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World Maritime University Dissertations Dissertations

1989

Enforcement of maritime claims in Jamaica

Hugh Clifton Hyman World Maritime University

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Preliminary

Legal

HUGH

JAMAICA:

OF

Dimension.

CLIFTON Is

Jamaica sues PSA-89

MARITIME

BY

and

HYMAN

the

International

CLAIMS

IN TITLE: PREAMBLE:

ACKNOWLEDGEMENTS:

ABSTRACT:

ABBREVIATIONS:

CHAPTER

A

B

1:

:

:TheAim

The

Introduction

raison

F C D G E

J: H

L I:

K:

:

:

: :

: :

The The The

The Some The Terminology TABLE The

The

Type

d’etre

perspective

international Preliminary preliminary raison pratical

Research

premises

of

(general)

study

d’etre

OF

objectives

and

and

of

Legal legalissues

(Jamaica) CONTENTS dimension

Scope

analysis

its

Methodology

Issues

and

law

pratice CHAPTER

Jamacian

(a)

(b)

(i)

General

Legislation

Jamaican

Law,

A:

B:

1.

2:

(ii)

(iii)

2.

C:

Legal

Sources

General

Literary

Case Jamaica’s

Legal Maritime

Other

Sources

Law

of

Background

Sources

System

Sources

Jamaican

Law

Court

Legal

System

and

Law

Sources

Maritime

(Legal

and

Law

Literary)

24 F:

Jamaican

(a)

Customary

D:

E:

2. 1.

3.

2. 1.

and General Maritime Stare Adjudication

in Maritime

G: (b)

3.

General by International

Jamaican

Sucession

International

Concluding Treaties

Jamaica

Decisis

International

Claims

Arbitration

municipal

Doctrine

by

to

Law

Comments

Pre-Independance the

Law Adjudication

Law

arid

Courts

applied

Law

its

appicability

in

Jamaica

Treaties CHAPTER Jamaican

CHAPTER

Arrest

A:

Introduction

of

Admiralty

A:

B:

C:

D:

Ships E:

3:

2. 1.

3. 4.

Introduction

4: Origins

Present

The Concluding

Ship

The

The

Ship

International

International Concept

Arrest

Arrest

and

Scope

Jurisdiction

Development

Commen

and

and

of

the

Arrest

the

Dimension

Dimension

Maritime

Jamaican

Claimant

Admiralty

Jurisdiction

54

84 5.

6. B:

C:

2. 1.

3.

4. D:

2. 1. Function

3. Historical E:

2. 1. Maritime The F:

Types G: Maritime “Other

Statutory

Effecting

Obtaining

Forced

The Required

Forced

The

“Postscript”:

Concluding law

Arrest

of International

Charges”

governing of

Sale claims

Liens

Sale

Liens

Rights

Arrest Jurisprudential Arrest

Procedures

Release

Convention

of

of

and which

Comments The Arrested

ship

in

Arrest

from Dimension Rem

the

Mareva

and

may

International

- Arrest

of

Ship

international theiries

implications

give

Ships

Injunction

rise

in and

to Jamaica

Dimension

ship

right

stipulations for -

an

Jamaica

arrests

alternative

of

arrest

to

ship

arrest? CHAPTER Jurisdiction

applied?

The

(b)

B:

Whether

International

International

A:

2. 1.

3.

(a)

5: (i) (ii)

(iii)

(c) and (i)

(ii)

(iii)

(d)

Introduction The choice General Municipal

General General

General

In Whether

Court Lis In

If

Foreign

its

Public

Personam

the Rem

Alibi

of

exercise

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Convention

has

court

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Dimension

Actions

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Court International

Jurisdiction

Predens

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issues Framework

exercise’s

Actions

Considerations

wifi in

Provisions Maritime

-

exercise

implications

Clauses

Law

Jurisdiction

Context

Jurisdiction

and

Matters

for

Jurisdiction -

the

which

-

maritime

country’s

and

claimant

law

is

to

be

153 CHAPTER Time

(and

A:

International Limitations

General

C:

6

(1)

(2)

(3) (a)

(b) B: (c)

(d)

(2)

(a)

(b)

(c)

(i)

(ii)

Concluding

Introduction

Policy When Limitation Background

Extention Preventing

Limitation The

Particular Carriage

Maritime

General Claims

of

Claims

Convention

Maritime

effect

time

Considerations

for

against

of

or

claims

stipulations

of Periods

of

starts time Comments

Collision

Goods

Postponment

Actions Maritime

time

provisions)

from

carrier

to

in

having -

by

run

Jamaica

The

Damage

running

sea

Actions

by

General

run

claims of

sea -

Limitation

without

and out

in

in

Principles respect

Jamaica

Salvage

claim

Period

of

Remuneration

Passenger

specific

limitation

Death,

Personal

periods

241 Injury,

CHAPTER

CONCLUSION

BII3LIOGRAPHY: TABLE

TABLE

TABLE

APPENDICES

Loss

of

OF

OF

OF

or

(iii)

(iv)

(3)

(i)

(ii)

(4)

(5) C:

7:

Damage

CASES:

STATUTES: INTERNATIONAL

General

Maritime

Claims Other Maritime International Concluding Time

(1-20):

Limitation Maritime

to

for

considerations

Liens Luggage

Arbitration

Oil

Comments

Convention

Pollution

-

claims

their

in

CONVENTIONS:

Jamaican

proceedings

extinction -

Damage

applying

procisions

Conflict

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six

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lapse

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Jamaican

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profited

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guidance

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from (1989)

at

Lecturers,

Professor

the

Acknowledgements

issues

various

W.M.U.;

from

this

with

and

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of

research

examined.

Professors

forbearance Patrick

Oslo, Professor

discussions

countries.

of

Professor

the

Norway

Alderton,

effort

Sea

Wiliam

Frank

in

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Institute

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has

the

and

writer

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completion

benefitted

my

Braekhus

Tetley,

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course

Conference,

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with

Mcgill

Professor,

of

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Edgar

this

Mensah

the

a Scandinavian

Noordwijk,

University, work.

number

assistance

Gold

for

(IMO

and

his

of Library

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the

in

libraries.

research

Manley

Jamaica;

Records

of

Library,

University

arrangements

Q.C.

Montreal,

I

Also W.M.U.

Law

I

the

wish

Various

wish

and

for

Palais

while Firms

Law

Office,

work

to

the

Lund, their

Mr.

to

Library.

of

Canada,

persons

specially

School

thank

Institute at

of de

Oslo,

Donald

to

assistance

conducted

GARD

London,

Wikborg,

Sweden; facilitate Justice,

the

Norway.

I Library

kindly

was

Davies, thank

of

P&I

Librarians

in

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Montreal, Advanced

availed

there:

Rein my

and

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Club

and

Richard

Esq.

research.

THe &

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The

(Assuranceföreningen

and

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Mcgill at

of

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Canada

assistance Legal

materials

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Jamaican

in

Here,

Oslo,

English following

University

Studies,

much and

and

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way

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thank

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making

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M.W.U.

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Brice

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Norway.

Albert,

attendance

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acknowledge

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for

and

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Robert

Also

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To

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wish

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lecturers, the

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of Canada.

to

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process

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Norway,

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European

provide

possible;

or to others

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Mr. otherwise Bishop

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with

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Terje

still.

Sweden.

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a

to

whom obtained Ruby

gratitude.

Community for

conducive

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However,

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arrangements

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learnt

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Mr.

Bishop

atmosphere

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whose my some

friends

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much,

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U.N.D.P.

space

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Wikborg

Sweden.

students

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Jennifer,

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to

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and

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sufficient remains

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my

all

Hyman

acknowledgements

reflect

on

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for

my

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imprint is

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unfailing

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of

the

and

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inspiration.

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specially

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responsibility

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or To my parents:

Metella and Douglas Hyman scope, terminology,

methodology. which

and

his

Jurisdiction

foundations

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scope

claimant Admiralty

Chapter

Chapter

claim.

Chapter

in

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maritime

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Court. it

perspective

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2

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have

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ABSTRACT

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conceptual

rests.

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what

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and

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development analysis,

broad present

sort

In

thesis

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functions in

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of

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legal

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claims Jamaican

and

including

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of

setting

in

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is

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the

present

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matter arrest

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stipulations

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ship

Also,

Chapter

Chapter

An

implications

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International

arrest.

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jurisdiction

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Arbitration

Law

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Particular 6

jurisprudential

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problems

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discussed.

law

implications

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Time

pertaining

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principles

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of

in

Choice

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Time

to

pertaining

of

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committed

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claimant Jamaica

Jamaican

the

Jamaica to

for

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time

which

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of

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and

Law.

as as

bar

to drawn changes

Chapter

from

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the

7

future

concludes.

study

challenges

are

The

highlighted.

are

main

summarily

inferences

Suggested

noted.

to

be ABBREVIATIONS

C.M.I. Comité Maiitime International

I.L.C. International Law Commission

I.L.O. International Labour Organization

I.M.O. InternationalMaritime Organization

U.K. United Kingdom

U.N. United Nations

U.N.C.T.A.D. United Nations Conference on Trade and

Development

U.N.C .I.T.R.A.L United Noations Commission of International

Trade Law

Y.B.I.L.C. Yearbook of the International LAw Commission Chapter 1

Introduction

1• 1 Chapter 1

INTRODUCTION

A: The raison d’etre (general)

B: The Aim

C. Thepreliminary gal Issues

D: Terminology and Scope

E: The raison d’eWe(Jamaica)

F: The international dimension

G: The Preliminary issues and lawpractice

H: Thepractical objectives

I: Somepremises

J: Theperspective of analysis

K: Type of study

L: The Research and its Methodology

2 that:

enforcement

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is

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in market place to attract utilization of its legal services, by way of upholding nign standards. The fact is “Forum Shopping” is very much a part of international shipping reality today. As Hill observes: “Forum Shopping” is an activity (cynics would call it a sport) which has been commonly practiced by maritime claimants the world 14over”.

This also helps to point to the matter of the international dimension.

F: The international dimension

Jamaica exists in an international maritime community in which international

Convention provisions are more and more providing a setting for the operation of or are otherwise influencing the functioning and development of municipal law.

15Tetley sees the main purpose of international conventions as embodying three principles:

“(1) Uniformity of law

(2) Cerrtainty of law, and

(3) Justice, or a just solution to the problems requiring 16solution.”

This suggests that when Jamaica becomes a party to an international convention, such

as say, The Hague ,it17Rules ought to ensure that its Conflict of laws stipulations do not

frustrate its international commitments.

14 Ibid.,p. vi. 15 Tetley, William: The State of Maritime Law; Canada, U.S., U.K. and France, Meridith Memorial Lectures, 1986, Faculty of Law, Mcgill University, pp 309-404. 16 Ibid., p. 390. 17 Vide: Infra.

12 conventions,

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look

had

meaningfully

dimensions.

an are

approach an

countries.

potentially of relevant.

at canvassed

for at Shipping

approach

significance thought.

relevant what

dimensions

the

ate which

recorded tap. Nevertheless,

Committee,

fertile

by

international would

in

international

in

expressly

should

effect

source

the

extend

deliberations

actual

local I.M.O, be

that

as

convention

incorporates

the taken

deemed

practice maritime

a

maritime

width

country

I.L.O,

into

of

of matters

case

all international

London

involving

put

arrangements

in

than

and issues.

nevertheless see: 23

In

This

Even the foreigners,

Otherwise,

Also

Thus, being

Maritime Vide:

in

drafting,

many

the

Appendix

context

in

place

may

(or

However,

where

cure.

from

maritime

Hyman, Jamaica.24

local

shipped

instances,

elsewhere)

Developáment,

be

maritime

borne

being

advice

of

the for

20

it

may

the

counsel

as

legal may

Hugh

standpoint

to

cases.

a

its in

matter

in

made

choose

result

say,

to local

light

simply

mind.

proceedings.

release,

and

may

and

may

clients

London

to

Caribbean

can

Barnett,

practitioners

of

of

financial

only

avoid

to try

of

be

a

be

the

and have

Jurisdiction

to

negotiations practice,

a

seek

heard

for

Courteny: thesis

litigation. case

avoid

Shipping

in There

the final

centre).

advice

negotiations

where

in

have

future

topic,

these matter

is Jamaica,

determination.23

Journal,

The

17

Clause

always

of

been

In

between

after,

bottlenecks

preliminary

this

Admiralty

local

dealt

this

limited

November

with

the

which

the

aspect

say,

legal

case

with

parties

old

the

foreign

a

Courts

to

vessel results

by counsel their

is

adage

issues

1985,

in just

parties

not careful

especially

and London

legal

parties

addressing

is

p.

that

developed,

in

are

on

prospects

30.

arrested

the

result

contract

not prevention

representatives preliminary

as

(or semi/processed

where

only

pertain

for preliminary in

and

some

but formulation

of

adequate

they

Caribbean

security

is

interest

is

to

issues

other

better

to

such

are

in

be number

H:

The

I:

Discussion

These

2:

1: 3: 4:

Some

2: 1:

The

thesis

relevant To

To

appears To

Jamaican

To

considerations

of

interests cargo-interests

seafarers.

Jamaica

Jamaica

include

analyse, make

make extra-legal

highlight

practical

Premises

thus

as to

law

a a

maritime

aims

the

is

has be

contribution contribution regards

are

discuss

updated

a

at

following:

the

considerations

a

“cargo

which

Objectives to

best

present.

positions.

strong

achieve

international

jurisprudence.

Jamaica’s

and

and

served

the

interests”

towards towards

vested

make

improved.

relevant

the

following

and

at

suggestions

public

interest

clarifying the

rather

dimension

the

preliminary

assumptions.

development

18

policy

present

in than

practical

towards promoting what

a interests

and

issues

“maritime

time

the

objectives:

of

to

having

law

an

might

by

a

the

proceeds

analytical

lesser

is

taking

economic

carrier”

by

particular

entail.

stating

extent

on

(so-called)

framework

country

the

welfare what

areas

the

basis

the policy

of

and

for

of

the

law

pro

of

its

its

a

a 3: Jamaica’s beaches (and other physical marine resources) constitute a vital

economic resource, damage to which, by say, a large oil spill or other pollution to

the marine environment would be extremely harmful to the island’s economy

which today has tourism as its main foreign exchange earner.

4: Jamaica needs to develop as an important part of its basic maritime intrastructure,

its laws both substantive and procedural as well as its adjudicatory machinery.

5: Jamaica needs to set the stage where it can become a significant provider of legal

services and an appealing forum for maritime litigation.

J: The perspective of analysis.

The subject matter of this study may be viewed with different lenses.

One standpoint may be that of a private legal practitioner in Jamaica having to contend with these preliminary questions.

Another might be that of an adjudicator dealing with the issues ex post facto after they

have been “organized”, researched and presented by appearing legal counsel.

Thirdly, the perspective may be that of the policy maker involved in basic questions as

to what rules are in the national interests.

The study although inclined towards that of the first perspective, also attempts to take

into account those of the second and third perspectives.

19 of

methodolgy

given

referred a

advanced

vacuum

such

26 27 25

28

legal

the

The

Here,

For

In

Despite

Analysis

Bos, Ibid., Ibid.,

Vide:

“No law law” among

as

legal

the

1.

one”.27 study

Bos,

already

Maarten:

the to

nor

p. p.

Chapter

by

an

reasoning

or context

26

49. as order

56.

of

the

need

the

the

arguments

such

of attempt is

is

“legal

International

essentially

basic

it

the indicated

utilization

rules

A 2.

one

to

to

of

“recognized

Methodology

law

develop

can

be

sources”.28

Jamaican

nature

is

contained

is

essentially

allowed

viewed employed

purport

made

ultimately

a

of

Law”,

of legal

the

legal

of

the

manifestations

as

to

as

to

content in

International

An to

one.

well

in stated:

study,

takes invoke

one heed reasoning.

self-serving.

be

provide

attempt

this

a

It

or

as

and place ‘legal’

basically

the

study

it

more

International

in

is

20 Law,

efficacy

a

order

is

caution

recognized

practical

against

of one

by

therefore

of

Accordingly,

North-Holland,

law”

utilization entails

these

to

unless

of

legitimize

the

of

are

context

the

Law

made

that

Bos25,

background an

it

“...the

law;

is

analysis

these of

the

1984.

borne

extra-legal

for

to

these

a

law

reasoning

who

buttress

phenomena

the

manifestations

out

of

does

sources.

manifestations of:

legal

in

specified

by

his

the

considerations, not

discussions.

alledged

one

book,

contentions

operate

which

or

aspects

may

more

to

>of

in

“A

in

be

be

a

a 2. perceived national interests; and

3. the provisions of international conventions.

L: The Research and its Methodology29

The research was carried out mainly by way of consulting and analysing various legal publications and other written materials. The writer also had discussions with a number of maritime law experts and other persons in the shipping and legal fields as regards different issues examined.

A wide variety of legal materials was consulted.

These included the following: legislation; reported cases; unpublished court judgments; academic law treatisies; law practioner’s texts; article; seminar papers; periodicals; pamphlets; publications of international conventions; conference and working comniitte reports; Governmental and private sector documents and other writings.

Also consulted were historical, shipping and other materials relating to the area of study.

Court files of Admiralty cases were perused at the Jamaican Supreme Court. Also perused in Jamaica for the purposes of the thesis were files that the writer had worked on.

While at two different International Law Firms (in Canada and Norway, respectively)

which specialise in Maritime Law, and at a leading International P & I Club (in Norway),

further exposure was had to how some of the issues discussed developed and were

resolved in practice.

29 Seealso,supra:“Acknowledgements”.

21 Here again, the writer was, inter alia, involved in the perusal of various files for the purposes of the thesis.

Discussion of some of the issues involved with maritime lawyers in these organizations as well as the preparation of opinions on some of the matters in the said files aided the gathering of relevant information for the thesis.

At the Jamaican Supreme Court, records were consulted as regards the frequency of

Admiralty Cases and related matters.

Much of the legal-historical data in the thesis particularly that contained in Chapter 3 were obtained by the writer consulting old English and Canadian Maritime law publications, various published historical accounts of Jamaica (and other former British colonies), as well as importantly, Jamaican or other West Indian authored legal-historical materials.

Searches were also carried out in respect of Chapter 3 at the Public Records Office,

London.

Overall, written materials for the thesis were collected in Jamaica, Canada, England,

Sweden and Norway and to a lesser extent in Holland.

The research was conducted also by way of mainly informal interviews with a number of maritime jurists, on aspects of the thesis subject area.

Other persons consulted by way of informal interviews were in general from the shipping and law fields in the countries already named.

22 — ,— . flflb,tflfl.flL iLLS was to gain both theoretical and practical insight on matters pertaining to the thesis

subject.

At times there were difficulties getting particular detailed information which were sent for from Jamaica, but on the whole, the necessary information was obtained.

23 Chapter 2

Jamaican Law, Legal System

and Maritime Law

24 Chapter

JAMAICAN

A.

B.

Sources

1

2

General

Legal

a.

b.

Literary

General

Jamaican

i

ii 2

iii

Legislation

Case

of

Other

Sources

Jamaican

LAW,

Background

Sources

Law

Sources

Maritime

LEGAL

Law

Law

(Legal

SYSTEM

Legal

and

Sources

Literary)

AND

25

MARITIME

LAW D.

C.

E.

F.

G.

Jamaica’s

Stare

Maritime

2 Jamaica 3 1

2 1

3

General Adjudication

Maritime

General

International

a, b.

Succession

Concluding

Decisis

Customary

Treaties

and

Claims

Court

Arbitration

Doctrine

International

to

Comments Law by

System

Adjudication

International

pre-independence

the

and

applied

Courts

its

Law

applicability

in

Law

Jamaica

treaties

in

Jamaican

by

26

Jamaica.

Municipal

law island

parliamentary

arms

by

However,

2 1 3 Chapter 4 Jamaican

5 A. 6

7

Jamaica1

those

The

There

See As Association British The Daily of of

The See chapter As West See Labour General

was

distinguished “her

government.

island’s Appendices

distinguished

generally: British

Reception eg. of

Gleaner, an

Indies

has Empire. it

majesty’s 2

the 2.

Law.

Patchett,

is is

English Law,

democracy

Background

of Queen now been English.

an

law

Kiuwer 1972

the

Patchett,

August

of

1

independent from

dominions”:

Legal from &

well and United

English The 1972

is some colony

J.L.J.

2

legally Law Federal for

legal statute 20,

established form

J.L.J. with

K.W.:

basic

Kingdom

67, System

Law controversy and

1989,

from

Head

system

a States law. at vide: of 7,

Taxation Reception data

in separation

unitary2

p. at

p.

government

Jamaica:

1655

of and

p. Haisbury’s on 70; 8A.

such

and

that

State 22; had

Jamaica.

self-governing

Gordon, Jamaica

Publishers;

until

as

of

Fraser,

English about

Maritime

their state

but

W

the

Law of

Laws

1 it

U.S.A. powers plans

is

is

Dorothy L.J.,

in genesis

gained within H

the

that

still

The

the Common

Aubrey: of

are

October

nations

27

and reception England, today,

West of

Netherlands,

Law

of

afoot

independence Claire:

in the a

Canada.

the

constitutional

Legal Indies,

and

in whose

1979,

to Commonwealth law6

Executive,

English 4th

Jamaica: make

today

of

Developments

Edn.,

1972 43; territories

1984.

was

English

Jamaica

legal Grant,

remain

J.LJ.

Vol

received on

International

monarchy.4 Legislative

parlance

August 6.4

originally

V.B.:

7

into

Law

and

strongly

and

of

a

in

Jamaican

Morrison,

Republic: Nations.3 referrable

Law

6,

into

1661.

formed

Encyclopedia

and 1962.

Reform

influenced

Jamaica.5

Land Judicial

C. part

to vide:

It

Dennis: The

as

is

in of

Law,

one

eg. a

the for the English

or

Jamaican

island

difficulties.11

given

Statutes

component

territories

received

9 8

In

10 11 12 13

Thus,

This

Patchett

1 Ibid. 1728 reception Morrison,

See eg. SeeF.N.5

subject

enactments

Geo. before

“English

Merchant ultimately is 1

in

generally:

law

as

of

in

Express statutory

2,

order

of

13

laws...

of particular four C. it such

op

which

then.1°

notes

English

is

2.

Cit.,

Shipping

to

statute

Morrison,

major which section necessary

as

can

extension

determine

“ 45 that:

is confirmation8

that

of

Law”.

Satisfying comprised st.ates relevance

have

ways:

were Jamaica.9 22.

law Act,

under

op

that: to

1894 cit.;

adverse

has

up by

whether

ascertain

consideration.

Grant,

“The to

the to

been

(U.K.);

of

such

then

any

was

Imperial

United

implications

effect

ibid.

an incorporated

consideration

Maritime “...

a

whether given

English

criterion

of

at

Kingdom

the United

Overall,

any

of

Conventions 1728

such

the 28 Act for time

Kingdom is

into

Act

of

continued ascertaining

Parliament the passed

an

fraught esteemed,

Jamaican

however,

the

Act question

Act,

law

prior

was

Statutory

1911

with

operation

was

introduced,

Maritime of of

of the at

to

(U.K.).

particular

to the

any the enormous

1728

law

make

Provisions.12

various

reception

time

on

in

Law, was

user

used,

the

aspects

statutes, “used”

or

the

evidentiary

a West

island

of significant is accepted

criterion

part

English

of in

Indian

either

the of any

of

for power

law.

deemed

necessary

applies

14 15

16

It

By

Accordingly,

Ibid.,

See

See

Jamaican

is

2

3 4

to

the to

Vol

Grant,

to

generally

usually

Adoption

take

applicable incorporation

Adoption

Reception

p. repeal force

be

implication.

Jamaica

Colonial

55.

19,

noted

ibid,

legislation two

Laws

in

made

and

no

England

p. to

through

that by unless

forms

of

to under

English

5.

alter

all

Laws

Jamaica.

repetition by

clauses

any

soon

dependent

the actually

it the

before — the

incorporation

colony

has

Validity

after Statute

statutes

by

statute

common

which

been

of

express

a

dates the

the territories

specified unless

relating

themselves.

incorporated

and do

English

Act,

provisions

back

law

not

common by

incorporation

it

1865,

to

rules specify

date reference to

had

or

settlement,

maritime

at

only

been

usually

least of

relating

(U.K.), in 29

law

indivicual

the

accordnace

to

to

1681.15 extended

of

English

named

(or

Jamaica

that

colonial

of

to

England English

any

named

statutes

of

Acts.

colonies.

other

settlement Acts.

with

thereto

was

legislation.

statute

and

statutes of matter)

the

granted

generally

general

either

foregoing.

