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Indian National Steamship Co. Ltd. Vs. Maux Faulbaum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 3248 of 1953
Judge
Reported inAIR1955Cal491
ActsInternational Law; ;Code of Civil Procedure (CPC), 1908 - Section 9
AppellantIndian National Steamship Co. Ltd.
RespondentMaux Faulbaum
Appellant AdvocateB. Das and ;S. Ghosh, Advs.
Respondent AdvocateD.R. Das, Adv.
DispositionApplication dismissed
Cases ReferredUnited States of America and Republic of France v. Dollfus Mieg
Excerpt:
- .....said reels of cable. in paragraph 15 of the said petition it was asserted that the petitioner is a sovereign state recognised by the government of the union of india, and this fact was admitted in the affidavit in opposition filed on behalf of the indian national steamship co., ltd. on 1-4-1954 this court acceded to that application of the petitioner and directed an enquiry into the interest of the petitioner in the said 51 reels of cable. the enquiry was directed to be held on 25-5-1954. the court also gave directions for discovery of documents by letter. it appears that pursuant to the said order the solicitor for the petitioner on 3-5-1954 disclosed certain documents and on 14-6-1954 offered inspection thereof to the solicitors for the plaintiff. further, on 6-7-1954 an application.....
Judgment:
ORDER

Bose, J.

1. This is an application by the Republic of Indonesia for an order granting the petitioner leave to take actual possession of and remove 51 reels of cable notwithstanding the appointment of a Receiver by this Court in respect thereof, (in the present suit in which this application is made) and in the alternative for an order vacating the order for the appointment of a Receiver and directing the Receiver to release the said goods, and to give delivery thereof, to the petitioner. The petitioner also seeks to be added as a defendant in the suit for the limited purpose of making and being heard on the present application.

2. The case of the petitioner is that it is a sovereign independent State and the Indonesian Purchasing Commission which is a department of the Defence Ministry of the Government of Indonesia purchased 51 reels of cable from Alfred Lohse, Exporters, Hamburg, for the price of 94058 Deutsche Marks which is equivalent to Rs. 1,07,444/- approximately & shipped the said goods on board the vessel S.S. 'Shiva Ranjita' for carriage from Hamburg to Djakarta under a Bill of Lading dated 19-12-1952.

The freight in respect of the goods was prepaid before the issue of the said Bill of Lading, a copy of which is annexed to the petition and marked A. The said goods were consigned in favour of staff A of the headquarters of the Air Force to the Republic of Indonesia, which is a department of the Ministry of Defence of the said Republic. The petitioner claims to be the endorsee and/or the consignee of the said Bill of Lading and in any event the owner of the goods covered by the said Bill of Lading.

The Petitioner further claims to be in constructive possession of the goods and as being entitled to immediate actual possession of the said goods.It appears that the vessel Shiva Ranjita altered its course and at the direction of the Indian National Steamship Company Ltd. who are the owners of thesaid vessel, she proceeded to Calcutta and there unloaded the entire cargo which was on board the vessel.

The Indian National Steamship Co. thereafter on 8-9-1953 tiled a suit in this Court against Maux Faulbaum the charterer of the said vessel being suit No. 3248 of 1953 (in which this application is being made) claiming certain sums alleged to be due to it on account of the arrears of hire of the said vessel and claiming a lien on all goods on board the said vessel including goods which are the subject-matter of this application. On 25-9-1953, Mr. S. Shiha, an advocate of this High Court, was appointed Receiver of the entire cargo of the said vessel by an order of this Court made in the said suit.

On 3-2-1954 the petitioner claiming a title paramount to that of the Receiver made an application to this Court in the said Suit No. 3248 of 1953 for leave to be examined pro interesse suo, and for an order directing an enquiry to be made as to whether the petitioner had any and what interest in the said 51 reels of cable and also for direction upon the Receiver to release and give delivery of the said reels of cable.

In paragraph 15 of the said petition it was asserted that the petitioner is a sovereign State recognised by the Government of the Union of India, and this fact was admitted in the affidavit in opposition filed on behalf of the Indian National Steamship Co., Ltd. On 1-4-1954 this Court acceded to that application of the petitioner and directed an enquiry into the interest of the petitioner in the said 51 reels of cable. The enquiry was directed to be held on 25-5-1954.

