THE ANNETTE; THE DORA
[1919, fos. 134, 135.]
 P. 105
COUNSEL: Bateson K.C. and F. Hinde for the plaintiffs.
Dumas for the defendants.
SOLICITORS: For the plaintiffs: W. A. Crump & Son.
For the defendants: Ince, Colt, Ince & Roscoe.
JUDGE: Hill, J.
DATES: 1919 Feb. 24, 26.
Admiralty – Jurisdiction – Discretion – Possession Actions – Foreign Ship – Status of Provisional Government of Northern Russia – Recognition of Sovereignty – “Informal” Recognition – Consideration of Foreign Municipal Law – Modern Practice.
The plaintiffs, Esthonian subjects, the owners of two sailing vessels, with the approval and support of the Esthonian Government, issued writs in rem claiming possession of the vessels, which had been requisitioned or sequestered by the Provisional Government of Northern Russia, and by them hired to a partnership association for the purposes of trading, subject to the control of the Director of Naval Transports. The Provisional Government entered appearances under protest, and motions were set down to set aside the writs and all subsequent proceedings on the grounds, inter alia, that the vessels were in the service of the Provisional Government and therefore immune from arrest; and that the dispute was between foreigners as to the possession of foreign ships, and therefore that, even if the Court had jurisdiction, it should decline to exercise it.
The learned judge invited the assistance of the Foreign Office as to the status of the Provisional Government of Northern Russia, and was informed by the Secretary of State for Foreign Affairs that, while the Allied Powers were co-operating with the Provisional Government in the opposition which that Government was making to the forces of the Russian Soviet Government, the Provisional Government had not been “formally recognised either by His Majesty’s Government or by the Allied Powers as the Government of a sovereign independent state”:-
Held, (a) that the Court could not infer from the letter from the Foreign Office that the Provisional Government of Northern Russia had been “informally” recognized as a sovereign independent state; (b) that although under the control of an official of the Provisional Government the vessels were not in the possession or service of the Government; and (c) that, even under the older decisions, the Court in its discretion would entertain a possession suit between foreigners if the representative of the foreign state to which the vessel belonged requested the intervention of the Court. On all these grounds the motions would be dismissed.
In modern times the reasons for refusing to entertain a suit involving questions of foreign municipal law are much less strong than in the time of Lord Stowell.
MOTIONS to set aside writs, warrants of arrest, and all subsequent proceedings against two Russian sailing vessels, the Annette and the Dora.
The plaintiff in the case of the Annette was Arton Altenbrun, and in the case of the Dora, C. Markson. Both were Esthonian subjects. Each claimed “on behalf of himself and all others the owners” of the Annette and Dora respectively. The defendants were “the persons in possession” of the respective vessels “and all others claiming any right or interest therein.”
A number of grounds, which are stated in the judgment, were set out in the notices of motion, the chief grounds being (a) that the vessels had been sequestered and/or requisitioned by the Provisional Government of Northern Russia, and were running in the service of that Government; and (b) that the disputes being between foreigners as to the ownership of foreign ships, the Court should refuse to entertain the actions.
From the affidavits filed in support of the motions it appeared that the Annette, a vessel of 161 tons, of the port of Nava, and the Dora, a vessel of 137 tons, of the port of Riga, had been lying for two years at Archangel and were then sequestered and/or requisitioned by the Provisional Government of Northern Russia in or about September, 1918. Certificates in lieu of bills of sale were then given by the director of Naval Transports in Archangel to the Co-operative Labour Association of the Russian merchant fleet known as the “Polyarnaya Zvyezda” (Polar Star), which stated that by agreement dated September 20, 1918, the vessels were hired to the Polar Star Association “for the purpose of trading, the members of the association personally co-operating in the execution of all work connected with the exploitation of the vessels for their mutual account and risk.” It also appeared that the trading was to be under the control of the director of Naval Transports. In pursuance of these agreements the Polar Star Association loaded cargoes of tar in the two vessels for Liverpool where they were arrested in the present actions by the plaintiffs, who alleged that the vessels had been left at Archangel, as it was impossible to get them away owing to the fact that the Russians were fighting amongst themselves, and the owners were entirely shut off from Archangel. The affidavits to lead the warrants of arrest were made by the Esthonian consular agent for Liverpool.
When the motions came before the Court on February 17 Hill J. said that he would require information from the Foreign Office as to the status of the Provisional Government of Northern Russia and adjourned the hearing for this purpose. At the adjourned hearing the following letter from the Foreign Office to the Admiralty Marshal was read:
“Sir, – I am directed by Earl Curzon of Kedleston to acknowledge the receipt of your letter of the 17th inst., requesting that Sir Maurice Hill, Judge of the Admiralty Court, might be furnished with a certificate in writing setting forth the status and position of the Provisional Government of Northern Russia – namely, as to whether such government is one duly recognised by His Majesty’s Government and has all the attributes of a sovereign state.