Such

or

Law

enacted

conquest.”14

Again a or

extensions

expressly

legislature

application

was

by

to

16

make

this

since

general

not

may

to or

are

with

1655 new

in

by be legislative

section

“shall

provides section

to

government

17

Domestic Caribbean,

Most

However,

the

In

The

is in Constitutions, of

extend

turn, inconsistent provisions

reference “All repeal

(subject 1(2),

4(1)

the

importantly,

Jamaican

that:

Law power

Gold,

constitution:

section laws

of or

provides

of

the any

context,

be

The

to Jamiaca”.

to

Edgar

Constitution

the

with

in

over

pre-existing of

such deemed the amendment

4(1)

doctrine force second

this

English from

it

(ed.),

that

Lecture

Carnegie,

law)

the

such

of

constitution,

in

to

Springer-Verlag,

the

as

island. The

of is

“other

continue

schedule

doctrine

Jamaica

extend

the

parliamentary

notes of

or

date

law

Jamaican

A.

supreme

that repeal

law

Hence,

Ralph:

on

continued of

to

of

shall, in

date immediately

to Parliament

Coastal Jamaica Jamaica’s

parliamentary

force

by

law

The

N.Y.

The sovereignty

to

Constitution

(August

the

The

of

the

Jamaica

on

and

the

1988,

Law

authority in

as

extent

Jamaican

and

independence

island,

may

force

Estuarine part

30

before

of

83

sovereignty

6,

is

after

of

at the

of

ousted

make

1962), Constitution

and

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the

upon

p.

having

the

sea that

87.

the

provides

studies consistency,

Independence

by law

laws

in in

day...” Jamaica’s no

that:

appointed

the

power

,

the

Council,

thereof.”

the

Act

27,

for

superior

(per

“In

Commonwealth

Order

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A

the

of be

the

section

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void.”

independence

the

day

peace, amend provides

Commonwealth

doctrine

Act,

in

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Kingdom

United

2)

shall

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Council

that

1962,

order

or

of

of

Caribbean:

that if

the

the Carnegie

Kingdom

any

and

supremacy

(U.K.),

sea

lost

“subject 196217

Caribean

.

other

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for

good

its

notes

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law

the repeal

inoperative Common

Other

existing

20 21

18 19

Where

B.

Old

Sutton See, ibid,

Gray The

sources

in

Sources

The 1

means

supra

and

pp.

maritime

v

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England

v

a.

b.

Referee

an

in

Thomas

5-6.

primary

often

Legal

(i)

and

General

Jamaica.2°

by

English

include

rule Jamaican

of

which

F.N.

Legislation

Jamaican

if

outdzted

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etal,

has does

Titles,

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legal

8.

the

custom

statute

Stephen’s

been

not

law

1

Maritime sources

JL.R.

statutory

Law

recognissed

comes

in

affect

and

is

21

Jamaica.

R

(Legal 97,

in

810;

learned

into are

force

its

cited

provisions

Law

Bernal

existence.

(1)

operation

and

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in

in

legal

Legislation

Grant,

Jamaica

Literary

Legal

v

Jamiaca

Feuriado

inherited

writings.

these

ibid.,

31

in

Sources

its

Jamaica.19

are

under

p.

and

1927

abolotion

from

6.

local

(2)

Clark’s

1

England

Case pre-independece

Geo2,

Similarly

in

R,

England

Law

238

cap

constitute

cited

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by

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section

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the

not

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enactments

Precedent.

2218,

render

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of which Imperial

place given

extend

that

dominions,

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power

(U.K.),

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This

Section

Similarly,

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However,

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as

part

maritime

is adapted

throughout

in

well

process

relatively

U.K.

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as

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provides

of

there

9(1)

and

intimated,

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as

British

practice

Statutory

section

and

it

generally

matter,

to

of of

is

appears

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all

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that

Crown

places

91

Maritime

Majesty’s

was

Maritime

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a

difficulty

express

:

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of

that very

“This

as

discontinued.

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to where

is

at

necessary

since

apply

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times

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dominions

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extension

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regards

in

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of

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part

Shipping

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extended

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physically

to

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provisions

32

whether

“parent”

any

shall

Jamaican

the

jurisdiction.”

1911

subject.

of

Act,

territories

provisions.

The

difficulties

practice

to

apply

(U.K.)

1894

finding

Jamaica. particular

U.K.

Maritime

to

Maritime

British

to

(U:K)

provides

under has

Act

the

the

in

been

U.K. itself

ascertaining

whole possessions.

in relevant

Conventions

his

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reference

that:

protection.

typically

statutory

as

of

is just

law “This

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comprised

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quoted,

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provisions

to

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law

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reserve

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enacted

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1925,

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modifications

colony.”

exceptions,

(U.K.) instance,

Majesty,

initial to

direct

legislation (U.K.)

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in for

expedient

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provides

problem that

any

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provisions official

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which

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36(1)

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in

in

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6(1)

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or

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printed

locating fact specified

Shipping

of

1

enactments

this

of

as

of

the

Shipping

(if

this

that

is

that that

Act

case offical

any)

33

the

Act

the

extended

the

Act, (Safety in

or

case

apply

as

relevant

for

and the

any provisions

(International

volumes

may that

the

with Order,

...

other

and

to

U.K.

“His

time

be

the

ships

Order

Load

the

of

specified

such

provisions

of

as

statutory

being

Majesty

Laws

readily

registered

this

appear

Line

in

Labour

Act,

Council

Act in

of

in Conventions)

force

shall

may provisions Jamaca.

accessible

of

to shall

the

Conventions)

in

any

His

extend, amending by

(if Order,

any

subject

other

Majesty

Order any).

British

are

locally

to

Act,

with

Act

The

to

not in

or Other problems may arise as regards whether particular U.K. maritime statutory provsions are to be deemed as extended by necessary implication.

To further compound matters , it appears that various U.K. statutory provisions have been borrowed and used as if such provisions were was in fact extended to Jamaica. This apparently has been the case even in respect of certain U.K. legislation passed after Jamaica’s 22independence. After a period of reliance on such legislation, persons using them may unwittingly regard them as part of the maritime statutory law to which Jamaica is subject. This ultimately abets uncertainty as regards maritime legislation in Jamaica.

Moreover, most of the maritime statutory provisions have never been adjudicated upon or otherwise subject to local judicial consideration. Accordingly, issues as to such provisions’ status and applicability seldom benefit from local judicial detemination.

Since independence, the main areas of legislative activity in maritime matters have been those pertaining to (1) Port Maritime Administration and to a lesser extent (2) Economic

Regulation of Shipping. Overall, the maritime area has received scant attention from local legislators.

22this appearsto be so as regardsuse by, for exampleGovernmentAuthoritiesconcernedwith shipregistration and relatedmattersof MerchantShippingActs.,enactingin the U.K. after Jamaica’sindependence. This has happened because of traditional reliance on U.K. shipping Forme and Rulesin this area based on the continued application of an 1 of the Merchant Shipping Act, 1894 (U.K.) to Jamaica. Thus where the Law and Concomitantly subsidiry rules and forms have changedin the U.K. since independence it appears the new rules and fprms and in the final analysis the new laws, have been resorted to.

34 Merchant presently

indefinitely

independence

area

matters.

West

Criminal, flavoured local

23 25 24

However,

The

The

Vide:

Appendix

(ii)

However,

In

sea: cases under Indian Caribbean,

case

Indian

practice,

Jamaica

There

area

Case

(IMO)

Hyman,

Reported

in

cases

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Shipping

Jurisprudence study

law.

Labour,

24

the

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case

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3

legislation.

W.I.LJ., is

J/3699,

Shipping

Law

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provides

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1989

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38;

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West

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35

where Merchant

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27

(iii) There

secondary

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Literature aid

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28 advocating

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apparent factors

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absence needed.

so

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Nutshell,

and 29

maxim:

official

Reports.

of

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The

pertaining of

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raise They

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1988;

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maritime

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writing

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bodies

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are

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235

of

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appeals

30 32 31

The C:

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See

See In

Judicial

Sessions

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reality

section

eg: infra,

hierarchy

Jamaican

to

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the the it Court

diagram

appears Committee

110

Weekly

umbilical therefore,

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System30

nexus

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Coroners

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31

afoot

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speciaiised

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32

to

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1989,

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38 Court

15.

England.

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Jamaican

the

to

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made

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order:

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conduit,

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OF APPEAL

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OF PRIVY COUNCIL

I

I

JUDICIAL COMMITTEE

THE JAMAICAN COURT SYSTEM ___ U) SD D: Stare Decisis Doctrine applied in Jamaica

The fundamental doctrine of binding precedent or stare decisis states that courts are bound to follow the ratio decidendi of previous decisions of courts higher in the hierarchy in cases similar to those previously decided by those higher courts. 33

This doctrine is applied in Jamaica in keeping with the hierarchy of the Jamaican Court system outlined above. Thus, decisions of the Judicial Committee of the Privy Council in

England on appeal cases emanating from Jamaica have the most force in local courts.

Decisions of Jamaica’s past (pre-independence) Court of Appeal are treated as not binding but of high persuasive 34authority. Decisions of other present West Indian Courts of Appeal are regarded as persuasive 35only.

In practice, English decisions are most resorted to and often treated as if they are binding.

Although these decisions ought not to be treated as more than highly persuasive. 36

On occasions when a point of law was not covered directly by the Privy Council, English or

West Indian authority, Jamaican courts have looked at decisions from other jurisdictions, treating them as persuasive authority. 37

Harris,Phil: An introductionto Law, 3rd Edn.,Wiedenfieldand Nicolson,London,1988,at pp. 182 - 183; Stott,Vanessa:EnglishLegal System, Anderson Keenan Publishing,London,1981,Chapter3.

Burgess,A.D.: JudicialPrecedent in the WestIndies, W.I:L:J:,May, 1978,p. 27 at p. 29. Ibid. Ibid, p. 33. Ibid, p. 35.

40 jurisprudence,

development

the

However,

Law

in

miniscule

40Vide:

41

It

As the

E:

Most (1)

amount

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mid.,

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maritime

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occasionally

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35

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law

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Magistrates

to of

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number

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court.

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English

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maritime

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in

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parties, Legislation,

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ST/ESCAP/380.

most

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outweighed

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maritime

have

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43

limited

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156 This

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method

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1900. stipulates

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arbitration

44 maritime

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F.N.48)

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enabling

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and

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49

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the

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enforced,

national

for

the Chapter 3

Jamaican Admiralty Jurisdiction

52 Chapter

THE

A:

B:

D: C:

F:

Introduction

Origins

Present

The Concluding

JAMAICAN

International

3

and

Scope

Development

Comments

ADMIRALTY

Dimension

JURISDICTION

53 essentially

The

of

Jamaica.

dealt

This

basis

as

The

1 A:

claims 2 “Jurisdiction”

For, expression

happened

Introduction Chapter

The Originally

the Later time,

Curzon, Adoption Admu-ality, See: is with and Administrative Law

October

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jurisdiction,

39

from

the

cit.,

two

fifteenth the

vol.

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Jurisdiction

Geo

law

p.

English

to

‘the

1,

the main

courts

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C.

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High

Prize

development.

“Instance”

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High

XXXVI;

of

4 of

deputy

lost

& British

1536,

Admiralty

Admiralty

Court the

there

Court

previously

comprised

5

Seas.21

much

of

William op.cit.,

was

Ordinary

58

Holdsworth,

shall

seems the Ordinary which

Commonwealth

was

of

English

of

Court

Admiralty

p.

By

one

meddle”

Droits.2°

IV, in

to

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107.

three existed.

not

be

Jurisdiction

England

a

C. former

Lord

and

number

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used

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Maritime

in

36.

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categories:

fact

Prize was

of

Admiral

Jurisdiction

to

Since op.

international

Nations,

one appears

describe

of

enacted

cit.,

Jurisdiction.18

or

in

enactments22 Law,

then

p.

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otherwise

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(1)

1948,60

a

545.

to

civil

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in

entitled

Civil one be

an

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Fitzgerald,

1389.17

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High

Juridical

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1357.16

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basically one

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and

of

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jurisdiction authority.

prize

ressurected

respect

the

nineteenth

enactments.27

seventeenth

23

24 25

27 26

28

Admiralty

“Prize’

Accordingly,

The

mid been

For

Winswall,

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in See Vict. if

See

lawfully

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eg.

Thus, put

c.10.

is

the

to

century.26

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dormant

Burcher

of property

centwy, Droits

(in

adjudicate

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op.

second

Control.24

these

in

invoked

subject

The

so

in

op. cit.,

Wiswall

times

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Charles:

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of

Admiralty

cit., century

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8;

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captures

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sentence.

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i

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Roscoe

special

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Act,

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Law

Merchant captured

jurisdiction

the

made

cit.,

underwent

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1840 revival,

op.

of

commission

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Prize

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cit.,

Canada,

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abolished)

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111.

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C.

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op.

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period

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65; jurisdiction

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Sections

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to

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shore.23

510

around op.cit.

matters28:

Court

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by

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Judicature

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appointment

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colony

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the

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35 on

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the on often

2 of a observations:

the 63

the Office, American Dodson, op. three second

practices on merchants

Court

established

informalities

Deep ambiguous Courts

cit.

the

delineated.

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distinct

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the

Revolution,

239, In

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records

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enforcement On

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The

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36 37

38 With

Prior

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1867

Ibid., Ibid., Vice

30 Maru,

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Asp.

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English

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132

Vice-Admiralty

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322

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64 by created

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74

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77

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50 51

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78

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Convention

Intemationai 53

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Articles53

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a

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a

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83 law

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Maritime

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Maritime

not in

for from

miss Chapter 4

Arrest of Ships

84 A:

B:

Introduction

C:

1. 2.

3.

4.

5.

6.

The Ship

The

The Types

Ship

1. Functions 2. Historical

3. 4.

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Arrest

of

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International CHAPTER give

ships

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to

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Ships

Dimension

Jurisdiction

85 ship

4

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arrest D:

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implications

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arrest? -

for

86

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87 the

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and

to

Bold

the

WWiam: to

ibid.,

date

Mortgages

distinguish

as cause

Liens.

notes

Buccleugh,

“marjtjnie

well no

para

Arrest statutory

of

law that: as

1.

action

have

the

definition.

the

lien”

of “when

present (1852)

all definition

two Ships,

confers

was avoided

arrest

concepts.

7

Draft

102

probably

1975

The Moo

a

of maritime

is

any

Articles

1926

the contemplated

P.C,

L.M.C.L.Q.,

attempt

term

first

and

267.12

lien

for

coined

in

1967

at

Jamaican or a

a

34 new

merely

the

distinct

Convention

in

first

Convention

English

or

a

and thing

right

English

law

on

to

in

on

Maritime

be by

law.

Sir r

comprehe1i’e

JerviS.

effect

privilege

come.

and back

English

formality,

true

privileged

hands

other

13 14(1

when

charge

to

(1851)

It

maritime

However, 946)

of

the

In is

carried

a

inchoate period

creditor. The

purchaser

on

P.

definition

7

the There,

“...a by 135,150,

Moo. Tolten,

liens,

“The law,

into

in

when

legal

ship

the

maritime

The

that effect

for

P.C. all essence he

Bold

of

Scott

it

process...

of stated

charge cited

value

it

first

the

267,

comes

by which

Buccleugh

travels

L.J.

lien

term.

and

of

by

that:

284

the

noted: is

that

Thomas, simultaneously

into

with

.

‘privilege’

..a

from

process

existence

and

claim

itself,

the

legal

attached”.

freight the

goes

without

take 103

ibid.,

thing

or

a

to

moment

was

process

defmition

precedence privilege

with automatically

be

with

para

of

into

and

notice,

a

a

13

the

proceeding

proprietary

the

whosoever

10, the

by

still

ship

upon

was cause

a

and claim

who

is,

over

proceeding

everywhere,

without

proferred

whether

has

a

of

notes

or

mortgages”.’4 thing

in

kind possession

a

action,

privilege

rem..

certain

any

to

that

in

in

in

by

be .this

favor

Continental

rem,

and antecedent

even

the Sir

ranking

carried

attaches,

it

claim

confers

John

may related

of

word in

the

the

into

with

or

or a ____ - international

attaches

subject,

action

lien

“privilage’

15see 16Ibid. 170p 18lbid.,

is

Tetly

He and

describes

Thomas

limited

cit.

Chapter

Under

defines

approval.15

gains

para

has

as

to

“(1) (3) put

(4) 17, Jamaican arises, (2)

(5)

used priority (6) a 12

a 6,

a

lien

relatively

in for

accruing forward upon maritime

Travelling

enforced a F.N.

privileged what

here

as: service

without

93

maritime

law

appears

a is

from

small

lien

by

defmition

following

rendered

synonymous with

claim an

any

as

the

number property,

to action

the

court

moment

..a be,

or

property

to which

the

privilege

charge,

at

in it

of action

English present, 104 or

with

rem.18

claims.

of

appears

damage

secretively

the

or “maritime

against

position,

any

the events

to

done

major

deed

have

property

out and

lien”.

by

the

or

attracted English

of

unconditionally, it,

any

concept

which

(a

registration”.

ship)

work

some

the

of

which

a

cause

on

maritime

the

and

16

of liens

extended

ship,

Jurisdiction

action

19See

21per although

The

aircraft

Here,

in Section

claims to

eg. rem The Accordingly,

Jamaica21

of 1.

others Thomas 2.

3.

Thomas, 4.

5.

against

damage Admiralty the

Salvage. currently 3(3) Seamen’s

“In Master’s

Bottomry

may

any

of

notes provides that

ibid., the done

a case

arise

recognized

vessel disbursements, Jurisdiction

and ship,

Administration and

that:

para

in by

by or

master’s

as respondentia

which

may a

other

implication “These

6 follows: ship.

as

be

property there (Jamaica)

Supreme giving

wages.

anested represent

and

of

is aircraft

from •19

105 Justice

a rise

for

maritime

in Court

Order

to statutory the

the

Jamaica

or

maritime Act,

‘principal’ property”. amount

of

in

lien

Jamaica

1956

Council,

enactments”.2° for

or

liens claimed,

any (U.K.)

other

or

may

of ‘genuine’ are:

1962,

charge

the

as

be

the

adapted

aforementioned

invoked

Admiralty

Section

maritime

on

any

and

by

3.

an claims

the

words

there

invoked.

3(3)

enactment.

Justice part

lien

vessel,

22Thomas,

points

are giving

in

or

“or

In

2.

One

Thomas

charges

does Here,

keeping

other

He

“Other

to

rise

question

cites

instances

op. not

he

charge’.

to

other

suggests

“It Act, the

other

with

affect

cit., states maritime

certain

charges”

may

contemplation

raised

1956

than

para

the

charge”.22

where

the that:

Prima

be

that occasions

basic

maritime

Section

lien. right that

20 by

maritime

the

the

facie,

nature it

to

expression

is

wording

3(3), of

have

when these liens

the

the

of

liens

and it

words

the for legislature

implied

under

arrested

of

106

arise

wherein which

“maritime maritime

section

suggest

U.K.

by

statutory

in

the

when

implication

reference

respect

law 3(3)

lien,

Admiralty

lien

that

maritime

enacting

is

maritime

a

or

there

as

change

of

other

is regards

such

from

made jurisdiction

are

the

liens

charge”

liens of

claims.

situations

statutory

Administration

the ownership

to

may

which

a

import

“maritime

in

may

possibly

section

where

were,

of of be

the

of

in

be iniplied

due

and

favor

sometimes

harbour

label

charges”.

to

due

subject

240p 25Ibid.,

government

of

by

remuneration to

governmental Tetley

charges statute. These

be

Overall,

to

cit.,

The against

para placed

any

p43

p.42 has

rights, character

judicial

These and authorities

20

it

her

referred

on

appears for et

the

Tetley authorities such cargo,

seq. generally

services

discussion. removal

or

claims to

description

such

as

indicates, usually

special

Thomas

rendered

encompass

(and as

of

which

unpaid

wreck.25

ranking At

sometimes legislative

relates of

intimates,

least

may

by

such

fees

certain

coastguards.23 there aheai

107 possibly

to

“other

and

matters

rights”

individuals)

that

appears

of

unfulfilled

expenses

charges”

maritime

there

fall

which

such

within

to

is

be

of

against

as

doubt

obligations

have he

liens.

the no

the

this

describes

reported

Receiver

recovery apparently

as

the

24

category

regards

ship

that

as

cases

of of

and

“rights may

of the

not

wreck dock

“other

on

exact

been

be

the

and in matter.

such

to

is statutorily

to

maritime

26see

be no

be

“other

a

such

welcomed

clear In

3.

The

chapter

Section

Importantly,

the

liens.

enumerated

charge” definition

definition

problem

final

Maritime

as

3

68

analysis,

falling

this

of

to

of

Jamaica

of

exclusive

will

the be

construing

a

within

found

maritime

draft

Liens

it

bring

suffices

can

list

Jamaica

in

Section more

and use

Jamaican

Section

of

lien.

for

maritime

this

certainty

the

immediate

Shipping

More

3(3)

mechanism

108

3(3),

International

law,

will

importantly,

liens.

as

inter

but

to

Bill

give

purposes

which

there

alia,

Not

of

now

rise

statutory

only

highlights

is

claims

there

to has Dimension

no to

a

does

emphasize

such

such

right

is

enactment

defmitely

a

it

the

need

list a

of

appear

list.

need

arrest.

of

to

that

liens.

26

give

to

have

that

for

any

ensure

This

rise there

there

a

is

to that those claims which it has under its law as giving rise to maritime liens are compatible with its national interests.

As earlier noted the draft Bill provisions in this regard, is based on those of the

Draft Articles for a New Convention on Maritime Liens and Mortgages.

Hence the international dimension to the proposed statutory enactment on maritime liens is here quite manifest.

This highlights not only the general need to pay attention to this international dimension in dealing with preliminary issues in the domestic maritime law context.

Importantly, it signifies the need for Jamaicas participation in international fora involved.

27

For present purposes it is important to emphasize the link between the maritime

lien and arrest of ships. This link is also recognized in the international context.

Hence, there is an attempt to ensure full compatibility in the future between

different international Conventions dealing respectively with maritime liens and arrest of 28ships.

Statutory rights in rem

27See also chapters 3 and 6 28See: chapter 3 109 do

a points that

in

bona sale

Required

1.

Summons

to maritime

29See:

not Sea

essence,

be

where

Effecting

to

fide

have

to

filed.

a

Peter-Koh

Basically,

A

Unlike

the

Firstly,

A

eg. purchaser.

an

lien

statutory

a

attached

in

Praecipe

existence

procedural

action

Karthingesu,

the

Procedures

exists

the

Arrest.

in

prescribed

Soon

these

maritime

rem

right

fri

to

there

for

of

rem

them

are Kwang,

remedy. proceedings

warrant

in

statutory

is

M:

is

rem the

the

concomitantly form.

lien

made

Actions

claims

status

exists

Ed

to

It which

rights

available

arrest accrues

Singapore,

have

of in within independently

is

rem in maritime

the

to

a

rem.

an

at

110

substantive

be

a

the

in

vessel

the

available maritime

Butterworths,

the commenced

Jamaican

issue

liens.

Far

along

of

of

a

East,

action right,

lien

maritime

the

with

Admiralty

is

by

in

1986,

writ

the

in

thereby

a

the

Carriage

rem,

supporting

statutory

and

lien.

filing

25,31

jurisdiction

it

inferred.

is

is

Although

defeated

of

of

not

right

Goods a

Affidavit,

Writ

the

29

in

which

case

by

where

rem, of

This

by

a

are

is r

should

at

filed

shall

and

party the

claim

satisfied. contain

shall The

the or

be

at of

issued following

Affidavit

State

certain

Rule

until

“Jn

instance

particulars. to provisions

actions

3

an

be

of

filed

The of

in

the

Admiralty on

rem, the

plaintiff (a)

whose

or

behalf arrested

defendant (b)

The counter a

warrant

In

instance

affidavit affidavit of

complied at an Rules

and

the any

the action claim,

after

that for

party

time provide national

111 the

shall by

the

appearance, the the of with.

warrant seeking the after

wages, arrest

claim name state

as

party character

the

follows:

the of

or and is to

or writ

or

property

but counter to name have

of

his nature

be

of of

no possession,

agent

issued, the the summons

and

warrant

claim

of

vessel vessel

..may

description

has the

the

has

property been of

be proceeded the has arrested

nature

arrest

not

issued

affidavit been

filed

been of

of

to

the

the be commeflcemel1t against:

State Jamaica .

foreign

the

bond

annexed

although

and

Warrant

activity,

3Oper

31lbid.

to

in

or

which and

an

and

However

Rule to

In

the

Once

This service

action

if

Arrest,

a

an

affidavit

copy

the

4

is

of

action

the

of the

of

the

the of

are warrant

bottoniiy,

the

normal

for the

may

Court

then

writ

wages

not

of

served

practice

of

or

(c)

language

inspection

of

Arrest

the

contain

sunons

Judge

the

the

In

production

on

an

court

translation

although,

is

against

the

may

action

all

to

also

issued,

and

the

or

is vessel

the

action vessel

notice

as

a

what

Judge 112

perusal

affidavit.1’ of

a translation

aforementioned

of

deemed

the foreign strictly

thereof,

bottomry,

the

in

has

belongs

shall

is

may writ

a

first

bond.

of been particular

be

fit,

speaking

vessel,

the

of

certified

also

required

thereof,

annexed if

allow

given

summons,

31 the

Registrar

there

waive

particulars.

bottomry

that

manner.

in the

to

to

be

shall

since

to

notice terms the

the be

warrant

one

the

and

along

correct,

be

Consul

service

this

bond,

resident

affidavit.

of

a

produced of

30

copy

with

is sequence

the

to

what

of

of shall and

issue,

of

the

in the

the

if

the

for gives

be

notice in

of

a the

the

the

Summons

by

of

with

bail

then

court

one court’s

2. bailiff

the nailing

32See: 335ee:

or

where,

gains it vessel

jurisdiction

Rule

pay However,

becomes

Service

However, jurisdiction

of

must However,

or In

Rule Release Rule

access money the

6 say affixing practice, and

provides

be

court...”

