"Then they were dispersed between Saddam Hussein Airport at Baghdad, also a civilian airport and the home base for IAC, which was already crowded with the grounded IAC fleet, and at Mosul and [Tekrit] which are civilian/military airports, as well as some remaining at Basra."
"The evidence is compelling, in my judgment, that when the occupation of Kuwait was regarded as complete, the Iraqi Government arranged for the removal by the Iraqi Air Force of the five KAC aircraft which it required for other and possibly non-commercial uses, and it directed IAC to take possession of ten KAC aircraft which were to be used for commercial purposes, and to look after them until such time as commercial operations could resume. This was the object of the `safe-keeping' which Mr Saffi was instructed to achieve. The decision to recruit key specialist personnel for an Airbus fleet and the steps taken to implement this decision from mid-August onwards confirm that IAC was engaged, on the Minister's instructions, in the preliminary stages of establishing an Airbus operation and to this extent was anticipating the transfer of ownership which became effective, so it was believed, on September 17th."
"Would you kindly ask the Air Safety Division to give us a list of the necessary requirements for registration of aircraft in the Iraqi Civil Register, as it is intended to purchase or lease cargo planes from another company."
"With reference to the letter from Technical Planning number 580 dated 15.8.90, kindly inform us the necessary requirements for registration with the Iraqi Civil Register of foreign-registered aircraft, and also for granting for these aircraft an airworthiness certificate. It is intended to purchase or lease cargo planes from a foreign airline."
"With reference to your letter no MSA 1/1901 dated 23.8.1990 we list below the requirements needed for registration of aircraft, mentioned in your letter, in the Iraqi Civil Aviation Law ..."
"I consider in these circumstances that this court cannot and should not recognise Resolution 369 for any purpose or in relation to any point of time. It follows that IAC cannot show that it had any legal title to KAC's aircraft at any time after the passing of Resolution 369, and that its conduct in relation to what were and must be treated as KAC's aircraft constituted wrongful interference for which IAC is potentially liable in damages."
"Under Iraqi law, (i) in so far as KAC's claim involves or arises from physical loss to or damage of any particular aircraft usurped, KAC needs only to show that such physical loss or damage would not have occurred `but for' IAC's wrongful interference in respect of that aircraft; (ii) in so far as KAC claims for other loss, it must show that such loss was the natural result of the usurpation. In order to satisfy the test of double actionability, KAC must also satisfy the requirements of English law regarding causation and remoteness. It must also establish and quantify its loss under the various heads claimed."
"The conclusion which I reach as a matter of principle, on the material before me, is that usurpation by `keeping' depends on a combination of factors, such as whether the property has been in the possession or control of the alleged usurper and for how long, and whether he has conducted himself in relation to it, for example by exercising control over it, in a manner showing that he was `keeping' it as his own."
"On the evidence I have heard mere inaction in relation to another's property in one's possession would not suffice for usurpation. But I accept that it would, in this type of situation, probably require little in the way of positive conduct affecting the vehicle to lead to a conclusion that the landowner had decided to take advantage of the situation for his own benefit and was exercising control and keeping the car as his own."
"Pursuant to the instructions that issued from the office of the Minister of Transport and Communication, it has been decided to put the Airbus (A310-200) (formerly Kuwaiti) into service on domestic routes between Kuwait and Baghdad. Please let us know the requirements for registering these aircraft as Iraqi and give the matter your utmost attention."
"After the announcement of the merging unification with Kuwait and the joining of the Kuwaiti aircrafts fleet with [IAC], all the employees are requested to take care of the aircrafts ..."
"Therefore it becomes necessary to imagine what the position would have been if the Iraqi government had decided to take the aircraft from Kuwait and keep them as booty of war, but had decided that they should not be made part of IAC's assets. In practice that involves assuming that Resolution 369 was not passed but some other Resolution was, which decreed that the aircraft were not longer the assets of KAC but were the assets of some other Iraqi entity."
"I have already concluded that when considering this question I should regard the wrongful interference or `usurpation' by IAC as being the actual incorporation by IAC of the ten aircraft into the IAC fleet. I have also concluded that, for the purposes of considering what would have happened `but for' the `usurpation', I should disregard all the preparatory acts of IAC between 17 August and 17 September, when the RCC Resolution 369 took effect officially. This means that I have to disregard all that was being done by IAC to the aircraft in the period from17 August 1990 . Lastly I have concluded that, upon the basis that the wrongful interference or `usurpation' by IAC was the general incorporation into the IAC fleet, then `but for' that usurpation, I must assume that some other body would have been in control of the KAC aircraft and that this is likely to have been the IQAF or some other Iraqi government ministry. I think that the precise identity of the ministry does not matter because there is no credible evidence that the attitude or actions of any one particular entity would have differed from any government ministry or other body that might have exercised control over the ten KAC aircraft."
"I. (1) That the Kuwaiti Airways Corporation be dissolved and all its fixed and liquid assets, rights and liabilities be transferred to the Iraq Airways Company, who will register all assets in accordance with domestic and international laws. (2) All assets belonging to Kuwait Airways are to be transferred to the Iraqi Airways Company as soon as this resolution comes into effect. II. All activities of Kuwait Airways offices abroad must cease and all their assets are to be transferred to the Iraqi Airways Company, in accordance with clause I of this Resolution. III. The Board of Iraqi Airways is to conduct a complete survey of all Kuwait Airways personnel and determine the level of the work force in the light of current needs and central directives. IV All withdrawal authorisations granted to Kuwait Airways employees are cancelled from the date this Resolution comes into effect..."
"WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, ... AND FOR THESE ENDS ... to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest... HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS"
"Article 39. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 41. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations... Article 42. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international security. Such action may include demonstrations, blockade, and other operations by air sea and land forces of Members of the United Nations."
"9. ...nothing in the present resolution shall prohibit assistance to the legitimate Government of Kuwait, and [the Security Council] calls upon all States: (a) To take appropriate measures to protect assets of the legitimate Government of Kuwait and its agencies; (b) Not to recognise any regime set up by the occupying Power..."
"In line with the acceptance by the Government of Iraq of the Security Council Resolution 686 of 1991 and its previous acceptance of other resolutions of the Council and in accordance with the provisions of paragraph (A) of Article Forty Two of the Constitution, the Revolutionary Command Council has resolved: First: All Resolutions of the Revolutionary Command Council enacted from2 August 1990 and relating to Kuwait are hereby repealed. Second: All Laws, Regulations, Orders, Instructions, Directives and Measures taken in accordance with the resolutions of the Revolutionary Command Council referred to in (First) are repealed and all consequences resulting thereof are annulled..."
"Has Her Majesty's Government recognised at any time that the State of Iraq exercised de facto sovereign power in Kuwait as at17 September 1990 or at any time thereafter?"
"In In re Banque des Marchands de Moscou (Koupetschesky), Royal Exchange Assurance v The Liquidator (which does not appear to have been cited to Campbell J) Vaisey J expressed the view that the general principle was not limited to nationals of the confiscating state. I respectfully agree with him, for it seems to me that on this question nationality must be irrelevant. If the principle be true in respect of a State in relation to its own nationals, it must surely be conceded in relation to those persons who, though not subjects of the State, nevertheless bring their movables within its jurisdiction for business or private reasons or for the like reasons enter into contracts governed by the law of the State, and in general enjoy the same benefits and protection and are subject to the same disadvantages and disabilities as subjects of the State. With all respect to Campbell J, I think that Luther v Sagor and Princess Paley Olga v Weisz laid down principles of general application not limited to nationals of the confiscating State. In my judgment the true limits of the principle that the courts of this country will afford recognition to legislation or contracts governed by the law of that State rests in consideration of international law, or in the scarcely less difficult considerations of public policy as understood in these courts. Ultimately I believe the latter is the governing principle. But, whatever be the true view, the authorities I have reviewed do show that these courts have not on either ground recognised any principle that confiscation without adequate compensation is per se a ground for refusing recognition to foreign legislation."
