SOVEREIGN IMMUNITY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05C01629R000200360010-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 22, 2016
• Document Release Date: August 18, 2011
• Sequence Number: 10
• Content Type: REPORT

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ova
the)
im
At
xh
'Immunity of
State-owned
ships
engaged in
trade
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llen8e' and that the Exchequer Court was, therefore, vitlu)ut.
jurisdiction to entertain this action.
"
III would, therefore, dismiss this appeal With costs.
Flota Dtariti,na Browning do Cuba, S.A. v. The Republic of Cuba, [194)2]
,C.R. 59S (1X2), 34I).L.It. (241) (29.
Mt
A note on this lace in ('astel, Intrrnntiaunl I,aar, ('hic/1)/ u.r lntrrf~rufcd
ejfIdAPPlicd in Omuta O' C50, p. (is(1, reads In part:
"The case Is very important 1)ea'allhe this is the first tinge the
[Canadian] tittpreme Court has acknowledged the nIualarn distinction
between the operation of it State in its sovereign rapacity whilo
carrying on obj(r?tives of it national character and it. operaliuns of a
commercial iaturc dir(wtt4l toward the achieving of a uiuutary
profit... .
"The Court did not have to express any opinion as to whether the
doctrine of State immunity should equally apply to property us((t for
commercial purposes only, but the language employed by Ritchie .1.
when lie refused to adopt as unn(wessary that part of Lord :Atkin's
judgment in the ('rix(i)oa in which he expressed the opinion flint 1a?op
erty of a foreign State only used for commercial purl>t)ses' is immune
front seizure, indicates that the SnilrenIe ('ourt might be prepared to
adopt a different rule when commercial transactions are involved.'
In commenting on the same case, Rowett wrote:
"It is, clearly, only it matter of time before English courts will have
to face this issue of whether sovereign immunlty is genera). or limited
to the so-called acts jure i,nperii. On this general issue it would seem
that the traditional English approach. as evidencitil in 'I'hr I'arlctnrn(
Belly 15 P.D. 197 ( I O) i or The Porto Alcxandre 11192101, 1', 301,
Is quite uireal in gut age in which uianv States own aid opvvrate vast
common-lid concerns aIIId, indeed, sometimes are the ry(?lusive uwaers of
sea-going merchant vesels flying their flag.... however, whether this
problem is bi'st sots('1 by the application of the distinction between
acts jars imperil and jury l(cxtionix is nuothor coacher, for it tiny he
argued that by the middle or the twentieth century this (Iistincti(iu is
itself archaic. . . .' "1)I4-isions of Itritish ('purls during I9H2 1!utit
Involving Questions of Public Ali- Private lutornational l;aw" Ruwett,
"Public Iuternatiuwtl l,aw" XXXIX Brit. Yb. Int'l L. (I:ntal 173 -17-1.
o950 the United States of America instituted suit ill the Supreme
t Of Queensland, Australia, to elllirre a IIIoI'tgalge against the
bnStar. a ship owned by the National Govermuent of the Repuhlic
Dhina. The consul of the, N (t)onal Governnu'nt of the Repnl)lie ofd
entered a c.nditional appearance claiming sovereign inuuwtiity.
eUnite,l titates contended, inter (dia, that the doctrine of sovercigu
60unity did not apple to State-owned Nils engage(! in tra(le. In
[~Yin~ the pr(Kee(lillgs.n the ground that they ilU )len(ie(I al !'.reign
pereigll State, the.lutlgestate(I :
I`It is to ntv naintl clear lalvv' Hiatt no action or other proceeding
can he taken in the ('.wits of chi, country against a foreign
ereign state, mid it i, generally accepted that the property of tho
foreign ~,overcign stalte cannot I )e se IZe(I or arreste( 1, I)1It there IS
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LXE\rt''t'IONS FRO\1 TERRI't'ORIAI, ,Jl'R1.DICT1ON
so-ne. donht whither the principle. applies to a ship which is
"\1r. O'Sullivan (for the plaint if) :11-lied that tile immu
of a foreign state, when the ship as is alleged here, -s a tra
Ship, and he relies on various dicta of some of the judges in
(ri.st/rur. case (('o)N/)Ir o(7, "I'(1 r)('P17 i/fu/n e o /YriF
(10I1 t t'
cluded
whilst :i,
decree
ship \.':I
parent
those dicta is that in certain cases the ('Dort has jnrisdictione a writ
though a foreign state is interested in the pros- e(lings but ref1,K the gr-
to consent to the jurisdiction. . The action before nle is no14 decistl,I
admiralty action i)1 rrm.:111(1 in Illy opinion is in no sense an acta crev
United ,`'Inlrx of Amrrir, v. /e)1(btie of China. 1:0) Intl L. learne
ReP.
