Act Shipping (PTE) Ltd v Minister for the Marine

• Jurisdiction: Ireland
• Judgment Date: 07 February 1995
• Date: 07 February 1995
• Docket Number: [1991 No. 2400P]
• Court: High Court

ACT Shipping (PTE) Ltd. v. Minister for the Marine

ACT Shipping (PTE) Ltd.

Plaintiff

and

The Minister for the Marine, Ireland and The Attorney General, Defendants

[1991 No. 2400P]

High Court

International law - Customary international law - Whether international custom evolved into Irish domestic law - Whether Constitution inhibiting such evolution - Constitution of Ireland, 1937, Article 15, s. 2, sub-s. 1.

Admiralty - Foreign ship in distress - Right of refuge - Nature and scope of the right - Whether State having right to refuse refuge - Whether entitlement to statutory compensation - Oil Pollution of the Sea (Amendment) Act, 1977 (No. 15), s. 3.

Administrative law - Ministerial decision - Intra vires - Expertise - Whether court should interfere - Whether ministerial decision to refuse was unreasonable - Test to be applied.

Article 15, s. 2, sub-s. 1 of the Constitution of Ireland, 1937, provides as follows:—

"The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State."

The plaintiff was the owner of a cargo vessel. On the 20th February, 1990, when the vessel was situated some 270 miles south-west of Bantry, it was discovered that there was a hole in the hull and water had flooded its hold. The following day the vessel was abandoned by her captain and crew. On the 23rd February, 1990, a salvage vessel (contracted by the plaintiff) attached a tow-line to the vessel.

Soon after the tow commenced on the 23rd February, 1990, on the advice of the chief surveyor in the Department of the Marine, the Minister for the Marine decided to refuse the vessel entrance to Irish territorial waters and the benefit of a port or anchorage of refuge in Ireland.

The salvage firm decided to tow the vessel to Falmouth, England. In bad weather and sea conditions the damage to the vessel worsened and on the 3rd March, 1990, having been refused refuge at Falmouth, the vessel was beached. Eventually, in the month of April, 1990, the vessel was declared a constructive total loss by the insurers and was scuttled in deep water.

The plaintiff instituted proceedings in the High Court claiming damages for negligence and damages and/or compensation pursuant to the provisions of s. 3 of the Oil Pollution of the Sea (Amendment) Act, 1977. In the High Court, it was submitted on behalf of the plaintiff that the decision of the Minister was in contravention of the vessel's right of refuge according to customary international law.

Held by Barr J., in dismissing the plaintiff's claim, 1, that customary international law recognised that foreign ships in serious distress had a prima facie right to the benefit of a port or anchorage of refuge in the nearest maritime state which had available such facilities.

2. That established principles of customary international law could evolve into Irish domestic law provided that they were not contrary to the provisions of the Constitution, statute law or common law.

In re Ó Laighléis ó laighléis [1960] I.R. 93 followed.

3. That since customary international law evolved from a practice or course of conduct which in time became widely accepted it was not law made in the sense envisaged by Article 15, s. 2, sub-s. 1 of the Constitution and, accordingly, that provision of the Constitution did not inhibit the evolution of customary international law into Irish domestic law.

4. That, alternatively, the international custom in maritime law whereby a ship in serious distress is entitled to a safe refuge was so long established that it was deemed to have been absorbed into Irish domestic law prior to the enactment of the Constitution in 1937, and therefore Article 15, s. 2, sub-s. 1 was not applicable.

5. That since the right of refuge had evolved from customary international law into Irish domestic law the State was answerable in its domestic courts to the plaintiff for unlawful failure to honour it.

6. That the right of refuge was not an absolute right and was primarily humanitarian rather than economic.

7. That, where, as in the instant case, safety of life was not a factor, the State had a right in customary international law to refuse a ship refuge if there were reasonable grounds for believing that there was a significant risk of substantial harm to the State or its citizens if refuge was given and that such harm was potentially greater than that which would result if the ship and/or her cargo were lost through refusal of refuge.

8. That the courts should be loath to interfere with intra vires administrative decisions on the merits, particularly where the decision-maker was acting within his own area of professional expertise. Further, that a court should interfere only if it was established that the decision flew in the face of reason and common sense.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 and The State (Keegan) v. Stardust Compensation Tribunal[1986] I.R. 642 applied.

9. That the Minister's decision to refuse the vessel entrance into Irish territorial waters was not at variance with reason and common sense.