“In reply I am to inform you that the Provisional Government of Northern Russia is composed of Russian groups who do not recognise the authority of the Russian Central Soviet Government established at Moscow. The seat of the Government is Archangel, and it extends its authority over the territory surrounding that port and to the west of the White Sea up to the Finnish frontier. As the title assumed by that Government indicates, it is merely provisional in nature, and has not been formally recognised either by His Majesty’s Government or by the Allied Powers as the Government of a sovereign independent state. His Majesty’s Government and the Allied Powers are however at the present moment co-operating with the Provisional Government in the opposition which that Government is making to the forces of the Russian Soviet Government, who are engaged in aggressive military operations against it, and are represented at Archangel by a British Commissioner. The representative of the Provisional Government in London is Monsieur Nabokoff, through whom His Majesty’s Government conduct communications with the Archangel Provisional Government.
“I am, Sir, etc.” Feb. 26. Dumas for the defendants in support of the motions. The letter from the Foreign Office merely states that the Provisional Government has not been “formally” recognized as having the status of a sovereign independent state. The facts (a) that there is a representative of the Provisional Government in London through whom His Majesty’s Government conduct diplomatic communications, and (b) that British troops are fighting on behalf of the Provisional Government show that, at any rate, the Government has been “informally” recognized. The cases therefore are indistinguishable from The Gagara (1), where the informal recognition of the Esthonian Government was held sufficient to constitute that Government for the time being a sovereign power. The Provisional Government sequestered or requisitioned the vessels, and although run by the Polar Star Association the Government remains in possession of them through its agent, the director of Naval Transports. Cf. The Broadmayne. (2) Further, there are disputes between two foreign owners involving an intricate inquiry and probably a number of commissions to take evidence in Russia as to the Russian law on the subject. “It is with the greatest reluctance that the Court adjudicates in suits of possession where foreigners alone are concerned.” See Williams’ and Bruce’s Admiralty Practice, 3rd ed., pp. 29 and 30, and the cases there cited.
Bateson K.C. and F. Hinde for the plaintiffs. The defendants have not made out that the Provisional Government is a sovereign independent state using the vessels for public purposes. Neither vessel is in the possession of the Provisional Government, which parted with its control when it hired the vessels out for purposes of trade. The Court will always entertain an action between foreigners when both parties are before it, and the plaintiffs’ Government, as in the present case, request the Court to intervene. See The See Reuter. (3) The reason underlying the old cases in which the Admiralty Court declined to adjudicate in possession cases was the fear of prohibition if it interfered in cases which might involve questions of title, but since the Admiralty Court Act of 1840 conferred jurisdiction to investigate questions of title the reason disappeared. There are no Courts in Russia at the present time in which the plaintiffs could seek redress, and the actions should be allowed to proceed.
Dumas, in reply, cited The Victoria (1) and The John. (2)
HILL J. I will deal first with the Annette. In this case a writ in rem has been issued by Anton Altenbrun, “on behalf of himself and all others, the owners of the sailing vessel Annette,” against “the persons in possession of the sailing vessel Annette, and all others claiming any rights or interest therein.” A warrant of arrest has also been taken out and executed, the ship is under the arrest of the Court, and the writ has been served in rem upon the ship. The affidavit to lead warrant was made by Mr. A. V. Timusk, describing himself as Esthonian consular agent for the City of Liverpool. The Annette was in Liverpool, and was there arrested, and the affidavit alleges that in September, 1918, when the Annettewas lying at Archangel, “one Edward Sloka and other persons wrongfully took possession of the said vessel, and, purporting to act as owners of such vessel, have since been, and are still, in wrongful possession of the same”: and also that he (Mr. Timusk) was informed that Edward Sloka was acting as master.
The vessel was also stated to be registered at the port of Narva, in Esthonia. That seems to be the fact.
So far as the matter stands on that affidavit it would appear to be a dispute between the plaintiff on the one hand on behalf of himself and the other owners of the Annette and Mr. Sloka and others on the other hand, as to the right to the possession of an Esthonian merchant vessel, of which the plaintiff alleges himself to be the owner and of which Mr. Sloka and others have possession. An appearance under protest has been entered for the defendants, who are described as the persons in possession and all others claiming any rights or interest in the ship. The motion is made to set aside the writ, the arrest, and all subsequent proceedings.
