FROM Rex Lex TO Lex Rex- ANALYSIS OF THE DOCTRINE OF SOVEREIGN

IMMUNITY UNDER THE INTERNATIONAL MARITIME LAW

Anu Bhuvanachandran1

Abstract: The phrase King can do no wrong is in the public domain from the time
immemorial. The concept is originated in the land of colonial powers which is further
diffused to the colonies which they ruled. Even though the colonization came to
extinction, the concept continued without change. Further the continuous escapism of
crown from their wrong has forced one among the developed nation the United States
to think about implementing a change to replace the King as sovereign with law as the
sovereign whereby the Crown will be liable for its wrong towards its individuals or to
other states. The present position is that the Crown is liable equally like an individual
towards other individuals or states and the liability is not only within its territorial limits
but also extends towards other nations through international waters.

This research paper carves out the history behind the concept of sovereign immunity
and discusses how far it was implemented in the United Kingdom and United States. It
also analyses the Indian position with respect to the adoption of sovereign immunity.
The research paper also makes a brief idea on what all components are brought under
the privilege of the Sovereign immunity doctrine in maritime law. It also analyses the
international legal framework and particularly analyses the laws in the United Kingdom
and in the United States. The paper also throws light to the judicial decisions made by
the United Kingdom, United States and India which lead to the transition to Lex Rex
from Rex Lex. The paper gives special thrust to the developments in Indian Maritime
Law with respect to Sovereign Immunity doctrine.

INTRODUCTION

1
Anu Bhuvana Chandran is presently working as Advocate and Spl. Consultant( Corporate & Maritime Affairs)
at Singhania & Co. LLP, Bangalore, India
The idea and practice of voyage has antique origin in the globed waters, but the
advancement in the modes and techniques used for implementing voyage can be traced
from the early English history. Irrespective of the nature of rule administered across the
territories, rulers or reign has been vested with the supreme power. But in the nature
of rule of colonial powers, there existed an arbitrary non-questionable rule that “King
can do wrong” which means King is the supreme law and there is no other power to
rule the powers of a King. It has further diffused to the evolution of the concept of the
sovereign immunity which is later accepted as a doctrine not only by the colonial
powers but also the states subjected to the colonial rule i.e. the so called “colonies”.

The sovereign immunity doctrine in fact provides absolute immunity to the King and
the Crown or the Sovereign state. Here we shall be discussing the historical evolution
of sovereign immunity doctrine in the international perspective and special analysis is
made on the status in India. We will also cover the concept of doctrine of sovereign
immunity and its scope in the parlance of Maritime law. There are legislations in the
global and municipal spheres with respect to implementation and regulation of this
doctrine. The contributions from international judicial institutions and Indian judiciary
are remarkable and hence discussed in detail. Further a detailed analysis is made on the
landmark decisions of Parlement Belge case2 (United Kingdom), Schooner Exchange v.
Mac Faddon3 (the United States) and MT Enrica Lexi case @ Republic of Italy v.
Republic of India4. This paper also analyses the recent decisions with respect to the
interpretation of sovereign immunity.

SOVEREIGN IMMUNITY- HISTORICAL APPROACH

The doctrine sovereign immunity has originated from the English concept “King can do
no wrong”. The famous jurists like Bracton identified the phrase “King can do no
wrong” as King was not privileged to do wrong, whereas Blackstone stated it as
“Besides the attitude of sovereignty, law also ascribes to the King in his political capacity
absolute perfection…. King moreover is not only incapable of doing wrong but even

2
AdCt((1879)4P.D 129)
3
11 US (7 Cranch) 116 (1812)
4
WP(C) No. 135/2012
of thinking wrong: he can never mean to do an improper thing: in him no folly or
weakness”.5 The doctrine is imbibed with the aura of Roman antiquity6, which has
further spread to different parts of the world. In this lime light, this paper shall look
into the scope, growth and applicability of this doctrine in United Kingdom and the
United States.

England

Though general history of Sovereign immunity projects itself with the overall aura of
Roman antiquity some of the early researchers assert that the origin of this doctrine is
in England.

The works of eminent jurists like Pollock and Maitland vide study on their study on
early England states that even in the reign of Edward I there existed the Right of Petition
the King was from suit and prosecution in his own courts.7 It was functioned in the base
that the King could not “be compelled to answer in his own court, but this is true of
any petty Lord of every Manor; that there happens to be in this world, no court above
his is, we may say, an accident.8 From the above statement it can be traced that the
immunity is of personal in nature that arose from the practical needs and specificity of
feudal system and not the conception that the King is superior to law.

