Court dismisses claim against State for war losses, ruling force majeure exempts government from civil liability.

[*444] 1984 Febr. 8

(HJITSANGARIS,P.D.C., ARTEMIS S.D.J.)

Costas Iosifides,

Plaintiff,

v.

The Attorney-General of the Republic,

Defendant.

(Action No. 4911/80).

Contract Law - Bailment - The

Contract Law, Cap. 149, sections 106 (1)

(b), 109 and 110 - Duties of bailee in

relation to the goods bailed - Plaintiff’s traxcavator lost during the second

phase of Turkish invasion in events of war, creating force majeure - Assuming

the existence of a bailment, the Republic as bailee, is not liable to pay damages to the bailor, i.e. the plaintiff.

Constitutional Law - Civil liability

of the State - Constitution, Art. 172 -

Plaintiff’s traxcavator, which, had been taken without a proper requisition

under law 21/62 by the National Guard for the defence

of the country was lost during the second phase of the Turkish invasion in the

aforesaid cirumstances - Civil liability of State governed by the Civil Wrongs

Law, Cap. 148 and all the principles of Common Law pursuant to the provisions

of s. 2 (1) of Cap. 148 and Section 29 (1) (c) of the Courts of Justice Law

14/60 - Plaintiff in order to succeed should prove that the Republic was guilty

of negligence - The State is not responsible to pay war compensation for

damages causedin warlike operations - Notwithstanding that at the time no state

of was declared as provided by Art. 183 of

the Constitution with the result that the rights as to private property had not

been suspended (Constitution, Art. 23),

the Court should recognise the effects of force majeure upon the rights of the

citizens of the Republic. [*445]

M. Michaelides for G.

Triantafyllides, for the Plaintiff.

M. Florentzos , Counsel of

the Republic for the Defendant.

JUDGMENT

The judgment of the Court was

delivered by:

HJITSANGARIS, P.D.C.: The Plaintiff

by virtue of this action claims against the Attorney-General, as representing

the Republic of Cyprus, the return of a traxcavator under Registration

No.HA.866, which was allegedly obtained by

fraudulent representation and was unlawfully converted by the Republic and, in

the alternative, damages for the loss of the traxcavator.

The facts of this case have been

agreed between the parties save the issue whether the said traxcavator was

delivered to the representatives of the Republic voluntarily or not on which we

intend to make our findings of fact in due course.

The agreed facts are as follows:-

At all material times, i.e. in

August, 1974, the Plaintiff was in possession of the said traxcavator under a

hire purchase agreement.

On 10.8.74 , a Saturday, the said

traxcavator was at Yerasa and was working for private ground, levelling and

cultivation with Stelios Charalambous as the driver, [*446] an employee of the Plaintiff. On the same day the Plaintiff

was in his garden land which is situated a quarter of a mile away from his

house at Ayios Athanassios. At around six o’ clock in the afternoon, four

members of the National Guard in uniform came together with the son-in-law of

the Plaintiff in a landrover. Two of the National Guardsmen were Officers, one

was the driver and the other was a reservist. At this point the following

allegation was put forward by the Plaintiff’s side regarding the following

conversation: They said to him, as if they had known him: “Mr. Costas , we have

information that you have two traxcavators and we have received a signal from

Nicosia to send 15 traxcavators to Nicosia from Limassol for various jobs, and

we want you to give us one of the two”. The Plaintiff said to them: “Nicosia

has quite a few traxcavators and they have required one from Limassol?” They

knew where the traxcavators were at the time and they told him: “We know where

the traxcavators are and we have a signal here, and if you do not deliver it,

we will take it”. He replied to. them: “If you want, wait

until Monday and we will see”. They said: “The war does not wait until Monday.

Either you give it to us or we will go and get it ourselves. From this moment

onwards the traxcavators is under requisition. Sign this paper and we prefer to

take the one at Yerasa which suits us best”. The Plaintiff said: “If you have

the power to take it without my permission, why did you come to bother me?”