109-17f) I N., iii or nth,
108
,
pore in virtue of an hylwthecation and obtained an injunction tore tiol
strain the acting captain and the third officer from taking the vessel out; (1921
of SingaIore. De felida nts rlai-ned that they were in possession of the
vessel on IwImIf of the.''People", Republic of China" and that the pro- ositi
sit i
ceedings impleaded I hat foreign sovereign. The United States con- in e:l
tended that it merchant vessel engaging in trade was not entitled to ion
ceedings on the ground of sovereign immunity.. The Court stated:
v consent. the par-tie"; agreed to he bound Il? certain answers
given by the Foreign Office to the S-rprenle ('Dort of IiongKong.
Hi' Ihoso :I ltsWel's it is clear t That ''I'1-e ('cut rap People's Gov,ern-
inent of the People's Republic of China' is recognised both de
far./a and rlra)nie as the only Government of China.
"The ship is registered in Formosa, which is legally part of
the Ta.panese Eltiprre and not apparently d.' /',rr to under the con-
trol of the recognised Government, of China. The defendants
claim that the ship is the property of the present Government
of China. '('hey base this claim on two grounds, that it was part
of the property of the former Government of China, and as such
property would pass to the present Government from the moment
of recognition. They also claim the property as the result of leg-
islative act of the present Government. It is admitted that the
ship has not 1wen at any material time within the territorial wa-
ters of China. The defendants also claim that the present Govern-
ment is in possession of the ship by reason of the fact that they,
the defendauits, are holding the ship ou behalf of that
Government.
"I ant not satisfied at the moment that the ship was the pro )erty
of the former Government as distinct from :I corporation wholly
or almost, wholly owned by that Government. I exprms no
opinion as to the effect of the legislation of the Government of
China on the ownership of property outside China.
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wad
and
for
ten'
(l1$,
..
otl~
1)i"l
otI
era
 ? which is
lie imm
west of a
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(adgesinf
N.N. f"i r i1tt' ,,
nt is said
,I iction e
but re
nae is not
n in sin
(-lion to
I e. vessel
scion of
at the
`fates
entitles
de the p
`)ilg Ko
Gove
id both
part
lefendan
)vernm
t was pa
e~ morn
lit of I
I that t
+orial wa
Govern.'
of that
property
in wholly
press no
"On the ground of possession, I consider t hat the matter is con-
cluded by the case of The Cristirut (19313) A.C. 4h5. There it ship
whilst aent from the territory of a state was the object of a
decree of requisition by the Government of that state. Whilst the
ship was in British territory the Government of that staite, ap-
parently quite illegally, obtained possession of that ship by put-
ting on board it crew that was willing to hold it, on behalf of that
Government. The House of Lords affirmed a decision setting aside
a writ and subse uent, proceedings on the part of the owners on
the ground that the possession was that of it sovereign state. The
decision appears to be based entirely on the de form/o possession by
a crew in sympathy with the Government and of the crew I sup-
lxose that only the sympathies of the captain were material. The
leari edd Lords were, I take it, all of the opinion that, the legality
or otherwise of the acts which led to possession were immateria.
Further, I do not consider that the decision is any authority on
the effect, of requisition by a foreign state of property without its
jurisdiction. Juristically requisition would be in the same posi-
tion as confiscation for this purpose. The case of The Jupiter
(1924) P. 236 was expressly approved.
