The X-Press Pearl incident has focused the attention of many lawyers, litigants and members of the public over admiralty issues. How exactly could the owners of a ship be sued, and what orders can be made regarding ships in port over issues of damage, etc?
In an admiralty application, an appeal was made by the defendants in a case in the High Court regarding an order made by the High Court judge. (M.V. Ocean Envoy and Another v. Al Linshirah Bulk Carriers Ltd. - SLR - 337, Vol 2 of 2002 [2002] LKCA 3; (2002) 2 Sri LR 337 (January 4, 2002)).
Here is how the case was summed up in the judgement subsequently issued by the Court of Appeal:
“Action was instituted in the High Court of Colombo invoking its admiralty jurisdiction to recover a sum of US $ 142,164.29 and arrest the ship MV “OCEAN ENVOY” as security in respect of detention due to the plaintiff-respondent at the Port of Marmugoa in respect of the vessel “CHKALOVSK” and interest at the rate of 5% from July 5, 1992.”
The defendant Appellant had asked that a fresh trial in appeal, or a trail De Novo be called with new witnesses to be summoned. However, strenuous objection was taken by the Counsel for the plaintiff respondent who contended that the case rests on documents filed already. However, did the admiralty law allow for such a trail De Novo that was being prayed for by the defendants?
The Court of Appeal diligently recorded what ensued in High Court and then proceeded to consider the legal issues involved:
“When the case was taken up for oral submissions, counsel for the defendants-appellants moved for a trial De Novo in terms of section 48 of the Judicature Act. Since the learned counsel for the plaintiff-respondent objected, the learned High Court Judge had directed both parties to file written submissions. In their written submissions the plaintiff-respondent has objected to the application for trial De Novo and moved Court to act on the evidence already recorded by his predecessor.”
The High Court judge concurred with the submission that the documents were indeed what the case turned on. He did not see that summoning of witnesses would make any difference:
“The learned Judge having considered the submissions made by both parties was of the view that since the whole case rests on documents for the reason that the claim arising out of the charter party has to be determined on the documentary evidence and no useful/fruitful purpose would be achieved by summoning witnesses and commencing the proceedings afresh.”
But, what was the law? Admiralty jurisdiction was to be vested with the High Court of Colombo, but did it mean that there was any special jurisdiction vested in the High Court being as this was an admiralty matter? It was the submission of the Counsel for plaintiff that admiralty matters are governed by admiralty law which however enabled recourse to English law whenever there was any issue that was not addressed by the specific Admiralty Jurisdiction Act:
“However, the learned counsel for the plaintiff-respondent submitted that the Judicature Act, No. 2 of 1978 only provides for the admiralty jurisdiction to be vested in the High Court of Colombo and the manner in which appeals should be made from an order of the High Court Judge to the Court of Appeal. The law relating to admiralty matters is contained exclusively in the Admiralty Jurisdiction Act, No. 40 of 1983 and the rules set out in Gazette Extraordinary No. 672/7 dated July 24, 1991. If one goes outside, it is to invoke the English Law rules of procedure which is specifically provided for, by section 12 of the Admiralty Jurisdiction Act, No. 40 of 1983.”
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| MV Ocean Envoy |
It was submitted that this cited section of the Act provides that when there is no provision or inadequate provision in the act, section 70 in the Act No. 40 of 1983 empowers the Admiralty Court to make orders that a court exercising admiralty jurisdiction in England had power to make, as long as such order was not in conflict with the Act itself or any other enactment or rule.
Whether having given his mind to the admiralty laws in England or otherwise the learned High Court judge had decided that, “Unlike in a criminal case or any other case where the issue can be decided not only on oral evidence but also on the demeanour of witnesses, this case appears to be dependent on the above documents.” The Appeal was dismissed.
With regard to the applicability of English law in admiralty matters, the following reference in judgement by Justice Mark Fernando in MV “Kalyani” and another v. Mutiara Shipping Company, NY, (S/C Appeal 100/96), is useful:
“The history of our Admiralty law, and its dependence on English law, has been traced back to the Charter of Justice of 1833: see Bawazir v. Acting Master MVAYESHA, at 319-320, and it is sufficient for me to make a brief reference to just some aspects of that history.
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| X-Press Pearl on fire |
The need to refer to English Law arises because our Admiralty Law prior to 1983 was English Law. Section 2 of the Ceylon Courts of Admiralty Ordinance, No. 2 of 1891, declared the Supreme Court to be a Colonial Court of Admiralty (in terms of the Colonial Courts of Admiralty Act, 1890), having:
“Jurisdiction, subject to the provisions and limitations contained in the Colonial Courts of Admiralty Act, 1890, over the like places, persons, matters and things as the admiralty jurisdiction of the High Court in England, whether existing by virtue of any Statute or otherwise, and such Colonial Court of admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England.”
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