059-NLR-NLR-V-72-P.-J.-DAVID-carrying-on-business-under-the-name-and-style-of-the-Mobile-Marine-.pdf

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SIVA SUPRAMAXIAM, J.—David v. The Ship “ Periolos "
OrDER made in the course of an action in rem instituted by theplaintiff against the motor vessel " Pcriolos
R. D. C. de Silva, for the plaintiff.
J.W. Subasinghe, with T. ]Vickramasinghe, -for the owners ofm. v. ** Periolos
Mervyn Fernando, Crown Counsel, for the Receiver of Wrecks.
Cur. adv. vult.
February 21, 1909. SrvA Supramajsiam, J.—
This is an action in rem instituted by the plaintiff on 2oth March 19GSagainst the motor vessel Periolos ” which is at present grounded on areef within the territorial waters of Ceylon. The plaintiff claims a sum ofRs. 35,4S0‘40 as value of necessaries supplied and cost of repairs effectedand services rendered. On the application of the plaintiff a writ ofsummons and warrant of arrest issued and the vessel was arrested on12th June 196S.
On 25th June 1963 the receiver of wrecks, Colombo (hereinafter referredto as the receiver) filed an affidavit and moved that the warrant be with-drawn and the vessel be released from arrest. The owners of the ship—Palizada Corunania Naviera S. A.—have entered an appearance and they,as well as the plaintiff, have objected to the motion of the receiver. Thepresent enquiry is into that motion.
The relevant facts, as they appear from the documents produced bythe parties, may be summarised as follows :—
(a) The vessel is of Greek origin and is owned by Messrs PalizadaCompania Naviera S. A. (hereinafter referred to as the owners).She arrived at the port of Colombo on 31st August 1967 fromMadras for repairs and was lying in the harbour after repairswere effected. On 16th October 1967 the Master Attendantordered her to be moved to anchorage outside the harbour tomake room for another vessel. On tlie night of 20th Octoberthere was a heavy storm during which the vessel broke hermoorings. The master was unable to steer her into the highseas and she was grounded on a reef. On 31st October the crewwere repatriated and on the 17th December the master leftCe3'lon:
(i>) During the relevant period Pegasus Ocean Services Ltd. of Londonwere agents of the owners of the ship. McLaren & Co. of Colombo(hereinafter referred to as McLarens) were the agents in Colombo
SIVA SUPRAMANIAM, J.—David v. The Ship “ Pcriolos ”
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of Pegasus Ocean Services Ltd. and attended to the requirementsof the ship and paid the customs and other dues when sheentered the port on 31st August for repairs. After the ship wasgrounded on 20th October, McLarens were in general charge ofher and attended to the repatriation of the crew. Theyalso employed watchmen to keep watch on the ship until 17thFebruary 19GS.
On 25th January JOGS, by letter XI, the Principal Collector of
Customs who was also the Superintendent of Wrecks directedMcLarens to hand over to the receiver the articles that had beenremoved by them from the ship and also requested them, interalia, “ to produce evidence of the title to the ship claimed by theowners
On 17th February 1068 the services of the watchmen were discon-
tinued by'McLarcnsoninstructionsrcceivcd-from-PcgnsusOccnnServices Ltd. in view of the heavy expenditure incurred onaccount of their wages. On the same day, by letter O 20,McLarens informed the receiver of the instructions received bythem to discontinue the watchmen. The receiver, whileacknowledging thatlctter, informed McLarens by letter O 22 thathe was taking steps to appoint watchmen “ to guard the wreck ”.On 23rd February 19GS naval personnel were appointed to watchthe ship on behalf of the receiver.
(c) A notice under date 23rd February 196S (X 9) was published in theGovernment Gazette of Sth March 19G8 by the receiver statingthat under Section 14 of the Wrecks and Salvage Ordinance(Cap. 267) (hereinafter referred to as the Ordinance) he had takenpossession of the “wrecked vessel”. Before the Gazette noticeapjieared, by letter O 25 of 25th Februaiy 19G8 McLarensinformed the receiver that they, as agents of the owners, hadnot abandoned the ship.