With the passage of time, the personal immunity of the King was transformed into the
Crown Immunity or State Immunity or Sovereign immunity, what we see and
implement today. This transformation was supported by the justification “the divine
rights of King, he is above all laws as he was the law-giver appointed by God and
therefore could not be subjected to the indignity of suits by subjects. Further the petition
of rights9 existed during the reign of Edward I gained attention. Bad part of the petition
of rights was that it is not applicable in tort case10, though English Courts permitted suits
against government officials or employees who had committed wrong complained of.

5
George W Pugh; Historical Approach to the Doctrine of Sovereign Immunity; 13La.L.Rev(1953)
6
Watkins.op.cit.supra note 2 at 1
7
Supra n.2; see also United States v. O Keefe; 78 US 178 (1926)
8
Pollock and Maitland; op cit. supra n2 pg.515
9
Supra n6
10
The Western Star, 257 US 419, 432 (1922)
Nature of sovereign immunity adopted in England has completely altered by the
enactment of the Crown Proceedings Act 1947 wherein the suits can be instituted
against the Crown both for contract and tort cases.

Crown Proceedings Act

The Crown Proceedings Act 1947 gives the right to sue the Crown wherein it narrates
that the claim against the Crown can be brought by means of petition and the rights
may be enforced without the fiat of the Majesty, by proceedings taken against the
Crown for that purpose in accordance with the provisions ingrained. The liability of the
Crown in tort is given with detailed explanation under Part I. 11 On analyzing Part II of
the Act it can be pointed that the High Courts are given the jurisdiction to initiate and
proceed for a claim against the Crown.

This legislation has brought in drastic changes in the thickness of the immunity shield
over the government. In order to under arrival of restrictive immunity from the concept
of absolute immunity, there exist an alarming need to analyze the liability of Crown in
tort claims.

Section 2 of the Act deals with liability of the Crown in tort wherein sub section (1)
states that the Crown shall be subject to all those liabilities in tort to which, if it were a
private person of full age and capacity, for the tort committed by its servants or agents,
or any breach of duties which a person owes to its servants or agents at common law
by reason of being their employer and in respect of breach of duties clinging to the
subjects of ownership, occupation, possession or control of the property. Further the
proviso states that no proceedings shall lie against the Crown if there is an act or
omission from the part of servants or agents which purport to their own loss of rights.

Subsection (2) provides that the Crown is bound by a statutory duty which is binding
upon persons other than the Crown or its servants or agents, the liability in respect of
private persons. Subsection (3) adds that non-performance of functions deputed to its
official will charge liability upon the Crown. And if any other enactment which further

11
https://www.legislation.gov.uk/ukpga/Geo6/10-11/44/section/2; last visited on 06/02/2018
limits the liability of the Crown say a substantive law then the substantive law will
apply.12

Subsections (5) and (6) of section 2 gives absolute immunity to the Crown. Under
Subsection (6), no proceedings shall lie against the Crown unless that officer is directly
or indirectly appointed by the Crown and was paid for the respective duties discharged,
out of the Consolidated Fund of the United Kingdom or any other fund certified by the
Treasury. Whereas in (5) it is given that No proceedings shall lie against the Crown for
the failure of person discharging duty of judicial nature vested in him or during the
execution of judicial process.

Hence it can be portrayed that the historic practice of absolute immunity has faded to
an appreciable extend by limiting the immunity; which the United States identified as
restrictive immunity in their legislation.

United States

The territory being subjected to English rule, since the days of Declaration of
Independence, the key thought was to establish a completely responsible government.
The application of sovereign immunity, is now the part and parcel of American territory
which is evident from the ruling of Pennsylvania Admiralty Court wherein the
jurisdiction in a libel action against was warship was upheld.13 The Constitution of
United States is silent about the concept of sovereign immunity whereas literal
interpretation of art. III14 permits suits against government. Eminent jurists asserted that
it is the inherent nature of sovereignty, not to be amenable to suit of an individual
without its consent;15 it is not in the powers of individual to call any state into court 16;
no gentleman will think that a state will be called at the bar of the Federal Court.17
Further Mr. Justice Blair, Mr. Justice Cushing and Chief Justice Jay dissented towards
the application of sovereign immunity; and questioned the scope and necessity of filing

