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THE PORTO ALEXANDRE?

British Court of Appeal

November 10, 1919 The Porto Alexandre was an enemy ship of German origin which, after having been requisitioned by the Portuguese Government, had been condemned by their courts as prize. She was handed over to an office at Lisbon, and on September 13th last, while she was carrying a cargo shipped by and consigned to the Portuguese Import and Export Company (Limited), from Lisbon to Liverpool, she got into difficulties in the Crosby Channel, River Mersey. Assistance was rendered by the steam tugs Nora, Expert, and Torfrida, the owners, masters, and crews of which, on September 16th, issued writs in rem, claiming salvage. The Porto Alexandre was then arrested, and an appearance under protest was entered on behalf of the ship and freight. Application was then made for the release of the vessel to the Liverpool District Registrar, who granted the application, but his order, on appeal, was set aside by the Vacation Judge, without prejudice to an application to be made to set aside the writ and all other proceedings. That application came before Mr. Justice Hill, who was informed by the Portuguese Chargé d'Affaires that the Porto Alexandre was a public vessel belonging to the Portuguese Government. The learned judge, after argument, came with reluctance to the conclusion that the writ and all other proceedings must be set aside, on the ground that the vessel, being the property of a sovereign state, was immune from arrest. The plaintiffs appealed, but the court, without calling on counsel for the respondents, dismissed the appeal.

Lord Justice Banks said that this was an appeal from a decision of Mr. Justice Hill who made an order that the writ and warrant of arrest against the Porto Alexandre should be set aside but that the writ against the cargo should stand. The appeal only applied to the ship. His Lordship stated the facts and said that the application granted by the learned judge was based on the principle that the ship was the property of a foreign state and that she was therefore immune from arrest. His finding was a conclusion of fact that the vessel was the property of the Portuguese Government at the time of her arrest and was still their property and on that ground he made the order. It was now said that that was not sufficient, that to enjoy immunity the vessel must be employed in the public service of the Portuguese Government. The Porto Alexandre, formerly the steamship Ingbert, owned by Germans, was requisitioned by the Portuguese Government in August, 1916. A certificate or passport, under the seal of the Republic of Portugal, asserting that the vessel was a state-owned vessel belonging to the Government of the Portuguese Republic and employed on Portuguese Government service, was issued on October 24, 1919. The port of registry endorsed on the passport was Lisbon. It also appeared from the passport that on January 30, 1917, the vessel was adjudged by a Portuguese court to be lawful prize of war. A further statement had been made by the Portuguese Consul that freight had been made before shipment of the cargo and belonged to the Portuguese Government. In addition to that there was a letter from the Portuguese Chargé d'Affaires in London, in which he stated that the Porto Alexandre was a public vessel belonging to the Portuguese Government. The court had not the slightest doubt that under the orders of the Portuguese Government the ship was earning freight for that government. Mr. Dunlop had contended that that was not sufficient because the trading had destroyed the privilege from arrest. The question to be decided was whether it was possible in the circumstances to distinguish the present case from that of The Parlement Belge (5 P. D., 197), a decision of, and therefore binding upon, this court. The question was one of great importance. It might be that former decisions related chiefly to war vessels, but in recent times governments had taken to the use of vessels of war for trading purposes. The duty of the court in the first place was to decide whether the present case was covered by The Parlement Belge (supra). If not, it would be necessary to consider the importance of the question generally. In his Lordship's opinion, however, the case of The Parlement Belge (supra) exactly covered the present case.

136 Times Law Reports, 66.

There was very little difference in the facts of the two cases, those of the former being set out in 4 P. D., 129. There was this difference, however, that, in the information and protest filed by the Attorney-General on behalf of the Crown, these two points were taken, (1) that the Parlement Belge was a mail packet running between Dover and Ostend, and (2) that the vessel was the property and in the possession of the King of the Belgians, and consequently, under the general law, exempt from legal proceedings. As his Lordship read the case the facts appearing in paragraph 2 of the protest were that the vessel was a public ship belonging to and employed and navigated by the Belgian Government. There was, therefore, no material dis

tinction on the facts between that case and the present. In the Court of Appeal Lord Justice Brett said that three main questions had been argued before the court, (1) whether the court had jurisdiction to seize the Belgian vessel in a suit in rem; (2) whether, if the court would otherwise have such jurisdiction, it was ousted by Article 6 of the convention made between this country and Belgium in 1876; and (3) whether any exemption from the jurisdiction of the court, which the vessel might otherwise have had, was lost by reason of sea trading in the carriage of goods and persons. The judgment, however, was concerned with the answers to questions (1) and (3) only. It was quite true that in many earlier cases the plea for immunity was put forward on the grounds that the ship was a public vessel and in the public service of a foreign state, and judgment was delivered on those grounds on the facts as stated, but there was nothing in the earlier cases before The Parlement Belge (supra) to show that the fact that the vessel was engaged in the public service was a fact essential to the judgment. When one considered the last part of Lord Justice Brett's judgment (5 P. D. at pp. 219, 220) it seemed in terms to cover the present case. He there said:

