THE PORTO ALEXANDRE

THE "PORTO ALEXANDRE"

([1920], P. 30)

Admiralty Public vessel-Immunity from process of arrest-Trading by public vessel

A vessel owned or requisitioned by a sovereign independent state and earning freight for the state, is not deprived of the privilege, decreed by international comity, of immunity from the process of arrest, by reason of the fact that she is being employed in ordinary trading voyages carrying cargoes for private individuals.

The Parlement Belge (1880) 5 P. D. 197 considered and applied.

APPEAL from a decision of Hill J. setting aside the writ in rem and all subsequent proceedings against the steamship Porto Alexandre.

The Porto Alexandre, formerly the German-owned steamship Ingbert, a vessel of 2,699 tons gross, by a decree of the Portuguese prize court of January 30, 1917, was adjudged a lawful prize of war. She had previously been requisitioned by the Portuguese Government and handed over to the Commission of Services of Transports Maritims and was being employed in ordinary trading voyages earning freight for the Government.

In September, 1919, she loaded a cargo of cork shavings for carriage to Liverpool under a bill of lading from which it appeared that the cargo was shipped by and consigned to the Portuguese Import and Export Co., (Ltd.). On September 13, when in the Crosby Channel at the entrance to the Mersey, the vessel got aground and salvage services were rendered to her by three Liverpool tugs, the Nora, Expert, ånd Torfreda. On September 16 a writ in rem was issued on behalf of the owners, masters, and crews of these tugs in respect of the services against "the owners of the Portuguese steamship Porto Alexandre, her cargo and freight." On September 24 the solicitors for the defendants accepted service of the writ and undertook to appear on behalf of the cargo owners, and on September 25 entered appearance "under protest for the owners and freight. On October 2 a motion was set down to set aside the writ and all subsequent proceedings on the ground that the Porto Alexandre and the freight "were and are the public national property of and/or requisitioned by and in the possession and public use and service of the Portuguese Government." The motion came before Hill, J., on October 20 and 27, 1919, and was supported by a communication from the

51

Argument for the appellants.

Portuguese chargé d'affaires to Lord Curzon, the Secretary of State for Foreign Affairs, who in turn communicated it to the learned judge, that the Porto Alexandre was "a state-owned vessel belonging to the Government of the Portuguese Republic."

5

Hill, J., in giving judgment said that he had arrived at his decision with the greatest reluctance. Upon the facts he was prepared to find, if it were necessary, that the Porto Alexandre was being used in ordinary commerce, and that the only interest of the Portuguese Government was in the earning of freight. But in his view the law as laid down in The Parlement Belge was that.a sovereign state could not be impleaded either by being served in personam or indirectly by proceedings against its property; and if that were the principle it mattered not how the property was being employed. His lordship continued: "I think, therefore, that this motion succeeds. upon the ground that it is established that this ship was the property of the Portuguese Government at the time of arrest and is now its property. It therefore follows that so far as the ship and freight are concerned the writ and all subsequent proceedings must be set aside, but the writ and all subsequent proceedings so far as the cargo is concerned will remain good. I have already, in previous cases, pointed out what I conceive to be very strong reasons why it is undesirable that cases should be withdrawn, as this is being withdrawn, from the courts, but I have only to assert now what I conceive to be the law." The plaintiffs appealed.

November 10. C. R. Dunlop, K. C., and J. B. Aspinall for the appellants. Although a sovereign ruler can not be impleaded even in respect of private transactions, international comity does not extend the same immunity to the property of states unless employed in the public service. The decision of the court of appeal in The Parlement Belge no doubt qualifies to some extent the views of Sir Robert Phillimore as expressed in the court below in that case and in The Charkieh. But the court of appeal, in reversing Sir Robert Phillimore, took a different view of the facts, and the case is not an authority for the proposition that a foreign state-owned merchant ship

5

5 P. D. 197.

(1879) 4 P. D. 129.

7 (1873) L. R. 4 A. & E. 59, 74.

SALVAGE

engaged on an ordinary mercantile voyage is immune from the process of arrest. The Parlement Belge was a mail boat, and although carrying passengers and cargo this was merely ancillary to her real employment, which was that of carrying the Belgian State mails. The correct view was that stated by Marshall, C. J., in an old American authority (U. S. Bank v. Planters' Bank ), that "when a Government becomes a partner in any trading company it devests itself, so far as concerns the transactions of that company, of its sovereign character." [The Prins Frederik was also referred to.]

9

D. Stephens, K. C., and A. W. Grant for the respondents were not called on.

BANKES, L. J.: This is an appeal from a decision of Hill, J., who made an order that the writ and warrant for arrest, and all subsequent proceedings against the Porto Alexandre and freight, be set aside, but the proceedings against the cargo should stand. The learned judge was only concerned with the question of the ship, and this appeal has only reference to the ship.