10. That the Minister did not and could not rely on the Act of 1977, to refuse the vessel refuge and, accordingly, the Act was irrelevant to the circumstances of the case and the plaintiff was not entitled to compensation under the Act.

Cases mentioned in this report:—

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 K.B. 223; [1947] 2 All E.R. 680; 63 T.L.R. 623; [1948] L.J.R. 190; 177 L.T. 641; 112 J.P. 55; 92 Sol. Jo. 26; 45 L.G.R. 635.

Breen v. The Minister for Defence [1994] 2 I.R. 34.

Chief Constable of the North Wales Police v. Evans [1982] 1 W.L.R. 1155; [1982] 3 All E.R. 141; 126 Sol. Jo. 549.

Council of Civil Service Unions v. Minister for the Civil Service[1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935.

King v. The owners and all persons claiming an interest in the La Lavia, Juliana and Santa Maria de la Vision (Unreported, High Court, Barr J., 26th July, 1994).

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

In re Ó Laighléis ó laighléis [1960] I.R. 93; (1961) 95 I.L.T.R. 92.

Shannon Regional Fisheries Board v. An Bord Pleanála [1994] 3 I.R. 449.

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642; [1987] I.L.R.M. 202.

The State (Sumers Jennings) v. Furlong [1966] I.R. 183.

West Rand Central Gold Mining Company v. R. [1905] 2 K.B. 391; (1905) 74 L.J.K.B. 753; 93 L.T. 207; 53 W.R. 660; (1905) 21 T.L.R. 562; 49 Sol. Jo. 552.

Plenary summons.

The facts have been summarised in the headnote and are fully set out in the judgment of Barr J., infra.

On the 15th February, 1991, the plaintiff issued a plenary summons, and on the 7th October, 1991, delivered a statement of claim, seeking damages from the defendants for negligence and breach of duty (including breach of statutory duty). In addition, the plaintiff claimed from the first defendant compensation and/or damages pursuant to s. 3 of the Oil Pollution of the Sea (Amendment) Act, 1977.

On the 19th November, 1993, the Master of the High Court fixed the issues to be tried.

The case came on for hearing before the High Court (Barr J.) on the 3rd May and the 8th, 9th, 10th, 14th, 15th, 17th, 21st, 22nd, 23rd, 24th, 28th, 29th and 30th June, and the 1st July, 1994.

Cur. adv. vult.

Barr J.

I accept the veracity of the following facts:—

The plaintiff is a limited liability company incorporated in the Republic of Singapore and at all material times was the owner of the cargo vessel M.V. Toledo. It is a subsidiary of a German registered company, A.C. Toepfer, which carries on at Hamburg the business of ship owning and management. In 1990 the latter managed the M.V. Toledo for and on behalf of the plaintiff. In February of that year the vessel was on time charter to the Blue Anchor Line. She was built in Bremen in 1978 and is a fifteen thousand tonne timber and bulk carrier. The bridge, accommodation and engine room of the vessel are situated aft and there are four cargo holds forward, that nearest the engine being No. 4, the aft bulkhead of which separated it from the engine room and the forward bulkhead from the No. 3 hold. The M.V. Toledo was built and was subsequently maintained in accordance with the rules of Germanischer Lloyd which is a major maritime classification society.

The vessel had been used extensively as a timber carrier and had special deck fittings in that connection. In February, 1990, she was loaded with a cargo of approximately 14,000 metric tonnes of muriate of potash in bulk at New Brunswick, Canada, for delivery at Fredericia in Denmark. The M.V. Toledo departed from New Brunswick on the 13th February, 1990, en route for Denmark. She was subject to rotating survey by her classification society under which there had been major hull and engine surveys every four years and numerous subsidiary surveys which were ongoing. All certification regarding such surveys and related matters were in order at the commencement of her voyage from Canada. She had been loaded with cargo and stores just below her maximum permitted lines. Her actual draught on departure was 8.871 metres forward and 9.25 metres aft. It is not in dispute that the vessel had been properly trimmed. Each hold was fitted with hatch covers comprising independent steel pontoons which were locked together and appropriately secured so as to exclude all ingress of water from above. The hatch cover for No. 4 hold comprised seven steel pontoons.

When three days out from New Brunswick the M.V. Toledo encountered heavy weather in the North Atlantic. Severe adverse weather and sea conditions continued, with only a short respite on the 23rd February, 1990, for much of the following ten days. For most of that time the vessel was subjected to gale, storm or hurricane conditions in very rough seas.

On the 20th February, 1990, the...