COUNSEL: Inskip K.C., Dumas and J. Ellis Cunliffe for the appellants
Bateson K.C. and F. Hinde for the respondents.

SOLICITORS: For the appellants: Ince, Colt, Ince & Roscoe.
For the respondents: Wm. A. Crump & Sons.

JUDGES: Bankes L.J., Warrington L.J. and Duke L.J.

DATES: 1919 Feb. 13, 14.
 

Admiralty – International Law – Jurisdiction – Impleading a Sovereign Power – Status of Esthonian Government – Provisional Recognition – De facto Independence – International Comity.

On a motion to set aside a writ in rem claiming possession of a vessel in the possession of the Esthonian Government the Court invited the assistance of the Foreign Office as to the status of the Esthonian National Council. The Attorney-General on behalf of the Foreign Office stated that His Majesty’s Government had, for the time being, and with all necessary reservations as to the future, recognized the Esthonian National Council as a de facto independent body and had received an informal diplomatic representative of the Provisional Government:-

Held, affirming the decision of Hill J., that such provisional recognition accorded, for the time being, to the Esthonian National Council the status of a foreign Sovereign; that to permit the arrest of the vessel would be contrary to principles of international comity, as it would compel the Esthonian Government, whose sovereignty was entitled to be respected, to submit to the jurisdiction of the British Courts; and that the writ and all subsequent proceedings must be set aside.

APPEAL from a decision of Hill J., sitting in Admiralty, setting aside a writ in rem and all subsequent proceedings against the steamship Gargara.

The facts, as found by the learned judge, were as follows:- The plaintiffs, described in the writ as the West Russian [*96] Steamship Co., Ld., on January 1, 1919, procured to be issued out of the Admiralty Court a writ in rem against “the steamship Gargara, now sailing under the name of the Kajak, and the parties interested in the said steamship.” In the affidavit to lead warrant of arrest the plaintiffs were stated to be a corporate body having their registered office at Petrograd and to be the true and lawful owners of the said steamship. The writ was endorsed with a claim for possession. On January 9 appearance under protest was entered and a summons was taken out asking that the writ, service, and all subsequent proceedings be set aside on the ground that the owners of the Gargara were the Esthonian Government. The matter having been adjourned into court, the summons was amplified by a notice of motion alleging (1.) that the Court had no jurisdiction; (2.) that, if it had, it ought in its discretion to refuse to entertain the suit. The grounds on which it was said the Court had no jurisdiction were (a) that the dispute was between two foreigners as to a foreign ship; (b) that the ship was the property and in the service of the Esthonian Government; and (c) that she had been properly and lawfully condemned as prize by a decree of the Esthonian Government.

It appeared from the affidavits filed on behalf of the plaintiffs that the plaintiff company purchased the Gargara in 1914, and she was registered in the name of the company as owners at Petrograd under the Russian merchant flag. During the earlier part of the war the vessel was under some form of requisition in the service of the Imperial Government, and afterwards, by arrangement with the company, in the service of the succeeding Government. The Bolshevik Government having come into power, on June 21, 1918, declared the whole of the Russian mercantile fleet to be national property and ordered the Gargara, then lying at Petrograd, to be repaired. In the autumn of 1918 the Bolshevik Government loaded a cargo of wood on the vessel, and sent her on a voyage to Copenhagen under the captain who had originally been appointed by the company together with some of the old crew and others put on board by the Bolshevik Government. In the course of this voyage it [*97] appeared that the Gargara put into Reval, where she was captured by the Esthonians.

From the affidavits filed on behalf of the Esthonian Government it appeared that the Gargara was flying the red flag of the Bolshevik Government and she was accordingly condemned as prize of war, not by bringing her before a Prize Court, but by a decree of the Government. She was then, under the name of the Kajak, registered at Reval as of Esthonian nationality and subject to the ownership of the Esthonian Republic. A new master was appointed by the Esthonian Provisional Government, and by their instructions a bill of lading, dated December 13, 1918, was signed by him for the cargo shipped by that Government to be delivered in London to their representative. The vessel, manned by a crew appointed by the Esthonian Government, then left under the Esthonian flag for London, where she arrived late in December.

