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Colonial Cases

The Messicano, 1916

[arrest of ship, jurisdiction]

The Messicano

High Court of Justice
Evans P., May 1916
Source: The Times, 16 May 1916

 

HIGH COURT OF JUSTICE.

PROBATE, DIVORCE, AND ADMIRALTY DIVISION.

ACTIONS AGAINST REQUISITIONED VESSELS.

THE MESSICANO.

(Before the RIGHT HON. SIR SAMUEL EVANS, President.)

Judgment was delivered on this motion, which raised an important point of practice and was argued on May 11.  On October 20, 1913, the Newcastle steamship Roddam, while at anchor in the Bosporus, was run into and damaged by the Italian steamship Messicano.  The owners of the Roddam began proceedings in the Italian Consular Court in Constantinople, but, owing to the outbreak of hostelries between this country and Turkey, those proceedings proved futile. The owners of the Roddam therefore sought and obtained an extension of time for maintaining an action in rem in this division.

In those circumstances the owners of the Messicano brought the present motion to stay proceedings, on the ground that the Messicano was a ship requisitioned by the Italian Government, and therefore an action in rem could not be maintained.

Mr. C. R. DUNLOP, in support of the motion, cited the Broadmayne (32 The Times Law reports, 304; [1916] P., 64) and the Parlement Belge (5 P.D.., 197).

Mr. D. STEPHENS, opposing the motion, pointed out that in the Broadmayne the motion to stay was brought by the Crown, and not by the owners.  There was no desire to press for trial while the vessel was still under requisition.

The PRESIDENT. - There is nothing in the Broadmayne to say you cannot bring an action in rem against a requisitioned ship.  It merely decides that you cannot arrest.

JUDGMENT.

SIR SAMUEL EVANS said: - This motion is made by the defendants, who ask that the action be dismissed, "on the ground that the Messicano is a vessel requisitioned by the Italian Government, and as such the property of that State, and exempt from the jurisdiction of the Court."  The action was brought in rem.  The writ was directed in the ordinary form in such an action to the owners and parties interested in the ship.  Survive of the writ was accepted by the solicitors for the defendants.  A warrant for arrest was issued and duly served.  An appearance was entered by the solicitors for the defendants under protest.  An undertaking to give bail was also given under protest.  The appearance was entered and the undertaking was given in order that the vessel might be released. The vessel had before the arrest been requisitioned by the Italian Government, and was at the time of arrest a requisitioned vessel in actual use for carrying war material for the Italian Government.

It was suggested that she had become a Government ship for all purposes; but on the materials before me I think that it is clear that her position in relation to the Crown of Italy was precisely the same in character as that of the Broadmayne to the English Crown, as described by the Court of Appeal in the recent case of the Broadmayne (32 The Times Law reports, 304).  She still remained the property of the defendants, but was privileged from arrest while under requisition in the service of the Crown; for I am of opinion that a similar privilege against arrest by British plaintiffs ensures for a requisitioned ship of an ally, as for a ship requisitioned by this country.

This does not deprive the plaintiffs of the right of action, although it precludes them for the time being from exercising some of the rights ordinarily incident to the action.  The defendants are not entitled to an order dismissing the action, but they are entitled to have the appearance and undertaking to give bail which were entered and given respectively under protest, and also the warrant of arrest set aside.\

The service of writ by acceptance remains'; but the defendants will be allowed eight days from to-day to enter appearance of so advised, so that the plaintiffs may not proceed in default (cf. The Nautik [1895], P., 121).  The order will be in this form:-

On the motion of the defendants it is ordered that the appearance entered under protest, the warrant of arrest and the arrest thereunder, and the undertaking to give bail given under protest, be struck out and set aside; that the time for entering appearance be extended for eight days from this date; and that all further proceedings in the action with a view to the arrest or detention of the ship be stayed for so long as the ship shall remain under requisition in the service of the Italian Government.

The defendants have substantially succeeded, and are entitled to the costs of the motion.

Leave to appeal was refused.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School