8. 5 of

the

leaving

effectively

carried in

to

the

from into over actual

once

owner

actions

over a the

the

writ

copy

that:

Court

the

Arrest

vessel it

the out

Bailiff

service

the

there,

of of

vessel.

in under of

“In

documents in

the vessel. in summons

rem,

the

so a

actions

lieu

takes

nailed

vessel of particular

as arrest. writ

The

service

the

of

to

possession

or

bail.

or in move writ

or or

arresting

have

warrant

rem

affixed.

warrant his

of manner.

3 or

113

been it

the lawyer

the

warrant

out

of

on Warrant

on

warrant

against

duly

32

of

the

the

the

agrees

the

as

vessel

served vessel

mainmast

described

court’s

the as of

to

well

arrest

ship,

is

and accept on

then

jurisdiction.

as

the

or

seeks shall needs

may

that

said on

vessel

service

be the

be of

to

to

to

served

the ensure dispensed

be single

“perfect as

and

effected Writ

aforesaid,

put

by mast

that

of

in

no

to

judgment

this

guarantee

together

to will

34 5ee

Release”

the

file

obtain

reason.

authority

take

a

eg

praecipe

Once

A

Bail

with

The

Bail

Such

Normally,

Rule

release

steps

it

or

appendix

person

appears

letter

plaintiff

or

of

may

interests

this

ball

25

to

payment

an

for

of

procure

provides

desirous

is

be

of

or

instrument

the

once

inadequate,

17

a

done,

undertaking

payment

put

caveat

is

and

vessel.

entitled

into

a

up

its

no

that:

vessel

costs.

of

or

against

release.

court

order preventing

issued

is

money

nevertheless

‘property

to

to

has

from

Security

sufficient

provide

takes

of

release.

from

been

the

paid

a

the

P&I

the

arrested

court

114

the

is

arrested,

into

alternative

place

security

release

the

usually

Club.M

office

affecting

Court

ship

of

by

its

of

of

provided

to

the

cannot

warrant

in

security

the

owner

the

cover

lieu

ship

the

vessel

Registrar,

be

vessel

of

in

the

shall

or

in

for

arrested

bail.

the

other

the

amount

under

the

only

or

action

form

to

Plaintiffs

money

interested

arrest,

be

or

be

of

of

and

rearrested

called

released

his

a

mentioned

if

is

bank

claim,

claim

after

required

party,

a

under

for and in

or

include

the deteriorating

creditors

importance

Parnell,J,

Others, by

35See

caveat,

default,

high

The

/ The

Overall,

/ would

eg

may

1968,

in

here court

maintenance circumstances Georghadjis

or condition

the

Forced

prior

be

be

is

the

may

Jamaican

15

“Every

issued

best the

considerations to

W.LR.280,

Sale order

residual

and

judgement

served

unless costs sale

under unpaid of

Supreme an

Arrested

must

by

interest

of arrested

the

which

the

the

crew pendent

296

be

would caveator

immediate

vessel,

Court

preceded

of Ship

ship

wages. the

emphasized

the

centre

lite.

court

to

115 case

mounting is

defendants

be

notified.35

by

sale

may

around

of sold

a

Morgan

commission prior

authorize

that: either

daily

themselves. whether

to

judgment. on expenses,

v.

the

giving

M.V.

for the

pendente

the interests

judgement

the

Vacuna

Also

appraisement

ships

the

of

of

particular

and the sale,

at

trial

and sale

unless

ship,

advertised

person

sale

rules

in

priorities.

and

court

at

the

was

an

The

The

As

Thus

for

unreasonably

Where in

treated

regards

object

sale

such

eventual

the

in

purchasing; “Before

is agreement must

there

the

local

as

commission of

usually

sale

a

said the

payment

nullity. be

is

and

low

by

a appraisement a

effected

case,

sale

sale carried

private

foreign

for

price.

court

the

by out must

of

a sale

sum

purported

a private directs by

out

treaty to

newspapers

ship must

be

the the to

by

is

addressed

be

the

bailiff various to Parnell public be to

treaty

paid

sale prevent

the

bailiff

submitted

116

unless contrary”. as can of and

auction,

J. claimants

to

the

a

is points

the

properly

in

vessel

the

required

court

the

what to

sale

bailiff

after

the

out:

court

subject in

directs. of

manner,

court take

contravention

having

to

a

and

otherwise

valuable

deposit

place,

for to

executed

and

the been

approval.

the

the

doctrine

property, the

directs”.

duly

name

of

gross

by

terms

the

him

And

of

of proceeds

relevant

as of

the

a the the F:

for

of

those

Convention

both

claims

was

this

a

of

the

relevance

view the

See

maritime

was permitted

vessel ship of

Unification

The not

Here,

to

1926

The

not

also: The and

It

enforcing

relates

arrested. on are

provides

International

the main

claims

the and

cargo

resulting

Maritime chapter

for

those

case

convention

1967. to of

any objective

by

in

claims the

Certain

the At International

under

claim

respect

3

securing compromise

operation the

Liens Importantly,

claimant

against the

same

of

Dimension.

regardless Rules that

of

and

the

Common

free

is which

time, having

of

Conventions

1952 Mortgages

Relating

the of

position

movement

the

as

primary

ship.

it

of

a

Arrest

already

ships

a restricts

Law

ship

its

“maritime

to

117

adopted

nature.

is

may as relevance where

the

Convention

pertaining

of

now noted

under

the

Arrest

vessels

be

a However

power claim” at by

arrested.

preparation

vessel

most

an

the is

of

to and

advancec The

was

seagoing

Convention of

with

Maritime national

could

by

arrest here,

International

to

36

the

prohibiting

protect

of

only

it stage.

/ to possibility

a legal

Ships,

may Liens,

new

the

is

be

the

to

systems,

claims

be

draft arrested

/‘

1952. Convention

specify interests that arrest

noted

of

is,

having

Also,

for

arrest

with

that

a

of

list specified

Admiralty

respect

cases

bareboat

arrested.37

the

more

Contracting

claimant:

bail

shares

where

or

than

of

As

The

in

other

charter).

Under

Article

Jurisdiction. which

in

it.

earlier therein

and,

the

Convention

particular,

States

security

owner

the

a

if

3

“A

noted,

claim

In

are

(3) a

Conventiorships

m

ship

ship the

provides

owned

is

has

is

provides

it sub-paras

latter not

has

shall

is made,

been

personally

this

been

by

case,

once not

that:

given

the

list

or

that

be

1&4 any another

in

same of

are

a arrested,

any

claims

liable claimant

respect

other

of

deemed

person

one

Article ship

arrested

in

118

(for

ship

which

nor

such or

of

may

owned

or to

more example

the

in

shall

3

jurisdiction be persons.

in essentially

the

arrest

same

in

any

of

by

bail

same

the

the

in

the

maritime

either

one

or

same

the

jurisdictions

ownership,

person

other

comprises

of

either

case

the

such

ownership

claim

security

particular

liable of

to

jurisdictions,

a release

except

ship the

by

of

may

be

any

the

when

Jamaican

under

ship

the given

be

in

came

of

in

ship all

the

or

or to

the released

the

bail

there

claim. avoid

which

decision

judgement same

proceedings claimant

in

vessel

or Correctly

38See 391b1d., is England

other

a

other by

ownership

the

threatened

The

is Hifi

in the

can issue still security This

HHI,

be

creditor England.38 good

convention p.

if has Court

in

defined satisfy

necessary in

21

holding

op rem of

cited

the cause by

arrest,

whether

had or

cit.,

who

in the

same

the

other

the

as

been a

for

thus

In apparently

same

pp

foreign any to Court a has

case:

that maritime ownership

complete it appropriate

19-21

restricts fmally

obtained

is

The

case,

or

possible

Admiralty

other

Despina

applies

attachment

the

the maintaining

the

of

a

fmal subsequent claimant English

the to ability

execution released

under

arrest

Court, G.K.

judgment

judgment

119

either

to

Admiralty

judicial

English appropriate (1982’) the shall that

before

is

arrest

of

arrest

permitted

same

the

arrest”, under

debtor

be

against

2 to the

authority judgement

Law

set

of

Lloyd’s

ship

one Court

the

subsequent the judicial

aside,

at

where

a to

ship twice, the law

ship

shipowner

bring

decided

of

Rep

time and

of

in

provided

authority

or that a

came

the relation

previous

a

555, the

of

arrest

of

subsequent

state

that

country

any

the

ship

pursuant

up

as

that

or a that unless re-arrest.39

to ship

for one

arrest

that

each

the

where the

in in

action to

can

the judgment. arrest

English

be

against lien

subsequent

decision.4’

first

the

second

prejudice

405ee:

Comm Poland,

41Georghadjis Limassoi unreported

on

second

took

case

the Court

He

warrant

ercial In

In

were

Georghadjis,Andreas place

the Lloyds

Cyprus,

case emphasizes

Port

determining There, warrant

will

second

Bank

not

Admiralty

or

arrested “What

the

of

were

(1978)

permit

of

under

opcit,

yet

arrest

it

vessel

another

of of London

was

plaintiff

ready

ready

cannot

the

arrest

however,

i

twice,

English

the

the

p.21 to

C.L.R.l;

whether held Action

Near

be

common

to

mater,

second

to

Press

may

vessel’.

would happen

proceed

granted.

both proceed

that

et

East

Law.

that:

Haissan

be

29/88.

al:

or

Ltd

the

it arrest

times

suffer

taken

law

not

Arrest

under Ltd

appears

40

to Once

1988 circumstances

to

the

judgment, jurisdiction,

v

judgement

as being

Bahlawan

by out

the

120

any

of

being

at

this arrest

the

the

against

Ships-7,

Ship

p.

the

circumstances

is

important

first

21

merely

is

the

putting

it

“Peg

and

in

where

V.

are

would the plaintiffs

the

case

the

Cyprus.

The

execution asos

such

issue

to

same

into

enforcement

consideration

then

he

enforce

be

Motor

that

111”

is

of cites effect

inability

vessel

necessary

according

Egypt.

for

whether

the

and

Yacht

now

the the

in

of

plaintiffs

has

the

support:

Pakistan.

foreign of same

an to

lying

is

and

‘sand’,

come

a a

to take plaintiffs

in

as

maritime

second

Hill,

vessel rem

at

right

regards

immediate

in

up

right

the

the

for

for

or

in to

the

a action.42

different

person

possibility

commerce

terms

satisfaction

concerned

false

twice,

decision

42

43lbict., 441b1d.

arresting of

notion, The

claimants

The

a

As states

would Hill’s

and

second cit.,

Hill,

position

He with

since: He

earlier of

exceptional

p.19

the at

then that: the p. a

thus, observation after

prima least arresting judgement.

were

overall arrest 19

same

“This indicated,

cites in

“The posing it

as

Cyprus

involved. facie,

appears

of

ship far

situation The ship objectives

the

tempting

a

as in

the ship

be

in

Thus, Despina

same “arrest” was

is

the this

erroneously, respect inimical

question

in

appears What

referred

seized Convention

context keeping

ship it answer of

does appears

G.K

the

of the

twice

to

as (arrested) to

the Convention.

to

not convention the case is,

is with

to be

equates

as

same no. in The in

whether

is include interests

121 more

regards

as

the the the concerned.

But

Despina one

twice”. claim

writers provisions sense

skin

“seizure”

it the is in it

of England,

is

basically is

which to more

seizure the of

not

possible G.K.

respectful attachment.

the

free

quite with

than of

the

Convention. Case

although

of

Article flow against,

matter “arrest”

so to once.

a

ship opinion, is

arrest

simple

of

not

3(3),

maritime

is spoken came

in

Such

of

ipso

the the

execution

as

a

since

based

same ship. up same

that”. a

facto

of

for

in

on

ship

It

‘

or

is a this false notion which is the basis for the subsequent fallacious reasoning which in turn underlines his reluctance to give a defmitive negative answer to the question he poses.

There appears to be no reported Jamaican case on this issue of the same claimant arresting the same ship twice in respect of a particular claim.

This part of the Convention Provisions are not expressly enacted into the

Administration of Justice Act. 1956 (U.K.)

Hence, this part of the Convention provisions have not had clear express legislative force in Jamaican law.

However, it is the writers submission that due regard should be had to these convention stipulations whenever the issue arises for determination in Jamaica.

Here the interests of uniformity, certainty and justice in international maritime matters as mentioned by 45Tetley would be served by the adoption of such a course of action in Jamaica despite the fact that Jamaica is not a party to the Convention.

As earlier intimated, the Convention allows under specified conditions for the arrest of a ship other than the one in relation to which the claim arose. This provision of the Convention reflects a compromise between the traditional English position which restricted arrest to the particular ship in respect of which the claim arose and the

45See chapter 1, part F 122 Continental

to

in

in

section

or the

the

amount

be

of the

connection

arose, property

defendant

form

The

one

Section

the

European

of

relevant

in

the owner

with

shipowner

3

“...(l) case

extended

(2)

claimed, as

invoked

(3)

subsection

approach

or Convention

adapted

In

mentioned

In

The

any

the

concerned.

Section

by the

Admiralty

case

case

and

which

an of (1) question.

Admiralty

stipulations

a in this in action extended

of of

ship,

3

paragraphs

which

enabled

any of section

Act

jurisdiction

Administration

in where

such

jurisdiction be

charterers

rem there

to

one invokes may

the

Jamaica

claim

123

the against (a)

is

claimant

of

be

a of to person

this

maritime

as

said

of, by

(c) the

of

provides

is that

of

Act,

an or

the

and

Supreme to

mentioned

to

Justice was,

in

action

ship,

be

Supreme arrest

being

(s)

possession

lien

reflected

when

as

of

aircraft

Act.

in

or any follows:

Court

a

subsection

rem claim in

other

Court the

chattel

1956

paragraphs

in

of

against of

or cause

Jamaican property arising

property.

Jamaica

of in

(U.K.)

belonging

(1)

control Jamaica

of

the

of

in

action

(d)

for

ship may law

of, to

may the

(r)

the ship,

(whether by

brought,

be an

action

be

the

invoked

mentioned

the

wages

an

liable

the

claim

action

is

Admiralty or

the

is

on

by

relates

adjudged

in

in

claim

the

rem

paragraph

claim

(4)

invoked aircraft,

(5)

Admiralty

wholly

gives

against-

In

by

Notwithstanding

the

a

rise

(D) the

or

by

case

jurisdiction

to

an

Admiralty

(a) beneficially

(b)

brought

an

of

action

that

person;

any

action

a

claim

ship,

other

jurisdiction

in

anything

beneficially

it

jurisdiction in

of

partly

of

superintendent

in rem

is

owned

an in

a

if

subsection or

the

rem

beneficially

ship

maritime 124

the

at

action

against

to Supreme

the

in

in

which,

nature

wages

as

of

the

the

time

owned

of

in

respects

the

that

lien

case

(1) preceding

personam. the

of

at

owned

to

when

Court

(including

Supreme

aircraft

of

towage

the

Supreme on

be

as

on

section

all

the

due

aforesaid.

time

any

the

of

by

the

provisions

if

ship

Jamaica

or

by

action

Court

the such

when

at

shares

Court

any

one

piotage

way

the

or

person

claim

sum

of

not)

of

is

the

time

of shall of

therein

brought, Jamaica

this

of

Jamaica

action wages).

allotted

be

in

who

as

when

this

not

Act

respect

invoked

is

by

would

be section,

is

may

unless

it

the

out that

may

is

of

of Court

sold,

arising

section

assumed

within

the

presented

Paragraph

the

46Hazzelwood,

of one

as

Jamaica”.

court

to

in

From

However

Thus,

the

respect He

a

(a).

shall

dilemjia

(6) title

notes

this

(7) whether

Hazzlewood46

Where,

have

of

to

In

Steven it the

that:

the which can

determining

in

provisions

a

the be

in

person

J:

Jamaica

the

the

seen

form

Gaps that

claim has exercise

that would

he

of

of for

in observed

orders

has jurisdiction

section proceeds the

arose. section

the the

be

of his

extent

purposes action

liable its any

habitual

3(4)

that 3(4) 125

Admiralty

of

to ship,

in to

in

lends sale.

the

which permits

rem-

of hear

an

residence

aircraft

interpretations

subsections

action

itself

and

p’ugged?

paragraph jurisdiction,

the

determine

or

to

in

arrest

or

other different

personam

a

(4) L.M.C.L.Q

place

(b)

of

of

property

the

and

is a any

the

ship interpretations.

governed of

Supreme

it (5)

sub-section question

business

shall

422 other

of

to

this

be

be

by than

has independently

the

not

“any

as

determine

wrongs

shipowner,

beneficially

an

Outlined

the

(4 defendants

Someone the

arrest.

other

could offending

owner

in

The

It

The ship’ whether in respect

The often

be

not

who

p.423 issue the owned

of

may

successfully

facts

“-the

the

English

in the

ship;

preceding

happens commits

of paragraph involved be

a

owner

offending

of more

by

shipowner

the

ie

The

B.

the Court

chartered

that

of liberal

a

paragraph. The

Span used

two

here

breach

with

the

(b)

of a

question

can

shipowner

involved to may Appeal is

construction Treza

the

vessels

of

arrest

of

with

effect

arrested, much

charterparty.

The

181982)1

favored is

impunity,

a

vessel. (or

be

without ships

vessel therefore A

that issue

practical

arrested

time 126 offending)

is

notwithstanding

“any

that

must

the involved

Lloyd’s under The

charters

having charter

A

more the

whether

other

significance.

only

be

restrictive

may

two the

ship.

“sisterships”...47 Rep225

liberal was his

excess

ship” if

his

now

(beneficial)

paragraphs

it

section

own

ship

basically

is

that

beneficially

wish

interpretation

construction in

tonnage

Its

were vessels

S

the the

3

to resolution

to

(4)

defendant same

operate ownership B,

whether essentially

arrest

and

sanctions

arrested.

another

owned

ownership

of

commit

a is

will

section ship

section

that

was

of

those

by

such

3

3 (4). ownership

Admiralty

ownership

for

beneficial

Admiralty

However, misleading.

scope.

United

Convention.

provide,

The

elalznaflt arrest.

This decision

Prior

Kingdoms As

jurisprudence. of

The link ownership

The

Here jurisprudence as in

may

the

a did

to

A

so shown result

doubts between

two

involved

the better away it thus

far

should

“(1) vessels

Span

bungled

as

the

in sanctioned

as

surrounding with

expression,

relevant,

The the

expression regards Subject

or Terza since be

the offending had

offending

Span

noted attempt

restrictive

the

to case,

all to as the

arrest

Terza

be

it that the the 1956 follows:

their

“sister-ship

arrest

appears, at

in the

or

provisions construction ship.

paragraphs giving either

effect

case, Act involved shares.

english

view

of

based

a

the is

effect 127 such

“sister-ships”,

vessel

which

arrest”

alternative

Courts

particular

vessel of

on

1

an

of

to paragraph

and

which

had

the

section expression

has

the

had

and

4

section

formerly

relevant been of

ship

ship

is required

the

that

Article

3(4)

not

(4)

in arrest”, in

alternative

3 is,

would

under respect vogue

of has

provisions (4) held

under

3

a this

of its stipulation.

common

which

sway

the now

in

the

Article.., roots

of

the

ship

English

same

which

Convention

appear in of

same is

in

selected

English

the wider

the

a the

Arrest

to

in

be maritime

was,

ship...

not

ship, ownership

convention, liable

person

claim

subject of

Ship

the

at

paragraph

the

to

the

relating

to

other

claim

arrest

to

be

time The

Paragraph of

paragraph

but

arrested

the

arose,

opening

to 4 in

when

registered (4)

no

which

The charterer that respect

other

When

or

to the

provisions

1

4.

words

will be

taken

of

ship

Clearly

in

owner in

such

be

the

the

claimant

of in

by

than

one

case

paragraph the

of

same

itself is

therefore

of

this liable the

of

any maritime

overriding

ownership. requires by

may

registered

paragraph

ship”. a

in charter

other

demise,

in ownership

maritime 1

arrest

respect

clearly

128

the

claim both

ship

significance. by

present

owner

such

shall subject

of

demise

indicate which the

claims.

arose,

of a

ship

apply

involved maritime

is

the context

to

liable

is

the of or

registered the

that

owned

to

any a

owner

provisions ship any

in

it

it or

claim

other

will

respect is

offending

case

by the

to

of

owner

be relating

be the

ship charterer

the

in

the

of read

of

person

which

particular

in

a

provisions

shall this ship

maritime

to

as the

and that

being

a and who

be

the It does not require either of them to be owned by the person liable for the claim.

Thus a literal reading of paragraph 1 alone would lead to the odd result where, if the person liable in respect of the claim is not the owner of the offending ship, none of his ships can be arrested while at the same time the offending ship owned by the innocent shipowner as well as all other ships owned by him could be arrested. However, thankfully as already emphasized,paragraph 1 is made subject to paragraph 4.

The final sentence in paragraph 4 makes it clear that the paragraph applies not only to demise charterers but also to any other person other than the involved or offending ship’sregistered owner. This surely is wide enough to encompass all ship charterers.

Accordingly,paragraph 4 is to be construed as affecting all such persons.

Paragraph (4) may be said to have three main effects in the present context.

Firstly, it exempts the other ships of the innocent owner from arrest. Secondly, it confirms that the involved or offending ship itself may be arrested. Thirdly, it allows the arrest of ships owned by a person other than the innocent registered owner of the involved or offending ship. Here the relevant person is the one who is liable in respect of the maritime claim. Accordingly his ships along with the involved or offending ship may

also be arrested.

Hence, from the provisions of Article 4, it is clear that there need not be an

ownership link between the involved and the alternative ship.

129 purporting

legislation.

interpretation

provisions

Convention

in

at

was

I

requirement

of respect

adopted

Lloyd’s 48See

other

Larnaca

the

followed.

defendant’s

The

Happily, common

to The

In

However,

Georghadjis,

by

The

to

have

Rep.

which

As

stipulations. a English

give

the

Harbor as matter for

Singapore 1973

a

48

helped to

consequence

308.

U.K.

the

effect

The

law

the

what

vessel

in

offending draughtsmen Cyprus of

claim

embraced jurisdictions.

Span

(1973)

Rather

op to

1978,

the

to

alternative

Court

provide

where

Article

cit,

interpretation

had Treza

case,

the

English

this

11 p.11

and

of

arisen.

the the

Singapore 3, J.S.C.

case in

a appeal

Singapore

Elias ship arrestable

rudder

failed

defendant

liberal draughting

law

as

could

declined 1519

well of Rigas

went to

for

approach

130 Section

include Court

case

ships

be

a

as

was

the off

path the

arrested.

v

subsequent

in

following

course

merely to

The

of

then

1956

turn Article

3(4)

more

be

and

Appeal

Ship

sisterships

provided restrictive

legislative

has

with

held

in

a

3

the charterer

amendments

keeping

also

(4)

in

“Baalbeck”

a

that

then

restrictive

in The

come an

and

the provisions

there

English

restrictive

important

with

of

Permian,

enabling

allowed

the up

to

was

the

judicial

for

vessel

now

the

approach

no

approach

decision

precedent

the

1956

(1978)

lying

in

arrest for the English Court in the Span Terza case.

The liberal approach is more in keeping with international consensus in the matter as reflected in the Convention provisions.

