HEDE NAVIGATION (PTE) LTD(OWNERS OF M. V. “SHANTHA ROHAN")
SUPREME COURTFERNANDO, j. PERERA. J. ANDW1JETUNGA, J.
S. C. APPEAL No. 32/9 LAC. A. No. 103/84H. C. COLOMBO No. 18/8319™ JULY, 1993.
Admiralty jurisdiction – Jurisdiction of the High Court of Colombo as on318.1983 – Admiralty Ordinance. No. 2 of 1891 : Admiralty Rules of 1883- The (U. K.) Administration of Justice Act of 1956 – Administration ofJustice Law No. 44 of 1973- Sections 3, 23 and 54 oj'the Law -JudicatureAct No. 2 of 1978- Sections 13 and 62 oj'the Act – Interpretation oj'statules.
Prior to 1.1.1974 on which date the Administration of Justice Law.No. 44 of 1973 (“the AJL") was promulgated, admiralty jurisdiction wasexercised by the Supreme Court as the "Colonial Court of Admiralty"under the Ceylon Admiralty Ordinance, No. 2 of 1891, having the samejurisdiction as the High Court of England and applying the AdmiraltyRules made by Order-in-Council dated 23.8.1883. Thereafter, admiraltyjurisdiction was defined by the (U. K.) Administration of Justice Act of1956.
Section 3(l)(a) of the AJL repealed the Ceylon Courts of AdmiraltyOrdinance, but the Admiralty Rules were kept alive by section 3(2).Section 23( 1) enabled admiralty jurisdiction to be vested in a High Court:and section 54 defined admiralty jurisdiction to mean “until otherwiseprovided for by written law. the admiralty jurisdiction of the High Courtof England", and thereby kept in force the (U. K.) Administration ofJustice Act of 1956.
Section 62 of the Judicature Act No. 2 of 1978 which came into operationon 2.7.1979 repealed Chapter I (which included sections 23 and 54 butnot section 3) of the AJL. Section 13(1) vested admiralty jurisdiction inthe High Court to be exercised by a Judge of the High Court sitting in theJudicial Zone of Colombo; and section 13(2) provided that admiralty
Umbichy Ltd. v. Hede Navigation (Pte) Ltd. (Owners of
M. V. “Shantha Rohan") (Fernando, J.)
Jurisdiction of the High Court “shall be as provided for by law for thetime being in force". Consequently, the (U. K.) Administration of Justice'Act of 1956 ceased to be applicable; and the question arose whetherbetween 2.7.1979 (the effective date of the Judicature Act) and 31.10.1983(the date immediately prior to the coming into force of the AdmiraltyJurisdiction Act, No. 40 of 1983) the High Court had jurisdiction overadmiralty claims. The long title of Act No. 40 of 1983 describes it interalia, as “an Act to amend and consolidate the law relating to admiraltyJurisdiction".
The particular issue between the parties before the High Court ofColombo was whether it had jurisdiction on 31.8.1983 to entertain anddeal with the appellant's claims for the arrest of the respondent's vesselfor damage to cargo and breach of the contract of carriage.
The High Court of Colombo did have jurisdiction on 31.8.1983 toentertain and deal with the appellant's claim.
Per Fernando. J.
“ considering the history of admiralty jurisdiction, and the
purpose of the Judicature Act, one cannot discover a legislative intent totake away a jurisdiction recognized for almost a centuiy; and the fact thatthe Admiralty Rules were kept in force contradicts any such intention.The Judicature Act was intended to ensure or regulate the smoothworking of the judicial system, and the alternative interpretation whichwill introduce uncertainty, friction or confusion into the working of thesystem must be rejected"
Cases referred to :
Bawazirv. M. V. Ayesha (1986) 1 Sri L. R. 314
Shannon Realties Ltd. v. Ville de St. Michel (1924) A. C. 185.192 – 3
APPEAL from the judgement of the Court of Appeal reported in (1994)
2 Sri L. R. 54.
H. L. de Silva. P. C. with Mono Devasagayam, for the plaintiff – respondent- appellant.
Added defendant – appellant – respondent absent and unrepresented.
Cur. cudv. vult.
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July 27, 1993FERNANDO. J.
The question that arises in this appeal is whether the HighCourt of Colombo had admiralty jurisdiction during the period2.7.79 to 31.10.83.
The first statute conferring admiralty jurisdiction on aSri Lankan Court was the Ceylon Courts of AdmiraltyOrdinance, No. 2 of 1891, section 2 of which declared theSupreme Court to be a "Colonial Court of Admiralty" havingthe same jurisdiction as the admiralty jurisdiction of the HighCourt in England. Although section 22 of that Ordinanceempowered the Judges of the Supreme Court to make rules,that power was never exercised; section 23 provided that rulesmade under the English Vice Admiralty Courts Act, 1863,shall have effect; accordingly, rules made by Order-in-Councildated 23.8.1883 ("the Admiralty, Rules”) applied to theSupreme Court, as the Admiralty Court.