The vessel in question was on a voyage from Lisbon to Liverpool, and she ran aground in the Mersey, and three tugs were engaged to get her off. An action was brought, and the ship was arrested in respect of the services rendered to her by these tugs. The application which the learned judge granted was founded upon the contention that the vessel was the property of a sovereign state, the Republic of Portugal, and on that ground, that she was exempt from arrest. The conclusion of fact at which the learned judge arrived was that it had been established that the ship was the property of the Portuguese Government at the time of the arrest, and is still their property, and on that ground he made the order.

It is now contended that it is not sufficient for a sovereign or a sovereign state to allege that a vessel is the property of such sovereign or sovereign state, and that the allegation must go further and say the vessel is employed in the public service or on public service.

facts.

The facts with regard to the vessel are as follows: She, Statement was originally a German merchant vessel, and in August, 1916, she was requisitioned by the Portuguese Government. On August 11 what is called a passport was issued, which authorized the employment of the vessel and contains

53

of

notes upon it, indicating that during the period that the vessel was at the service of the Portuguese Government, for which she was requisitioned, her port of register should be Lisbon. There is also an indorsement on the passport stating that on January 30, 1917, she was adjudged a lawful prize of war. Mr. Dunlop has pointed out that the statement that she was adjudged a lawful prize of war leaves it doubtful whether she has become the actual property of the Portuguese Government, or whether she was merely detained pending the conclusion of peace. It would rather appear that the latter is the proper conclusion, because there is an affidavit by the Portuguese vice consul at Liverpool, who says that the vessel is, and has been, requisitioned by the Portuguese Government for the service of the State, and is employed under the orders of the Government. There is a further statement in writing by the Portuguese consul at Liverpool, in which he says in reference to this particular voyage that the freight on the cargo was paid before shipment and belongs solely and entirely to the Portuguese Government. In addition to that, there is a letter from the Portuguese chargé d'affaires, in which he states definitely that the Porto Alexandre is a public service vessel belonging to the Portuguese Government.

There is no reason to doubt the accuracy of the statements that have been made on affidavit in this casethat the vessel has been requisitioned under the order of the Portuguese Government, and that on the particular voyage she was carrying freight for that Government. Mr. Dunlop, however, contends that is not sufficient, because it is shown she was engaged in what he says was an ordinary commercial undertaking, as an ordinary trading vessel carrying goods for a private individual or a private company. The question is, whether it is possible in the circumstances of this case to distinguish it from The Parlement Belge,10 which was a decision of this court, and is binding upon us.

I gather from the judgment of Hill, J., and from what has been said by learned counsel, that this question is becoming one of growing importance. In the days when' the early decisions were given, no doubt what were called Government vessels were confined almost entirely, if not exclusively, to vessels of war. But in modern times sovereigns and sovereign states have taken to

10 5 P. D. 197.

THE PARLEMENT BELGE

owning ships, which may to a still greater extent be employed as ordinary trading vessels engaged in ordinary trading. That fact of itself indicates the growing importance of the particular question, if vessels so employed are free from arrest.

The function of this court in this particular case is to decide whether it is covered by The Parlement Belge." I think it is, and it is therefore not neccessary or desirable that the court should enter upon a discussion of the wider question at this stage, or consider the importance of other views that may be taken. There is very little difference between the material facts in The Parlement Belge and in the present case, and in my opinion The Parlement Belge is an authority which covers the present case. It is quite true that in many of the earlier cases the claim put forward, with regard to a particular ship, was that she was on public service and employed in the public service, and no doubt the statement so made was applicable to the particular case, and was made because it was applicable to the particular case, and the judgments were delivered in reference to the facts so stated. But in this case the court is bound by the decision in The Parlement Belge and the appeal must be dismissed with costs.

WARRINGTON, L. J.: I am of the same opinion. I think the case is clearly covered by the decision in The Parlement Belge 11, and, that being so, we have no alternative but to dismiss the appeal.

In the present case, the facts proved appear to me to amount to this: It is first proved that the ship in question is a public vessel, the property of the Portuguese Government; next it is proved by the affidavits that it is in their possession for the service of the State; and, thirdly, it is proved that it is employed under the orders of the Government. There is one passage in the judgment of Brett, L. J., in The Parlement Belge in which he is expressing what he considers to be the result of the judgment in Briggs v. Light Boats 12, an American case, of which he obviously approves and on which he founds his own conclusion. He says: "The ground of that judgment is that the public property of a Government in use for public purposes is beyond the jurisdiction of the courts of either

55