Moreover, to the extent that the Section 3(4) provisions may be amenable to differing interpretations, it is submitted that as a matter of policy the liberal approach ought to be preferred. It is therefore hoped that this approach will commend itself to a

Jamaican Court faced with the task of construing Section 3(4).

As Tabbush 9 has observed:

“...The purpose of allowing the arrest of sister ships, in rem / can only be to found jurisdiction against the person liable and to give the plaintiff security for his claim; there is no question of imputing liability to the ship itself because of its part in the incident, as there is when is arrested because of a maritime lien. To serve this purpose, and to avoid doing injustice to third parties, the only important requirement is that < the ship to be arrested > be wholly owned by the person liable; no rational

49Tabbush, S.J.: Arrest of Ships owned by Charterers, L.M.C.L.Q.,585

131 purpose is served by any special relationship between and ..

Also as already shown the relevant Convention provisions clearly support the liberal interpretation. Thus, in the present context, the question as to whether a Jamaican court should in an appropriate case resort to this Convention to which Jamaica is not a party to clarify any perceived ambiguities such as may be obtained in respect of Section

3(4) takes on particular significance.

In The Banco, (1971) I Lloyd’s Rep. 49 when the matter of the interpretation of Section 3(4) came before the English Court, it was held by Lane, J at first instance that:

“In the construction of a statute such as the Administration of

Justice Act, 1956, passed to enact matters agreed at a prior

Convention, the Court may, in the event of, ambiguity, look at the

Convention even though the statute may have

given effect to broader terms of agreement than those of a precise 51definition...” When the case went up to the English Court of Appeal, 50Ibid., p. 587 51 Ibid 132 the

as

Convention

Commissioners

(1966)2

the

to

whether Act,

of

the give

the

There,

writer

(U.K.)

v

enactment Lloyds

Here, or

so Estuary Ultimately

not

p. that Lord approach

as

in

“It

52 it

299, to

the Convention”.52 respect

of this is

Rep. must

Denning, help

was now

Convention

Radio Customs

and ought

the

and

be

decidedly

460;

fully

of

important this

emphasized

holding

to both effect

M.R.,

Ltd.,

is established

be

Post

and

to

is

U.K.

overriding

to to

even mentioned

stated

(1968) of question

give an

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is

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Q.B.

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1956

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The O’Neill, Injunction

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“62

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1975

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jurisdiction.63

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(1975)

142

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137

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69

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143

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the

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Mineralimport

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value

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Lloyd’s

1986, noted

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ships.68

Commonwealth

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the on the wide discretionary power granted by Section 45 of the Supreme U K.based

(Consolidation) Act, 1925 (U.K.) which provides as follows: CourtofJudicature

H... A mandamus or injunction may be granted or a receiver appointed by

interlocutory order of the court in all cases in which it shall appear to be just of convenient...”

Morrison, 70writing in an Article published in 1985, after reviewing the variousEnglish decisions on the Mareva Injunction observed in reference to the section

45provision that:

“It is because that provision is in pan materia with section 49 (h) of the

Judicature Supreme Court Act, that it is thought that these decisions and the subsequent learningon Mareva injunctions in the United Kingdom may, in a proper case, be given effectin 71Jamaica”.

However, since that Article was written, applications for Mareva Injunctions have been often made and granted in Jamaica. Thus the device is definitely available

70 Morrison, C. Dennis: Interim and Interlocutory Injunctions in the Supreme Court, W.I.L.J., Vol. 9, No. 1, May 1985, 3. 71 Ibid., p.16

144 under

Jamaica. Judicature

on

Supreme

(Consolidation)

both

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the

creditors.

72

Section

advantages

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37

over 1880.

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145

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49

inter

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Contempt

may

assets the

these

provision

and

come Mareva provided,

defendant’s

only himself

instances, On gives

within

However,

of

This,

A

along Thirdly,

said

An

assets

relate the

of

second not

option.

of

a

which Court to

no application

other in

the

priority

to security,

and

be

arrest

this The to

doubt

the

do

jurisdiction.However,

it

an

important

persuaded

pai-ticularised

arrested

with hand,

of

would

practical certain

is

Span arrest

and

in

course

clearly

operated

presumably

its

for the

Arrest

Terza

a

must

not

attendant

things the

security

distinction an

toto

by

effect the

not

have

vessel. interlocutory

strongly fasten

of that

Lord

but

and

vessel

the

with

the

is

assisted by

which

unspecified a

consequences.

a effect

Justice more

Mareva

vessel

is

fortiori,

in some

his

this

owners

on to

that

assets,

the

a

146 of

akin

is the

the

order

particular

guarantee.. by

Donaldson’s

whereas

not the

Injunction

Mareva

to

mind

are

arrester

the

to assets

a injunction

the breach

such

ship

particular not

plaintiff

of

case

Arrest

does

of

asset

obliged

as

arrest. in counsel

must

of

the

a attempts

where that

Mareva

such not.

which necessarily

whereas

defendant,

operates

asset

inevitably

case

to

when

Lord

the an

give,

merely to

such

if

injunction

order,

injunction

a

entice

before

as he

Justice

Mareva

another

operates

that

as

an have

would

orders

being

a

actual

him

is

ship. security

led

may

those

Injunction

creditor applies

not

with

in

the

to

In

be

to

defendant

plaintiff

speedy

keeping

appears

Q.B.

76

a

writ

but

is,

sense

is

made

general

not

See

Mustill,

“attachment”.

in

in

645,

of

cases

a

at

action.

rem

even

Powes,

with

Here

post

A

Usually,

Generally,

any

“detention”,

rule,

at

supporting

J

is

of

this

the

trial

p.

time

it

in

required.

application

urgency,

may

75

653.

op.

Third

conditions

requirement

device

application

before

applications

be

cit.,

merely

affidavit

Chandris

emphasized

Thus

this

although

pp

or

for

for

after

7.10

may

proceeds

goes

“The

is

interim

in

may

is

the

like

this

for

Shipping

trial.

required

be

it

by

whole

be

grant

that:

may

arrest,

the

respect

done.

relief

a

dispensed

to

by

“Arrest”

different

Mareva

remove

of

be

147

point

stealth

and

made

Corporation

the should

For

said

a

Mareva

should

injunction,

of

an

as

with

may

name

cynically

his

ex

so

the

defined

be

arrest

as

pane

assets

not

temporarily

Mareva

made

contain

may

to

when

v.

be

pre.empt

to

in

that

mentioned

in

from

lend

Unimarine

take

by

made

case

it

the

jurisdiction

certain

takes

“arrest”

motion

itself

the

place,

1952

of

in

before

any

jurisdiction”. 76

urgency,

order

place

particulars

to

earlier.

Arrest

or

S.A. in

action

as

greater

a

the

summons.

is

earlier

to

after

writ

that

(1979)

ensure

non-forensic

although

Convention

by

But,

trial,

is

dispatch.

the

in

the

shown,

issued

it

that

as

a I compared

prohibit the

and

movement

Convention

in

is

maintenance

high.

undertaking

ship

Attatchment,

1985,

with

its

ship

no

The

requires

more.

the

Overall,

59

to

list

of

movement

ship

at

of

more

(To

the

the

‘advantages”

1.

pp

the

2.

defendant arrest

exercise

the

3.

plaintiff

the

It

In

than

Mareva

The

advantages

79-80

prevents

Bailiff

extent

a

of

include

Mareva

one plaintiff

are

and,

of

Injunction

ship,

from

not

whatever

are

the

and

the

to

of

Injunction,

consequently,

applying

high.

issue

based it

Supreme

following:

the

being

security

is

Mareva

more

that

and

proceedings

assets

Where

to

on

removed

for

actually

the contrary

saisse while

the

Court

148

a

than ‘

a are

list

injunction Mareva

the

the

property

Mareva

one

covered

the

set

and

from

attendant

conservatoire,

take ship

and

to

ship

out ship.

the

the

Injunction

out is

Injunction

the

to

remains

as

by

overall arrested,

provisions is in

file

a Arrest jurisdiction.

applied

costs

in

Tetly

the

writ

an

such

injunction

in

can

costs affidavit.

in

L.M.C.L.Q., and

is

:

need

the

the

See

to

rem

custody

of

of

prohibit

expenses

ships

custody

inclusive

possession

a

only the

Tetly,

and

Thus

particular

and

Arresting 1952

when

may

file

make

the

February it

William

of

not

incurred

can

of an

Arrest

be

the

of

an

only

ship

very

the

ship

a affidavit.

following:

placed

ordered

court

from

date.

ship

who

either

can

case,

with the or

The

The only is

1.

not

the any the 2.

liable date

By

3. advantages

Where

to

be

charterer.

As ship

move

taken

the

earlier

of

Mareva

priority

arrest,

a

on Bailiff.

offending

the

ship his

the

of

issue

shown, ship,

the

is ship

claim injunction

over

With

arrested,

ship

of

the

ship

arrest

other

when is the

a out only

is

the

or Mareva

writ physically

vis-a-vis

does

claimants the

against

a

charterer, the

remedy

ship

in

claimant

offending not

rem

injunction,

owned

the

the give

for

149 put

and

the

property

Mareva

arrestor

breach

the

into

by claimant his

ship

plaintiff

the the

claim

the

is

of Injunction of

becomes charterer. owner

custody

under

this the

in

will

any

an

defendant,

order

or

receive charter

action

security

a of master

include

The

secured

the is

contempt in

Mareva and priority

court

is

that rem interest

the

in creditor

the

is, may effect and

person

as Injunction

in of

in

of

arrest

this

the

that abusive.

taken

On

powerful

Mareva

F:

the

to

CONCLUDING

4. whole Injunction

ensure It

As

It

device

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is

is

Examination early clear

the seldom

time that

will

Arrest

from will as

the

has

1980,

be

that

entail

more

COMMENTS the

already used device

of

the

Bland foregoing

the

a appropriate

where

arrestor

damages

“...the

in

arrest in

expressed practice

Jamaica.

ship

time list

of device

procedural suit

device a of arrest

may

seems ship

respective

if

the

It

has

it

remains

150

is come is

view is is

to shown also subject

employed

shown

device

be

when

that:

available.

“advtages” a

to

more that

to to

see

in

the

damages, have

for it

the

how

potent

is

Mareva

the

Caribbean a

been

and useful

particular

that

weapon.

whereas

to unjustified

may

care

what

device

Courts...”

prove

has

situation.

extent a

Mareva for

to

or

a

be

the

the ______maritime

seeking

extended

basically

is

deficiencies

effect

these

Jamaica

as

which

on

and provisions

lacunae

certain

Maritime

related

deficiencies

to

to

had

The

claimant. There

the unchanged. or Jamaica,

not

Also,

In

make

This in

rules

sanctioned

its

the

inherent relevant

therefore

1952 the

becoming

issues

Liens

roots

is

it again

case use

pertaining local

has doubt

Arrest

especially it

However,

of such

and

seems,

in

of

procedural

highlights in been

stipulations.

can

the

by the

Maritime a

U.K. surrounding

Mortgages.

as

party Convention.

facility.

the

hardly

provisions shown

to

may ship

as

certain

law

forced

U.K.

to

regards

the

and

arrest.

have

Liens, be this

such

that

Also,

international

Rules

overemphasized. procedural

the other

sale

Convention. of

to

there

as

the

The

the

applicability

Draft resort

with of

relate

rules

of

relevant

incorporation

an

are

need

151

Court

extended

Articles

arrested

to

possibly to pertaining requirements

dimension

this

to

that

promulgated

statutory

take

of

Convention

Also country’s

for

ship

legislation

present

adverse

note

of

to

a

to

it

is

new

a

interpretation. ship

need

seems

of

list some

a

positive U.K.

attempt

the a

International consequences

of arrest

to

century

has to

of

relevant maritime that

deal

be

Rules

come

these

are

adhered

to development

in

with

ago

give

largely the

where

preliminary

certain

Convention

liens

Convention

some

remain

case

for

legislative

to

there

in

as

of

of

well

the extended

Such

Arrest

provisions

maritime

Convention.

seek

arrest

domestic

in

a preferred

device.

ship

the

amendments

to

Convention.

and

practical

involve This

and provisions

Serious

matters.

Consideration

Although, context but

The

Maritime Finally

in

in

should

As

the aid

prompting matter

itself

purposes

thought

elsewhere

majority in should

of

and

of

the not

Liens

like Jamaica.

fully

of

the

importantly,

quest

only

of

Jurisdiction

take

should the

1956 the

served

in as of

the

mentioned,

Arrest

give the clearly

cases. for note furnishing

Mareva

U.K.

also

making

uniformity, by

rise

of

it

device,

this

these Act, be is

the

was

to

Injunction

the

but

given

device of greater

provisions of

legislative

noted

rules

subject

here

it security,

any

certainty

is 152

to

quite

and have new

that bears clarity

Jamaica

has

of

that of

Arrest overall, amendments international

important the useful

shown

reiterating,

and

the

in

of

next

becoming

the

initial justice

ship

is

in

it that

presently

also

chapter.

restraining

appears,

consequences

arrest.

source,

there

Jamaica

internationally rules

seem

a

a jurisdiction

party

are

ambiguous pertaining

arrest advisable.

that

the

basic should

to

is,

movement

in the

is

obtaining the

likely similarities the

in

Arrest

also

to

ship

to

of

be CHAPTER 5

Jurisdiction and it’s exercise in Maritime Matters

The International Dimension

153

be

to

is

law

country’s

Matters- which

-

jurisdiction

Maritime

5

in

Dimension

jurisdiction

154

Clauses

Actions

Context

Jurisdiction

exercise

Pendens

Actions

has

Law

will

exercise

Alibi

exercise’s

Rem

personam

CHAPTER

it’s

Jurisdiction

Court

court

In

Lis

In

International

General

General

court

Considerations

(iii)

(ii)

(i)

and

(iii)

(ii)

(i)

the

The

International

Law

If

Whether

Whether

General

Framework

(d)

applied?

(c)

(b)

(a)

Public

Jurisdiction

Municipal

Introduction The

Legal

1.

3.

2.

General A: If

Choice

and

Jurisdiction

and

claimant.

maritime

Provisions

155

the

and

law

Convention

Jamaican

Maritime

Remarks

for

Concluding

International

implications -

C:

B:

issues

Law into

foreign

claimant

dimension.

against

entered —

maritime

the

seafarers

contracts

or

Matters

international

Also

an

maritime

have

shippers

of

to

of charterer.

Maritime

5

underwriter.

dimension

tend

in

those

number

156

be

marine Jamaican

vast

nature

a

may

by the

exercise

of CHAPTER

foreign

its against

a

international

claims

one

claims

and

any

the

countries.

against

to

clainring

maritime

Framework

contractual

relate

assured

that

different

such

Legal

shipowner

local

Jurisdiction

from

a

instance

or

axiomatic

for

Jamaica,

foreign

is

parties

a

General

In It

Introduction

may

by

be

1.

A:

shipowners

daily

may They Otherwise, a claim may arise because a tort was committed a certain distance from shore thus falling within a particular nationally proclaimed maritime zone. Thus Jamaican fishermen may for instance, wish to claim damages from a foreign carrier which has spilled oil a certain distance from Jamaica’s shoreline.

In general, as ships are always moving to and from different countries and maritime zones, while occupying their central position in various international maritime transactions and relationships, inevitably problems with an international legal dimension will arise.

In today’s shipping world, the ownership, master, crew, management and registry of a ship might probably involve in each case a different country.

In the fmal analysis, different legal systems of different states may have an interest in a particular claim. A related issue might ultimately be as regards what one state or the other may or may not do.

As such, there is a necessary interplay between the umbrella public international law governing relationships between states and the narrower circumscribed municipal law, especially the conflict of laws of the particular state(s) concerned as regards maritime claims.

For the maritime claimant in Jamaica these preliminary issues, in this context, ultimately translate into questions as to the “Jurisdiction” (if any) exercisable by the Jamaican Court in respect of the claim concerned.

157 2. The Public International Law Context

From the perspective of public international law “Jurisdiction’ refers to the competence of the state to affect legal 1interests. In effect, it refers tot the authority of a state to govern persons and property by its municipal law (civil and 2criminal). This competence embraces jurisdiction to prescribe and proscribe, to adjudicate and enforce the 3law.

At the most basic level, the raison d’eire for a state’s exercise of jurisdiction is that the state has some relationship to, or interest in the person or property 4concerned. Jurisdiction is an attribute of state 5sovereignty. Thus, traditionally, the basis for jurisdiction of a state is predicated either on the fact that as every state has sovereignty within its own territory, that state can control and regulate matters concerning all persons, property and acts done within its territory, 6 or alternatively, that a state has a right to exercise jurisdiction over its nationals wherever they may 7be.

1 Seeeg: Ott, David H.: Public International Law if the Modem World Pitrnan, London, 1987 at p 135 2 Seeeg: Wallace, Rebecca M.M; International Law A Student Introduction, Sweet&Maxwell, London,1986 atp. 101 Ibid. ‘ See. Ott,op cit See, Brownlie, Ian; Principles of Public International Law, 3rd Edn, Clarendon Press Oxford, 1983 at p. 298 6 ie the territoriality principle, see eg. Ott, op cit, p136 and Bates,John W: United Kingdoms Marine Pollution Law, Lloyds of LondonpressLtd; 1985at p. 9. ie the nationality principle, see Ott, op. cit, p138;Bates,ibid.

158 a

has Ltd,

of

other

will

Such

(or Court

Sons

Jamaican

court

& 11.

maritime

a

court’s

apply

in

competence

Steven

jurisdiction.

Jamaican

summons Chapter

The Jamaica.1°

selected

will

its

in

the

of

the

to 1987,

with

London, writ

Court

a

jurisdiction

exercise

have

refers Edn,

character.8 litigation of

whether

to

in 10th

be

Jamaican Butterworths,

parties

it.

service

agree

founding

wifi

basically the potential

Laws,

the

on

of

of

to

will London,

before

proclaimed 159

based

party

claimant

whether

court Law,

Conflict

is

purposes

perspective of

purely

the

connection any

the

brought

For

law

are on

for

the

claim

Considerations

maritime

jurisdiction

matter

question International

whether

with

rules

the

a Morris

Law

is

has

of

country.

question

law and

maritime

municipal Private

defendant.9

related

the

any

other

the Dicey initial

the Court

case.

concerned

question determine

concern

of North:

is

dispute.

an

on

common

his from

not

Municipal

the

some

and

and

next

the

is

initial

of

there

3. generally

respect

the

hear

the

General

over

see in

process)

General law

relevant

to

Court

Cheshire

yes,

determine ibid. also

the

Jurisdiction

Whether

(a)

Here the

eg: Accordingly, (in) If

Thirdly, The

court

or

and See Ibid,

(b) Vide: 9&10.

state 10 8 matter hear originating Chapter

Law

jurisdiction jurisdiction the

power

claim,

which

Court

the

with on

otherwise

Jamaican

is

liable

jurisdiction.

freight)

or

the

or

person

give

exercise

the

cargo

Jamaica

will

will

with

(ship,

against

court

160

defendant

the

the

property

brought

connection

on

rem”.11

be

whether

in

to

against

writ

may

factual

or

the

no

‘action

of

claims

relevant

an

have

be

Jamaica.

service

personam”

may

in

only

in

through

Maritime

4

trial

mere

which

may

for

the

‘taction

Chapter

Jamaica,

action

an

concerned

Thus,

In

also:

is

an

See

try

considerations to inappropriate

claim through (ii) Actions in Personam

The Jamaican Supreme Court has 12jurisdiction to entertain an admiraky action:

(1) if the defendant (or his agent) is served with a writ in Jamaica;

(2) where the defendant (or his agent) 13submits to the jurisdiction of the court; or

(3) where the court assures jurisdiction under its discretionary power to permit the service of the writ outside the jurisdiction of the defendant (or his agent).

The circumstances under which the Jamaican Supreme Court may assume “extra- territorial” jurisdiction, that is, grant permission for service of a writ outside the jurisdiction is governed by Section 45 of the Jamaican CivilProcedure Code.

The section provides (in so far as is relevant to maritime claims) as follows:

“Service out of the jurisdiction of a writ of summons, or notice of a writ of summons may be allowed by the court or a Judge whenever

(c) any relief is sought against any person domiciled of ordinarily resident within the jurisdiction; or

.(e) the action is founded on any breach or alleged breach, within the jurisdiction, of and contract wherever made, which according to the terms thereof ought to be executed according to the law of this island; or

12 Seealsoinfra,forspecial stipulations re exercise of this jurisdiction in Collision cases, and generally Dicey andMorris, andCheshireandNorth, ibid. Suchsubmissionmaytakeplace in variousways eg; by institutingcourt proceedings in a particular matter, a Plaintiffin effect submits to thecourt’s jurisdiction toentertain a counterclaimagainsthim in some related matter;seeDicey and Morris, op ciL Ip.19 et seg.

161 (ee) the action is founded on a tort committed within the jurisdiction

• . . (f) any injunction is sought as to anything to be done within the jurisdiction...

(g) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction.

(iii) Actions in Rem

The Supreme Court has jurisdiction to entertain an Admiralty action in rem if the writ is served on the res in Jamaica or is deemed to have been duly served on the 14defendant.

(c) Whether the court will exercise Jurisdiction

(in) General

Jamaican courts have a discretionary jurisdiction, whenever it is necessary to prevent injustice, to stay or strike out an action or other proceeding in Jamaica.

A mere balance of convenience is not sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in a Jamaican Court, if it is otherwise properly brought.

However, a stay will be granted if:

(a) continuance of the proceedings will cause injustice to the defendant and,

(b) a stay will not cause injustice to the plaintiff.

See:chapter4 andThe RulesoftheSupremeCourt of Judicature ofJamaicain the AdmiraltyJurisdiction,

Rules1and 5.

162 less

London,

or jurisdiction

1983,

country

advantage

court.’15 ...

Edn, whose

Jamaican

17

abroad:

situations:

to

substantially

7th the

foreign

at

juridical

a

and

of

versa.

or

in

staying

forum

distinct

by

vice

and

parties

Dictionary,

Jamaica

two

or

the

issues.

in

personal

in

another

Law

satisfied...

jurisdiction

thus:

is

Jamaica interfere

be

the

812.

abroad,

in to

similar

at

between Concise

there

Jamaica

or

must

defendant

legitimate

163

795

in

a

that asked

done invoked

of

pending

same

A.C.

be

same

Osbom’s

defendant

be he

considerations

action

court

is if are

the

per

the

can

may

an

conditions

(1978)

the

him

plaintiff

sues

and

Lid two stay

to

actions court

the

Jamaica

justice

applicable to

satisfy elsewhere”

involving

in

the

Glass

stay,

the

a

cases.

plaintiff

and

which

expense, asked

must

deprive

available

pendens16

pending

which

in

or

be

stated

be

not plaintiff

same

on Rockware

justify

simultaneous Suit

collision

parties

v

the

may “a

to the

alibi

re

must

that

defendant

would

same

Diplock is

amenable

ground

p.207

Lis

court

infra,

means order

stay

the

where

where

is

Shannon

the

In (a)

Lord

he inconvenience (ii)

which

the One

(a)

(b)

The

also,

Mac

(b)

In

See Maxwell, Literally

proceedings between

16

17

Sweet& r

(iii) Foreign Jurisdiction Clauses

The common law position is that where a contract provides that all disputes between the

parties are to be referred to the exclusive jurisdiction of a foreign tribunal, the local court should

stay proceedings instituted in breach of such agreement, unless the plaintiff proves that it is just and proper to allow them to 8continue.’ (d) If the Court exercises Jurisdiction, which law is to be applied

(i) General

The presence of a foreign element of any kind in any dispute raises the possibility that

foreign law may be used by the Jamaican Court to resolve that dispute.

In order to determine which rules of foreign law (if any) are to be applied, a court will

classify a maritime claim or issue and attach to it its concomitant choice of law rule.

if the issue is a procedural one, then the law to be applied is the lex 19fori. if it is a

substantive law issue the choice of law rule is selected and applied as is appropriate to the claim.

What rule is appropriate will depend on whether for instance, the claim is one arising from

breach of contract or commission of a tort.

18 See:Oland,A. Barry: ForumnonconveniensinCanada:The Common Law position, The Federal Court of Canada, suggested Reform, Meredith Memorial Lectures, Richard de Boo Publishers, 1987; Diceyand Morris, op. Cit., p255 19 the law of the forum or court in which the cases is tried.

164 (ii) Maritime Contracts

The basic principle applicable in Jamaica is that, subject to statutory provisions (if any), and public policy considerations, issues will be referred to their proper law. Each maritime contract is thus to be linked to its proper law.

