Joint Committee on Statutory Instruments Nineteenth Report


Voluntary Memorandum by the Foreign and Commonwealth Office


1. This Order has been made under section 15(1) of the State Immunity Act 1978 and is subject to annulment in pursuance of a resolution of either House or Parliament.

2. Following the dissolution of the Union of Soviet Socialist Republics doubts have arisen regarding the States covered by the State Immunity (Merchant Shipping) (Union of Soviet Socialist Republics) Order 1978. In recent court cases the question has arisen as to whether or not the 1978 Order applies to ships owned by the Republic of Ukraine. This order removes any doubt by revoking the 1978 Order and expressly preserving the immunity from execution of ships and cargoes owned by the Russian Federation, the Republic of Ukraine and Georgia which would otherwise be lost by virtue of section 13(4) of the State Immunity Act 1978, and requiring notice to be given to a consul of those States before a warrant of arrest is issued in an action in rem against a ship owned by that state or cargo on it. The Order gives effect to Articles 2 and 3 of the Protocol to the Treaty on Merchant Navigation between the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics, which was signed at London on 3 April 1968, and to which Georgia and the Republic of Ukraine are now parties in addition to the Russian Federation.

3. This Order has not been laid for 21 days before coming into force. As pointed out above doubts have been raised about the scope of the 1978 Order in recent court cases. Further cases could arise at any time. It is, therefore, desirable to bring the Order into force immediately, so that full effect can be given to the United Kingdom's obligations under the Protocol.

October 1997

Memorandum by the Foreign and Commonwealth Office

This Memorandum addresses the two points in the letter from the Commons Clerk of the Committee dated 17 December 1997.

(1)  The Department's memorandum states that this instrument has been made to remove doubts raised in recent court cases about the scope of the State Immunity (Merchant Shipping) (Union of Soviet Socialist Republics) Order 1978. Identify the names and dates of these court decisions, and explain why the instrument was not made and laid earlier so as to avoid infringing the 21 days' rule.

On l6 June 1997 the Foreign and Commonwealth Office were requested by the parties to proceedings before the High Court in Belfast concerning the arrest of the M.V. "Inessa Armand" to state whether the Treaty on Merchant Navigation between the United Kingdom and the USSR together with its Protocol of 1974 applied between the United Kingdom and Ukraine. The FCO replied that same day (as requested) to the effect that HMG and, to the best of their belief, Ukraine regarded the Treaty and Protocol as being in force. The FCO learnt in October l997 that this case had been resolved without deciding the point.

The FCO heard nothing more until l6 October l997 when solicitors for Ukraine contacted the FCO about a different case: Bridge Oil Ltd v The Owners of the ship "Giuseppe di Vittorio". In their letter the solicitors informed the FCO that Ukraine was appealing against an Order of Clarke J of l5 July l997 affirming the arrest of the vessel and ordering her to be sold. The solicitors said that Clarke J had held that the State Immunity (Merchant Shipping) (Union of Soviet Socialists Republics) Order 1978 did not apply to Ukraine, and that the matter was now before the Court of Appeal. The solicitors further said that they would pass the FCO letter of l6 June (in the Inessa Armand case) to the Court, and in addition that the appeal was to conclude the next day. In response to this letter the FCO confirmed that they had nothing to add to their letter of l6 June. They further stated that it was clearly desirable to avoid any doubt that there might be concerning the effect of the l978 Order in respect of Ukraine and that it was therefore intended that a further Order be made, at the earliest opportunity, expressly applying provisions identical to those in articles 3 and 4 of the l997 Order to ships owned by Ukraine.

The Court of Appeal subsequently, on 29 October l997, upheld the decision of Clarke J to the effect that the l978 Order did not apply to Ukraine.

In the Giuseppe di Vittorio case the judgments referred to the provisional conclusion of the Court of Session in the case of Coreck Maritime GmbH v Sevybokhodflot [1994] SLT 893 on the separate question whether the l978 Order applied to the Russian Federation. The FCO did have some correspondence with the parties during those proceedings, but it does not appear that the judgment of the Court of Session was drawn to the attention of the FCO before October l997.

In summary, it was only on 16 October l997 that the FCO learnt of the judgment of Clarke J of l5 July l997 holding that the l978 Order did not apply to Ukraine. Since further vessels might be arrested at any time, with consequent uncertainties in court proceedings and the risk that the United Kingdom would be in breach of its treaty obligations, it was considered that the Order should be made and brought into force as soon as possible.

(2)  This instrument was laid before Parliament on 3l October 1997, but was not sent to the Committee until 5 December 1997. Explain the reason for this delay.

The FCO apologises for the delay in sending the Order to the Joint Committee. This was an oversight due to absences in the FCO's Legal Executive Section.

The Legal Executive Section have usually awaited the final versions of non­affirmative Orders, which are numbered and free from manuscript amendments, before sending them to the Committee. This can lead to delay, and in future it is intended that any Order which does not comply with the 2l­day rule will be transmitted to the Committee as soon as possible.

January 1998

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