has appeared the claim is against him personally, and though it is enforced in the first instance by sale of the ship or enforcement of the bail, a damage claim is not in our jurisprudence limited to the value of the ship. In these days it is unusual to name defendants: when the defendants are described as "the owners of a vessel" they can be at once identified. When persons are not entitled the defendants but in the body of the writ are cited to appear as persons claiming an interest, there is said to be some uncertainty whether they appear under leave to intervene or without such leave. In any case when they do appear they appear as defendants, and as such I conceive that they are impleaded. And, when they cannot be heard to protect their interest unless they appear as defendants, I incline to hold that, if they are persons claiming an interest, they are by the very terms of the writ impleaded. But in the present case where persons claiming an interest are the only persons entitled defendants, and the Spanish Government are the only persons claiming an interest adverse to the plaintiffs, I have no doubt not only that the Government were in fact impleaded but were intended by the plaintiffs to be impleaded.

The second point seems to me if possible to be clearer. It is well established that the Court will not arrest a ship which is under the control of a sovereign by reason of requisition: The Broadmayne (1); The Messicano (2); The Crimdon. (3)

But the present case is not one of control for public purposes but of actual possession for public purposes. It is indistinguishable from The Gagara (4), which in the Court of Appeal was decided solely on the ground that the ship was in the actual possession of a foreign sovereign - namely, the State of Esthonia. The Courts of our country will not

(1) [1916] P. 64.

(2) 32 Times L. R. 519.

(3) 35 Times L. R. 81.

(4) [1919] P. 95.

[1938]		493
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Atkin.

allow their process to be used against such a ship and the arrest cannot be maintained. In the present case I find it unnecessary to decide many of the interesting points raised in the argument for the appellants as to whether the ship was rightly in the possession of the Government, what was the exterritorial effect of the Spanish decree, what implied restrictions in different circumstances might be attached to sovereign immunity, when, if ever, the assertion of the sovereign as to his property or possession is conclusive. In matters of such grave importance as those involving questions of international law it seems to me very expedient that Courts should refrain from expressing opinions which are beside the question actually to be decided. In the present case in my opinion the decisions of the trial judge and the Court of Appeal were right and should be affirmed; and this appeal should be dismissed with costs.

LORD THANKERTON. My Lords, in my opinion, on the facts in this case, the decisions of the trial judge and of the Court of Appeal were right and should be affirmed.

It is admitted that the Government of the Republic of Spain is the Government of a foreign sovereign State fully recognized as such by His Majesty's Government. In my opinion it is sufficiently established that the Spanish Government, without a breach of the peace, obtained by their agents de facto possession of the ship on July 14, 1937, and have since remained in de facto possession. I am further of opinion that it is sufficiently established that such possession is for public uses, for the purposes of prosecution of the civil war in Spain. The Spanish Government decline to submit to the jurisdiction, and it has not been maintained by the appellants that there are any facts from which such submission can be implied.

I agree with my noble and learned friend on the Woolsack that in the present case not only were the Spanish Government in fact impleaded, but they were intended to be so impleaded. Further, the order sought in the present case would necessarily displace the de facto possession of the

[1938]		494
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Thankerton.

Spanish Government, and I agree with my noble and learned friend that the doctrine of immunity of the property of a foreign sovereign State dedicated to public uses includes the case of actual possession for public uses. In this view, the case clearly comes within the principles laid down in The Parlement Belge (1) by Brett L.J.

But, my Lords, I have some doubt whether the proposition that the foreign sovereign State cannot be impleaded is an absolute one; the real criterion being the nature of the remedy sought. To indicate this, let me quote the principles laid down in The Parlement Belge (1), where Brett L.J. said (2): "The first question really raises this, whether every part of the public property of every sovereign authority in use for national purposes is not as much exempt from the jurisdiction of every Court as is the person of every sovereign. Whether it is so or not depends upon whether all nations have agreed that it shall be, or in other words, whether it is so by the law of nations. The exemption of the person of every sovereign from adverse suit is admitted to be a part of the law of nations. An equal exemption from interference by any process of any Court of some property of every sovereign is admitted to be a part of the law of nations." This passage suggests that the absolute exemption is of the person of the sovereign from adverse suit, but that in the case where property of a sovereign is not admitted by the agreement of nations to be exempt, action in rem against such property which is within the territorial jurisdiction is available, even if the sovereign be invited to contest the suit, if he so choose.

It happens that The Parlement Belge (1) affords an interesting illustration, for Sir Robert Phillimore (3) had rejected the claim to exemption, and his grounds are stated in the following passage: "Looking to the character of the suit and to other passages in the judgment" [Judge Story's judgment in The Santissima Trinidad (4)]: "it seems to me clear that by the expression 'public ship of the government' was meant a

(1) 5 P. D. 197.

(2) Ibid. 205.

(3) (1879) 4 P. D. 129, 148.

(4) (1822) 7 Wheat. 283.

[1938]		495
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Thankerton.

ship of war, and not any vessel employed by the government. But even if the term could be treated as more comprehensive and as including public ships such as I have referred to sent by the government on exploring expeditions, it would not include a vessel engaged in commerce, whose owner is (to use the expression of Bynkershoek, De Leg. Mercatore) 'strenuè mercatorem agens.' Upon the whole, I am of opinion that neither upon principle, precedent, nor analogy of general international law, should I be warranted in considering the Parlement Belge as belonging to that category of public vessels which are exempt from process of law and all private claims."

In the Court of Appeal, in delivering the judgment of the Court, Brett L.J. held that the exemption was not confined to ships of war, but applied to ships and other property of the sovereign destined to public uses. He then went on to consider whether the Parlement Belge was so dedicated, and came to the conclusion that it was so dedicated, because its use for purposes of trade was only subservient to the main purpose of carrying the mails. Then comes a striking passage in the judgment (1): "The ship is not in fact brought within the first proposition. As to the second, it has been frequently stated that an independent sovereign cannot be personally sued, although he has carried on a private trading adventure. It has been held that an ambassador cannot be personally sued, although he has traded; and in both cases because such a suit would be inconsistent with the independence and equality of the state which he represents. If the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the Court against the owner of the property, then the attempt to exercise such an authority is an attempt inconsistent with the independence and equality of the state which is represented by such owner." It may be argued, as a logical inference from this passage, that an action in rem against property of the sovereign which is engaged in private trading, and which is not dedicated to public uses, is not

(1) 5 P. D. 220.

[1938]		496
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Thankerton.

to be regarded as inconsistent with the independence and equality of the state represented by such owner, and that any other view would lead to absolute exemption of all property owned by the sovereign, and not the exemption of some property only.

