Monte Ulia (Owners) v Banco and Others (Owners); Banco, The

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,or,LORD JUSTICE MEGAW,LORD JUSTICE CAIRNS
Judgment Date09 December 1970
Judgment citation (vLex)[1970] EWCA Civ J1209-1
Date09 December 1970

[1970] EWCA Civ J1209-1

In The Supreme Court of Judicature

Court of Appeal.

Appeal of plaintiff from Order of Mrs. Justice Lane dated August 14, 1970.

Before:

The Master of the Rolls (Lord Denning),

Lord Justice Megaw and

Lord Justice Cairns.

The Owners of the Motor Vessel 'Monte Ulia'
Plaintiffs Appellants
and
The Owners of the Ships "Banco, Petro," "Shell Spirit I," "Shell Spirit II", "Toro," "Ulco", "Uno"
Defendants Respondents.

Mr. BARRY SHEEN, Q.C., for. KENNETH ROKISON and Mr. D. STEEL (instructed by Messrs. Ince & Co.) appeared on behalf of the Appellants.

Mr. J.F. WILLMER, Q.C., and Mr. A. STEWART-RICHARDSON (instructed by Messrs. Hill, Dickinson & Co.) appeared on behalf of the Respondents.

THE MASTER OF THE ROLLS
1

On 26th July, 1970, a British motor-tanker, the "Banco", was being navigated in the River Thames with the object of morning at a Jetty. She was off Shellhaven. About the same time a Spanish motor-vessel, the "Monte Ulia" was coming up the river inward bound. She had 163 passengers on board. The "Banco" was, it is said, so negligently navigated that the "Monte Ulia" was "put by"; that is, she had to take emergency action to avoid the "Banco". She succeeded in avoiding the "Banco", which went clear. But, in so doing, the "Monte Ulia" herself was forced out of course. She collided with a Jetty, No. 4 Coryton Jetty, and ran aground. She was herself damaged. It cost £12,000, or more, to repair her. But that is only a small item in the loss. There was, as it happened, a main oil pipeline running along the Jetty. This was damaged. Crude oil escaped and caught fire. The jetty was destroyed. Small craft alongside it were damaged extensively. Much oil was washed on the North Shore of the river and polluted it. All those who suffered have made claims against the "Monte Ulia", basing their claims on the fact that it was she who hit the jetty and is prima facie liable. The Mobil Oil Company, who are the owners of the Jetty, say it will cost £1½-million to rebuild the Jetty and its equipment, and that the extra loss involved could run into millions. The Port of London Authorities claim the cost of clearing up the oil pollution. Owners of small craft claim for their damage. And salvage tugs claim salvage. The owners of the "Monte Ulia" resist these claims, saying it was not the fault of the "Monte Ulia", but of the "Banco".

2

The "Banco" is owned by an English Company called Beagle Shipping Limited. It also owns six other vessels — "Petro", "Shell Spirit I", "Shell Spirit II", "Toro", "Ulco" and "Uno". These vessels all trade round the coast of the United Kingdom and only occasionally to foreign parts.

3

Very soon after the accident, on 4th August, 1970, the owners of the "Monte Ulia" brought an Admiralty action in rem. In itthey claimed damages for the damage to the "Monte Ulia" herself, and indemnity or contribution in respect of the claims made against them by the Oil Company and others. The writ was headed: "Admiralty Action in rem against the Ships: "Banco", "Petro", "Shell Spirit I", "Shell Spirit II", "Toro", "Ulco", "Uno". It described the plaintiffs as "The owners of the motor vessel 'Monte Ulia'"; and the defendants as the owners of those seven ships, naming them again, at the same time the plaintiffs Issued warrants of arrest for the same seven ships.

4

On 13th August, 1970, the writ was served on the ship "Banco". The original writ was placed on the outside superstructure of the wheelhouse, starboard side. Then it was taken off and a copy fixed In its place. Likewise the warrant of arrest. Similarly on the same day in the same way on four other vessels then in the port, namely, the "Uno", "Shell Spirit I", 'Shell Spirit II" and "Petro".

5

Immediately, on the same day, 13th August 1970, the defendants applied to set aside the service of the writ and warrants of arrest in respect of all the vessels save the "Banco". They offered to put up bail in the value of the "Banco", namely, £135,000.

6

On 14th August, 1970, the Judge (Mrs. Justice Lane) granted he application. She held that only one vessel could be arrested. The plaintiffs appeal to this Court, asking that they may arrest 11 of the fleet of seven vessels. The defendants have undertaken that, if they are wrong and the plaintiffs are entitled to arrest all seven ships, they will put up security to the value of the total fleet.