Thus, in National Chemesearch Corporation Caribbean V.Davidson 1966, 9

JL.R.468, 471, Graham-Perkins, J. (Ag) in a judgement of the Jamaican Supreme Court states that:

the legal system by which the essential validity of a contract must be determined is what has been called the proper law of the contract.”

The proper law of the contract is the system of law by which the partied intended their contract to be governed, or, where the intention is neither expressed nor to be inferred from the circumstances, the system of law with which the transaction had its closest and most real °2connection.

(iii) Maritime Torts

Cheshire and 21North state the position at common law thus:

The law that governs maritime torts depends upon whether they have been committed within the territorial waters of some state or upon the high 22seas”.

seeeg.Scott,A:W:: Private International Law, (ConflictofLaws),1979 at p. 208quotingDicey. 21 op cit.

165 If the tort is committed in the territorial waters of some foreign state, then the ordinary

rules relating to torts committed in foreign countries would apply.

As a general 23rule, an act done in a foreign country is a tort and actionable as such in

Jamaica, only if it is both:

(a) actionable as a tort according to Jamaican law (lex fori) or to put it differently, is an

act which, if done in Jamaica would be a tort; and

(b) actionable according to the law of the foreign country where it was done (lex loci delicti 24commissi)

Thus, according to the common law position, where torts are committed within Jamaican

Territorial Waters, the applicable law is Jamaican.

Where the tort is committed in the territorial sea of a foreign state, the locus delicti is

deemed to be the littoral state rather than the country of the ship’sflag and the applicable law is

accordingly that of the littoral state.

For acts committed on the High Seas a distinction is made between torts having

consequences external to the ship and those having purely internal consequences.

In the latter case, the maritime claimant who sues in Jamaica, in respect of acts, all of

which have occurred on board a single foreign vessel, must prove that the conduct of the

defendant was actionable by the law of the flag and that it would have been actionable had it

Ibid.,p Theexceptionalcircumstancesrelatetowhereresortmayalsobe hadtothelawofanothercountry if thishas themost

significantrelationshipwiththeoccurrence and theparties;see DiceyandMorris,p 927. the lawof theplacewherea torthasbeen committed,seeScott,op.cit;p.7

166 occurred in Jamaica.

All other acts occurring on the high seas and later put in Suit in Jamaica must be tested solely by Jamaican maritime 25law.

B: International Convention Provision and Jurisdiction and Choice of Law issues-implications for the maritime claimant.

(in) General

In the United Nations publication, “Guidelines for Maritime Legislation”, it is stated:

“There is no International Convention regulating Conflicts of Law problems on a worldwide 26basis.”

Although this statement remains apposite today, there are a number of maritime conventions with provisions dealing directly with the question of Jurisdictions and/or rather more indirectly with that of choice of law.

Even where such issues are not at all adverted to by any provision in a maritime convention, Jurisdiction and Choice of Law jurisprudential ramifications may yet be inferred for the maritime claimant from such convention provisions.

Of the various Conventions dealing more directly with issues of Jurisdiction and (to a lesser extent) Choice of Law, Jamaica is only party to those pertaining to the Law of the Sea.

In the case of the International Convention for the Unification of Certain Rules

SeegenerallyCheshire andNorth, opcit.p. 545 etseq. at p. 246.

167 Concerning Civil Jurisdiction in Matters of collision, 1952, provisions of this Convention have slipped into Jamaican Law by way of extended Imperial Statutory provisions. This is by virtue of Section 3 of The Admiralty Jurisdiction (Jamaica) Order in Council, 1962 (U.K.) extending provisions of The Administration of Justice Act, 1956, (UK) which gave legislative effect to that Convention.

Jamaica is a party to The Montego Bay Convention of 1982 27 The Geneva

Convention Zone on the Territorial Sea and Contiguous Zone, 1958 28and The Geneva

Convention on the High Seas, 1958. 29

Generally, these Conventions raise somewhat different issues as regards Jurisdiction and

Choice of law than the rest of the Conventions, provisions pertaining to such issues.

Accordingly, it is convenient for this reason as well as the fact that Jamaica is only a party to the Law of the Sea Conventions to first consider for purposes of analysis these

Conventions and the others after.

However, as the relevant provisions of the two Geneva Conventions have been essentially reproduced in the more recent and comprehensive Montego Bay Convention, discussion will primarily be focused on the provisions of the Montego Bay Convention.

Moreover, the provisions to be considered are generally acknowledged to be , in any event,

now part of international customary law.

27 JamaicaratifiedMarch2l,1983 JamaicaacceedOctober8, 1965 JamaicaacceedOctober8, 1965

168

is

or

of

the

by

as

person

the

coastal

board

the

stopping

purpose

territorial

incurred

execution

that

the

on

with

the

the

provides

the

or

of

of

It

levy

in

for

through

to

person

a

waters

ship

Waters,

ships.

lying

person,

assumed

to

state

exclusively

waters.”

the

the

passing

ship

foreign

deals

ship

relation

arrest coastal

particular

to

Territorial

liabilities

through

in

a

or

foreign

the

or

a

international

of

foreign

a

relation

voyage

against

against

Convention

169

Jamaican

right

in

its

leaving

jurisdiction

the

divert

the

Bay

of

obligations

issued

to

or

proceedings,

of

28.

civil

after

execution

been

stop

civil through

sea

Jurisdiction

purpose

Montego

levy

of

Article

respect

has

not

the

prejudice

in

is

not

exercising

‘Civil

writ

for

passing

of

a

territorial

that

should

only or

may

purpose

extensive

Conventions

without

ship

the

a

the

is

save

state

state

where

very

2

captioned

course

Sea

purpose

for

is

the

board

the

the

through

the

of

jurisdiction,

coastal

coastal

in on

arrest

for

of

to

be

one

Article

Paragraph

civil

The

The

sea

proceedings,

to

itself

or

3.

Accordingly,

passing

1.

of

2.

Law

This

Only

or

civil

ship

(2)

known

sea,

against

state.

the

any

ship.

territorial

follows: question diverting of the ship for the purpose of serving a writ (or other originating process) on such a person so as to make him subject to the court’sjurisdiction.

Thus, one may sardonically picture a frustrated maritime claimant sitting on a Jamaican beach with his high powered binoculars, watching and lamenting: “there he goes cruising through again! !“

Where a ship is not lying in or passing through the territorial sea on its way from local internal waters (or otherwise within local jurisdiction) it may only be arrested in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through Jamaican waters.

Otherwise, arrest is permitted in accordance with Jamaican law as discussed in the preceding chapter.

One basic objective of the Article, it appears, is to ensure that innocent passage through the territorial Sea is not fettered by the application of the littoral state’scivil jurisdiction. (There is less restraint imposed on the coastal state as regards exercise of its criminal jurisdiction in appropriate cases: (see:Article 27).)

Article 28 (3) uses the expression “lying in the territorial sea”. Presumably this is not

simply equivalent to “stationaryin the territorial sea”

If “lying” is to be taken to mean “stationary simpliciter” then it seems to the writer that

this would run counter to the objective referred to , in light of Article 18 (2) of the Convention.

Article 18 is captioned: “Meaning of passage”. Article 18 (2) provides as follows:

170 still

of

and

the

The

be

so

be

distress

for

on

Article

the

said

or

not The

not

distress”

in

would

stopping

sovereignty

to

the

provisions

of

solely

was

of

it

any should

sea

majeure

caption,”

if vessel

paragraph,

it

Convention

danger includes

stationary

Schedule the

with Jamaica’s

in

force third

1965.

to 1958

arrest,

provisions

by

8,

being territorial

the Law:

to

under

the

Samaritan

passage

of

the

the

aircraft

of

presumably

Act

to

in

or

pursuant

20

good inconsistent

Statute

change October

sense ordinary

Sea

is

amenable

the

to

on

effect it

the

ships However, follows: it

distress,

taking,

Article

in

as

in

give

since

stationary,

party

Jamaican 171

cosmetic the

which

a

to

render

Territorial

so,

of

lying

to

persons,

incidental

to into

thus

vessel

be

to

minor is provides

The

as

are

expeditious.

to

a

passed

of

became

so

extent

predecessor,

and

literally

and for

enacted

another

its

was

same

sea.

sea restrictive

be any

to

of

appears

process”,

to

assistance

the

are

Zone.

Act

Jamaica

except

stopped SectionS

as

that

already

would

civil

This

they

This

to

is

it

20,

far

that

has

territorial territorial continuous

lawful

of

as

which

20

so

assistance

be

be

the the

rendering

to

far

in

1971.

Contiguous

noted

in

of

vessel

Article

so

clearly,

stopping.

wording

a

shall

shall

be

Article

Act,

in

only and

if

in

execution

through

rendering

of

but “lying”

Sea

Sea

before

regards

sea.

purpose

of

should

as

Convention,

“Passage

Hence, Although, It

“Nothing Further,

As

the

identical

convention

is

for

“passage”

anchoring,

or amenable territorial deemed in purposes 28

Territorial Territorial Geneva

Restriction the over The territorial sea of measures for the purposes of the execution of civil process of the

exercise of civil jurisdiction.

The territorial sea itself qua maritime zone within national jurisdiction, ipso facto, ultimately entails consequences for the maritime claimant as regards Jurisdiction and Choice of

Law issues.

Starke 30notes that “For the purpose of territorial jurisdiction, besides actual territory, it has been customary to assimi (the territorial sea)... to state 31territory.

Here, it should be borne in mind the provisions of Article 2 of the Montego Bay Convention

which (like its predecessor Article 1 of the 1958 Convention on the Territorial Sea and

Contiguous Zone) provides that:

“The sovereignty of a coastal state extends beyond its land territory and internal

waters...to an adjacent belt of sea, described as the territorial sea”.

Article 3 of the Montego Bay Convention provides that:

“Every state has the right to establish the breadth of its territorial sea up to a limit not

exceeding 12 nautical miles...”

The extent to which this is done by a particular state is left up to its municipal law. In the

case of Jamaica, its territorial sea breadth has already been established by The Territorial Sea

Act.

° Starke,J.G.:AnIntroductionto InternationalLaw, London,Butterworths,1977. 31 Ibid.,p 264,Seealso:Menon,P.K.: The Commonwealth Caribbean and the Developmentof theLaw of the Sea,Commonwealth Caribbean LegalEssays,FacultyofLaw,U.W.I., Barbados, 82 at p 91.

172 Section 3 (2) of this Act provides that:

“The territorial sea shall be twelve miles in breadth or have such other breadth as may be prescribes”.

The Jamaican Parliament was empowered to pass such legislation in accordance with the provisions of Section 3 of the First Schedule to The Jamaica Independence Act, 1962,

(U.K.)

Section 3 provides that :“The legislature of Jamaica shall have full power to make laws having extra-territorial operation”.

Despite this provision, it appears that up to the time of the passage of The territorial Sea

Act, the prerogative of the Crown, (that is, the English Monarch), to prescribe the limits of

Jamaica’sTerritorial Sea was still intact or at least the position as regards this was not unequivocal was in light of Jamaica’s constitutional status as a monarchy and the position at common law as regards the Crown’sprerogative to delimit maritime territorial bounderies.

Regina v. Kent Justices Ex parte Lye (1967) Z W.H.R 765.

Such a situation was patently undesirable in light of Jamaica’sindependent status.

Moreover as intimidated in the present context, significant consequences appertain to the bounderies of the territorial sea as regards the possible enforcement of a maritime claim.

Accordingly: it is only appropriate that such powers should vest indubitably and solely with the Jamaican Parliament.

Thus, Section 6 (1) of The Territorial Sea Act vests the relevant Minister with power,

173 inter alia, to defme the limits of the Territorial sea (per sub-paragraph (b) and to prescribe

“anything authorised or required by this Act to be prescribed” (per sub-paragraph (f)). Most importantly, Section 7 of the Act stipulates: “This Act binds the Crown”.

Accordingly, Henriques 32 observes that: “In Jamaica the prerogative right of the

Crown to determine the maritime boundary of the state and the limits of the territorial sea has been abrogated by statute. The Crown has lost the right to extend the sovereignty of the state beyond its land territory by virtue of the Act. The prerogative power of the Crown has been replaced by the statute. The extent of the Sovereignty of the State of Jamaica has been fixed by the Territorial Sea Act, which can only be altered by an amending Act of 33Parliament”.

The net result is that Jamaica’s sovereignty is extended to the 12 miles breadth of the

Territorial Sea and the power to affect such breadth resides solely with the Jamaican Parliament.

Further, where there are Adjectival law or conflict of Laws stipulations which refer to “in

Jamaica” or “thejurisdiction”, or whose ramifications relate to the territorial extent of Jamaica and its waters, then such stipulations, prima facis, bring into issue the territorial sea of Jamaica and its ambit.

Such considerations as will be shown shortly are particularly relevant to questions such as those of the exercise of the court’sassumed or extra-territorial jurisdiction and Choice of

Law as regards maritime torts.

Henriques notes that:

Henriques,R.N.A.: The JurisdictionoftheCourtsin Territorial Waters,3.L.J. July 1975, p. 46 Ibid.,p51

174 “Since the sovereignty of Jamaica is extended to the breadth of the territorial sea, concomitantly, its laws, both common law and statute are similarly extended. It follows by parity of reasoning that the Laws of Jamaica will be applicable to all persons found in the

Territorial sea”

From this it is clear that the restraints placed in respect of the exercise of civil jurisdiction in the territorial sea operates as a fetter on the sovereign rights of Jamaica.

In this context Starke indicates that provisions such as those of Article 28 “... impose limitations on the jurisdictional rights of the coastal state in the interests of minimizing

with shipping in transit”. interference 35

A significant feature of the Law of the Sea traditionally is its division of international maritime space into zone which fit neatly into a dichotomy of being within or beyond national 36jurisdiction.

O’Connel notes that “The division of the sea into various zones which in modern parlance are zones of “national jurisdiction” or “beyond national jurisdiction” has meant that there are varying scales of competence of coastal states and shipping states over things, persons, and events at sea” 3’

The territorial sea and internal waters are well established zones of national jurisdiction.

Thus, expect where there are particular derogations from the littoral state’sjurisdictional rights,

Ibid., p 50 Opcit,at p. 265 O’Connel,D.P.: The International Law of the Sea,ClarendonPress,1984,vols 1&2 Ibis., p. 733 (Vol.2).

175 in accordance with international law, ships and persons entering such zones are normally

subject to the littoral states civil jurisdiction.

Exceptions in respect of the Territorial Sea have already been noted.

Internal Waters encompass ports, harbours, lakes and canals and generally the baselines

used in measuring the breadth of the territorial 38sea One possible exception regarding the

exercise of civil jurisdiction in these waters has been noted in respect of Ports.

Starke states:

“The general rule is that a merchant vessel enters a port of a foreign state subject to the

local jurisdiction. The derogations from this rule depend on the practice followed by each state.

There is, however, an important exception which belongs to the field of customary international

law, namely that a vessel in distress has a right to seek shelter in a foreign poet, and on account

of the circumstances of its entry is considered immune from local jurisdiction, subject perhaps

to the limitation that no deliberate breaches of local municipal law are committed while in port.

On the other hand, some authorities concede only a qualified immunity to such 39vessels”.

It cannot be said with any certainty what approach would be taken in Jamaica in such

emergency cases as regards the exercise of local civil jurisdiction.

However, largely on an apriori basis, it seems to the writer that it would be unlikely that

such a claimed immunity would easily move a court to say, order the release of a vessel that has

38 Vide:Article8,MontigoBay Convention; Churchill, R:R andLowe,A.V.: The Lawof the Sea, Manchester UniversityPress,1stedn,1983,at p. 45; Akehurst op cit., at p. 26<; Shaw, Malcom: InternationalLaw,1977, London, atpp239-240 op cit,at p267

176 been arrested in such alleged circumstances.

This is, so because of the evidentiary questions involved and if such a claimed immunity was to easily succeed then this would conceivably open the floodgates for such immunity claims in the future. In time perhaps what would have started as an immunity based on noble considerations would conceivably degenerate into a mere “defence” in the armoury of legal councsel.

Although, admittedly there is a strong parallel between this situation and the hypothetical

situation discussed as regards a ship stationary but presumably not “lying” in the Territorial Sea

because of special considerations.

Other traditional maritime zoned include the High Seas which is outside national

jurisdiction.

Importantly, the Montego Bay Convention has introduced the concept of the Exclusive

Economic Zone (EEZ).

Although the Convention is not yet in force, this concept is generally regarded as now part of international customary °4law. It is being contended by the writer that this new concept may ultimately have significant

See generally:Attard,David:TheExclusiveEconomicZonein InternationalLaw, ClaredonPressOxford, 1987,chap. 8; Lupinacci,JulioCesar:TheLegalStates of theExclusiveEconomicZonein the 1982Conventionon the Lawof the Sea and Schreiber,Alfonso Arias:TheExclusiveEconomicZone:Its LegalNature and the Problemof Military Uses, Chapters6&7respectively of: ViennaFrancisco Ouuego:TheExclusiveEconomicZone:A Latin American Perspective, Western Press U.S.A. 1984

177 jurisprudential ramifications as regards Jurisdiction and Choice of Law issues under Jamaican

Law.

This is so as, inter alia, it appears to disturb the traditional and more jurisprudentially convenient dichotomy of maritime zones being clearly within or beyond national jurisdiction.

Yet, some of the rules which arise in the context of the Conflict of Laws seem to be, inter alia, predicated on just such a dichotomy

Two examples to be considered later in this chapter are in respect of:

(1) the assumption of extra-territorial jurisdiction by a Jamaican Court in relation to

maritime torts; and

(2) the choice of Law rules applicable to such maritime torts.

However, it is first necessary to consider the legal character of the E.E.Z.

Articles 55,56,58,59and 86 point to the essence of the concept.

Article 55 provides the captain “specificlegal regime of the exclusive economic zone” as follows:

“The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal state and the rights and freedoms of other states are governed by the relevant provision of this convention”

Article 56, captioned “Rights,jurisdiction, and duties of the coastal state in the exclusive

178 economic zone” provides:

1. In the exclusive economic zone, the coastal state has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;

(ii) marine scientific research;

(iii) The protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other

States and shall act in a maimer compatible with the provisions of this Convention.

3. ...

Article 58 deals with Rights and duties of other states in the E.E.Z.

Here, all states are granted certain freedoms of communication as pertains to the High

Seas, such as freedom of navigation and overflight.

179 the

states

the

and

by

coastal

on

the

the

Seas

constituted

in

to

overflight

of

states

adopted

archipelagic

protection

High

sea,

regime

all

as

the

rules

the

by

in

included

legal

such

or

other

with

navigation,

not appertaining

territorial

regulations

of

as

and

enjoyed

are

state,

the

deals

and

specific

part”

a

matters

to

a

purposes;

those

that

of

to

this

laws

as

which

sea

freedoms

the

convention

with

the

Convention

specified

adjacent waters such

the

subject

58”.

economic

the

of

with

of

this

and

180 in

and

for

of

parts

regards

Convention

internal

article

seas

as

all state

the

the

beyond

‘comply

incompatible .

and to

with .. in

of

high

state

not

communication 7

abridgement

area

to or

provisions

coastal

contemplated

the

of

apply

are

an

Part

any

the

sea,

in

the

is

coastal

to

Part

they

of

duties

accordance

required

with

the

entail

environment;

as

in

this

freedoms cables.

E.E.Z.

and

of

are

included

far

not

of

rights

territorial

the

reference zone

so

not

marine

the

state’s

states rights in

does

in

in

accordance sea

the

86

submarine

law

in

of

sovereign other

other

jurisdiction

the

provisions

of

article

zone,

economic

of

(4) (3) (1) (2)

state

However, Article

The

Accordingly,

This

part

laying

a

international coastal that:

state. exclusive

exclusive state; by and preservation embracing: r

From the foregoing, one is prompted to ask to whom really does the zone belong?

Related to this is the issue of to whom may be attributed the so-called residual rights, that is,

those rights which are not expressly conferred either on the coastal state nor on other states.

These issues are of relevance in the present context because the convention does not

specifically address the question of the exercise of civil jurisdiction in or regarding the 41E.E.Z.

This seeming omission from the convention could simply be because the issue does not

at all arise as regards this maritime zone.

Alternatively, despite any express reference to the exercise of civil jurisdiction pertaining

to the E.E.Z., inferences as regards such exercise may nevertheless be drawn upon perusal of

the Convention Provisions.

It is being contended that the latter is indeed the case.

At this point, the provisions of Article 59 should be noted. Importantly, they attempt to

address the residual rights issue.

Article 59 provides:

“In cases where this convention does not attribute rights of jurisdiction to the coastal

state or to other states within the exclusive economic zone, and a conflict arises between the

interests of the coastal state and any other state or states, the conflict should be resolved on the

41 Churchhilland Lowe,opcit,at p. 129forinstanceindicatesthatif theE.E.Z. is deemedTohavea residual territorial sea character,thena presumptionwouldarise:‘that nay activitynotfallingwithintheclearlydefinedrights ofnon- coastalstateswouldcomeunderthejurisdictionof the coastalstate”.

181 basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’. This was the closest the convention comes (and apparently could have )42come in addressing the residual rights issue.

It is clear from its wording that Article 59 does not resolve the residual rights question.

Essentially, the Article merely proffers resort to equitable principles in resolving disputes between states when in fact the matter of residual rights do come into issue.

Thus Article 59, in effect, leaves open for instance, the question as to whether the littoral state has rights under international law to prescribe and enforce rules in the E.E.Z. as regards say, ship arrest in a manner analogous to and in extrapolation of such right in The Territorial

Sea.

So, in spite of Article 59, there is still the basic question of whether the E.E.Z. is a zone of national jurisdiction so as to render it generally up to the coastal state to, as it wishes, exercise its civil jurisdiction territorially over the zone, as it does over the Territorial Sea.

It is widely accepted that the E.E.Z. is a zone sui 43generis. It is clearly distinguishable from the territorial sea and the high seas although containing elements of both.

Thus Lupinacci states in reference to the Law of the Sea Conference and the zone:

“In the view of the great majority of the delegates, participating in the conference, the

42 In ordertoarriveata compromiseposition,seeLuppinacciandSchreiber,ibid Seeeg. Churchill andLowe, op cit., p 130

182 Exclusive Economic Zone is not a part either of the territorial sea or of the high seas; it is a zone sui generis, with a statute of its own that does not fit into the classic 44moulds.

Schreiber argues 5 that the E.E.Z. is not only a zone sui generis but also a zone of national jurisdiction.

His arguments may be summarized as being based on the following:

1. the nature of the concepts used to characterise the zone, that is, “sovereign rights”, and “rights of sovereignty” and importantly that of “jurisdiction as used in Article 56(1)(b);

2. the scope of the rights ascribed to the coastal state in the E.E.Z., which leaves to other states only the freedom of international communications the exercise of which is itself limited;

3. related to (2), a balancing of the rights and jurisdiction of the coastal state against the freedoms and rights of other states in the E.E.Z., from both a qualitative and quantitative viewpoint tilts the scale a great deal in favour of the coastal state;

4. the powers accorded to the coastal state to ensure compliance with its laws and regulations in cases expressly provided for, including the visit, inspection and seizure of vessels and the institution of proceedings against vessels;

5. the great majority of coastal countries consider the E.E.Z.a zone of national jurisdiction in relation to which they feel empowered to legislate;

6. the prevailing opinion today is that due to geographical, economic, social and security

considerations, the coastal state has a right superior to that of any other over resources of its

Ibid., p105 Ibid.

183 adjacentseas and to protect other interests of its population within a zone not exceeding 200 miles;

7. the uses of third states are marginal with respect to this zone, in which they do not exercise any special competence but only jurisdiction over their own vessels; and

8. the continental shelf is a zone of national jurisdiction and as the seabed and subsoil sectorof the E.E.Z. is indistinguishable from the continental shelf up to a distance of 200 miles from the relevant baselines and also since that sector of the E.E.Z. along with its superjacent waters form an indivisible zone, the E.E.Z. is a zone of national jurisdiction.

If indeed the zone is one of national jurisdiction, then this would imply that the coastal

statewould have the blessing of international law to pass laws relating to the exercise of its civil jurisdiction so as to fully affect foreigners or vessels in the zone, subject to any derogations from the exercise of such rights as provided for by international law.

However, Attard, while acknowledging the sui generis character of the zone, warns of

thedanger as well as questions the validity in modern times of dividing up world maritime

spaceon the basis of sovereignty.

He asserts:

The division of the oceans today on the basis of sovereignty, however, is a solution as

dangerousand as obsolete as the maintenance of an unrestricted concept of the freedom of the

seas.Clearly, therefore, neither sovereignty nor freedom today provides an acceptable basis for

aviable regime to regulate uses of the sea beyond the territorial 46sea

184 Lupinacci observes that:

“the classic clean-out division between maritime spaces, subject either to the statute of sovereignty or to the statute of freedom, has been left behind by the evolution of the Law of the 47Sea”.

