This case arose out of an injury suffered by an Indian chief engineer onboard a Marshall Islands flagged vessel in the territorial waters of England and Wales.
The vessel, whilst anchored close to shore, began to drag anchor in deteriorating weather conditions. The decision was taken by the Master to weigh anchor however the locking pin securing the guillotine bar jammed preventing the anchor from being weighed. The Chief Engineer was called to investigate the problem. Once on the forecastle, a large wave broke over the bow knocking the chief engineer heavily against a bollard. He was subsequently taken ashore for hospitalisation.
The Chief Engineer brought a claim in the English Court in tort against the defendant owners for damages and obtained permission to serve the claim form out of jurisdiction, following which a successful judgment was obtained. The defendants brought an application to have the judgment set aside by challenging the jurisdiction and in addition arguing forum non conveniens.
Challenging Jurisdiction
The claimant submitted that the court had jurisdiction since the tortious event occurred whilst the vessel was in UK territorial waters.
Territorial waters are a source of much diplomatic squabbling between neighbouring states and to this day the demarcation of large swathes of the world’s coastal seas are still the source of much contention. That said, the United Nations Convention on the Law of the Sea (UNCLOS) established in 1982 has gone some way to allow States which are party to territorial disputes to reconcile their differences. Section 2 Article 3 provides:
“Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”
Most states which have ratified UNCLOS have invoked the above right and the UK is no exception: In the Territorial Sea Act (1987), the UK territorial sea is defined as "… the sea extending 12nm from the baseline*.”
For the most part the territorial sea of the UK extends for 12nm and does not adjoin that of any other state. Where it does so in the English Channel; the Territorial Sea (Limits) Order 1989 (SI 1989/482) sets out the limits of the territorial sea in accordance with an agreement between the UK and France. In this particular case the vessel was sheltering from heavy weather near the shoreline and was unquestionably within the territorial sea of England and Wales.
The claimant served a claim form out of jurisdiction with permission of the court under Practice Direction 6B paragraph 3.1 of the Civil Procedure Rules, which provides:
"...
(1) The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where –
(9) A Claim in tort where –
(a) damage was sustained within the jurisdiction; or
(b) the damage sustained resulted from an act committed within the jurisdiction
..."
In defence it was argued that the above practice direction had to be construed in light of the definition of “jurisdiction” in CPR Part 2.3, which provided;
“ …
(1) In these Rules – ‘jurisdiction’ means, unless the context requires otherwise [emphasis added], England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales.
…”
The defendants contended that in the circumstances of the present case the context did require otherwise. It was argued by the defendants that English common law rules should be aligned with European rules and, more specifically, EU Council Regulation (EC) No 44/2001 (“Brussels I”) upon which the primary basis for jurisdiction is the domicile of the defendant.
The court could find no English authority which suggested that the European rules on jurisdiction should apply and concluded that “where a tort was committed entirely onboard a foreign ship in the territorial waters of a littoral state, it was the laws of the littoral state and not the law of the flag which applied”.
Practice Direction 6B paragraph 3.1(9)(a) alternatively allowed consideration of where the damage was suffered. Following the incident the Chief Engineer was taken ashore in Bristol where he entered hospital before being transferred to London for further treatment. The majority of the pain and suffering experienced was sustained in the jurisdiction and consequently sufficient to found jurisdiction as held in Booth v Phillips [2004] EWHC 1437.
Whilst it was only necessary to satisfy one of the limbs of Practice Direction 3.1(9), in this instance the claimant satisfied both and in consequence of which the court held it had jurisdiction to entertain the claim.
Would the position have been different had the courts accepted that English common law rules should be aligned with “Brussels I”? The answer is that it is unlikely; whilst “Brussels I” is founded on the principle that the defendant’s domicile has primacy of jurisdiction, there are certain exceptions in a few well defined situations, one being under Chapter II S.2, Article 5(3) which provides that a person domiciled in a Member State may, in another Member State, be sued: “… In matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur."
Forum Non Conveniens
Counsel for the defendants also argued that even where the court had jurisdiction it should be declined on the grounds of forum non conveniens. Such a plea relies upon the discretionary power of the court to decline to exercise a possessed jurisdiction whenever it appears that the cause before it may be more appropriately heard elsewhere. It also presupposes that there is more than one forum in which the claimant can bring their claim. In this instance the defendants argued that the Indian courts were the most appropriate jurisdiction for the claim, reasoning that:
(i) The claimant’s contract of employment was subject to Indian law, and
(ii) The witnesses dealing with the factual aspects leading up to the accident, i.e. the Master and crew, were Indian.
With respect to the former argument, as the claim was brought in tort, the claimant’s contract of employment was irrelevant and, for the reasons set out above, it was the physical location of the ship which was relevant.
With respect to the latter, the Admiralty Court was well accustomed to matters of seamanship and although the crew were Indian, only the Master would likely be required to give evidence in person. Furthermore since the claimant’s injuries were not yet admitted, and may have been disputed, medical evidence would be necessary which was largely available in England and not India.
The court concluded that all points considered, the English Admiralty Court was the proper forum for the determination of the claim.
Set Aside Judgement
Lastly the defendant applied to have the default judgement set aside. To do so required the defendants to convince the court that the merits of the defence had a prospect of succeeding. They could not and the default judgment was upheld.
This judgment serves as a reminder that tortious events occurring in the territorial waters of a littoral state are subject to the laws of the littoral state and not the flag state of the vessel. It can also be said that this is the position under European Rules and, more specifically, “Brussels I”.
Saldanha v Fulton Navigation Inc (The “Omega King”) QBD (Admlty Ct)(Jervis Kay QC, Admiralty Registrar) 10 May 2011
Article by Dean Forrest
* Baselines form the basis of many of the disputes between neighbouring states, for the purpose of this article the baseline can be considered as the mean low water mark.