Counsel in support of the motion says that he appears on behalf of the following persons: (1.) The Provisional Government of Northern Russia; (2.) Mr. Sloka, as master of the Annette; and (3.) Mr. E. H. G. Breede, appointed by the Provisional Government of Northern Russia to manage the Annette on behalf of that Provisional Government. The notice of motion gives a number of reasons why the writ, arrest and all subsequent proceedings should be set aside. The first is that “no notice has been given to the Russian Consul.” If there is anything it that, it has been cured, because notice has now been given. Then there are these reasons: that “the sailing vessel Annette was and is in the service of the Provisional Government of Northern Russia; that the said vessel is sequestered by and/or requisitioned by the said Provisional Government of Northern Russia and is running in the service of such Government; that the said vessel in such circumstances is immune from arrest; that the said vessel is the property for the time being of the said Provisional Government of Northern Russia.” That is one group of objections. The other ground of objection is that this dispute is between two foreigners as to a foreign vessel, and it is said that even if the Court has jurisdiction, it ought in its discretion to decline to exercise it.
I will deal first with the main point, which is that the vessel is in the possession of a Government which for the time being is a sovereign Government, and is being used by that Government for public purposes; and accordingly that the Court cannot allow arrest of the ship and cannot compel the Government by arrest to submit to a jurisdiction to which it is under no obligation to submit unless it chooses to do so. In my opinion the answer to that depends upon the consideration of two or possibly three matters. First, is this Government for the time being – I think it is sufficient if it is for the time being – recognized by the British Government as a sovereign power? Secondly, is it in fact in possession of the vessel? And, thirdly, it might be necessary to consider, if it is in possession, is it using the vessel for public purposes? I am not sure that if I were satisfied that the Provisional Government was a sovereign power, and was in possession, I should consider myself at liberty to look any further.
On the question whether this Government which claims to be a de facto sovereign power is so recognized, I invited the assistance of the Foreign Office, and I have their letter. Having read the letter with great care, I am unable to draw from it the conclusion that the Provisional Government of Northern Russia is recognized by the British Government as a sovereign power. [His Lordship read the letter set out above and continued:]
The position upon this letter seems to me to be very different from the position in The Gagara (1), where statements were made to the Court by the Law Officers of the Crown as to the recognition of the Esthonian Provisional Government. I have here a mere negative statement that the Provisional Government of Northern Russia “has not been formally recognised” by his Majesty’s Government. I am asked to infer from that that it has been “informally recognised” as a sovereign state. I do not think I ought to draw that conclusion. I must be satisfied before I can recognize the Provisional Government of Northern Russia as a sovereign state, for the purposes of this case, that the British Government so recognize it. I am not satisfied.
But even if I were satisfied that the Provisional Government of Northern Russia was a sovereign state, I should then have to consider whether the Government is in possession of this vessel. If it is not in possession, the Court interferes with no sovereign right of the Government by arresting the vessel, nor does it, by arresting the vessel, compel the Government to submit to the jurisdiction or to abandon its possession. As I read the affidavits which have been filed on behalf of the applicants, disregarding those on the other side – for it is merely a motion to determine whether I should allow the case to continue and not to decide the case finally – it is not made out to my satisfaction at all that the vessel is in the possession of the Provisional Government – quite the contrary – nor that the vessel has been in the use of the Provisional Government for public purposes. It is said that the Annette, being at Archangel, was requisitioned or sequestered, but the same document which states that – namely, the certificate (in lieu of bill of sales put on board the vessel – says that the vessel was afterwards transferred by agreement dated September 20, 1918, “whereby the vessel is hired to the said Association, ‘Polar Star,’ for the purpose of trading, the members of such association personally co-operating in the execution of all work connected with the exploitation of the vessel for their mutual account and risk, they giving a reciprocal bond whereby each member is responsible for the whole, such trading to be under the control and in accordance with the instructions of the director of Naval Transports.”
In my opinion all that the affidavits show is that this vessel, having been taken over by the Provisional Government of Northern Russia, was let out to hire to some sort of partnership called the “Polar Star” for the purpose of trading, and that the “Polar Star” were to run the vessel for their mutual account and risk, but subject to the limitation, that the trading was to be under the control and in accordance with the instructions of the director of Naval Transports. It seems to me that upon the vessel being handed over to that association, if she ever was in the possession of the Provisional Government she passed out of that possession and was put into the possession of this partnership, not as agents of the Provisional Government, but under a contract by which, in effect, the vessel was demised to the partnership; and that from that time forward nobody was in possession of the vessel except the partners, or if the partners embrace more than the master and crew – it is not very clear how that is – she was in the possession of the master and crew for the partnership. The fact that by the contract it was provided that the trading should be under the control and instructions of an official of the Provisional Government does not seem to me to affect the possession of the vessel. It further appears that so far from the vessel being used for what may be regarded as any public purpose, the Annette loaded tar for Liverpool – conceivably that may be Government export from Archangel and was then to load pitch from Liverpool for Spain, and then salt from Spain for Iceland. I will mention now, while I am upon it, that in the case of the Dora the facts are very similar. She also loaded tar for Liverpool, and then was to load salt for Iceland, and fish from Iceland to Fleetwood.
