The Arantzazu Mendi

APPEAL from a decision of the Court of Appeal^F1 affirming an order of Bucknill J.^F2 setting aside, at the instance of the Nationalist Government of Spain, a writ in rem issued by the Republican Government of Spain under which they claimed to have possession of the steamship Arantzazu Mendi adjudged to them.

That vessel was a Spanish ship registered at Bilbao. After that port was captured by General Franco's forces she was requisitioned by the Republican Government. She was then on the high seas, and on August 11, 1937, on her arrival in London, her owners issued a writ in rem for possession, and in pursuance thereof the ship was arrested by the Admiralty Marshal in the Surrey Commercial Docks. To that writ the Republican Government entered a conditional appearance. On March 28, 1938, General Franco issued a decree requisitioning the ship in question and other vessels for public services. On April 11, 1938, the owners' possession action was discontinued, but the vessel still remained under arrest. On April 13 the managing director of the owners made a notarial declaration that he consented to the order of requisition and held the vessel at the disposal of the Nationalist Government. The master made a similar declaration. On the same day the Republican Government issued the present writ, which the Nationalist Government sought to set aside on the ground that it impleaded a foreign sovereign State which was unwilling to submit to the jurisdiction of the Court.

An issue being raised whether the Nationalist Government was a foreign sovereign State, Bucknill J. directed a letter to be sent to the Foreign Office to ascertain whether His Majesty's Government recognized the Nationalist Government. The material parts of the reply were as follows: “His Majesty's Government recognizes the Nationalist Government as a Government which at present exercises de facto administrative control over the larger portion of Spain. His Majesty's Government recognizes that the Nationalist Government now exercises effective administrative control over all the Basque Provinces of Spain. His Majesty's Government have not accorded any other recognition to the Nationalist Government. The Nationalist Government is not a Government subordinate to any other Government in Spain. The question whether the Nationalist Government is to be regarded as that of a foreign sovereign State appears to be a question of law to be answered in the light of the preceding statements and having regard to the particular issue or circumstances with respect to which the question is raised.”

On this Bucknill J. held that the Nationalist Government was, for the purposes of the present case, a foreign sovereign State, that it had done all that it could legally do to obtain possession of the ship consistently with the fact that she was already under arrest, and that the Nationalist Government was impleaded by the action as a party interested in the res. He accordingly set aside the writ and the warrant of arrest.

The Court of Appeal affirmed the decision of Bucknill J., holding that, having regard to the authorities, the answers of the Foreign Office required the Court to say that His Majesty's Government regarded the Nationalist Government of Spain as the Government of a foreign sovereign State. Further, even assuming that it was right to say that the Nationalist Government could not show that they were in possession of the ship, and that the legal possession was in the Admiralty Marshal, they had shown a sufficient interest in the ship for them to be compelled to come before the Court to defend that interest. They were therefore impleaded in the action, and, being a Government of a foreign sovereign State, were entitled to rely on...