They said: “Come, sign here that we have notified you and from here onwards it

is our job”. They gave the Plaintiff a piece of paper (φύλλον ατομικής προσαγωγής αυτοκινήτου) which the [*447] Plaintiff signed and kept in his possession, and

a copy of which was produced by consent before us as Exh.2.

The above conversation is not

admitted by the Defendant’s side and Mr. Florentzos produced a letter dated 22.9.78

written by the Plaintiff and addressed to the President of the House of

Representatives, which points to the opposite effect and which was put in and

marked Exh. 3.

The agreed set of facts continued as

follows:-

On Sunday, 11.8.74, Stelios

Charalambous, the driver of the traxcavator and an employee of the Plaintiff,

was working with the traxcavator at Yerasa. Some men in uniform, members of the

National Guard, came, produced Exh. 2 and the Plaintiff’s driver delivered the

traxcavator. They loaded the traxcavator onto a truck and Stelios Charalambous,

together with the traxcavator and the four men in uniform, went to Palodhia

village where the Commander of the National Guard

of a temporary camp there crdered Charalambous, as a reservist, to stay with and

drive the traxcavator of the Plaintiff. The traxcavator, loaded on the truck

was taken to 70ον Τάγμα Μηχανικού of the National Guard at Nicosia where it was

unloaded from the truck and where it remained together with its driver until

Monday afternoon, 12.8.74. That afternoon the traxcavator was loaded again onto

a vehicle and together with Stelios Charalambous was taken to Ayios Ermolaos of

Kyrenia district. The traxcavator was being used in the area of Ayios Ermolaos

for the digging of ditches and trenches for armoured vehicles, etc. The camp

was situated at Ayios Vassilios and at the end. of each day’s work [*448]

Charalambous was being taken by a landrover to the camp to spend the night

there The traxcavator was being left at Ayios Ermolaos during the night and

every morning Charalambous was being taken from the camp to Ayios Ermolaos in

order to continue with the work. This happened for the evenings of Monday,

12.8.74 and Tuesday, 13.8.74.

On Wednesday, 14.8.74 Charalambous

could not go to Ayios Ermolaos to resume work with the traxcavator, for the

second phase of the Turkish Invasion had started; in other words the last time

Charalambous saw the said traxcavator was on the evening of 13.8.74. On 14.8.74, because of the bombardment

and attacks of the Turkish troops and following an order, Charalambous was

compelled to leave the camp of Ayios Vassilios during the retreat, with danger

to his life. The maximum speed of the traxcavator was 2 miles per hour. Mr.

Charalambous claims that he suggested, to the Major in command for the

traxcavator to be removed during the night from Ayios Ermolaos but the Officer

in charge refused because, as he said, it was practically impossible.

On this issue Defence Counsel stated

that, although he did not admit this allegation, he had no evidence to

contradict same.

The agreed set of facts continued as

follows:-

The traxcavator was purchased by way

of a hire purchase agreement for the sum of £14,950 and there were some

additional expenses which brought the price up to £16,191.665 mils. The

Plaintiff in the meantime received [*449] as compensation from the .Republic £4,191.665 mils. In case the Plaintiff wins his case, damages have

been agreed at £12,000.

Eventually Exhs. 4-14 were produced by consent before the

Court.

In conclusion, it was agreed that the

Plaintiff at all material times during the second phase of the Turkish Invasion

was in Limassol and he had no property in the occupied area of Cyprus The first

time he applied to the Government in relation to the said traxcavator was on

24.8.74 by a letter of the same date which is Exh.4 On 3.4.75 the law office of Messrs. Houry and

Co. sent on behalf of the Plaintiff a notice of demand to the Ministry of

Communications and Works. A. photocopy of the letter and the notice of demand

are attached as exhibits. Thereafter a Reference was filed in the District

Court of Limassol in relation to the same subject, which was withdrawn by the

Plaintiff with full reservation of his rights on 11 .9.76 and thereafter these

proceedings were instituted.

Both advocates invited the Court to

take judicial notice of certain events of the relevant period connected with

the Turkish Invasion and the coup d’ etat.

