Shipsey v British and South American Steam Navigation Company Ltd

• Jurisdiction: Ireland
• Judgment Date: 17 December 1936
• Date: 17 December 1936
• Court: Supreme Court (Irish Free State)

Shipsey v. British and South American Steam Navigation Co.

THOMAS SHIPSEY, Secretary of the Commissioners for Improving the Port and Harbour of Waterford, representing the said Commissioners

and

THE BRITISH AND SOUTH AMERICAN STEAM NAVIGATION CO., LTD.

Supreme Court.

Practice - Service out of the jurisdiction - Obligation imposed by a local and personal Act - Whether a "contract" within Or. XI, r. 1 (f), Rules of the Supreme Court (Ir.), 1905 - Liability of the owners of a ship which sinks in the fairway of a harbour for the cost of the dispersal of the wreck - Whether liable in "tort" within Or. VI, r. 2, Rules of the High Court and Supreme Court, 1926 - Waterford Harbour Act, 1846 (9 & 10 Vict. ch. ccxcii) - Harbour, Docks, and Piers Clauses Act, 1847 (10 Vict. c. 27) - Waterford Harbour (Dry Dock) Act, 1868 (31 & 32 Vict. ch. xcvi) - Waterford and New Ross Harbours Act, 1874 (37 & 38 Vict. ch. cxvi) - Waterford Harbour Order, 1904, confirmed by the Pier and Harbour Orders Confirmation (No. 2) Act, 1904 (4 Ed. 7, ch. clxxxiv) - Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), sects. 530 to 534 - Waterford Harbour Act, 1910 (9 & 10 Geo. 5, ch. xlii).

By Or. XI, r. 1 (f) of the Rules of the Supreme Court (Ir.), 1905, service out of the jurisdiction may be allowed whenever the contract which is sought to be enforced was made within the jurisdiction, and by Or. VI, r. 2, of the Rules of the High Court and Supreme Court, 1926, such service may also be allowed where the action is founded on a tort committed within the jurisdiction.

The Supreme Court held, reversing Hanna J., that a statutory obligation imposed by a local and personal Act was not a contract, and therefore not within the terms of Order XI, r. 1 (f) of the Rules of the Supreme Court (Ir.), 1905.

The Supreme Court also held (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting) that the owners of a ship, which has been mined at sea and has been towed into port and sinks in the fairway, who are by statute liable for the expenses of the lighting and buoying and dispersal of the wreck, are not liable on a cause of action founded in tort, and therefore not within the terms of Or. VI, r. 2, of the Rules of the High Court and Supreme Court, 1926.

Accordingly liberty to issue and serve out of the jurisdiction a plenary summons, which was indorsed with a claim for such expenses, could not be granted.

Per Kennedy C.J.: It is very important that, in a matter of the international comity of Courts, the High Court, when making an order giving leave for service out of the jurisdiction, should specifically mention in the order the particular class of action within which the Court decides the intended action to full, so as to confine jurisdiction to allow service out of the jurisdiction within the express terms either of Order XI of the Rules of the Supreme Court (Ir.), 1905, or of Order VI of the Rules of the High Court and Supreme Court, 1926.

Motion on Notice for an order that the order of Hanna J., dated the 30th July, 1935, giving leave to issue and serve a plenary summons out of the jurisdiction be discharged.

The said order of Hanna J. ordered that Thomas Shipsey, representing the Commissioners for improving the Port and Harbour of Waterford, as plaintiff, be at liberty to issue an originating summons against the British and South American Steam Navigation Company, Limited, as defendants, for service out of the jurisdiction; and thereupon, that service of the said summons and of the order of Hanna J., to be made on the said defendants at their registered office at No. 4 St. Mary Axe, London, be good and sufficient service of the said summons.

The plaintiff's claim as indorsed on the said plenary summons was as follows:—

"The plaintiff's claim is against the defendants as owners of the steamship "Hermione" on the 14th day of April, 1917, when the said vessel became a wreck within the limits of the Port and Harbour of Waterford for:—

"1. The sum of £906 1s. 10d., being balance of all expense incurred by the Commissioners for improving the Port and Harbour of Waterford of lighting and buoying the said wreck, and

2. The sum of £4,708 12s. 10d. being the expense incurred by the Commissioners for improving the Port and Harbour of Waterford of removing, dispersing, or destroying the said wreck.

The said two sums, making together the sum of £5,614 14s. 8d., which said sums are payable by the defendants to the Commissioners for improving the Port and Harbour of Waterford under and by virtue of the following statutes, namely, 9 & 10 Vict. ch. ccxcii; 31 & 32 Vict. ch. xcvi; 37 & 38 Vict. ch. cxvi; The Waterford Harbour Order, 1904, confirmed by the Pier and Harbour Orders Confirmation (No. 2) Act, 1904 (4 Ed. 7, ch. clxxxiv)."