If that were the correct inference, it would not justify the Lord view of the Court of Appeal in the case of The Porto Alexandre (1), where the ship was being used in ordinary commerce, the earning of freight being the sole interest of the Portuguese Government, who owned it, that they were bound to hold it exempt by reason of the decision in The Parlement Belge. (2) They made no inquiry as to whether such an exemption was generally agreed to by the nations, and it seems to be common knowledge that they have not so agreed. This question, which has come to be of increasing importance of recent years, has not been considered by this House, and as I hold that the Cristina was dedicated to public uses, I find it unnecessary to decide it in this appeal. Accordingly, I express no opinion on the matter, but I desire to make clear that I hold myself free to reconsider the decision in The Porto Alexandre. (1) In the later case of The Jupiter (3)counsel for the appellants conceded that he was precluded by the decision in The Porto Alexandre (1) from raising this question in the Court of Appeal.

I concur in the motion proposed by the noble and learned Lord.

LORD MACMILLAN. My Lords, various topics of the first importance were mooted in the course of the argument on this appeal which it is unnecessary and inexpedient to discuss, but it may not be out of place to indicate the general principles which provide the setting for the particular problem which your Lordships have to solve.

It is an essential attribute of the sovereignty of this realm, as of all sovereign independent States, that it should possess jurisdiction over all persons and things within its territorial

(1) [1920] P. 30.

(2) 5 P. D. 197.

(3) [1924] P. 236.

[1938]		497
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Macmillan.

limits and in all causes civil and criminal arising within these limits. This jurisdiction is exercised through the instrumentality of the duly constituted tribunals of the land. But just as individuals living in a community find it expedient to submit to some diminution of their freedom of action in favour of their fellow-citizens, so also the sovereign States which constitute the community of nations have been led by courtesy as well as by self-interest to waive in favour of each other certain of their sovereign rights. The extent of these mutual concessions and their recognition is primarily a matter of international, not of domestic law, and as must necessarily be the case with all international law, which has neither tribunals nor legislatures to define its principles with binding authority, there may be considerable divergence of view and of practice among the nations. Hence, when questions involving international law arise in the domestic courts of a State problems of great difficulty and gravity may emerge.

"It is a trite observation that there is no such thing as a standard of international law extraneous to the domestic law of a kingdom, to which appeal may be made. International law, so far as this Court is concerned, is the body of doctrine regarding the international rights and duties of states which has been adopted and made part of the law of Scotland." These are the well-chosen words of Lord Dunedin, when Lord President of the Court of Session in Scotland, in a case which raised important issues of international law: Mortensen v. Peters. (1)

Now, it is a recognized prerequisite of the adoption in our municipal law of a doctrine of public international law that it shall have attained the position of general acceptance by civilized nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions. It is manifestly of the highest importance that the Courts of this country before they give the force of law within this realm to any doctrine of international law should be satisfied that it has the hallmarks of general assent and reciprocity.

(1) (1906) 8 F. (J. C.) 93, 101.

[1938]		498
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Macmillan.

I confess that I should hesitate to lay down that it is part of the law of England that an ordinary foreign trading vessel is immune from civil process within this realm by reason merely of the fact that it is owned by a foreign State, for such a principle must be an importation from international law and there is no proved consensus of international opinion or practice to this effect. On the contrary the subject is one on which divergent views exist and have been expressed among the nations. When the doctrine of the immunity of the person and property of foreign sovereigns from the jurisdiction of the Courts of this country was first formulated and accepted it was a concession to the dignity, equality and independence of foreign sovereigns which the comity of nations enjoined. It is only in modern times that sovereign States have so far condescended to lay aside their dignity as to enter the competitive markets of commerce, and it is easy to see that different views may be taken as to whether an immunity conceded in one set of circumstances should to the same extent be enjoyed in totally different circumstances.

I recognize that the Courts of this country have already, in cases which have been cited at the Bar, gone a long way in extending the doctrine of immunity; but the cases which have gone furthest have not been hitherto considered in this House, and like my noble and learned friend Lord Thankerton I desire to reserve my opinion on the question raised in the case of The Porto Alexandre. (1)

With these observations I am content to express my agreement with what I understand to be the opinion of all your Lordships that this action, which is directed to take - ultimately, if necessary, by force - a Spanish ship requisitioned for public purposes by the duly recognized Government of Spain and lying in a British port out of the possession of that Government, cannot be allowed to proceed in the Courts of this country.

LORD WRIGHT. My Lords, the appellants, who are a Spanish company carrying on the business of ship-owners

(1) [1920] P. 30.

[1938]		499
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

at Bilbao in Spain, initiated this action by a writ in rem in the Admiralty Division claiming as sole owners of the steamship Cristina to have possession adjudged to them of the steamship. The writ was against the steamship or vessel Cristina and all persons claiming an interest therein. The Cristina, which is a Spanish steamship registered at the port of Bilbao, was on July 22, 1937, the date of the writ, lying in Queens Dock, Cardiff, where she had arrived on July 8, 1937. At that latter date she was in charge of a captain named Faustino Frias appointed by and acting for the appellants, who were operating her. On July 9, 1937, he attended at the office of the Spanish Consul at Cardiff, as Spanish shipmasters are bound to do by Spanish law on arriving at a foreign port, when he was handed a letter from the Consul requiring him to produce at the Consulate the Patente de Navegacion so that it could be noted in accordance with a decree of the Spanish Government dated June 28, 1937, requisitioning the ship. The captain failed to do so and on July 13, 1937, the Consul, by registered letter, dismissed the captain and also all other officers and members of the crew not in sympathy with his Government. On the following day the Consul went on board with one Santiago Asolo, a new master whom he had appointed in the name of the Government of the Republic of Spain, and broke open the captain's cabin, which was locked, but found that the late captain, who had left the ship, had taken away the Patente de Navegacion. The new captain was placed in charge of the vessel on behalf of the Spanish Government and has remained so, save for a period when he was absent for family reasons, when he left the ship in charge of a mate, also appointed by the Consul for the Spanish Government. The master and mate have sworn that at all material times they and the crew have had continuous possession of the ship on behalf of the Spanish Government and have held themselves and the ship at that Government's disposal, subject to the arrest by the Court, which was effected by a warrant issued on the appellants' application supported by affidavits. It is also sworn that the ship's expenses have been disbursed by

[1938]		500
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

the Spanish Government since the new captain took charge.