The Court also gave directions for discovery of documents by letter. It appears that pursuant to the said order the solicitor for the petitioner on 3-5-1954 disclosed certain documents and on 14-6-1954 offered inspection thereof to the solicitors for the plaintiff. Further, on 6-7-1954 an application was made by the petitioner for issue of letters of requests for examination of witnesses in Holland, to prove the title of the petitioner to the said goods in the said enquiry, directed by this Court.

In the petition filed in support of that application the issues arising in the enquiry were set Out and it was also asserted in paragraph 1 of the petition that the Republic of Indonesia is a sovereign State. It appears that in the affidavit in opposition filed in this proceeding for issue of Letters of Request, the fact of the petitioner being a Sovereign State was admitted. On 29-7-1954 this Court ordered the issue of letters of requests but the said order was made conditional upon the petitioner depositing Rs. 5000/- with its solicitors, prior to the issue of the said letters of requests,

In compliance with the said order dated 29-7-1954 the petitioner on 28-8-1954 deposited with its solicitors the said sum of Rs. 5000/-, as directed. On 10-12-1954 the Embassy of the Republic of Indonesia in India made a representation to the Minister for External Affairs of the Government of India stating that the said goods being the public property of the petitioner, which was a foreign sovereign State, were immune from the legal processes of the Courts in this country according to recognised principles of international law and comity of nations and requested the Government to recognis such claim to immunity. On 14-12-1954 the Secretary to the Government of India, Ministry of External Affairs, sent a certificate to the Embassy of the Republic of Indonesia stating that the Government of India accepted the contentions set forth in the said presentation as true and the petitioner is entitled to the immunity as claimed.

On 2-2-1955 the notice of motion of the present application was taken out. It appears that the goods are at present lying with the Commissioners for the Port of Calcutta and the Receiver has not yet taken actual possession of the said goods. It is disputed by the petitioner that the plaintiff (Indian National Steamship Co.) has any right, title or interest in the said goods or it has any valid claim for lien in respect of same.

3. Mr. B. Das, the learned counsel for petitioner has placed reliance on the case of -- 'Vavasseur v. Krupp', (1878) 9 Ch D 351 (A), and has contended that the Courts in this country have 110 jurisdiction to prevent a foreign sovereign State from removing its property in this country, and consequently notwithstanding the appointment of the Receiver ordered by this Court on 25-9-1953, this Court should release the 51 reels of cable from its custody and give liberty to the petitioner to take delivery of the same from the Port Commissioners and deal with them in such manner as it pleases.

It is to be noted that in this case of 'Vavasseur v. Krupp (A)' it was not disputed that the Shells which were the subject-matter of the proceeding in that case, were sold in Germany to the Mikado of Japan and paid for by the agents of the Mikado, and this purchase and sale was a perfectly lawful purchase and sale. (p. 357 top). Further the plaintiff in that case brought an action claiming injunction and damages for infringement of the plaintiff's patent for making shells, against F. Krupp of Essen in Germany, Alfred Longsden, his agent in England, and Ahrens and Co. who were the agents of the Mikado of Japan, and in that action an order for injunction was made restraining the defendants from parting with or delivering the shells to the Government of Japan or to anybody else.

Upon that, an application was made on behalf of the Mikado for an order that notwithstanding the injunction, the Mikado might be at liberty to remove the shells. There was no question of the Mikado submitting to the jorisdiction of the Court in the sense that he waived the privilege of immunity from the legal process of the municipal Courts of the country in respect of his public property which was destined to the use or the State of Japan.

The Mikado only 'submitted to the jurisdiction of the Court as to discovery, as to process and as to costs' (page 356). The Mikado made a conditional appearance in the action and applied to be added as a defendant, for the purpose of relieving his own property from a fetter which had been put upon it by the order of injunction. In the circumstances it was held that by this limited submission to jurisdiction the Mikado did not lose his rights to claim immunity from the processes of the municipal Courts, in respect of the public property of his country.

