Eschersheim, The (Dortmund, Erkowit, Jade, Salus (formerly Rotesand))

JurisdictionUK Non-devolved
JudgeLord Diplock,Lord Simon of Glaisdale,Lord Kilbrandon,Lord Salmon,Lord Edumund-Davies
Judgment Date31 March 1976
Judgment citation (vLex)[1976] UKHL J0331-1
Date31 March 1976
CourtHouse of Lords
Owners of Motor Vessel "Erkowit"
(Respondents)
and
Owners of The "Jade" (The "Jade"),
(Appellants)
Owners of Cargo Lately Laden on Board Motor Vessel "Erkowit"
(Respondents)
and
Owners of Ship "Eschersheim" (The "Eschersheim"),
(Appellants)
[Consolidated Appeals].

[1976] UKHL J0331-1

Lord Diplock

Lord Simon of Glasidale

Lord Kilbrandon

Lord Salmon

Lord Edmund-Davies

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Owners of Motor Vessel "Erkowit" against Owners of The "Jade" (The "Jade") and Owners of cargo lately laden on board Motor Vessel "Erkowit" against Owners of Ship "Eschersheim" (The "Eschersheim") [ Consolidated Appeals], That the Committee had heard Counsel for the Appellants, as well on Wednesday the 28th and Thursday the 29th, days of January last, as on Monday the 2d day of February last, upon the Petition and Appeal of the Owners of the Ship "Jade", praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 22d of July 1975, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Petition and Appeal of the Owners of the Ship "Eschersheim", praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 22d of July 1975, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet (which said Appeals were, by an Order of this House, of the 6th day of November last, ordered to be consolidated); and Counsel appearing for the Respondents, but not being called upon; and due consideration being had this day of what was offered for the said Appellants;

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Orders of Her Majesty's Court of Appeal of the 22d day of July 1975, complained of in the said Appeals, be, and the same are hereby, Affirmed, and that the said Petitions and Appeals be, and the same are hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeals, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Diplock

My Lords,

1

In these conjoined appeals the owners of the ship Jade seek to set aside writs issued in actions in rem against that vessel, on the ground that by reason of their subject-matter the claims in the actions lie outside that part of the jurisdiction of the High Court that may be invoked by an action in rem.

2

There are two actions: in one of them, the owners of the ship Erkowit ("the shipowners") are the plaintiffs; in the other, the owners of the cargo on the Erkowit ("the cargo owners"). The facts that are relevant to the question of jurisdiction are set out in the judgment of Brandon J. and call for no more than a brief summary here.

3

On 30th October 1970 the Erkowit, a vessel on the Sudanese registry, was involved in a collision with a German vessel and was badly holed. This happened in the Bay of Biscay some 50 miles from La Coruna. Some three hours later in response to a summons a salvage tug the Rotesand arrived on the scene from La Coruna and a salvage agreement in Lloyd's open form ("the salvage agreement") was entered into by the master of the Erkowit on behalf of the shipowners and the cargo owners and by the tugmaster on behalf of the appellants in these appeals ("the salvors") who are professional salvors. The salvage agreement was signed on the Rotesand, the master and crew of the Erkowit having by this time abandoned ship. Pursuant to the salvage agreement the Rotesand took the Erkowit in tow and made for the port of La Coruna. The tugmaster decided to beach the Erkowit on an open beach before reaching the entrance to the harbour and to patch the hole in her before proceeding further. The Erkowit was accordingly beached by the tug. Subsequently, while she remained on the beach exposed to the weather the salvors attempted to patch her with canvas and wood. The patches proved ineffective; the vessel was broken up by the waves and her cargo swept away. Both the vessel and her cargo became a total loss. Some of the cargo consisted of drums of insecticide which is alleged to have caused pollution of the coastal fisheries in the area. In respect of this alleged pollution a suit claiming very substantial damages has been brought in Spain by the Spanish Government against the owners of the Erkowit.