The Spanish Consul at Cardiff, who acted with the authority of the Spanish Consul-General and the Spanish Ambassador in London, claimed to requisition the Cristina in virtue of a decree dated at Valencia June 28, 1937, and published in the Gaceta de la Republica on June 29, 1937, which provided that all the vessels registered at the port of Bilbao should be requisitioned and be at the disposal of "the legitimate Government of the Republic," and that any Spanish shipowner or owner of a vessel so registered should be bound to hand over its administration to the bodies designated by the Government for the purposes of receiving orders and instructions in relation to the service to be rendered by the vessel. The decree recited (inter alia) that in order the better to be able to meet the requirements of the war the Government considered it desirable to exercise immediate and direct control over services of marine transport in order to carry into effect the plans of supplies, evacuation or anything which the Government might wish to carry out. The decree was stated to be directed to control and administer the means of marine transport. It also contained various ancillary provisions, and in particular required entries to be made in the appropriate registers and ships' papers of any requisition under the decree.

On July 27, 1937, the respondent entered a conditional appearance "as owners or persons interested in this action, without prejudice to an application to set aside the writ or service thereof." On the same day it lodged a notice of motion claiming that the writ, the arrest and all subsequent proceedings should be set aside on the grounds that the Cristina was the property of the Government of Spain, a foreign independent State, which declined to sanction the proceedings, that the Cristina was in the possession of the Government by its duly authorized agent, that the Government had a right to the possession of the Cristina, and that the action impleaded a foreign sovereign State - namely, the Government of Spain. Among the affidavits in support of

[1938]		501
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

the application was one from the Counsellor of the Spanish Embassy in London, affirming on oath that by virtue of the decree the Government of Spain "claims and is entitled to possession of the said ship under the said requisition." He further deposed that the Government of Spain was unwilling to submit to the jurisdiction of the Court and that the proceedings impleaded that Government. He also deposed that the requisition had been effected at Cardiff by notices from the Consul at Cardiff to the captain, agents and cargo owners of the ship and to the Port and Immigration Authorities there.

At the trial Bucknill J. granted the application and set aside the writ, arrest and proceedings. His decision was affirmed by the Court of Appeal, from whose order this appeal is now brought to this House.

At the trial it was admitted on behalf of the appellants that the respondent, the Republican Government of Spain, is an independent sovereign State, recognized by His Majesty's Government. It was not contested that this admission involved that the Republican Government was the sole Government recognized by His Majesty's Government in and for Spain. The case has accordingly proceeded throughout on that footing. This House and the Courts below have thus no judicial knowledge save as appears from the recitals in the decree of the conflict which it is general knowledge is going on in Spain, or the division of territory between the contesting forces.

It has also been admitted that the Cristina was not in Spanish territorial waters from the date of the decree until the date of the facts alleged to constitute the requisition, when she was in British territorial waters.

The respondent Government does not contend that it is the owner of the Cristina but says that it is and was at all material times in de facto possession of the Cristina and was therefore without its consent impleaded by the writ in rem claiming possession adversely to its actual possession. Such a proceeding, it contends, is inconsistent with its position as an independent sovereign State recognized by His Majesty's Government. It further contends that the action involved

[1938]		502
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

a claim to interfere with its right of direction and control coupled with actual possession acquired by reason of the requisition. This, though not ownership, is, it is said, a right in the ship in the nature of property and was, as being the property of an independent sovereign State, immune from the interference of the Court either by the arrest or by an order annulling the requisition and giving possession to the appellants and ousting the respondents from possession. The word "requisition," while not a term of art, is familiar and has been constantly used to describe the compulsory taking by Government, invariably or at least generally, for public purposes of the user, direction and control of the ship with or without possession. In my judgment both contentions are well founded, and the order of the Courts below may be sustained on either ground. But the grounds are separate and call for separate analysis, though both alike are based on the general principles of international law, according to which a sovereign State is held to be immune from the jurisdiction of another sovereign State. This is sometimes said to flow from international comity or courtesy, but may now more properly be regarded as a rule of international law, accepted among the community of nations. It is binding on the municipal Courts of this country in the sense and to the extent that it has been received and enforced by these Courts. It is true that it involves a subtraction from the sovereignty of the State, which renounces pro tanto the competence of its Courts to exercise their jurisdiction even over matters occurring within its territorial limits, though to do so is prima facie an integral part of sovereignty. The rule may be said to be based on the principle "par in parem non habet imperium," no State can claim jurisdiction over another sovereign State. Or it may be rested on the circumstance that in general the judgment of a municipal Court could not be enforced against a foreign sovereign State, or that the attempt to enforce might be regarded as an unfriendly act. Or it may be taken to flow from reciprocity, each sovereign State within the community of nations accepting some subtraction from its full sovereignty in return for similar concessions on the

[1938]		503
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

side of the others. I need not discuss other possible explanations. The rule is naturally subject to waiver by the consent of the sovereign, who may desire a legal adjudication as to his rights. There may indeed be particular and special exceptions not necessary here to discuss. The principle has been received and applied by the Courts of this country in many decided cases, and in particular many cases dealing with states of fact similar to the facts here in question. But the rule only applies as between sovereign States recognized as such by His Majesty's Government. For purposes of the present case so far as concerns Spain, the respondent is such a sovereign.

The first of the two rules here relevant, namely, that the independent sovereign may not be directly or indirectly impleaded in the Courts of this country without its consent, has been recognized as a general proposition in many cases, as for instance Mighell v. Sultan of Johore (1), an action in personam. Similarly in Duff Development Co. v. Kelantan Government (2), Lord Cave referred to the right of an independent sovereign State by international law to the immunity against legal process which was defined in The Parlement Belge (3), and Lord Sumner said(4): "The principle is well settled, that a foreign sovereign is not liable to be impleaded in the municipal Courts of this country, but is subject to their jurisdiction only when he submits to it, whether by invoking it as a plaintiff or by appearing as a defendant without objection." The principle is stated without any special reference to reciprocity, but The Parlement Belge (3) shows clearly that a sovereign may be impleaded as much by an action in rem as by an action in personam. As was said by the Privy Council in Young v. S.S. Scotia (5): "Where you are dealing with an action in rem for salvage, the particular form of procedure which is adopted in the seizure of the vessel is only one mode of impleading the owner." In The Parlement

(1) [1894] 1 Q. B. 149.

(2) [1924] A. C. 797, 805.

(3) 5 P. D. 197.

(4) [1924] A. C. 822.

(5) [1903] A. C. 501, 504.