"This is enough to decide the present case except for one matter
raised by Mr. Smith for the plaintiffs. That matter was the prop-
osition that the immunity did not apply to merchant ships engaged
in earning freight.. It is true that three Lords reserved their opin-
ion on that point, in The Cristina. If they had any serious doubts
on that point, they might have applied them, because the one/ ina
was a commercial ship seized in the course of a commercial voyage
and which the Government concerned had no opportunity of using
for any other purpose, and there the supposition that. it was in-
tended to use the ship for any other purpose is only based on con-
jecture. The reasoning on which all the cases have been decided
does not logically have room for any exception of this kind. If
this result is inconvenient it can only be obviated by statute.
";I think that, the result would be the same in the case of any
other kind of property and does not, depend on the fact. that the
property in question is a ship and does not depend on the form
of procedure adopted by the plaintiffs. The only relevant consid-
eration is the fact that if these proceedings were succeessful they
would have the effect. of depriving the present Government of
m
"l
"
a
(
a of possession.
'
The Hai Hsuan (United States of America v. Yong Soon Er), [1950]
Int'l L. Rep. 170-172 (No. 44).
" . The tendency in civil law jurisdiction is thus towards
the view that international law enjoins immunity when it mer-
chant vessel is employed for purposes jure i tnperii. however, a
Japanese court has denied this, and held that a Soviet fishery
patrol boat which infringed Japanese law in Japanese territorial
waters was not immune [Japaoa v. Kulikor, (19541 Int'l L. Rep.
1u51."
11 O'Connell, International Lain (1965) 945.
Oivil
law
systems
629
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 iteeotnntt'nda-
Iinn I.(--
g:11-ding
Brussels
Con verlt ion
shall therefore be sitl)jei't to seizll-?e, attachment or detention by I!
l.SJFL, n.,.,t 1U1 -to, ,v11 IY ,11 1ol.1-1il.11~?~t~l, Lll 'I ,,(I?1,-,.v.
Inter-:American Juridical Committee, Report on Rulc.> ('mo'>'r?ai)ig the
fmnrunitll of Stuff Ships (Cl.! 36, English I 11'an Antert(,an I'niou, .Ianu-
ary 1954), it. 13.
For test of the Itru.so.wds ('onvention of Apr. 10, 19(20 I('oit ention for
any legal 1)roc(,cs, or to such judicial pr(x4 slings in rem as may
itt approprimtte (article `?).
"Third: 'I'lie. ,ante rules concerning juri,dietion and the same
legal actions shall be applicable in ca'' of claims relating to,tate-
otened cargoes t-ansported on merchant vessels for governmental
and noncommercial purposes. But such cargoes shall not he sub-
j(et to seizure, attachment or detention by any' legal process, ,or
to any ;judicial proceedings in rent. (article 3.1II).
to private parties. Merchant, vessels and their connuer?ci:(I c:u?goes
actions, and the same proc-e(Inre as are estal)lislled and applicable
are in vfect (article 1t?''
"i5'('(Yt)uf: Such liabilities and obligation, are subjected to the Ipop or
same, ru le.s concernling the jurisdiction of tribunal,, the,:une legal '-
Coitr(tvritr(l lhr In>iirrinrily of Sled(, in I9.,? concluded: such
"3. The Conunitteo consi(ler4 that the Itrnssel. Convention of tlOIl Irv
April, 10, 1 926, anti its additional protocol of M ; 1 \ 1 y I. 13131, the S:11101 I
to iii, of \Vllic.h are followed by the l'r,rt,nlo 1/, .1',rr((l,a,'>t,> ("otn- tIo.,k.
