McEvoy v Owners of S.S. "Otto."

• Jurisdiction: Ireland
• Judgment Date: 04 July 1942
• Date: 04 July 1942
• Court: Supreme Court

Supreme Court

Zarine v. Owners of S.S. "Ramava." McEvoy v. Owners of S.S. "Otto."

HIS EXCELLENCY, CHARLES ZARINE

Plaintiff

and

THE OWNERS OF THE S.S. "RAMAVA

"Defendants.

JOHN McEVOY

Plaintiff

and

THE OWNERS OF THE S.S. "OTTO," Defendants

JOHN McEVOY and JOHN VELDI

Plaintiffs

and

THE OWNERS OF THE S.S. "PIRET" and "MAAL."

THOR ECKERT & CO.

Plaintiffs

and

THE OWNERS OF THE S.S. "EVEROJA."

International law - Ships registered in Esthonia and in Latvia - Application while ships at sea by Governments of these States to be admitted into the U.S.S.R. - Ships arriving in Irish ports - Writs in rem issued against the ships - Motion by U.S.S.R. to set aside proceedings - Immunity of foreign sovereign State from jurisdiction of Irish Courts - Whether mere claim to the ships by the U.S.S.R. sufficient to oust jurisdiction - Neither possession nor undisputed ownership of the ships established - Whether ships owned by foreign sovereign State and used for trading and commercial purposes entitled to immunity - No recognition by Government of Éire éire of the U.S.S.R. as the de jure or de facto Government of Esthonia or Latvia - Whether documents and transactions purporting to pass the property in the ships to the U.S.S.R. effective - Whether the U.S.S.R. had sufficient interest to entitle them to set aside proceedings.

Motions on Notice to set aside proceedings that had been brought in respect of the ownership of five ships.

In the first two actions, the plaintiffs, as the duly accredited representatives in Éire éire of the Governments of Esthonia and Latvia, issued writs in rem in respect of two of the ships, claiming declarations that they were trustees for the owners of the ships, and also claiming injunctions to restrain the removal of the Esthonian or the Latvian national flags from the ships. In the third action, the Consul-General and one of the part-owners claimed similar declarations in respect of two other ships. In the fourth action, the plaintiffs, an American Company, issued a writ in rem claiming damages for breach of a contract contained in a charter party made between the plaintiff Company and the owners of the fifth ship. The Consul-General entered an appearance as defendant and counter-claimed for a declaration similar to that claimed in the other cases.

Before the ships sailed to Éire éire, certain negotiations took place between the High Commissioner for Éire éire in London and the representatives of the U.S.S.R. in London with regard to the ports to which the vessels should sail and the personnel of the crews of the vessels.

The facts have been summarised in the headnote and are fully stated in the judgment of Hanna J.

The U.S.S.R., having entered an appearance "without prejudice to their rights," moved by notices of motion to set aside the proceedings on the ground that the ships in question were their property and that they, a sovereign State, were impleaded by the proceedings and that they did not consent to submit to the jurisdiction. The U.S.S.R. relied on their occupation of Esthonia and Latvia and on the decrees and legislation of the Parliaments of these States, which are set out fully in the judgment of Hanna J.

From this judgment the U.S.S.R. appealed to the Supreme Court (1). The grounds of appeal are set out in the judgment of Meredith J., post.

Writs in rem were issued in respect of five ships, three of which were registered at ports in Esthonia and two at ports in Latvia, the ships being owned by citizens of those States. The ships were engaged in commerce. They were all in ports in Éire éire at the time the actions were brought.

The plaintiffs claimed declarations that, in the events that had happened, they, as the duly accredited representatives of Esthonia and Latvia, were trustees for the lawful owners of the vessels. While these vessels were at sea, before they had reached the Irish ports, the United Socialist Soviet Republic (hereinafter referred to by its usual abbreviation of the "U.S.S.R.")invaded Esthonia and Latvia. The Parliaments of these States then passed declarations asking for the admission of those States into the U.S.S.R., and the Supreme Soviet of the U.S.S.R. by a decree incorporated those States in the U.S.S.R. Prior to this incorporation, the Parliaments of Esthonia and Latvia had passed decrees whereby all private property in those States was nationalised, and ships were prohibited from entering or leaving ports without the authorisation of the Governments. The U.S.S.R. claimed that, by virtue of these decrees, all Esthonian and Latvian ships became the nationalised property of the U.S.S.R.