By virtue of section 2 of the Civil Law Ordinance, No. 2 of1852, the law for the time being applicable in England wasmade applicable in Sri Lanka (unless and until other statu ton'provision was made) –
“ in respect of all contracts or questions arising
(in Sri Lanka) relating toships and to the property therein, andto the owners thereof, the behaviour of the master andmariners, and their respective rights, duties, and liabilities,
relating to the carnage of passengers and goods by ships
and generally to all maritime matters."
Section 2 of the Ceylon Courts of Admiralty Ordinancealso required the Supreme Court to have the same regal'd asthe High Court in England “to international law and the comityof nations".
On 1.1.74, the Administration of Justice Law, No. 44 of1973, was enacted. The Ceylon Courts of Admiralty Ordinance
Umblchy UdL v. Hede Navigation (Pte) Ltd. (Owners of
M. V. “Shantha Rohan") (Fernando, J.)
was repealed by section 3(l)(a), but the Admiralty Rules werekept alive by section 3(2). Section 23(1) enabled admiraltyjurisdiction to be vested in a High Court, and section 54defined "admiralty jurisdiction” to mean, "until otherwiseprovided for by written law, the admiralty jurisdiction of theHigh Court of England".
There were various English statutes defining theadmiralty jurisdiction of the High Court in England. The (U. K.)Administration of Justice Act of 1956, had defined thatjurisdiction, and this was kept in force by Section 54.
By section 62 of the Judicature Act, No. 2 of 1978, whichcame into operation on 2.7.79, Chapter I (which includedsections 23 and 54, but not section 3) of the Administrationof Justice Law, No. 44 of 1973, was repealed. Section 13provided :
"13(1) Ad mi rally jurisdiction is hereby vested in the HighCourt and shall ordinarily be exercised by a Judge of the HighCourt sitting in the judicial zone of Colombo.
(2) The admiralty jurisdiction vested in the High Courtshall be as provided for by law for the time being in force."
In consequence of the repeal of section 54, the (U. K.)Administration of Justice Act, 1956, ceased to be applicable.
On 1.1 1.83 the Admiralty Jurisdiction Act, No. 40 of 1983,came into operation; its long title described it as “an Act toamend and consolidate the law relating to admiralty jurisdiction,legal proceedings in connection with ships and the arrest ofships and other property, and to provide for all mattersconnected therewith". Section 2 of that Act defined theadmiralty jurisdiction of the High Court, "notwithstandinganything to the contrary in any other law". There is no doubtwhatsoever that thereafter the High Court had admiraltyjurisdiction. A question arose, however, whether the Admiralty
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Rules were yet in force. The contention that they were notin force was rejected by the Court of Appeal in Bawazir v.M. V. Ayeshctl). It was held that those Rules had beenkept alive by section 3(2) of the Administration of JusticeLaw, No. 44 of 1973, notwithstanding the repeal of theprincipal enactment.
On 31.8.83 the Appellant applied for a writ of summonsand a warrant of arrest of the Respondent's vessel, in respectof a claim for damage to cargo and breach of the contract ofcarriage; the vessel was arrested on 1.9.83. The Respondent'ssubmission that the High Court of Colombo had no admiraltyjurisdiction under the Judicature Act, was rejected on 30.8.84by the High Court, which held that it had the admiraltyjurisdiction of the High Court of England as set out in theAdministration of Justice Act, 1956. On appeal, the Court ofAppeal reversed that order on 1.3.91, and this appeal isagainst that order.
When this appeal came up for hearing, two years later.Counsel appeared, instructed by a registered attorney-at-lawwho held the Respondent's proxy; he stated that neither henor his instructing attomey-at-law had instructions fromtheir client, that the Respondent had not taken steps to enableCounsel to be retained to appear at the hearing of the appeal,and that he was not making any application for a postponement.Thereupon another Counsel requested a postponement,asserting that the Respondent’s attorney in Sri Lanka hadsought to retain him to appear at the hearing of the appeal, butthat pending clarification of certain matters he had not in factbeen duly retained to appear; he did not suggest that theRespondent had taken, or had sought to take, any stepsto revoke the proxy granted to the registered attomey-at-lawon record. We indicated to Counsel that he had no statuswhatsoever to appear, or to make any application, on behalfof the Respondent. There was no excuse whatever for theRespondent’s failure to take steps to retain Counsel, and wedecided that there was no reason to postpone the hearing. It
Umbichy Ltd. v. Hede Navigation (Pte) Ltd. (Owners of
M. V. “Shantha Rohan") (Fernando. J.)
is in those circumstances that the Respondent was absent andunrepresented at the hearing of the appeal-.