12
Subsection 4 of the Section 2
13
Pierre de Mortez v. South Carolina Bee 22 (1781)
14
The Federalist; No.81; at 567 (Dawson ed 1873
15
3 Elliot’s Debates on Federal Constitution; pg.533
16
Ibid; pg.555-556
17
Laske, Responsibility of State in England; 32 Harv.l.Rev.447 (1919)
suit against government for breach of duty towards individuals. Justice Iredell pointed
that availability of writ in England itself collapse the concept of dominating rule of
sovereign immunity in England.18 The changes in the scope and application of sovereign
immunity through the undermentioned judicial decisions:

The Schooner Exchange v. Mac Fadden19 is the antique suit dealt with admiralty
jurisdiction and its limitation in exercising in the presence of sovereign immunity. In the
said case, two Americans claimed they owned and were entitled to the Schooner
Exchange which was seized on the high seas. The claim which the United States Attorney
put forward for prevention of ship leaving was that, the ship which was owned by the
Emperor of France had been forced to enter the port of Philadelphia and due to bad
weather condition. During this term the United States and the France were in friendly
relation. The United States’ put request for the dismissal of ownership and release of
the ship was granted by the District Court. However the issue was whether national
ships of war viewed as been exempted by the consent of the power of the friendly
jurisdiction whose port, the ship enters. It was held that the national ships of war are
viewed as been exempted by consent of the power of the friendly jurisdiction whose
port the ship enters.

In Langford v. United States20, an effort has been made to negate the concept of ‘King
can do no wrong’. In the said case it was narrated, it is squarely rejected by our highest
court. It is further said that the President is the only individual to whom the doctrine
could possibly be applicable in this country and the court clearly and affirmatively
rejected the notion.

In Chisholm v. Georgia21, it was held that the citizen of one state had the right to sue
another state in assumpsit. The said judgment has made immediate effects in the state
as they were in the fear with regard to the payment of huge debts to meet the expenses
of revolution. In this regard, the eleventh amendment was put forth wherein a state
could no longer be sued in Federal Court by the citizens of another state.

18
https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&a
rticle=2013&context=lalrev ; last visited on 25/12/2017
19
Supra n2
20
101 US 34 1879
21
2 US 419, 459 (1793)
Further the justification for the application of doctrine of sovereign immunity was
brought by three major decision after passage of seventy five years. In Nichols v. United
States22, there exist an urgent need to ex delicto be amenable to its own authority for
fulfillment merely of its own legitimate ends. In United States v. Shaw23, it was narrated
that a sense of justice has brought a progressive relaxation by legislative enactments of
the rigor of the immunity rule. When the authority is given, it is liberally construed.

It can be traced in the later and latest judgments from the courts of United States that
absolute sovereign immunity is depleted and replaced by restrictive immunity practice.
Restrictive immunity shows limitations on the absolute immunity vested on the
warships, military ships or the non-military ships in the earlier days. The practice of strict
restrictive immunity can be traced in the landmark ARA Libertad case24, where the
Republic of Ghana detained a warship of Republic of Argentina ‘ARA Fragata Libertad’,
keeping it detained and not allowing to refuel. It was held unanimously by the the
International Tribunal for the Law of the Sea, that the Republic of Ghana shall forthwith
and unconditionally release the frigate ARA Libertad, its Commander and crew are able
to leave the port of Tema and maritime waters under the jurisdiction of the Republic
of Ghana and shall ensure that the vessel is resupplied to that end.

Further in Germany v. Italy25, Germany filed petition before the International Court of
Justice requests to find that Italy has failed to respect the jurisdictional immunity which
Germany enjoys under the international law by allowing civil claims for the repatriation
for injuries. It was held that the Italian Republic has violated its obligation to respect
the immunity which the Federal Republic of Germany enjoys under the International
Law by allowing civil claims to be brought against it for the violation of international
humanitarian law.

In Samantar v. Yousuf26, it was held that the doctrine of sovereign immunity developed
as a matter of common law long before the Foreign Sovereign Immunity Act was
enacted in 1976. It conclusively settled the question of whether the pre-codification of

22
74 US 122, 126 (1868)
23
309 US 495, 501 (1940)
24
Order of 15/12/12 ITLOS REPORTS 2012; pg.332
25
Decided on 03/02/2012
26
130 S.ct. 2278 (2010)
common law of foreign sovereign, sovereigns immunity can remain applicable to
contemporary foreign sovereign immunity litigation.

India

In India, vedas, smritis, sutras, epics and Kautilya’s Arthasasthra narrates responsibility
of states to compensate the victims, affected by the officials of the King and preach of
Ordeal system across the state. In the medieval period the rulers of Muslims who
dominated India followed retributive theory to satisfy the aggrieved persons. Sultan
Feroz brought in the liability of state for claims brought and adjudged against it in the
court. Shah Jahan and Tugulaq brought in and adopted the principle of vicarious
liability.

