Kennedy Paul Saldanha (Claimant/Respondent) Fulton Navigation Inc. (Defendant/Applicant)
| Jurisdiction | England & Wales |
| Judge | Jervis Kay |
| Judgment Date | 10 May 2011 |
| Neutral Citation | [2011] EWHC 1118 (Admlty) |
| Court | Queen's Bench Division (Admiralty) |
| Docket Number | Claim No. 2010 Fo. 9 |
| Date | 10 May 2011 |
2011 EWHC 1118 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Strand, London. WC2A 2LL
Jervis Kay Q.C., Admiralty Registrar
Claim No. 2010 Fo. 9
Robert Weir Q.C. (instructed by Bridge McFarland) for the Claimant/Respondent
Bernard Doherty (instructed by Thomas Cooper) for the Defendant/Applicant
Hearing date:- 22nd February 2011
The Background
The Claimant is an Indian national who was, at the material time, the First Engineer onboard the Defendant's ship "OMEGA KING". The ship is registered in the Marshall Islands. At the relevant time the ship was lying at anchor off the coast of Wales whilst awaiting a berth at Port Talbot, Avonmouth. It is common ground that the anchorage place was within United Kingdom waters. On the night of the 6th January 2008 the weather conditions deteriorated and became severe. There were strong winds and the height of both waves and swell increased. The vessel began to drag her anchor. Apparently the master decided to weigh anchor. It appears that the locking pin on the chain stopper was jammed as a result of the forces exerted on it. The restraining pin had bent and jammed thus preventing the capstan or windlass from raising the anchor. The deck crew being unable to resolve the situation, the First Engineer was asked to inspect the pin to see whether the matter could be resolved. The Claimant went forward and inspected the pin. He then went to the engine room to get a grinder. On his return to the forecastle the Claimant was inspecting the fore end of the pin when a large wave broke over the bow. He was knocked or fell against a nearby bollard and thereby suffered injury. The Claimant was taken ashore for hospitalisation. He remained in hospital undergoing surgery and receiving treatment, firstly in the Frenchay Hospital in Bristol and then a hospital in London. He was finally discharged from hospital on the 15th February 2008. After that he was repatriated to India where he underwent further outpatient treatment.
The Claimants commenced proceedings and obtained permission to serve the claim form out of the jurisdiction. Before that happened there had been correspondence between the Claimant's solicitor and Gard (UK) Limited ("Gard"), the representatives of the Protection and Indemnity Insurers of the vessel. Gard are based in London. The purpose of the correspondence was to enquire whether the Owners would appoint London solicitors and whether there was any dispute as to the geographical position of the vessel at the time of the Claimant's injury. Gard indicated that service was to be made on the Owners. They did not take exception to the ship's position as proposed.
According to the affidavit of service made by Philip Okney, an attorney licensed to practice in the Marshall Islands, the Claim Form (and other necessary court documents) was served on the Trust Company of the Marshall Islands (TCMI) on the 24th June 2010 which is the "statutory agent for service of process for Fulton Navigation Inc."
The documents were then sent to Omega, the ship's managing agents in Piraeus. Apparently Omega had moved office to Athens and there is a question as to whether the documents were received in Greece. There is a receipt for the documents at the Piraeus office dated 6th July 2010 the documents do not appear in the log book of documents received by the Piraeus office. Omega contend that it did not receive the documents. No acknowledgment of service or challenge to the jurisdiction was made and judgment was entered in August 2010. A copy of that default judgment came the attention of the Defendant's P&I insurers on the 8th December 2010. On the 29th December 2010 the Defendant issued the application seeking (i) a declaration that the Court has no jurisdiction to hear the claim; (ii) a declaration that the Court will not exercise its jurisdiction in respect of this claim and (iii) an order that the judgment will be set aside. On the 22nd February 2011, Thomas Cooper, the Defendant's solicitors in England, signed an acknowledgment of service indicating an intention to defend the claim and an intention to contest the jurisdiction.
The application raises the following issues:
a. Does the court have jurisdiction to hear the claim?
b. If so, should it exercise its discretion to permit the claim to proceed in this country, the forum non conveniens point?
c. Should time be extended for challenging the jurisdiction?
d. Should the court set aside the judgment already obtained in default of a defence being filed?