"The third ground on which it was argued that English law should pay no regard to the 1941 decree was that it was contrary to international law. In his judgment Buckley LJ says[1973] Ch. 264 , 273: `...the answer to the question whether or not the person is a national or citizen of the country must be answered in the light of the law of that country however inequitable, oppressive or objectionable it may be.' With all respect I cannot agree that that is the law. If a foreign country purported to confer the benefit of its protection on and to exact a duty of allegiance from persons who had no connection or only a very slender connection with it our courts would be entitled to pay no regard to such legislation on the ground that the country in question was acting beyond the bounds of any jurisdiction in matters of nationality which international law would recognise. In this respect I think that our law is the same as that of the United States as stated by the Circuit Court of Appeals, Second Circuit in United States ex rel. Schwarzkopf v Uhl, 137 Fed Rep 2d 898... Mr Vinelott...pointed out that the 1941 decree was only aimed at persons who had already left Germany for good and that emigration was a common and well-recognised ground for the withdrawal of nationality. This is, of course, true, and if the decree had simply provided that all Germans who had left Germany since Hitler's advent to power with the intention of making their homes elsewhere should cease to be German nationals it may be that our courts would have had to recognise it even though many of those concerned were not in truth voluntary emigrants but had been driven from their native land. But the 1941 decree did not deprive all "emigrés" of their status as German nationals. It only deprived Jewish emigrés of their citizenship. Further, as the later paragraphs of the decree show, the discriminatory withdrawal of their rights of citizenship was used as a peg upon which to hang a discriminatory confiscation of their property. A judge should, of course. be very slow to refuse to give effect to the legislation of a foreign state in any sphere in which, according to accepted principles of international law, the foreign state has jurisdiction. He may well have an inadequate understanding of the circumstances in which the legislation was passed and his refusal to recognise it may be embarrassing to the branch of the executive which is concerned to maintain friendly relations between this country and the foreign country in question. But I think - as Upjohn J. thought (see In re Claim by Helbert Wagg & Co. Ltd.[1956] Ch. 323 , 334) - that it is part of the public policy of this country that our courts should give effect to clearly established rules of international law. Of course on some points it may be by no means clear what the rule of international law is. Whether, for example, legislation of a particular type is contrary to international law because it is "confiscatory" is a question upon which there may well be wide differences of opinion between communist and capitalist countries. But what we are concerned with here is legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the state passing legislation can lay its hands and, in addition, deprives them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all."
"When a government, however wicked, has been holding and exercising full and exclusive power in a foreign country for a number of years, and has been recognised throughout by our government as the government of that country, and some legislative or executive act of that government, however unjust and discriminatory and unfair, has changed the status of an individual by depriving him of his nationality of that country, he does in my opinion effectively cease to be a national of that country and becomes a stateless person unless and until he has acquired some other nationality ...The problem of effecting any necessary rectification of the position created by the unjust decree of the wicked government is a problem for the successor government of the foreign country..."
"I do not agree that this is a correct view of the relevant international law and as present advised am of the opinion that Lord Cross's approach, consistent with that of Martin Wolff in his work on Private International Law, 2nd ed (1950), p 129, is to be preferred."
"It may be that English law will not give a single and unequivocal answer to the problems raised by the unjust and discriminatory legislation of a foreign country.."
"The comity of nations normally requires our courts to recognise the jurisdiction of a foreign state over all its own nationals and all assets situated within its own territories. Ordinarily, if our courts were to refuse to recognise legislation by a sovereign state relating to assets situated within its own territories or to the status of its own nationals on the ground that the legislation was utterly immoral and unjust, this could obviously embarrass the crown in its relations with a sovereign state whose independence it recognised and with whom it had and hoped to maintain normal friendly relations."
"I do not feel able to come to the conclusion that the legislation of a state recognised by my Sovereign as an independent sovereign state is so contrary to moral principle that the judges ought not to recognise it."
"The alleged immorality of the Soviet Republic's 1918 decree was different in kind from the Nazi decree of 1941. The latter was without parallel. But, even more importantly, England and Russia were not at war in 1918 whilst England was at war with Germany in 1941 - a war which, as Goulding J points out[1972] Ch. 585 , 595, was presented in its later stages as a crusade against the barbarities of the Nazi régime of which the 1941 decree is a typical example. I do not understand how, in these circumstances, it could be regarded as embarrassing to our government in its relationship with any other sovereign state or contrary to international comity or to any legal principles hitherto enunciated for our courts to decide that the 1941 decree was so great an offence against human rights that they would have nothing to do with it."
"and he continues by distinguishing cases of private rights (cf Luther v Sagor[1921] 3 KB 532 ). He then said, at pp 21-22: `If it were a private transaction...then the law upon which the rights of individuals may depend, might have been a matter of fact to be inquired into...But...if it be a matter of sovereign authority, we cannot try the fact whether it be right or wrong.'"
"It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are - to follow the Fifth Circuit Court of Appeals - no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man's land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were `unlawful' under international law."
"The Court must look at all the circumstances, and then consider whether the law is so far-reaching in its scope and effect as really to offend against public policy..."
"It is quite impossible for a Court in this country to set itself as a judge of the rights and wrongs of a controversy between two friendly countries [viz Cuba and Chile]. We cannot judge the motives or the justifications of governments of other countries in these matters and, if we try to do so, the consequences might seriously prejudice international relations (Reggazoni v K.C. Sethia (1944) Ltd,[1957] 2 Lloyd's Rep 289 ;[1958] AC 301 per Lord Reid at pp 299 and 326. Adopting the language of Lord Cross and Lord Salmon in the Cattermole case at p 278C and 283F, does the legislation constitute so grave an infringement of, or an offence against, human rights that the Courts of this country ought to refuse to recognise it as a law at all? The law was directed essentially against Chilean official and semi-official agencies. The seizure was intended in part as a means of achieving compensation for Cuban property damaged as a result of the coup, in which a government strongly hostile to Chile [sc Cuba] had come into power by military force, and whose existence Chile [sc Cuba], rightly or wrongly, clearly considered to be strongly inimical to its political and economic interests. We agree with the view of the learned Judge, which by inference must have been that of the arbitrators, that the legislation was not so repugnant to British ideas of international and personal morality as to require the English courts to ignore its existence."
"This pleading could be justified if English law abhorred the compulsory acquisition legislation of every other country, or if international law abhorred the compulsory acquisition legislation of all countries. But in fact compulsory acquisition is universally recognised and practised."
"There is undoubtedly a domestic and international rule which prevents one sovereign state from changing title to property so long as that property is situate in another state."
"These authorities illustrate the principle that an English court will recognise the compulsory acquisition law of a foreign state and will recognise the change of title to property which has come under the control of the foreign state and will recognise the consequences of that change of title."
"The views of Lord Cross of Chelsea in that case in relation to a Nazi law which offended human rights are of no assistance to the appellants in the present case which is a simple case of compulsory acquisition."
"The doctrine's continuing vitality depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs. It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice...Therefore, rather than laying down or reaffirming an inflexible and all-encompassing rule in this case, we decide only that the Judicial Branch will not examine the validity of a taking of property within its territory by a foreign sovereign government, extant and recognised by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law."
"We think that the examination of the foregoing cases indicates that this Court has recognized the primacy of the Executive in the conduct of foreign relations quite as emphatically as it has recognized the act of state doctrine...The act of state doctrine is grounded on judicial concern that application of customary principles of law to judge the acts of a foreign sovereign might frustrate the conduct of foreign relations by the political branches of the government... Our holding is in no sense an abdication of the judicial function to the Executive Branch. The judicial power of the United States extends to this case...The only reason for not deciding the case by use of otherwise applicable principles would be the fear that legal interpretation by the judiciary of the act of a foreign sovereign within its own territory might frustrate the conduct of this country's foreign relations. But the branch of the government responsible for the conduct of those relations has advised us that such a consequence need not be feared in this case. The judiciary is therefore free to decide the case without the limitations that would otherwise be imposed upon it by the judicially created act of state doctrine."
"The short of the matter is this: the Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. That doctrine has no application to the present case because the validity of no foreign sovereign act is at issue."
"English courts will not recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental public policy of English law." (Emphasis added).
"Apart from these two groups of cases, examples of the exclusion of foreign law on the ground of public policy are rare. It has been said that it is a principle of public policy that the courts should give effect to clearly established rules of international law. It is not however contrary to public policy to recognise a decree of a foreign state expropriating property within its territory merely because it is `confiscatory', ie does not provide for compensation. But it may be otherwise if the decree is penal or discriminatory in such a way as to offend against public policy, or otherwise offends against the principles of safeguarding human rights..."
"The general principle, however, is not an absolute one. In the first place, the foreign legislative act may be disregarded if it is not applicable under the normal principles of the conflict of laws. But although the English court may consider the expressed intention of the foreign legislation and the circumstances in which it was enacted, it will be slow to investigate the motives of the foreign legislator and to question its good faith. Secondly, the extent to which foreign legislation which would otherwise be regarded as valid and applicable may be disregarded on the ground that it is contrary to public international law is a controversial question..."