In is during the British colonial rule, the concept of sovereign immunity brought into
this land. It was held in Lord Kingsdown v. Ronee Surnomoy Dosee 27, that unlike the
King in England, the East India Company or the Secy. Of the State of India was not
immune from the liabilities of government proceedings.28

In 1861, the landmark case of Peninsular and Oriental Steam Navigation v. Secy. Sate
of India29, the Secy. Of state engaged some servants in government dockyards
Kidderpore in riveting iron pieces from dockyard to another place. The dockyard was
situated partly on the side of the road. They carried iron roads along the center of road
without any supervision to notice others. On the way, they negligently dropped an
iron rod due to which horses of the plaintiff’s frightened and fell down over the funnel
and injured. The Plaintiff put forth a claim of damages against the Secy. Of the state
and it was held that the Secretary of State if India in council is away from the shield of
sovereign immunity as the workers appointed were negligent in lieu of which the horses
were injured.

27
(1863) 9 MLA 387, 424
28
Section 9 of the Charter Act 1883
29
(1861) 5 Bom HCR App 1
Art.100 of the Constitution of India30 has derived from section 176 of the Government
of India 1935 where it is narrated that

a. Suits could have been brought against the East India Company and consequently
against the Secy. Of the state as successor to the company in respect of the act
done in the conduct of undertakings which might be carried on by private
individuals without sovereign powers.
b. The Secy. Of state was not liable for anything done in exercise of the sovereign
power.
c. Accepting the above two principles, Union of India and the state can be sued as
an ordinary person and is vicariously liable for the torts committed its servants.
It is not liable for anything done in exercise of sovereign powers.

In Gurucharan Kaur v. Madras Province31, it was held that the government could not
be held liable for the acts of police in discharge of their statutory duty in good faith.
Further in Secy. Of state v. Nagarao Limbaji32, it was held that provisions for bombing
practice facilities was a public duty undertaken by the state in order to provide training
for the Army. The duties of such nature are exercised by the state for its own benefit,
but for the protection of entire population.

CONCEPT OF SOVEREIGN IMMUNITY

We have discussed the idea and evolution of doctrine of sovereign immunity so far.
Now it is high time to deal with the conceptual analysis of this doctrine in the Maritime
Law parlance. The subjects that enjoy sovereign immunity in maritime waters shall be
briefly stated as follows:

i. Government ships of India or foreign states serving public functions.

ii. Immunities conferred on sovereign personally and diplomatic officials whose
role is perhaps seen as an extension of that sovereign

30
Dhakjee Dadajee v. East India Company; 307(1843) 2 Morley Digest
31
AIR 1942 Mad 539
32
AIR 1943 Nag 283
 iii. Immunities from civil proceedings concerning person or property in which
there is a state interest.
iv. Warships

In the landmark case of Maclaine Watson v. Dept.of Trade33, it was held that a claim
to immunity from legal proceedings of foreign ships must be decided as a preliminary
issue- it is not enough to show a good arguable case for an exception to the general
principle. The rule with regard to state immunity from criminal proceedings within UK
are now found in the State Immunity Act 1978.

Section 1(1) of the Act deals with the general proposition that the state is immuned from
the jurisdiction of the court of the United Kingdom. A state include a sovereign in his
public capacity, a government and any department of government and not a separate
entity which is distinct from the executive organ of the state and is capable of suing and
be sued. Such an entity is immuned if the relevant proceedings related to anything done
by it in exercise of sovereign authority and if as a state it would have been immune 34.
Section 10 of the State Immunities Act 1978 deals with all claims which are or would be
the subject of Admiralty proceedings. It applies the restrictive theory of immunity to
actions in rem and in personam in relation to a ship o property belonging to a state,
which is in its possession or control or in which it claims an interest. The exception in
the immunity is with respect to cargo meant for commercial purpose. The Brussels
Convention Relating to the Arrest of the State Owned Ships equate claims in respect of
such ships or cargoes carried in them of those privately owned ships subject to certain
immunities granted to vessel employed exclusively on governmental and non-
commercial purpose when cause of action arose.35

Earlier the Crown Proceedings Act 1947did not provide immunity of both personal and
government and is available through petition of rights. The applicability of statutes to
the government depend up on the particular statute. Further the Supreme Court Act
198136 provides negative provision as to invocation of Admiralty jurisdiction against the