The case of The Bold Buccleugh (7 Moo. P. C. 267) does not decide to the contrary of this. It decides that an action in rem is a different action from one in personam and has a different result. But it does not decide that a court which seizes and sells a man's property does not assume to make that man subject to its jurisdiction. To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court. But it is said that the immunity is lost by reason of the ship having been used for trading purposes. As to this it must be maintained either that the ship has been so used as to have been employed substantially as a mere trading ship, and not substantially for national purposes, or that a use of her in part for trading purposes takes away the immunity, although she is in possession of the sovereign authority by the hands of commissioned officers, and is substantially in use for national purposes. Both these propositions raise the question of how the ship must be considered to have been employed. As to the first, the ship has been by the sovereign of Belgium, by the usual means, declared to be in his possession as sovereign, and to be a public vessel of the state. It seems very difficult to say that any court can inquire by contentious testimony whether that declaration is or is not correct. To submit to such an inquiry before the court is to submit to its jurisdiction.

His Lordship said that the vessel in the present case had been declared to be a public vessel belonging to the Portuguese Government. Lord Justice Brett continued:

It has been held that if the ship be declared by the sovereign authority by the usual means to be a ship of war, that declaration cannot be inquired into. That was expressly decided under very trying circumstances in the case of The Exchange (7 Cranch 116). Whether the ship is a public ship used for national purposes seems to come within the same pale.

His Lordship said that he read that statement as a correct exposition of the law. Lord Justice Brett went on to say:

But if such an inquiry could properly be instituted it seems clear that in the present case the ship has been mainly used for the purpose of carrying the mails, and only subserviently to that main object for the purposes of trade. The carrying of passengers and merchandise has been subordinated to the duty of carrying the mails. The ship is not, in fact, brought within the first proposition.

Lord Justice Brett merely added that as an additional statement and not as a necessary ingredient. In his Lordship's opinion this court was bound by that decision, and the appeal must be dismissed with costs.

MARKWALD V. ATTORNEY-GENERAL.1

British Court of Appeal

January 14, 1920

This appeal from a decision of Mr. Justice Astbury raised a question as to the status in the United Kingdom of an alien who had been naturalized as a British subject under a Colonial statute.

The plaintiff, Heinrich Hermann Markwald, was born in Germany in 1859, and he left Germany in 1878 to settle in Australia. In 1908 he obtained a certificate of British naturalization in Australia, under the Naturalization Act, 1903, of the Australian Commonwealth, by section 8 of which it is provided that a person to whom such a certificate is granted shall be entitled to all the political and other rights of a British subject in the Commonwealth. In the case of an applicant not naturalized in the United Kingdom the section says that the Governor-General is not to issue the certificate until he has received the certificate of a judge or special magistrate that the applicant has before him taken the oath or made an affirmation of allegiance to the King and his successors.

1 36 The Times Law Reports, 197.

The applicant, having been granted a certificate of naturalization, shortly afterwards in 1908, came to England to reside, and was there at the time of the outbreak of war in 1914. He was then required to register himself as an alien under the Aliens Restriction Act, 1914 (4 and 5 Geo. V., c. 12), by which it was provided that if any question arose in any proceedings under the Order in Council imposing restrictions on aliens, whether any person was or was not an alien, the onus of proof that he was not an alien was to be upon that person. He refused to register, and when he was prosecuted for his failure to do so, the magistrate held that he had not discharged the onus of proving that he was not an alien, and he convicted him.

On appeal to the Divisional Court, the conviction was upheld. The case is reported as Rex v. Francis—Ex parte Markwald (34 The Times L. R., 273; [1918] I K. B. 617).

The plaintiff thereupon commenced this action against the Attorney-General, claiming a declaration that he was “no alien in England, but a liege subject of his Majesty the King in all parts of his Majesty's Kingdom and Dominions." It was admitted that he had no political rights or duties in this country, but it was contended that as he had been naturalized in a British colony, he was not an alien and was therefore exempt from the restrictions to which all aliens were subject, and from the proceedings brought to enforce them.

Mr. Justice Astbury held that the decision of the Divisional Court in Rex v. Francis (supra), whether it amounted to a matter of res judicata or not in the strict sense, was a decision on the very point raised in the action, and therefore he said that he would follow it. He doubted on the plaintiff's own evidence whether the plaintiff had ever taken the oath of allegiance at all, at any rate, his doing so had made no impression on his mind. His Lordship therefore felt unable to grant the plaintiff the relief for which he asked and he dismissed the action. The Attorney-General did not ask for costs.

The plaintiff appealed.
The Court of Appeal dismissed the appeal.

ions."

The Master of the Rolls said that this was an appeal from Mr. Justice Astbury, who declined to make the declaration for which the appellant asked, that he was “no alien in England, but a liege subject of his Majesty the King and entitled to the protection of his Majesty the King in all parts of his Majesty's Kingdom and Domin

Mr. Justice Astbury decided the matter on the authority of the grounds given for the decision of the Divisional Court in Rex v. Francis (supra). The point that this was not a proper case in which to make a declaration had not been taken in this court, but he (his Lordship) desired to guard himself from being thought to hold that this was a proper case for a declaratory order. As, on other grounds, he had come to the conclusion that the appellant was not entitled

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