4. In the case before me the Republic of Indonesia, by its application for leave to be examined pro interesse suo, came forward to establish its title to the 51 reels of cable as against the adverse claim of the plaintiff in this suit (see (1878) 9 Ch D 351 at p. 361 (A) per L. J. Cotton) and also asked this Court to investigate into the question of title of the Republic and this Court has ordered an inquiry as asked for, and has given certain directions as to costs of that application.

Further in order that the pro interesse proceedings may be effective, the petitioner applied forissue of Letters of' Requests to examine -witnessesin Holland to prove the title of the petitioner. Aconditional order was made and the petitioner hascomplied with the condition and deposited Rs.5,000/- with its solicitors. There cannot thereforebe any doubt that the petitioner has submitted to the jurisdiction of this Court and has 'waived its privilege to claim immunity from the jurisdictionof this Court.

5. The petitioner in the present application is asking the Court to release the goods without making any inquiry as to title and so the 'effect of this Court acceding to this application will be to nulily the order for inquiry which the petitioner itself asked this Court to make and which order this Court did make on 1-4-1954.

6. Mr. B. Das has drawn my attention to the case of -- 'Dutt Development Co. Ltd. v. Govt. of Kelantan', (1924) AC 797 (B) and has pointed out that although in that case the Kelantan Government had applied for setting aside an award of an arbitrator under Section 11, Arbitration Act (52 and 53 Vict., Ch. 49) and thereby submitted to the jurisdiction of the Court, this fact did not preclude the Government from claiming the immunity in a separate and distinct proceeding which was brought by the Duff Development Company Ltd. for enforcing the Award under S. 12 of the Act.

Reliance is placed on the observations of Viscount Cave and Viscount Finlay at pages 810 and 816-820. But it may be noted that Lord Carson . disagreed with the views expressed by Viscount Cave and Viscount Finlay (See page 835).

7. I am unable to treat the application for leave to be examined pro interesse suo, and for an inquiry, and the present application as two independent and distinct proceedings. The earlier application asked for inquiry as to title and for release of the goods after such inquiry, but the present application asks for release of the goods without any inquiry as to title of the petitioner. The object of the present application is to nullify the inquiry proceedings initiated by the earlier application for examination pro interesse suo.

8. In the case of -- 'Sultan of Johore v. Abubakar Tunku Aris Bendahar', (1952) 1 All ER 1261 (C) Viscount Simon in delivering the judgment of the Judicial Committee, distinguished this case of 1924 AC 797 (B) and held that a proceeding instituted by Sultan of Johore by way of originating Summons in a Japanese Court in Singapore for determining the question of validity of two Deeds relating to certain plots of land which were gifted away to the son of the Sultan, and a subsequent originating summons which was taken out by the Son of the Sultan to set aside the decree of the Japanese Court or for leave to appeal against it, in the Supreme Court of Singapore which was set up, after the Japanese occupation of Singapore had ceased, were part of and continuation of the same proceeding.

9. It is true that in that case Section 3(1) of the Japanese Judgments and Civil Proceedings Ordinance, 1940, made provision for review of the Japanese decrees or for appeal against such decrees and so the proceeding by way of review or appeal was treated as continuation of the proceeding instituted by the Sultan in the Japanese Court, (See pages 1267-1268 of (1952) 1 All ER (C)), but as I have pointed out already the object of the present application by the Republic of Indonesia is to nullify the earlier proceedings for examination pro interesse suo which is pending in this Court, and in this sense it is a continuation of or in other words it is in effect an application for review or revocation of the order made by this Court on 1-4-1954.

10. Mr. B. Das also referred to Halsbury --Vol. I, para. 30, page 28 (bot.) -- to page 29, for the proposition that even though a foreign sovereign state has submitted to jurisdiction, there can still be no waiver of the right of removing its property. Itappears however that the statement in Halsbury is based on the case of (1878) 9 Ch D S51 (A) to which reference has already been made in an earlier part of this judgment. But that case does not warrant the broad proposition as is contended for by Mr. B. Das.

