O'Daly v Gulf Oil Terminals Ltd
|Mr. Justice Barrington
|01 January 1983
|1982 WJSC-HC 2507
|01 January 1983
1982 WJSC-HC 2507
THE HIGH COURT
Judgment of Mr. Justice Barringtondelivered the 7th day of July 1982
This is a Motion, brought by the third-named Defendants, pursuant to Order 12 Rule 26 of the Rules of the Superior Courts for the purpose of setting aside or discharging an Order of this Court dated the 17th day of December 1981 authorising the institution of proceedings against the Defendants and the service of Notice thereof on the third-named Defendants, outside the jurisdiction.
The third-named Defendants have not yet entered an appearance to the Summons, notice of which has been, served upon them.
I understand that this Motion is one of thirty-seven Motions all of which will be governed by my decision.
The cases arise out of the disaster which took place on the 8th of January 1979 at the oil terminal at Whiddy Island, Bantry Bay,County Cork, which resulted in the deaths of, among others, the entire crew of the motor vessel Betelgeuse which was at all material times owned by the third-named Defendants. The terminal and jetty were owned and occupied by the first-named Defendants. The first-named Plaintiff is the Administrator of the estate of, and the second-named Plaintiff is the widow and a dependant of, Louis Lasalle a member of the crew of the Betelgeuse who lost his life in the tragedy. The Plaintiffs bring their claim pursuant to the provisions of the Civil Liability Act 1961and claim damages for negligence, nuisance and breach of statutoryduty.
Of the thirty-seven victims with which the thirty-seven Motions are concerned, thirty-five were members of the crew of the Betelgeuse, one was the wife of a crew member, and one was an executive of the third-named Defendant Company. Counsel for the third-named Defendants has invited me to draw the inference that the great majority of the victims died aboard the Betelgeuse. It is clear however that not all of the victims died aboard ship. The bodies of four of the deceased were found on the jetty near Dolphin 22. Counsel for the third-named Defendants agrees that, in certain circumstances, it might be necessary to consider separately the cases of the executive of thethird-named Defendants and the wife of the crew member who perished in the tragedy as well as the cases of those victims whose bodies were found at Dolphin 22.
Counsel for the third-named Defendants submits that the Irish Courts have no jurisdiction to try any of the thirty-seven cases referred to. Secondly, even if there is jurisdiction to try these cases, he submits that the Irish Courts ought, in their discretion, to declinejurisdiction.
I shall deal with the first point first.
Counsel submits that all the victims of the disaster were French nationals, that they were employed under French contracts of service which provided for specific compensation in the event of death or injury, that the ship was a French registered ship, and that in most, if not in all, cases, the victims, even if their allegations of nuisance or negligence are correct, lost their lives as a result of happenings aboard the French ship. What happened, he alleges, took place on French national territory and is governed by French national law. The Irish Courts, he alleges have no jurisdiction in the matter.
I cannot accept this submission. There might be force in thesubmission if it could be shown that, at the time of the disaster, the Betelgeuse was on the high seas and that everything which took place was confined to the ship itself. But the disaster clearly took place in Irish waters and within the jurisdiction of this Court.
For the third-named Defendants to succeed in their application it would be necessary for them to show that the fact that a private ship is registered in France and flies the French flag ousts the jurisdiction of the littoral State in whose waters the ship happens to be.
In Chung Chi Cheung .v. R. (1938 4 All England Reports, Page 786), Lord Atkin, giving the opinion of the Privy Council, decisively rejected this theory even in the case of a foreign warship.
At page 789 of the Report he puts the matter as follows:-
"On the question of jurisdiction, two theories have round favour with persons professing a knowledge of the principles of international law. One is that a public ship of a nation for all purposes either is, or is to be treated by other nations as, part of the territory of the nation to which she belongs. By this conception will be guided the domestic law of any country in whose territorial waters the ship findsherself. There will, therefore, be no jurisdiction in fact in any Court where jurisdiction depends upon the act in question or the party to the proceedings being done or found or resident, in the local territory. The other theory is that a public ship in foreign waters is not, and is not treated as, territory of her own nation. The domestic courts in accordance with principles of international law, will accord to the ship and its crew and its contents certain immunities, some of which are well settled, though others are in dispute. In this view, the immunities do not depend upon an objective exterritoriality, but on implication of the domestic law. They are conditional, and can, in any case, be waived by the nation to which the public ship belongs.
Their Lordships entertain no doubt that the latter is the correct conclusion. It more accurately and logically represents the agreements of nations which constitute international law, and alone is consistent with the paramount necessity, expressed in general terms, for each nation to protect itself from internal disorder by trying and punishing offenders within its boundaries."
Later (at page 793) he continues
"Their Lordships have no hesitation in rejecting the doctrine of exterritoriality expressed in the words of Mr. Oppenheim, which regards the public ship "as a floating portion of the flag state." However the doctrine of exterritoriality is expressed it is a fiction, and legal fictions have a tendency to pass beyond their appointed bounds and to harden into dangerous facts. The truth is that the enunciators of the floating island theory have failed to face very obvious...
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