[1938]		504
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

Belge (1) (a case to which I shall later refer in connection with the immunity of the sovereign's property) the action in rem was brought under a claim for collision damage done by a Belgian State mail packet. It was contended that the sovereign was not impleaded (sc. personally) but only the res. Brett L.J. in delivering the judgment of the Court of Appeal (2) said that The Bold Buccleugh (3) decides that an action in rem is a different "action from one in personam and has a different result. But it does not decide that a Court which seizes and sells a man's property does not assume to make that man subject to its jurisdiction. To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any Court." I think the substantial soundness of this ruling is corroborated by considering the nature of the modern writ in rem. The history and effect of that writ have been fully explored by Jeune J. in The Dictator (4), approved and followed by the Court of Appeal in The Gemma. (5) It seems that originally the warrant was issued for the purpose of compelling the defendant to appear and submit to the Court, and was directed not merely against the property said to be the instrument of injury but any property of the defendant or even himself personally. But the modern writ in rem has become a machinery directed against the ship charged to have been the instrument of the wrongdoing in cases where it is sought to enforce a maritime or statutory lien, or in a possessory action against the ship whose possession is claimed. To take the present case the writ names as

(1) 5 P. D. 197.

(2) Ibid. 219.

(3) (1851) 7 Moo. P. C. 267.

(4) [1892] P. 304.

(5) [1899] P. 285.

[1938]		505
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

defendants the Cristina and all persons claiming an interest therein, and claims possession. The writ commands an appearance to be entered by the defendants (presumably other than the vessel) and gives notice that in default of so doing the plaintiffs may proceed and judgment be given by default, adjudging possession to the plaintiffs. A judgment in rem is a judgment against all the world, and if given in favour of the plaintiffs would conclusively oust the defendants from the possession which on the facts I have stated they beyond question de facto enjoy. The writ by its express terms commands the defendants to appear or let judgment go by default. They are given the clear alternative of either submitting to the jurisdiction or losing possession. In the words of Brett L.J. the independent sovereign is thus called upon to sacrifice either its property or its independence. It is, I think, clear that no such writ can be upheld against the sovereign State unless it consents. It is therefore given the right, if it desires neither to appear nor to submit to judgment, to appear under protest and apply to set aside the writ or take other appropriate procedure with the same object. It may be said that it is indirectly impleaded, but I incline to think that it is more correct to say that it is directly impleaded. The defendants cited are "all persons claiming an interest in the Cristina," a description which precisely covers on the facts of the case the Spanish Government and, to judge by the affidavits filed by the appellants in applying to obtain the warrant to arrest, no one else; under the modern and statutory form of a writ in rem, a defendant who appears becomes subject to liability in personam. Thus the writ in rem becomes in effect also a writ in personam. This emphasizes the view that the writ directly impleads the Spanish Government.

The crucial fact in this connection is simply that de facto possession was enjoyed by the Spanish Government. The position would obviously have been quite different if the respondent were seeking to obtain possession by the process of the Court instead of resisting an attempt by the process of the Court to oust it from actual possession.

[1938]		506
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

In the present case, the fact of possession was proved. It is unnecessary here to consider whether the Court would act conclusively on a bare assertion by the Government that the vessel is in its possession. I should hesitate as at present advised so to hold, but the respondent here has established the necessary facts by evidence.

It is unnecessary to consider by what mode the respondent obtained possession. It is enough to ascertain that it had possession at the time when the claim to immunity was made. Nor is it necessary to consider here whether any particular person not entitled to diplomatic immunity has made himself liable to English law.

The appellants have contended that the rule that the sovereign cannot be impleaded is not absolute or universal, and have instanced as possible exceptions cases in which title to real property in the jurisdiction, or suits to administer a fund in Court in which the foreign sovereign is interested, or representative actions such as debenture-holders' actions where the sovereign holds debentures. Whatever may be the position in such cases, they are essentially different from, and afford no guidance for, the present case, and I do not need here to discuss them.

This ground would by itself, subject to some questions to be considered below, be enough to entitle the respondent to succeed, but there is a second ground on which the writ should in my judgment be set aside, which is that it claims to interfere with the property of the foreign sovereign. That the Court has in general no jurisdiction to do this is illustrated by The Parlement Belge. (1) One ground of the decision that the writ should be set aside was that it was in rem against the Belgian packet. Brett L.J. enforces the principle by a copious citation of English and United States authorities and rightly concludes (2): "The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign

(1) 5 P. D. 197.

(2) Ibid. 214.

[1938]		507
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

state, each and every one declines to exercise by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and, therefore, but for the common agreement, subject to its jurisdiction."

The appellants, while not contesting the general principle, have denied that it applies to the facts of the present case, for various reasons. In the first place they have relied on the fact that the Spanish Government had no property (in the sense of ownership) in the Cristina, whereas in The Parlement Belge (1) the Belgian Government was the owner of the mail packet. But the rule is not limited to ownership. It applies to cases where what the Government has is a lesser interest, which may be not merely not proprietary but not even possessory. Thus it has been applied to vessels requisitioned by a Government, where in consequence of the requisition, the vessel, whether or not it is in the possession of the foreign State, is subject to its direction and employed under its orders. That was a separate ground in The Porto Alexandre (2), apart from the question whether, or fact that, the vessel had actually become the property of the Portuguese Government, which was possessing and employing her. A similar immunity from arrest was upheld in favour of the British Crown in The Broadmayne (3), a vessel requisitioned by the British Government under what was in fact a compulsory charterparty and hiring. The Government, it was held, could not be deprived by the order of the Court of her services nor could the Court interfere with her so long as she was in the Crown's employment, though any rights against the owners not affecting the user by the Crown, were preserved. This latter point does not arise in actions for possession, as contrasted with actions claiming a lien. Similarly in The Jupiter (4) no question of ownership of the vessel was involved; all that clearly appears from the report is that the vessel,

(1) 5 P. D. 197.

(2) [1920] P. 30.

(3) [1916] P. 64.

(4) [1924] P. 236.

[1938]		508
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

being a Russian vessel, was in the possession and subject to the control of the Russian Soviet Government, which claimed the right to possession under a master holding for it. A writ in rem for possession was set aside. The Court of Appeal obviously treated the facts as sufficient to bring the case within the rule which Scrutton L.J. quoted from Dicey, 3rd ed., p. 215: "The Court has no jurisdiction to entertain an action against any foreign sovereign. Any action against the property of a foreign sovereign is an action or proceeding against such person." In my judgment on the facts of the present case the requisitioning of the Cristina under the decree of June 28, 1937, gave the Spanish Government a right or interest in the Cristina whether called property or not, which was immune from interference by the Courts of this country.

