Carleton v O'Regan

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 01 January 1997
• Neutral Citation: [1996] IEHC 54
• Docket Number: No. 7587P/1993
• Court: High Court
• Date: 01 January 1997

[1996] IEHC 54

THE HIGH COURT

No. 7587P/1993

CARLETON v. O'REGAN

(ADMIRALTY)

THE M.V."UNA ALAN" AND THEM.V."JANORA"

BETWEEN

PETER CARLETON

PLAINTIFF

AND

DENIS O'REGAN

DEFENDANT

Citations:

CIVIL LIABILITY ACT 1961 S46(2)

CIVIL LIABILITY ACT 1961 S46(3)

MARITIME CONVENTIONS ACT 1911 S8

GAZ FOUNTAIN, THE 1987 2 LLOYDS REP 151

ALBANY, THE & THE MARIE JOSAINE 1983 2 LLOYDS REP 195

AL TABITH, THE & ALANFUSHI 1993 2 LLOYDS REP 214

MYRTO, THE 1987 2 LLOYDS REP 1

SEASPEED AMERICA, THE 1991 1 LLOYDS REP 150

DORAN V THOMAS THOMPSON & SONS LTD 1978 IR 223

BOYCE V MCBRIDE 1987 ILRM 95

TRAYNOR V FEGAN 1985 IR 586

KLEINWORT BENSON LTD V BARBRAK LTD 1987 2 LLOYDS REP 1

ASIANAC INTERNATIONAL PANAMA & TRANSOCEAN TRANSPORT CORP V TRANSOCEAN RO-RO CORP 1991 1 LLOYDS REP 150

Synopsis:

PRACTICE & PROCEDURE

Preliminary issue - whether time for commencement of action should be extended - delay in issuing proceedings - s.46(2) Civil Liability Act 1961 - claim in damages - limitation period for maritime actions - two years from date of damage or loss - discretion of court - whether special circumstances or "good reason" for delay - no explanation for delay given - Held: Extension of time not granted - (High Court - Barr J. - 14/10/1996) - [1997] 1 ILRM 370

|Carleton v. O'Regan, The M.V. "Una Alan" and the M.V. "Janora"|

1 JUDGMENT delivered by Mr. Justice Barron the 14th day of October, 1996

2 This matter comes before the court on Notice of Motion for trial of a preliminary issue pursuant to the order of the Master made on the 29th day of April, 1994. It raises a net question for determination i.e. whether, in the light of the circumstances of the case, the court should exercise its discretion to extend time for commencement of the action beyond the period specified in Section 46(2) of the Civil Liability Act, 1961pursuant to the power granted to it in that regard in Section 46(3) of that Act.

THE FACTS

3 The facts are not in dispute and are as follows:-The Plaintiff was at all material times the owner and skipper of the trawler MFV "Una Alan" and his home port was Castletownbere, Co. Cork. The defendant at all material times was the owner and skipper of the trawler MFV "Janora" which also fished out of Castletownbere. On 24th August, 1991 the "Una Alan" while tied up to a quay at Castletownbere was struck by the "Janora" as the latter was approaching the quay. On the following day on being approached by the plaintiff, the defendant admitted colliding with the "Una Alan". He did not deny responsibility for the occurrence but stated that he did not think that he had done any damage at the time.

4 Both parties informed their respective insurers about the accident. It appears that the alleged damage to the plaintiff's vessel did not affect her seaworthiness and for that reason it was decided to defer repairs until the next annual overhaul of the trawler. In fact repairs commenced on 27th October, 1992 in conjunction with annual maintenance. The defendant's P&I Club, the Shipowners Mutual Protection and Indemnity Association (SOP) were informed accordingly and responded by letter to the plaintiffs P&I Club, British Marine Mutual Insurance Association (BMMI) by letter dated 5th November, 1992 as follows:-

"Janora - C/W Una Alan 24/8/91

Thank you for your fax of 28th October advising us that repairs were currently being undertaken on the Una Alan.

We, accordingly, instructed a surveyor to attend the repairs and report on the work being undertaken. We have now had the chance to review our surveyor's initial report and it is clear that the repairs that are being carried out aretotally unreasonable in relation to the damage involved and the age of the vessel.

In the circumstances we will have no alternative but to dispute the quantum if your Member attempts to recover the full cost of the repairs currently being carried out."

