93 Mass. 157), an American case, of which he obviously approves and on which he founds his own conclusion. He says: “ The ground of that judgment is that the public property of a government in use for public purposes is beyond the jurisdiction of the courts of either its own or any other state, and that the ships of war are beyond such jurisdiction, not because they are ships of war, but because they are public property. It puts all the public movable property of a State, which is in its possession for public purposes, in the same category of immunity from jurisdiction as the person of a Sovereign, or of an ambassador, or of ships of war, and exempts it from the jurisdiction of all courts for the same reason—viz., that the exercise of such jurisdiction is inconsistent with the inde
pendence of the sovereign authority of the State.”
And then again, when he is summing up the principle which he thinks is to be deduced from all the cases he says, “ As a consequence of the absolute inde
pendence of every sovereign authority and of the international comity which induces every sovereign State to respect the independence of every other sovereign State, each and every one declines to exer
cise by means of any of its courts, any of its territorial jurisdiction over the person of any Sovereign or ambassador of any other State, or ”•—and these are the material words— “ over the public property of any State which is destined to its public use, or over the property of any ambassador, though such Sovereign, ambassador . or property be within its territory, and, therefore, but for the common agree
ment, subject to its jurisdiction.” Whatever may be the actual use to which the ship is put, I think the evidence is quite sufficient to show that she is the property of the State, and is destined to public use ; and therefore, the case seems to me to come exactly within the principle of the judgment in The Parlem ent Beige (sup.).
Scrtjtton, L.J. stated shortly the facts and continued :—This and other States proceed in their jurisprudence on the assumption that sovereign States are equal and independent, and that, as a matter of international courtesy, no one sovereign independent State will exercise any jurisdiction over the person of the Sovereign or the property of any other sovereign State ; and now that the Sovereigns move about more freely than formerly, and Sovereigns and States do things which they used not to do, the question arises whether there are any limits to the immunity which international courtesy gives as between sovereign independent States and their Sovereigns. I think it has been well settled, first, as to the Sovereign, that there are no limits to the immunity which he enjoys. His private character is as free as his public character. If he chooses to come into this country under an assumed name and to indulge in privileges not peculiar to Sovereigns, of making promises of marriage and breaking them, the English courts still say, on his appearing in his true character of Sovereign and claiming his immunity, that he is wholly free from the jurisdiction of our courts: ( M ig h e ll v. S u lta n o f Johore, 70 L. T. Rep. 64; (1894) 1 Q. B. 149).
It has been held, as counsel admits in The Parlem ent Beige (sup.) that trading on the part of a Sovereign does not subject him to any liability to the juris
diction. His ambassador is in the same position;
an ambassador coming here as an ambassador of the Sovereign may engage in private trading, but it has been held that this immunity still protects him even from proceedings in respect of his private
[Ct. o f Ap p. trading. Jervis, C.J. in T a y lo r v. Best (1854, 18 Jur. 402 ; 14 C. B. 487, 519): “ . . . if the privilege does attach, it is not, in the case of an ambassador or public minister, forfeited by the party’s engaging in trade, as it would, by virtue of the proviso in 7 Anne, c. 12, s. 5, in the case of an ambassador’s servant. If an ambassador or public Minister, during his residence in this country, I violates the character in which he is accredited to
our court, by engaging in commercial transactions, that may raise a question between the Government of this country and that of the country by which he is sent; but he does not thereby lose the general privilege which the law of nations has conferred upon persons fulfilling that high character—the proviso in the statute of Anne limiting the privilege in cases of trading applying only to the servants of the embassy.” There being no limitation in the case of the Sovereign, nor of the ambassador, is there any in the case of the property ? Counsel has argued that in the case of property of the State there is a limita
tion and that, as I understand him, if the property is employed in trading, that cannot be for the public service of the State.