The Court of Appeal rightly, as I think, treated the case as concluded in substance by The Jupiter. (1) It has, however, been strenuously contended that the decision in The Jupiter (1)does not govern this case because the requisition was there effected within the jurisdiction of the requisitioning State, whereas in the present case the Spanish Government seized the Cristina in British territorial waters. It was said that such seizure constituted a wrongful act which was a breach of international comity and excluded a right to claim the reciprocal comity of immunity. The famous judgment of Marshall C.J. in The Exchange (2) was also relied on as resting the immunity on a licence in favour of the sovereign State which brings its own property within the alien jurisdiction on the footing of the licence, whereas no such licence can be implied when the vessel has entered the jurisdiction in the owner's possession and has then been wrongly seized. It was also said that the judgment of the Courts below, if upheld, would enable a foreign sovereign State to effect unlawful seizures in this realm of chattels or property without either the State itself or its agents being under any liability civil or criminal. But in my judgment these objections are ill conceived. I do not think Marshall C.J. had any such

(1) [1924] P. 236.

(2) 7 Cranch, 116.

[1938]		509
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

idea in mind when he referred to an implied licence under which the foreign vessel entered the jurisdiction. His expressions were apt in regard to the facts before him, but were not intended to limit or define the immunity which follows not so much from the fiction of a licence, as from the independent status in international law of the foreign sovereign. This gives the sovereign, so far as concerns Courts of law, an immunity even in respect of conduct in breach of the municipal law. The remedy, if any, is prima facie by diplomatic representation or other action between the sovereign States, not by litigation in municipal Courts. Whatever the consequences which in any particular case may follow from this immunity it is too well established in the law of this country to admit of being infringed. It must also be noted in the present case that the Cristina, even when in Cardiff docks, may have, as being a foreign merchant ship, a different status from an ordinary chattel on land. But as the relevant fact here is that the Spanish Government had in fact requisitioned her there is no need to consider whether in any sense, or to any extent, she was subject while in English territorial waters to the law of her flag, or to the operation of the Spanish decree. Nor is it necessary, even if it be competent, for the Court to debate whether the decree was validly made under Spanish law. I do not think that The Jupiter (1) admits of any solid distinction because of the fact that The Jupiter (1) was requisitioned within the territorial jurisdiction of the Soviet State.

A further point raised by the appellants was that the Cristina was a private merchant vessel employed in trading, whereas in The Parlement Belge (2) the Court of Appeal was careful to point out that the vessel was mainly used for carrying the mails and that the carrying of passengers and merchandise was subsidiary, and it is said that the Court of Appeal in The Parlement Belge (2) would have refused to recognize the respondent's immunity in the facts of this case. The contention seems to be that the Cristina was a tramp steamer which its owners had employed in ordinary trading

(1) [1924] P. 236.

(2) 5 P. D. 197.

[1938]		510
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

and in the carriage of commercial cargoes, and that in regard to such a vessel the foreign sovereign State could not claim immunity either on the ground of property or possession nor could it claim immunity from being impleaded by an action in rem against the ship. It might be enough to say in answer to these arguments that the circumstances under which the respondent took possession of the Cristina, particularly in view of the recitals to the decree, sufficiently bring the Cristina within the description of public property of the State destined to public use. This is the general criterion postulated by the Court of Appeal in The Parlement Belge (1), but that Court never intended to lay down that a trading vessel must be deemed to be as a matter of law outside the sphere of immunity. The main contention of the plaintiffs in that case was that the immunity was limited to ships of war, and a few other types of vessels such as royal yachts, transports, and a few others. It was no doubt in regard to armed ships of war that the immunity of ships was first recognized, as in The Exchange. (2) But as Sir H. S. Giffard S.-G. pungently pointed out in argument in The Parlement Belge (3): "The privilege depends on the immunity of the sovereign, not on anything peculiar to a ship of war, though it seldom arises as to anything else, because hardly anything belonging to a sovereign in his public capacity, except a ship of war, ever goes wandering into the jurisdiction of foreign courts." Times, however, have changed, and the general principle must override the particular instance and be adapted to the new conditions. Indeed the Parlement Belge might be fairly described as a commercial vessel, since mails are more often than not carried by private ships. In Young v. S.S. Scotia (4) the vessel held to be immune as a public vessel was a train ferry owned by the Crown and to be employed to carry trains between two points on a railway owned by the Government of Canada. In The Jassy (5) Barnes P. upheld the immunity in the case of a vessel which was the

(1) 5 P. D. 197.

(2) 7 Cranch, 116.

(3) 5 P. D. 202.

(4) [1903] A. C. 501.

(5) [1906] P. 270.

[1938]		511
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

property of the State of Roumania and employed for the public purposes of the State in connection with the national railways of Roumania. But the most signal development of the principle has been during the Great War, during which the importance to the State of trading vessels became fully realized. This development was most uncompromisingly expressed in a judgment of the Supreme Court of the United States in Berizzi Brothers Co. v. S.S. Pesaro. (1) That was an action in rem brought against an Italian ship for damages for failure to carry a parcel of silk shipped for carriage from Italy to New York. The ship belonged to the Italian Government and was a general ship engaged in the common carriage of merchandise for hire. The Court said (2): "We think the principles [of immunity] are applicable alike to all ships held and used by a Government for a public purpose, and that when, for the purpose of advancing the trade of its people or providing revenue for its treasury, a Government acquires, mans and operates ships in the carrying trade, they are public ships in the same sense that war ships are. We know of no international usage which regards the maintenance and advancement of the economic welfare of a people in time of peace as any less a public purpose than the maintenance and training of a naval force." This was in 1925. The Court cited as recent authorities Young v. Scotia (3); The Jassy (4); The Gagara (5); The Porto Alexandre (6); and The Jupiter.(7) This judgment seems to represent the impact of modern ideas on the doctrines of The Parlement Belge (8), but I cannot regard it as other than representing logical evolution. The decision of the United States Court agrees with that of the Court of Appeal in The Porto Alexandre (6), where the ship was one which had been requisitioned by the Portuguese Government and was being employed by them in the carriage for reward of ordinary commercial cargoes. The Court of Appeal held that the

(1) (1925) 271 U. S. 562.

(2) Ibid. 574.

(3) [1903] A. C. 501.

(4) [1906] P. 270.

(5) [1919] P. 95.

(6) [1920] P. 30.

(7) [1924] P. 236.

(8) 5 P. D. 197.

[1938]		512
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

case came within the principle of The Parlement Belge. (1)Warrington L.J. referred to Briggs v. Light Boats (2), where immunity was granted in respect of a Government lightship, and quoted the words of the Court of Appeal in The Parlement Belge (1) with reference to that case: "The ground of that judgment is that the public property of a Government in use for public purposes is beyond the jurisdiction of the Courts of either its own or any other State, and that ships of war are beyond such jurisdiction, not because they are ships of war, but because they are public property," the reason being "that the exercise of such jurisdiction is inconsistent with the independence of the sovereign authority of the State." In view of what I regard as the nature and purpose of the possession held by the respondent of the Cristina, it is not necessary to express a final opinion on the question; but as at present advised I am of opinion that these decisions of the United States Supreme Court and of the Court of Appeal correctly state the English law on this point.