"But since, in this area, English courts are applying, or at least acting so far as possible in accordance with, international law, it is necessary to see what assistance can be gained. If the determination of the character of the relevant act has to be made by municipal courts, they should do so, so far as possible, in conformity with accepted international standards..."
"I do not doubt that conceptions of public policy should move with the times and that widely accepted treaties and statutes may point the direction in which such conceptions, as applied by the courts, ought to move."
"Courts may be under a constitutional compulsion to give effect to the law of their own sovereign legislature even if violative of international law - although they will not lightly impute to it the intention to violate international law and although in some countries courts have in fact the power to refuse to give effect to national legislation contrary to international law - but there is no compelling reason why they should assist in giving effect to violations of international law by a foreign legislature. In the absence of compulsory jurisdiction of international tribunals and having regard to the prohibition, under the Charter of the United Nations and elsewhere, of compulsive means of enforcement of international law by national action, municipal courts may on occasions provide the only means for securing respect for international law in this and other spheres. Principle does not countenance a rule which, by reference to international law, obliges courts to endow with legal effect legislative and other acts of foreign states which are in violation of international law..."
"We will respect your territorial sovereignty. But there can be no offence if we do not recognise your extra-territorial or exorbitant acts."
"The principle of non-justiciability reposes on the consideration that inter-state disputes involving sovereign (ie non-commercial) acts of states and their governments are not to be adjudicated upon by state courts but are rather for resolution on the inter-state plane. That is paradigmatically the case where invasions or annexations are involved. Notoriously, these are far from rare events even in modern times: the world has known and still must live with the phenomenon of many areas occupied by (even friendly) states in arguable or actual breach of international law. There is no rational basis for not applying the principle of `non-justiciability' in all such cases."
"constituted a clear and consistent refusal to afford any degree of recognition at any time to Iraq's attempt by armed invasion to absorb Kuwait, a refusal which accorded with the seriousness of that attempt under international law generally and under the United Charter in particular..."
"It was, accordingly, Iraq's obligation under Chapters V and VII of the Charter to comply with the decisions of the Security Council...In maintaining its invasion, in removing KAC's aircraft from Kuwait and in enacting Resolution 369 and in failing to rescind these actions, Iraq was in breach of its Charter obligations."
"It would run strangely contrary to this country's international obligations, under the Security Council resolutions, if its courts, as an emanation of this country's sovereignty independently of the executive and the legislature, adopted an approach contrary to that to which this country is committed under the Charter and as a result of the Security Council Resolutions"
"Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone."
"...we have conducted a re-examination of British policy and practice concerning the recognition of Governments. This has included a comparison with the practice of our partners and allies. On the basis of this review we have decided that we shall no longer accord recognition to Governments. The British Government recognises States in accordance with common international doctrine... We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to governments. Like them, we shall continue to decide the nature of our dealings with regimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so... In future cases where a new regime comes to power unconstitutionally our attitude on the question of whether it qualifies to be treated as a Government will be left to be inferred from the nature of the dealings, if any, which we may have with it, and in particular whether we are dealing with it on a normal Government to Government basis."
"...it is not the current practice of Her Majesty's Government to accord recognition to Governments. The British Government recognises states in accordance with common international practice, but so far as governments are concerned, the attitude of Her Majesty's Government is to be inferred from the nature of its dealings with the regime concerned...Her Majesty's Government does not recognise the `Republic of Ciskei' as an independent sovereign state, either de jure or de facto..."
"the basic public policy constraint that the courts cannot take cognizance of a foreign juridical person, if to do so would involve them in acting inconsistently with the foreign policy or diplomatic stance of this country."
"have not at any time...recognised Iraqi occupation or control over the territory of Kuwait."
"In a particular case or in different circumstances, Her Majesty's Government must remain free to take and to inform the court of a more categorical attitude regarding recognition, or non-recognition, of a foreign government. If so, circumstances may still arise where Her Majesty's Government's attitude to recognition of a suggested government is clear to a point where, if this court were to take a different attitude, the State would be speaking with two voices in the manner emphatically rejected in The Arantzazu Mendi."
"The imperative to avoid the State speaking with two voices is at its most powerful, when the United Kingdom Government, responsible for foreign affairs, draws to the court's attention the obligations by which this country was and is bound under international law...The strongest considerations thus combine to indicate that this court cannot accord to the Government of Iraq in Kuwait any de facto governmental status."
"(a) whether it is the constitutional government of the state; (b) the degree, nature and stability of administrative control, if any, that it of itself exercises over the territory of the state; (c) whether Her Majesty's Government has any dealings with it and if so the nature of those dealings; and (d) in marginal cases, the extent of international recognition that it has as the government of the state."
"to distinguish between regimes that have been the constitutional and established government of a state and a regime which is seeking to achieve that position either displacing a former government or to fill a vacuum. Since the question is now whether a government exists, there is no room for more than one government at a time nor for separate de jure and de facto governments in respect of the same state. But a loss of control by a constitutional government may not immediately deprive it of its status, whereas an insurgent regime will require to establish control before it can exist as a government."
"all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the government."
"Kuwait was governed and administered as an integral part of Iraq without frontier or controls save security checks to prevent looting; the laws of Iraq replaced those of the Emirate of Kuwait (although said to be very similar in many respects) and were administered by special Iraqi courts established by the Iraqi authorities; all public property of the Emirate, including KAC and its assets, was taken over by Iraq; the Iraqi dinar replaced the Kuwaiti dinar as legal tender; and Iraqi police took over the issue of driving licences and car registration documents, all Kuwaiti licence plates being replaced by new Iraqi plates."
"Where Her Majesty's Government has dealings with the foreign government on a normal government to government basis as the government of the relevant foreign state, it is unlikely in the extreme that the inference that the foreign government is the government of that state will be capable of being rebutted and questions of the interrelationship of the judicial and executive arms of government may be paramount: see The Arantzazu Mendi[1939] AC 256 , 264 and Gur Corp v Trust Bank of Africa Ltd[1987] QB 599 , 625. But now that the question has ceased to be one of recognition, the theoretical possibility of rebuttal must exist."
"The Emirate's financial assets (gold and currency deposits in Kuwaiti banks, etc); its industrial and commercial infrastructure (both public and private); its transport (eg ports, Kuwait Airways Corporation), health, education, and communication systems, among others, were all stripped down and removed to Iraq, in one of the most striking instances of national piracy in modern history."
"In the result I hold that Resolution 369 was directed at the status and worldwide assets of KAC in excess of any jurisdiction which this court, applying ordinary principles of private international law, can or should recognise Iraq or its Government as having had at any time. Further, the purported transfer of KAC's assets, wherever they were, to IAC only occurred in the context of a purported exercise of an exorbitant jurisdiction to dissolve KAC. That is, in my view, of considerable relevance when considering whether the English courts should as a matter of public policy refuse to recognise the transfer as effective in relation to assets which happened to be within Iraq. The mere fact that Resolution 369 happened to embrace certain assets which happened (though only as a result of the invasion) to be in Iraq does not affect the fundamentally exorbitant character of the Resolution."
"For example, in Frankfurther v WL Exner Ltd a law was passed under the Hitler regime in Austria with the apparently innocent object of providing for receivers in certain cases, but with the real object of confiscating the property of Jews and others. Romer J expressed the view that this court is entitled to inquire what manner of legislation it really was, and for that purpose to see what was done under it. Again, if it had not been for the difficulties which arose on the pleadings in that case, I do not think that the House of Lords in Kahler's case would have hesitated to investigate the question whether an exchange control statute passed in 1934 with the genuine object of protecting the State's economy had not by 1946 become an instrument of oppression and discrimination."
"Having removed KAC's aircraft by force of arms and in breach of international law, Iraq cannot claim the protection of any principle of international law which might allow a state in some circumstances to expropriate property, even though belonging to the nationals of other states, which happened to be within its jurisdiction."
"a case where the foreign state has itself brought movables within its jurisdiction by infringing the jurisdiction of another sovereign state is on no view within the spirit, albeit within the letter, of the principle of Luther v Sagor and other authorities."
"...it seems to me that on this question nationality must be irrelevant. If the principle be true in respect of a State in relation to its own nationals, it must surely be conceded in relation to those persons who, though not subjects of the State, nevertheless bring their movables within its jurisdiction for business or private reasons or for the like reasons enter into contracts governed by the law of that State, and in general enjoy the same benefits and protection and are subject to the same disadvantages and disabilities as subjects of the State."
