Owners of the Philippine Admiral v Wallem Shipping (Hong Kong) Ltd (The Philippine Admiral)
| Jurisdiction | UK Non-devolved |
| Judgment Date | 05 November 1975 |
| Date | 05 November 1975 |
| Court | Privy Council |
Conflict of Laws - Sovereign immunity - Action in rem - State-owned merchant ship engaged in ordinary trade - Ships' Names - Philippine Admiral
By a Treaty of 1956 Japan agreed with the Republic of the Philippines to make available a sum of U.S. dollars by way of reparations for damage done to Filipino property during the Second World War. In 1957 a Raparations Law was enacted in the Philippines establishing a Reparations Commission to administer the acquisition, utilisation and distribution of reparations goods and services. The commission granted an application by L. for an ocean-going ship. In 1960 the commission was registered as the sole owner of the vessel, but the commission transferred her to L. as vendee conditionally upon payments of instalments as they fell due.
In May and September 1973, the first respondent brought two actions in rem in the Supreme Court of Hong Kong against the ship (Philippine Admiral)for goods supplied and disbursements made for the ship. In June 1973, the second respondent brought an action against the ship claiming damages for a breach of charterparty. The writs in each action were served on L. When the Government of the Republic of the Philippines heard of the actions against the ship and that an order had been made for her appraisement and sale, it applied to the court that the proceedings be set aside on the ground that the ship was the property of the government and was entitled to sovereign immunity. The Supreme Court decided the applications in favour of the government. The respondents appealed to the Full Court, who allowed the appeal.
On appeal to the Judicial Committee by the Government the Republic of the Philippines as owners of the Philippine Admiral: —
Held, dismissing the appeal, that although the theory of absolute immunity was applicable to an action in personam against a foreign sovereign state on a commercial contract it was inapplicable to an action in rem against a ship to which the “restrictive” theory should apply; that, since the Philippine Admiral was being operated as an ordinary trading ship and was likely to be so used while in the ownership of the sovereign state, it was immaterial that those in possession and control of the ship were subject to the provisions of the Reparations Law and the contract with the Reparations Commission and, accordingly, the writs could not be set aside and the actions stayed on the ground of sovereign immunity (post, pp. 232H–233E).
The following cases are referred to in the judgment:
Baccus S.R.L. v. Servicio Nacional del Trigo [
Canadian Conqueror, The (
Charkieh, The (
Compania Mercantil Argentina v. United States Shipping Board (
Compania Naviera Vascongada v. S.S. Cristina (The Cristina) [
Gagara, The [
Isbrandsten Tankers Inc. v. President of India (
Jupiter, The (No. 1) [
Mighell v. Sultan of Johore [
Navemar, The (
Parlement Belge, The (
Pesaro, The (
Porto Alexandre, The [
Republic of Congo v. Venne (
Republic of Mexico v. Hoffman (
Rich v. Naviera Vacuba S.A. (
Schooner Exchange, The (
Scotia, The [
Sultan of Johore v. Abubakar Tunku Aris Bendahar [
Swiss Israel Trade Bank v. Government of Salta [
Thai-Europe Tapioca Service Ltd. v. Government of Pakistan, Directorate of Agricultural Supplies [
U.S.A. and Republic of France v. Dollfus Mieg et Cie. S.A. and Bank of England [
The following additional cases were cited in argument:
Amazone, The [
Andrea Ursula, The [
Annette, The; The Dora [
Arantzazu Mendi, The [
Ardennes. The [
Briggs v. Light Boats (
Broadmayne, The [
Brown (Peter) v. S.S. Indochine (
Chung Chi Cheung v. The King [
Crimdon, The (
Dessaules v. Republic of Poland [
Duff Development Co. Ltd. v. Government of Kelantan [
Gemma, The [
Grunfeld v. United States of America [
Haile Selassie v. Cable and Wireless Ltd. [
Juan Ysmael & Co. Inc. v. Government of Indonesia [
Kahan v. Pakistan Federation [
Krajina v. Tass Agency [
Luther (A.M.) & Co. v. Sagor & Co. (No. 2) [
Mellenger v. New Brunswick Development Corporation [
Newbattle, The (
Quillwark, The (
Rahimtoola v. Nizam of Hyderbad [
Rainbow, The [
Ripon City, The [
St. Merriel, The [
Strousberg v. Republic of Costa Rica (
Tervaete, The [
Tolten, The [
Twycross v. Dreyfus (
Vavasseur v. Krupp (
Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes (
Zarine v. S.S. Ramava (Owners) [
Zoernsch v. Waldock [
APPEAL (No. 13 of 1974) from a judgment (April 26, 1974) of the Full Court of the Supreme Court of Hong Kong (Huggins, McMullin and Leonard JJ.) allowing appeals by the respondents. Wallem Shipping (Hong Kong) Ltd. and Telfair Shipping Corporation, against orders made on December 14 and 17, 1973, by the Supreme Court of Hong Kong in its Admiralty Jurisdiction (Briggs C.J.) setting aside, on interlocutory applications made by the appellants, the owners of the ship Philippine Admiral, on the ground that the ship was the property of the Government of the Republic of the Philippines, a recognised foreign independent state, the writs of summons and all subsequent proceedings in three actions in rem commenced by the respondents against the ship.
The facts are stated in the judgment of their Lordships.
T. H. Bingham Q.C. and David Sullivan Q.C. for the appellants.
Anthony Evans Q.C. and Ian Hunter for the respondents.
November 5, 1975. The judgment of their Lordships was delivered by LORD CROSS OF CHELSEA.
This is an appeal from a judgment of the Full Court of the Supreme Court of Hong Kong (Huggins, McMullin and Leonard JJ.) given on April 26, 1974. By it the court allowed appeals by the respondents Wallem Shipping (Hong Kong) Ltd. and Telfair Shipping Corporation against orders made on December 14 and 17, 1973, by Briggs C.J. setting aside, on interlocutory applications made by the Government of the Republic of the Philippines, the writs of summons and all subsequent proceedings in three actions in rem started in 1973 by the respondents against a ship called Philippine Admiral. Two of the actions (Nos. 103 and 139 of 1973) are actions brought by the first respondents (hereinafter called “Wallem”) for payment for goods supplied and disbursements made for the ship. The third (No. 106 of 1973) is an action brought by the second respondents (hereinafter called “Telfair”) for damages for breach of a charterparty relating to the ship dated December 21, 1972. In actions Nos. 103 and 139 the writ is addressed to the owners and all others interested in the ship and in No. 106 to the owners of the ship. In each case the writ was served on the Liberation Steamship Company Inc. (hereinafter called “Liberation”) a company incorporated in the Republic of the Philippines which had been operating the ship under the terms of an agreement for the ship's conditional sale to it by the Reparations Commission, an agency of the Government of the Republic, which was at all material times the owner of the ship.
The facts of the case which were not in dispute in any material particular are set out at length in the judgment of Huggins J. They may be summarised as follows. By a Treaty made in 1956 between the Republic of the Philippines and Japan the latter country agreed to make available a total sum of 550 million U.S. dollars by way of reparations for damage done to Filipino property during the Second World War. Of this sum 500 million U.S. dollars was to be provided in the form of such capital goods and services as might be requested by the Philippine government and agreed by the Japanese government. In 1957 a Reparations Law (No. 1789) was enacted in the...
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