Bowen Marine Ltd v The Ship “Nice Vice” et Al
| Jurisdiction | Grenada |
| Judge | Alleyne, J. |
| Judgment Date | 24 September 1996 |
| Neutral Citation | GD 1996 HC 18 |
| Docket Number | No. 124 of 1996 |
| Court | High Court (Grenada) |
| Date | 24 September 1996 |
High Court
Alleyne, J.
No. 124 of 1996
Mr. Gregory Delzin for the plaintiff.
Mr. Carol Bristol, Q.C., Mrs. Linda Grant and Mr. James Bristol with him for the defendants.
Practice and procedure - Arrest of ship — Action in rem — Plaintiff filed an action in rem against the ship “Nice Vice” in respect of its construction and equipment — Defendant company added as second defendant by consent order — S.3(4) Administration of Justice Act 1956 (U.K.) provided that an action in rem could only be brought against the person who would be liable in personam — Finding of the court that the defendant was not the person who would be liable for the claim in an action in personam and consequently an action in rem under s.3(4) was not competent — Finding of the court that the order to join the second defendant was a nullity — Declaration that the proceedings were outside the jurisdiction of the court — Writ and all subsequent proceedings set aside.
On 29 th February 1996 the plaintiff filed an Admiralty Action in rem against the ship “Nice Vice” for the sum of U.S.$19,292.30 in respect of the construction and equipment of “the defendant's ship or vessel” known as “Nice Vice” in pursuance of a contract made between the plaintiff and the defendant on 9 th December 1994.
On the same day the plaintiff filed an affidavit by Janelle Bowen-Chow, Managing Director of the plaintiff, leading a request for a warrant to arrest the said ship and also filed a request for a warrant to arrest the ship, a warrant to arrest signed by the Registrar, an application for caveat against release of the ship, and a caveat against release, signed by the Admiralty Marshal.
The writ, was served on the “Nice Vice” by the Marshal of the High Court on 1 st March 1996, as appears by his affidavit sworn and filled on 7 th March.
The Registrar, by letter dated 1 st March 1996, informed all relevant authorities that the ship had been arrested and should not be cleared for sailing without further instructions from the Registrar.
On 4 th March 1996 Grant, Joseph & Co., Solicitors, entered appearances for the defendant in keeping with the form of appearance provided for in the Colonial Court of Admiralty and Vice Admiralty Procedure Rules 1883; which all parties agree are the Rules which govern the procedure in such actions in Grenada.
The Rules make no provision for conditional appearance or anything of the nature of conditional appearance. The attention of the court was drawn to Rule 207, importing the practice of the Admiralty Division of the High Court of England in any case not provided for in the Rules. Assuming that there is a deficiency in the Rules in this regard, we would have to look at the current Rules governing Admiralty practice in the High Court in England. These can be found in the Rules of the Supreme Court, which, by Order 2 apply to Admiralty proceedings. The current rules do not make provision for conditional appearance, but by 0. 12 R.1, provides for acknowledging service, and by the current practice, as indicated by the note to 0.12/1/1 at (d) (1993 of the White Book), if the defendant wishes to contest the proceedings, either on the merits or on a point of jurisdiction or irregularity, he must return the acknowledgment of service to the court office and must give notice that he intends to contest the proceedings. No distinction is now made between contesting on the merits or on the jurisdiction.
Concurrently with filing the appearance Grant Joseph & Co. filed a notice to the Judge in Chambers for an order, inter alia, setting aside the writ and all subsequent proceedings as disclosing no reasonable cause of action against the defendant. This notice was supported by an affidavit of Anthony MacLeish filed on behalf of the defendant.
On 6 th March, the plaintiff filed an application in chambers for inter alia, an order to join ANRO AGENCIES LTD. (hereinafter ANRO) as a defendant, for interrogatories and discovery, and that further hearing of the motion dated and filed on 4 th March 1996 be stayed pending the receipt of answers to interrogatories and discovery, and the plaintiff's affidavit in reply. This application was supported by an affidavit sworn by Leslie-Ann Seon, an Attorney-at-Law in the firm of Renwick & Payne, Solicitors for the plaintiff.