The statement in Halsbury is to be understood and read in the light of the facts of that case. What was held in that case was that submission to jurisdiction for the limited purpose of claiming immunity and getting rid of the order or process of Court which adversely 'affected the property of the Sovereign State, did not prevent the Sovereign State from removing the property from England.

11. Mr. B. Das also submitted that as the present application could not be made without getting some evidence of recognition of the Sovereign status of the petitioner by the Indian Government, and as such recognition was not obtained till the 14th December 1954, the application must be treated as a separate 'and distinct proceeding and no question of any waiver of immunity by reason of the application for examination pro interesse suo, can arise. But as I have pointed out already, the fact that the petitioner was a Sovereign State recognised by the Government of India was also asserted in the previous petition and this fact was not disputed by the plaintiff. There was thus no necessity of obtaining any evidence of formal recognition from the Government of India. If the Court felt the necessity of any information on this point, the Court would nave entered into correspondence with the appropriate authorities of the Government for obtaining the requisite information.

12. It appears to me that the petitioner has waived its claim for immunity by submitting to the jurisdiction of this Court and the petitioner cannot get any relief in this application.

13. It has been contended by Mr. D. R. Das the learned counsel for the plaintiff-respondent thateven if it be held by this Court that the Republicof Indonesia has not submitted to the jurisdiction of this Court by making the application' for leave to be examined pro interessc suo and obtaining an order thereon and by following it up by taking other steps and proceedings in connection with that application, the petitioner cannot get any relief in the present application without proving by proper evidence that it has a prima facie title to the 51 Reels of Cable, and the Certificate granted by the Government of India or the declaration made by the representative of the Government of Indonesia cannot be treated as conclusive on this question of title to the goods in question.

14. Mr. D R. Das places reliance on the observations of Lord Sumner in the case of 1924 AC 797 at p. 826 (B) to the following effect:

'To ask if the Crown has recognised a State as a Sovereign State is one thing; to ask exactly what the boundaries of the State are at any time and whether certain persons live within or without them is quite another.'

15. Then at p. 827 the same learned Law Lord concluded by saying that:

'I think that such boundaries, where no acts of the Crown with regard to them have been involved, must depend on evidence given in the ordinary way.'

16. Then again in tbe case of -- 'Compania Naviera Vascongado v. Steamship Cristina', 1938 AC 485 at p. 502 (D) (also cited by Mr. D. R. Das), Lord Wright observed:

'In the present case the fact of possession was proved. It is unnecessary here to consider whether the Court would act conclusively on a bare assertion by the Government that the vessel is in its possession, I should hesitate as at present ad-vised, so to hold, but the respondent here has established the necessary facts by evidence.'

17. Lord Maugham in the same case 1938 AC 485 (D) also made similar observations:

'The immunity of a Foreign Government and its ambassador as regards property does not stand on the same tooting......... It is clear, I think thatthe property in the goods and chattels would have to be established if necessary, in our Courts before the immunity could be claimed. The Ambassador could not be sued in trover or detinue, but it the property were not in his possession and he had to bring an action to recover it, I am of opinion that he would have to prove in the usual way that the goods were his property.

Speaking for myself, I think that the position, of a foreign Government is the same. There is I think neither principle nor any authority binding on this House to support the view that the mere claim by a Government or an Ambassador or by one of its servants would be sufficient to bar the jurisdiction of the court except in such cases as ships of War or other notoriously public vessels or other public property belonging to the State.'

18. Mr. B. Das, the learned counsel for the petitioner has on the other hand contended that the declaration by a Foreign Sovereign State or its representative to the effect that a particular property belongs to it or is in its possession is conclusive and the Court cannot enquire into the correctness or otherwise of such a declaration or require proof of such tide or possession from the Sovereign State.

19. Mr. B. Das refers to the observations of L. J. Scrutton in the case of -- 'Aksionairnoye Obschestvo, A. M. v. James Sagor and Co.', (1921) 3 KB 532 at p. 555 (E) which are follows:

'If Mr. Krissin had brought these goods with him into England and declared on behalf of his Government that they were the property of the Russian Government, in my view, no English Court could investigate the truth of the statement. To do-so would not be consistent with the comity of nations as between Independent Sovereign StateIf by any misadventure the authorised representative of a sovereign state should claim property not really belonging to the State it appears to me that the remedy is by diplomatic means between States, not by legal proceedings against an independent Sovereign.'

