Jurisdiction - 1930- 1959

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This page lists 12 cases, and was prepared on 28 October 2012.

Waterhouse -v- Reid [1938] 1 KB 743; [1938] 1 All ER 235
1938 Greer LJ	Jurisdiction	1 Citers
	The court has no power to make orders against persons outside its territorial jurisdiction unless authorised by statute and that there is no inherent extra-territorial jurisdiction.

Compania Naviera Vascongado -v- Steamship "Cristina" [1938] AC 485
1938 HL Lord Atkin	Jurisdiction, International	Casemap 1 Citers
	A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: "The foundation for the application to set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute. The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages. The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control. There has been some difference in the practice of nations as to possible limitations of this second principle as to whether it extends to property only used for the commercial purposes of the sovereign or to personal private property. In this country it is in my opinion well settled that it applies to both." This doctrine derives from the maxim par in parem non habet imperium, but also from ideas as comity or reciprocity, the practicability of enforcement, or the respect for the dignity of other states.

Vita Food Products Inc -v- Unus Shipping Co Ltd [1939] AC 277
1939 Lord Wright	Contract, Jurisdiction	Casemap 1 Citers
	Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, but the action was brought in Nova Scotia where the courts had to apply the proper law of the contract contained in its bill of lading – English law – by which the exemption clause was valid. Lord Wright: "But whatever view a Newfoundland Court might take, whether they would hold that the contracts contained in the bills of lading must be taken to have incorporated the Hague Rules or whether they would hold them to have been illegal, the result would be the same in the present case, where the action was brought not in a Newfoundland but in a Nova Scotian Court. It may be that, if suit were brought on these bills of lading in a Newfoundland Court, and the Court held they were illegal, the Court would refuse to give effect to them, on the basis that a Court is bound to obey the laws of its own Legislature or its own common law . . . . But it does not follow that any other Court could properly act in the same way. If it has before it a contract good by its own law or by the proper law of the contract, it will in proper cases give effect to the contract and ignore the foreign law."

