The El Condado (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 24 February 1939 |
| Docket Number | Case No. 77 |
| Date | 24 February 1939 |
| Court | Court of Session (Inner House) |
(Lord Jamieson, Lord Ordinary.)
(Lord Aitchison, Lord Justice-Clerk; Lord Mackay, Lord Pitman, Lord Wark).
Recognition — Of Insurgency — De facto Recognition of Insurgents as Effective Authority of Territory under their Occupation — Validity of Decrees of de jure Authority in Territory under de facto Authority.
Jurisdiction — Extraterritorial Effect of — Requisition of Ships Lying Abroad — Whether Ships different from other Moveable Property.
Jurisdiction — Foreign States — Exemption from — Jurisdictional Immunity and Conclusiveness of Claim to Possession — Legal Status and Effects of Legislation of de jure Government in respect of Territory occupied by Insurgents Recognised as the de facto Authority in the Territory in Question — Extraterritorial Effect of Decrees — Ships — Whether Differing from Other Moveable Property.
The Facts.—In this action, the Government of the Republic of Spain sued the National Bank of Scotland, Ltd., for payment of £1,000 in respect of loss alleged to have been sustained by the plaintiffs as the result of an interim injunction concerning the Spanish steamship El Condado. That injunction was granted in a previous action in July, 1937, in the Sheriff Court of Greenock at the instance of the Compañía General de Navegación, shipowners at Bilbao, for whom the defendants in the present action were cautioners. In November, 1937, the Sheriff Court recalled the injunction and dismissed the action on the ground of jurisdictional immunity. An appeal to the Court of Session was refused by consent. The facts of the case and the judgment of the Sheriff Court are set out infra, Case No. 90 (The El Condado (No. 1)).
The plaintiffs claimed damages on the ground that they had to pay the wages of a skeleton crew and dock dues while the ship was lying idle. They contended that they were the rightful possessors of the vessel. They referred, first, to a decree of June 28, 1937, enacted by the Republican Government of Spain, which provided that all vessels registered at Bilbao were requisitioned by and were at the disposal of the legitimate Government of the Republic. Secondly, the plaintiffs contended that, seeing that on July 10, 1937, the Spanish Consul at Glasgow, acting upon instructions from the Republican Government, had requisitioned the vessel, and that subsequently the vessel had been held for the Republican Government, it was inadmissible to question the validity of the requisition or the legality of their present position as possessors.
The defendants disputed the plaintiff's right of possession on the ground that the decree issued by the Republican Government was not enacted in accordance with the constitution of Spain, and that, in any event, it was ineffectual to attach property outside Spanish territory or territorial waters.
Held by the Court of Session (Outer House): that the action must be dismissed. The plaintiffs had no title to take possession of the El Condado and the interim interdict did not therefore result in any civil wrong to them.
I. Jurisdictional Immunity and Conclusiveness of Claim to Possession.—“It is convenient that I should examine a twofold argument presented for the pursuers to the effect that their right to possession cannot be challenged in this process. They maintained in the first place that this right had been recognised and decided in the Sheriff Court action and they plead that it is now res judicata. The process in that action is before me and I am satisfied that no such thing was decided, but that the action was dismissed because it impleaded a foreign Sovereign State. In his interlocutor the Sheriff-Substitute sustained pleas of ‘no jurisdiction’ stated for Larranaga and for the company and the alleged managing director. No similar plea was stated for the present pursuers, but the Sheriff-Substitute sustained a plea for them based on their right to requisition the ship having been exercised and the said right being an incident of the sovereignty of the Government of Spain. A perusal of his careful note makes it clear that it was because the requisition purported to have been exercised in virtue of a right claimed by a Sovereign State that he dismissed the action, but he did not decide and was not entitled to decide whether such a claim was well founded. No proof was led before him, but, dealing with an argument that the Republican Government were bound to prove the decree and that it was intended to apply to the El Condado, he says that a document produced under the signature of the Spanish Ambassador would be sufficient warrant for him to hold that the Spanish Government ‘intended’ the decree to apply. He, however, prefaces that by saying (59 Ll. L. Rep., at p. 121):
‘whether the requisition applies to the ship or whether the requisition gives right to possession, the mere allegation of the Spanish Government that they claim the right to possession gives them immunity from this judicial process.’
“That, in my opinion, was the basis of his judgment.
“The other branch of the argument was that, the pursuers having been in possession (a fact which it was admitted might have to be the subject-matter of a limited proof) the legality of such possession was not open to challenge. The argument appears to have proceeded on a misconception of the rule under which immunity from the jurisdiction of our Courts is afforded to a foreign Sovereign and his property. It was...
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Peer International Corpn v Termidor Music Publishers Ltd
... ... It is contrary to the overwhelming statement of judicial opinion, supported by those that have written on the subject to which I will refer. It is also contrary to public policy ... 32 The El Condado [1939] 63 L1.L Rep 330 , a decision of the Court of Session, was not referred to in the judgment of Atkinson J in the Lorentzen case. The facts can be distinguished, but statements as to the law are relevant and important. Lord ... ...
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