20. Mr. B. Das has also drawn my attention to the case of 'The Parliament Beige', (1880) 5 PD 197 (F) and particularly to the following observations at p. 219 (Last paragraph):

'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 enquire by contentious testimony whether that declaration is or is not correct. To submit to such an enquiry before the court is to submit to its jurisdiction. 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 Schooner Exchange v. M'Faddon', (1812) 7 Cranch 116 (G) (pages 219-220)'.

21. It appears that the Court of Appeal in England in the recent case of -- 'Sayce v. Ameer, Bahawalpur State', (1952) 2 All ER 64 (H) has held that a certificate given by the Commonwealth Relations office was conclusive as to the fact that the State of Bahawalpur was not within His Majesty'sDominions, and that within the limits stated, the defendant was the Sovereign ruler of the State.

22. It thus appears that the Courts have spoken with divided voice on the question whether the declaration of a Sovereign State that any property belongs to it or is in its possession is conclusive or not. Similarly the decisions of the Courts on the point whether a certificate granted by the Government or the country testifying to matters or facts in relation to a Foreign Sovereign State other than as to its sovereign status, is conclusive or not as to such matters or facts have been far from uniform.

23. It appears however to be the trend of modern decisions that mere assertion of a claim by a Foreign Sovereign to a property which is not admittedly vested in him or which is not in his possession cannot attract the principle of immunity from the legal processes of the Municipal Courts of the Country.

24. It has been held that the doctrine of immunity does not extend to cases where the property is in the hands of a third person and the (Foreign Sovereign has merely made a claim to it.(Haile Selassie v. Cable and Wireless Co. Ltd.,(1938) 1 Ch 839 at p. 845-846 (I)).

25. In the case before me the petitioner holds the Bill of Lading under which the goods were shipped. Maux Falbaum who was the character of the vessel and who issued the Bill of Lading and with whom the goods were entrusted for carriage was in the position of a bailee in respect of the goods and so the possession of Maux Falbaum was the legal possession of the Republic of Indonesia. It is true that the petitioner was not in actual physical possession of the goods when they were on board the vessel but the petitioner or is representatives mentioned in the Bill of Lading had the immediate right to possession of the goods, and it has been held that this is sufficient to attract the principle of immunity.

This is the view taken by the House of Lords in the case of -- 'United States of America and Republic of France v. Dollfus Mieg ET Compagnie S. A. and Bank of England', (1952) 1 All ER 572 (J). The speeches of Viscount Jowitt, Lord Porter and Lord Radcliffe are very instructive on the point.

26. But the case before me is complicated by the further fact that Maux Falbaum has been forced to part with possession of the goods and the goods are lying with the Commissioners of the Port of Calcutta and are incurring demurrage at their hands.

27. Now although it may be said that the petitioner is not in possession of the goods after they passed into the custody and possession of the Commissioners of the Port of Calcutta, the Bill of Lading annexed to the petition shows that it is the departments of the Government of Indonesia who are entitled to the delivery of the goods. A Bill of Lading is a document of title to the goods.

28. It is therefore clear that the petitioner has made out on affidavits a somewhat prima facie case as to its claim to immunity from interference by this Court with regard to the goods in question but as the petitioner has in my view submitted to the jurisdiction of this Court, the petitioner is not entitled to get any relief in this application.

29. Some comment was made as to the natureof the Certificate which has been obtained in thiscase from the Government of India by the petitionerbut I do not think that such certificate obtained bymeans of correspondence between the Foreign Sovereign State and the Government of this country'can be described as a thing altogether unknownor irregular. (See (1952) 1 All EH 1261 at p. 1266(C) (bottom) -- last two paragraphs).

30. This application is dismissed.

31. As the matter is not free from doubt and. difficulty I direct that each party will bear and pay its own costs of this application.


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