In the E.E.Z., Lupinacci sees that:

“...there is a distribution of residual rights in favor of the coastal state with respect, essentially to economic and associated interests and in favor of all states with respect to the interest of international communication. There remains the no-man’s-land, which would seem to be constituted of other interests with no well defined legal protection and governed by the provision of Article 59, whose application to each specific case may give rise at the time to serious difficulties of 48interpretation”. The precise legal states of the E.E.Z. is clearly enmeshed in doubt. State practice or further international rules might in time help to clarify the matter. Hence, in the context of this

chapter sweeping generalization as regards the effect of the new concept would seem

inadvisable.

Nevertheless, in so far as Article 56 (1)(b) specifically invests the coastal state with

jurisdiction in respect of a number of matters, it seems to the writer that littoral states are at least

competent to extend their civil jurisdiction to encompass such matters as they pertain to the

E.E.Z.

‘ Op.cit.,pp 308-309 0p. cit. p.105 Ibidp.110

185 Perusal by the writer of various post-convention national 49enactments on the E.E.Z. did not reveal any specific reference to the exercise of state civil jurisdiction in the zone.

Typically, in the various enactments such as those of the 50U.S.S.R. Indonesia 51, Equatorial Guinea 52 and the 53U.S.A. there are only stipulations, as to the particular state’s jurisdiction in the E.E.Z. over.the matters mentioned under Article 56 (l)(b).

Jamaica is yet to declare an E.E.Z. However, the preparation of an E.E.Z. bill is 54underway.

While, specific reference need not be made to the exercise of civil jurisdiction in such a bill, it is the writer’s submission that the declaration of an E.E.Z. should be followed up by alterations being made to particular Jamaican Conflict of Laws rules pertaining to maritime claims.

Thus, the statutory requirement for the exercise of the court’s extra-territorial jurisdiction as regards maritime torts should concomitantly be changed.

It should stipulate that torts committed within the E.E.Z. and failing within the ambit of those matters embraced by Article 56 (1) (b) should be deemed as committed within the jurisdiction for purposes of the relevant statutory provision.

As reproducedin. TheLaw of the Sea:NotionalLegislationon theExclusiveEconomicZoneand the ExclusivefisheryZone,U.N..NewYork, 1986;See also:Moore,Gerald:Coastal Staterequirementsfor foreignfishing,FAO Legislative Study21 Rev. 3. Rome, 1988 50 Decreeof the Unionof SovietSocialistRepublicson theEconomicZoneof 28 February1984 51

52 actNo 15/1984of 12November1984on the TerritorialSea and Exclusive Economic Zone. Proclamation5030, 10 March1983by thePresidentof theUnitedStates of America. See eg. dailyGleanerReport,January13,1989at p.2 TheBillappearsto be at its veryformativeand “confidential”stageand thusattemptsby the writerto procurea copyof whathas been doneso forwas unsuccessful.

186 Similar considerations should also apply in respect of the application of Choice of Law

Rules pertaining to Maritime torts.

Both conflict of Laws issues are in fact presently reside on the traditional dichotomy of maritime zones being within or beyond national jurisdiction.

An oil spill in a state’s E.E.Z. clearly runs afoul that state’s interests in protecting and preserving the marine environment as provided for by Article 56 (1)(b).

Hence, Jamaica, when it enacts E.E.Z.legislation ought to ensure that there are no jurisdictional impediments as now presently exists as regards prosecuting a claim for compensation arising from such a spill, say twenty miles from shore.

Firstly, it seems the E.E.Z.law ought to be enacted as a matter of urgency.

It is obvious that Jamaica has nothing to loose by declaring such a zone. Although,

Jamaica as a “Carib-locked” geographically disadvantaged country with an E.E.Z., with resources of relatively limited economic value, has never been particularly enthusiastic about the

E.E.Z.in the first 55place.

However, it ought to see the matter of the Commission of maritime torts such as the

spilling of oil in its E.E.Z. as cogent reason to enact E.E.Z. legislation and concomitant jurisdictional provisions to protect its interest in having its nationals obtain compensation from,

say, delinquent shipowners’ for damage and losses sustained of a result of such a spill.

See:Rattray,K:o:,Kirton;A and Robinson,P. Theeffectof theExistingLawof theSeaon theCaribbean Region and the Gulf of Mexico, inPaceminMaribus:CaribbeanStudyand Dialogue256-257(Borgese,E. (Ed) 1974); Lewis,VaughanA: The Interests of the Caribbean Countries and the Law of the Sea Negotiations in Maritime Issues in the Caribbean, Thabvala, Farrokh (Ed), 1,3.; and Hyman, Hugh: The CommonHeritageofMankind, LLB dissertation (unpiublished) U.W.I. Cave Hill, Barbados, pp 94-97.

187 As the law stands at present, if such an oil spill was to take place one hundred miles from shore causing extensive damage to fisheries stocks up to a distance of thy, fifteen miles from shore then the tort is deemed to have taken place outside of Jamaica’s jurisdiction.

It appears to the writer, that such an issue may also be seen in terms of whether or not the facts give rise to a cause of action.

However, in the present context, it is appropriate to emphasize the maritime conflict of laws dimension. In any event, it would have to be made to the Jamaican private international law rules.

This is so because assuming that there is a cause of action, then it is probable that such a ship, its master, owner and crew would not be within the reaches of the courts normal territorial jurisdiction.

Thus Abecassis 56 notes:

“unfortunately for the potential plaintiff in an oil pollution case, the chances of the ship which caused the damage, or a sister ship or its owner or master being within the jurisdiction at some time after the writ has been issued are not very 57great”.

This therefore rules out the ship’s arrest as well as that of service within the jurisdiction.

The only alternative would thus be to attempt to effect service out of the jurisdiction.

Abecasis,DavidWilliam: The Law and Practice relating toOilPollutionfromShips,London,Butterworths, 1978. Thid.,p. 152.

188

1980-

for

island’s

court’s

(1)(b)

1980-1983

Jamaican

the

industry,

of

the

56

(Jamaica),

structures;

been

committed

of

blessing

and

between

tort

have

private

a

tourist

Article

Pollution

to

Jamaica.

particular

on

and

Programme

efficacy the

to

Oil

in

necessary

conducted

the

island’s

deemed

installations

environment.

the

founded

Vincent

Study

be

court’s

Monitoring

affecting

is

to

relevance

procedural A

ensure

specifically

the

to

Gillet,

marine

islands,

spill

would

as

and

action

posed

and

the

oil

so

relevant

pollution.

be

obtain

of

spill

189

“the

immediate

oil

a

to

the

artificial

E.E.Z.

large

Maura

of

jurisdiction.

a

in

and

of

That

would

most

the

effected

such

free

be

of

IOCARIBE/CARIPOL

was

of

use

be

Provan,

seeking that

to

be

the

national

preservation

state,

A.,

changes

and

largely

jurisdiction.

for

research;

of

to

there

if

and

respect

(1987)

likely

that

danger

been

Barry

in

basis

is

beyond

ultimately

present

Results

assume

appears

have

being

its

93-104

scientific

grave

Wade,

not

(3)

in

Seas)

“58

protection

the

well

establishment

submitted should

relevant

Beaches:

vide:

23(1):

beaches

of

law

the

marine

jurisdiction

the

could

High

jurisdiction,

and

Sci

rules

this:

most

matters

being

the

(3)

(2)

(1) J.

general

the

the

civil

is

court law

the

it

Jamaican

because

with

its

Waters

(on

these

and

beaches.

jurisdiction..

Carib.

supra

the

is

of

confirmed

Of

Date,

outside

Thus

the

But,

Here,

1983,

Coastal

Vide:

has

To

This

Thus,

beautiful

economy

matters:

exercise

international

committed

service within

1984

spill

an

not

as

Protocol) and

its

of

oil

have

do

foregoing

by

for

1969

1984

states,

State,

p.6.

laws

its

treaties

the

writer’s of

1983,

own

3

of

now.

amended

potential

the

Damage,

Establishment

as

do

to the

News,

Contracting

many

the

island’s

Article

to

a

1971 of

Port

on

international

by

of

the

Pollution

support

possibly

two

sea,

Oil

alluded that

lend

Damage,

could for

Caribbean,

has

amended

economies

vital

Convention

the

(as

190

they

which

the

territorial

for

of

Convention,

Liability

fact

Pollution

the

in

Caribbean,

absolutely

Bay

E.E.Z..

Oil

as

Civil

Tourism”. 61

be

lifeline

the

International

the

for

Convention

exclusively:

on

implications

on

to

to

the

including

the

its

Montego

would

caused:

apply

recovery and

and

it

the

Liability

are,

Sea

reference

of shall

dependant

territory,

Convention

pertaining

in

the

threatening

1969

damage

Compensation

the

Protocol

of

the

for

in heavily

Law

of

adoption

compensation

(i)

1984

2

.thereby

circumstances,

Conventions

Convention

Fund

pollution

provisions

the

its

Ratiray, those

K.O.:

International

to

by

that:

such

(a)

“This

Article

The

These

Since

In

Thus, maximum

Ibid.

Ranray, pollution...

61

provides

amended Protocol.

International

submissions.

incorporated fetter

aid particularly

only

Sons,

in

to

this

&

not many

committed

Liability

of

state

measured;

by

in

the

is

nautical

mind

Stevens

established

that

damag&’.

of

Conventions

in

sea

liability

of

jurisdiction pollution

200 not

tandem. such

had

those

these

sea

the

oil

civil

in

has London,

development

than

established

to

assumption

nd, for

that

the

territorial

2

states

State clearly

parallel

more

party

State, say its

minimize operate

a territorial

existing to

of

gave

or

,

Ships,

They

the provides

is

the

63

law

to

from

extending

but

provisions

that

Contracting

zone.

breadth

prevent

becoming

sea”.

Contracting a

not

Conventions

to

a

to

if the

basically 191

protagonissbehind

1982,

adjacent

of

Pollution or

and

related action,

two

the

of Oil

taken, international and

mind, economic

which

and

law the

law, zone

territorial

L:

in

that

in pursuant

64

the

cause from

Convention

beyond

borne

Richard

wherever

respects

exclusive

new

indicate

economic

be

Sea a

area

beyond

damage.

legislation

the

62

international

international

jurisdictional baselines

other an

the

developments

must

in

Jarashow,

of

areas

with

the

with

it

and

measures,

within creating

exclusive

and

enabling

pollution

of

recent

Law

Jarashow

over

zone,

this

from W

the

of

a

oil

in

Convention

the

in

that

and

6 form

for

of

David

miles

accordance

such

accordance

(ii)

and,

felt

Convention,

Fund the

preventitive

environment

“...

to

chapter

jurisdiction

Enactment

The

take

This

the

of

Abecassis

(b)

1985

See:

Ibid.,p.235

Abecassis,

provisions

could

Convention

compensation

states

the

protect

provision r

of

of

civil

in

state

would

ships.

the

the

the

of

save

to

court’s

for

court

nationality

the

preservation

and,

the

the

administrative,

seas”.

ships,

between

the

in

only

relevance to

only

have

nationality

link

high

not

extending

the

state

the

control

Ships

of

affecting

of

that

applied.

one

on

particular

and

genuine

nationality

be

of

form

flag. a

of

provides.

its

E.E.Z.

is

respect

ensure

its

the

flag

of

exist

to in

the

and

would

fly

that

the

be

to

jurisdiction

law

jurisdiction

grant

and/or

must

state

192

flag.

within

its

under

the

right

its

would

flag

provisions

There

for

the

sail

locally

Convention

exclusive

the

its

Jamaican

flying

for

effect

exercise

fly.

is of

its

Bay

committed

that to

to

“Ships

the

and

shall:

ships

but

follows:

duties

conditions

actionable

torts,

that:

chapter,

as

is

state

the

over

the

subject

entitled

Montigo

effectively

utilized,

this

territory,

be

fix

matter,

are

is

the

with

in

every

shall

its

of

specified the

provides

matters

provides

in

shall

they

.shall

deals

(1)

equivalent,

option

state

over

flag

aspect

94

its

state

92

social

ships

91(1)

include

particular

Cases..

discussion

or

of

to Every

environment.

and

In

whose

ship”.

“1.

2.

Article

Article

“Every

Article

Another

Whichever

under

E.E.Z.

jurisdiction

the

state

marine

the

technical

exceptional

and

the

registration

issues

have

the

in jurisdiction (a) maintain a register of ships...

(b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship...”

The quoted provisions are similar to those contained in Articles 5 and 6 of the Geneva

Convention on the High Seas, 1958 which never came into force. However as Singh 65 notes

“since the preamble of the convention declares that its provisions are based on ‘established principles of international law’, it may be regarded as stating the existing law on the subject” 66

The effect of the Montego Bay Convention provisions and their Geneva predecessor, and as reflected in state practice, have been to leave it up to the particular state to determine the conditions under which it will allow a ship to fly its flag.

The phenomena of flags of 67convenience have made a mockery of the “genuine link” requirement, showing it up as an ineffectual stipulation.

Braekhus, for instance notes that the genuine link demand .. .“is somewhat vague...and the requirement seems as yet, to have had little real effect...”

Singh,Nagendrs:InternationalMaritimeLaw Conventions,(Vol 1-4), 1983 Ibid., Vol.4.,p. 2638 67 Aldertondefmesa flagof conveniencecounttyas onewhoselaws“allowand in factmakeit easy forships ownedby foreignnationalsto fly theirflag”,:See:Alderton,PatrickM.:SeaTransportOperationand Economics,3rdEdn,ThomasReedPublicationsLtd,London& Sunderland,1984at p. 97. op. cit., p. 280

193 The fact that in practice, shipowners’often choose national flags for their ships with impunity that, in accordance with the quoted provisions, they likewise make choices as regards the national jurisdiction and law to which they wish to may be subject, as regards, for instance a particular maritime claim.

Thus Braekhus observes:

The choice of a flag is a choice of legal affiliation to a certain state, and, as for as that goes, a choice of law far-reaching in 69nature”.

This can lead to unsavory consequences in the application of Jamaica’smaritime conflict of laws rules.

Basically, a Jamaican Court may be obliged by its Choice of Law rules to apply the law

of a Flag of Convenience Country in circumstances where there is virtually no link with that

country and a particular matter giving rise to a claim.

The only link might well be the fact of paper registration of the vessel in the Registry of

the Flag of Convenience Country. 70

This might typically operate against a Jamaican seafarer working on such a vessel.

It is not proposed to delve any further into the problems posed by the loophole provided

for Flags of Convenience Countries by the Montego Bay Convention.

Suffice to say, however, that whenever Jamaica’s choice of Law rules require resort to

Ibid., p. 282 Thus Nye notes that although the Law of the Searequiresa “genuinelink”, “...in practice simply entry into a register may be enough “: Nye, Daniel A: Jurisdiction andChoice of Law, Lecture: The Norwegian Shipping Academy, 28 March1984 (unpiublished).

194

to

on

31)32.

seem

have

the

pp.

Shipping

of

1986

Convenience

convenience.

1987,

of

of

Ships,

flag

requirement

Merchant

a

of

provisions

flags

the

November

not

link”

and

of

is

1

relevant

Journal,

Part

the

Registration

“genuine

by

registries

for

the

play

Shipping

to

open

195

counterparts, 71

into

to

governed

nationality.

Caribbean

Conditions

are

brings

and

substance

on

blessing

Caribbean

its

more

Column,

legal

of

discreetly

effect.

give

registration

an

requirements

Insight

to

Convention

may giving

number

ship

of

such

a

Legal

this

with

just

Nations

attempts

effect

then

Hugh:

registration

unlike

had

the

flag

ship

dealing

(U.K.)

United

had

Hyman,

have

the

Its

of

Jamaica,

The

Subsequent

Vide:

whole

law

Act,1894,

country.

generally

the

Convention

the r (3) OTHER INTERNATIONAL CONVENTION PROVISIONS

(a) An Overview

A number of international conventions contain provisions dealing directly or indirectly with issues of jurisdiction and choice of law. Unlike the just discussed Law of the Sea provisions, the provisions to be now considered generally tend to address these issues more specifically from a private international law perspective.

The Seamen’s Articles of Agreement Convention, 1926 (Article 4)

This Convention provides that “national law” shall govern a number of specified matters pertaining to the seaman’semployment contract with the shipowner.

This national law means in effect that of the country of the ship’sflag in keeping with the

Article 94 (2) provisions of the Montego Bay Convention, discussed earlier. Indeed, the ILO

Committee of Experts on the Application of Conventions and Recommendations in interpreting the provisions of the seamen’sArticles Convention has stated that the terms of maritime employment contracts should be subject to the law of the state of registration. This generally translates in practice to mean the law of the flag.

Article 4 of the Seaman’sArticles Convention provides as follows:

1.Adequate measures shall be taken in accordance with national law for

196 ensuring that the agreement shall not contain any stipulation by which the parties

purport to contract in advance to depart from the ordinary rules as to jurisdiction

over the agreement.

2. This Article shall not be interpreted as excluding a reference to arbitration’.

This Article appears to be directed against the use of the Jurisdiction Clause 72 device to circumvent the intent of the Convention to inter alia, ensure a minimum amount of protection is afforded the seaman under his contract of employment.

However, it appears that the flag shopping shipowner is able to avoid any inconvenient effect of this stipulation by choosing an appropriate flag of convenience, such as one that is not a party to this Convention.

International Convention for the Unification of Certain Rules

Concerning Immunity of State-owned Ships, 1926 (Article 3)

Article 3 provides for the immunity of specified State-owned vessels from inter alia, arrests or in rem proceedings, thus, in effect, precluding the exercise of another state court’s jurisdiction over such vessels.

Seealsomfraforfurtherdiscussion

197 of

the

to

ships

a vessels

Courts

precise

general

towards

ship:

probably

of

relating

owned

commercial

what

the

will

to

for

recognises

appropriate

State-owned

rules

inclined

defense...”

respect

clear

they

a

the be

in

the

not

as

same

to

that

relating

government

is

and operated

similarly

counterparts.

the

It

board

before

seem

to

navigation;

on

to.

those cases:

party

surmise

a

of

salvage immunity

owned

contracts operated

is

of

proceed

subject

may

any

carried

to

referred

other

generally

following one

198 or

follows:

nature accidents

upon

privately

Jamaica

internationally right

as

the

the cargoes

ships,

rely in

the

their

other

in

obligations,

to

provisions

which

although

courts

supplies

as

or

or

non-commercially

to

have

ships

provide

and

the

73

to

take,

in

and

the

entitled

shall

on repairs,

national State-owned

salvage

State-owned

collision

will

be

of procedure

of to

of

of

liabilities

goes

not

Convention

reflected

and

operates immunity.

its

Courts

apply

claimants

or

respect

aforesaid.

Bay

respect

shall

respect

lines

commercially

approach

in

as

in courts

in

however

non-immune rules

29-32

regards

the

owns

granting

the

State

3,

the

as

Jamaican

of

of

same

other

Montego

Claims

the

between

Claims

along

Claims

are

Articles

the

which

immunity

‘Nevertheless,

Article

(i)

(ii)

(iii)

and Overall, The

The The

eg.

State

purposes

See

the

granted average; distinction for purposes, immunity jurisdiction approach T embrace some sort of a restrictive approach to sovereign immunity. There appears to be no

locally reported cases on the subject.

However, the Solicitor General of Jamaica and former Rapporteur at the last law of the

Sea Conference, Dr Kenneth Rattray, has opined that:

The doctrine of restrictive immunity is an attempt to achieve some measure of justice

but, as articulated, it prejudges the legitimacy of certain areas of State activities. It may

well be that the state should be placed in the same position of ordinary individuals in

respect of all activities. It is then that both the ends of justice and non-differentiation

between political systems might be harmonized”. ‘

The International Convention for the Unification of Certain Rules

Concerning Civil Jurisdiction in matters of Collision, 1952.

Article 1 of this Convention permits a claimant in a collision case, to commence his

action at his choice;

(a) either before the Court where the defendant has his habitual residence or a place of

business;

(b) or before the Court of the place where arrest has been effected of the defendant ship

or of any other ship belonging to the defendant which can be lawfully arrested, or where

arrest could have been effected and bail or other security has been furnished;

In: SovereignImmunity: W.I.L.J., May 1978, 4 at pp.7-8

199 (c) or before the court of the place of collision when the collision has occurred within

the limits of a port or in inland waters”.

Collision cases by nature tend to be the most amenable to forum shopping. This is so because of the potentially large number of legal contacts such incidents can have with different legal systems, thus rendering courts of different states competent to exercise jurisdiction in the matter.

For the forum shopping maritime claimant it appears Article 1(b) allows him the most scope for ‘shopping” as he can hold strain after a collision incident and simply wait until the offending ship enters a jurisdiction he likes and have it arrested there.

The state court of such a place will have jurisdiction in accordance with the provisions of

Article 1(b). However, it may elect not to exercise such jurisdiction on the basis of forum non conveniens or for some other reason.

Importantly, provisions of this Convention have been given effect in Jamaican law, although, as noted, Jamaica is not a party to this Convention. This is by virtue of the extension of the provisions of Section 4 of the Administration of Justice Act, 1956 (U:K:) to Jamaica, pursuant to Section 3 of the Ad.’niraltyJurisdiction (Jamaica) Order in Council, 1962.

The Section 4 provisions gave legislative effect in the U:K: to provisions of the

Convention. The U:K: had earlier become a party to this Convention but never at the time, or subsequently, made Jamaica also a party to this Convention.

200 Despite the existence of the section 4 provisions in its law which are ultimately based on those of the Convention , Jamaica is yet to become a party to the Covention.

Section 4 of the Administration of Justice Act, 1956 U:K: as adapted and extended to

Jamaica provides as follows:

(1) No court in Jamaica shall entertain an action in personam to enforce a claim to which this section applies until any proceedings previously brought by the plaintiff in any court outside Jamaica against the same defendant in respect of the same incident or series of incidents have been discontinued or otherwise come to an end.

(3) The preceding provisions of this section shall apply to counter-claims (not being counter-claims in proceedings arising out of the same incident or series of incidents) as they apply to actions in personam, but as if the references to the plaintiff and the defendant were respectively references to the plaintiff on the counter- claim and the defendant to the counter claim.

(4) The preceding provisions of this section shall not apply to any action or counter claim of the defendant thereto submits or has agreed to submit to the jurisdiction of the court.

(5) Subject to the provision of sub-section (2) of this section, the Supreme Court of

Jamaica shall have jurisdiction to entertain an action in personam to enforce a claim to which the section applies whenever any of the conditions specified in paragraphs (a) to (c) of subsection

(1) of this section are satisfied, and the rules of court relating to the service of process outside

201 the jurisdiction shall make such provisions as may appear.

(6) ..< omitted> 5

(7) The claims to which this section applies are claims for damage, loss of life or personal injury arising out of a collision between ships or out of the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships or out of non compliance, on the part of one or more of two or more ships, with the collision regulations.

(8) For the avoidance of doubt, it is hereby declared that this section applies in relation to the jurisdiction of any court not being Admiralty jurisdiction, as well as in relation to its

Admiralty Jurisdiction, if any”.

From this it is clear that the provisions of Article 1 of the Convention, with the exception of its paragraph (1) is reflected in Section 4 (1)

Overall Section 4 deals with “Jurisdiction in personam of courts in collision and other cases” 76

Accordingly, Article 1 (b) dealing as it does with in rem jurisdiction is beyond its scope.

Moreover, English law as well as that of Jamaica in any event already allowed for the exercise of such jurisdiction as provided for by Article 1(b)

Basically, section 4 (1) lays down the essential conditions for the exercise of the courts

in personam jurisdiction. “Territorial waters of Jamaica” as used in sub-section 1presumably

‘ See:Cloumn2,SecondSchedule,TheAdmiralty Jurisdiction(Jamaica)OrderinCouncil,1962 76 permarginal note,seealsosection 4(7); “othercases”presumablyincludesAllisioncases.

202 encompasses the Territorial Sea of Jamaica. The sub-section also applies the principle of res 77judicata,

Sub-sections 2-4 of Section 4 deals with the matter of lis alibi pendens.

They clearly require the Jamaican Supreme Court to stay proceedings where proceedings between the two parties instituted in some foreign country in respect of the same matter are in esse.

The court is required to so act except where a defendant submits to the jurisdiction of the court.

Sub-sections 2-4 of section 4 largely relate to Article 1(2) and 3 of the Convention.

A claimant shall not be allowed to bring a further action against the same defendant on

the same facts in another jurisdiction, without discontinuing an action already instituted.

