536 LLOYD'S LAW REPORTS 1Q.B. (Adm. Ct) 0977) vor. 4) The 1 Congreso” Pant 5 QUEEN'S BENCH DIVISION (ADMIRALTY COURT) Oct, 29, 30 and 31, 1975 Dec. 14, 15, 16, 17 and 21, 1976 THE “I CONGRESO DEL PARTIDO” Before Mr. Justice RopeRt Gorr Admiralty penctice — Actions in rem — Juris: ‘diction —" Foreign sovereign — Whether vessal ‘owned by Republic of Cuba — Whether vessel Doneticilly owned by defendants — Whether ‘writs and” all" subsequent proceedings should be set aside on ground that foreign sovereign implesded —— Whether plains could invoke ‘Admiralty jurisdiction “— ‘Administration of Justice’ Act, 1956, 5.3). By a contract dated Feb. 28, 1973, C. a Cuban’ state enterprise agreed” to sell to TANSA, a. Chilean ‘company, 128,395. metric tonnes of Cuban sugar 5 per cent. more oF Tess at sellers option, e. & f. free out Chilean pport shipments to be made’ monthly. between Fanuary and October, 1973. Payment was to bermadein US. dollars under a leter_ of redit and the contract incorporated the rules ff the Sugar Asiociation which provided inter Sia that for the purpose’ of all proceedings in arbitration, the Contract should "be deemed to be made in England, England was to. be regarded as the place ‘of performance and fall disputes were 10 be settled according 0 English law. Tn August, 1973, a shipment was made on Playa Large, & vessel owned. by. Mambisa, Cuban ‘State “enterprise, and chartered "to Co under a voyage charter. A’ second shipment ‘was made on Aug. 30, 1973, on. the vessel Marble’ tslands which’ was" tinder demise Charter to Mambisa and sub-chartered under f voyage charter to another Cuban state enter- prise on behalf of C. The bills of lading which Were issued. in respect of “these shipments contained inter alia cl. 2 (a wide. duration ‘lause) and. cl. 8 (a lien clause). ‘The car fon both ships were paid for. by Chilean Purchasers and the moneys retained by ‘C. On Sept, 11, 1973, while Playa Larga was in Valparaiso ‘and had. discharged over 2500 mictrie tonnes of her cargo, 2 revolution took place in ‘Chile. Concerned’ for the safety of fhe vessel the Cuban “Government ordered Playa Larga to leave Valparaiso immediately fand Marble Islands. which was on its Way there not to enter the. port. Playa Larea fetumed to” Cuba while” Marble Islands headed. for North Vietnam. Both cargoes were discharged and. subsequently” disposed fin gccordance with ell. 3 and. 8 of the bils"of lading, the proceeds being credited to the accounts at a Cuban bank, in favour of TANSA or whoever might be the lawful fumers ofthe egrpocs, but the moneys were tgp accordance wi San ‘aw Ns, 1256's lesitnategovemment ee in Chile. . - By an agreement dated May 20, 1973, 0 novation “took "place. whereby Mambisa ‘acquired all rights and obligations ‘under a bullding contract in respect of a new building yard no. 430 and later named I Congreso Del Partido” (Congreso). Mambisa, took delivery ‘of Congreso on Sept. 5, 1975, and she Wat entered in the Cuban ‘registry ia the name of the Republic of Cuba ‘as owners, On Sept. 9, the owners of the cargo lately laden on Marble Islands brought an action aging the owners of Congrexo claiming iter alia damages for noncdelivery of the cargo. By’ amdavit to lead the warrant of arrest of Congreso, the, cargo-owners identified the defendants ag Mambisa, and, stating that the faction ‘was brought pursuant to 8.3 (3) of the “Administration ‘of Justice ‘Act, 1956, claimed that Mambisa were the -disponent ‘owners or charterets or in possession oF con~ {roof ‘Marble islands and. would be table to the eargo owners in an action in personarm and were also" the” beneficial owners of Congreso as respects “all shares” therein. Congreso Was “arrested “at Sunderland on Sept. 12, ‘1975. On. Sept. 25," 1973, two notices of motion were issued requesting that the writ and-all subsequent. proceedings be Set aside, ‘one ‘by the Republic of Cuba, Tecognized ‘foreign independent state and the Government of Cuba dectned to sanction the institution of these “proceedings; and’ the other by Mambisa ‘On the ground. that Congreso was not. beneficially” owned