[IN THE COLONIAL COURT OF ADMIRALTY]

1922   Present : De Sampayo J.

 In re SS. " ARNALDO DA BRESCIA.'

Case No. 2.

No power to arrest a ship belonging to a foreign State-International law-Ship engaged in ordinary commerce-Objection to, jurisdiction may be urged at any time.

A ship belonging to a foreign state cannot be arrested by our Courts. The foreign state does not lose its immunity from being proceeded against by the arrest of the ship, even if it employs the ship in ordinary commerce.

The Court is bound to withhold its hand whenever it appears that it is without jurisdiction, and cannot refuse to entertain an objection to the jurisdiction at any stage of the suit.

THE facts are set out in the judgment.

Drieberg, K.C. (with him Hayley), for H. M. the King of Italy.

Elliott, K.C. (with him Bartholomeusz), for the plaintiffs.

June 6,1922. DE SAMPAYO J.-

This is an action in the Supreme Court exercising jurisdiction a a Colonial Court of Admiralty in respect of a collision. The plaintiff are the Edward Steamship Company, limited, the owners of the ss. " Clearway." The action is one in rem, and the defendant is the ss. " Arnaldo Da Breecia." It appears that on September 17, 1920, while the " Clearway " was lying at anchor in the Colombo harbour, the " Arnaldo Da Brescia " was brought in by a Government pilot to be berthed, and there was a collision between the two vessels. The plaintiffs then instituted this action through their solicitors, Messrs. Julias & Creasy, claiming from the " Arnaldo Da Brescia " the sum of Rs. 100,000 as damages. The circum-stances leading up to the matter now before me are as follows: On the application of the plaintiffs this Court issued the usual writ of summons and a warrant of arrest, and under this warrant the' " Arnaldo Da Brescia " was arrested in the Colombo harbour on September 17, 1920. The " Arnaldo Da Brescia " was then on a voyage from Europe to Australia under the management-'of the Lloyd Sabaudo, a ship company of Genoa, whose local agents are Messrs. Volkart Brothers of Colombo. On* September 21, 1920, Messrs. F. J. & G. de Saram, as solicitors of the Lloyd Sabaudo, entered appearance for Lloyd Sabaudo, and stating that the "Arnaldo Da Brescia" was owned by the Italian Government, and, therefore, free from arrest, claimed Rs. 12,000 as damages for the unlawful arrest, and Rs. 3,000 par day while the vessel remained under arrest. On September 24,1920, Messrs. de Saram tendered bail on behalf of Lloyd Sabaudo in Rs. 100,000 to answer judgment, and costs in this action, and in the notice it was stated, "it being understood that the bail is given under protest and without prejudice to any defence which Lloyd Sabaudo may be advised to make, either on the ground of unlawful arrest or otherwise." The solicitors for the plaintiffs having consented to the application, this Court allowed bail, and a bail bond for Rs. 100,000 was executed by the Bank of Madras (now Imperial Bank of India) and Messrs. Volkart Brothers. The "Arnaldo Da Brescia" was thereupon released from arrest. On October 8, 1920, Messrs. de Saram entered appearance for Has Majesty the King of Italy but under protest," the said steamship being the property of His Majesty, and not subject to the jurisdiction of this Court." On January 25,1921, this Court allowed an application for pleadings to be filed, and accordingly Messrs. Julius ft Creasy, for the plaintiffs, filed then-petition, and Messrs. de Saram filed an answer for the King of Italy and the Lloyd Sabaudo. The answer contained a counter-claim for Rs. 24,000 for the unlawful arrest and detention of the "Arnaldo Da Brescia," it being stated that the vessel was the property of His Majesty the King of Italy, and was, therefore, not liable to arrest.

On the application of Messrs. de Saram for the issue of a Com- 1988. mission for the examination of witnesses in Italy with regard to the owner