The El Condado [1939] 63 L1L Rep 330
1939 SCS Lord Aitchison, Lord Mackay	Scotland, Jurisdiction	Casemap 1 Citers
	Lord Aitchison: "The penal laws of foreign countries are strictly local, and affect nothing more than they can reach and can be seized by virtue of their authority; a fugitive who passes hither, comes with all his transitory rights; he may recover money held for his use, stock, obligations and the like; and cannot be affected in this country, by proceedings against him in that which he has left, beyond the limits of which such proceedings do not extend. Does that rule apply equally to legislation which is not confiscatory or penal in the full sense, but the effect of which is to subject the owner of moveable property in his use and control of that property, to the overriding control of the State where, as in this case, the property is requisitioned by the State for public purposes? There is no direct authority upon the point. The nearest case is perhaps the Jupiter (No. 3), [1927] P. 122. It was there held that the nationalisation decrees of the Union of Socialist Soviet Republics did not operate on moveable property outside the territory of the Republic, whether such property belonged to a Russian citizen or not. It was a fact in that case that the Jupiter was not at the date when the decrees were promulgated within Russian territory. In this case it is expressly conceded that at the date of the requisition the El Condado was not within Spanish territorial waters and she was in the port of Greenock when the de facto possession was taken. In the Jupiter, Hill, J., pointed out that no distinction could be drawn between ships and other chattels and that the same principles were applicable to both, and he reached the conclusion that the decree of nationalisation was ineffectual to transfer the property in the ship, which was not within the jurisdiction at the date of the decree. His judgment both as regards fact and law was affirmed by the Court of Appeal. The case is not on all fours, but in my opinion the principle of Hill J.'s, judgment applies to the present case. The test to be applied is this: Supposing the Spanish Consul, instead of taking possession of the El Condado brevi manu, had sued the owners in the Courts for the delivery of the ship, could the action have succeeded? I am satisfied it could not. It could no more have succeeded than an action for recovery of moneys belonging to the Spanish owners in a bank in this country and requisitioned for the temporary use of the Spanish Government to finance the war. The conclusive answer would be that it was moveable property that was outwith the territory and jurisdiction of the foreign Sovereign State, and having been so at the date of the decree, it was not capable of being affected by the requisition. That is the ground of the Lord Ordinary's judgment, and in my opinion he was right in dismissing the action, because if no wrong was committed by the owners of the ship in respect that the Spanish Government had no lawful possession of her, notwithstanding that they could not be impleaded, no liability can attach to the defenders under their bond of caution." Lord Mackay: "The question of extra-territoriality arises doubly. It is for us a question to be decided on Scots law (in the absence of any averment of a differing Spanish law) whether we are to hold that a decree of a de jure Government (issued in Barcelona or Madrid) can have extra-territorial effect upon (a) a ship situated in our harbours and (b) registered and belonging to a company domiciled under General Franco's de facto Government's jurisdiction. I am of opinion that such extraterritorial validity is not recognised by Scots law. The sealed document exhibited in the former case and lying before us bears in its terms to have "requisitioned" all ships of certain registration. That means, in my opinion, by Scots law, that a requisition of full property was intended in the full sense of the word "requisition" as so well known to our Courts during the years 1914 to 1918. I am prepared to hold, therefore, that the pretended title of the pursuers was, in fact and in law bad; and that the original owner's right of ownership was never lost or adversely affected. Hence, no judicial wrong was ever done to the pursuers. I agree on these fuller grounds with the results of the Lord Ordinary, and I agree we should adhere to his judgment." Lord Pitman: "Requisition is not a legal method in this country of transferring property or rights of user of property, except at the instance of the Crown. It is the prerogative of the Crown in times of imminent national danger to take any steps necessary to secure the defence of the realm, and in 1914 by virtue of that power regulations were made by His Majesty in Council providing (inter alia) for the requisitioning of ships by the competent naval authority. It would be strange, indeed, if a foreign State were allowed to exercise similar powers and by its officials take forcible possession of property requisitioned." Lord Wark:"This means further that they must show that the decree of law enacted on June 28, 1937, was valid and effectual according to the law of the forum to which they applied, namely, Scotland, to entitle them to the possession and control of a ship lying in a Scottish port, and which admittedly at the date of the decree and continuously thereafter had been outwith Spanish territory and territorial waters. I say "according to the law of the forum," because they make no averments of Spanish law on that matter. I agree with the Lord Ordinary and with your Lordships that the decree is of no effect outwith Spanish territory and territorial waters, and gave the pursuers no right to requisition the El Condado or to take forcible possession of her as they did. On such a matter as this there is no difference between the law of England and the law of Scotland, and the decisions of the English Courts to which the Lord Ordinary refers, especially the case of the Jupiter (No. 3), [1927] P. 122 and 250, appear to me to be sufficient authority to support his decision. I refer to the judgment of Hill, J., at pp. 138 and 144, and of Atkin, L.J., and Lawrence, L.J., in the Court of Appeal at p. 255. It is true that that case dealt with the question of transfer of property, but the ratio upon which it proceeds is that the decree of a foreign Government has no effect whatever upon moveable property, including ships, outwith the territory. This doctrine rests upon the principle that jurisdiction is limited by effectiveness. It is recognised in several recent cases, notably in Sedgwick, Collins & Co. v. Rossia Insurance Company of Petrograd [1926] 1 K.B. 1, by Sargant, L.J., at p. 15, and by the Lord Chancellor in that case in the House of Lords, [1927] A.C. 95, at p. 102, and in Russian Commercial and Industrial Commercial and Industrial Bank v. Comptoir d'Escompte de Mulhouse, &c. [1925] A.C. 112, by Lord Chancellor Cave at p. 125, and Viscount Finlay at p. 137. "A State's authority," says Professor Dicey in his Introduction to his treatise on the Conflict of Laws, 5th ed., at p. 20, in the eyes of other States and the Courts that represent them is speaking very generally, coincident with, and limited by, its power. It is territorial. It may legislate for, and give judgments affecting, things and persons within its territory. It has no authority to legislate for, or adjudicate upon, things or persons (unless they are its subjects) not within its territory."

Lorentzen -v- Lydden [1942] KB 202
1942 Atkinson J	Jurisdiction	1 Citers
	The Norwegian Government decreed that all ships registered in Norway were requisitioned. The defendants, a London firm had agreed to charter a Norwegian vessel for the carriage of pulp from Oslo to Grangemouth or Leith. The curator sued for damages, alleging that the defendants had repudiated the contract. The defendants contended that the situs of the debt was England and that by English law the Norwegian decree did not pass ownership of that debt. Held: "It seems to me that the English courts are entitled to take into consideration the following matters: that this is not a confiscatory decree, see art. 5 of the decree, that England and Norway are engaged together in a desperate war for their existence, and that public policy demands that effect should be given to this decree. To suggest that the English courts have no power to give effect to a decree making over to the Norwegian Government ships under construction in this country seems to me to be almost shocking. At any rate; following that judgment and the judgments referred to therein I am entitled to give effect to this decree. It is not confiscatory, it is in the interests of public policy, and it is in accordance with the comity of nations. Therefore I determine this issue in favour of the plaintiff."