"We enclose a copy of the Republican Decree number 369 issued on 19 Safar 1411, corresponding to 9.9.90, requesting that all necessary action be taken to implement it. Thank you."
"It is generally laid down that any act which is an interference with the dominion and right of property of the Plaintiff is a conversion, but this requires some qualification. From the nature of the action, as explained by Lord Mansfield [in Cooper v Chitty 1 Burr 20], it follows that it must be an interference with the property which would not, as against the true owner, be justified, or at least excused, in one who came lawfully into the possession of the goods. And in considering whether the act is excused against the true owner it often becomes important to know whether the person, doing what is charged as a conversion, had notice of the Plaintiff's title."
"All, I think, agree that the assumption and exercise of dominion over a chattel, inconsistent with the title of the true owner, is a conversion. All would agree that the detaining goods so as to deprive the person entitled to the possession of them of his dominion over them is a conversion, if by the word 'dominion' in the last proposition is intended `title as owner'."
"I believe that [the action of trover] was invented in order to provide a remedy in damages, where there has been a trespass, and more than trespass to goods, namely, acts done with the intention of transferring or interfering with the title to or ownership of them, or which are done as acts of ownership of them or where without an original trespass there have been acts done with the intention of transferring or interfering with the title to or ownership of them or which have been done as acts of ownership of them."
"It appears to me plain that dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion, provided that it is also established that there is also an intention on the part of the defendant in so doing to deny the owner's right or to assert a right which is inconsistent with the owner's right. That intention is conclusively proved if the defendant has taken the goods as his own or used the goods as his own."
"... I think the evidence shows quite clearly that the appellant was exercising dominion over the goods inconsistent with the rights of the true owner. In the correspondence the appellant quite plainly and without any ambiguity said that he was the owner and proposed to use the hard core as he felt disposed. There could be no clearer way of asserting dominion over the goods than that."
"Atkin J goes on to point out that, where the act done is necessarily a denial of the owner's right or an assertion of a right inconsistent therewith, intention does not matter. Another way of reaching the same conclusion would be to say that conversion consists in an act intentionally done inconsistent with the owner's right, though the doer may not know of or intend to challenge the property or possession of the true owner."
"Nor, in my judgment, are the authorities above referred to inconsistent with the earlier authorities. In Baldwin v Cole (1704) 6 Mod Rep 212 Holt CJ said: `The very denial of goods to him that has a right to demand them is an actual conversion, and not only evidence of it, as has been holden; for what is conversion, but an assuming to one's self the property and right of disposing of another's goods ...' See too, the judgment of Lord Ellenborough in McCombie v Davies (1805) 7 East 5, 6, where the Chief Justice accepted the submission that apart from any question of possession the assumption of any dominion over the goods of another is sufficient to constitute conversion. Reference may also be made to Cleasby B in Fowler v Hollins (1872) LR 7 QB 616, 639, to the effect that the liability under an action in trover `is founded upon what has been regarded as a salutary rule for the protection of property, namely that persons deal with the property in chattels or exercise acts of ownership over them at their peril'. As it seems to me, the essence of the tort is the doing of some act or acts which are in fact inconsistent with the rights of the true owner, whether or not the doer of the act knew who the true owner was or whether or not any knowledge of the act or acts was communicated to the true owner."
"... one of the consequences of the historic origin of the tort of conversion and its application to negotiable instruments as `goods' is that the tort at common law is one of strict liability in which the moral concept of fault in the sense of either knowledge by the doer of an act that it is likely to cause injury, loss or damage to another, or lack of reasonable care to avoid causing injury, loss or damage to another, plays no part. At common law, one's duty to one's neighbour who is the owner, or entitled to possession, of any goods is to refrain from doing any voluntary act in relation to his goods which is a usurpation of his proprietary or possessory rights in them. Subject to some exceptions which are irrelevant for the purposes of the present case, it matters not that the doer of the act of usurpation did not know, and could not by the exercise of reasonable care have known, of his neighbour's interest in the goods. The duty is absolute; he acts at his peril."
"The wrong of conversion consists in any act of wilful interference with a chattel, done without lawful justification, whereby any person entitled thereto is deprived of the use and possession of it."
"...conversion is an act of deliberate dealing with a chattel in a manner inconsistent with another's right whereby that other is deprived of the use and possession of it."
"Every person is guilty of a conversion who, without lawful justification, detains a chattel adversely to him who is entitled to the possession of it."
"I would hold that as a matter of law it is no answer for a bank who have been guilty of negligence in the collection of a cheque to prove that, even had the question the omission to ask which constitutes such negligence been asked, a reassuring answer would have been given."
"A person having no authority over goods sends them to the defendant, an auctioneer, who, supposing the goods belong to that person, bona fide advances money upon them, taking a power of sale; but that did not authorise him to sell another person's goods, and retain the proceeds to reimburse himself. I think that he is liable to the extent of the money realised by the sale ..."
"Under ordinary circumstances the direction to the jury would simply be to ascertain the value of the goods at the time of the conversion, and in case the plaintiff could, by going into the market have purchased other goods of the like quality and description, the price at which that would have been done would be the true measure of damages...We are of opinion that the true rule is to ascertain the actual value of the goods at the time of the conversion."
"... the conversion consists in withholding from another property to the possession of which he is immediately entitled, and the circumstances which affix the value are then determined; no notice to the wrong-doer could then affect the value, ... In such a case as the present, the actual value is fixed by circumstances at the time of the demand, and no notice of the special circumstances could then affect the actual value of the goods withheld from their rightful owner, who thereby sustains an `actual present loss', which appears to us to be a convertible term with `actual value'."
"The result of your Lordships' consideration of this case will, I fear, inflict hardship upon the Defendants. They are innocent of any actual wrongdoing, but those with whom they are in conflict are as innocent as they, and we can only regard the liability attached to them by the law, without being affected in our judgment by its unpleasant consequences. They appear to me to have been guilty of a conversion in dealing with the Plaintiffs' property, and disposing of it to other persons, without any right or authority to do so. Confessedly, that property never passed from the Plaintiffs. Bayley's fraud vitiated the sale to him, and he could not convey to the Defendants what in no way belonged to himself. ... It seems to me that this state of facts entitles the Plaintiffs to recover in an action of trover, which rests on a right of property, wrongfully interfered with, at the peril of the person interfering with it, and whether the interference be for his own use or that of anybody else."
"An early but important example is Hiort v London & North Western Railway (1879) 4 Ex D 188, a decision of the Court of Appeal. The defendant warehousemen had delivered up grain to someone who acted as the agent of the claimant, but the agent was perpetrating a fraud on the claimant by obtaining delivery from the warehouseman without a proper delivery order. In this case there was a five day gap between the wrongful delivery of the grain to the fraudster and the presentation of a valid delivery order of the claimant which the claimant had endorsed in favour of the fraudster. Meanwhile the goods had disappeared. The claimant sued for the value of the grain but the Court of Appeal held that he was only entitled to nominal damages. Bramwell and Thesiger LJJ held that there was a conversion by the defendant warehousemen as soon as they delivered the grain to the fraudster and that completed the cause of action for conversion. They then went on to hold that the effect of the subsequent valid delivery order was equivalent to the grain being returned to the claimant. Therefore there had only been a temporary deprivation of the claimant's rights over the grain. All three Lords Justices held that the claimant had to show that the damage alleged resulted from the unauthorised act of the defendant. They all concluded that no substantial damage had been proved as against the defendant warehousemen because the goods would have been lost anyway, but on the valid order of the claimant."
"A return of the goods undoubtedly might be shown to reduce the damages in the case of a conversion, not only where the owner voluntarily received back the goods, but where he took them back against his will. In an action of trover or conversion the practice was for a defendant to apply to the Court for a stay of proceedings on the delivery up of the goods, and on payment of nominal damages and costs; but if the plaintiff refused to accept delivery, and insisted on proceeding with his action for substantial damages, he did so at his peril, and if he failed to get substantial damages he was made to pay the costs of the action. It is clear, therefore, that on the return of the goods the plaintiff would recover, not their value, but the damages he had sustained by the wrongful act, which was called the conversion."