Before proceeding, we feel it

pertinent to take judicial notice of the fact that on 15.7.74 a coup d’

etat took place against the lawful Government of the Republic of Cyprus headed

by Archbishop Makarios. On 20.7.74 Turkey

invaded with her armed Forces the Republic of Cyprus and warlike operations

ensued between the invading [*450] Turkish forces and the Cypriot National

Guard which was defending the integrity of the Cypriot Republic.

The Plaintiff delivered and/or was

forced to deliver his said traxcavator under Registration No. HA. 866 on

10.8.74 to the National Guard for the purpose of the defence of the Republic

after a request of members of the National Guard on the eve of the second phase

of the Turkish Invasion and during the advance of the Turkish troops already on

the Island. The Plaintiff was given a document which reads “Φύλλον Ατομικής Προσαγωγής Αυτοκινήτου δυνάμει των διατάξεων του Νόμου περί Επιτάξεως Αρ. 21 του 1962”,

which is Exh. 2 before us, by members of the National Guard in uniform. It was

admitted by learned Counsel for the Defendant that the said Exh. 2 does not

legally form an Order of requisition and cannot, have the legal consequences,

of a requisition. This is clear from the letter and the spirit of Article 4(l) (a) of Law 21/62. According

to the provisions of this Law, an Order of the Council of Ministers published

in the official Gazette is required for requisition. This is also evident from

the letter and spirit of Article 23 of the Constitution of the Republic which

regulates the requisitioning of property by law. We agree straight away with

learned Counsel for the Republic that the way the traxcavator was taken by the

members of the National Guard by means of Exh.2 does not form a legal order of

requisition.

The second submission of learned

Counsel for the Republic is that, in the light of the Plaintiff’s statement [*451] contained, in his letter to the

House of Representatives, which

is Exh. 3 before us, the said traxcavator was given by him voluntarily; as it

is stated in that letter as a good patriot he hurried to deliver his

traxcavator for the purpose of the defence of

his country during the Turkish Invasion and thus a bailment was created between

the Plaintiff and the Defendant.

We shall now proceed to examine the

legal effects of a bailment.

S.106(1)(b) of the Contract Law, Cap.

149 provides as follows:

“A ‘bailment’ is the delivery

of goods by one person to another for some purpose, upon a contract that they

shall, when the purpose is accomplished, be returned or otherwise disposed of

according to the directions of the person delivering them. The person delivering the goods is

called the ‘bailor’. The person to whom they are delivered is called the

‘bailee’.”

S.110 of the same Law provides as

follows:-

“The bailee, in the absence of

any special contract, is not responsible for the loss, destruction or

deterioration of the thing bailed, if he had taken the amount of care of it

described in the last preceding section”.

The care which the Defendant ought to

exercise as a bailee in this case in relation to any damage caused to or loss

of the property of the Plaintiff is defined by s. 109 of the same Law which

reads as follows: [*452]

“In all cases of bailment the

bailee is bound to take as much care of the goods bailed to him as a man of

ordinary prudence would, under similar circumstances, take of his

own goods of the same bulk, quality and value as the goods bailed.”

The duties of a bailee in relation to

the goods bailed have been the subject of consideration in the Judgment of the

Supreme Court in the case of Ioannis Kokkalos & Sons

Ltd. v. Nicos Karayiannis (1975.) C.L.R. p.377.

The case of Port S ettenham Authority v.

TW.Wu & Co. (1978) 3 W.L.R, p. 530 was also cited by

learned Counsel for the Republic.