In re Duke of Wellington [1947] Ch 506
1947 ChD Wynn-Parry J	Jurisdiction	Casemap 1 Citers
	The court was asked to settle the fate of Spanish estates which had been granted to the first Duke together with a title of nobility. To do this it had to consider the effect of Spanish law: "It would be difficult to find a harder task than that which faces me, namely, of expounding for the first time either in this country or Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction." and "The task of an English judge, who is faced with the duty of finding as a fact what is the relevant foreign law, in a case involving the application of foreign law, as it would be expounded in the foreign court, for that purpose notionally sitting in that court, is frequently a hard one; but it would be difficult to imagine a harder task than that which faces me, namely, of expounding for the first time either in this country or in Spain the relevant law of Spain as it would be expounded by the Supreme Court of Spain, which up to the present time has made no pronouncement on the subject, and having to base that exposition on evidence which satisfies me that on this subject there exists a profound cleavage of legal opinion in Spain, and two conflicting decisions of courts of inferior jurisdiction".

Frankfurther -v- W L Exner Ltd [1947] 1 Ch 629
1947 Romer J	Jurisdiction	Casemap 1 Citers
	The court refused to give effect to an Austrian decree extending to moveables situated in this country because it was penal in nature.

Banque des Marchands de Moscou (Koupetschesky) -v- Kindersley [1951] Ch D 112
1951 CA Sir Raymond Evershed MR	Jurisdiction	Casemap 1 Citers
	Sir Raymond Evershed MR discussed the need to keep the doctrine against approbation and reprobation within limits.

Novello & Co Ltd -v- Hinrichsen Editions Ltd [1951] 1 Ch 595
1951	Jurisdiction	Casemap
	The court refused to give credit to a foreign law as it applied to goods here because the law was confiscatory.

Bank Voor Handel En Scheepvaart NV -v- Slatford [1953] 1 QB 248
1953 Devlin J	Jurisdiction	1 Citers
	A Dutch bank deposited a quantity of gold in London before the start of the 1939-1945 war. In May 1940 the Netherlands were invaded and they became an enemy territory for the purposes of the 1939 Act. The Royal Netherlands Government, with the approval of the UK Government, exercised their powers from London and in May 1940 they issued a decree which purported to have the effect of transferring property, including the gold, to the Netherlands Government (the A.1 decree). In July 1940, the Board of Trade made a vesting order transferring the gold to the Custodian of Enemy Property. He sold it for £2 million. In May 1950 the Netherlands Government made an order returning the property in the gold to the Bank. The Bank then claimed against the Custodian in conversion for the present value of the gold. Devlin J held that the A.1 decree was ineffective to transfer moveable property in this country. Held: "I think it is convenient to begin by considering what is the general principle of our law with regard to foreign legislation affecting property within our territory. There is little doubt that it is the lex situs which as a general rule governs the transfer of movables when effected contractually. The maxim mobilia sequuntur personam is the exception rather than the rule, and is probably to be confined to certain special classes of general assignments such as marriage settlements and devolutions on death and bankruptcy. Upon this basis the A.1 decree, not being a part of English law, would not transfer the property in this case. But decrees of this character have received in the authorities rather different treatment. Although there is not, as far as I am aware, any authority which distinguishes general legislation, such as part of a civil code, from ad hoc decrees, the effectiveness of such decrees does not appear on the authorities to be determined exclusively by the application of the lex situs. Apart from two recent cases on which the plaintiffs greatly rely, there has been no case in which such a decree has been enforced in this country, but the grounds for refusing effect to them have been variously put. Sometimes it is said that the decree is confiscatory. In the textbooks it is said sometimes that as a matter of public international law no State ought to seek to exercise sovereignty over property outside its own territory, and therefore the principle of comity is against enforcement; and sometimes it is said that the principle of effectiveness is against enforcement, since no State can expect to make its laws effective in the territory of another State. Dicey, Conflict of Laws, 6th ed., p. 13, states: "A State's authority, in the eyes of other States and the courts that represent them, is, speaking very generally, coincident with, and limited by, its power. It is territorial. It may legislate for, and give judgments affecting, things and persons within its territory. It has no authority to legislate for, or adjudicate upon, things or persons not within its territory."
	Trading With The Enemy Act 1939

The Fehmarn [1957] 1 WLR 815; [1957] 2 Lloyd's Rep 551
1957 Willmer J	Jurisdiction	Casemap
	"Clearly it requires a strong case to satisfy the court that the agreement [an express agreement to submit to a foreign tribunal] should be overridden."

The Fehmarn [1958] 1 WLR 159
1958 Lord Bingham	Jurisdiction	Casemap 1 Cites 1 Citers
	The effect of an agreement prorogating a foreign jurisdiction is to confer on the English court a discretion to stay the English proceedings.