The company stated that, on 9 March, Morenas had agreed to reserve space on its ship, the SS Assaroe, for “52 horses at the rate of £50 each to be carried by the plaintiff’s vessel”.
The Spanish officer was part of an army commission that had travelled to Ireland to purchase horses for show-jumping competitions.
The company had specially designed ships that had been carrying livestock to Europe since 1936 and had continued to operate throughout the war flying under the Irish flag, often in perilous circumstances. The SS Assaroe had previously been damaged off the coast of Howth.
Another ship, the City of Waterford, had been damaged by German aircraft in the Bristol Channel, while yet another ship, the City of Bremen, had been lost due to German aerial attack in the Bay of Biscay.
The freight was due to sail on 24 March 1944 for Lisbon, and a stipulation of the contract placed responsibility on Morenas to ensure that, if the horses were not ready to be shipped on time, then he “would be responsible for dead freight”.
When the ship did sail on 24 March without the horses, the company sued for £2,600 in damages (equivalent to €109,369 today). Morenas requested the High Court in Dublin to set aside the proceedings on the grounds that the matter was “outside and without the jurisdiction of the court as they implead the Government of Spain, a Sovereign State”.
During the trial, Morenas stated that the reason he had failed to deliver the horses to the ship was due to a delay in obtaining a navicert. In the months leading up to the Allied cross-Channel invasion of France on 6 June 1944, the Royal Navy had instigated a navicert system, which required all neutral ships to register their contents to prevent any contraband reaching an opposing belligerent.
For some time, British intelligence had been monitoring the activities of the Comisión Militar Española (Spanish Military Commission). In one instance, they noted that the commission had purchased horses from neutral Portugal and then, subsequently, sold them to Italy, a wartime enemy of Britain.
British intelligence, through the ambassador in Madrid, wrote to the Spanish Minister for Foreign Affairs General Jordana to highlight the links between these officers and the Axis powers, adding that they did not accept the notion that these horses were being purchased for show-jumping competitions.
The majority of Axis logistical supply during the war was non-mechanised and was carried by horses. British intelligence believed that these horses were being used for supplying and equipping the Axis armies in the field.
Given the Spanish Military Commission’s existing history with the Axis powers, and the multitude of other pro-Axis activities that General Franco’s regime engaged in – from secretly provisioning submarines to using their diplomatic service to gather intelligence for Berlin and Rome – it was no coincidence that the British had refused issuing a navicert to the commission in Ireland.
The Allies wanted complete control over the sea lanes of Europe and to shut down any clandestine assistance to the Axis, especially in the lead-up to the largest amphibious invasion in history.
On 16 August 1944, Mr Justice Haugh made his ruling in the High Court. He dismissed Morenas’s defence that “a foreign sovereign state may claim immunity from the jurisdiction of these courts” and awarded costs to the company.
The judgment caused a sensation in the press and further afield. When news of the court’s judgment reached Spain, the country’s Army High Command informed the Ministry of Foreign Affairs in Spain that it would dispatch naval boats to Dublin to recover the horses, unless the court reversed its decision.
The new Spanish Minister for Foreign Affairs, José Félix de Lequerica, wrote to the British Ambassador for assistance in the matter, but was informed that, due to the ongoing invasion of Western Europe, “no neutral ships are permitted to travel on the route between Spain and Éire” and, if any Spanish naval vessels attempted to sail to Dublin, they would be intercepted by Allied warships.
Madrid then instructed its diplomatic representative in Dublin, Juan Garcia Ontiveros, to pressure the Department of External Affairs to intervene in the case.
In the past, External Affairs had assisted Ontiveros in several matters, including keeping him informed about political opponents of Franco’s regime based in Ireland, as well as pressuring newspapers to avoid publishing anti-Franco material in the leading broadsheets.
The department’s secretary, Joseph Walshe, had been eager to foster benign relations with Franco’s dictatorship. When war came, Walshe saw the shared policy of neutrality as another binding indicator of cordial Irish/Spanish relations.
On this occasion, however, the department refused to provide any support to Ontiveros, citing the “independence of the Irish judicial system”.
Clear line of separation
The Spanish diplomat could not understand this decision, which highlighted the complete disparity between the Irish and Spanish legal systems at the time. While the former had a clear line of separation between the executive and the judicial arms, in the case of the latter, the justice system served the political interests of the regime at all times.