"The mere statement of that proposition shews that it cannot be maintained; and I think that there is a complete answer to it. If it is said that the unauthorised act constituted a breach of the contract of bailment, or a breach of duty which flows from the bailment, then it follows that the bailors can only recover the damages which have resulted from the unauthorised act which constitutes that breach of contract or duty, and here it is obvious that no damages have resulted from the act of the defendants."
"That argument is not sound. No doubt the action of trover has been surrounded by technicalities, which may have in some instances worked injustice. I think, however, of late the tendency of the courts has been to treat this action with more common sense than it had been previously treated. Just as in other actions of tort it is held that a person to whom a wrong has been done can only recover the damages which flow from the wrong; so in an action of trover it is the tendency of the courts to apply the same rule."
"It appears to me, therefore, to follow from the ordinary rules which are applicable to actions of trover that the plaintiffs are entitled to recover damages only for the deprivation of their control over the goods from the time of the unauthorised delivery; but inasmuch as it is admitted that during that period the plaintiffs sustained no damage they can only recover nominal damages."
"...the broad proposition appears to me that by a wrongful act of the defendants the plaintiffs were deprived of their vessel. When I say deprived of their vessel, I will not use the phrase `the use of their vessel'. What right has a wrongdoer to consider what use you are going to make of your vessel? More than one case has been put to illustrate this: for example the owner of a horse, or of a chair. Supposing a person took away a chair out of my room and kept it for twelve months, could anybody say you had a right to diminish the damages by shewing that I did not usually sit in that chair, or that there was plenty of other chairs in the room? The proposition so nakedly stated appears to me to be absurd ..."
"The cases to which [their Lordships] have already referred establish, beyond any doubt, that a person who lets out goods on hire, or the landlord of residential property, can recover damages from a trespasser who has wrongfully used his property whether or not he can show that he would have let the property to anybody else, and whether or not he can show that he would have used the property himself."
"This principle is established and not controversial. More difficult is the alignment of this measure of damages within the basic compensatory measure. Recently there has been a move towards applying the label of restitution to awards of this character: see, for instance, Ministry of Defence v Ashman[1993] 2 EGLR 102 , 105 and Ministry of Defence v Thompson[1993] 2 EGLR 107 . However that may be, these awards cannot be regarded as conforming to the strictly compensatory measure of damages for the injured person's loss unless loss is given a strained and artificial meaning. The reality is that the injured person's rights were invaded but, in financial terms, he suffered no loss. Nevertheless the common law has found a means to award him a sensibly calculated amount of money. Such awards are probably best regarded as an exception to the general rule."
"Therefore I think the defendant has committed a conversion, and I am of the opinion that the true measure of damages, whether it be considered as a claim by the bailor, the true owner, or whether it be considered as a claim by the bailee, the railway company, is the true value of the goods, which is always the prima facie measure of damages for a claim in conversion."
"Their disposal of the deposited shares amounted to nothing short of conversion, and the client on each occasion on which the shares were sold had vested in him a right to damages for conversion which would be measured by the value of the shares at the date of the conversion. How then, is his position affected by the fact that, not knowing of the conversion, he received from the wrongdoer, and has retained, the very goods converted or their equivalent? It appears to their Lordships that the only effect is that he must give credit for the value of what he has received at the time he received it, and that the damages are reduced by that amount."
"Two persons may cause an accident by separate acts of negligence and judgment for the whole damages may be given against each. So, too, damages to the full value of the property converted may be given against two persons for successive conversions of the same chattel and, until payment in full of the sum awarded is made by one of the defendants, the judgment remains in force against the other. In neither case, however, would the plaintiff be permitted to recover more than the sum awarded for the injuries received or the value of the chattel as the case might be, because the law will not permit any greater sum to be recovered than the actual damage suffered."
"... there is no dispute as to the principle on which in general the measure of damages of conversion is calculated. It is the value of the thing converted at the date of the conversion, and this principle was accepted by both sides in the present case. But I should wish to leave open for consideration in a case in which it directly arises the question whether the statement of Abbott CJ in Greening v Wilkinson (1825) 1 C & P 625, 626 that the jury `may give the value at the time of the conversion or at any subsequent time' can be supported or not. The appellants sought to put a qualification upon the words `the value of the thing converted' by adding the words `to the owner'. Such a qualification is, I think, inaccurate and likely to lead to confusion of thought. I do not accept the view that an article has no value or a diminished value to its owner because he has no machinery for selling it. Has a book a diminished and different value to me who have just purchased it from what it had a moment before in the hands of the bookseller, even though the bookseller will not take it back and I have no market for its sale? The value is not necessarily the price for which the owner could sell the article. Is a publisher who infringes an author's copyright to make a large profit out of an unexpectedly successful book because he could have bought the copyright cheaply if before the publication he had approached the author and paid his price? Even the loss of the use for a time of a chattel which the owner would not have used during that time may give rise to substantial damage whether in an action for damages or in an action for conversion: see The Mediana[1900] AC 113 . It is the value known or unknown which has to be paid, and that value is not necessarily the price which the owner could have obtained or would have taken. It may have to be ascertained by finding out what price for the infringing matter, in the form in which it is offered, the public or some other individual is prepared to pay, or in some other way in the light of after events."
"It is true enough to say that the value is the value to the owner; but it is wrong to say this if you mean what the owner will make out of the thing in money if it is not taken away from him. This latter idea was repelled by this House in a serious of cases dealing with such trespasses to goods as deprived the owner of them temporarily. They were cases where the owner either did not use the things at all or not for money gain, for example, spare lightships and dredgers. The Mediana is an instance."
"So with permanent deprivation or wrongful appropriation of a chattel one of a variety of tests may be the best available test of value according to circumstances. In Reid v Fairbanks (1853) 13 CB 692 there was a very good one available - because the true owner had contracted to sell a ship under construction when finished for x pounds. Held, or rather agreed (because the actual decision was on another point) that the damage was x-y, y representing the cost of finishing the construction. Here, unfortunately, the available material is very different and not so easy to deal with. The sheets in question only became the respondents' property after the appellants had brought them into existence by reproducing the respondents' letterpress and illustrations in a form useful not for the respondents' publication but for their own. I conceive the proper test here is what ought the appellants to have paid for that matter in the form it was when converted. I say `ought to have paid' because of certain cases I propose to refer to, but I do not think that the test of what they would have paid would yield a different result."
"It seems to me that in assessing damages for detinue or for conversion (and, for myself, I do not see where the distinction is to be drawn between those two causes of action for this purpose) the damages are not necessarily and in all cases the value of the goods at the date of judgment. If the action is brought in detinue, the conversion may be inferred from the demand and the refusal to deliver. Not only is that evidence of a conversion, but if a demand by the owner of the goods on the person who holds them for delivery to him of them is not complied with, the non-compliance presumes a conversion ... On the other hand, the conversion in a case where the goods have been sold takes place at an earlier date; namely, when they were sold, so that the conversion took place in this case in July 1944. The demand for the return of the goods was not made until January 1946, when the refusal or failure to deliver took place. So the material date for the action in detinue no doubt is the date of the refusal, which was in January 1946 ... The value of the goods converted, at the time of their conversion, is one thing, we have the figure of£13 odd; but it does not follow that that sum is the measure of the plaintiff's loss. The question is what is the plaintiff's loss, what damage he has suffered, by the wrongful act of the defendant. If that is kept firmly in mind, I think, this case may well become fairly clear when the county court judge has found, one way or the other, whether the plaintiff received the letters - whether he knew or ought to have known in July 1944, that if he did not remove the goods the first defendants intended to sell them. If he did have that knowledge, then, it seems to me, this great rise in value which has taken place since is not damage which he can recover as flowing from the wrongful act. If he neither knew nor ought to have known that his goods would be sold, and did not find out that they had been sold until January 1946, then, it seems to me, however unfortunate it may be for the defendants, it is impossible to say that he is not entitled to recover the value of the goods at that time."
"... it seems to me that if he knew, or ought to have known, of this conversion in or about July 1944, the damage which he now says that he has suffered owing to the rise in price is damage for which the defendants are not liable because it has not flowed from their act: it has flowed from his act. What flowed from their act was that the furniture was sold and realised£15 . That has been tendered to him or paid into court. He could have had it at the time if he had known. If a man does not know that his property is being sold, so that he cannot intervene and stop the sale he may, when he does find out, be able to maintain that his property has been disposed of without any authority from or notice to him, and claim damages on the basis of its increase in value. That in my opinion, is how the measure of damage works out."