The conclusion I have arrived at is that the parties moving have wholly failed to make out that the Annette is in the possession of the Provisional Government, even if the Provisional Government is to be regarded as a sovereign state. She is in the possession of Mr. Sloka, the master, or possibly of Mr. Sloka and the rest of the crew; and the real question to be litigated is one as to the right of possession between the plaintiff, who is admitted to be owner, and the master, who is in fact in possession, claiming the right of possession under contract with the Provisional Government, but still claiming to be entitled to possession.
There is no question that in such a dispute, though the vessel is a foreign vessel, and though the parties are foreigners, the Court has jurisdiction. That cannot be questioned. It always had jurisdiction, as I understand, in actions of possession, and by the Admiralty Court Act, 1840, it acquired jurisdiction to investigate questions of title. The long-continued practice, however, was for the Court to decline to exercise jurisdiction where the action was an action of possession in respect of a foreign vessel, and the claimants were both foreigners. But to that practice there was this exception – that the Court, though loth to exercise jurisdiction, might be induced to exercise jurisdiction if the parties consented or if the representative of the foreign state to which the vessel belonged requested it. In some of the earlier decisions, notably in The Johan and Siegmund (1) Sir Wm. Scott used language which would indicate that both these conditions had to be fulfilled – the consent of the parties and the request of the accredited agent of the country to which they belonged. But it is clear from later decisions see, for example, The See Reuter (2) – that Lord Stowell would have exercised jurisdiction notwithstanding an objection by one of the parties, if he was satisfied that he had the consent of the foreign state, and in that case he inferred consent from the fact that judgment had been given by a Court of the foreign country, and he was only enforcing that judgment by exercising jurisdiction over the ship in this country. The same principle was applied in The Evangelistria. (1) In each of these cases there was a decree of the foreign Court from which assent was inferred. The point is the assent of the foreign state, disregarding the assent or the absence of assent of the parties.
Here, as far as the Annette goes, it is sufficient to say that the plaintiff is supported by his own Government, the Esthonian Government, which is the Government of the port of registry of the vessel. This therefore is the exceptional case in which, even under the old decisions, the Court would exercise jurisdiction – namely, a foreign vessel and foreign disputants, with a request by the Government of the country of the vessel to this Court to exercise jurisdiction. I therefore see no reason why I should decline to exercise jurisdiction in the case of the Annette, and I accordingly dismiss the motion.
With regard to the Dora, the facts are almost identical except in one particular. The Dora is registered at Riga. The owner, Mr. Jacob Markson, is an Esthonian subject living in Esthonia. Otherwise the position is the same, except that the affidavit to lead the warrant says that Paul Purrin and others wrongfully took possession of the vessel. Mr. Purrin is the master, so that in the Dora Mr. Purrin takes the place of Mr. Sloka in the Annette. All that I have said about the Provisional Government of Northern Russia and possession applies equally to the case of the Dora. It is equally the case in the Dora that the vessel is a foreign vessel, that the disputants, in my view, are the owner and the master or the master and the rest of the crew. Ought I to decline to exercise jurisdiction because the vessel is registered at Riga, the owner being an Esthonian, and the Esthonian Government in his case also, asks the Court to entertain the action?
I cannot help thinking that the cases to which I have referred are somewhat out of date. They proceed upon the principle that this Court cannot properly consider questions of the municipal law of foreign countries, and that the possession and ownership of a vessel must depend upon the municipal law of the flag. In more modern times it is quite a common thing for other Courts to have to determine questions involving a consideration of the municipal law of foreign countries, which are tried on evidence as to what that law is. Anyone who has practised in the Commercial Court must be quite familiar with questions of that kind being investigated, and I see no greater difficulty in regard to a vessel than I do as to anything else. This Court itself is frequently bound to consider questions of foreign law, in wages, bottomry, or mortgage actions, where the Court will entertain a suit against a foreign vessel.
The matter seems to me to be one of discretion, and the reasons for exercising the discretion by refusing to entertain a suit seem to me much less strong in modern days than they were in the days of Lord Stowell, and less strong than they were even in the days of Sir Robert Phillimore. When I find that this vessel is owned admittedly by an Esthonian, and the Court is invited by the Esthonian Government to entertain jurisdiction, and when I find that there is no evidence, or that it has not been shown to me that there is any evidence, of any other Government which would have an interest in the matter; and when, also, I am left in doubt as to whether there are Courts at Riga or what the Government there is, I think I ought to exercise my discretion by holding that I will entertain this action also.
The motion in the case of the Dora will therefore also be dismissed. I, of course, decide nothing about the final rights of the parties. I am merely determining whether this is a case in which I ought at this stage to set aside the service of the writs, and I decide that I ought not.
The motions in both cases are dismissed with costs.
E. C. T.