The plaintiffs on December 14, from their branch office at Reval, had sent a protest to the Esthonian Government against the seizure of the Gargara, but without success, and accordingly the managing director, holding the company’s power of attorney, issued the writ, the subject of the present proceedings.

When the motion to set aside the writ came before the Court on January 20 the learned judge invited the assistance of the Foreign Office for information as to the status of the Esthonian Government. The law officers attended on January 27, and informed his lordship that His Majesty’s Government had (as indeed appeared from the correspondence between the Foreign Office and the Esthonian representatives, exhibited to the defendants’ affidavits) for the time being, provisionally and with all necessary reservations as to the future, recognized the Esthonian National Council as a de facto independent body; and His Majesty’s Government had accordingly received certain gentlemen as the informal diplomatic representatives of the Esthonian Provisional Government. Further, it was the view of His Majesty’s Government, without in any way binding itself as to the [*98] future, that the Esthonian Government was such a Government as could, if it thought fit, set up a Prize Court.

Hill J., in the course of his decision allowing the motion, said that it appeared from documents in the case that the provisional recognition of the Esthonian National Council and Provisional Government was antecedent to the dates in December, when the ship was seized and condemned at Reval. In his Lordship’s view the fact that the recognition was provisional and for the time being seemed irrelevant to the questions for decision. If for the time being the Esthonian National Council was recognized as a de facto independent body, and the Esthonian Provisional Government was recognized as its executive, the Courts of this country must for the time being recognize it also. And if it was recognized as an independent body, by which he understood a political body for the time being independent of every superior authority, he must recognize it as a sovereign body capable of exercising sovereign rights, including the rights of making captures jure belli and entitled to have its sovereignty respected by the Courts of the country. In his view the plaintiffs must seek their remedy in the Courts of Esthonia. The result was that the writ, the warrant of arrest, and all subsequent proceedings would be set aside with costs.

The plaintiffs appealed.

Feb. 13, 14. Inskip K.C. (Dumas and J. Ellis Cunliffe with him) for the appellants. The defendants have not discharged the onus upon them of establishing that the Esthonian National Council has been recognized as possessing the rights of an independent sovereign body. Internal de facto sovereignty is not sufficient. The carefully framed letters from the Foreign Office and the Attorney-General’s statements to the same effect merely show a benevolent disposition towards the Esthonians, a recognition of de facto independence, and the right to be treated as belligerents. No treaty has been concluded: see as to this The Charkieh. (1) There is a great

(1) (1873) L. R. 4 A. & E. 59, 86.

[*99] distinction between mere recognition for the time being of a Government and recognition of a State with sovereign powers. The latter form of recognition is essential before the doctrines laid down in The Parlement Belge (1) can be applied. Sovereignty is a matter of public notoriety: City of Berne v. Bank of England. (2) The Court has always gone into the matter for itself unless it has before it some statement from a Government Department which is so clear that it can only come to one conclusion: see Mighell v. Sultan of Johore. (3) Further, the recognition of sovereignty must be absolute, otherwise it is incompatible with the idea of sovereignty. “The nature of the thing makes recognition, if once given, incapable of withdrawal.” See Oppenheim, vol. i., 2nd ed., p. 119. See also Westlake, Part I., p. 57; Halleck, 4th ed., vol. i., p. 90; and Wheaton, 5th ed., p. 37; and, on the position of a de facto independent State, see Letters of Historicus on International Law, p. 24. An analogous case to the present was The Manilla (4), where in 1807-8 parts of St. Domingo were in the possession of insurgent negroes who had detached themselves from the mother country of France and maintained within those parts an independent Government of their own towards which the British Government had shown a favourable disposition; but the new power had not been “directly and formally recognized by an express treaty” and “with reluctance” it was held that those parts of the island still constituted a French colony. See also The Helena (5) as to the position of captures by the Algerines in 1801. [Reference was also made to Republic of Peru v. Dreyfus Brothers & Co. (6)]

Bateson K.C. and F. Hinde for the respondents were not called on.

BANKES L.J. This is an appeal from a decision of Hill J., which was given in the following circumstances: An action was brought in rem by the West Russian Steamship Co., Ld., against the steamship Gargara, now sailing under the name of the Kajak, and the parties interested in the steamship.