5 I am satisfied that this letter creates a clear impression that the defendant's insurers were not disputing liability for the collision but that there was a real dispute as to the amount of the claim which SOP regarded as totally unreasonable having regard to the actual damage done and the age of the vessel.

6 On 20th August, 1993, i.e. three days before the expiration of the statutory time limit for commencing proceedings, BMMI sent a fax to SOP in the following terms:-

"We refer to previous correspondence in connection with the above terminating with your letter of 5th November, 1992.

we would advise that permanent repairs to the "Una Alan" have been completed and payment was made to our Member in March 1993. However, we are still awaiting full details of his Loss of FishingClaim.

In view of the above and the approach of the time limit in this case we should be grateful to know by return Fax that you are agreeable to extend the time limit by a further twelve months to, say, 24th August, 1994. As you are awarewe have not requested Security in respect of our Member's claim and hope that this will not be necessary at this stage."

7 On the same date SOP responded to BMMI by fax as follows:-

"Thank you for your fax of 20th August.

We are relieved to note that you can confirm permanent repairs to the UNA ALAN have been completed. As these repairs were carried out towards the end of last year, we presume by now all the repair bills have been settled and that your Member has submitted a claim against his Hull insurance against your goodselves. If this is the case we would be grateful if you would provide us with a copy of the relevant subrogationreceipt.

As repairs were deferred for over a year, until a time convenient to the Member, we do not see that there can be any valid claim for loss offishing.

we have passed your request for a time extension to our Member and we will revert with their response in due course."

8 By fax dated 26th August, 1993 BMMI responded to SOP and furnished the details which they had requested. They also commented on the claim for loss of fishing and concluded with the following paragraph:-

"In the meantime we await your confirmation on the time extension as requested on the 20th August."

9 It will be noted that the time limit had then already expired.

10 SOP replied by fax dated 29th September, 1993 as follows:-

"We refer to your fax of 26th August and our telconyesterday."

11 We have no instructions to grant a time extension and it therefore appears that the claim is timed-barred.

12 We are closing our file."

13 BMMI replied to SOP by fax and letter dated 1st October, 1993 asfollows:-

"We refer to your fax letter of the 29th September from which it is noted that you are now endeavouring to hide behind a statutory time bar.

As our initial faxed letter was dated prior to the time bar date with a request for your return agreement on the time extension it goes without saying that your response is both disappointing and totally unacceptable. We are, therefore, left with no alternative but to commence proceedings which will now require the additional cost of obtaining leave of the court. On this point we have no doubt that given the previous open correspondence exchanged we would have no difficulty in obtaining such leave.

Similarly as we are now obliged to commence an action, appropriate measures for obtaining security by way of arrest will also have to betaken."

14 Proceedings commenced in this court by plenary summons dated 5th November, 1993.

THE LAW

15 The limitation period for the commencement of maritime actions as between vessels founded on negligence is, per Section 46(2) of the Civil Liability Act, 1961, a period of two years from the date of such damage or loss. However, the court is granted a discretion to extend time by sub-section(3) of Section 46 which is in the following terms:-

"(3) Any court having jurisdiction to deal with an action to which subsection (2) of this section relates may, subject to any rules of court, extend the period referred to in that subsection to such extent and subject to such conditions as it thinks fit..."

16 The foregoing provision carries over into the Act of 1961 a similar discretion granted to the court by Section 8 of the Maritime Conventions Act, 1911 which remains in force in English law. The latter section also provides for a similar limitation period of two years from the happening of the event which gives rise to the claim. I have been referred, inter alia, to three judgments of Sheen J., the Admiralty judge of the Queen's Bench Division, regarding applications under Section 8 of the 1911 Act for extensions of time for commencement of proceedings in which the learned judge laid down principles to be appliedin the exercise of judicial discretion in that regard. It is not without interest that in all three cases he refused to extend time. The first judgment is THE "GAZ FOUNTAIN" [1987]2 Lloyds Report 151. The facts were broadly similar to the matter under review. The plaintiffs" vessel while at anchor was damaged by thedefendants" vessel while manoeuvring to go alongside the former. Protracted settlement negotiations took place between the respective P&I clubs. A series of extensions were agreed between the clubs for a total period of five years from the date of the casualty. Two weeks after the expiry of the last extension, the plaintiffs issued a...