Does the court have jurisdiction to hear the claim?
This claim is brought in tort. By Practice Direction 6B paragraph 3.1:
The claimant may serve a claim form out of the jurisdiction with the permission of the court under ( CPR) rule 6.36 where —
(9) A claim is made in tort where—
(a) damage was sustained within the jurisdiction, or
(b) the damage sustained resulted form an act committed within the jurisdiction.
The Claimant's case is that when the injury occurred the vessel was lying in a position Latitude 51° 20.9' North, Longitude 003° 23.3' West. That position has been plotted by Captain Clive Hill and is said to be within the territorial waters of the United Kingdom (for these purposes Wales). The Claimant's solicitors informed Gard in correspondence that this was the Claimant's case at an early stage and it has never been contradicted. At the hearing Mr. Doherty, for the Defendant, asserted that the injury happened over 5 miles off the coast but did not provide an alternative position nor one which was outside the territorial waters. At the hearing Mr. Doherty conceded that the incident took place in United Kingdom territorial waters. In any event, on the basis of the evidence available, it is clear that the ship's position at the relevant time was within territorial waters.
Mr. Weir Q.C. submitted that is an end of the matter because the accident occurred within the territorial waters of England and Wales and that this fact is not disputed. On the face of the Practice Direction referred to above that appears to be right however Mr. Doherty has drawn attention to the definition of jurisdiction under CPR Part 2.3, which provides: " in these Rules 'jurisdiction' means, unless the context requires otherwise, England and Wales and any part of the territorial wasters of the United Kingdom adjoining England and Wales". Mr. Doherty submitted that, in this case, the "context requires otherwise". He did not seek to explain what it was about the context of Practice Direction 6B paragraph 3.1(9) which gave rise to any suggestion that a different definition of jurisdiction should be applied but he did seek to argue that where a tort occurs which arises wholly upon a foreign flagged vessel it is the jurisdiction of the ship's flag sate which must apply. He founded this submission on the basis of European law arising under (a) Council Regulation (EC) No.44/2001 of 22nd December 2000 (Brussels 1) which provides that the primary basis for jurisdiction is the domicile of the Defendant. He drew attention to the decision of the European Court of Justice in Danmarks Rederiforening v. LO Landsorganisation i Sverige ( C-18/02) [2004] ECR. I 1543 in which the court considered the jurisdictional aspects of a tort which was "wholly internal to a ship". According to Mr. Doherty it is the ratio of that case that it was for the national court to decide where the relevant loss arose and, in that context, the nationality of the ship would be a factor. However Mr. Doherty drew attention to the suggestion in the judgment that the nationality can play a decisive role if the national court reaches the conclusion that the damage arose onboard the relevant ship.
Mr. Doherty accepted that jurisdiction in the present case is not governed by Brussels 1 but he submitted that it is desirable that English Common law rules are aligned with European rules. He also submitted that Regulation (EC) No. 864/2007 of the European Parliament of the Council of 11 July 2007 (" Rome II") applies to cases where a choice of law was available. He therefore submitted that, under Brussels 1, if an accident wholly internal to a ship was held to have occurred in the flag state of the ship then the same interpretation should hold under Rome II. Thus he submitted that if the damage happens in the flag state for the choice of law purposes it should also be held to have occurred in the flag state for jurisdictional purposes. It should be noted that, unlike the present case, the Danmark case was concerned with matters arising within the jurisdiction of the European Court. It is also to be noted that it involved a claim in tort against a Swedish trade union in respect of a Danish ship which was trading between England and Sweden. In that case it is not clear where the tortious act or acts took place. A further problem is that Mr. Doherty's argument lacks cohesion. On his own argument Brussels 1 suggests that the flag state may be taken into account when considering the jurisdictional aspects but it does not rule out other factors. Nor do I think that the same criteria need necessarily be applied to issues of jurisdiction as to the choice of law. In any event the European rules do not apply to the present situation and Mr. Doherty has been unable to point to any English authority which suggests that, in circumstances such as the present, they should. It is also worth noting that principles of international comity apply not only within Europe but also upon a worldwide basis, particularly with respect to maritime law.
Mr. Weir submitted that the authorities and learned books strongly suggest that Mr. Doherty's submissions were not well founded. Thus in Booth v. Phillips ...
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