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Wallem Shipping (Hong Kong) Ltd And Others v The Owners Of The Ship "Philippine Admiral" (Philippine Flag)

Judgment Cited authorities 16 Cited in Precedent Map Related
Vincent
Judgment Date26 April 1974
Subject MatterCivil Appeal
Judgement NumberCACV53/1973
CourtCourt of Appeal (Hong Kong)
CACV000053/1973 WALLEM SHIPPING (HONG KONG) LTD AND OTHERS v. THE OWNERS OF THE SHIP "PHILIPPINE ADMIRAL" (PHILIPPINE FLAG)

CACV000053/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 53 OF 1973

(On appeal from A.J. 103, 106 and 139/73 - 1st Appellants)

(On appeal from A.J. 94, 103, 105, 106 and 139/73 - 2nd Appellants)

-----------------

BETWEEN
WALLEM SHIPPING. (HONG KONG) LTD. TELFAIR SHIPPING CORPORATION Appellants
LIBERATION STEAMSHIP CO. INC.
and
THE OWNERS OF THE SHIP "PHILIPPINE ADMIRAL" (PHILIPPINE FLAG) Respondent

-----------------

Coram: Full Court, Huggins, McMullin and Leonard, JJ.

Date of Judgment: 26th April, 1974.

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JUDGMENT

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McMullin, J.:

I am in substantial agreement with the judgments which have been delivered and there is nothing which I wish to add.

26th April, 1974.

Representation:

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 53 OF 1973

(ON APPEAL FROM A.J. 103, 106 AND 139/73 - FIRST APPELLANTS)

(ON APPEAL FROM A.J. 94, 103, 105, 106 AND 139/73 - SECOND APPELLANTS)

-----------------

BETWEEN
WALLEM SHIPPING. (HONG KONG) LTD. TELFAIR SHIPPING CORPORATION 1st Appellants
LIBERATION STEAMSHIP CO. INC. 2nd Appellant
and
THE OWNERS OF THE SHIP "PHILIPPINE ADMIRAL" (PHILIPPINE FLAG) Respondent

-----------------

Coram: Full Court (Huggins, McMullin and Leonard JJ.)

Date of Judgment: 26th April, 1974.

-----------------

JUDGMENT

-----------------

Leonard J.:

I have had the advantage of reading the judgment of Huggins, J. and I agree that this appeal should be allowed.

2. The cases most favourable to the respondent appear to me to be The Porto Alexandre(1) and The Canadian Conqueror(2).

3. In both these cases immunity was granted; in the Porto Alexandre(1) it was granted notwithstanding that the vessel concerned was a trading vessel; she had been requisitioned by the Portuguese Government, she was at the service of that government and had been adjudged a lawful prize of war; she was employed under the orders of that government. On the voyage out of which the claim against her arose, the freight on her cargo was paid before shipment and belonged solely and entirely to that government. It was doubtful whether she had become the actual property of the Portuguese Government or was merely detained pending the conclusion of peace but I can find no suggestion in either the statement of facts or any of the judgments that she was not subject to the control of the government. The Court of Appeal in the Porto Alexandre found it impossible to distinguish that case from the Parliament Belge(3) also a case in which the government impleaded had reserved control of the vessel and had actual control but in which the vessel in addition to carrying ordinary freight was also carrying mails.

4. In The Canadian Conqueror(2) immunity was also granted although the vessels concerned, the property of the Republic of Cuba, were trading vessels. It was admitted that they had "been owned by various agencies controlled by the Cuban Government" and the appellant Flota Maritime had taken no part in their operations. G.T.R. Campbell & Co. had "supervised the said ships and had submitted its reports and accounts to the Government of the Republic of Cuba represented in this behalf by the Oficina de Fomento Maritime a devision of the Department of Defence". When the vessels were arrested at the instance of the appellant immunity was claimed and granted on the basis that the ships in question were to be "treated for the purpose of this appeal as 'public ships' owned by and in the possession of a foreign sovereign state" because in the words of Ritchie, J. with whom the majority concurred:

"I... do not feel that we are in a position to say that these ships are going to be used for ordinary trading purposes. All that can be said is that they are available to be used by the Republic of Cuba for any purpose which its government may select and it seems to me that ships which are at the disposal of a foreign state and are being supervised for the account of a department of government of that state are to be regarded as 'public ships of a sovereign state' at least until such time as some decision is made by the sovereign state in question as to the use to which they are to be put."