It is common ground that the Republic

in the present case lost the Plaintiff’s traxcavator during the events of force

majeure, that is during the advance of the Turkish troops during the second

phase of the Turkish Invasion. There is also before the Court the letter of

T.E.E. to the Ministry of Communications and Works dated 2.12.74, which is Exh. 7, that the

traxcavator remained at Ayios Ermolaos of Kyrenia district during the retreat

of our armed forces. We are, therefore, of the opinion, that in case a bailment

was created between the Plaintiff and the Republic of Cyprus, the circumstances

of the bailment were such that the salvation of the Plaintiff’s vehicle was

impossible as it was lost by the bailee during the second phase of the Turkish

Invasion in events of war creating force

majeure. Therefore, in such an event the Republic would not be responsible to

pay damages. [*453]

We now turn to the alternative, that

is, whether legally the Republic would be made responsible for the loss of the Plaintiff’s vehicle under the

provisions of Article 172 of the Constitution in respect of the civil liability

of the State. Article 172 of the Constitution reads as follows:-

The Republic shall be liable

for any wrongful act or omission causing damage committed in the exercise-or

purported exercise of the duties of officers or authorities of the Republic.

A law shall regulate such

liability.

Furthermore, the social system which

prevails in the Republic of Cyprus preserves the rights of private ownership.

Paragraph 3 of Article 23 reads as follows:-

“Restrictions or limitations

which are absolutely necessary in the interest of the public safety or the

public health or the public morals or the

town and country planning or the development and utilization of any property to

the promotion of the public benefit or for the protection of the rights of

others may be imposed by law on the exercise of such rights. [*454]

Just compensation shall be

promptly paid for any such restrictions or limitations which materially

decrease the economic value of such property; such compensation to be

determined in case of “disagreement by a civil court.”

It is the allegation of the Republic

in paragraph 6 of the Statement of Defence that the traxcavator in issue was

delivered or was lost under circumstances of force majeure or as a result of

the events surrounding the Turkish Invasion and/or acts of a third person or

persons and/or under such circumstances that the Defendant has no liability.

It is further alleged that, from the

facts of this case, the delivery and use of the vehicle of the Plaintiff

constitute a warlike operation and the traxcavator was lost during or in

relation to a battle and was abandoned during the disorderly retreat of the

troops of the National Guard, and the Repablic cannot be liable for the payment

of damages. In order to hold the Defendant liable to any degree for the loss of

the traxcavator, it must be proved that the Defendant, or persons’ for whose

acts the Defendant can be held responsible, owed a duty of care and that the

Defendant was guilty of negligence. This is the requirement pursuant to Article

172 of the Constitution and the legal principles governing the question of

proving the negligence.

Matters regulating the State’s civil

liability are governed by the Civil Wrongs Law, Cap. 148 and all the [*455]

principles of the Common Law pursuant to S.2(1)

of the Civil Wrongs Law, Cap. 1 48 are applicable and also pursuant to Article

29(l) (Y) of the Courts of Justice Law 14/60. S.56 of the Civil Wrongs Law, Cap. 148, paragraph (a) reads as follows:

“In any action brought in respect of any

negligence it shall be a defence, notwithstanding that the defendant was

negligent –

(a) that some third person was

negligent and that such third person’s negligence was the decisive cause of the damage; or

In Victory & Others

of Nicosia v. The Attorney-General of the

Republic, a case which was decided

by the Full District Court of Nicosia by Mr. Justice

A.Loizou and A.Mavrommatis,

D.J. (as he then was), and which is published in the Cyprus Law Tribune, 3rd

Year, Issue 1 pp. 29-34, it was

held that omissions or acts of organs of the State, which were made under

anomalous conditions of force majeure, do not create liability on behalf of the

Republic. This case was in relation to the anomalous events of 1963/64.

In the House of Lord’s case of Burmah Oil Company Burmah Tradirig),Ltd. v. Lord Advocate (1964) 2 All E.R. p p. 348, it was held that there was no legal

right to compensation in respect of the destruction of oil installations,

[*456] which right justified the actions proceeding and existed for the

following reasons: (a) if, in the exercise by the Sovereign of the royal

prerogative in relation to war, the subject was deprived of property for the

benefit of the state, the subject was entitled to compensation at the public

expense, unless the case fell within an exception to this general rule, (b)

there was an exception to the general

rule stated at (a) above for battle damage (viz., damage done in battle or for

the necessities of battle), but this exception did not extend to destruction

which was a part of a deliberate long-term strategy (such as economic warfare)

and which was not also so requisite for the purposes of battle operations that

it would have been done in any event for those purposes.