{/) In November 1967 the Captain of the Navy wrote letter O S toMcLarens intimating the desire of the Roj'al Ceylon Navy tosalvage the vessel on a “ no cure-no pay ” basis and requestingpermission for two Naval personnel to visit the vessel forpurposes of inspection. McLarens accepted the offer and sentthe necessary permits. On 12th January 1DG8 by letter 0 15the Captain of the Navy informed McLarens that the salvageteam was of opinion that the vessel could be safely salvaged. On24th January 196S by letter O 17 Pegasus Ocean Services Ltd.authorised McLarens to have the vessel salvaged by the RoyalCeylon Navy on a “no cure-no pay” basis. By letter O 18 of31st January 1968 McLarens instructed the Captain of the Navyto undertake the salvage operation. By letter O 23 of 23rdFebruary 1968 the Captain of the Navy informed McLarens that
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SIVA S O' PR A M A XIA M, J.—David v. The Ship " Periolos "
he understood that the vessel was being abandoned and his offerto salvage the ship may be treated as cancelled. On the nextday by letter O 24 McLarens informed the Captain of the Navythat they were surprised to hear from him that the vessel wasabandoned nnd affirmed that they “ as agents for the owners ofthe Periolos have not abandoned the vessel
Although McLarens were negotiating with intending purchasers to
sell the vessel on behalf of the owners, the naval personnel whowere watching her on behalf of the receiver refused to permitanyone to inspect her. A complaint in regard to this mattermade by McLarens to the receiver was ignored by the latter whocalled upon McLarens to deliver to him whatever keys thatwere in their custody to the cabins and rooms of the ship andto furnish the information called for b3* letter XI of 25thJanuary 196S.
By letter X 13 dated 11th March 196S the receiver informed
McLarens that he was unable to accept them ns agents of theowners in the absence of proof of ownership and of agency andthat he had taken possession of the “ wrecked vessel " underSection 14 of the Ordinance and his demand for the keys wasunder Section 5 of the Ordinance.
On 25th March 196S McLarens forwarded the keys to the receiver
along with letter X 16 stating that tlie3r were handing the ke'S“ as agents to the owners of the S.S. Periolos without prejudice tothe owner’s rights of ownership and possession ”. Since 23rdFcbruar3" 196S the vessel has remained in the possession of thereceiver.
Although several grounds were set out in the affidavit, learned CrownCounsel pressed his motion on the following grounds :—
That the vessel Periolos is a wreck and is in the lawful possession
and control of the receiver in terms of the provisions of the■ Ordinance.
That, section 529 of the Merchant Shipping Act of IS9-4 of England
is applicable to t’C3'Iou and in view of the provisions of thatsection this Court lias no jurisdiction to issue a warrant of arrestagainst the said “ wreck **..
That no action in rem lies and, in a 113' event, no warrant of arrest can
issue against a vessel which is not navigable and which is not
co
under the immediate control of a Master and crew. I
I shall now proceed to examine the said submissions but, before doingso, I should record that on the facts set out-above I find that when thereceiver took possession of the vessel on 23rd Februarv 1968, McLarenswere in constructive possession of her on behalf of the owners and thatat no stage did thc>‘ abandon such possession.
SIVA SUPRA MAXIAM, J.—David r. The Ship “ Periolos "
The first question for consideration is whether the receiver wasempowered under the Ordinance to take possession of the damaged shipand to compel the agents of tho owners to deliver to him the keys of thecabins and other rooms in the ship. Sections 3 to 10 of the Ordinance setout the powers and duties of the receiver when he receives informationthat “ any ship or boat is stranded or is in distress at any place on thoshore of the sea or of an}* tidal water within the limits of Gcylon ”. Section3 casts on him the duty to “ forthwith proceed to such place and take thecommand of all the persons present, and assign such duties to eachperson and issue such directions as he may think fit, with a view to thepreservation of such ship or boat, and the lives of the persons belongingthereto, and the cargo and apparel thereof’*. But it is not lawful for him“ to interfere between the Master of such ship or boat and his crew inmatters relating to the management thereof unless he is requested so to doby sueh master”. Section 5 provides that “ all cargo and other articlesbelonging to sueh ship or boat as aforesaid that may be washed on shore,or otherwise be lost or taken from such ship or boat, shall be delivered tothe receiver ” and empowers the receiver, inter alia, “ to fake such cargo orarticle by force from the person refusing to deliver the same” to him.This section, however, has no application to a case where an owner or hisagent who is in possession of such ship removes anything therefrom. Inthe group of sections 3 to 10 there is none which empowers the receiver totake possession of the ship in the circumstances in which it was taken overby him in the instant case.