"Where a chattel of the kind that is hired out by the owner in the course of his business is wrongfully detained for a period by the defendant for purposes of his own, are the damages that the defendant must pay to be measured by the reasonable market rate of hire for that period, or are they a lesser sum, equal to the reasonable hiring charges for such proportion only of the period during which the plaintiff might probably have been able to hire out the chattel, if returned to him?"
"If this had been a case where the plaintiffs had been deprived of the use of their switchboards because they had been damaged by the negligence of the defendants the principles applied by the judge would, I think, have been right. It is, however, submitted that in a claim in detinue, and one in which the defendants have used a profit-earning chattel, they must pay by way of damages a fair sum for that user. They cannot, as wrongdoers, have the use of the chattels for less than a fair price for their hire. Otherwise they would be benefiting by their own wrong."
"There may be a distinction in the measure of damage in detinue between, say, a warehouseman who merely stores and a person who during the period of detention enjoys the beneficial use of the chattels. It is the latter case with which, in my opinion, we are concerned."
"Why is not the plaintiff's loss the value in the market of the user? The wrong is not the mere deprivation, as in negligence and possibly some detinue cases, but the user ... The damages could not, in my view, be increased by showing that a defendant had made by his use of the chattels much more than the market rate of hire. Equally, they cannot be diminished by showing that he had made less."
"If a wrongdoer has made use of goods for his own purposes then he must pay a reasonable hire for them, even though the owner has in fact suffered no loss. It may be that the owner would not have used the goods himself, or that he had a substitute readily available, which he used without extra cost to himself. Nevertheless the owner is entitled to a reasonable hire. If the wrongdoer had asked the owner for permission to use the goods, the owner would be entitled to ask for a reasonable remuneration as the price of his permission. The wrongdoer cannot be better off because he did not ask permission. He cannot be better off by doing wrong than he would be by doing right. He must therefore pay a reasonable hire."
"I am here concerned with the cases where the owner has in fact suffered no loss, or less loss than is represented by a hiring charge. In such cases if the wrongdoer has in fact used the goods he must pay a reasonable hire for them. Nor do I mean to suggest that a wrongdoer who has merely detained the goods and not used them would have to pay a hiring charge. The damages for detention recoverable against a carrier or a warehouseman have never been measured by a hiring charge. They are measured by the loss actually sustained by the plaintiff."
"The fundamental aim in awarding damages is in general to compensate the party aggrieved. The inquiry is: what loss has the plaintiff suffered by reason of the defendants' wrongful act? In determining the answer to this inquiry the question of quantifying the profit or benefit which the defendant has derived from his wrongful act does not arise; for there is no necessary relation between the plaintiffs' loss and the defendants' gain. It follows that in assessing the plaintiffs' loss in the present case one is not troubled by any need to evaluate the actual benefit which resulted to the defendants by having the plaintiffs' equipment at their disposal. That element then being out of the way, the only substantial reason put forward by the defendants why the plaintiffs should not receive the full hiring value of the equipment during the period of detention is that the plaintiffs might not have been able to find a hirer. In my judgment, however, a defendant who has wrongfully detained and profited from the property of someone else cannot avail himself of a hypothesis such as this."
"There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of conversion; the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery up of the goods or judgment in the action for detinue ... The action in conversion is a purely personal action and results in a judgment for pecuniary damages only. The judgment is for a single sum of which the measure is generally the value of the chattel at the date of the conversion together with any consequential damage flowing from the conversion and not too remote to be recoverable in law. With great respect to the dictum of Goddard LJ in Sachs v Miklos[1948] 2 KB 23 , 38 this is not necessarily the same as the measure of damages for detinue where the same act constitutes detinue as well as conversion, although in many cases this will be so ... On the other hand the action in detinue partakes of the nature of an action in rem in which the plaintiff seeks specific restitution of his chattel. At common law it resulted in a judgment for delivery up of the chattel or payment of its value as assessed, and for payment of damages for its detention. ... In addition to an order for specific restitution of the chattel or for payment of its value as assessed, the plaintiff was always entitled to damages for wrongful detention of the chattel."
"Under the existing law, the general rule as to the measure of damages both in conversion and detinue is that the plaintiff is entitled to recover the value of the chattel together with any consequential damage which is not too remote. ... In conversion the value of the chattel is assessable as at the date of the conversion whereas in detinue it is assessable as at the date of the judgment, the reason for this distinction being the proprietary character of the latter action. But the decided cases do not suggest that the overall effects of rises or falls in market value are any different in the two actions; for in a proper case the plaintiff can recover as consequential damages in conversion the amount of a rise in value, and the plaintiff in detinue can similarly recover the amount of a fall in value, between the act of conversion or detinue and the date of the judgment, such recovery, however, being subject to the principles of mitigation and standing-by and also to evidence bearing on what the plaintiff would be likely to have done with the chattel if it had remained in his possession."
"If the goods are retained by the wrongdoer up to judgment, the hiring charge runs up to that time, and in addition the owner will get the return of the goods or their value at the time of judgment (Rosenthal v Alderton & Sons Ltd[1946] KB 374 ); but if the goods have been disposed of by the wrongdoer the hiring charge will cease at the time of such disposal, but the owner will get in addition damages for the loss he has sustained by the conversion, which is usually the value at the time of conversion."
"The action in that case was in detinue and not in conversion, but there will in almost all cases of detinue have been an original act of conversion also and what was in effect held in that case was that, in the case of a conversion of a profit earning chattel which a defendant has used for his own benefit, the owner can recover by way of damages a hire charge plus either the return of the chattel or, if there has been a subsequent conversion by disposal, the value of the chattel at the date of such conversion. Thirdly, although damages for conversion normally consist in the value of the goods as at the date of the conversion, consequential damages are always recoverable if not too remote. Finally, there is no basis upon which damages could be assessed as being the value as at the date of original conversion plus interest, for the car has in the end been returned. What the plaintiffs have lost is the use of the car over the whole period from original conversion until ultimate return. Until March 11, 1982, both the defendants are without doubt liable for the hire charge. On that date Mr Edwards may have put it out of his power to return the car, but he cannot by so doing have terminated his liability. He must either be liable for the hire charge to date of return or he must be liable, in addition to the hire charge up to March 11, for the value of the car at that date on the basis that he then disposed of it. He cannot be heard to say that by putting it out of his power to return the car he terminates his liability. It was not submitted, as it would have been open to Mr Edwards to do, that the value of the car at March 11, was less than the agreed hire charge between that date and date of return, nor was it submitted by the plaintiffs that they were entitled to recover more than the hire charge. Accordingly, there will be judgment against Mr Edwards for the hire charge over the whole period."
"The issue of whether the claimant could establish that it had suffered substantial damages as a result of the conversion also arose in Brandeis Goldschmidt & Co Ltd v Western Transport Ltd[1981] 1 QB 864 , another decision of the Court of Appeal. The defendant transporters had detained a portion of a consignment of scrap copper that they were employed to carry from Avonmouth to Walsall, where it was to be refined and made into cathodes. When the defendants would not deliver up the copper upon demand the claimants issued a writ claiming delivery up and obtained an order from the Master. After the copper had been delivered the claimants pursued their claim for damages. The claim was based on a fall in the price of copper during the period of detention and the additional interest that the claimants had to pay to their bankers during the period of detention, because they had borrowed money to finance the purchase. The judge had awarded those damages to the claimants. His decision was reversed by the Court of Appeal. Brandon LJ gave the only substantial judgment. The claimants had argued that they were entitled `as of right' to the damages claimed. Brandon LJ held that, as a matter of principle, there was no universal rule applicable for assessing damages for wrongful detention of goods. He also held, as a matter of principle that: It is for the plaintiffs to prove what loss, if any, they have suffered by reason of a tort, and when, as here, the effect of the tort is potentially adverse interference with the course of their business operations, it is for them to establish by evidence that there was in fact such adverse interference, and that they suffered a properly quantifiable loss by reason of it. It is clear that Brandon LJ envisaged that there must be a causative link between the conversion and the loss alleged. He went on to consider various cases and concluded that they supported his view based on principle. He held that the claimants had not proved either head of damage, so that they were only entitled to nominal damages of£5 ."
"Looking at the matter from the point of view of principle first, I cannot see why there should be any universally applicable rule for assessing damages for wrongful detention of goods, whether it be the rule contended for by the plaintiffs or any other rule. Damages in tort are awarded by way of monetary compensation for loss or losses which a plaintiff has actually sustained, and the measure of damages awarded on this basis may vary infinitely according to the individual circumstances of any particular case."