In the above case some importance was

attached in argument to the case of Crown of Leon (Owners)

v. Admiralty Comrs (1921) 1 K.B., 595, where the owners contended

that their ship had been wrongly requisitioned and used. With reference to the

degree of emergency necessary to justify the use of the prerogative, Lord

Reading, C.J., said:-

“……..it is suggested that it is

only where “there is what was called ‘instant and urgent necessity’, that is to

say, a then existing urgent necessity that the prerogative can be invoked. That

does not mean that to justify the use of the prerogative you must be able to

show that at the precise moment there is such a state of things [*457] existing

that unless the prerogative is invoked the state will succumb. That is far too

limited a meaning. What, I think, it means is that there must be a national

emergency, an urgent necessity for taking extreme steps for the protection of

the Realm.

Darling, J.

had this to say at pp. 606,607 of the Crown of Leon case, concurring with Lord Reading:-

“The rule undoubtedly is that

the King, acting in regard to what is called prerogative regale et legale’, has

the right on behalf of his subjects to take their property for the defence of

the realm and to protect the interests of the subjects, compensation of course

being fairly made. Nowadays compensation is made by reason of exact provisions,

but it ought always to be made, because what is taken for the general goods

should be paid for by the general community.”

In the Judgment of the Full District Court of Nicosia in Action No.

3198/76, between Costas Andreou

of Kalo Chorio (Klirou) & Another v. The Attorney-General

of the Republic,

which was decided by Stylianides, P.D.C. (as he then was) and P.

Laoutas/D.J.(as he then was), Stylianides P.D.C. (as

he then was) cited the opinion of the Swiss Emeric De Vattel in his book Le

Droit des gens, 3rd Book, Cap. 15:-

"Εμάθαμε από τον Grotious ότι άλλοι συγγραφείς διχάζονται εις το ερώτημα τούτο.[*458] Αι υπό εξέταση ζημίες

διακρίνονται σε δύο είδη. Εκείνες που προξενούνται υπό του ιδίου του κράτους

και εκείνες πού προξενούνται από τον εχθρόν. Από εκείνες του πρώτου είδους

μερικές γίνονται σκόπιμα και για σκοπό προφύλαξης, όπως όταν ένα χωράφι, ένα

σπίτι, ένας κήπος που ανήκει σε ιδιώτη, καταλαμβάνεται για να κτιστή οχυρό της

πόλης, η οποιοδήποτε άλλο οχυρό, - ή όταν τα σπαρτά η οι αποθήκες

καταστρέφονται διά να εμποδιστή η χρήση τους από τον εχθρόν. Ο ιδιώτης στες

περιπτώσεις αυτές πρέπει να αποζημιώνεται και να υφίσταται μόνο την αναλογία

της ζημίας του ως πολίτης. Αλλά υπάρχουν άλλες ζημίες που προξενούνται από

αναπόφευκτη ανάγκη όπως π.χ. η καταστροφή από το πυροβολικό εις την ανακατάληψη μιας

πόλης από τον εχθρόν. Αυτές είναι απλές ατυχίες τις οποίες η τύχη ρίχνει εις τους ιδιώτες. Ο ανώτατος άρχων πράγματι οφείλει να δείξη equitable regard διά αυτόν που υφίσταται αυτές τις ζημιές εάν οι περιστάσεις του του

επιτρέπουν. Αλλά δεν χωρεί αγωγή εναντίον του κράτους διά κακοτυχίες αυτής της φύσης,- δι'

απώλειες τις οποίες

δεν επροξένησε εθελοντικά αλλά λόγω ανάγκης και από ατυχίες

εις την άσκηση των δικαιωμάτων του, το ίδιον και διά τις ζημίες που προξενεί ο

εχθρός. Όλοι οι πολίτες είναι εκτεθειμένοι σε τέτοιες ζημίες, και αλοίμονο σε

εκείνο που θα πέσουν. Τα μέλη της Πολιτείας μπορεί να ανταμώσουν κίνδυνον εις

την περιουσίαν τους αφού ανταμώνουν παρόμοιον κίνδυνο της ζωής τους.[*459]

In his said Judgment the learned

Judge states that the principle has been accepted that the State is not

responsible for war damages. War

damages include also accidental and intentional

damages during warlike operations. There is no difference if they were caused

by the Artillery or the Air Force of one or the

other.

