Common Employment: A Vindication
| Date | 01 March 1939 |
| Published date | 01 March 1939 |
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00416.x |
| Author | Stephen Chapman |
COMMON EMPLOYMENT
29
I
With regard
to
the argument
that
the Nationalist Government
had
not
got possession of the ship, and therefore the
Cristina
rule
did not apply,
the judge said: “In my view the Nationalist Government has done all
that
it
can legally do to obtain possession of the ship consistently with the
fact
that
the ship
was
already under arrest by warrant of this Court.” The
Nationalist Government had in fact a limited possession exercised through
the ship’s master who represented himself
as
having taken possession
for them.
When
is
a state impleaded by the issue of a writ
in rem
against property
?
Bucknill,
J.
in
The
Arantzazu
Mendi
said that the Nationalist Government
was
impleaded by the action
“as
a party interested in the
res.”
What is a
sufficient interest
?
The point has recently had the attention of the Court
of Appeal in
Haile Selassie
v.
Cable
and Wireless Lid.
[rg38]
3
All E.R.
385,
where it appears to have been held that a mere claim to property is not
sufficient to enable a state to show that it is indirectly impleaded.
“
It
would
be
a strange result,” observed Greene, M.R., “if a person claiming
property in the hands of, or
a
debt alleged to be due by, a private individual
in this country were to be deprived of his right to have his claim adjudicated
upon
by
the courts merely because
a
claim to the property, or the debt,
had been put forward on behalf of a foreign sovereign.”
It
is important to
note that the Italian Government
was
not actually a party to these pro-
ceedings. Its claim appeared before the court merely
as
an item in the
defence put forward by the defendant. R.
Y.
JENNINGS.
[Since this note was written the Court of Appeal has upheld the judg-
ment of Bucknill,
J.
in the
Arantzazu
Mendi,
([1938]
4
All
E.R.
267).
Here,
the question whether the Nationalist Government had
a
sufficient interest
in the vessel to cause it
to
be impleaded by the writ,
was
more fully dealt
With.
It
was
admitted that they had neither ownership nor possession,
the latter being at all material times in the Marshall of the Admiralty
Court. Nevertheless, said Slesser,
L.
J.
they did have a “lesser interest,”
imposed by the requisition, and held for their benefit by the
master
and
owners. This
was
a sufficient interest for the Nationalist Government
to
be
compelled, unless they wished
to
see
that interest destroyed, to come
before the Court and defend
it.
R.
Y.
J.]
COMMON EMPLOYMENT
A
VINDICATION
This admirable Journal,
m
the course of its
first
two
volumes has
devoted no less than three articles
to
damning the doctrine of common
employment.
Dr.
Robson1
has
reflected that “the time has clearly
come when the doctrine
of
common employment should
be
abolished.”
Mr.
Gold’
has
discovered that
it
is
merely a judicial way of
assis-
ting
the Capitalist to grind the faces of the poor.
Mr.
Ungefl adds
his strictures in the light of
two
recent decisions’ which he finds even less
’
VOl.
I,
pp.
224-5.
’
VOl.
1,
pp.
225-30.
8
Vol.
2,
pp.
43-48.
4
Radcliffe
v.
Ribblc
Motor Services
Limited,
[1938]
2
K.B.
345;
Metcalfe
v.
L.P.T.B.,
[1938] 54
T.L.R.
678.
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