Its courts carried out brutal and repressive measures against Franco’s opponents without any fair trials or hearings taking place, and its courts existed to serve the dictator and not the public interest.
Ontiveros pushed for an appeal to the Supreme Court, hiring two leading barristers and future Taoisigh, John A Costello SC and Liam Cosgrave (junior counsel) to represent Morenas. Costello had a distinguished legal career long before this case and was noted for his debating style in court.
He was also a former attorney general, had introduced emergency legislation to tackle the IRA after the Irish Civil War, and had helped pressure Britain to pass the Statute of Westminster in 1931, which recognised the legislative independence of the dominions in the Commonwealth.
Cosgrave, by contrast, had been called to the Irish bar the year before, was relatively inexperienced, but came from a famous and well-connected political family. His father, William T Cosgrave, had been the first president of the Executive Council of the Irish Free State.
The Spanish diplomat was confident that, with this legal team, the judgment of the High Court would be overturned by the Supreme Court.
The Supreme Court recognised that Ireland, like most countries, accepted the principle of international law, the immunity of sovereign states and its rulers, and that municipal law accepted and recognised this principle.
Furthermore, Mr Justice O’Byrne cited article 26, section 3 of Bunreacht na hÉireann, which states: “Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other states.”
However, the Supreme Court, in a unanimous decision on 18 December 1944, upheld the judgment of the High Court by finding no grounds that the Government of Spain had been impleaded, either directly or indirectly, and therefore there was no basis for setting aside the decision.
Mr Justice O’Byrne contended that Colonel de las Morenas had been sued in his personal capacity by the shipping company, and any judgment could not be enforced against any property, save that of the appellant.
The judge continued that, in his view, only if a sovereign state had been named as a defendant in the proceedings could it be directly impleaded – but this had not been done in this case.
He further argued that a state could be indirectly impleaded to indemnify Morenas by virtue of his appointment as an agent of the Spanish Government, but “this was far short of saying that the government was being impleaded”.
Mr Justice O’Byrne also noted that counsel for Morenas had been unable to show one example when a government had been held to be impleaded merely because its agent had been sued.
The ruling was a landmark decision. The general acceptance of sovereign immunity by countries under international law could no longer be viewed now as an absolute.
Although the case highlighted that Irish domestic law accepted the doctrine of sovereign immunity, the judgment recognised a distinction between direct and indirect state immunity and, thus, a more restrictive view of sovereign immunity emerged from the case.
It has been cited by many subsequent cases since, showing that, if one invokes international law, there is no guarantee of success, since state immunity is now viewed (in light of this case) in a more constricted manner.
Outside of the legal ramifications of the case, its impact left a sour taste in Irish/Spanish relations. Owing to the war and the unfortunate circumstance that only a specialised vessel could carry such livestock, Morenas and his team were to remain in Ireland for most of 1945.
The whole controversy convinced the Spanish authorities to alter their entire trading relationship with Ireland. In future, all goods would be placed and transported on Spanish ships.
The case also undermined Ontiveros’s relationship with External Affairs. His anger at what he perceived to be their indifference to the case from a Spanish viewpoint led him to become increasingly impudent in his dealings with Dublin, which further eroded the once-cordial relationship.
When the Second World War ended, Franco moved quickly to replace his representative with a more tactful diplomat. Ontiveros’s successor, Count Artaza, enjoyed excellent relations with External Affairs and concluded several important trade deals between the countries.
Despite losing the case, John A Costello continued his successful legal profession in a part-time capacity, along with his political duties, and became Taoiseach of the first interparty government in 1948, thus ending 16 years of Fianna Fáil dominance in political power.
He chose Liam Cosgrave, his junior counsel in the Morenas case, as his parliamentary secretary and Government chief whip.
Ironically, in a case that centred on horses, the Spanish would continue to buy Irish horse breeds because of their excellent quality and, in post-war sporting competitions at which they both competed, horses helped continue the historic relationship.
Both countries faced isolation in the post-war era – Ireland for its neutral policy, and Spain for its overtly non-neutral policy.
Just as British intelligence kept its eyes on Morenas and his team in the lead-up to D-Day, so it maintained surveillance in the post-war era. The shadow of British intelligence stayed ever-present in Irish/Spanish relations during the years that followed.
Dr Barry Whelan is diploma exams administrator at the Law Society and author of Ireland’s Revolutionary Diplomat: A biography of Leopold Kerney (Notre Dame University Press)