Forth Tugs Ltd v Wilmington Trust Company
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1985 |
| Docket Number | No. 29. |
| Date | 12 July 1985 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Wylie.
JurisdictionPersons subjectOwnership of heritable propertyWhether necessary that subjects capable of being attached in satisfaction of a decreeUse of subjects for consular purposes only by sovereign stateState Immunity Act 1978 (cap. 33), sec. 13 (2), (3), (4), (5), (6)1.
An admiralty action in rem and in personam againstinter alios the United States of America as the owners of cargo on board a vessel to which salvage services had been rendered proceeded as an action in personam on the ground that these defenders were subject to the jurisdiction of the Court of Session as inter alia the infeft proprietors of heritage in Scotland. These defenders pleaded that they were not so subject to that jurisdiction because it was necessary that the heritage be capable of being attached in satisfaction of any decree which might be pronounced. It was agreed between the parties that the relevant subjects were used at the date of
citation of the defenders only for consular purposes in Scotland and were therefore immune from diligence by sec. 13 of the State Immunity Act 1978. After a preliminary proof the Lord Ordinary repelled these defenders' plea. These defenders reclaimedHeld (1) that this ground of jurisdiction was based on the ownership of any heritable rights which might be available to satisfy a decree and was based on technical rather than practical effect; there was also a wider principle that the protection of the law required submission to it.
Cameron v. Chapman (1838) 16 S. 907, Haldane v. York Building CompanyUNK (1724) Mor. Dict. 4818discussed.
Ferrie and Fairley v. Woodward (1831) 9 S. 854,McArthur v. McArthurUNK (1842) 4 D. 354, Fraser v. Fraser and HibbertUNK (1870) 8 M. 400, Caledonian Fish-Selling and Marine Stores Co. Ltd. v. Allard HewsonSC1970 S.C. 168applied.
(2) That in construing sec. 13 (6) (b) of the 1978 Act, Parliament must be deemed to have been aware of the grounds on which the Court of Session exercised jurisdiction and it was not to be assumed that a ground would be excluded sub silento; it was also necessary to consider the scheme of the Act and the distinction between "adjudicative" and "enforcement" jurisdiction.
Dictum of Lord Diplock in Alcom Ltd. v. Republic of ColombiaELR [1984] A.C. 580 applied.
(3) That the Act provided that states were not to be immune from the adjudicative jurisdiction of the court in the circumstances specified in secs. 3 to 11, whereas sec. 13 dealt with procedure and the "enforcement" jurisdiction; sec. 13 (6) (b) could only apply where a certificate had been issued after decree in terms of sec. 13 (5); if the defenders' construction were correct, then the only grounds for adjudicative jurisdiction could be the ownership of property used for commercial purposes, which was unlikely.
(4) That even if the relevant test were practical effectiveness and if sec. 13 (6) (b) were relevant at this stage, it could not be affirmed at this stage that the subjects would not be available in execution at the date of decree.
Observations per Lord Cameron on the histories of, and the differences between, the ownership of heritage and the arrestment of moveables as grounds of jurisdiction.
Forth Tugs Limited, as owners of the tugs "Almond" and "Kelty", Royal Bank Leasing Limited, as owners of the tugs "Boquhan" and "Duchray", and the masters and crew of these four tugs each raised an admiralty action in rem and in persona against Wilmington Trust Company, the owners of the tanker "Williamsburgh", the owners of, and other parties interested in the oil cargo on board that tanker, the United States Department of the Navy, the United States Department of Energy, the United States of America as represented by the United States Department of Justice, and New Hampshire Insurance Company a company incorporated in the U.S.A. and having a place of business at 120 Fenchurch Street, London.
So far as relevant to this report the pursuers concluded for payment to them by the second, third, fourth, fifth and sixth-named defenders jointly and severally or severally of the sum of ninety thousand eight hundred and fourteen pounds and eight one pence sterling (90,814.81) with interest thereon at the rate of 12 per centum per annum from 20th March 1981 until payment and for the expenses of the action.