When the ships arrived in ports in Éire éire the masters signed "Certificates of Delivery" to the agents of the Sovfracht (through which the U.S.S.R. operate their nationalised mercantile marine) but the masters retained physical possession. When the writs were issued the U.S.S.R. moved to set aside the proceedings on the ground that they, a sovereign State, were impleaded by the proceedings and that they had not consented to the jurisdiction.

In answer to a question submitted by the trial Judge (Hanna J.) to the Department of External Affairs, the Minister for External Affairs stated that the Government of Éire éire did not officially recognise the Government of the U.S.S.R. as the sovereign Government of Esthonia and Latvia.

Held by Hanna J. that, as the Government of Éire éire did not recognise the U.S.S.R. as the sovereign Government of Esthonia and Latvia, the Court must treat as nullities the various transactions and documents alleged to culminate in the sovereignty of the U.S.S.R. and purporting to pass the property in the ships. These ships accordingly were not the property of the U.S.S.R., and the "Certificates of Delivery" were of no effect.

Hanna J. found as a fact that the ships were never at any time in the physical possession of the Esthonian and Latvian Governments or of the U.S.S.R. or their agents, and they remained at all relevant times in the possession of the masters on behalf of their respective private owners.

Accordingly the motions brought on behalf of the U.S.S.R. to set aside the proceedings were dismissed.

Per Hanna J.: The immunity for State ships under public international law does not apply to those vessels which are used for private trading purposes but only to such ships as are publicis usibus destinata.

The immunity for State ships other than those publicis usibus destinatahas been granted only when the ships are either owned or in the physical possession of the Sovereign claiming immunity.

On appeal, in reply to further questions addressed to the Department of External Affairs by the Supreme Court, the Minister for External Affairs stated that the Government of Éire éire did not recognise the U.S.S.R. as a sovereign independent State either de jure or de facto in Esthonia or Latvia.

Held, accordingly, by the Supreme Court that, having regard to this answer, the claim by the U.S.S.R. to ownership of the ships in question could not be recognised by the Courts, and the U.S.S.R. was not in any way affected by the proceedings. The appeals therefore must be dismissed and the orders of Hanna J. affirmed.

Cur. adv. vult.

Hanna J. :—

In the consideration of the questions which arise in this case we have to consider, first, the movements of the ships prior to their arrival in the ports of Éire; éire; secondly, the political developments in Esthonia and Latvia in relation to the U.S.S.R., and thirdly, the actions of the masters of the various ships after arrival in the ports of Éire éire.

The S.S. "Otto" belonged to a number of citizens of Esthonia as part owners, and she is registered at the port of Tallin, Esthonia. According to the official list of Esthonian ships, issued on the 7th February, 1940, by the Marine Department of the Esthonian Ministry of Commerce, she sailed under the national flag of the Esthonian Republic. She was a privately-owned merchant vessel engaged in commerce. On the 29th June, 1940, she left Milford Haven under a trip charter-party for Swansea, arriving there on the same day. She left Swansea on the 2nd July, 1940, for St. John's, Brunswick, where she arrived on the 20th July. She left St. John's some time later with a cargo of timber and arrived in the port of Cork on the 14th August, 1940, where she still lies. The other two Esthonian ships were the S.S. "Piret" and the S.S. "Maal." They belonged to the Taillin Shipping Company of Esthonia and sailed under the Esthonian flag, appearing in the official list of the Esthonian ships, issued on the 7th February, 1940. They were registered at the port of Taillin. The S.S. "Piret"on the 17th July, 1940, left Porto Padro, Cuba, on a trip charter-party to Éire éire with a cargo of sugar. She bunkered at Norfolk, U.S.A., and arrived in Dublin on the 12th August, where she still lies. She was a privately-owned

vessel engaged in commerce. The S.S. "Maal" left St. John's, New Brunswick, on the 24th July, 1940, with a cargo of timber for Waterford, where she arrived on the 7th August, having called at no other port.

The S.S. "Ramava" and the S.S. "Everoja" are Latvian ships, and appear in the official list of the Latvian ships issued on the 4th January, 1940, by the Marine Department of the Latvian Ministry of Commerce, and the owners are Latvian citizens, the "Ramava" being owned by Karklius & Co., and the "Everoja" by F. Grauss. They are both registered as of the port of Riga and, like the other ships, are privately-owned vessels engaged in commerce. The "Ramava" left Parrsboro on the 27th July, 1940, via Halifax, proceeding on a trip charter-party to Éire éire with a cargo of timber, arriving in the port of Dublin on the 10th August, 1940. The position of the "Everoja" was slightly different. The agents for this ship in America were Thor Eckert & Co. of New York, and on the 15th June, 1940, the owner, F. Grauss, entered into an agreement...