The affidavit of the plaintiff, upon which the application to Hanna J. for the order was made, stated that the defendants were a Company, incorporated in England, and had their registered office at No. 4 St. Mary Axe, London, E.C. 2. They carried on business as shipowners and were, on the 14th day of April, 1917, and subsequently, the owners of the steamship "Hermione," then registered at the port of Liverpool.

On or about the 14th April, 1917, the "Hermione,"which was laden with horses and a general cargo and was on her way from the Argentine to England, was struck by an enemy mine when about one and a half miles from the Coningbeg Lightship off the Wexford coast. She was taken in tow by H.M.S. "Daffodil" and brought into Waterford Harbour where she anchored in the fairway about 8 p.m. The master and crew who had been taken off the"Hermione" then returned on board and attempted to clear the engine room and holds of water but these attempts proved futile. The ship sank in about 26 feet of water and became a total wreck. On the following morning the crew and the horses were taken off and landed at Waterford. The wreck became at once a dangerous obstruction to other vessels using the harbour.

The Salvage Association, which had insured the cargo, salved a considerable portion of the cargo up to 17th August, 1917.

The master remained at Dunmore East for some time after the wreck, attending to the business of the owners in connection with the wreck, and, by arrangement with him, the Commissioners kept a light on the wreck. Messrs. R. P. Houston & Co. of Liverpool were the managers of the ship. The Standard Steamship Owners Mutual War Risks Association, Limited, were the insurers of the hull or underwriters. On the 14th August, 1917, the Commissioners took possession of the hull, the cargo remaining on board.

On the 16th August, 1917, Messrs. Charles Taylor & Co., managers for the underwriters, wrote to the Commissioners stating that, on behalf of the underwriters, they abandoned and disclaimed any interest in the vessel and that they did not propose to do anything with regard to the removal of, or dealing with, the wreck.

On the 18th August, 1917, the managers gave notice to the Commissioners that the "Hermione" had become a total wreck, and that they had abandoned her and all interest in her, and did not propose to take any further steps with regard to salvage.

Between 15th April, 1917, and the 28th July, 1932, the Commissioners spent £3,238 13s. 5d. in lighting and buoying the wreck. They received from the sale of cargo and material salved the sum of £2,332 11s. 10d., leaving a sum due to them in respect of the cost of lighting and buoying of £906 1s. 10d.

The Commissioners advertised for tenders for the removal of the wreck and in 1924 concluded a contract with Mr. Henry Ensor for the sum of £4,650 for the removal thereof. Mr. Ensor subsequently died without having completed the removal and no payment was made in respect of said contract.

In March, 1929, the Commissioners concluded a contract with Messrs. Thomas Round & Sons of Scarborough for the removal of the wreck for the sum of £4,600. The removal of the wreck was completed on the 28th day of July, 1932, by the contractors, and the Commissioners paid to them the sum of £4,600 on the 13th day of October, 1932.

The defendant Company having refused to pay the sum claimed, the plaintiff applied on 30th July, 1935, to Hanna J. for leave to issue the said summons for service out of the jurisdiction, and Hanna J. granted leave, making the order already set out.

On the 16th August, 1935, the defendants entered an appearance in the action without prejudice to an application to set aside the plenary summons which had been issued on the 2nd August, 1935, the service thereof on the defendants, and the order, dated 30th July, 1935, under which the same was served.

The defendants then brought the present motion for an order that the order of Hanna J. of 30th July, 1935, be discharged and that the plenary summons issued pursuant thereto and the service thereof be set aside, on the grounds that the said summons disclosed no cause of action in respect of which the Court had jurisdiction to make an order for service out of the jurisdiction, and that the case was not a proper one for service out of the jurisdiction of the Court.

This application was grounded on the affidavit of Harold James McCarraher, the secretary of the defendant Company, in which he stated that the defendants were a Company incorporated in England and never had any registered place of business within the jurisdiction of the Irish Free State. Referring to the statutes upon which the claim was based in the indorsement of claim, he stated that under sect. 97 of the Waterford Harbour Commissioners Act, 1846, power was given to the Commissioners to remove a wreck and not to destroy it, and that the owner made liable by that section was the owner at the time of removal only, and not the owner at the time that the wreck became an obstruction. That the Waterford Harbour (Dry Dock) Act, 1868, incorporated certain clauses of the Harbour, Docks, and Piers Clauses Act, 1847, but did not incorporate sect. 56...