Argentum Exploration v The Silver
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell,Lady Justice Andrews,Lady Justice Elisabeth Laing |
| Judgment Date | 11 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1318 |
| Docket Number | Case No: CA-2021-000517 |
| Court | Court of Appeal (Civil Division) |
and
[2022] EWCA Civ 1318
Lord Justice Popplewell
Lady Justice Andrews
and
Lady Justice Elisabeth Laing
Case No: CA-2021-000517
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ADMIRALTY COURT (KBD)
SIR NIGEL TEARE (sitting as a Judge of the High Court)
Royal Courts of Justice,
Strand, London, WC2A 2LL
Stephen Hofmeyr KC, Liisa Lahti and Cameron Miles (instructed by Tatham & Co) for the Claimant/Respondent
Christopher Smith KC and Jessica Wells and Naomi Hart (instructed by HFW LLP) for the Defendant/Appellant
Christopher Staker (instructed by the Treasury Solicitor) for the Interveners
Hearing dates: 15, 16 March, 5, 6, 7 July 2022
Approved Judgment
This judgment was handed down remotely at 10 am on Tuesday, 11 October 2022 by circulation to the parties or their representatives by email and by release to the National Archives.
Introduction
The depth from which sunken treasure can be recovered has greatly increased with the technological advances of recent times. The so called Rhodian Law, or Nautical Law of the Rhodians, was published by Loewencklau in 1596, reflecting, in part, text which survives from earlier mediaeval manuscripts. It purported to record various articles as having been the maritime law of Rhodes as adopted by Roman law, although there is academic opinion that it is spurious (see e.g. Robert Benedict The Historical Position of the Rhodian Law 1909 Yale Law Journal Vol XVIII No 4 p223). Article 47 provides:
XLVII. If gold or silver or any other thing be drawn up from a depth of eight cubits [about 12 feet], he that conserves it shall have one third, and if 15 cubits [about 23 feet], he shall have one half because of the danger of the depth. For recovery of goods thrown from the sea onto land or submersed in one cubit of water he shall have one tenth.
This case concerns a cargo of 2,364 bars of silver (“the Silver”) which sank to the seabed of the Indian Ocean at a depth of some 2 1/2 kilometres in 1942. It was then regarded as unsalvageable, but some 75 years later it was recovered, giving rise on this appeal to important issues of law in relation to state immunity from Admiralty proceedings for salvage, and claims for salvage of wreck more generally.
The appellant is the Republic of South Africa (“RSA”). It is the owner of the Silver, which was being carried by the SS TILAWA (“the Vessel”) from Bombay to Durban during the Second World War for minting into coinage by the Government of the Union of South Africa, RSA's predecessor in title (for convenience I shall refer to both as RSA since nothing turns on the distinction). On 23 November 1942 the Vessel was hit twice by Japanese torpedoes and sank with her cargo. In 2017 the Silver was salvaged and brought to Southampton where it was delivered to the Receiver of Wreck, to whose order it is held, pursuant to s. 236 of the Merchant Shipping Act 1995 (the “MSA”). The respondent (“Argentum”) claims to have been the salvor, and asserted a claim for salvage by bringing proceedings in rem against the Silver in the Admiralty Court. RSA entered an acknowledgment of service, and applied to strike out or set aside the claim, or have it permanently stayed, on the grounds that the proceedings attracted state immunity.
Sir Nigel Teare (“the Judge”) dismissed the application, holding that the proceedings fell within the exception to immunity in s. 10(4)(a) of the State Immunity Act 1978 (“the 1978 Act”). RSA appeals from the Judge's decision.
The events of 1942
The Silver was one of a number of consignments sold by the Government of India to RSA on fob terms. Although sold on fob terms, it was the Government of India as seller who arranged the contract of carriage with the owners of the Vessel. It is common ground, however, that it did so on behalf of RSA as purchaser and that RSA was a party to such contract of carriage, although no documentary evidence of it survives.
The Vessel was a privately owned passenger/cargo liner built in 1924. On the voyage she was carrying 6,472 tons of cargo, including cotton, and 732 passengers. She was manned by a crew of 222. When she was torpedoed, the Silver was secured in her bullion room, and sank with the Vessel to the bed of the Indian Ocean. Some 280 lives were lost, with the survivors being taken back to Bombay. Under wartime insurance arrangements, the Vessel was insured by the UK Government, which paid the claim brought by the owners of the Vessel. At all times thereafter the Vessel, lying on the seabed, has been the property of the UK Government. The Silver, on the other hand, was uninsured. It was and remains owned by RSA.
