Joaquin America N. Lopes Ltd v The Motor Vessel “Fortuna Bay” et Al

• Jurisdiction: St Vincent and the Grenadines
• Judge: Joseph, J.
• Judgment Date: 07 April 1994
• Neutral Citation: VC 1993 HC 1
• Docket Number: 20 of 1993
• Court: High Court (Saint Vincent)
• Date: 07 April 1994

High Court

Joseph, J.

20 of 1993

Joaquin America N. Lopes Ltd.

and

The Motor Vessel “Fortuna Bay” et al

Appearances:

Mr. O. Sylvester, Q.C., and Miss Nicole Sylvester for plaintiffs

Mr. A. Saunders and Mr. J. Delves for the defendants

Mr. E. Robertson, intervening on behalf of Seamist Shipping Co. and Frank Ollivierre

Admiralty - Jurisdiction — Warrant issued, ship arrested — Subsequently released — Application to set aside writ and subsequent proceedings — Whether court has jurisdiction to hear and determine proceedings — Whether Court had jurisdiction at time of application for warrant — Whether original owners at time of cause of action were beneficial owners when action instituted — Whether Bill of Sale valid — Whether plaintiff's claim vexatious.

Practice and Procedure - Interpretation — Whether Order 75 of the Rules of the Supreme Court (United Kingdom) applied to this jurisdiction — Rules of the Supreme Court (U.K.) Order 75.

Joseph, J.

1 The M.V. Fortuna (the ship) is the subject of two suits. A warrant of arrest was issued in the first suit No. 414/ 1992, and the ship was arrested. 0n 18th January 1993 by court order this warrant of arrest was revoked. The instant action way filed on 15th January 1993, and on 18th January 1993 the ship was arrested on a claim for the sum of US$81,160.22 and general damages for breach of contract. The application for the arrest of the ship was supported by an affidavit of Nicole Sylvester, a member of the firm of solicitors for the plaintiff, which was dated and filed on 18th January 1993. By notice of motion filed on 12th February 1993 the defendants the writ of summons and all subsequent proceedings to be on the grounds that:

• (1) The plaintiff's claim is vexatious;

• (2) The court's jurisdiction has been wrongly or improperly invoked;

• (3) The plaintiff's claim does not disclose any reasonable cause of action.

2 A fourth claim that the plaintiff foreign corporation, has not properly authorised solicitors to institute the action on its behalf was not pursued at the trial of the motion. At the hearing of the motion Mr. Robertson applied and was granted leave to intervene in the action on behalf of Seamist Shipping and Frank Ollivierre. Mr. Robertson informed the court that he would defer the application relative to the capacity in which these parties wished to intervene. The notice of motion was supported by affidavits of John Bayliss Frederick, attorney for Nicholas David Petersen and Parma Nand Kukar both joint owners with another party of the ship and Charles David Atkins, attorney on record for the other shareholder Craig Charles Atkins, both dated 19th January 1993. The deponent J.B. Frederick alleges that the statement of claim discloses that the plaintiff's claims are further to claims already made by the plaintiff against the defendants in suit No. 414/1992, a suit in which the pleadings are not yet closed that immediately after the court, on 18th January 1993, made an order revoking the warrant of arrest, the plaintiff instituted this action. This latter statement is not correct. As earlier stated, the writ in this action as filed on 15th January 1993 and the order referred to was made on 18th January 1993.

3 Jurisdiction

4 Mr. Frederick deposes that the statement of claim discloses no cause of action as grounds jurisdiction in this court in its admiralty vision. Counsel for the plaintiff contended that one of the reliefs sought by the defendants was that the court's jurisdiction has been wrongly or improperly invoked but that submissions made by counsel for the defendants were that the court had no jurisdiction. To say that the court has no jurisdiction seems to me, at first sight, to be different from saying that the jurisdiction is wrongly or improperly invoked. The latter interpretation connotes that the court has jurisdiction but that the plaintiff has approached the court, e.g., by utilising a wrong procedure. Is not the answer to both questions virtually the same? Put differently would not the effect of both submissions be the same? I think the answer will become apparent. The defendants' notice of motion and supporting affidavits do not detail in what way the court's jurisdiction is wrongly or improperly See Halsbury's Laws of England 4th Ed.Vol. 37 p.157 para.212:

5 Application to dispute jurisdiction.

“The application to dispute jurisdiction of the court must be made in an admiralty action in rem by motion. The notice of motion must state the grounds of the application. The application must be supported by an affidavit verifying the facts on which the application is based.