This modern development of the immunity of public ships has not escaped severe, and, in my opinion, justifiable criticism on practical grounds of policy, at least as applied in times of peace. The result that follows is that Governments may use vessels for trading purposes, in competition with private ship-owners, and escape liability for damage, and salvage claims. Various international conventions have discussed this problem and have culminated in the International Convention for the Unification of Certain Rules concerning the Immunity of State-owned ships, of April 10, 1926. The general purport of the Convention was to provide that ships owned or operated by States were to be subject to the same rules of liability as privately owned vessels; ships of war, State-owned yachts, and various other vessels owned or operated by a State on Government and non-commercial service were excepted. There was power for a State to suspend the operation of the Convention in time of war. Great Britain, along with the majority of modern States, signed the Convention, but has not yet ratified it or enacted any legislation

(1) 5 P. D. 197.

(2) (1865) 93 Mass. 157.

[1938]		513
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Wright.

to bring it into effect in this country. But even if the provisions of the Convention were made law here, it is not clear that it would affect the position in the present case, because its effect is apparently limited to claims in respect of the operation of such ships or in respect of the carriage of cargoes in them. Thus it would affect claims in rem for collision damage such as the claim in The Parlement Belge (1)or for salvage as in The Broadmayne (2) and The Porto Alexandre (3) or for cargo damage as in The Pesaro (4), but it may be, not claims for possession such as that in the present case or The Gagara (5) or The Jupiter.(6)

I may add that in the present case it is in my opinion sufficiently shown by the evidence before the Court that the Spanish Government had actually requisitioned, and taken possession and control of, the Cristina. That is all that is needed to justify the claim to immunity on the ground of "property." The question how far a mere claim or assertion by that Government would be conclusive on the Court, does not arise here.

For the reasons which I have stated, the decision of Bucknill J. and of the Court of Appeal was in my judgment on the materials of fact upon which the Court must act a decision which flowed inevitably from the application of the principles of international law as recognized by the Courts of this country. In my judgment the appeal must fail.

LORD MAUGHAM. My Lords, the claim of the respondents, who are the Government of the Spanish Republic, and who entered a conditional appearance to the writ in rem, is based upon their immunity as an independent sovereign State. The facts are fully stated in the opinion of my noble and learned friend Lord Wright and it is unnecessary to repeat them at length. The appellants, the plaintiffs in the action, were at all material times and still are the sole owners of the Cristina. While it remained in their hands it was a private

(1) 5 P. D. 297.

(2) [1916] P. 64.

(3) [1920] P. 30.

(4) 271 U. S. 562.

(5) [1919] P. 95.

(6) [1924] P. 236.

[1938]		514
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

vessel registered at the port of Bilbao. A decree was made in Spain on June 28, 1937, requisitioning all vessels registered in the port of Bilbao. The Cristina at that date was not within the territorial jurisdiction of Spain. She arrived at the port of Cardiff on July 8. On July 14 the respondents, by their agents, and, it should be mentioned, without a breach of the peace, took possession of the vessel. For the reasons given by your Lordships I accept the view that since July 14 the respondents, by their agent, have been in de facto possession of the ship. The writ was dated July 22. According to a not unusual form the defendants were "the steamship or vessel Cristina and all persons claiming an interest therein." The indorsement on the writ was a claim by the plaintiffs as sole owners of the ship "to have possession adjudged to them" of the same. There was an arrest of the vessel in due course. The respondents entered a conditional appearance on July 27 and moved to set aside the writ and arrest for the following reasons: "That the steamship Cristina was at the time the writ in this action was issued the property of the Government of Spain a recognised foreign independent State and that the said State declines to sanction the institution of these proceedings in this Court. That at the time of the issue of the writ in this action the steamship Cristina was in the possession of the Spanish Government by its duly authorised agent. That at the time of the issue of the writ in this action the Spanish Republican Government had a right to the possession of the steamship Cristina. That this action impleads a foreign sovereign State namely the Government of Spain."

The first reason has been abandoned. The respondents relied on the circumstance that by a decree of June 28, 1937, they had purported to requisition all vessels registered in the port of Bilbao (including the Cristina) and by reason thereof they claimed that they were entitled to possession of the Cristina and that they were therefore impleaded by the proceedings. It was alleged that the Spanish Consul at Cardiff had requisitioned the Cristina in pursuance of this decree and that the Spanish Government were in fact in

[1938]		515
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

possession of her through a new master appointed by the said Spanish Consul.

Bucknill J. and the Court of Appeal held themselves bound by authority to decide that the Court must decline jurisdiction on the ground that a foreign sovereign State, namely, the Republic of Spain, was asserting a possessory interest in the Cristina and objected to the jurisdiction of the Court. Hence the present appeal. If it were successful, the result would be that our Courts would have to determine the legal effect in this country of the decree of June 28, 1937, as regards a ship under the Spanish flag which was not at that date within Spanish territorial jurisdiction. This question has not been argued and I shall abstain from expressing any opinion on it. But it seems to me that the claim by the Spanish Government for immunity from any form of process in this country may extend to cases where possession of ships or other chattels had been seized in this country without any shadow of right, and also to cases where maritime liens were sought to be enforced by actions in rem against vessels belonging to a foreign Government and employed in the ordinary operations of commerce. For my part I think such a claim ought to be scrutinized with the greatest care. In these days and in the present state of the world, diplomatic representations made to a good many States afford a very uncertain remedy to the unfortunate persons who may have been injured by the foreign Government. Moreover the persons entrusted with the making of diplomatic representations cannot try an action. If a foreign Government ship has been involved in a collision at sea due, as alleged, to the negligence of her captain and crew, the foreign Government has only to dispute liability to render further diplomatic correspondence a waste of time.

My Lords, it is not in doubt that an action in personam against a foreign Government will not be entertained in our Courts unless that Government submits to the jurisdiction. The rule was founded on the independence and dignity of the foreign Government or sovereign, or, to use the language of the future Lord Esher, delivering judgment in the great case

[1938]		516
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

of The Parlement Belge (1): "the real principle on which the exemption of every sovereign from the jurisdiction of every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity - that is to say, with his absolute independence of every superior authority." This immunity, be it noted, has been admitted in all civilized countries on similar principles and with nearly the same limits. It had been by implication admitted in this country by the statute 7 Anne, c. 12, passed in consequence of the taking of the Russian Ambassador from his coach and his imprisonment under the old law by a private suitor. The statute has always been regarded as merely declaratory of the common law. The settled practice of the Court to take judicial notice of the status of any foreign Government (and it may be added of its ambassador) was finally established in this House in the case of Duff Development Co. v. Government of Kelantan. (2) The present Government of the Republic of Spain has been recognized as being an independent sovereign State.