We are concluded in this court by The Parlem ent Beige (sup.). Sir Robert Phillimore took the view that trading with the property of a State might render that property liable to seizure; but the Court of Appeal overruled the views of Sir Robert Phillimore, as I understand them. The principle then laid down has beqn recited by the other members of the court. Brett, L.J. said : “ As a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign State to respect the independence of every other sovereign State, each and every one declines to exercise by means of any of its courts any of its territorial jurisdiction over the person of any Sovereign or ambassador of any other State, or over the public property of any State which is destined to its public use. . . .” One of the reasons given seems to me conclusive. The moment property is arrested in the Admiralty Court a proceeding is instituted against the person, and he is compelled to appear if he wants to protect his property ; and by seizing his property the personal rights of the Sovereign or the personal rights of the State are infringed. The position seems to me to be very accurately stated in the seventh edition of H all’s International Law at p. 211, where, after dealing with the warships and public vessels so called, Mr. Hall goes on to deal with other vessels employed in the public service and property possessed by the State within foreign jurisdiction, and says : “ If in a question with respect to pro
perty coming before the courts a foreign State shows the property to be its own and claims delivery, jurisdiction at once fails, except in so far as it may be needed for the protection of the foreign iStfttc.
I quite appreciate the difficulty and doubt which H ill, J., felt because no one can shut his eyes, now that the fashion of nationalisation is in the air, to the fact that many States are trading, or are about to trade, with ships belonging to themselves; and if these national ships wander about without lia
bilities, many trading affairs will necome difficult.
But while it seems to me that T he P a rlem ent Beige (sup .) excludes remedies in court, there are practical commercial remedies. If ships of the State find themseivres left on the mud because no
_____________________
m a r i t i m e l a w c a s e s.______________ 5
Ct. o f Ap p.] Cl a r k (t r.i d i k g as Wr ig h t, Cr o s s l e y, & C o.) v. Cox, McEw e n, & Co. [Ct. o f Ap p. one will salve them, when the State refuses any
legal remedy for salvage, their owners will be apt to change their views. If the owners of cargoes on national ships find that the ship runs away and leaves them to bear all the expenses of salvage, there may be found a difficulty in finding cargoes for national ships. These are matters to be dealt with by negotiations between Governments, and not by Governments exercising their power to interfere with the property of other States, contrary to the principles of international courtesy which govern the relations between independent and sovereign States. I think it is clear that we must in this court support the decision of H ill, J., and
dismiss the appeal. , , ,
r A p p e a l dismissed.
Solicitors for the plaintiffs, T hom as Cooper and Co., for H i l l , D ic k in s o n , and Co., Liverpool; for the defendants, B o tte re ll and Roche, for W eightm an, Redder, and Co., Liverpool.
T h u rs d a y , N o v . 20, 1919.
(Before
Lord St e r n d a l e, M.R. and At k i n and Yo u n g e r, L.JJ.)Cl a r k (t r a d in g as Wr ig h t, Cr o s s l e y, a n d Co.) v. Cox, McEw e n, a n d Co. (a)
A P P E A L F R O M T H E K I N G ’ S B E N C H D I V I S I O N . Sale o f goods— Goods to he sh ip p e d d u rin g stated
p e rio d—D e c la ra tio n—C a n ce lla tio n.
A contract f o r the sale o f pepper at sellers' ris k u n til delivery required the sellers to declare in w r itin g to the buyers w ith due dispatch “ the name o f the vessel or vessels, m a rks, a n d f u l l p a rtic u la r s ," and c o n tin u e d : “ S hould the vessel o r vessels w hich m ay a p p ly to th is contract be lost before declaration, th is contract to be cancelled so f a r as regards such lost vessel o r vessels."
The contract contained a m a rg in a l note, headed
“ Loss o r T ra n s h ip m e n t,” to the fo llo w in g e ffe c t:
“ S hould the vessel o r vessels and the goods or a n y p o rtio n thereof be lost, th is contract to be cancelled f o r the whole or such p o r t io n ; but should the vessel o r vessels be lost a n d the goods o r a n y p o rtio n thereof be tra n s h ip p e d to some other vessel or vessels a n d a rriv e on account o f the o rig in a l
‘im p orte r, the contract to stand good f o r the whole or such p o rtio n ."
Rhe pepper(w hich under the contract was to be shipped between Dec. 1917 and Feb. 1918 by a steamer or steamers fr o m the E a st to L iv e rp o o l) was shipped
° n a steamer w h ich sailed on the 21sf J a n . 1918 and was lost w ith her cargo on the 2§th Feb.