by Mambisa as respects all shares” therein, On Oct, 30, 1975, the owners of cargo on Marbie “isiands Brought’ a second. action ‘agninst the owners of Congreso and to arrest Congreso claiming inter alia damages. for nonedelivery and alleging that the Republic ‘of Cuba ‘was Tiable to the cargo owners in fin action in personam, On Nov. 6, 1973, the Republic’ of Cuba issued ‘4 notice of motion fon the same form as that in the first ‘action, fee ee the" cargo. By atidavt fo\Tead the warrant can tome te Soret an J Cron Pale Sei 9 iering' & erie Fad ies hs ‘Held, by QB. (Adm. Ct) (Rosert SeesQB. (Adm. Ct} LLOYD'S LAW REPORTS 537 ‘The “I Congreso” (1977) Vor. 1 soversign immunity nan, action in rem Anns buch vessel Cae p. $47, 0k 13 9 533 0: "the Philippine Admiral (1976), t Uoyets Rep. 234," and “rendice Trading Estporaion’'s. Cental Bank 0} Niger TOMS WLR. $30 ppted The Porto Alevandre, (1920) P. 30, “istngubbed. ) one idence ie, vais reoone anid ack that Congrei was feitred a 3 Cuban west the Republie of Cube had ecred” acim’ (othe ownersip "of Eoparezo which was nt ilesory or arity defetive and’ was, at all material times, het ‘nner Gee p. $8 cal 2p. $87, col Dy Tuan Vangel & Co, In. Gover ‘ment of the’ Republic of indonci (1934°3 Trova’ Rep. 175, apple. 3) the Republic of Cuba was entitled to soScted ia motion fo set aude the wit nd: all subsequent proceedings im the Sr fell snce ‘ho lan in persona was Sdvaneed “agains if and te Repable had Sstabised tat, when the action was broutt, stra the ower af Congreto tee pe ST, col 2; p 337, eo Ds @ We chime of the cargo-owners which webe the sibeet ater of he thee actions $e Hon govermenal St he Rep oF Gabe m eventing, grounds of foreign foley, the Galivery to the eargocowners of Je etego'on are lands and the balance af the sarge on Pleye Large and the Republic tras eatifea "io. awoke the principle of roversign smmanity im ail three scions (ce P'ssivcoln | and 2) (9),on the evidence, Mambisa were not at the times "when the ‘Satan. thnd. actions Mere brought the pers in law or in Sur Bf Congreso see p. 585, co. 3): (6 the gator and ordinary mening of tas words "bonetlally gwned se respect all the dares teria” in 31) ofthe Admini tral of Juste Act 1986, wan that they Tetered ony to sh ownership as was vested Ina" penon who ster or Bot be way the tepa "ownar of ie wesc, ‘wat in any cate the egulabe me, tnd ete not applisble to" he case of 0 demise charterer or indeed Sty other person wito bad only postaion attne vessel however full and compte such Pouciion might be and however ich Sone Fol over thes vere ‘he might ‘have Gees 50, ok 23". 380, col. ) although Mambis had physical poses sion of Congrto” the. Li within "which Mamiiaa erercsed. contol of her were 3 ‘Mine hat cui got fe ott Male nad ‘fll powtestion and conral” ot het thertofe atthe time of the int and did fcitons"Mambisa "were. not_ the, beneficial Sumers at respects all the shares of Congreso find. the cargoowners were not ended to invoke the Atay Tursicon ofthe High Court by an action in rem against Congreso in which Mambsa, "were idented ax defendants under &.3 (of the 1985 Act (Gee'p. 83, cols 1 and 3 The Andrea Ursula, 1971} 1 Loye’s Rep. 145, distinguished Judgments for Mambisa and the Republic of Cuba, “nn The following cases were referred to in the judgment Alfred Dunhill of London tne, ¥. The ‘Republic of Cuba, (1976) 96 SC. i854; Andrea Ursula, The, (1971} 1 Lloyd's Rep. 145: Atlantic Star, The, (HLL) {1973} 2 Lloyd's "Rep. 197; {1974} A.C. 46; Banco de Bilbao v. Sancha [1938] 2 KB. 176; Carl Zejss Stiftung v. Rayner and Keeler, (HL) [1967] LAC. 853; Charente, The, (Nytt Juridiskt Arkiv 1 1943), Consortio. Agratio de Federazione® Tatiana ON. 2830 of 1966) Cristina, The, (HLL) (1938) 60 L1LRep. 147; [1938] Ac. 4855 Tripolitania _v. Consorzi Agrari Cegraow Und. Cental Handy granicenego” Rolimpen, {1977} "2 Lloyd's Rep." io ve Dita Campione v. Dita Pe Nitrogen. mauve aad Popular Hunentan Repub, G4 Nowy 1972. 