The immunity of a foreign Government and its ambassador as regards property does not stand on the same footing. The statute of Anne protects the goods and chattels of "the ambassador or other public minister .... received as such .... or the domestic or domestic servant of any such ambassador or other public minister." It is clear, I think, that the property in the goods and chattels would have to be established if necessary in our Courts before the immunity could be claimed. The ambassador could not be sued in trover or detinue; but if the property were not in his possession and he had to bring an action to recover it I am of opinion that he would have to prove in the usual way that the goods were his property. Speaking for myself I think the position of a foreign Government is the same. There is, I think, neither principle nor any authority binding this House to support the view that the mere claim by a Government or an ambassador or by one of his servants would be sufficient to bar the jurisdiction of the Court, except

(1) 5 P. D. 197, 207.

(2) [1924] A. C. 797.

[1938]		517
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

in such cases as ships of war or other notoriously public vessels or other public property belonging to the State. Professor Dicey has been relied on in favour of another view; but his proposition, founded on existing authorities, was that "an action or proceeding against the property" of a foreign sovereign or an ambassador or his suite was for the purpose of the general rule "an action or proceeding against such person" (Dicey, Chapter IV., Rule 52). He did not (as he showed in the notes to the rule) mean by this that an action against property claimed by such a person is beyond the jurisdiction of our Courts. An independent sovereign sued for breach of promise of marriage in our Courts can indeed claim to be outside of our jurisdiction; but there is no authority for the view that if he wrongfully obtained possession of valuable jewellery in this country, and it was in the hands of a third person, he could claim to stay proceedings by the rightful owner against that person to recover possession of the jewellery merely by stating that he claimed it. To come within Professor Dicey's rule he would in my opinion be bound to prove his title.

The result so far, in my opinion, is that whilst in this country no action can be brought against a foreign Government or its accredited representative or persons who may be described as belonging to his suite, still, if the foreign Government (I need not further mention the other persons with a right to immunity) wishes to recover property in the hands of some third party, an action must be brought in the usual way and there must therefore be a submission to the jurisdiction up to the judgment. Whether the Government has by that submission submitted to execution for costs under the judgment on its property in this country is not yet settled: Duff Development Co. v. Government of Kelantan. (1) If the foreign Government wishes to recover property in this country, I am of opinion that it must, subject to certain exceptions, prove its case. If it is, rightly or wrongly, in possession of property in this country, no action can be brought against it by persons claiming title to or any interest in such property.

(1) [1924] A. C. 797, 810, 819, 822, 830.

[1938]		518
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

I now approach one of the main questions involved in this appeal: What is the position as regards an action in rem in relation to a ship lying in a British port or in British waters which at the date of the writ happens to be in the possession of a foreign Government? In the present case two additional facts should be remembered: first, that the Cristina, before seizure on behalf of the Spanish Government, was an ordinary steamship employed in commerce, and, secondly, that she was registered at Bilbao and sailed under the Spanish flag.

The leading authority in this country is the above mentioned case of The Parlement Belge (1) decided in the year 1880 by James, Baggallay and Brett L.JJ. overruling Sir R. Phillimore. It related to a Belgian steam-packet plying between Dover and Ostend belonging to the Belgian Government, manned by commissioned officers and employed to carry the mails as well as passengers and cargo. The trial judge, Sir Robert Phillimore, had decided that the action would lie because the ship was employed in commerce. In the Court of Appeal it was not in dispute that ships of war belonging to a foreign Government are exempt from our jurisdiction, and the elaborate judgment delivered by Brett L.J. was devoted to a consideration of the principles on which immunity could properly be based in order to determine whether public ships could claim the same immunity. As I read the judgment, which largely followed the reasoning of a remarkable judgment by Marshall C.J. in the Supreme Court of U.S.A. in The Exchange (2) two things have to be established to found the immunity, first, that to permit the action to proceed would be incompatible with the royal dignity of the foreign sovereign or Government, and secondly, that the immunity was one universally recognized in foreign countries. I would myself prefer to say "almost universally" recognized, for a few exceptions would not, I think, affect the matter; but I hold a strong opinion that the Court of Appeal was right in insisting as a condition of immunity on the adherence of other foreign Governments to the same rule as to immunity. In relation to such a rule as the one now under consideration,

(1) 5 P. D. 197.

(2) 7 Cranch, 116.

[1938]		519
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

the word "comity," whatever may be its defects in regard to other rules of private international law, has a very powerful significance. Neither justice nor convenience requires that a particular State should decline to grant justice to its own nationals who have been injured by ordinary commercial vessels belonging to foreign Governments, if those Governments are not willing to extend a similar immunity to the similar vessels of the first State. Nor can anything much more absurd be imagined than that, for example, England should decline to give legal redress against a Spanish trading ship belonging to that Government while such an action would be allowed to proceed if the ship were found in port at Genoa, or indeed, for all we know, at Valencia.

Having thus laid down the principles, the judgment proceeds to deal with the question whether the Parlement Belge was within them; and the conclusion was in these words (1): "The property cannot upon the hypothesis be denied to be public property; the case is within the terms of the rule; it is within the spirit of the rule; therefore we are of opinion that the mere fact of the ship being used subordinately and partially for trading purposes does not take away the general immunity." My Lords, I cannot myself doubt that, if the Parlement Belge had been used solely for trading purposes, the decision would have been the other way. Almost every line of the judgment would have been otiose if the view of the Court had been that all ships belonging to a foreign Government even if used purely for commerce were entitled to immunity, and the same is true as regards the judgment of the Supreme Court of the U.S.A. I must admit that some judges have taken another view; and the decision of the Court of Appeal in The Porto Alexandre (2)is a clear decision in a sense opposite to the opinion I have expressed. After much consideration I can only express my own conclusion. The judgments in The Porto Alexandre (2) seem to me to have omitted any consideration of what I deem to be a vital point - namely, the fact that other countries while they admit the immunity as regards ships of war and other

(1) 5 P. D. 220.

(2) [1920] P. 30.

[1938]		520
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

public ships have not been at all agreed that the same immunity ought to be granted to ships and cargoes engaged in ordinary trading voyages.