7

This case requires us to inquire into the Jurisdiction of the curt of Admiralty. Long years ago, in the 17th and 18th enturies, the ordinary mode of commencing a suit in Admiralty as by arrest, either of the person of the defendant or of his goods not only could the offending ship be arrested, but the otherships of the defendant could be arrested also, and any other goods that belonged to him, so long as they were within the Jurisdiction. The object was so as to make the defendant put up ball or provide a fund for securing compliance with the Judgment, if and when it was obtained against him: see Clarke's Practice of the Court of Admiralty in 1743 quoted in The Dictator, 1892 p. at page 311; and the Selden Society's Select Pleas in the Court of Admiralty, Volume 1, page LXiii. In this respect the Court of Admiralty in those days exercised a Jurisdiction which obtained in foreign countries too, and still prevails in many of them today.

8

The Courts of Common Law were, however, jealous of the Jurisdiction of the old Court of Admiralty and issued prohibitions against it. They succeeded in cutting down its Jurisdiction a great deal. So much so that its Jurisdiction in rem to arrest goods became limited to a Jurisdiction to arrest the offending ship itself. The right to arrest was conterminous with the maritime lien. Where there was a maritime lien, the right to arrest the ship existed. Where there was no maritime lien, there was no right to arrest the ship. A maritime lien, of course, existed only in respect of the offending ship. It lay for such claims as salvage, wages and collision damages. The claimant had a right to arrest the offending ship for his claim, whenever he could get hold of her. Even if she had been sold to an innocent purchaser for value, still he could arrest her for any claim in respect of which he had a maritime lien: see The Bold Buccleugh (1851) 7 Moore 267. Later on the right to arrest was extended beyond the extent of a maritime lien so as to cover necessaries, see The Heinrich Bjous (1885) 10 P.C. 44. But it only applied to arresting the ship itself for which the necessaries were supplied. It did not apply to any other ship. Finally, in 1935, this Court held that the procedure in rem to arrest a ship only applies to the ship to which the cause of action relates. It does not apply to a ship or other property ofthe defendant unconnected with the cause of action: see The Beldis, (1936) P. 51.

9

I ought to pause here to add a word so as to avoid confusion. If the defendant an appearance, the action in rem proceeds Just as an action in personam. If Judgment is entered against the defendant, it can be executed against any of his property within the Jurisdiction, be it his other ships or any other goods. A Writ of fi. fa., or other writ of execution, can be issued against his property but only after judgment has been obtained: see The Dictator (1892) P. 304; The Gemma (1899) P. 285; The Duplex (1912) P. 8. If no appearance is entered, however, the action remains, as it began, an action in rem only, operating only against the ship arrested. If Judgment is entered in default of appearance, it can be enforced by sale of the ship, but not against the defendant personally, c.f. Castrique v. Imrie (1870) L.R. 4 H.L. at page 432.

10

Such was the state of the law when Parliament enacted the Administration of Justice Act, 1956. But, before I come to it, I would tell of the International Convention-which preceded it. It is now fully established that when an Act of Parliament is passed so as to give effect to an International Convention, we can look at the Convention so as to help us to construe the Act, see Salomon v. Commissioners of Customs & Excise (1967) 2 Q.B. 116; Post Office v. Estuary Radio Limited (1967) 1 Q.B. 740; and this is so even though the Act of Parliament does not mention the Convention.

11

In 1952 there was an International Convention held at Brussels. It was held because of the different rules of law of different countries about the arrest of seagoing ships. Some countries, like England, did not permit the arrest of any ship except the offending ship herself: whereas many continental countries permitted the arrest, not only of the offending ship, but also of any other ship belonging to the same owner. In the result a middle way was found. It was agreed that one ship mightbe arrested, but only one. It might either be the offending ship herself or any other ship belonging to the same owner; but not more. This was an advantage to plaintiffs in England because it often happened previously that, after a collision, the offending ship sank or did not come to these shores. So there was nothing to arrest. Under the Convention the plaintiff could arrest any other ship belonging to the same owner whenever it happened to come to England.

12

I need not set out all the articles of the Convention. I need only set out those which are particularly apposite:

13

Article 1(1) defines a Maritime Claim. It includes "damage caused by a ship either in collision or otherwise"

14

Article 1(2): "Arrest" means the detention of a ship by Judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a Judgment".

15

Article 3(1): "…… a claimant may arrest either the particular ship in respect of which the maritime claim arose, or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship………………".

16

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