•
Learned Crown Counsel did not rely on any of the aforesaid sections tojustify the action of the receiver in taking over the possession of the ship.His submission was that the ship was a ** wreck ” within the meaning ofthe Ordinance and that the receiver was entitled to take possession of any** wreck ” within the territorial waters of Ceylon. Sections 12 to 15, 22 (6)23 and 24 of tho Ordinance deal with the powers and duties of the receiverin regard to “ wrecks ”. Section 12 sets out the rules to be observed by“ any person finding or taking possession of wreck within Ceylon ”.
If the person is the owner of the Avreck he is required to give notice to thereceiver that he lias found or taken possession of the same ; if he is not theowner, he is required to deliver the same to the receiver. Where “ wreck ”is secreted or is in the possession of some person who is not the owner or isotherwise improperly dealt with, Section 13 empowers the receiver toobtain a warrant from a Justice of the Peace and to search for, seize, anddetain such wreck. Section 14 requires the receiver, within 48 hours aftertaking possession of any wreck, to cause to be posted up in the nearestcustom house a description of the same and to give further publicity asdirected by the Principal Collector of Customs. Under Section 24, if noowner establishes his claim to the wreck before the expiration of a yearfrom the date at which the same came into the possession of the receiver,the receiver is authorised to sell the wreck. Sections 22 (b) and 23empower the receiver to detail and sell, if necessary, a wreck to paysalvors where salvage is due and is not paid by the party liable.
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SIVA S UPR AM AN JAM, J.—David v. The Ship “ Periolos ”
In order to determine whether any of the aforesaid sections apply tothe instant case, it is necessary to examine, in the first instance, whetherthe vessel in question was a “ wreck ” within the meaning of the Ordinance.According to the interpretation section contained in the said Ordinance“ wreck ” includes jetsam, flotsam, lagan, and derelict found in or on theshores of the sea or any tidal water The definition is intended to give awider interpretation to the word “ wreck ” than its ordinary connotation.'The ship in the instant case did not, of course, fall within the category ofjetsam, flotsam, or lagan. Nor did it fall within the category of a derelict.To constitute a derelict there should be an abandonment of the ship at seaby the master and crew without hope of recovery. “ There must be nospes recuperandi and no animus reverlendi and this depends on the state ofmind of the master and crew at the time .when they quitted the vessel ”.(Vide the sjjeech of the Lord Chancellor in Bradley and others v. NcivsumSons di Co. Ltd.1)
It was decided in Sir Henry Constable's case (English Reports 77 King’sBench 21S) that 44 nothing shall be said 4 wreceum maris ’ but such goodsonly which are cast or left on the land by the sea .. -. and none of
these goods which are called jetsam, flotsam, or lagan are called wreckas long as they remain in or upon the sea ; but if any of them by the sea beput upon the land, then they shall be said wreck”. Coke in his Institutes(vol. 2 page 167) says “ wreckc of the sea in legal understanding is appliedto such goods as after shipwreck at sea are-by the sea cast upon theland. ….”
•Learned Crown Counsel submitted that the aforesaid definition of wreckmay have been appropriate in the Elizabethan era but cannot be appliedin modern times. I find myself unable to agree. The Ordinance waspassed in 1S61 and the provisions contained therein are taken over mainlyfrom the English Merchant Shipping Act of 1S5-1. In the English Statutethe word is used in its common law meaning. The definition of t: wreck ”in Constable’s case was adopted with approval by Brett L. J. in the courseof his judgment in the case of Cargo ex Schiller -. The Statute 17 & ISViet. c. 10-1 which Brett L. J. was construing in that case gave to the term" wreck ” the identical meaning given in the Ordinance. Halsbury(3rd edition Vol. 3n page 721) says 44 wreck may be defined as property castashore within the ebb and (low of the tide after shipwreck”. The ship inthe instant case was not property that was cast ashore and was not!t wreck ”within the meaning of the Ordinance. The receiver had accordingly, nolegal right to take possession of her.
