The Tervaete
| Jurisdiction | England & Wales |
| Judgment Date | 12 July 1922 |
| Date | 12 July 1922 |
| Docket Number | Case No. 101 |
| Court | Court of Appeal |
Shipping - Collision - Foreign State-owned Vessel - Maritime Lien - Vessel sold into private Ownership - Jurisdiction - Immunity from Arrest.
Damage occasioned by collision with a foreign state-owned vessel does not impose a maritime lien upon the vessel, and if the vessel be subsequently sold into private ownership she is not then liable to arrest in an action in rem.
APPEAL from a decision of Sir Henry Duke P. sitting in Admiralty, dismissing a motion to set aside a writ in an action in rem.F1
The appellants, defendants in the action, were the owners of the steamship Tervaete; the respondents were the owners of the steamship Lynntown.
The action was brought to recover damages in respect of a collision which took place between the Lynntown, a British vessel, and the Tervaete on May 18, 1920, in the port of Bonanza, on the Guadalquivir River. At that time the Tervaete belonged to the Government of the King of the Belgians and was being run as a coal ship for public purposes. After the collision she was sold by the Belgian Government into private ownership, and at the time of the commencement of the present proceedings she was the property of the Société Anonyme Belge d'Armement et de Gérance. The plaintiffs issued and served their writ on January 10, 1922, the Tervaete being then in Barry Dock; but they refrained from arresting her in consideration of an undertaking by the solicitors for the defendants to enter an appearance and put in bail. Appearance was entered under protest, and a motion was then set down by the defendants to discharge the solicitors' undertaking and to set aside the writ.
Duke P. held that a foreign state by its authorized agents could impose a lien upon one of its public ships, and that the lien might be enforced if it could be done without directly or indirectly impleading the foreign state. He was of opinion that the maritime lien in the present case was capable of being enforced without any assertion of jurisdiction over the Belgian state or its property and accordingly dismissed the motion. The defendants appealed.
Bateson K.C. and E. Aylmer Digby for the appellants. The Court had no jurisdiction to entertain the action. As a state-owned vessel is immune from arrest no maritime lien can attach to her, and if it never attached it cannot revive when the vessel is sold into private ownership. A maritime lien does not attach in every case of collision — e.g., collisions caused through the barratrous acts of the master or, before the
[SCRUTTON L.J. This collision took place in a Spanish port; before the Admiralty Court Act of 1861 the Court would not have entertained such an action: The Ida.F3]
No. It has, however, been held that Alexandria and Algiers are “on the high seas,” because they are not within the body of a county: The Mecca.F4
A maritime lien is not a lien at all; it is a claim to priority involving an action in rem and therefore impleads the owner of the res. It was defined in The Bold BuccleughF5 as “a claim or privilege to be carried into effect by legal process”; and in Currie v. M'KnightF6 Lord Watson described it as a remedy against the corpus of the offending ship: see also The DictatorF7 and The Ripon CityF8, where the nature of a maritime lien was fully discussed. The collision with the Lynntown gave her owners no claim against the then owners of the Tervaete which could be carried into effect by legal process; and Brett L.J. said in The Parlement BelgeF9 that “the property cannot be sold as against the new owner, if it could not have been sold as against the owner at the time.” Similarly in The CastlegateF10 Lord Watson said that the general principle of maritime law was that “inasmuch as every proceeding in rem is in substance a proceeding against the owner of the ship, a proper maritime lien must have its root in his personal liability”: and Sir Francis Jeune in The UtopiaF11 made similar observations. The President, therefore, was wrong in holding that there was a maritime lien capable of being given effect to without impleading the foreign state. A dormant maritime lien attaching to a state-owned vessel necessarily diminishes the value of the state's property. A maritime lien is, in the words of Barnes J. in The Ripon CityF12, a jus in re aliena, and to allow such a lien to attach at all would be a subtraction from the absolute property of the owner. The cases in which there have been cross-claims against a foreign sovereign or sovereign states — e.g., The NewbattleF13 — stand in a different category; for if a foreign sovereign sues in a British Court he submits himself to the jurisdiction of the Court, and the Court naturally will see that justice is done. If, therefore, there is a counterclaim or cross-action the Court, if necessary, will order the foreign sovereign to give security: The Newbattle.F13 While there is no English authority on the question at issue, it arose recently in the United States, and the Supreme Court decided by a majority that no maritime lien attached in the case of collision with a Government-owned vessel: United States of America, Owners of the Western Maid v. Auxiliary Schooner Liberty and Steamship Carolinian.F14
[Reference was also made to The AlineF15 and, on the position of requisitioned vessels, The Broadmayne.F16]
C. R. Dunlop K.C. and Dumas for the respondents. There are two questions involved. Has the Admiralty Court jurisdiction to entertain the action at all, and, if it has, is there any ground why it should refuse to do so? As regards the locus, there can be no question that the
[BANKES L.J. In The NewbattleF22 the Court said it could not order the vessel to be seized.]
No, but the foreign sovereign was compelled to give security to answer the cross-action: see also Strousberg v. Republic of Costa Rica.F23 In Magdalena Steam Navigation Co. v. MartinF24, in which the position of an ambassador was considered, the case appears to have proceeded on the footing that the remedy was in suspension.
[SCRUTTON L.J. referred to Musurus Bey v. Gadban.F25]
On the second point — namely, whether the Court ought to exercise jurisdiction, it will do so unless a claim of sovereignty is asserted, and the claim must be asserted by the foreign sovereign or some one on his behalf. It is not suggested by the secretary to the Belgian ambassador that the Belgian Government objects to the action against the Tervaete; the affidavit in support of the motion to set aside the writ is made by the Belgian Vice-Consul at Cardiff acting on behalf of the appellants, a commercial firm. The President was right in his conclusion that the maritime lien could be enforced without impleading the foreign Government. The date when the action is brought and not the date of the contract or tort is the material date: Munden v. Duke of Brunswick.F26 The rule in The Parlement BelgeF27 is not infringed by the present action; and the dictum of Brett L.J. in that case, relied on by the appellants, is obiter, and further had reference to a different state of facts — the Lora Justice was discussing whether a lien could attach to a ship in the hands of a subsequent owner when there was no negligence on the servants of the owners at the time of the collision.
[Reference was also made to The TiconderogaF28 and The Porto Alexandre.F29]
Digby in reply. The fallacy in the respondents' case is their contention that there is a distinction between the case of an action against the British Crown and an action against a foreign sovereign or state, and that in the latter case the Court merely declines to exercise jurisdiction, while in the former it is admitted that the Court has no jurisdiction to entertain the action at all. Both cases stand on the same footing. There is no jurisdiction in either case: see The ConstitutionF30, where the defendants being a foreign state it was held that the Court had no jurisdiction to entertain the action: see also the report of The Parlement Belge in the Admiralty CourtF31, where the Attorney-General's protest is set out, from which it appears that the point taken was absence of jurisdiction.
July 12. The following judgments were read:—
BANKES L.J. The material facts lie in a small compass. In May, 1920, a collision occurred between the respondents' vessel, the Lynntown, and the Tervaete, which at that time was the property of the Belgian Government and employed on Government service. Subsequently to the collision the Belgian Government transferred the Tervaete to a private owner, and after she had been so transferred she came into Barry Dock. The respondents contend that as a result of the collision a maritime lien attached to the Tervaete, which now that she is private property and is found within the jurisdiction they are entitled to enforce by proceedings...
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