33
[1988] 3 AllER 257; p.314 (C.A.)
34
Nigel Maeson & John A Keinbill; Llyod’s Shipping Law Librar; Admiralty Jurisdiction and Practice 14 Edn.
Pg.336
35
State Immunity Act; S.10(6)
36
S.24(2)(c)
crown which effectively require references to rules existing prior to statute. It can be
traced that while the immunity of the Crown from the suit in rem is well established37,
the extent of that immunity continues to depend on pre- statute rules. The Crown
immunity has two connected but two separate aspects. The immunity from proceedings
in rem is straight forward in that such proceedings is not available for any claim against
the Crown. But the Crown property may be focus of an action not aimed the Crown.
Further both the Crown Proceedings Act and the Supreme Court Act prohibit arrest,
detention or sale of Crown Property. However the Admiralty Court can exercise
jurisdiction in case of action in personam against the Crown. For the purpose of Crown
Immunity, Crown includes government departments, ministers, officers, servants and
agents of the Crown.38 The aspects wherein application of aspects of Admiralty
jurisdiction and practice include limitation of liability39, limitation of actions40, salvage41,
and apportionment of loss in collision claims42. The Court of Appeals43 and the House
of Lords44 have held in two cases that the issue a claim form in rem against a vessel in a
claim for possession in such a foreign sovereign state claimed and interest was
impleading the sovereign state. In the Christina, it was held that modern writ in rem
has become a machinery declared against the ship charged to have been instrument of
wrongdoing in cases of where it is sought to enforce a maritime or statutory lien, or a
possessory action against the ship whose possession is claimed.

The Sovereign Immunity Doctrine also acts as a limitation to exercise port state
jurisdiction. A warship includes a ship belonging to armed forces of a state bearing the
external marks distinguishing such ships of its nationality, under the command of an
officer duly commissioned by the government of the state and whose name appears in
the service list or its equivalent and manned by a crew which is under regular armed
forces discipline.45 In a landmark decision it was held that warships and other

37
Supra n.29; 342
38
S.9
39
S.24
40
ibid
41
ibid
42
ibid
43
The Jupiter [1924] p.236 (CA)
44
The Christina [1938] AC 485 (HL)
45
[1998] 1 Lloyd’s Rep 1 vol.1 pg.8
government ships used for non-commercial purpose enjoy the privilege of sovereign
immunity from civil and criminal jurisdiction of coastal states.46

In Schooner Exchange v. Mac Fadden47, the U.S. Supreme Court held that a public
armed vessel in the service of a sovereign at peace with the United States is not within
the ordinary jurisdiction of the tribunal while within a part of United States.

In Berizzi Brothers v. S.S. Pesaro48, it was held that sovereign immunity shall be extended
to all government ships for a public purpose, even if it carries trade it should be given
the same status of a warship. But in the Republic of Mexico v. S.S. Bajor California49, it
was ruled that ship owned by government but in possession of and traded by a privately
owned Mexican Corporation cannot avail the shield of sovereign immunity.

Further United States codified the restrictive approach to state immunity to state
immunity through Foreign Sovereign Immunities Act, 1976 which was followed by UK
legislation, the State Immunity Act 1978. The United Nations Convention of
jurisdictional immunities of states and their property was adopted in 2004 but not yet
come into force.

The Parlament Belge Case [5 P.D. 197 (1880)]

In England, the principle of absolute immunity of public ship of foreign state was laid
down for the first time by the Court of Appeal in the well-known case called Parlament
Belge.

Parlament Belge was a public ship belonging to and in the possession of the King of
Belgians. She was running between Ostend and Dover as a mail packet under the
command of officers of Royal Belgian Navy and was carrying Kings Royal Pennon.
Besides carrying letters, she carried merchandise and passengers and their luggage for
hire. On 14th February 1878, she collided in a storm with a steam-tug during in the
Dover Bay within the part and harbor of Dover. Proceedings in rem were instituted
against the Parlament Belge by the owner of Daring who alleged that collision was due

46
Art.29 UNCLOS III
47
Art.32 UNCLOS III
48
11 US 116 (1812)
49
271 US 562 (1925)
to the negligence and faulty navigation of those in control of the Parlament Belge. The
three main issues raised before the Court of Appeal where:

a. Whether irrespective of the express exemption contained in the article 6 of the

Convention, the court had jurisdiction to seize the Belgian vessel in a suit in rem.
b. Whether if court could otherwise have such jurisdiction, it was covered by article
6 of the convention
c. Whether any exemption from the jurisdiction of the court which vessel might
otherwise have had was lost by reason of her trading in the carriage of goods
and persons

The following rulings were propounded by the Court of Appeal

i. The immunity of ship from the civil process of English Courts is confined is
to warships alone, but extends to any such government ship destined to
public use.
ii. The immunity of government ship is not affected by person or reason of the
fact that she has been used subordinately and partially for trading purposes.
iii. Once a ship has been declared by a foreign state through the usual channel
to be a public ship destined to public use, such a declaration cannot be
inquired into.
iv. A foreign sovereign is protected not only against an action in personam but
also against an action in rem in respect of his ships destined to public use.