Article 3 provides:

(1) Counterclaims arising out of the same collision can be brought before the Court

having jurisdiction over the principal action in accordance with the provisions of Article 1.

(2) In the event of there being several claimants, any claimant may bring his action

before the Court previously seized of an action against the same party arising out or the same

collision.

(3) In the case of a collision or collisions in which two or more vessels are involved

‘n persection4(1)(c)

203 nothing in this Convention shall prevent any Court seized of an action by reason of the provisions of this Convention, from exercising jurisdiction under its national laws in further actions arising out of the same incident”.

It therefore appears that the provisions of sub-sections 2-4 are in keeping with or at least do not run counter to those of Articles 1(2) and 3.

Section 4 (5) contemplated the making of Rules of Court relating to the assumption of the courts extra-territorial jurisdiction in Collision cases.

However, no such Rules have so far been promulgated in Jamaica.

In keeping with the overall provisions of Section 4, such Rules ought to stipulate that the court may assume jurisdiction over a claim for damage, loss of life or personal injury arising out of a collision or like navigational 78incident involving two or more ships where:

(a) the defendant has his habitual residence or a place of business in Jamaica; or

(b) the cause of action arose within the territorial waters, including any port, dock or

harbour in Jamaica;

(c) an action arising out of the same incident or series of incidents is proceeding in the

Supreme Court or has been heard and detemined in that court.

78

See cliceyand Morris,Op. Cit., Rule 24 (18), p. 226; Order 75, Rule 4, Rules of the Supreme Court (U.K.).

204 As regards (b), when Jamaica enacts its E.E.Z. legislation, then this stipulation should be extended to take account of the Articles 56 (1) (b) stipulations of the Montego Bay Convention, discussed earlier.

Then, where for instance a collision takes place in the E.E.Z. resulting in pollution of the marine environment, the court would be able to assume jurisdiction in respect of the relevant claim.

With the present lacuna in the Jamaican law as regards the contemplated Rules of Court in respect of Collision cases, it is probable that Section 686 of the Jamaica CivilProcedure ,79Code would be brought into play in a given collision case requiring service out of the jurisdiction.

This the relevant English Rules, namely those contained in Order 75, Rule 4 of the

Rules of the Supreme Court (U:K:) would be relied on.

This Rule is similar in terms to the writers suggested stipulations for Jamaica’s Rules.

There appears to be no reported Jamaican case dealing with the Section 4 stipulations.

Despite, the apparent disuse it seems Jamaica ought to update its law in this area by

enacting the relevant Rules of Court contemplated by section 4 (5).

Also, it might wish to consider its position as regards the Convention itself.

Afterall, Jamaica actually has the essential stipulations of the Convention reflected in its

laws.

At present, as a non-contracting party, its position is dealt with by the provisions of

Article 8 of the Convention.

SeeChapter4

205 International Convention Relating to the Liability of Operators of Nuclear Ships, 1962

(Article8)

Article 8 provides:

“The provisions of this Convention shall be applied as regards all persons interested when all the vessels concerned in any action belong to States of the High Contracting Parties.

Providing always that:

(1) As regards persons interested who belong to a Non-contracting State, the application of the above provisions may be made by each of the contracting States conditional upon reciprocity;

(2) Where all the persons interested belong to the same State as the court trying the case, the provisions of the national law and not of the Convention are applicable”:

Here, it appears that Jamaica should easily satisfy the reciprocity criterion since its own municipal laws essentially require it to act in accordance with the Convention provisions.

Nevertheless, it is submitted that Jamaica ought to consider the Convention provisions as a whole with a view as deemed appropriate from such consideration of “regularizing” its position vis-a-vis the Convention by acceding to it.

206 F

International Convention Relating to the Limitation of the liability of

owners of seagoing ships, 1957 (Article 4)

Artical 4 of this Convention provides that the rules relating to the constitution and

distribution of the limitation fund and all rules of procedure shall be governed by the national

law of the state in which the fund is constituted.

International Convention for the Unification of Certain Rules Relating to

the Arrest of Seagoing Ships, 1952

(Article 7, 10)

Ship arrest was examined in the previous Chapter. Here it may be briefly noted in the

present context that the Convention sanctions the use of ship arrest as a basis for jurisdiction on

the merits in particular circumstances.

Also, it provides that the law of the country where the ship is arrested is to be the one to

govern procedural and related matters.

It has already been shown that in the case of Jamaica, ship arrest is predicated upon the

court having in rem jurisdiction. The Converse is not true. Also, under Jamaican private

international law, procedural matters are in any event governed by the lex fori.

207 Article 10 gives a claimant against an operator of a ship equipped with a nuclear power

plant the option of instituting proceedings before the courts of the ship’slicensing state “or

before the courts of the Contracting State or States in whose territory nuclear damage has been

sustained”.

This Convention which is not yet in force has attracted very limited international support and its relevance has waned very much since its adoption in 1962.

International Convention on Civil Liability for oil Pollution Damage,

1969 (Articles 9&10) as amended by its 1984 Protocol; and

International Convention on the Establishment of an International Fund

for Compensation for Oil Pollution Damage, 1971 (Article 7) as amended by

its 1984 Protocol.

Both Articles 9 (of the Liability Convention) and 7 (of the Fund Convention) require that where an incident has caused oil pollution damage in the territory (including the territorial sea), the E.E.Z. (or its equivalent) of a contracting state (or states) or where preventitive measures have been taken to avert or minimize such pollution damage, actions for compensation may only be brought in the Courts of any such Contracting State (or States).

208 This requirement also obtains in respect of indemnification claims as provided for 80 under the Fund Convention (per Article 7).

Each Contracting State is required to ensure that its courts possess the necessary jurisdiction.

Although Jamaica is not a party to either Convention it is a party to the regional:

Convention for the Protection and Development of the Marine Environment of the Wider

Caribbean Region, 1983 and the Protocol Concerning Co-operation in Combatting Oil Spills in the Wider Caribbean Region, 1983.

Article 14 of the Convention stipulates that:

“The Contracting Parties shall co-operate with a view to adopting appropriate

rules and procedures, which are in conformity with international law, in the field

of liability and compensation for damage resulting from pollution of the

Convention area”.

It seems to the writer that among the “appropriate rules” should be Jurisdictional and

Choice of Law rules dealing with the occurrence of oil spills in the various maritime zones spanned by the Convention area.

Here, due cognizance should be paid to the precedence set by these two international

Conventions as regards the E.E.Z.

The opportunity should be taken to harmonize in the region the relevant Rules at least as

per Article 5, FundConvention,1971

209 these pertain to the critical matter of oil pollution of the marine environment.

In the past, attempts have been made to harmonize shipping legislation in the Caribbean.

This has been through the instrumentality of the Caribbean Community Secretariat.

However, those attempts have focused on the preparation of comprehensive Merchant

Shipping Codes dealing in the main with substantive law issues.

It appears the basic issues under focus in this thesis are yet to entice any regional co operative legislative or other activity.

However, it is submitted that Article 14 could provide a launching pad for an effort

inclusive of such activity in respect of the critical matter of oil pollution of the marine

environment along lines so far put forward in this chapter.

Athens Convention Relating to the Carriage of Passengers and their

Luggage by Sea, Athens, 1974 (Article 17) as amended by its 1974 Protocol

Article 17 gives a claimant in an action against a carrier for damage suffered as a result of

the death of or personal injury to a passenger of the loss or damage to luggage, the option of

bringing his action in one of a number of different courts provided that the court chosen is

located in a state party to the Convention.

210 r

The options are:

‘(a) the court of the place of permanent residence of principal place of business of the

defendant, or

(b) the court of the place of departure or that of the destination according to the contract

of carriage, or

(c) a court of the state of the domicile or permanent residence of the claimant, if the

defendant has a place of business and is subject to jurisdiction in that state, or

(d) a court of the state where the contract of carriage was made, if the defendant has a

place of business and is subject to jurisdiction in that state”.

However, sub-section 2 of Article 17 provides that:

‘After the occurrence of the incident which has caused the damage, the parties may agree

that the claim for damages shall be submitted to judicial proceedings or to arbitration”.

Convention on Limitation of Liability for maritime claims, 1976 (Article 14)

Like its 1957 predecessor’s Article 4, Article 14 provides that the rules relating to the

constitution and distribution of the limitation fund and all rules of procedure are to be governed

by the national law of the state in which the fund is constituted.

211 United Nations Convention on the Carriage of Goods by sea, 1978

(Hamburg Rules) (Articles 21 and 22)

Article 21 provides:

1. In judicial proceedings relating to carriage of goods under this Convention, the plaintiff, at his option, may institute an action in a court which, institute an action in a court which, according to the law of the state where the court is situated, is competent and within the jurisdiction of which is situated one of the following places:

(a) the principal place of business or, in the absence thereof

the habitual residence of the defendant; or

(b) the place where the contract was made provided that the

defendant has there a place of business, branch or agency

through which the contract was made; or

(c) the port of loading ir the port of discharge; or

(d) any additional place designated for that purpose in the

contract of carriage by sea.

2. (a) Notwithstanding the preceding provisions of this article,

ad action may be instituted in the courts of any port or place in

212 a Contraction State at which the carrying vessel or any other vessel of the same ownership may have been arrested in accordance with applicable rules of the law of that state and international law. However, in such a case, at the petition of the defendant, the claimant must remove the action, at his choice, to one of the

jurisdictions referred to in paragraph 1 of this article for the

determination of the claim, but before such removal the defendant must furnish security sufficient to ensure payment of any

judgment that may subsequently be awarded to the claimant in the action.

(b) All questions relating to the sufficiency or otherwise of the security shall be determined by the court at the port or place of the arrest.

3. No judicial proceedings relating to carriage of goods under this Convention may be institutes in a place not specified in paragraph br 2 of this Article. The provisions of this paragraph so not constitute an obstacle to the jurisdiction of the Contracting

States

for provisional or protective measures.

213 4. (a) Where an action has been instituted in a court competent

under paragraph 1 or 2 of this article or where judgement has been delivered by such a

court, no new action may be started between the same parties on the same grounds unless

the judgement of the court before which the first action was instituted is nor enforceable in

the country in which the new proceedings are instituted;

(b) for the purpose of this article the institution of measures

with a view to obtaining enforcement of a judgement is not to be considered as the starting

of a new action;

I (c) for the purpose of this article, the removal of an action

to a different court within the same country, or to a court in another country, in

accordance with paragraph 2(a) of this article, is not to be considered as the starting of a

new action.

5. Notwithstanding the provisions of the preceding

paragraphs, an agreement made by the parties, after a claim under the contract of carriage

by sea has arisen, which designates the place where the claimant may institute an action, is .teffective’

Article 22 provides for the settlement of disputes by Arbitration proceedings. It provides

that:

“...3. The arbitration proceedings shall at the option of the claimant, be instituted at one

214 of the following places:

(a) a place in State whose territory is situated

(i) the principal place of business of the defendant or, in the absence thereof, the habitual residence of the

defendant; or

(ii) the place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made;

or

(iii) the port of loading or the port of discharge; or

(b) any place designated for that purpose in the arbrition

clause or agreement.

4. The arbitrator or arbitration tribunal shall apply the niles of this convention.

5. The provisions of paragraphs 3 and 4 of this article are deemed to to be part of every

arbitration clause or agreement, and any term of such clause or agreement which is

inconsistent therewith is null and void.

6. Nothing in this Article affects the validity of an agreement relating to arbitration made

be the parties after the claim under the contract of carriage by sea has arisen”.

215

that

two

may

are

into

of

of

matter

that

Lading,

stating

use

dispute

states:

They

one

often

of

Lading

clauses.

enacted

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law

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1900.

to

with

and

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are

6.

contracting

Act.

Act,

Rules

jurisprudence

usually

jurisdiction

applicable

faced

determine

their

shippers

relating

that

and

jurisdiction.

of chapter

in

its

Hague 8 ’ to

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various

been

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also

Lading

foreign

of

of

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and

the

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courts

of

choice

see

to

have

clauses

a

of

exclusively

Rules.

Rules

Schedule

question

with

Bills

law

replace

Jamaica

the

Carriage

exclusive

in

the

Protocol;

to

relating

Jamaica

contain

Hague

should

in

Certain

for

216

the

dealing

of

with

jurisdiction

the

national

assess

Lading.

Rules

clauses

into

Brussels

would

Courts

of

all

govern.

the

avoid

developed

including

at

to

Lading

1968

to

applies

by

inserting

Bills

significance is Unification

Lading.

of

its

not

modifications

clauses

were

Hamburg

and

in by

of

the

by

with

Countrys

to did

jurisdiction

Bills

the

for

attempt

countries

such

incorporation

Bifi

special

Rules

of

country,

dealt

limited

a

of

such

clauses

6.

with

party

the

amended

Rules interests

also,

be

a

as

usually

with

to

various

have way

is

particular

a

their

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chapter

under

by

Hamburg

left

Hague

Rules

particular

practice,

provisions

time,

They

a

that

also

In

Typically

themselves jurisdiction

arise

Carriers

In

Law

The

The

Jamaica

of

The

against

contained

See

find

may

law

therefore

1924;

82 meHague

81 Inmational

the

that

specifying

operate

exclusive

was

actually

Jamaican

Rules. 82

today importance. forms.

It may take the form of the following:

“The contract evidenced by this bill of lading shall be governed by X law and dispute determined in X (or at the option of the carrier, at the point of destination) according to X law to the exclusion of the jurisdiction of the courts of any other country”

Alternatively, the clause may provide as follows:

“Any dispute arising under this Bill of Lading shall be decided in the country where the carrier has his principal place of business, and the law of such country shall apply”

In both instances there is a choice of both jurisdiction and applicable law.

As is noted by Judge Hand in The Tricolor (193 )AMC 919: “The choice of a court may be more important than many of the (other) express terms of the contract

“and” may indeed be determinative of the outcome”.

Jurisdiction clauses have partly a prorogatory effect, in that they refer the parties

concerned to the courts of or to arbitration in a specified state and partly a derogatory

effect, in that by their wording or intention preclude suits in all other 83jurisdictions.

217 For the Jamaican shipper, faced with a Jurisdiction Clause, it is the purported derogatory effect which appears to loom largest.

Here, the clause may require that disputes are only to be adjudicated in, say,

London. The inconvenience and costs involved will often make recourse to such proceedings in London impractical for the shipper. Yet, essentially, the objective behind the insertion of the clause in the Bill of Lading, by its draughtsman in such a case is likely

to be that of ensuring that disputes between the parties are adjudicated in London only.

Braekhus has indicated that generally courts have an easier time accepting the

prorogatory effect of these clauses than they have as regards their derogatory effect.

He points out that:

The unwillingness of Courts in certain states to accept derogation is sometimes

based on principles of public policy: the effect of a jurisdiction clause is to oust the

jurisdiction of the national courts; private individuals ought not to be able by contract to

limit the authority of the courts of a state in that way. Courts have been especially

unwilling to accept the clauses where the result is that one of the citizens of the state is

being denied the right to bring his case before the courts of his 84homeland”.

However, internationally there has been different approaches to this important

83See: Braekhus,op.cit.,p 300. pp300-301

218 matter of jurisdiction clauses.

The provisions of Article 21 must, inter alia, must seen against this background.

Article 21 allows a choice of jurisdiction to be still made by way of jurisdiction clause. However, most importantly, it denies such a clause, any exclusive character.

Thus the Article is in this respect, essentially directed at the derogatory effect purported any such clauses.

Thus it does by enumerating a number of places with direct connection with the carriage (as well as the contractually designated jurisdiction) at which an action may be

brought by the palintiffs at his option.

Thus, where the jurisdiction clause purports to give jurisdiction exciusivelly to

the courts of a particular country, this will not prevent the Plaintiff from having his claim

heard elsewhere.

Here, other courts whose state had some connection with the contract of

affreightment, such as say the port State of loading or discharge ate deemed to be

competent by the convention and may accordingly hear and determine the claim.

However, while Article 21(1) enumerates a number of places connected with the

contract of affreightment, Article 21(2) provides for the possible exercise of jurisdiction

by a state court whose State has no connection with the contract of carriage.

Here, the basis for the exercise of jurisdiction is the arrest of the offending

vessel or another in the same owernship.

However, the defendant may have the action to one of the places specified in

219 paragraph 1 upon furnishing security sufficient to ensure payment of any judgement that

may subsequently be awarded to the claimant in the action.

At present, it appears a Jamaican court has security of it does not possess jurisdiction of declined jurisdiction on the 85merits.

Hence, adoption and enactment of Article 21(2) into Jamaican law would

apparently result in the fifing of this gap in Jamaican law.

Also, as regards selection of jurisdiction, Article 21 mist be read with Article 22

which deals with arbitration.

The Convention recognizes that parties may agree to refer their disputes to

arbitration. 86

In so doing they are in fact selecting their jurisdiction in the sense that they are

nominating the tribunal which is to have the power of adjudication

However, selection of where to have such arbitration proceedings is limited in a

manner similar to that as regards court proceedings.

Arbitration proceedings may only be brought in one of a number of specified

places. Apart from the place of arrest, provided for in Article 21(2), those places are

identical with those where legal proceedings may be brought.

However, after the claim has arisen the parties may by agreement designate the

place where court or arbitration proceedings may be heard.

eg. The Golden Trader (1975) Q.B. 348 S86 also: chapter 6

220

of

the

of

of

alibi

a

exercise

between

that

grounds

exclusive

the

balance

us

favor

a

will

of

to

the

in

where

action

carriage

noted

noted,

on

be

limb

court

the

one

much

achieve

to

just

context.

options.

case

the

states.

may

to

a

as

than

pertaining

of

it

insurance

very

second

was

hear

relation

the

more

tilts

whether

except

to

Maritime

in

variety

of

marine

clauses

to

with

principles

contracting

of

are,

as

to

wide

Law

refuse

balance

provisions

a

deal

context

to

of

Jamaican

bringing

normal

this all

contracts

at

the

question

the

221

the

to

jurisdiction

present

in

contained

Choice

claimant

not

the

of

the

not

the

and

where

jurisdictional

Convention

in

does

prohibits

are

relation

the

the

on

places

internationally

in

elsewhere

of

embraces

practice.

giving

interests.

ground

the

in

of

arrest,

under

aim

arise

apply.

stands

of

Jurisdiction

that

focused

essentially

same

operate

Convention above,

cargo

the

arises

effect

may

the

now

the

the

and

also

that

noted

6.

being

places

the

that

21(4)

noted

on

judicata

permitted

law

there

be

conveniens.

are

as

the

they

has

res

regards

clear

to

the

carrier

issue

chapter

non

is

is

sea

Thus

As

they

Article

parties

This

However,

and

As

from

It

This

It

the

also:

by

forum

same

jurisdictions

apart

87 S

goods

although

pendens

the

say

the

jurisdiction

carrier. 87

between and Jamaican assured, often has his contract of insurance 88with a foreign insurer. Also, they may be in issue in a contract of employment 89between a Jamaican seafarer and a foreign shipowner.

However, in the present context, the thrust of the discussion is as regards the effect to be given to these clauses in Bills of Lading.

Simultaneously, it is to be borne in mind that some of the considerations equally apply in other contexts in Jamaica.

As alluded to, the Hague Rules make no reference to “Jurisdiction Clauses” and neither so their enabling Act in Jamaica: The Carriage of Goods Act, 1900.

There are no Jamaican Admiralty cases dealing with the issue of Jurisdiction

Clauses. However, there is some slight indication in Jamaican Jurisprudence of the possible attitude a Jamaican Court might take to such clauses.

In National Chemsearch Corporation Caribbean v. Davidson, ° Graham

Perkins, J, stated that:

“The law of this country is committed to the principle of the unfettered freedom of contract and where the parties to a contract have therein expressed an intention that a particular legal system shall govern their rights and obligations that intention almost invariably must prevail....But the law of this country is also committed to another

88See: Legal and documentaryaspectsofMarineinsurance,INCTAD,TD/B/C.4/lLS27/Rev.1, at p.25 89Sec fenerally, Morgenstern, op. cit 90(1969). 9 J.L.R.468

222 principle which I may state thus: where a contract, the proper law of which is that of a foreign jurisdiction is, by the law of this country, prima facie void as being contrary to the public policy of this country, it must be shown to be essentially valid not only by its proper law, but also by the law of this country if it is sought to be enforced 91here”.

In the case, Graham-Perkins, J (Ag.) applied these principles in holding that a certain restrictive covenant in a sales representative agreement was void ab initio.

The contract had provided that it was to “...be construed under and governed by the laws of the state of 92Texas...” Nevertheless Graham-Perkins J (ag) found that as the restrictive covenant stipulation was contrary to public policy, it was treated as void ab initio.

It therefore appears that in an appropriate case a Jamaican Court is prepared to find a Choice of Law or Jurisdiction stipulation as void ab initio based on public policy considerations.

However as was emphasized in the instant case, there is a very strong

commitment to the notion of the sanctity of contractee to the extent that “ where the parties to a contract have expressed an intention that a particular legal system shall govern their rights and obligations that intention almost invariably must prevail”.

One is therefore prompted to contemplate what are the possible considerations that might of ought to move a Jamaican Court to treat as void ab initio or otherwise,

91Ibid.,p 471

223 circumvent a Jurisdiction or Choice of Law clause in the present context whether on the basis of such clause being deemed to be contrary to public policy or otherwise.

Jurisdiction and Choice of Law clauses, appear to find their strongest buttress in the argument that persons should be held to their agreement: the principle of the sanctity of contract.

However, this principle was itself founded on certain premises which have been eroded by the present 93adhesion character of Bills of Lading.

In the Bills of Lading, the Jamaican shipper is faced with a standard form fme print document whose terms he has had no opportunity of negotiating and practically is hardly in a position to negotiate.

He is very much the weaker party in the relationship and has practically not much of a bargaining power.

At times, he may fmd himself being subject to terms which he can have no real opportunity of knowing their details.

This usually takes place by use of the device of clause incorporating charterparty

93An adhesioncontractisbasedonstandardform,used tosupplymassdemands forgoods and/or services, draftedforanindefinitenumberofpersons,ratherthana singleindividual and whose use entails thesuperiorbargaining power of the stipulator vis-a-vis the individual customer/consumer whoihad no bargining power,musteitheradhereto the contract ar refuse to contract altogther See eg. Burgess, Andrew: Adhesion Contracts and UnfairTerms.., Faculty if Law,U.W.I., at p7 citing Lenhoff, Contracts of Adhesion and Freedom of Contract (1962) 36 Tul. L.R.48

224 terms. Such terms may include Jurisdiction and Choice of Law Stipulations.

In addition, it may well be that a jurisdiction and Choice of Law clause may, if given effect in Jamaica, may lead to an avoidance of the Hague Rules stipulations to which Jamaica is subject.

This will happen where the designated jurisdiction and applicable law is that of a country which does not apply the Rules.

In the case, The Morviken, 1983, Lloyd’s Rep.1., the House of Lords in

England, decided that a jurisdiction clause is null and void pursuant to Article 3(8) of the

Hague Rules when the court to which the dispute would be submitted would apply provisions less favorable to the cargo owner than those of the Rules.

Article 3(8) provides, inter alia, that any clause in a contract of carriage which

lessens the liability, otherwise than as provided for the Rules are null and void and of no

effect.

Clearly therefore, Jurisdiction Clauses when they have this effect ought to be

treated as null and void.

However, this may be said to be a particular situation. There is the question as

to whether these clauses are amenable to some sort of general approach particular

presumptions as to their enforceability. Here the varying approaches of different

countries may be noted.

American Courts, in the past, held consistently that jurisdiction clauses were not

225 valid perse as purporting to “oust the courts of their 94jurisdiction”

Braekhus has cited the practice of American Courts in the period preceding The

Hatter Act, 1893 (U.S.) as an example of the vindication of national mandatory law through the rejection of both Jurisdiction and Choice of Law 95clauses.

He observes that then:

the English shipping companies, who dominated the traffic between Europe and the United States of America, employed broad exemption of liability clauses in their bills of lading. These exemptions were respected by the English Courts, but to a large degree declared to be against public policy and invalid by the American courts, thereby protecting American cargo interests engaged in import and export, to and from the United

States of America. The English shipowners attempted to avoid the stringent liability imposed by the United States law first by including a clause in bifis of lading that they be subject to English law, and then via a clause providing that the suits arising due to a loss of or damage to cargo only could be brought before English Courts. The American cargo interests were forced to accept such bills of lading. Nevertheless, both the choice of law and jurisdiction clauses were rejected by the American Courts”Y

94See: Wiid & Salik Inc.v. Companie Generale Transatlantique, 43 F. 2d. 941, 942. (2d Cir. 1930) 950p cit.,p. 304

226 The protectionist attitude in the U.S.A. was subsequently more overtly maintained by way of legislation through the Harter Act of 1893 and later the Carriage of Goods by

Sea Act, 1936 (U.S.) 97

Since 1949, American courts have respected clauses granting exclusive jurisdiction to foreign courts if they were 98“reasonable” It is for the Plaintiff to prove that the clause was unreasonable. . Here, it is noted that “mere inconvenience or additional expense is not the test of unreasonableness’.