onuuelcial
mer(vtll In-/t (nut i(.n,tl (T'reaty' (m I iternatWill, t (
,
Navigation), signed at Montevideo in 1111)) (mrticlet:3140), rep- :ue ell
resent at preseltt, tho progressively accepted d(wtville, which is -2. :11
ntereial Navigation. Montevideo, Mar. 19, 1944), article. 31 -11), see VIII Ien,lc,
Hudson, Intcr)utttnnai Lcgislutiorr, 1938-1941 ( l t ( 1 ! ) ) -160, 4t .470. it, , (:1rtI,
For testr in Englisli translation of the 't'reaty on International ('um-
the I'nilleation of ('ertnin Rules ('onrerniltt the :uttunnitp of state-owned ('ttlt,iti`
Ships), and its :ulditional prttt,M?ol of May 21, 1931 I Prot,N?ol so, Ill jl(,Ij)tritary :11 .4,11
to the International Convention for the Unification of Certain Rules Coo- este,l
corning the Iuummit>' of State-(l\\'11(41 Ships of Apr. 10. 11)20), set' 176 L T9
199, 21:).
The Inter-Anieiiean .Juridical ('onuuittee, in it. 19.)'S Nepor?t pre- lili,?nl
sente(I "the principles embodied in the Convent ion of I~t lis;els and its ntea~~
"I% The state has the s:ltne li:tltilit v as, Itri\-ate 1)ar n;l ,.
ties itlsofar? IS c?ollc?.ei'ns (1311lls relatill to Conllller( ial a('tlA'lty the
carried out by the state through cargo and passenger vessels. th;lt
"Tn)Irlh: The state may plead all lneasttres of defense, lire- ArtIcl,
scription, and limitation of liability, which are.:ivailable to pri Convc,,:
Va.te parties (m?ticle 4.1). .
"Ti flh: ('Minis can be brought against shill's of war and other
state vessels (used at the. time a (apse of act ion a rises exc?itlsively on
governmental and noncommercial servire solely in the competent
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on R
193411
ran C
40)~
which
'its."
SOVEREIGN IMMUNITY
tribunals of the state owning or operating the vessel, without
that. state being permitted to avail itself of its immunity. But
such vessels shall not, be subject to seizure, attavhtnent, or (le.ten-
tion by any legal process, nor to judicial proceic dings inn rem. The
same rules apply to the state-owned cargoes carried on board
they-4~ ve:,-sels (article:3.I.II).
?'~ia'th.: Depending on circumstances, the foregoing provisions
are equally applicable in cases of vessels used by stag (articles
1, 2, and 3).
"Seventh: Provisions relative to measures of defense, prescrip-
tion, and limitation of liability shall he subject to modification
ruing tlt~k: br means of special conventions or national legislation so as to
on, Jann1 lmake them applicable to ships of war, or similar vessels (art -icle
.ution foo,
r to-owne4
t?urentary,
;ales con-
Ott LNTPI
4.2).
"I;'ighth,: If there is a doubt as to the gove.rnnieiital and non-
c.otnnn'rcial character of the vessel or cargo, it shall be settled by
a certificate signed by the diplomatic rt'prese iitat ire of the inter-
ested state, but, only for the purpose of securing a release from
seizure, attachment, or detention ordered by legal process (article
5).
cal (om. M ",Vinth: The benefits of the foregoing proveauns nrav be ex-
'ee vijI tended to nonccnlt carting states solely on the basis of reciprocity
art 1(10 6).
'.Ti,n.th: ('oula'acttug states reserve the right, to suspend the ap-
rt pre plicatiom of this convention in time of war, t.lue right to take any
-:111d its measures that the st;hits of neutrality may demand, anel the right.
to regulat-e Iw its owrn l:alrs the rights ac4'orded to its own nationals
in its own courts (articles 7, 8, and 6.2). In the first instance, tlre.
e' par- suspension only ;affects the attachtnent, sei'rure., or (letentioil, anel
itivity the claimant shill has the right to bring his act iom before the court
vessels. that iscormpete.nt iii such case (art,icle7,latst,par-t)."