From the ruling, it can be traced that even the restricted immunity works on the
principle laid down in the historic case.

JURISDICTION OVER GOVERNMENT SHIPS AND FOREIGN MERCHANT SHIPS

To determine the legal status of government ships, as distinguished from the private
ships there is a need to analyze the limits on immunities. The immunity with respect to
different categories of government ships can be briefly analyzed as follows.

I. MILITARY SHIPS OR WARSHIPS

Under the Geneva Convention of 1958 on the High Seas, the term warship is defined
as a ship belonging to the naval forces of a state and bearing external marks
distinguishing warships of its nationality, under the command of an officer duly
commissioned by the government and whose name appears in the Navy List and
manned by the crew who are under the regular naval discipline. Oppenheim said that
a warship abandoned by its crew or whose crew has mutinied and taken control of the
ship is not deemed to be a part of the armed forces of her state. In Chung Chi Chung
v. The King50, a foreign warship in a friendly port enjoys complete immunity from any
kind of legal process or police action and its immunity however does not grant her
complete exemption from local law. It was also ruled that the Commander and the
other authorities of the flag state have exclusive jurisdiction over crimes committed on
board by persons in the service of the ship. It would however seem this immunity may
be waived in specified cases. In case of civil matters, no form of public or private process
will be against a foreign warship in respect of any action arising out of a maritime claim
or any other claim. She cannot be seized or arrested by any legal proceedings. Further
the International Court of Justice in which it was held that that in time of peace warships
enjoy the rights of innocent passage through straits which are used for international
navigation between two parts of the high seas. A warship enjoys complete immunity
once it project or acts like that of a private ship. It is also ascertained that the warship
cease to enjoy their special privileges if they engage in commercial activities.51

II. NON MILITARY SHIPS

Under the international law certain non-military enjoy sovereign immunity. This
include government ships engaged in non-commercial activities and government
merchant ships. Brussel’s Convention of 192652, and the Geneva Conventions 195853,
asserts that ships owned and operated by the state and used exclusively for
governmental purpose shall enjoy immunity from the jurisdiction of states other than
the flag states. The ships in the service of the police, customs, port authorities or other

50
[1939] AC 160
51
Kochu Thommen J; Legal Status of Government Ships under the International Law;1962; pg.8
52
Art.3
53
Art.22 of the First Convention; Art.9 of the Second Convention
government departments for strictly governmental and non-commercial purposes. In
case of government ships i.e. merchant ships, sovereign immunity is available in all the
times when they perform non-commercial activities.

In Christina54, immunity was granted to a ship owned by foreign government for its
public use. Further the advocates of sovereign absolute immunity argued that any
exercise of jurisdiction over a foreign government ship will amount to an exercise of
jurisdiction over a foreign government ship will amount to an exercise of jurisdiction
by the foreign state itself. They said that sovereign state being absolutely independent,
one state cannot exercise jurisdiction over an equal, par in parem non habet imperium.
It is said that any exercise of jurisdiction over foreign government is derogatory to the
sovereignty of the flag state overlook the fact that it is even more derogatory to the
sovereignty of the coastal state in whose waters the ship lies to be shorn of vital
attributes of sovereignty exercised through administrative and judicial authorities in
order that such immunity may be granted.

SOVEREIGN IMMUNITY IN INDIA

The doctrine of sovereign immunity can be traced in section 36 of the Code of Civil
Procedure 1908, wherein it is stated that no foreign state may be sued in any court
without the prior permission of the Central government. The government has the
discretion to grant the consent, however the approval will depend on specific facts of
the case and would only be applied where the foreign states:

a. Has instituted a suit in the court against the person desiring to sue it.
b. By itself or another, trades within the local limits of the jurisdiction of the court.
c. Is in the possession of immovable property situated within those limits and is to
sued with reference to such property for money charged thereon.
d. Has expressly or impliedly waived the privilege according to it by this section.

In Harbajan Singh Dhalla v. Union of India55, the Supreme Court observed that the
disputes have to be resolved in accordance with the laws of this country, both under
the principles of Lex Loci contractus and “lex situs”.