The Silver had been purchased by RSA in order for it to be made into coin by the South African Mint, a body which had recently been established by the South African Mint Act 1941 to replace the Pretoria branch of the London Royal Mint. There was a dispute between the parties over the intended use of the Silver by the Mint. Argentum claimed that it was required to produce Egyptian coinage, which was a profitable activity for the Mint. RSA contended that it was required to produce South African coinage. The Judge considered in detail the relevant evidence and concluded that “[i]t is probable that the cargo on board the SS TILAWA was destined both for Union silver coinage and for Egyptian coinage. In circumstances where 80% of silver was used for Union coinage and 20% for Egyptian silver coinage it is likely that the greater part of the cargo was destined for Union coinage and the lesser part for Egyptian coinage”. The Judge's finding has not been challenged on appeal. The cargo was therefore intended in 1942 for a predominantly sovereign use.
The salvage
After an 18-month search the Vessel was located and identified by Advanced Maritime Services (“AMS”) in 2014. By a contract dated 12 December 2014 Argentum engaged AMS to recover the Silver. AMS engaged a specialist salvage vessel, the SEABED WORKER. Recovery operations commenced in January 2017 and were carried out until the last of the Silver was recovered on 23 June 2017, with interruptions for the vessel to visit Salalah, Oman, for crew changes and other necessary provisioning of supplies and spares. The Silver was transhipped from the SEABED WORKER onto the PACIFIC ASKARI in the contiguous zone off the coast of South Africa on 3 September 2017, by which it was then carried to the UK, arriving in Southampton on 2 October 2017. At that time Argentum mistakenly believed that the Silver belonged to the UK Government.
RSA had first become aware of the possibility of recovering the Silver not from Argentum, but from other salvors, Odyssey, who had approached the then Deputy President of RSA in September 2016 with a view to securing a salvage contract. The Judge considered the subsequent exchanges between RSA and Odyssey, with whom a contract was eventually signed on 14 February 2018. The Judge found that RSA had not formed any intention to contract for the salvage of the Silver until after consideration of a letter dated 13 October 2017, which was after Argentum's cause of action had arisen (on the latest of the dates contended for by either party in this action). At the date of the accrual of the cause of action in salvage, therefore, RSA had no intention as to the use of the Silver if and when salved.
The course of the proceedings
The Silver was placed in secure custody following its arrival in Southampton on 2 October 2017. On 26 October 2017 it was declared to the Receiver of Wreck (“the Receiver”) and has since that time been held to the Receiver's order. On 14 September 2018 RSA claimed ownership of the Silver. Argentum was made aware that a claim to ownership had been made but was initially unaware of who had made it. On 23 October 2018 the Receiver made a decision that RSA was the owner of the Silver. There was some argument about whether that decision should stand, but eventually Argentum agreed that it was correct. On 12 November 2018 Argentum advised the Receiver that it was entitled to the Silver as “unclaimed wreck”, but that if a claim to ownership were proven, it sought a salvage award. If an award could not be agreed with the owner, Argentum advised that that would likely entail an application to the Admiralty Court. Thereafter Argentum was advised by the Receiver on 31 January 2019 that it was RSA which claimed ownership of the Silver and correspondence ensued between Argentum, RSA and the Receiver.
On 1 October 2019 Argentum commenced the action in rem, seeking a declaration that it was the owner of the Silver or, in the alternative, a salvage award. The claim form did not specify whether the claim for salvage was made under the maritime law of salvage or under the International Maritime Organization International Convention on Salvage 1989 (“the Salvage Convention”). The salvage claim was said to be without prejudice to Argentum's primary case that the Receiver was the appropriate person to determine its claim for salvage, and that it was entitled to payment of such salvage due before release of the Silver to its owners under s. 239 of the MSA.
On 3 March 2020 RSA entered an acknowledgment of service for the purpose of asserting its interest in the Silver and claiming immunity pursuant to the 1978 Act and article 25 of the Salvage Convention. On 25 March 2020 RSA issued an application notice seeking an order that the action be struck out or stayed on the grounds that it was entitled to immunity from...
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Tolley, re Fisher
...cases using and explaining this test. However, as is well known, in construing a statute, context is all important: see eg Argentum Exploration Ltd v The Silver [2023] 2 WLR 209, [92], per Popplewell LJ. 9 The 1981 Act is concerned with a person's standing to challenge the decision of a pu......