The only question for decision is whether the High Courtof Colombo had jurisdiction to entertain the Appellant’s actionon 31.8.83 and to proceed to deal with it thereafter. LearnedPC for the Appellant submitted that the undoubted intentionof Parliament, in enacting section 13 of the Judicature Act,was to confer admiralty j urisdiction on the High Court; the factthat the Admiralty Rules were kept in force confirmed thatintention; those Rules sufficiently indicated the nature of thepowers of the Court, and how they should be exercised, andthus demarcated the scope of the admiralty jurisdiction of theHigh Court. In interpreting a statute which purports to conferjurisdiction, the maxim uf res magis valeat quam pereat wasapplicable (Maxwell, 12th ed., p. 45); even if there was anambiguity, that interpretation should be preferred whichgives effect to the statute rather than that which wouldcreate a lacuna in the law, or reduce the legislation to futility.He further submitted that rules defining jurisdiction wereprocedural, rather than substantive; that the presumptionagainst retrospective operation does not apply to proceduralrules; and that, in any event, upon the enactment of theAdmiralty Jurisdiction Act, No. 40 of 1983, the High Courtmust be deemed to have had admiralty jurisdiction as from31.8.83.
I entertain grave doubts as to the last submission; noprinciple or precedent was cited in support of the propositionthat an action instituted in a court which lacked jurisdiction- which action ought therefore to have been immediatelyrejected on that ground – would nevertheless become valid andproper if jurisdiction was later conferred on that court. I preferto rest my decision on other grounds.
Section 13(1) vested "admiralty jurisdiction" in the HighCourt. That section, taken as a whole, is capable of twoconstructions. The first view is that “admiralty jurisdiction"
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is exhaustively defined by sub-section (2), i. e. as beingsuch jurisdiction, and only such jurisdiction, as is providedfor by law for the time being in force; there being no such lawin force on 31.8.83. the High Court had no jurisdiction.However, section 13(2) seems somewhat wider than the usual(exhaustive) definition clause, which would have providedthat admiralty jurisdiction in section 13(1) "means suchjurisdiction as is conferred (or provided for) by the law for thetime being in force". Had there been a statute which providedfor admiralty jurisdiction, such statute would have applied,even if section 13(2) had been omitted: to that extent section13(2) is superfluous. In any event, even if it be regarded as adefinition clause, it is more in the nature of an inclusive, ratherthan an exhaustive, definition.
The second interpretation is that “admiralty jurisdiction"in section 13(1) did have a meaning, independently ofsub-section (2); namely, the ordinary meaning of the phraseconsidered in the context of the preceding one hundred years;the special characteristic of admiralty jurisdiction, ascommonly understood, was that it recognised an action in reinwherein a vessel could be arrested, or seized as security for thesatisfaction of the claim if successful; and the nature andextent of that jurisdiction could also be ascertained by aconsideration of the powers conferred or recognised bythe Admiralty Rules. That interpretation, however, renderssection 13(2) superfluous, as even without it Parliament couldlater have amended or added to the admiralty jurisdiction ofthe High Court.
1 have therefore to choose between an interpretationwhich renders section 13(1) a futility, and another whichrenders section 13(2) superfluous. Considered in isolation, thefirst interpretation seems more logical. But considering thehistoiy of admiralty jurisdiction, and the purpose of theJudicature Act, one cannot discover a legislative intent to takeaway a jurisdiction recognised for almost a century; and thefact that the Admiralty Rules were kept in force contradicts
Umbichy Ud. u. Hede Navigation (Pie) Ltd. (Owners of
M. V. "Shanlha Rohan") (Fernando, J.)
any such intention. The Judicature Act was intended toensure or regulate the smooth working of the judicial system,and the alternative interpretation which will introduceuncertainty, friction or confusion into the working of thesystem must be rejected (Shannon Realties Ltd. v. Ville deSt. Michel,12' Had section 13(1) stood alone, “admiraltyjurisdiction” would have had to be given a meaning, and thereis no doubt that it would have included a claim for loss of ordamage to goods carried in a ship or a claim arising out of anyagreement relating to the carriage of goods in a ship.
I therefore hold that the High Court of Colombo didhave jurisdiction on 31.8.83, to entertain and deal with theAppellant’s claim. The appeal is allowed, and the order of theCourt of Appeal is set aside. 1 make no order as to costs. TheHigh Court of Colombo is directed to hear and determine theaction as expeditiously as possible.
PERERA, J.- I agree.
WIJETUNGA, J.- 1 agree.