3368). Empire of Iran case (Apr. 30, BVerfGE 16, 27); a Eschersheim, The, (H.L.) [1976] 2 Lloyd's Rep. 1; [1976] 1 W.LR. 430; Exchange, The, (1812) 7 Cranch 116; Frazer v. Marsh, (1811) 13 E. 238; Hopper No. 66, The, (H.L) [1908] A.C. Juan Ysmael & Co. Inc. v, Government of the Republic of Indonesia, (H.L) [1958] 2 Lloyd's Rep. 175; [1953] A.C. 72; Jupiter, The (No. 2), (1924) 21 LLL.Rep. 116; [1925] P. 69; Limington, The, (1874) 2 Asp. Mar, Law Cas. 475; : 1963, Rapa NE, POE la 8 fur ow of Los Law538 LLOYD'S LAW REPORTS (QJ (Adm. Ct) (1977) Vor. 1) The Modern Building Wales Led, v, Limmer & “Prnidad Co,Ltd, (CA) {1975} 2 Lloyd's Rep. 318) (1975) WLR. 1381; Overseas. Tankship (UK) Lid. v, Morts Docks & "Engineering Co, Lid, "(The Wagon Mound), (BC) (1961) 1 Lloyd's Rep fy (1961) A.C. 388; Parlement Belge, The, (1880) 5 PD. 197; Paunvoll v. Furness, [1893] A.C. 8; Philippine Admiral, The, P.C. (1976) 1 Hloya's Rep. 234; [1976] 2 WLR. 214; Polemis and Furness Withy & Co. Ltd, In rer (CA) (1921) 8 L1LRep. 351; (1521) 3x5. S00; Porto Alexandre, The, (C:A) (1919) 1 ThLsRep. 191; {1920} p. 30; Post Office v. Estuary Radio Ltd, (CA) (1967) 2 Lioyes Rep, 2995 11968} 2 05. Rahimtoola v. Nizam of Hyderabad, (H.L.) 11958] A.C. 379; Republic of Mexico v. Hoftman, (1945) 324 US. 30; Ruby Queen, The, (1861) Lush 266; Russian Commercial and Industrial Bank v. Comptoir d’Escompte de | Mulhouse, CHL) (1924) 19 LILRep. 312; [1925] AC. 112; St. Elefterio, The, [1957] 1 Lloyd's Rep. 283; 11957] P. 149; ‘St. Merriel, The, [1963] 1 Lloyd's Rep. 63; 11963]; P. 247; Salomanv. Commissioners of Customs and Excise, (C.A.) [1966] 2 Lloyd's Rep. 460; [1967} 2 QB. 116; Sandeman v. Scurr, (1866) LR. 2 Q.BD. 65 Sea & Land Securities Lid. v. William Dickinson & Co, (CA.) (1942) 72 LLLRep. 159; (1943) 2 KB. 65; Smith v, Leech Brain & Co. Ltd., (1962) 2 ‘3. 405; Swiss Israel Trade Bank v. Government of Salta, [1972] 1 Lloyd's Rep. 497: Tasmania, The, (1888) 13 P.D. 110; Thai-Europe Tapioca Services Ltd. v. Government of Pakistan, (GA) (1976) 1 Lloyd's Rep. 1; [1975] 1 WLR, 1485; Trendtex Trading Corporation v. Central Bank of Nien, (CA) [1977] 2 WLR United States of America and Republic of France v. Dollfus Micg et Cie. S.A. and Bank of England, (H.L) [1952] A.C. 58 ‘Congreso [Roser Gorr, Victory Transport Inc. v, Comisaria General de Abastecimientos y Transportes, (1964) 336F (2d) 354; Witkovice Horne a Hutni Tezivsto v. Korner, (H.L.) [1951] A.C. 869; “These were motions by the Republic of Cuba and Empresa -Navigacion Mambisa (Mambisa) to set aside the writs and all subsequent proceedings in three actions in fem brought against the vessel 1 Congreso del Partido by. the cargo-owners of the argo lately laden onthe vessel. Marble Islands and the balance of the cargo on the vessel Playa Earga in respect of (inter alia) damages for non-delivery, both vessels being. chartered. by ‘Cubazucar a Ci State enterprise from Empresa Navagacion Mambisa (Mambisa) another Cuban state enterprise and identified as the defendants and owners of the vessel I Congreso. del Partido. ‘The Republic of Gaba claimed sovereign immunity on the grounds that Congreso was the property of the republic a recognized foreign indepen- dent state and Mambisa alleged that at the time of the action Congreso was not bene- ficially owned by Mambisa a5 respects all shares therein. Mr. Robert S, Alexander, Q.C,, Mr. Bernard Rix and Miss 'R. Higgins Ganstructed by Messrs. Bischof & Co.) for the plaintiffs; Mr. Thomas Bingham, Q.C., and Mr. Brian Davenport (instructed by Messrs. Coward, Chance & Co) for the Government’ of Cuba and “Empresa ‘Navagacion Mambisa (Mambisa). ‘The further facts are stated in judgment of Mr. Justice Robert Goff. Judgment was reserved. the Friday, Jan. 28, 1977 JUDGMENT Mr. Justice ROBERT GOFF: I have before me motions to set aside the writs and all subsequent proceedings in three actions in rem, numbered respectively 1975 Folio 544, 644 and 752, all brought against the ship of vessel I Congreso del Partido (which T shall refer to as the Congreso). In all three actions, the Republic of Cuba asks for the writ and subsequent proceedings to be set aside on the ground that the Congreso is the property