M.S. Menon, J.
1. In view of Burmah Shell Oil Storage and Distributing Co., of India v. Commercial Tax Officer (1960) 11 STC 764 ; (AIR 1901 SC 315) and J. K. Jute Mills Co., Ltd, v. State of Uttar ,Pradesh, (1961) 12 STC 429 ; (AIR 1961 SC 1534) the only contention urged before us in this case is that the supplies made to foreign ships in the Port of Cochin should be considered as not liable to sales tax on the ground that those ships are floating islands of the country whose flag they fly. There is no merit in this contention.
2. The concept of a floating island is only a metaphor, and the fallacy lies in mistaking the metaphor for a manifestation. The strongest expression of the concept is found in a statement of Blackburn, J.:
'It has been decided that a ship which bears a nation's flag is to be treated as part of the territory of that nation. A ship is a kind of floating island'.
Another statement of the Judge -- more precise and accurate is:
'There are a vast number of cases which decide that when a ship is sailing on the high seas, and bearing the flag of a particular nation, the ship forms a part of that nation's country, and all persons on board of her may Be considered as within the jurisdiction of that nation whose flag is flying on the ship, in the same manner as if they were within the territory of that nation.'
In (1941) 110 LJKB 289, Humphreys, J., referred to the second of the two passages and said:
'If I am right in my understanding of the English language, the meaning of that passage is that persons on board a British ship are within the jurisdiction of the British Courts, although they are not within the territory of Great Britain.';
and in Chung Chi Cheng v. The King (1939) 108 LJPC 17 : (AIR 1939 PC 69) the Board observed as follows:-
'Their Lordships have no hesitation is rejecting the doctrine of exterritoriality expressed in 'the words of Mr. Oppenheim which regards the public ship 'as a floating portion of the flag State'. However the doctrine of exterritoriality is expressed it is a fiction, and legal fictions have a tendency to pass beyond their appointed bounds and to harden into dangerous facts. The truth is that the enunciators of the floating island theory have failed to face very obvious possibilities that make the doctrine quite impracticable when tested by the actualities of life on board ship and ashore''.
3. What we are concerned with in this case are not foreign ships, public Or private, on the high seas; hut merchant ships of other nations within the territorial waters of this country. And all that we need say is that the concept of a floating island cannot be invoked for the avoidance of taxation under any domestic enactment. aS pointed out in Cunard Steamship Co., Ltd. v. Mellon, (1922) 262 US 100:
'The merchant ship of one country voluntarily entering the territorial limits of another subjects herself to the jurisdiction of the latter. The jurisdiction attaches in virtue of her presence, Just as with other objects within those limits. During her stay she is entitled to the protection of the laws of that place and correlatively is bound to yield obedience to them, of course, the local sovereign may out of considerations of public policy choose to forego the exertion of its jurisdiction or to exart the same in only a limited way, but this is a matter resting solely in its discretion.'
4. It follows that the T. R. C. has to be dismissed and we do so. The petitioner will pay the costs of the respondent, Advocate's fee Rs. 150/-.