(1) (1880) 5 P. D. 197, 214.

(2) (1804) 9 Ves. 347.

(3) [1894] 1 Q. B. 149.

(4) (1808) Edw. 1.

(5) (1801) 4 C. Rob. 3.

(6) (1888) 38 Ch. D. 348, 358.

[*100] There was a second action, also brought by the same plaintiffs, against the freight. The plaintiffs alleged that they were the owners of the steamship. They claimed a declaration to that effect, and an injunction against persons removing the ship or her cargo, or permitting the same to be removed, and a decree condemning the defendants in costs and damages.

An appearance was entered under protest. A motion was then made in the Admiralty Court to set aside the writ and all subsequent proceedings, on the ground that the Court had no jurisdiction to entertain the action. [His Lordship stated the grounds set out in the notice of motion, and continued:] Hill J. dealt with the case in reference to the claim that the vessel was the property of the Esthonian Government, and had been lawfully condemned as prize by a decree of that Government, and he gave no decision in reference to the point that the dispute was between two foreigners as to a foreign ship. From that decision this appeal is made.

The question which Hill J. decided, and which we have to decide, is whether the Esthonian National Council has been recognized by the Government of this country as having the status of a foreign Sovereign. If it has been so recognized it is not disputed that the Courts of this country would not allow that Council to be impleaded in any of these courts. The principle upon which that practice proceeds was laid down in the case of The Parlement Belge (1), and the passage I am going to read is quoted by Lord Esher in the case of Mighell v. Sultan of Johore (2): “The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign State to respect the independence and dignity of every other sovereign State, each and every one declines to exercise by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other State, or over the public property of any State which is destined to public use, or over the property of any ambassador, though such sovereign,

(1) (1880) 5 P. D. 197, 214.

(2) [1894] 1 Q. B. 149, 159.

[*101] ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction.”

It appears from that passage that the principle arises from international comity, and the rule is there laid down with reference to matters in respect of which the Court will not exercise its territorial jurisdiction. In giving judgment, Hill J. indicated the reasons why he thought this particular case came within the rule so laid down. In a passage in his judgment which I will read, he says: “In the first place the Esthonian Government is in actual possession of the ship, and that Government states that the ship is being used by it for public purposes. The plaintiffs invite the Court to take that possession away by arrest of the ship and ultimately by decree to transfer it to the plaintiffs. But to permit the arrest is to compel the Esthonian Government either to submit to the jurisdiction of the Court or to lose their de facto possession, and to compel the Esthonian Government to submit to this Court the question of the ownership of the Gargara. In accordance with the principles laid down in The Parlement Belge (1) and The Broadmayne (2), I conceive I cannot compel the Esthonian Government to submit to the jurisdiction. But if that difficulty could be got over, there remains this further difficulty. The Esthonian Government seized the ship jure belli, and condemned her as the property of their enemy, the Bolshevist Government.”

On these grounds Hill J. came to the conclusion that the case was one with reference to which the Court would not exercise jurisdiction, provided the Court was satisfied that the foreign Government were recognized by our Government as a foreign sovereign. With that part of his judgment I entirely agree.

The question therefore which remains is whether the learned judge was right in coming to the conclusion that the evidence before him was such that he ought to come to the conclusion that the Esthonian National Council had been recognized as having the status of a foreign sovereign. Upon that point I desire to refer to a passage in Lord Esher's

(1) 5 P. D. 197.

(2) [1916] P. 64.