Inter-Anrericatr Juridical Committee, Report on Rntcs ('onecrning the
As to the parties to the Convention, the 1958 Report stated:
"Moreover, the Brussels Convention, originally ratified by Belgium,
Brazil. Chile, Esthonia, and Ilungriry, and later by Ireuruark, (.erniauy,
Holland and its possessions 1('ura(:ao, Dutch East Indies, and
Surinam), Italy and its colonies, Norway, Poland, Portugal, RI)manla,
and Sweden, was also ratified by France only two years ago (1955),
and was adhered to by Greece 111151 1 and Switzerland ( lat.."ri ). It is
significant that none of these 17 countries have renonuce d the con-
vention or have, in conformity with the provision of article 4, called
for 'a fresh conference with a view to considering possihle rmnend-
nients'' /hid., p, 12. Subsequent to the 1115.4 Report, the following
States have ;receded to the ('ouvention : 'I'urkoy. United .Arab Republic,
Argentina, Syria. Department of State Treaty File.
pre- Article 20 ill section III, "Right of Innocent Passage", of the. 195?3
" pTi- A Coll velit ion on the 'T'erritorial Sea and the Contiguous, /,olle reads:
I other
ely on
vet eat
"1. The coastal "tat' shall not stop or divert a foreign ship
passing through the territorial sea for the purpose of exercising
civil jurisdiction in relation (4) a. Issrson on board the ship.
Convention
on Terri-
torial
Sea and
('unit iguous
Zone, 1958
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Certain
situations
involving
personal
property
EXEMPTIONS FROM TERRITORIAL, JURISDICTION
"2. The coastal State ur:t}? not let-%, extra ittiol, :(
ainst or arres
g
the shill for the purpose of ally civil proceedings, save only iii
respoct of ohligatio Is or liabilities assnnred or incurred by that,
hi
s
ll itself in the course or for the pu rpose. of its voyage through
the waters of t he coastal state.
' 1. The provisions of the l)revions paragraph are without pprej-
ndice to the. right of the coastal State, in :u`cordance with its law
to levy execlltton against or to arrest, for the purpose of any cl
procetedirigs, a foreign shill lying in the territorial sea., or passing
through the terr?itol?ral sea after leaving, internal waters."
Article 2l of the ("onvcution further provides:
"The rules contained in sub-sections A arid B shall apply to
government ships operated for collimerci:tl purposes."
The rules in subsection A (articles 1.1-I T) relate to the right of inno-
cent passage of all ships, and in snhsection B (articles 1S--23) relate
to merchant ships.
Article 22 of the satire Convention reads:
"L The rnl(w contained in sell-;vct,ion A and in article 18 [on
charges I shall apply to government. ships operated for non-corn-
nlercial purposes.
"2. With such exceptions as :t'e contained in the provlsionsre-
fe.r?red to in the preceding par?agraj)h, nothing in these articles
afrects the irnntunrties which such ships enjoy tinder these articles
U.S. TIAS 5039; 15 i'ST 104)0, 1612; 511; UNTS 205, 22
See generally Sucharitkul, Slot, Jnr?tnniia.ti and Trading Activities in
International Lola' (1959) ; Tl o hilt ?ii, Legal status n1 llorrrnnrr?at Mer-
"111 coil lle(tloll with a slut by all Italr:ttt iursinnc~man against.
o
e
.
p
I- p
ties of the Argentine Government found in Ital
ues-
The fir?s~t se
y
q
.trat ion, occurring on May 14, [ 1960 J was a jet aircraft of the
May 17 lry se(plest ration of a freighter belon
in
to thee-i -'
entine
g
g
g
State merchant, fleet and the attachment of Ar
entine ('onsulate
g
bank accounts in Milan and Venice. T1te Argentine Minister of
t hat the A rgent ine Government world adopt retaliatory itneasures
istiv of .Justice issued a decree. I lrollibiting ... .. ~, tttachnt ent of Argen-
tine (ionerllirretit property without the nutter's approval This
;tl,i,cxrs ro nave resolved the prolrle-it.--
No. 16(13, May 19, 19(1(), MS. Department of State, file 235,6"141/5-1960.
In 1'.
Opened
and a
Cause
April
part ie~,.
name t
export.
Sever:(
in clue
the Fit
missio,
for lo-
ttga i n'-
held t
reason
ernlnt
there t
Pros n .
the d,
dish r i
t