Prudential Assurance Company v Woermann Linie AG
| Número do processo | Case No. 180 |
| Data | 05 Fevereiro 1941 |
| Órgão | State Court (Brazil) |
Neutrality — Effect on Competence of Courts in Actions between Nationals of Belligerents — The Law of Brazil.
The Facts.—The plaintiff, an English company, as assignee of a mortgage (both mortgage and assignment having been made outside of Brazil) secured on five ships of the defendants, two German navigation companies, brought an action for the principal amount due, and secured an attachment on the Windhuk, one of the vessels, which, after the outbreak of war, September 3,1939, sailed from Lobito, Portuguese West Africa, on November 16, 1939, and, disguised as a Japanese vessel and flying the Japanese flag, entered on December 7,1939, the port of Santos. The Brazilian Ministry of Justice informed the Court that a German law of January 15, 1940, prohibited any payment, directly or indirectly, to an enemy. The defendants objected to the jurisdiction of the Court as being neither the forum of the contract (of mortgage) nor of the domicil or residence of any of the parties. Apparently they also contended that, in the circumstances of the case, it would be contrary to Brazilian neutrality for the courts to assume jurisdiction. The Court of First Instance held that it had jurisdiction. The defendants appealed.1
Held: that the appeal must be dismissed. The competence of Brazilian courts results from the texts of the Introduction to the Civil Code, namely, Art. 152 and Art. 134,3 subdiv. 1 of the Code of Civil Procedure. There is no reference to domicil and residence in Brazil. War between the countries of the parties does not alter the competence decreed by the Brazilian law, notwithstanding any law ordering the observance of neutrality. For both the declaration of neutrality and the competence of our courts are effects of national sovereignty. The national law provides for and governs the case. Competence being a matter of a public order, it operates notwithstanding what has been decreed by a foreign law. The declaration of neutrality made by the Brazilian Government, without direct or indirect reference to the principles of a public order affecting the competence of national courts, cannot have the effect of modifying it; nor is it for the Judicial Power or any of its organs, under the pretext of not violating the neutrality of the country, to cut down its own competence.4
1 See Asiatic Petroleum Co. v. Captain of the Windhuk, Annual Digest, 1938–1940...
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