It is objected that an action in rem is one in which the foreign Government, if in possession of the ship or if it has an interest in the ship, is impleaded. That I think in a sense is true; but I do not think many competent jurists are of opinion that in such a case anything more is sought, or at any rate can be obtained, than a remedy against the res. When Sir Robert Phillimore, equally distinguished as a judge in maritime and in international law, decided in The Parlement Belge (1) (contrary to his first opinion) that the proceeding in rem should proceed, he was not deciding that a personal remedy could be enforced against the King of Belgium. For my part I can see no sufficient reason for not following in the case of a State-owned vessel, being neither a ship of war nor in any true sense a vessel publicis usibus destinata, the decision of Sir Robert Phillimore. The effect would be that these State-owned ships would be treated as exceptions to the general rule to this extent, that proceedings against the ships themselves might be brought and prosecuted to a conclusion. Other exceptions are to be found in cases where proceedings are brought and continued for administration of a trust, or an estate, or for the winding-up of a company, even though a foreign Government is interested: Larivière v. Morgan (2); In re Russian Bank for Foreign Trade. (3) Moreover no Court has yet held that a foreign Government can object to an action against a company in which it owns a number of shares.

I hesitate to take the view that a requisitioning decree relating to all vessels registered in an important port, whether large or small, whether built for pleasure or profit, is itself sufficient evidence of an intention to devote the vessels to public uses. On the other hand, there are special circumstances in the present case. The Government of Spain is

(1) 4 P. D. 129.

(2) (1872) L. R. 7 Ch. 550; (1875) L. R. 7 H. L. 423, 430.

(3) [1933] 1 Ch. 745, 769.

[1938]		521
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

engaged in civil war and is entitled to take exceptional and drastic measures to defend itself. The ships mentioned in the requisitioning decree are Spanish ships. There may be public uses for any of such ships, e.g., in carrying stores, munitions, men, orders and the like for the purposes of defence or attack. On the whole I think the circumstances of the case justify the inference that the Cristina is intended to be used for some of such purposes, and is therefore brought within the description publicis usibus destinata. She is, as already stated, in the possession of the Spanish Government. On these grounds I think she is entitled to the immunity claimed, and this is sufficient to dispose of the appeal.

My Lords, I have indicated my unwillingness to follow what I must admit to be the recent current of authority in our Courts as regards State-owned trading ships. In what follows I shall merely be indicating the opinion I have formed - one which I believe is shared by many judges and by nearly all persons engaged in maritime pursuits - that it is high time steps were taken to put an end to a state of things which in addition to being anomalous is most unjust to our own nationals.

Half a century ago foreign Governments very seldom embarked in trade with ordinary ships, though they not infrequently owned vessels destined for public uses, and in particular hospital vessels, supply ships and surveying or exploring vessels. There were doubtless very strong reasons for extending the privilege long possessed by ships of war to public ships of the nature mentioned; but there has been a very large development of State-owned commercial ships since the Great War, and the question whether the immunity should continue to be given to ordinary trading ships has become acute. Is it consistent with sovereign dignity to acquire a tramp steamer and to compete with ordinary shippers and ship-owners in the markets of the world? Doing so, is it consistent to set up the immunity of a sovereign if, owing to the want of skill of captain and crew, serious damage is caused to the ship of another country? Is it also consistent to refuse to permit proceedings to enforce a right of

[1938]		522
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

salvage in respect of services rendered, perhaps at great risk, by the vessel of another country? Is there justice or equity, or for that matter is international comity being followed, in permitting a foreign Government, while insisting on its own right of indemnity, to bring actions in rem or in personam against our own nationals?

My Lords, I am far from relying merely on my own opinion as to the absurdity of the position which our Courts are in if they must continue to disclaim jurisdiction in relation to commercial ships owned by foreign Governments. The matter has been considered over and over again of late years by foreign jurists, by English lawyers, and by business men, and with practical unanimity they are of opinion that, if Governments or corporations formed by them choose to navigate and trade as ship-owners, they ought to submit to the same legal remedies and actions as any other shipowner. This was the effect of the various resolutions of the Conference of London of 1922, of the Conference of Gothenburg of 1923 and of the Genoa Conference of 1925. Three Conferences not being deemed sufficient, there was yet another in Brussels in the year 1926. It was attended by Great Britain, France, Germany, Italy, Spain, Holland, Belgium, Poland, Japan and a number of other countries. The United States explained their absence by the statement that they had already given effect to the wish for uniformity in the laws relating to State-owned ships by the Public Vessels Act, 1925 (1925, c. 428). The Brussels Conference was unanimously in favour of the view that in times of peace there should be no immunity as regards State-owned ships engaged in commerce; and the resolution was ratified by Germany, Italy, Holland, Belgium, Esthonia, Poland, Brazil and other countries, but not so far by Great Britain. (Oppenheim, International Law, 5th ed., vol. i., p. 670.)

It must not be supposed that all the countries attending the Conferences I have referred to were bound by their municipal laws to grant the immunity in question. There is no doubt that the practice as to the immunity of State-owned merchant ships has been and still is far from uniform (Oppenheim,

[1938]		523
A.C.	COMPANIA NAVIERA VASCONGADO v. S.S. CRISTINA. (H.L.(E.))	Lord Maugham.

vol. i., p. 669). France and Belgium, for example, grant only a limited immunity, and Italy no immunity at all. I have not been able to ascertain the position taken up by Spain. The Soviet Republic has apparently adopted the admirable practice of owning its merchant ships through limited companies, and does not claim - even if it could, which for my part I should doubt - any immunity whatever in relation to such ships.

I should add that it appears that the United States Courts still adhere to the practice of granting immunity to foreign State-owned ships engaged in commerce. The statute above referred to (1925, c. 428) permits (s. 1) actions to be brought for damages "caused by a public vessel of the United States and for compensation for towage and salvage services including contract salvage rendered to a public vessel of the United States." This, it will be noted, does not refer in terms to State-owned vessels engaged in trade, but in other respects it extends much further than many countries would be prepared to go, and s. 5 of the statute gives a right of action under the Act to nationals of a foreign Government only if it is proved that such Government "under similar circumstances allows nationals of the United States to sue in its Courts." It would seem that the Legislature of the United States, like that of all or nearly all other civilized countries, is disposed to the view that the immunity of State-owned private vessels ought not to be continued.

A number of other points were ably argued for the appellants, and I have not dealt with them only because I am unable usefully to add anything on those points to what has fallen from my noble and learned friend Lord Wright. I concur in the proposed motion.

Appeal dismissed.

Solicitors for appellants: Ince, Roscoe, Wilson & Glover.

Solicitors for respondents: Petch & Co.