In the case of Burmah Oil Co. v. Lord Advocate (supra) Lird Pearce said the

following at p. 394:-

“I think that the line drawn by

De Vattel marks substantially the area in which damage ceases to be payable. I would define the line as excluding

damage done in the battle or for the necessities

of the battle. If an evacuating army destroys as it goes, I would exclude from

compensation any damage which it does for the purposes of its survival……….”

In the same Judgment of Stylianides,

P.D.C. (as he then was), the learned Judge also quotes from Stasinopoulos’ book

on “Αστική Ευθύνη του Κράτους, 1950”, where on p. 226 It

is stated:-

"ιν. Ζημίαι εκ γεγονότων

πολεμικών.- Πράξεις ή παραλείψεις των στρατιωτικών υπηρεσιών, ενεργούμεναι

υπό συνθήκας πολέμου, ήτοι τα λεγόμενα πολεμικά γεγονότα περιέχουσιν ενάσκησιν

δημοσίας εξουσίας. Η ρύθμισις όμως της εκ τούτων προκυπτούσης ευθύνης δέον να

τύχη ιδιαιτέρας ερεύνης.[*460]

Καθ' όσον μεν πρόκειται περί ζημιών,

προξενηθεισών εκ της πολεμικής δράσεως οργάνων ξένων Πολιτειών, δεν προκύπτει

ευθύνη, ειμή εκ σχετικής διεθνούς συμβάσεως.

Καθ' όσον δε πρόκειται περί πολεμικών

ζημιών, προξενηθεισών υπό οργάνων της εναγομένης Πολιτείας, εάν επροξενήθησαν

αύται εκτός του εδάφους της, η Γαλλική νομολογία δέχεται το ανεύθυνον,

στηρίζουσα τούτο εις την εκδοχήν ότι η εν τη αλλοδαπή λαβούσα χώραν πράξις

συνδέεται προς διεθνείς σχέσεις και άρα φέρει χαρακτήρα κυβερνητικόν, εκ

κυβερνητικής, δε πράξεως, κατά την παλαιάν τάσιν της νομολογίας, δεν

αναγνωρίζεται ευθύνη της Πολιτείας προς αποζημίωσιν.

Εάν αι ζημίαι επροξενήθησαν εντός του

εδάφους της εναγομένης Πολιτείας, υπό οργάνων αυτής τελούντων εν πολεμική

δράσει ή ενεργούντων συνεπεία των πολεμικών συνθηκών, η Γαλλική νομολογία

απέκρουν την ευθύνην της Πολιτείας, είτε χαρακτηρίζουσα τα ζημιογόνα ταύτα

γεγονότα και πάλιν ως πράξεις κυβερνητικάς, είτε αρνουμένη την ευθύνην, ένεκα

του παρεμβληθέντος στοιχείου της ανωτέρας βίας."

Αφού αναφέρεται εις ειδική νομοθεσία και νομολογία συνεχίζει:-

"Μη συντρεχόντων των όρων πολέμου

τιθεμένων εις την νομοθεσίαν περί θεμάτων πολέμου και πολεμικών[*461] αποζημιώσεων, η Πολιτεία θεωρείται ανεύθυνος, ουχί διότι το

ζημιογόνον γεγονός έχει χαρακτήρα κυβερνητικόν, αλλά διότι το σύστημα του νόμου

ερμηνεύεται ως στηριχθέν εις την έννοιαν της εθνικής αλληλεγγύης και εντεύθεν

ως απονέμον αποζημίωσιν εκεί όπου θεωρεί την ζημίαν βαρύνουσαν υπέρ το προσήκον μέτρον τον ζημιωθέντα και συνεπώς ανορθωτέαν υπό του