[*102] judgment in Mighell v. Sultan of Johore (1), and to a passage in the judgment of Kay L.J., as to the materials upon which the Court is justified in acting and the materials on which the Court is constrained to act in such a matter. Lord Esher says: “I am of opinion that .... when once there is the authoritative certificate of the Queen through her minister of state as to the status of another sovereign, that in the Courts of this country is decisive. Therefore this letter is conclusive that the defendant is an independent sovereign.” Kay L.J. deals with the point at greater length. He says: “The status of a foreign sovereign is a matter of which the Courts of this country take judicial cognizance – that is to say, a matter which the Court is either assumed to know or to have the means of discovering, without a contentious inquiry as to whether the person cited is or is not in the position of an independent sovereign. Of course, the Court will take the best means of informing itself on the subject, if there is any kind of doubt, and the matter is not as notorious as the status of some great monarch such as the Emperor of Germany.” And then he goes on to say, dealing with the letter from the Colonial Office, signed by an official there, and purporting to be written by the direction of the Secretary of State for the Colonies: “Proceeding as it does from the office of one of the principal secretaries of state, and purporting to be written by his direction, I think it must be treated as equivalent to a statement by Her Majesty herself, and, if Her Majesty condescends to state to one of her Courts of Justice that an individual cited before it is an independent sovereign, I think that statement must be taken as conclusive.”

In the present case the statement is in the fullest sense authoritative. It emanates from the Foreign Office, and it was presented to Hill J. by His Majesty’s Attorney-General. The only question is whether it amounts to a statement that the Esthonian National Council has the status of a foreign independent sovereign. Upon that the materials before the Court consist partly of certain letters which passed between the Foreign Office and some gentlemen who addressed the

(1) [1894] 1 Q. B. 149, 158, 161.

[*103] Foreign Office as being the authorized representatives of Esthonia, and partly of a statement by the Attorney-General and by junior counsel for the Treasury at the Bar before Hill J.

The submission of counsel for the appellants, as I understand it, is that, so far as the statements in the letters of the Foreign Office are concerned, they are deliberately ambiguous statements of a benevolent character, and not such an emphatic and deliberate statement of fact as the Court should require. Further, he says that no statement as to the recognition of a sovereign state can be sufficient unless it appears that the recognition is irrevocable; and on that last point he cited two passages from Westlake’s International Law and Oppenheim’s International Law. He has also cited passages from Hall, Halleck, and Wheaton. It does not appear, however, that these writers are entirely agreed on that particular point. At any rate, the statements of these writers have reference to conditions very different from the exceptional conditions existing as regards the status of States in Europe at the time this dispute arose.

I read the letters of the Foreign Office as being statements which do recognize, and recognize to the full, the sovereignty of Esthonia, but with the limitation that in the exceptional conditions due to the setting up of the Peace Conference no undertaking could be given to continue the recognition if conditions altered; and, speaking for myself, I think that that would be a sufficient statement to require and compel the Court to decline jurisdiction in reference to any matter which comes within the principles laid down in the passage which I have read from the judgment in The Parlement Belge. (1) But, however that may be, I am of opinion that the statements which were made by the law officers of the Crown are free from the objections that counsel suggested were to be found in the letters of the Foreign Office. The Attorney-General says that: “Our own Government – and looking at the affidavits in this case I see the statement is no less true whether of the Government of France or the

(1) 5 P. D. 197.

[*104] Government of Italy – has for the time being provisionally, and with all necessary reservations as to the future, recognized the Esthonian National Council as a de facto independent body, and accordingly has received a certain gentleman as the informal diplomatic representative of that Provisional Government. The state of affairs is of necessity provisional and transitory. The matter remains to be determined in the way that has been described.” Junior counsel for the Treasury, at a later stage, said: “If it will assist the Court – I am sorry the Attorney-General is not here now – but I have had the opportunity of putting to him the point which has arisen, and I have his authority for stating to the Court that, in the present view of His Majesty’s Government, and without in any way binding itself as to the future, the Esthonian Government is such a Government as could, if it thought fit, set up a Prize Court.”

Reading these deliberate statements of the Law Officers of the Crown, as expressing the attitude of the Government towards this Esthonian National Council, I cannot but feel that if the Court claimed to exercise, and did exercise, jurisdiction in respect of such a dispute as arises in this action, they would not be acting in accordance with what was pointed out in The Parlement Belge (1) as being the principle of international comity, and that there would be a divergence of action as between the Courts of this country and the statements that have been made by the Government of the country as to the attitude which this country was prepared to take.

On these grounds, in my opinion, the view taken by Hill J. was right.

WARRINGTON L.J. I am of the same opinion, for the same reasons, and have nothing to add.

DUKE L.J. I entirely agree.

Appeal dismissed.

(1) 5 P. D. 197.

E. C. T.