"You do not give damages in an action for detention in poenam; it is not a personal correction inflicted by the court, but simply compensation for the loss. Now, Sir Horace Davey was inclined, I thought at one time, to argue the question as if there was some legal crystallised rule as to damages for the detention of stock of this sort - that the law created a kind of definition which we must adhere to, whether there was a loss or not. I cannot think that the law would really lay down anything so ridiculous as that a man should be compensated whether he suffered damages or not."
"[Counsel for the defendant] pointed out that damages for conversion may exceed the value of the property at the date of conversion if, for example, the property increases in value between the date of the conversion and the date when the plaintiff discovers the conversion: see Sachs v Miklos[1948] 2 KB 23 . And where in conversion or in detinue, the plaintiff has only suffered temporary deprivation of his property, the appropriate measure of damages may be assessed by reference to the value at the date when the plaintiff demanded the return of the property (Williams v Archer (1847) 5 CB 318) or the date when the plaintiff was prevented from reselling the property (Barrow v Arnaud(1846) 8 QB 595 ) .... Both the Brandeis case and the Peel River case were concerned with damages caused by temporary deprivation of possession and use of property. A different consideration will apply when the property is irreversibly converted and the plaintiff loses that property. The plaintiff loses the value of the property at the date of the conversion and the general rule is that the measure of damages is the value thus lost. To depart from that rule in the present case would be inconsistent with Solloway."
"Damages in tort are awarded by way of monetary compensation for loss or losses which a plaintiff has actually sustained, and the measure of damages awarded on this basis may vary infinitely according to the individual circumstances of the particular case."
"An examination of the provisions of the 1977 Act in the light of the existing rules of the common law indicates that when making an award of damages under Section 3 of the 1977 Act the court is faced with a number of competing considerations. These considerations include: (a) the fact that the tort of detinue has been abolished; (b) the fact that the remedies now available for the tort of conversion (hitherto a purely personal action) have in effect extended the scope of the tort so that a proprietary claim can be asserted; (c) the general rule that where goods have been irreversibly converted their value is assessed at the date of conversion. It may be noted, however, that even where goods are articles of ordinary commerce the damages may be assessed by reference to the cost of replacement goods if the cost has increased between the date of conversion and the date when the plaintiff, acting reasonably, ought to have obtained the replacement: cf Empresa Exportadora de Azucar v Industria Azucarera Nacional SA, The Playa Larga and Marble Islands[1983] 2 Lloyd's Rep 171 ; (d) the former general rule that in detinue the value of the goods detained was assessed at the date of judgment; (e) the fact that after conversion the value of goods may fall instead of rise. I have come to the conclusion that if one takes account of all these considerations and the fact that several different remedies are available under Section 3 of the 1977 Act it is not possible, or indeed appropriate, to attempt to lay down any rule which is intended to be of universal application as to the date by reference to which the value of goods is to be assessed. The method of valuation and the date of valuation will depend on the circumstances."
"(1) to decide whether if the cars had not been converted IBL would have kept and used the cars or have disposed of them elsewhere; (2) to decide whether if the cars would have been kept and used IBL could and should have obtained replacement cars and, if so, when; (3) if (a) the cars would have been kept and used and (b) it is decided either that IBL were under no obligation to obtain replacements or that they would have been unable to do so, the court will assess the damages in the light of those findings. It seems to me that the damages on this basis are likely to be assessed by reference to the value of the cars at the date of judgment,3 November 1989 . Such an assessment would take account of the value of the option which the judge's order gave to Mr Coussens; (4) if the court decides that the cars would not have been kept and used or replacements could and should have been obtained it seems clear that an earlier date should be used for the calculation of the damages; (5) to calculate any damages suffered by reason of the loss of the use of the cars between the date of conversion and the date ascertained in accordance with (3) and (4)."
"In my view the same approach is applicable in the converse case, where property is wrongfully detained and is still held by the defendant and the price has risen meanwhile. If the court declines to make an order in the form of Section 3(2)(a), the sum to be stated in the Section 3(2)(b) form of order as the amount of damages payable as the alternative to handing over the goods will frequently be the current value of the goods. After all, the goods are the property of the plaintiff. But this will not necessarily be the measure of his loss. For example, if the plaintiff would have sold the goods had they been delivered to him when they should have been, his basic measure of loss will be the market price at that date plus interest. To award him damages by reference to the later value of the property would be to award him a windfall. In such a case, despite the proprietary nature of the plaintiff's claim, the amount of damages fixed as the alternative to handing over the goods will have to be tailored suitably."
"Once it is kept in mind that there is no absolute rule regarding the date as to which the goods are to be valued, the difficulties in the interpretation and application of Section 3 substantially disappear. The sum to be specified in the present case as payable by the defendant as the alternative to returning the two cars is to be calculated by reference to the value of the cars at such date as will fairly compensate the plaintiff for its loss if the defendant chooses to pay the sum and keep the cars. This conclusion involves interpreting the reference in Section 3 to `damages by reference to the value of the goods' as not compelling the court always to assess such damages by reference to the up-to-date value of the goods. In other words, for it comes to much the same, the statute leaves at large the date as at which the value of the goods is to be determined. In my view that is the proper construction of this section. Nowhere does the Act expressly state a date as at which the value of the goods is to be assessed. To construct the references to the value of goods as being by implication references only to the up-to-date value would fly in the face of the need for damages to be assessed in a sum which represents the true loss suffered by the plaintiff by reason of the defendant's act. Further, there is some indication in the statute that the draftsman envisaged that an assessment of damages by reference to the value of the goods in form (b) was a flexible formula: see Section 3(6)."
"In Solloway the shares were not irreversibly lost, because they were replaced by identical shares in the same company. Certainly, the shares originally converted were not themselves returned - what was returned was virtually the same being shares in the same company. It is difficult to see why the return of identical replacement shares should be treated differently from the return of the share themselves."
"Greer LJ concluded that the principles governing the recovery of damages in conversion were the same as for tort claims generally. Those principles were the same as those for contract `with the exception that in cases of tort the court has only got to consider the first rule in Hadley v Baxendale'. He concluded that in a contract claim the sub-sale price would be disregarded unless known to the shipowner. He held that the same rule applied to a conversion claim. Maugham LJ said that in a tort claim the defendant was only liable for the damages that were the natural and direct result of the wrongful act. Losses on sub-sales which were unknown to the tortfeasor were not the natural and direct result of the wrongful act. The basis of Scrutton LJ's dissenting conclusion was, I think, that in cases where there was a carriage from a wheat producing port, it was always probable that the shipper was sending the goods for resale. Therefore, in the absence of a market for the particular goods, the claimant could recover the value of the lost sub-sale, without having to prove that the particular facts of the sub-sale were known to the ship owner."
"In the Saleslease case the issue was whether the claimant could recover the value of a contract, that was particularly profitable, which he lost as a result of the wrongful interference (by detention) with MOT testing equipment belonging to the claimant. The majority of the Court of Appeal (Butler-Sloss and Waller LJJ) held that he could not; Schiemann LJ dissented, holding he could. Waller LJ gave the leading judgment. He considered The Arpad, re Polemis and The Wagon Mound No 1) and the current edition of McGregor on Damages. He concluded that the test was `whether the defendant could reasonably have anticipated that the loss on the [special] contract would be fully mitigated by a further lease if the equipment was returned when demanded but could not be mitigated other than by a sale if there was delay in return'. ... Butler-Sloss LJ said: `In my view a consequential loss which is special to the circumstances of the particular plaintiff and which is not known to the tortfeasor may be regarded as too remote: see: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) AC 388'. Schiemann LJ accepted that the general test was: what did the defendant know about the potential loss if he continued with his wrongful interference. But he held that in this case the defendant knew enough to make him liable for the losses suffered as a result of his wrongful interference."