συνόλου. Εκεί όπου δεν απένειμεν αποζημίωσιν, σημαίνει ότι εθεώρησεν ότι η

ζημία εβάρυνεν τον ζημιωθέντα κατά το προσήκον μέτρον, εν σχέσει με τας θυσίας

του συνόλου και συνεπώς δεν συντρέχει περίπτωσις αποζημιώσεως. Εις την Ιταλίαν

εκτός της ειδικής νομοθεσίας προς αποζημίωσιν διά ζημίας εκ πολεμικών

γεγονότων, προξενηθείσας υπό του εχθρού εις τα πρόσωπα ή εις α αγαθά της όποιας

βάσις είναι η αλληλεγγύη μεταξύ των πολιτών και η αρωγή προς τους

δυστυχήσαντας, η πολιτεία δεν υπέχει ευθύνη. Ή παρεχομένη αρωγή δεν είναι

αποζημίωσις αλλά παροχή κοινωνικής φύσεως. Εις την Ελλάδα απεφασίσθη ότι η

Πολιτεία δεν είχεν ευθύνην διά ζημίας προκληθείσας υπό στρατευμάτων υποχωρούντων

ατάκτως, διότι ο πανικός του στρατεύματος εχαρακτηρίσθη ως ανωτέρα βία. Εις

μερικάς Ελληνικάς αποφάσεις υπάρχει ή γενική αρχή διά ζημίας και καταστροφάς

προξενουμένας υπό του κράτους εν καιρώ πολέμου, προς αποτροπήν σπουδαίων

κινδύνων, δεν δίδεται αρωγή, διότι έκαστος φέρει την εντεύθεν ζημίαν, ωσεί εκ

τυχαίου προξενηθείσαν. "[*462]

We adopt the principle that the State

is not responsible to pay war compensation for damages caused in warlike

operations and, in the present case, the loss of the traxcavator is no doubt

due to the advance of the Turkish Forces.

Learned Counsel for the Plaintiff

stated that the Republic has to pay compensation for this case as no state of

emergency was declared by the Republic as provided by Article 123 of the Constitution and, therefore, the rights as to

private property had not been suspended. In England there is no such written

Constitution and, therefore the English Common Law cases have to be distinguished. In the

words of learned Counsel for the Plaintiff, “the very object of the existence

of Article 183 of the Constitution is in order to use

it in cases of war or other Public danger and there is no other machinery

through which the provisions of Article 23(8)

may be suspended.

Having carefully considered the

matter, we feel that, despite the failure of’ the

Government to declare a state of emergency, we cannot, disregard the situation

obtaining at the time and recognise the effects of force majeure upon the

rights of the citizens of the Republic. Nobody can deny the fact of the

existence of force majeure • at the time, and existence of such a condition, in our judgment, must

have the same effect as shown in the English authorities where there is no

Constitution despite the provision for procedure for suspending property and

other • rights by declaring state emergency

under our Constitution. [*463]

Having made the above findings of

fact and having decided the legal issues of this case, although it is

immaterial, in our opinion, whether the traxcavator was taken voluntarily or by

force, we feel it our duty to state that, having examined the agreed facts

before us and the written exhibits, we prefer the view expressed by learned

Counsel for the Defendant, that the said traxcavator was taken from the

Plaintiff by members of the National Guard without the Plaintiff’s consent,

that is, we are of the view that the

said traxcavator was not taken from him voluntarily.

In concluding, we wish to state that members of the National Guard, without the consent of

the Plaintiff, took his traxcavator for the use of the defence of the Republic

during war operations. This act was not illegal because the State in such

moments of danger is entitled to take the property of a citizen and use it for

the above purpose. The State has no responsibility to pay damages in case the

loss is due to force majeure or warlike operations. In the present case the loss of the traxcavator has the

characteristics of a loss during battle. In the result, the State has no

responsibility to pay damages.

Having reached our above conclusions,

we are of the opinion that this action must be dismissed. Taking however, into

consideration the special circumstances of [*464] this

case, we shall make no order as to costs.

The action is hereby dismissed. No

order as to costs.

Action dismissed with no order as to costs.