Buckingham v Aircraft Hughes 500D

• Jurisdiction: New Zealand
• Judgment Date: 23 February 1982
• Date: 23 February 1982
• Court: High Court

New Zealand, High Court in Admiralty.

(Hardie Boys J.)

Buckingham

and

The Aircraft Hughes 500D Helicopter, Registration Mark c-gpnn

Sovereign immunity Public ship Action in rem Ship engaged on governmental service Salvage claim in respect of cargo carried on ship Cargo carried without charge under inter-governmental agreement Immunity of ship and cargo from jurisdiction The law of New Zealand

Summary: The facts:A helicopter owned by a Canadian corporation was being operated under hire by a West German Government research agency, the Federal Institute for Earth Sciences and Resources (BGR), and was stored in the vessel Gotlund II, under charter to BGR for use by a scientific expedition. The Gotlund II, sank near the Ross Dependency during the expedition. Before the vessel sank, the plaintiff, a helicopter pilot employed by the owners of the Gotlund II, flew the helicopter to safety. By arrangement between the Government of the Federal Republic of Germany and the United States Government, the helicopter was placed on board the USNS Southern Cross, an assault transport vessel owned and operated by the United States Department of the Navy as a cargo ship for the purposes of the Department. No payment was to be made for the carriage of the helicopter.

The plaintiff, who claimed salvage in respect of his rescue of the helicopter, obtained from a New Zealand court a writ of summons on the helicopter. He then had the helicopter arrested by attaching copies of the writ and warrant of arrest to the main mast of the Southern Cross and giving copies to the vessel's master. The effect of the warrant was that the vessel was forbidden to leave port in New Zealand with the helicopter aboard. The United States Government moved to set aside the warrant on the ground that both the helicopter and the Southern Cross were protected by sovereign immunity. The helicopter bad been dismantled and unloading it would have caused considerable expense and delay to the ship.

Held:The motion was granted and the warrant set aside.

The Southern Cross had at all times been engaged in governmental or sovereign activity and was so engaged in its carriage of the helicopter. The United States was therefore immune from the jurisdiction of the Court with respect to its ship. The Court thus had no jurisdiction to detain the ship. The United States was also immune from jurisdiction with respect to the helicopter since its possession of the helicopter pursuant to the arrangement with the West German Government was itself a sufficient interest to entitle it to immunity.

The following is the text of the judgment:

The Government of the United States of America, protesting jurisdiction, has applied to set aside a warrant of arrest of a Hughes 500D helicopter being carried as cargo in the ship Southern Cross presently berthed at Lyttelton. The effect of the warrant, which has been duly executed by an officer of the Court, is that the ship is forbidden to leave with the helicopter aboard. The grounds of the application by the American Government are that this ship and the helicopter in it are protected by the sovereign immunity of the United States of America and are accordingly beyond the jurisdiction of this Court.

Mr. Broadmore contested the right of the United States Government to bring the matter before the Court in the way it has. It is not a party to the action, nor has it sought to intervene in accordance with the provisions of rule 22 of the Admiralty Rules. That intervention or similar procedure can be effected without acceptance of jurisdiction is shown clearly enough by what was done in U.S.A. v. Dollfus Mieg et CieUNKINTL, [1952] 1 All E.R. 572 (see p. 579).[1] Mr. Broadmore said that the proper course for the United States Government in this case was to have acted under rule 19 of the Admiralty Rules, but it seems to me that that rule assumes that the arrest was made in the first place with jurisdiction. This present matter has arisen as one of urgency, a circumstance for which rule 22 is clearly not adapted. In any event an assertion of lack of jurisdiction seems to me to be a special and particular claim and in view of the desire of the Court to protect the comity of nations I think that rules 4 and 5 of the Admiralty Rules entitle me to receive an informal application such as was made in this present case. Therefore I am not prepared to reject the American Government's claim on this procedural ground.

Now recent developments in this far from modern doctrine of sovereign or State immunity have I think brought the law to this position. The mere fact that a ship or other chattel is owned by a foreign State

does not of itself place the ship or chattel beyond jurisdiction in an action in rem. The test is based on the distinction between acts of a State done iure imperii and acts done iure gestionis; between in broad terms a private act on the one hand and a sovereign or a public act on the other: a private act meaning in this context one of a private law character such as a private citizen might have entered into. This test is the implementation of what is described in the authorities as the restrictive theory of sovereign immunity and it was confirmed as the correct one, at least in an action in rem, by...