Even if the term “ wreck ” is given a wider meaning than the one givento it under the common law and is interpreted to include a totally disabledship, as contended for by learned Crown Counsel, there in no provision inthe Ordinance which empowered the receiver to take possession of thevessel in question after it-had been grounded. Section 12 of the Ordinance ■
1 1J0 Law Times 230 at page 211.
1 (IS76-1S77) Probate Division Vol. 2 p. 1/5.
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SIVA SUPRAMAXIAM, S.—David v. The Ship " Pcriolos "
whichjrefers to a person “ finding or taking possession of wreck withinCeylon ” can have no application to a case where the owner of a shipwhich had become a " wreck ” continues to be in possession of it throughhis agent. The provisions of section 14 of the Ordinance requiring thereceiver to give publicity to a description of the wreck that had been takenpossession of by him are obviously intended to enable the owner to estab-lish his claim under Section 24. This procedure would be meaninglesswhere the wreck has been taken possession of by the receiver from theowner or his agent. Section 13 of the Ordinance which gives the receiverthe power to seize concealed wreck expressly excludes the case of a wreckwhich is in the possession of a person who is the owner thereof.
If it was the intention of the Legislature that the receiver should takepossession of as “ wreck ” a ship that is grounded and is non-navigableeven though such ship is in the possession or custody of the owner or hisagent, express provision would have been-made in the-Statute. to thateffect and the procedure to be adopted in regard to the disposal of suchwreck would have been prescribed. There is express provision in theOrdinance empowering the receiver to detain a Avrecked ship and to sellher if necessary, in cases where salvage is payable to anyone in respectof saving her and the owner or other person responsible has failed tomake such payment. In the instant case there was no question of a claimby anyone for salvage. The receiver himself had incurred no expensesin respect of the sliip until after he took possession of it.
The receiver appears to have been misled by the intimation given to himby McLarens on behalf of the owners that they were withdrawing thewatchmen but he was not justified in ignoring the further intimation givenby them that their withdrawal of thewatchmen should not be interpreted tomean that they were abandoning the ship. I find that the receiver had nolawful authority to take possession of the vessel in question and to demandfrom McLarens the surrender of the keys. Sections 5 and 14 of theOrdinance on which the receiver relied have no application to the facts inthis case.
In view of the aforesaid finding it is unnecessary to consider the questionwhether Section 529 of the Merchant Shipping Act of 1S94 of Englandapplies to Ceylon and, if so, whether that section is a bar to this Courtexercising jurisdiction and issuing process against a ship which is a" wreck
There remains to be considered the last submission of learned CrownCotinsel that no action in rem lies and, in any event, no warrant of arrestcan issue against a vessel which is totally disabled and which is not-underthe immediate control of a Master or crew. No authority was, however,cited in support of that proposition. The nature and scope of an
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ticngasamy v. Me Inlyrb
action in rem in maritime law make it clear, on the other hand, that thatproposition is untenable. McGuffie, Fugeman and Gray in their treatiseon Admiralty* Practice (British Shipping Laws vol. 1) state at para. 69 :
“ lies against which an action in rem may bo brought include :
(a) In all cases : a ship, that is to say any description of vessel usedin navigation, and all her equipment and wreck oj the ship orequipment including flotsam, jclsant, lagan and derelict.”
As regards the issue of a warrant of arrest, the same authors state{Ibid para. 231.) :
" The basic principle of an action in rem is that a res may be arrested.”
Halsbury states : “ When a plaintiff has duly procured the issue of awrit of summons, he may even before the service of a writ apply for awarrant for the arrest of the property against which the action lias beenbrought.” (Laws of England, 3rd Edition vol. 1, p.rge 74.)
In the instant case, the plaintiff, who sues inter alia for the value, ofnecessaries supplied, is entitled to maintain the action in rem and to havethe res arrested until his claim is settled.
The motion of the rc-ccivcr is accordingly refused with costs. Theaction will-proceed as between the plaintiff and the defendant.
Motion of the receiver oj wrecks refused.