I have underlined the words "are", "are at the disposal" and "are being supervised" because they seem to mark the point of departure of that case from ours. The Amendment to The Republic Act placed before us well after the eleventh hour suggests no more than that the Philippine Admiral might become a "public ship of a sovereign state" in the sense in which Ritchie, J. uses the expression only if we grant immunity.

5. I prefer to put my judgment on the basis that both The Porto Alexandre(1) and The Canadian Conqueror(2) are distinguishable from our case on their facts than to seek to attack their reasoning. In each case the sovereign impleaded was in control of the vessel concerned. In our case it has never been suggested that the Philippine Government was in control. The test of control seems to me to be all important for a sovereign's dignity and the comity of nations do not seem to be so seriously imperilled if there is no interference with the sovereign's control. "Control" unlike "possession" does not involve any nice questions of law and is therefore not open to the objections voiced by Frankfurter, J. in The Republic of Mexico v. Hoffman when he said:

"Ascertainment of what constitutes possession or where it is, is too subtle and precarious a task for transfer to a field in which international ... susceptibilities are involved."

Representation:

(1) (1920) P 30.

(2) (1962) 34 D.L.R. 628.

(3) 5 P.D. 197.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 53 OF 1973

(On appeal from A.J. 103, 106 and 139/73)

-----------------

BETWEEN
WALLEM SHIPPING (HONG KONG) LTD. Appellants
TELFAIR SHIPPING CORPORATION.
and
THE OWNERS OF THE SHIP "PHILIPPINE ADMIRAL" (PHILIPPINE FLAC). Respondents

-----------------

Coram: Huggins, McMullin and Leonard, JJ.

Date of Judgment: 26th April, 1974.

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JUDGMENT

-----------------

Huggins, J.:

This is an appeal by the Plaintiffs in three Admiralty Actions against orders made by the Chief Justice setting aside the writs of summons and all subsequent proceedings on the ground that The Philippine Admiral, the vessel which is the subject matter of the actions, was the property of the Government of the Republic of the Philippines, a recognised foreign independent state. The appeals have come before this Court for hearing together pursuant to an order by consent in the court below. We have been content to hear them together, although it is questionable whether a consent order by a court of first instance can bind this Court. The issue on the appeals is whether immunity ought to have been granted.

2. For a proper understanding of the case it is necessary to recount how the vessel came to be built. In 1956 a treaty was concluded between the Republic of the Philippines of the one part and Japan of the other part whereby Japan agreed to make available a total sum of US$550 million by way of reparations for damage done to Filipino property during the Second World War. Of this sum $500 million was to be provided in the form of such capital goods or services as might be requested by the Government of the Philippine Republic and agreed between the two Governments. To carry out the detailed arrangements a Filipino mission was set up with authority inter alia to conclude contracts with Japanese nationals for the supply of goods, payment for which would then be made by the treaty were ocean-going ships. It was agreed that the products of Japan supplied under the treaty should not be re-exported from the territories of the Republic of the Philippines.

3. The utilisation of goods acquired under the provisions of this treaty was governed in the Philippines by Republic Act 1789. This Act declared the policy of the Government of the Philippines to be that anything acquired under the treaty should be utilised "in such manner as shall assure the maximum possible economic benefit to the Philippine people and in as equitable and widespread a manner as possible". In particular the policy as to capital goods was that they should be made available only to "approved Government projects ...... as well as to Filipino citizens and entities wholly owned by Filipino citizens". It was, however, expressly provided that the Government should not utilise reparations goods "for the purpose of entering into competition with private industries, where such industries have shown their capacity and readiness to serve the public fairly and adequately": on the contrary, in general preference was to be given to "private productive projects" after the first year and Government projects were to be given preference

"only if they concern electrification, educational materials, equipment and machineries, cottage industries, fire-fighting-equipment, telecommunications or rail road or would foster the growth of private productive capacity, or are needed in the performance of essential public services, or involve productive projects which private enterprises, is (sic) not yet capable or desirous of developing but which are urgently necessary in the interest of over-all national economic growth and only when there are appropriations providing for their procurement already embodied in existing law".

It was further provided...

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