On 8 th March the parties consented to an order on both applications, that is to say the defendant's application of 4 th March and the plaintiff's application of 6 th March. That Order included the joinder of ANRO as a defendant, orders for interrogatories and discovery, and for the further conduct of the action for the release of the ship upon the filing of a bond for $75,000.00 as security, to be provided by the defendants, and an injunction against the removal of the ship from the jurisdiction. No reference was made to the matter of the application to strike proceedings, nor to the plaintiff's application that further hearing of the defendant's motion in that regard be stayed pending the receipt of the answers to the interrogatories and discovery application, and the filing of the plaintiff's affidavit learned counsel for the plaintiff asks me to infer from this that, the defendants should be taken to have abandoned their challenge to the proceedings on the jurisdictional issue, and to have submitted to the jurisdiction, by reason whereof they are estopped from arguing against the jurisdiction of the court at this stage. I do not think I can draw any such inference.
In compliance with the consent order, interrogatories were served and answered, affidavits were filed and exchanged, and discovery took place. Voluminous documentation was exchanged.
On the hearing of this matter on 23 rd August, learned senior counsel for the defendants, Mr. Carol Bristol, Q.C., sought to make an objection in limine to the proceedings. Learned counsel for the plaintiff, Mr. Delzin, objected to that procedure. However, the court ruled that the submission would be heard.
The Admiralty jurisdiction of this court is grounded in the Administration of Justice Act 1956 of the U.K. 4 & 5 Eliz 2. c. 46. incorporated into the law of Grenada by the Admiralty Jurisdiction(Grenada) Order, Statutory Instrument No. 1661 of 1964. That Statutory Instrument, by Clause 3 declares that, subject to certain adaptations and modifications, the provisions of sections 3, 4, 6, 7 and 8 of Part 1 of the Act of 1956 shall extend to Grenada. Clause 2 applies section 1 of the Act as modified thereby.
The Act, as it applies to Grenada and as relevant to the issues before me provides as follows:–
Section 1 (1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims —
(n) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues.
Section 3 (1) Subject to the provisions of the next following section, the Admiralty jurisdiction of the High Court may in all cases be invoked by an action in personam.
(2) The Admiralty jurisdiction of the High Court may in the cases mentioned in paragraphs (a) to (c) and (s) of subsection (1) of section one of this Act be invoked by an action in rem against the ship or property in question.
(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, the admiralty jurisdiction of the High Court may be invoked by an action in rem against the ship, aircraft or property.
(4) In the case of any such claim as is mentioned in paragraphs (d) to (r) of subsection (1) of section one of this Act, being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, the Admiralty jurisdiction of the High Court may (whether the claim gives rise to a maritime lien on the ship or not) be invoked by an action in rem against (a) that ship, if at the time when the action was brought it is beneficially owned as respects all the shares therein by that person.”
The present claim is one that falls within the confines of paragraph (n) of subsection (1) of section 1 of the Act. Therefore this Court has jurisdiction to hear and determine such a claim. That however, is not the end of the matter. The question remains whether it was competent for the plaintiff to bring an action in rem, as opposed to an action in personam against the defendant, i.e. the ship “Nice Vice”.
The jurisdiction to hear and determine a claim under paragraph (n) of subsection (1) of section one may be invoked by an action in personam or, in certain cases, but only in certain cases, in rem. An action in rem is competent where the claim is within the categories defined in subsection (2) of section three, that is under paragraphs (a) to (c) and (s) of subsection (1) of section the Act. This is not such a claim.
Both parties agree that this is not a case which gives rise to; a maritime lien. Consequently subsection (3) of section 3 does not apply.
We are left then with subsection (4) of section 3. What are the essential...
To continue reading
Request your trial