6 And at p.158 note 5–

“It is not enough to state “that this Honourable Court does not have jurisdiction in this matter but if the grounds are not stated properly, this is an irregularity under Order 2, and the court may give leave to amend and, where there is no prejudice to the defendant, deal with the application on its merits. Carmel Exporters v Sea-Land Services [1981] 1 A.E.R 984.”

7 The notice of motion was not amended and I cannot say that there would be no prejudice to the plaintiff if the defendants' application heard. Indeed if the defendants' application succeeds the security for costs that the plaintiff has obtained by arrest of the ship will be lost

8 I shall deal with the merits of the application inasmuch as it was fully argued and take a certain course of action. Section 8 of the Eastern Caribbean Supreme Court ( St. Vincent and the Grenadines) Act (Cap. 18) provides that the admiralty jurisdiction shall be in accordance with the Admiralty and Prize Jurisdiction Act (Cap.12) (the Act) which Act provides the manner in which the jurisdiction may be invoked: in rem and in personam. By Section 3(1) of the Act the Admiralty jurisdiction of the court shall be jurisdiction to hear and determine any of the following questions or claims –

• (a) Any claim to the possession or ownership or a ship or to ownership of any share therein;

• (b) Any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;

• (c) Any claim in respect of a mortgage of or charge on a ship or any share therein:

• (d) Any claim for damage done by a ship including damage for which there is liability under the Oil Pollution (Liability and Compensation) Act;

• (e) Any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship.

• (f) Any claim for loss or, or damage to goods carried in a ship;

• (g) Any claim arising out of any agreement relating to the carriage of goods in a ship, or to the use or hire of a ship;

• (k) Any claim in respect of goods or materials supplied to a ship for her operation or maintenance;

• (l) Any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;

• (n) Any claim by a master, shipper charterer or agent in respect of disbursements made on account of a ship;

• (q) Any claim for the forfeiture Admiralty.

9 Section 4 indicates the actions that may be commenced in rem and those may be commenced in personam. That section reads:

• (1) Subject to the provisions of section 5, the Admiralty jurisdiction of the court may in all cases be invoked by an action in personam.

• (2) The Admiralty jurisdiction of the court may, in the cases mentioned in section 3 (1) (a), (b), (c) and (q), be invoked by an action in rem against that ship, aircraft or property.

• (3) In any case in which there is a maritime lien or other charge on any ship, aircraft or property of the amount claimed the admiralty jurisdiction of the court may be invoked by an action rem against that ship, aircraft or property.

• (4) In the case of any such claim as is mentioned in section 3 (d) to (p) being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was when the cause of action arose, the owner or charterer of or in possession or in control of, the ship the admiralty jurisdiction of the court may (whether the claim gives use to a maritime lien on the ship or not) be invoked by an action in rem against –

  • (a) That ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person or

  • (b) Any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.

10 Counsel for the plaintiff submitted that the plaintiff's claim falls under section 3 (1) (d) to (p) and that at the time the action was instituted the ship was owned by the parties who owned it when the cause of action arose. In personam actions may be instituted in all the instances numerated in section 3(1) paragraphs (a) to (q) of the Act. Actions in rem may be instituted in the instances in paragraphs (a) (b) (c) and (q) of that subsection, and if certain conditions are satisfied, an action in rem may be instituted under paragraphs (d) to (p).

11 In an action in rem under paragraphs (d) to (p) The first condition is hat the claim must be in connection with a ship. The second is that he person who would be liable in personam in respect of a claim arising under paragraphs (d) to (p) must have been, at the time when the cause of action arose, the owner, the chatterer of, or person in possession or in control of the ship. There seems to be no dispute relative to these conditions. The dispute centres around the third condition, that is, at the time the action is brought the owner, charterer or person in possession or control of the ship, who must be the same person who owned the ship when the cause of action arose, must beneficially own all the shares in the ship. I cite from the judgment of Slynn J. in The “Aventicum” Lloyd's Law Reports (1978) Vol, 1 p.184 at...