"I would have held that the US$20 million was not too remote to be recoverable. The steps to my conclusion are as follows. (i) It was foreseeable to IAC in November 1990 that it would have to obey government orders in relation to the KAC aircraft. (ii) It was foreseeable that if hostilities were imminent, then the government would have taken steps to safeguard these `valuable state assets'. (iii) As I have already held, the Iraqi government and IAC knew that they were taking a risk when the Iran Six were sent to Mashad. The risk was that Iran could prove awkward about returning the aircraft to whoever claimed them at the end of the hostilities. (iv) It was foreseeable that if the aircraft were left in Iran, then Iran might demand payment of a substantial sum from the true owners of the aircraft for keeping them safe there. So, if the general key to issues of remotenesss is "foreseeability" then, in my view, it was foreseeable to IAC that, as a result of incorporating the Iran Six into the IAC fleet a payment of some kind might have to be made to recover the Iran Six from the Iranian authorities. IAC suggested that the amount of US$20 million was neither justified in amount or in terms of any liability of KAC to Iran and so is `too remote'. There are two answers to this argument. First, as a matter of fact, the Iraqi government and IAC would have foreseen that Iran would not have been well disposed to Kuwait and any state company of Kuwait, given Kuwait's support of Iraq in the Iran-Iraq war. Secondly, on well established principles the precise amount of the claim is legally irrelevant."
"These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing."
"The fleet plan address[es] itself to replacing the aircraft lost due to the Iraqi invasion also to the replacement of the ageing B727/B747 technology with better technology, more efficient and longer range aircraft. The purpose is also to take advantage of being able to sell the old fleet at good reasonable prices while they still have market value; to place early orders on new aircraft in order to avoid price escalations and also to reduce lease period of aircraft in case the lost fleet is not retrieved."
"A. My own view is had I lost these 10 aeroplanes which were by then, that time, standard obsolete in terms of performance, and the new aircraft were so much better, it would have given me a marvellous opportunity to get something better. Whether I would have done what KAC did or not is another matter... Q...Do I understand from the measured hesitancy of your response that you do not consider the course that KAC did, in fact, take to have been an unreasonable one? A. From KAC's point of view (and I have said this in my evidence) I believe it is up to KAC to take their own commercial views. They took a commercial view and the argument which I am not here to settle is who pays for that decision? Q...You said it was a commercial decision. It was a reasonable commercial decision, others might have taken a different commercial decision, but it was a reasonable commercial decision? A. Yes."
"In my view the actions of KAC were reasonable. It was always assumed (reasonably) from March 1991 that the Iran Six would eventually be returned. It therefore made no sense to purchase `stop-gap' aircraft, as Mr Villa accepted in cross-examination. If KAC was going to purchase new aircraft, an option which was under active consideration from April 1991, it made reasonable sense to lease aircraft until a decision was made. And if the decision was to buy, then it made reasonable sense to continue to lease aircraft until the new purchases were delivered. Mr Villa accepted in cross-examination that the decision of KAC to purchase new aircraft was `a reasonable commercial decision'. He also accepted that it was a `common sense option' for KAC to obtain aircraft (on dry leases up to the time of purchase) of the type that were to be purchased. Given these answers from the expert called by IAC on matters of airline operations, I must conclude that the arrangements made by KAC to lease substitute capacity were generally reasonable in the circumstances..."
"Q...You ended up at the end of it, you were asked whether it was a reasonable decision and you said, yes, it was. Now, having regard to what factors do you view that as a reasonable decision? A. If I had made a decision to replace the aeroplanes, and decided that I never did want those A310-200s again, if that was my commercial decision, it would, was a reasonable decision to do what they did."
"But the appellants' actual loss in so far as it was due to their impecuniosity arose from that impecuniosity as a separate and concurrent cause, extraneous to and distinct in character from the tort; the impecuniosity was not traceable to the respondents' acts, and in my opinion was outside the legal purview of the consequences of these acts. The law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection, because `it were infinite for the law to judge the cause of causes', or consequences of consequences. Thus the loss of a ship by collision due to the other vessel's sole fault, may force the shipowner into bankruptcy and that again may involve his family in suffering, loss of education or opportunities in life, but no such loss could be recovered from the wrongdoer. In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons. In the present case if the appellants' financial embarrassment is to be regarded as a consequence of the respondents' tort, I think it is too remote, but I prefer to regard it as an independent cause, though its operative effect was conditioned by the loss of the dredger."
"I agree with the conclusion of the Court of Appeal that the Registrar and Langton J proceeded on the wrong basis and that the damages must be assessed as if the appellants had been able to go into the market and buy a dredger to replace the Liesbosch..."
"The question here under consideration is again different; the Liesbosch was not under charter nor intended to be chartered, but in fact was being employed by the owners in the normal course of their business as civil engineers, as an essential part of their plant they were using in performance of their contract at Patras. Just as in the other cases considered, so in this, what the Court has to ascertain is the real value to the owner as part of his working plant, ignoring remote considerations at the time of loss. If it had been possible without delay to replace a comparable dredger exactly as and where the Liesbosch was, at the market price, the appellants would have suffered no damage save the cost of doing so, that is in such an assumed case the market price, the position being analogous to that of the loss of goods for which there is a presently available market. But that is in this case a merely fanciful idea. Apart from any consideration of the appellants' lack of means, some substantial period was necessary to procure at Patras a substituted dredger; hence, I think, the appellants cannot be restored to their position before the accident unless they are compensated (if I may apply the words of Lord Herschell in The Greta Holme[1897] AC 596 , 605), `in respect of the delay and prejudice caused to them in carrying out the works entrusted to them'."
"On the whole I think that Mr Raeburn is right in urging that the matter should be referred back to the Registrar and Merchants to ascertain the true value on the principles I have stated. From these it follows that the value of the Liesbosch to the appellants, capitalized as at the date of the loss, must be assessed by taking into account: (1) the market price of a comparable dredger in substitution; (2) costs of adaptation, transport, insurance, etc, to Patras; (3) compensation for disturbance and loss in carrying out their contract over the period of delay between the loss of the Liesbosch and the time at which the substituted dredger could reasonably have been available at Patras, including in that loss such items as overhead charges, expenses of staff and equipment, and so forth thrown away, but neglecting any loss due to the appellants' financial position. On the capitalized sum so assessed, interest will run from the date of the loss."
"Current Market Price Current Market Price ("
"At the time prevailing, the market conditions were poor. There were few transactions completed of the type that would confirm the Current Market Price. This is due to the small population size of the A310-200 and A300B4-600 aircraft concentrated into a handful of operators. Due to little or no availability of the subject model variants the market could be described as static. The Experts opinion of Current Market Prices while not directly supported by recorded transactions, reflects that in a depressed market some aircraft actual transactions are effected at lower figures than that which an aircraft can be given a Fair Market Value."
"It seems to me that `CMP', as defined, does not reflect any enhancement in value for the fact that the aircraft that were destroyed could earn profits and, in the case of the Boeing 767s, were actually earning profits before Kuwait was invaded. (The two A300-600s, AHF and AHG had been leased to Egyptair but the leases had expired in, respectively, July and May 1990, when they had been returned to KAC. See Schedule 1 to the judgment.) It seems to me that `CMP' does [sc not] encompass sufficiently Lord Wright's notion of the `value...to the [claimants] at the time of the loss', which has to allow for the fact that the aircraft were being used for business. So if `CMP' were adopted as the basis for valuing the lost aircraft, I think that some account would have to be made for the fact that aircraft were, at least potentially, profit earning goods. `FMV' does allow for the fact that the aircraft could earn profits over their lifetimes. Therefore if the point had arisen for decision, I would have held that KAC was entitled to the FMV of the Mosul Four."
"But the objection taken is, that there is no natural or necessary connection between the wrong of the master in taking the barge out of its proper course, and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had proceeded in her direct course. But if this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plaintiff to recover, For if a ship is captured in the course of deviation, no one can be certain that she might not have been captured if in her proper course. And yet, in Parker v James (4 Campd 112 ), where the ship was captured whilst in the act of deviation, no such ground of defence was even suggested. Or, again, if the ship strikes against a rock, or perishes by storm in the one course, no one can predicate that she might not equally have struck upon another rock, or met with the same or another storm, if pursuing her right and ordinary voyage. ... But we think the real answer to the objection is, that no wrong-doer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss, if his wrongful act had never been done."
"It might admit of a different construction if he could shew, not only that the same loss might have happened, but that it must have happened if the act complained of had not been done; but there is no evidence to that extent in the present case."
"The only exception I see to this general rule is where the destruction of the goods must take place as inevitably at one place as the other. If a bailee elects to deal with the property entrusted to him in a way not authorised by the bailor, he takes upon himself the risks of doing so, except where the risk is independent of his acts and inherent in the property itself."
"Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest other measures less burdensome to him might have been taken."
"They leave for Basra. They are to take the Air Bus to Mosul ... Approval of air safety on 767 aircraft ... 310 from BSR to Mosul". The relevant entry in Mr Al Gailani's diary reads: "