A declaration in due fo r m was made on the 27 th M a rc h 1918 by the defendants, at a tim e when the loss o f the vessel was know n to both p a rtie s , a n d contained a vole in these terms : “ O w in g to the vessel having been lost by enemy action, th is contract is now cancelled."
1 he p la in tiffs refused to accept th is declaration, and brought a n action f o r f a ilu r e to deliver under the contract.
H e ld , that the sellers, h a vin g shipped the goods and made the requisite declaration xvith due d isp a tch, were not liable f o r non-delivery i f the vessel a n d the goods were lost either before o r a fte r the declaration was made, and th a t the knowledge o f the loss was ( a) R eported b y T . W . Morgan and E . A . Sc r a t c h le y, E sq rs.,
B a rriste rs-a t-L a w ,
not m ate ria l. T he p la in tiffs ' action therefore fa ile d .
Olympia Oil and Cake Company Limited v. Produce Brokers Company Limited (12 A sp . M a r . L a w Cas. 570; 13 A s p . M a r . L a w Gas. 71, 393; 111 L . T . Rep. 1107; (1915) 1 K . B . 233) d istin g u ish ed
a n d on one p o in t doubted.
D ecision o f B a ilh a ch e , J . affirm ed.
Th e plaintiffs claimed damages for breach of con
tract to deliver a quantity of Muntok white pepper, which was to be shipped from the East to Liverpool at the seller’s risk. The pepper was shipped in a vessel which sailed in Jan. 1918. The vessel and her cargo were lost at sea on the 26th Eeb. 1918.
On the 27th March 1918 the defendants declared the shipment, but both plaintiffs and defendants knew by then that the ship and her cargo had been lost at sea and the plaintiffs therefore refused to accept the declaration.
The facts are fully stated in the judgments.
On the 19th June 1919 the action came on for trial in the Commercial Court before Bailhache, J.
G. D . Keogh for the plaintiff.
B a rrin g to n -W a rd , K.C. and M a u ric e G wyer for the defendants.
The following cases were referred to during the arguments :
M a m b re Saccharine C om pany v. C o rn P roducts C om pany, 120 L. T. Rep. 113; (1919) 1 K. B. 198 ;
O ly m p ia O il a n d Cake C o m pa n y L im ite d v.
Produce B ro k e rs C o m pa n y L im ite d , 12 Asp.
Mar. Law Cas. 570; 13 Asp. Mar. Law Cas.
71, 393; 111 L. T. Rep. 1107; (1915) 1 K. B. 233.
C u r. adv. v u lt.
J u n e 20, 1919.-—Ba i l h a c h e, J. read the following judgment :■—In this case the plaintiffs sue the defen
dants for failure to deliver ten tons of Muntok white pepper sold to them under a contract of the 11th Dec. .1917. By its terms the pepper was to be shipped from the East from Dec. 1917 to Eeb. 1918, and was to be delivered to the buyers in Liverpool.
Until delivery the pepper was to be at the seller’s risk. The contract required the sellers to declare the name of the vessel, marks and full particulars in writing with due dispatch.
The plaintiffs were the last of a string of buyers.
The pepper was shipped in the E u m a e us under a bill of lading dated the 17th Jan. 1918, and the E um aeus sailed four days later. So far everything was in order. On the 13th Eeb. the defendants, having received a provisional declaration from their sellers, passed it on to the plaintiffs. The pro
visional declaration did not comply with the terms of the contract and was not, and was not meant to be, the declaration required by the contract. It was sent as an act of courtesy.
On the 26th Feb. 1918 the E um aeus was lost at sea with her cargo. On the 27th March the defen
dants received a declaration in due form of the pepper from their sellers, and on the same day made a declaration to the plaintiffs, also in due form, adding these words : “ Owing to the vessel having been lost by enemy action this contract is cancelled.’ ’ Upon this state of facts two questions arise : first, were the defendants entitled to make a declara
tion of goods known to them to be lost at sea before the declaration was made and did such loss excuse non-delivery under this contract ? And
6 MARITIMJ) LA W CASF
jS.
Ct. o fApp.] Cl a r k (t r a d in g a s Wr ig h t, Ck o s s l e y, & Co.) v. Cox, McEw e n, & Co. [Ct. o fApp. secondly, was the declaration of the 27th March
made with due dispatch ?
