Compania Naviera Vascongado v Steamship "Cristina"

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^F1 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^F2 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^F3, 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^F4, it was held that an unarmed 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.^F5 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^F6 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^F7; The Messicano FN(4), and The Crimdon FN(5), none of these dealt 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^F10, 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 Foster for 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^F11 a vessel...