54
[1938] AC 485 pg.507
55
AIR 1987 SC 9
The landmark decision of MT Enrica Lexie in India has made a brainstorming revolt
between India and Italy on issues relating to sovereign immunity and has settled at the
International judicial platform.

MT Enrica Lexie AND THE DOCTRINE OF SOVEREIGN IMMUNITY

I. Before the Hon’ble High Court of Kerala

Case Name: MT Enrica Lexie v. Circle Inspector of Police & Ors.

On 15th February 2012 two fishermen on a fishing vessel by name St. Antony, were
shot dead. It was alleged that the assailants were on board of a vessel by name M.T.
Enrica Lexie which is flying the Flag of Italy and was a government or warship.
Basing upon the first information statement a case was registered at Neendakara
Coastal Police Station for committing murder under section 302 of the Indian Penal
Code 1860. Consequently the circle inspector was intercepted by Coast Guard
during her perpetuated voyage and brought to Cochin Port waters and anchored.
Subsequently two security men on boardthe ship were arrested.

After obtaining search warrant from the Chief Judicial Magistrate of First Class
Kollam, the vessel was thoroughly searched. Weapons and other articles were seized
by the investigating officer. But the vessel was not allowed to leave the port. In the
meanwhile Admiralty suits were instituted. As ordered by the High Court of Kerala,
in M.F.A. 35/2012 a sum of Rupees three crores and ten lakh were deposited before
the Registrar General. But no order was issued permitting the vessel to sail even after
the deposit of security so ordered by the court and reason for such an act was not
stated. In this advent, a writ of mandamus is filed before the High Court of Kerala
to grant permission for sailing of the vessel and her master to leave and proceed her
voyage.

Elements from the Judgment

a. It was narrated that the vessel was subject to disposal of the Chief Judicial
Magistrate, Kollam as the custody of the same was no more warranted by the
 investigating officer. Therefore it is inappropriate to detain the vessel any more
on the reason that the Forensic Science Laboratory Report is not received.
b. With regard to seizure by the investigating officer, the vessel was not seized as
and when it was anchored at Kochi and report or at least after search, definitely
the petitioners would have moved before the Chief Judicial Magistrate for
release and no notice prohibiting the voyage was served on the petitioners.
Therefore there is no good purpose in detaining the crew members.
i. The writ of was allowed directing the circle of police and port authorities to
release the vessel to allow the voyage under following condition: The owner of
the vessel shall execute a bond for Rs3crore before the Deputy Conservator of
Cochin port undertaking to procedure vessel/crew/master as and when called
upon by respective authorities. (Deputy Conservator, Mercantile Marine
Department Cochin and Union of India [Shipping Ministry].
ii. The owner of the vessel shall file an affidavit before Mercantile Marine
Department undertaking that the vessel/crew/master of the vessel shall be
produced as and when called upon notice three weeks’ time. Further it was held
that none of the security guards on board are made accused. It is clarified that if
any of them found involved with the alleged offence, this judgment would not
hinder the course of investigation.

II BEFORE THE HON’BLE SUPREME COURT OF INDIA

CASE NAME: Republic of Italy v. Union of India & Ors.

Factual Matrix: In course of release and continued voyage, she was called back and
directed to birth in Cochin Port by the Mumbai Port Authorities. It was already
contented that alleged wrongful act was done in official capacity and in the affidavit,
it was reasserted that Italy had exclusive jurisdiction over the writ petitioners and
invoked sovereign and functional immunity.

ELEMENTS FROM JUDGMENT

It is observed that some public ships and armed forces of foreign states may enjoy a
degree of immunity from the territorial jurisdiction of the nation. As the incident took
place in the Contiguous Zone, both the provisions of the Maritime Zones Act 1976 and
the UNCLOS 1982, India is entitled to exercise rights of sovereignty in the matters
limited to exploration, exploitation, conservation and management of the natural
resources both the living and the non-living as well for producing energy from wind,
currents and tides.

Further it is asserted that act 94 of the UNCLOS deals with the duties of flag state and
each state shall cause an enquiry to be held into every marine casualty or incident of
navigations on the high seas involving a flag ship causing loss of life or injuries to
nationals of another state. Further the states are duly termed to cooperate in the inquiry
so conducted in this behalf. This transpires that India has jurisdiction both under
national and international law to exercise sovereignty over 24nm on the baseline. The
incident of firing from Italian vessel having jurisdiction occurred within the contiguous
zone, the union of India is entitled to prosecute two Italian mariners. But the said
prosecution shall be initiated by the central government and not within the ambit of
state government as coast under art 100 of UNCLOS 1982.