The answer to the first question depends on the construction of two clauses in the contract. One clause has a marginal note “ Declaration of shipment,” and it reads thus ;
The name of the vessel or vessels, marks, and full particulars to be declared to the buyers in writing,
" ^ d u e dispatch, but should the vessel or vessels which may apply to this contract be lost before declaration, this contract to be cancelled so far as regards such lost vessel or vessels, on the production of the bill of lading or other satisfactory proof of shipment by sellers as soon as fairly practicable after tlie loss is ascertained.
The,other clause has the marginal note “ Loss or transhipment,” and it reads thus :
Should the vessel or vessels and the goods or any portion thereof be lost this contract to be cancelled lor the whole or such portion, but should the vessel or vessels be lost and the goods or any portion thereof be transhipped to some other vessel or vessels and arrive on account of the original importer, this contract to stand good for the whole or such portion.
These two clauses are largely redundant and certainly might be more happily worded. In my opinion their meaning and effect is that a seller who duly ships the contractual goods and makes the requisite declaration with due dispatch, is excused from liability for non-delivery if the vessel and goods are lost whether before or after declaration, a,nd knowledge of the loss at the time of making the declaration is immaterial.
The contract as regards goods so shipped and declared is cancelled. I think it immaterial, but it is satisfactory to note that the provisional declara
tion appropriating this particular shipment to this contract was sent to the plaintiffs before the E u m a e us was lost. This shows that the formal declaration was not an afterthought and incidentally gave the plaintiffs an oppor
tunity to insure their profit had they been so minded.
s®°°nd <luestion is whether the declaration of the 27th March was made with due dispatch, i t was rather more than two months after shipment but it was made as soon as the defendants received the declaration from their sellers and, as I under
stand, as soon as the necessary details reached this country. I do not see any duty on the shipper to cable these details, and in 1918 the post from the East was irregular. I t is true that the defendants themselves wrote a letter expressing the view that the declaration was too late, but commercial men are astute, and that expression of opinion would have been useful in any claim over against their sellers in the event of the success of the plaintiffs’ contention. In my opinion, the declara
tion was made with due dispatch.
In the result both questions in the case must be answered in favour of the defendants. There will be judgment for the defendants, and with costs.
From that decision the plaintiff now appealed.
D is t u r r a l, K.C. and G. D . Keogh for the appellant.
B a rrin g to n -W a rd , K.C. and M itc h in s o n for the respondents.
Lord Sterndale, M.R.—This is an appeal from the decision of Bailhache, J., and it is not an easy question which has to be determined, because
the terms of the contract are, as he said, in some ways rather inconsistent one with the other.
It was a sale upon the form of Arrival Contract, Landed Terms, of the General Produce Brokers’
Association of London. It was a sale of 10 tons of Muntok white pepper at Is . 8d. per lb., landed terms, to be shipped during the months of Dec.
1917 and Jan. or Feb. 1918, per steamer or steamers from the East v ia canal to Liverpool.
Then there was a provision that the buyers should take a sea-damaged part of the cargo with an allowance. Then there was also a provision as to the terms of landing, the result, in my opinion, being that Bailhache, J. was right when he said that the goods remained at the risk of the sellers until arrival and until after arrival,, the length of time which is mentioned in thq contract. It has n° analogy to a c.i.f. contract at all.
Then there follow the two clauses upon which the whole question turns. The first of them proved that: The name of the vessel or vessels, marks, and full particulars to be declared to the buyers in writing with due dispatch, but should the vessel or vessels which may apply to this contract be lost before declaration, this contract to be cancelled so far as regards such lost vessel or vessels, on the production of the bill or bills of lading, or other satisfactory proof of shipment by the sellers, so soon as fairly practicable after the loss is ascer
tained.”
With the marginal note “ Loss or transhipment ” the other clause provided th a t: “ Should the vessel or vessels and the goods or any portion thereof be lost, this contract to be cancelled for the whole or such portion, but should the vessel or vessels be lost, and the goods or any portion thereof be trans-
With the marginal note “ Loss or transhipment ” the other clause provided th a t: “ Should the vessel or vessels and the goods or any portion thereof be lost, this contract to be cancelled for the whole or such portion, but should the vessel or vessels be lost, and the goods or any portion thereof be trans-