4

The claims of the shipowners and the cargo owners against the salvors are for negligent performance of the salvage agreement. The negligence alleged is (1) beaching the Erkowit in a place exposed to wind and waves; (2) patching her with wood and canvas instead of with steel and (3) delay in carrying out the operation, sc. after the beaching. The damages claimed by the shipowners include an indemnity against any liability to the Spanish Government.

5

The salvors have no place of business in England where they could be served with a writ in an action in personam. The Jade is a vessel belonging to the salvors; while within the jurisdiction she was arrested in actions in rem commenced by writs issued in purported pursuance of section 3(4) of the Administration of Justice Act 1956. The question in these appeals is whether any of the claims of the shipowners and the cargo owners respectively against the salvors are claims in connection with the Rotesand which fall within that subsection. If any of them does the High Court has jurisdiction to entertain an action in rem against the Jade and this appeal must accordingly fail.

6

The Admiralty jurisdiction of the High Court and the mode in which it can be exercised, i.e. in actions in rem and actions in personam, is regulated by Part I of the Administration of Justice Act 1956. Like Part V, which deals with "Admiralty Jurisdiction and Arrestment of Ships in Scotland" and Schedule II, which contains similar provisions for Northern Ireland, Part I of the Act was passed for the purpose, among others, of enabling the United Kingdom to ratify and to comply with the international obligations accepted by States which become parties to the International Convention Relating to the Arrest of Seagoing Ships which had been signed on behalf of the United Kingdom in 1952.

7

The purpose of that Convention was to provide uniform rules as to the right to arrest seagoing ships by judicial process to secure a maritime claim against the owner of the ship. Article 1 defined by reference to their subject matter various classes of maritime claim in respect of which alone a right of arrest was to be exercisable; while Articles 2 and 3 granted and confined the right of arrest to either ( a) the particular ship in respect of which a maritime claim falling within one or more of those classes arose or ( b) any other ship owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship.

8

The provisions of Article 3 represented a compromise between the wide powers of arrest available in some of the civil law countries (including for this purpose Scotland) in which jurisdiction to entertain claims against a defendant could be based on the presence within the territorial jurisdiction of any properly belonging to him, and the limited powers of arrest available in England and other common law jurisdictions, where the power to arrest was exercisable only in respect of claims falling within the Admiralty jurisdiction of the court and based upon a supposed maritime lien over the particular ship in respect of which the claim arose.

9

The Admiralty jurisdiction of the High Court of England has always been statutory. In 1875 the newly-created High Court of Justice had inherited the jurisdiction previously vested in the High Court of Admiralty. Its Admiralty jurisdiction had been subsequently added to piecemeal by statute. Immediately before the passing of Part I of the Act of 1956 the claims and questions which fell within Admiralty jurisdiction of the High Court were listed by reference to their subject-matter in section 22 of the Supreme Court of Judicature Act 1925, and by section 33(2) this jurisdiction was stated to be exercisable "either in proceedings in rem or in proceedings in personam." What distinguished the Admiralty jurisdiction from the other civil jurisdiction of the High Court was that it was exercisable in proceedings in rem.

10

The claims listed as falling within the Admiralty jurisdiction of the High Court under section 22 of the Supreme Court of Judicature Act 1925 were substantially the same as the maritime claims listed in Article 1 of the 1952 Convention, though with some variation in language which is readily accounted for by the fact that the Convention was drawn up in the English and French languages, both texts being equally authentic.

11

The way in which the draftsman of Part I of the Administration of Justice Act 1956 set about his task of bringing the right of arrest of a ship in an action in rem in the English courts into conformity with Article 3 of the Convention was ( a) by section 1 of the Act, to substitute a fresh list of claims falling within the Admiralty jurisdiction of the High Court, and ( b) by section 3, to regulate the right to bring an action in rem against a ship by reference to the claims so listed.

12

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