VIEWS OF LIBERA UNIVERSITY

They pointed out that UN convention on Jurisdictional immunities of states and their
properties 2004 recognize immunity as a need to maintain diplomatic relations with
foreign states to ensure peaceful coexistence between people. It is narrated that
irrespective of zones, the two mariners shall be immune from prosecution initiated.
Instead it shall transfer to the jurisdiction of appropriate Italian courts.

LATEST DEVELOPMENTS

In 30/30/2016 an ad hoc tribunal was constituted as a significance of Italy’s movement

to ITLOS. ITLOS in 2015 accepted their first plea seeking provisional measures to stop
India from prosecuting two marines “ but refused to accept the second plea” stay in
their own country pending the trial process. The parties have finally agreed to settle at
ad hoc tribunal u/annexure VII.
SOVEREIGN IMMUNITY UNDER THE MERCHANT SHIPPING ACT, 1958

Under the Act, section 356P under Part XI B on Control of Harmful anti-fouling systems
on ships, clause 2 states that the above said part shall not be applicable to any auxiliary
or other ships owned or operated or under the authority of India and used for the time
being, only for the government non-commercial purposes.

SOVEREIGN IMMUNITY UNDER THE MERCHANT SHIPPING BILL, 2016

Under chapter IV titled “Civil Liability for Bunker Oil Pollution Damage, section 182
provides that the chapter shall not apply to warships, naval auxiliary or other ship
owned or operated or under the authority of India and used for the time being only
on non-governmental commercial services. Under section 211(b) under the chapter
‘Wreck’ sovereign immunity is provided. Further under section 226(1) the salvage claim
cannot stand against a warship or other non-commercial vessels owned or operated by
the government to carry out commercial activities.

SOVEREIGN IMMUNITY UNDER THE ADMIRALTY JURISDICTION AND

SETTLEMENT OF MARITIME CLAIMS ACT 2017

In the Act, section 2(1) proviso 2 clearly specifies the sovereign immunity. It states that
this Act shall not apply to warships, naval auxiliary or other vessels owned or operated
by the central or the state government and used for any non-commercial purpose and
shall also not apply to a foreign vessel which is used for any non-commercial purpose
as may be notified by the central government.

Hence it can be drawn that sovereign immunity is an inevitable concept and tool in
maritime waters. It can be further traced that King is the law has been transformed to
Law is the King i.e. from Rex Lex to Lex Rex.

CONCLUSION
Earth has started revolving with the practice of the principle “King can do no Wrong”
since the existence of ruling and leadership come into existence. Those were the days
when a word from the mouth of the King becomes the law of that land. Even when
the development era pierced into the world in the form of civilization and revolutions,
it can be traced that the concept of King can do no Wrong was cradled with utmost
respect and care. But when the period of cross border merchandise commenced, the
people involved in the merchandise representing the crown themselves found
irregularities and constraints as the King is often excavated by this immunity principle.

We have already analyzed that the principle King can do no Wrong was extended to
Crown and then to the State especially during the colonization period. Widen the scope
of this principle glorifies the loopholes and tailor unjust practices that cannot be torn
out. The doctrine of Sovereign immunity i.e. the absolute immunity is followed time
immemorial by the Crowns of various states. Sovereign immunity at the international
level can be fruitfully discussed under the subject of International Maritime Law, where
multiple number of states participate and there arise a question as to who is sovereign
among all and whose law will apply. Through this paper we have analyzed how
changes have occurred in the field of Shipping.

With respect to India, being soaked in the hurricane of colonization was blessed to
accept and adopt all the developments occurred in the colonial rulers. But it can be
seen that in the pre colonization period, there were laws in Vedas and Arthasasthras
stating and imposing liabilities on the King or the Crown for non-discharge of certain
inevitable duties towards its men.

With the passage of time, we traced that the United Kingdom brought in the diversifying
legislation on sovereign immunity by imposing limitation on the immunities enjoyed so
far, by the state. The United States also brought in the same concept through Legislation
but more researched and comprehended which classified immunity into absolute
immunity and restrictive immunity. The United States hence shown green flag to the
doctrine of restrictive immunity which has later diffused to the nook and corner of the
globe. But there is a key element in the above mentioned statements i.e. the limitation
on the absolute immunity has brought in through a legislation which is considered to
be sovereign rather than the living Crown or the state. This is the transition period and
the turning point of the term Rex Lex to Lex Rex i.e. King is the Law to Law is the King
where there is no scope of absolute immunity for the Crown unless for the better
discharge of its sovereign functions.