The following narrative is taken from the opinion of the Lord President: "This action began as an admiralty action in rem andin personam in which the pursuers seek payment in respect of salvage services which they claim to have rendered to the tanker "Williamsburgh" in the Firth of Forth on 20th March 1981. The vessel was carrying a valuable cargo of oil and the pursuers' objective was to obtain satisfaction partly from the owners of the vessel, and partly from the owners of its cargo of oil, whoever they might be. In circumstances which have been fully explained in the opinion of the Lord Ordinary to which I shall turn in due course, the pursuers refrained from arresting the tanker and her cargo and the tanker sailed away to America. It was thought, it seems, that all those with an interest in the tanker and its cargo, and a guarantor, had prorogated the jurisdiction of the Court of Session. It later appeared, however, that the owners of the cargo were the United States of America and although it was argued unsuccessfully in the Outer House that the prorogation of jurisdiction by solicitors purporting to act for the owners of the cargo was binding upon the United States of America it is now accepted that it was not. The pursuers' claim against the owners of the vessel, the first-named defenders, has been settled and the action is now, in the events which have happened, essentially an action in personam against the cargo owners, the United States of America, the fifth-named defenders, upon whom the summons was served when their interest in the cargo had been identified. In the defences lodged on behalf of the fifth-named defenders (and on behalf of the second-named defenders "The owners and other parties interested in the oil cargo" and on behalf of the third and fourth-named defenders who are departments of government of the United States of America) no attempt is made, at this stage at least, to enter into the merits of the pursuers' claim and the position taken is reflected in two pleas-in-law both of which are of a preliminary nature. The pleas are in the following terms"1. No jurisdiction in rem andin personam. 2. The United States of America as designed herein, as also the second, third, fourth and fifth-named defenders being entitled, in the circumstances herein condescended upon, to immunity from the jurisdiction of the Court of Session in respect of the present proceedings, the action should be dismissed insofar as directed against the said defenders." It will be understood that the first plea-in-law for these defenders is concerned with the question whether the United States of America are subject to the jurisdiction of the Court of Session at common law. The second plea-in-law is concerned with the separate question whether the United States of America are, in any event, immune from the jurisdiction which the Court of Session would otherwise possess by virtue of the provisions of the State Immunity Act 1978. By the agreement of the parties a preliminary proof took place before the Lord Ordinary on the first of these two pleas only. In the events which had happened the live issue was whether, ignoring the issue of state immunity, the Court of Session has jurisdiction in personam over the United States of America."
The pursuers averred that the fifth defenders were heritable proprietors of premises at 3 Regent Terrace, Edinburgh. The pursuers pleadedinter alia:"3. The pursuers having rendered salvage services to the defenders and being entitled to payment therefor in the amount of the reasonable sums sued for, decree therefor should be pronounced as concluded for."
The second, third, fourth and fifth defenders pleaded inter alia:"1. No jurisdiction in rem and in personam."
A preliminary proof was heard on inter alia the above defenders' first plea-in-law on 28th December 1984 before the Lord Ordinary (Wylie). The Lord Ordinary sustained said plea so far as it related to jurisdiction in rem and quoad ultrarepelled the plea.
The second, third, fourth and fifth defenders reclaimed, and the reclaiming motion was heard before the First Division on 19th June 1985.
At advising on 12th July 1985,
LORD PRESIDENT (Emslie).[His Lordship narrated the facts of the case in the passage set out above and continued.] The pursuers' first contention based on prorogation of the jurisdiction of this court failed, and need not be further noticed. Their second contention in support of the jurisdiction which they claimed was based upon the admitted fact that the United States of America are the heritable proprietors in possession of subjects at 3 Regent Terrace, Edinburgh. By joint minute it was agreed, however, that these subjects were used as the Consulate General of the United States in Scotland and the compearing defenders proved by a certificate granted by the Ambassador, presumably with section 13 (5) of the State Immunity Act 1978 in mind, that the subjects are used exclusively for the discharge of consular functions and are not in use or intended for use for commercial purposes. The contention for the compearing defenders was that it was not enough to establish jurisdiction against them merely to show that they are infeft proprietors in possession of these heritable subjects. The submission was that, if it should appear in any case that heritable property, even if it is held upon such a title and possessed in such a way, is not capable of being attached and being made available by means of diligence towards satisfaction of any decree in personam which the Court of Session may pronounce, this court has no...
To continue reading
Request your trial