In Belgium, foreign jurisdiction clauses are in principle, deemed not valid as

they may relieve the carrier from liability he would normally have incurred under Belgian

Law.

However, it appears, Belgian Courts tend to recognize foreign jurisdiction

clauses if they are satisfied that the foreign courts will apply the Hague Rules in the Same

way as Belgian Courts.

Australia has by way of legislation, made such clauses invalid.

97thid. 98See: Manbabady,Samir (ed):Commentson the Hamburg Rules, TheHamburgRuleson the Carriageof goodsby sea, 1978,p. 101citingKrangerv PennsylvaniaRail Co.,2 Cir. 1949,174F. 2d. 2556. 99See: Billsof Lading, Report by the Secretariatof UNCTAD:TD/BC.4JILS/6/Rev. 1;U.N., N.Y., 1971,at p. 50; See also:Oland,A. Barry:ForumNon Coveniensin Canada: The CommonLaw Position, The Federal Courtof Canada,SuggestedReform,1986MeredithMemorialLectures,Mcgill University, Richardde Boo,Ontario,at pp. 323,334.

227 to

the

the

on

stay

into

the

be a

the

to bound has

an

or

take

on

stay,

of not

shall

a

is

is

relating

granting

position elaborated for

the

should

breach

cause

by

of

law

in

Australia

apply

Court

in

Brandon

strong

document

Commonwealth

jurisdiction, courts

the

or

exercised

the the

the England

Common

place

such

be

in

in

of

Justice

defenthnts

any

lading

sue

within

to

not.

the

discretion

237,

of

made

English

provides:

should

proving

or

its

and

bill

case.

of

so

Act

Rep.

basic

jurisdiction

228

plaintiffs do

any

Australia

whether

Sea

otherwise

court,

shown.

the

to

The

of

burden

discretion

by

be

is

Lloyd’s

exercising

particular

to

1

Where

above. so

The The In

outside

lessen

the

foreign

effect.

respect

Goods

whether

a

“(1)

(4) (2) (3)

or

of

agreement,

claim

in

no

of

doing to

place

(1969=

or

of

the

oust

indicated

not

state

any

to

a

and

for

discretion

of

disputes

Carriage

from

or

void

Eleftheria

has

stipulation

its assuming

circumstances

cause

refer

summarily

the

and but

goods

purporting the

to

“Any

Thus In

thus: of

all

Court,

been

null stay

strong

a

Commonwealth already carriage elsewhere, illegal,

account position unless grant agreement plaintiffs.

English in to of that be by trial not for strong following bar in applies issues unlikely would convenience desire the be the very time court prejudiced security a there on (4), of be available to relative place with reasons genuinely foreign the whether would evidence on the faced respects; other deprived remedies of prejudice be the or principles that be courts; of (i) law defendants plaintiff (iii) material three whether the the advantages, the without country religious effect any first foreign and but would: in forum. the what obtained; and 229 racial, regarded: In Whether Whether Whether they law and procedural (a) (b) (d) (e) foreign Brandon’s notion. particular, English proceedings judgment the English In because properly political, in seeking the available, any be (5) Justice for from court contract English only (iv) that may of to readily are or enforce between available differs to or arise as foreign be noted it more sanctity be the relative 100 not trial or they to in England; unable the of is 242 country, in delay whether be sue on It trial.” p. would where to so, (ii) situated, great if is expense afair foreign 1Thud., applicable get matters, fact and and, claim; emphasis having the England very

T They refer to the plaintiff bringing an action in breach of an agreement to refer disputes to a foreign court and the strong onus on the plaintiff to defeat a jurisdiction clause.

101Oland, writing about the situation in Canada where the Eleftheria’sprinciples are applied, has noted in this context that:

“...the sanctity of contract issue...is paraded before the courts in biblical terms by P&I Council. This issue fails to recognize the realities of commercial life, that Bills of

Lading in unreadable form are prepared by contractual craftsmen employed by vessel owners and P&I Clubs. Except for the Hague Rules, the terms of a bill of lading are those of a contract of adhesion. There is no free discussion or negotiation about a jurisdiction 02clause...”

Oland goes on to lament in this context the adoption of a contractual interpretation in Canada “...that effectively sends litigants away from the courts to other jurisdictions” 103

He argues for an approach which “...if not actually welcoming a claimant, at least does not discourage him from using the court’s services” 104

It seems to the writer, that just such ab approach is highly advisable in the case of Jamaica.

101 Op.cic, F:N:101 1021bjd., p. 318 1031bjd., p. 319 1041bid.

230 If the Jamaican Admiralty Court and Jamaican maritimejurisprudence is to develop fully, then an approach ought to be adopted which is strongly inclined towards hearing a case whenever the aid of the court is sought, provided the court’sjurisdiction had been properly invoked.

In short, the court should be strongly inclined to exercise whatever jurisdiction it has in matters where, say, a Jamaican shipper or consignee holds a Bill of Lading with a foreign jurisdiction clause and wishes to make a claim against a foreign shipowner in

Jamaica.

Such an approach would not only in the normal case protect Jamaicas cargo interests, but also generally serve to expand the judicial and legal services provided in

Jamaica in the maritime sphere iocally as well as in due course to persons from overseas

who may be attracted to the jurisdiction.

Here it is acknowledged that, inter alia, various charges are needed to improve the efficacy of Jamaican Admiralty Law and practice before the suggested approach can have any significant result in the direction 105contemplated.

However, one thing is clear, a judicial approach that discourage use of the court is one which can only result in such a prospect receding further and further away from ever coming to fruition.

The Eleftheril approach in England to Jurisdiction clauses is quite compatible

See105 g. Chapter 2.

231 with that country’sposition as the leading centre in the world for adjudication of maritime cases.

In jamaica, an approach ought to be taken which takes into account Jamaicas national interests based on considerations of public policy.

The particular position of the Jamaican cargo-owner vis-a-vis the adhesion type contract he is confronted with, should be taken into account.

inconvenience and extra expenses to the cargoowner in having his matter heard overseas, should weigh very heavily in favor of Jamaica assuming jurisdiction.

The Hamburg Rules, Article 21 is clearly against the carrier dictating to the shipper and national courts where the shipper must go to have his claim adjudicated.

The Hamburg Rules provisions are thus instructive in this regard.

Overall, it appears that these provisions merit special attention.

They attempt to establish a better balance between the competing interests of shipper and carrier.

They were developed after much discussion and compromise between the competing interests of shipowner, shipper and their respective insurers.

In contrast their predecessor Hague Rules reflect basically the interests of shipowners, These Rules had their genesis in the era when almost all of the present developing countries were colonies and had no opportunity to present their points of view

232 reality

with

reflected

meant

aging

generally

have

the

Canadian

the

clauses

the

serving

and

to

largely

have into

Law

with country”. self Jurisdiction

Lading,

accordance

of

effectively

and

of

of

in

Rules

solution

situation

Rules.106

a

Bill

way

mind

saddled

enactment

them

Choice

clauses

“shippers

Hamburg

in

is

by

Hague

the

after

a

it

and

of the

as

the

this

Hamburg

of

inequitable

Rules

enacted

that

the where

bear

an

immediate

terms

of

Jurisdiction

to

who

provisions

Jamaica

the was

the

case

Hague

or

22

22

Jurisdiction

up

for

enactment

this

the

with

233

ought to

and

and

of

in

exacerbate

the

countries

draw

21

21

to

Jamaicas

argued

Rules.

in

result

Jurisdiction

country,

approach

compared

Stipulations.

situation.

opening stand

fortiori,

the

Article

a Articles

be

law

the strongly

this

of

Law

unilaterally to

shipowning

laws.

regards

that

Hamburg

of

advisable

of

Rules

has

of

as

applied,

its

“shippers”

from

the

interests.

a

expected,

in

reality

hardly

common

seems

club

be

highly

is

Oland

a

in

provision

it

flow

Choice

to the

advantage

Hamburg

regards

the

provision and

also

is

creatively

of

and who

maritime a

321

reflected

of

is

which

take

As

No The

Jamaica,as Indeed, Canada

Hence,

p.

not

had

to

if

fact Rules

vested

carriers

Ibid.,

interests

they

this

106

as

sought the that their Jurisdiction problems

of legislation

provisions Hague

which,

toto

be

the

or

in

national

Jamaica

Maritime

to

or

should “national

outlawing

own

Rules

the

party

to

a

without

the

legislative

these

one’s

jurisprudence.

or

of

for

paid

International

insularity

for

being

perceived

statutorily

be

with

in

However

maritime

also

where

appraisal

regard

where

covertly

judicial

effect, Jamaica

or

law

may

context.

have

await

approach

world

relevant

to

a

blanket

principle.

without not

overtly Convention

in

option.

not

and

no

legislative

promoted.

present

Jamaican

234

fifth

need

that

in

cognizance

effect

that

the

Australian

local

being

in

whether

prudent

due

is

Nations

The

writer

secondary

indigenous

a

given

than

any)

instances d’étre

suggested

the

Rules.

an

Eleftheria’s

as

interest

legislative

be

(if

to

as

emphasized

less

ratio

United

The

best

be

may

be

itself

indicated.

shape

given

already

in

the

22

promulgation

to

Hamburg

appears

are

are

it

should

enactment

and

would

enactment

the

it

Jarnaicas

it

to

21

there

provide

to

such

embodied

such

perspective

recommends

legislation

attempting

provisions

party

the

often

However,

in

Finally,

a

convention.

Until

activity,

Thus

ratification.

Indeed,

Articles

contrary

clauses

from

their

interests

interests”

judicial

chauvinistic

such

done

considerations

and

particular

Convention

becoming operate is

any

it

which

an

its

in

of

regards

the

1980

places:

made,

as

in

international

through

situated,

institute

those was absence

is

for

instituted

arisen

the

may

Goods,

be

purpose

following

agency

in

international

court

has

parallel

of

contract

charge

of

or

to the

that

may

the

option

in

of

for

claim

his

broadly one

branch

at

the

where

relating

goods

business,

multimoclal

the of

Transport

after

state

proceedings

the

situated

designated

27)

Plaintiff

or business,

the

is

place

taking

or Convention

of

of

the

Parties

proceedings

place

where

os and 235

this

law

the

which

arbitration

place

26

of

Rules.

of other

a

the

place principle

place

defendant;

for, delivery;

judicial

Multimodal

to

the any in

the of

the

the

there

Convention,

between

of

(a) (b) (d) (c)

that

has the

Hamburg

place

(Articles

provided stipulations

jurisdiction

according

the the

or

the

under

document.

or

residence

provides

where

Agreements

International

defendant

26

which,

made;

within

Jurisdiction

the

on

transport

was

transport

transport

habitual

counterpart,

court and

places.

The

Article

Likewise,

that

a

the

in

said

contract

the

UNCTAD

action multimodal

competent

thereof, multimodal multimodal the

provided of the place of jurisdiction are valid.

C: CONCLUDING REMARKS

The various Convention provisions examined may be considered as falling into

3 broad categories.

Firstly, there is a category of provisions which embraces the issue of the geographical ambit of a state court’sjurisdiction.

Here, the precise location of the place where say, a maritime tort was committed, or a particular person or vessel vis-a-vis the various maritime zones is crucial in determining whether a court had or may exercise its jurisdiction in a particular case.

Also such provisions in the case of maritime torts provide the public international law framework for the application of choice of law rules.

The provisions in this first category are to be found in the provisions of the law of the sea conventions and influence the local law as described.

236 Secondily,there is the category in which the majority of provisions examined fall.

This category deals with the question as to which country’stribunals are competent to adjudicate a particular maritime claim.

This question falls more directly in the realm of private international law. The relevant provisions have more potential for direct and immediate impact on national law once the relevant convention is ratified or acceded to and subsequently given the force of law in the state concerned.

As already intimated, Jamaica is not a party to any of these Conventions.

However, should Jamaica become a party to such Conventions, then it will be obliged to make special provisions for the jurisdictional rules in its procedural and private international law.

The net result would be that Jamaican courts would then have no jurisdiction to entertain an action falling under such enabling enactments unless the particular

Convention jurisdictional requirements are met.

Examples of such Conventions are The Hamburg Rules, the Civil Liabity for Oil

Pollution Convention and the Athens Passengers and Luggage Convention.

A feature of this second category is therefore that becoming a party to the particular Convention, of necessity, ultimately has direct consequences for the local

237 maritime procedural and private international law rules, where these are different from those stipulated in the connection. In effect, the Convention Jurisdiction stipulations and ramifications are of a mandatory character.

In contrast, ratification of say the Montigo Bay Convention, places no obligation on a state to declare an EEZ and to concomitantly enact appropriatejurisdiction and choice of law rules.

The relevant Law of the Sea provisions in the fmal analysis merely sets outer limits as regards the possible exercise of civil jurisdiction by ascribing varying degrees of competence to the littoral state depending on which maritime zone is involved.

The rest of the Convention provisions looked at may broadly be considered as falling into a third category embracing a variety of public and private international law issues.

For the most part, they relate to the matter of Choice of Law, whether directly or indirectly.

The effect of these provisions on national law are not as direct as those of the second category.

thus, for instance, the ship nationality provisions of the Law of the Sea, are amenable to interpretations permitting the use of flags of Convenience.

These in turn have consequences for choice of law.

Hence, the provisions affect the local law rather indirectly whenever the

238 is

a

has

the

fall

under

that

have

in

relevant

even

as

which

Jamaica

the

rights

not

extent

given

law

its

is

EEZ

law.

provisions

the direct

ultimately

which

provisions

has

an

to

local

to

any

of

suggested.

may

Law

convention,

Jamaica

the

exercises

had

of

in

Jamaica

the

considered

issues

international

to already

now

fully

which

gap

Court.

a

to

to

Choice

Conventions

Jurisprudence

where

of

whose

lines

party

establishment up

private

the

a thus the

issue.

the

Jamaica

is the not

of

Rules

preliminary and

is

into

Jamaican

convention when

along have

regards

There

239 Convention,

respect

becoming certain

as Conventions

point,

affect

case in

of

in

brought

the

procedural that considered

is

the

rectified

to

may

Convention.

case

without the

so

Collision

Convention.

obtain

be

stipulations

international

state to

to

shown

they

party

Bay

promulgated.

an

enactment

law.

a

maritime

1952

more

their

flag

be

of

the been

not

ought

the

to

important

the relating

provisions

even

is

Agreement of

had

of

Montigo yet

An

indirectly its

be

it

of

category

Jamaican

Jamaican

considerations

to

the are

case

law

provisions situation

will

for

for

by

Jamaica

the

the

provisions

the

contemplates

effect

second

Similar

Articles Overall,

for In These This This As

of However,

in

the

the

Conventions.

roots

party,

question seamen’s

a such legislative legislation its

consequences party.

provided within

consequences they offer guidelines as to international thinking on jurisdictional questions which may well inform legislative and judical activity.

This, it is suggested, is particularly the case as regards the Hamburg Rules jurisdictional stipulations and its ramifications for Jurisdiction clauses in Bills of Lading.

Here, much guidance can be obtained from these provisions for judicial and legislative activity.

Indeed, immediate enactment of their stipulations is being strongly urged.

Another matter which the analysis reveals is particularly deserving of immediate attention is the maritime procedural and private international law relating to marine pollution.

Here, urgent changes are necessary in the law as an integral part of any national or regional marine pollution disaster preparedness effort.

In the fmal analysis, it is essential that the local jurisdictional and related rules as they exist now, and develop in the future, within international legal parameters advance, or at least do not frustrate vested national interests.

240 Chapter 6

Time Limitation of Maritime Actions

241 Chapter 6

TIME LIMITATION OF MARITIME ACTIONS

Part A — General Background

1. Introduction

2. Policy Considerations

3. Limitation Periods — The General Principles

a. When time starts to run

b. Preventing time from running out

c. Extension or Postponement of Limitation Period

d. The effect of time having run

Part B — Limitation of Maritime Actions in Jamaica

242 1. General stipulations

2. Particular stipulations

a. Carriage of Goods by sea claims

b. Claims for Collision Damage and Salvage Remuneration

c. Maritime claims in Jamaica — without claim specific limitation periods (and

International Convention provisions)

i. General

ii. Claims against carrier by sea i respect to Passenger Death, Personal Injury,

Loss of or Damage to Luggage

iii. Claims for Oil Pollution Damage

iv. Other Maritime claims-applying six year limitation period

3. Maritime Liens — their extinction by lapse of time

i. General considerations

ii. International Convention provisions and Jamaican Law

4. Maritime Arbitration proceeding and time-bars

5. Time Limitation in Jamaican Conflict of Laws

6. Concluding Comments

243 Chapter 7

The Limitation of Maritime Actions

Part A — General Background

1. Introduction

In practice it is of the most importance that a maritime claimant does not go to sleep on his claim. He is required to commence and pursue his claim with reasonable dispatch. As Jackson notes, “Delay is relevant to every stage of enforcement proceedings and can have the consequence of penalty in costs, destruction of the remedy or destruction of the claim.”

Various devices and sanctions are available and used at different stages of the litigation process to discourage and penalize a tardy claimant.

At the pre-litigation stage a claimant is in the first place required to commence court proceedings within a stipulated time period. After he has started his action, he is required to

IbidJackson,D.C.,Enforcementof MaritimeClaims,1985,p. 86.

244 promptly proceed with his claim or be liable to have his action dismissed by the court for “want of prosecution”.

In this regard Lord Justice Diplock noted:

‘Courts do not like to deprive a plaintiff of the right to his day in Court or

of having his action tried but, at the same time, delays cannot be permitted

to the prejudice of defendants who are entitled to have the issues disposed

of promptly and in accordance with the rules.”

In keeping with the focus of this thesis, this chapter is essentially concerned with time stipulations in respect of commencing legal proceedings by the maritime claimant as distinct from those relating to continuation of such proceedings. Here, time is of the essence not only for the claimant but also for the claimant’s lawyer who may, if properly and timely briefed, be exposed to liability for negligence where he fails to start proceedings within the time allowed.

Thus, Pineus observes:

“An Attorney will not always win his case. How could he? He is not

Diplock, U. (ashe thenwas)in Allen v Sir Alfred McAlpine and SonsLtd.et al (1968),2QB229at p. 254.

245 expected to. It will not be held against him unless it happens because he

had missed a time bar.”

Danielson and Smith notes (in respect of cargo claims):

“Upon receipt of the file from underwriters, the first thing to be

determined by the Attorney is how much time remains before suit must be

filed.”

In Jamaica, following the English practice, the expression “Limitation of Action” is used in reference to the situation where a Claimant is liable to lose or forfeit his right of action or remedy as a result of lapse of a stipulated period of time before he commences court proceedings. For the claimant, the limitation period is accordingly “... the period during which

. the law permits him to delay, without losing his right .

Various statutory provisions prescribe limitation periods affecting maritime claims in

Jamaica. The principal Jamaican Statute of Limitation is The Limitations of Actions Act, 1881,

Pineus, Kaj International MaritimeLaw, Time-Barred Actions, 1984 at p.v. (Introduction). Danielson,David and Smith, Craig: The presentation of theclaimant’scargocase,1981. Archbold v Scully (1861) 9 H.L. Case 360per Lord Wensleydale at p. 383cited also in Weld v Peire (1929) 1 Ch. 33 (C.A.). Roughly analogous terms used in Continental European civil law jurisdictions are “prescription” and “Verjahrung”. Mozley and Whitely’s Law Dictionary 10th edition, E.R. Butterworths (E.R. Hardy Ivany (editor)) stated that “A statute of limitation is one which provides that no court shall entertain proceedings for the enforcement of

246 (itself dated) which is general in its scope.

There is as such one other Statute of Limitation in Jamaica: The Public Authorities Protection

Act, 1942. This Act deals exclusively with actions instituted against Public Authorities.

Neither statute makes any specific reference to maritime claims although these claims generally fall Withintheir purview. The exceptions are the few instances where there are in other statutes particular provisions specifying limitation periods for certain maritime claims. In these cases it is the particular stipulations which apply and take precedence over any general stipulations which would otherwise apply. Thus as Jackson states ‘Any inquiry about time limits must, therefore, stan with a search for a particular statute relevant to the claim.” If such a search is not fruitful, then one looks to the more general and all embracing limitation statutory provisions.

2. Policy Considerations

Various policy reasons supporting the need for statutes of limitation have been put forward

certam rights if suchproceedings were set on foot after the lapse of a definite period of time,reckonedasa rule from thedate of theviolation of the right”. Ibid.,p. 90.

247 of

per

with

policy

(1927)

claim

C.A.

persons

230

the

Co

them

Underlying

stale

is

them Limitation

704,

229,

a

and

in at

on

follows:

at prevent

This

as pursue

to

passed.

700

1969.

Irvine

226

justice

disprove

time. has Report

K.B.

to

should

its

periods

E.R.

than

2

Actions,

time

in

designed

Cayzer,

of

v

ALL

are

248

actions cruelty (1949)

reasonable

evidence

2

a

limitation

Canada

of

Trade

the

laws

605.

of

Ltd.

of reasonable

Limitation

Atkinson).

more

of

Butter on

lost

para

within

that

v

and

causes

have

These

Lord detre

28,

have

(Board

Report

once

per

Vol

Properties

good

C.J.);

brought

raison

claims

Lloyds

Commission

HL,

might

statutes.

be

at

the

with

actions

edition)

diligence

J.);

628,

out

Goddars

Commission,

Beligrove (4th

dormant

Reform

at

include:

should

v

sets

defendant

Policies

limitation

persons

610

Lord

a Laws long

Law

beginning

Reform

These

reasonable

(RB (Jones Streatfield

per AC that

that

that

Law

1.

2. 3. “Lawsuits

behind from

succinctly

Ontario

Haisbury’s

courts.

See

Ontario

The

the

by

Actions the policy is a recognition that it is not fair that an individual should be a

subject indefinitely to the threat of being sued over a particular matter. Nor

is it in the interest of the community that disputes should be capable of

dragging on interminably. Furthermore, evidentiary problems are likely to

arise as time passes. Witnesses become forgetful or die: documents may

be lost or destroyed. Certainly, it is desirable that, at some point, there

should be an end to the possibility of litigation in any dispute.”

From the commercial perspective, as Gertner notes, “Limitation periods also inject a much needed element of certainty or finality into commercial dealings and the commercial world, where certainty is the handmaid of efficiency and progress.”

From the standpoint of the Legislator setting the cut off point is a balancing exercise involving the differing interests of the Plaintiff and the Defendant. Thus Stone notes that a

“sensible legislator” should in drawing the line, inter alia, “... give Plaintiffs a reasonable opportunity of enforcing their rights”, taking into account “... disabilities to which the plaintiff may be subject and to difficulties which he may have in discovering the facts from which the claim arises”. Conversely, the legislator should endeavor not to “disappoint reasonable

Ibid.., at p. 9. Gertner,Eric:Dismissalforwantofprosecution:A Decade after Sir Alfred McAlpine and SOns Ltd., at p. 48. Stone, P.A.: Time limitation in the English Conflict of Laws, 1985 L.M.C.L.Q., 497 at p. 501.

249 F

expectations of the defendant that a matter is closed”.

3. Limitation Periods — the General Principles

a. When time starts to run

In general, the period of limitation begins to run when the cause of action accrues. Apart

from any special provision, a cause of action normally accrues when there is in existence a

person who can sue and another who can be sued, and when there are present all the facts

which are material to be proved to entitle the plaintiff to succeed. The general rule in contract is

that the cause of action accrues when the breach takes place and in tort when the damage is

suffered.

b. Preventing time from running out

i. By commencing court proceedings

Ibid.. Seegenerally:Haisbury’sLaws(4th edition)Vol28, para 601 et seq. “The fact or combinationof facts which give rise to a cause of action” (per Osbom’sConcise Law Dictionary, 7th Edition,at p. 66. Cooke v Gill (1873) LR 8CP 107 at 116 per Brett J; Read v Brown(1888)22 Q.B.D.128,C.A. Pineus, Kaj (ed.), op. cit., at p. 71; Halisbury’s Laws. op. cit., para 622 et seq.

250 This is done in Jamaica by filing or having issued a written of originating

summons in the Supreme Court or a Plaint in the Resident Magistrate’s Court.

ii. ‘Wherethere is an Agreement not to sue

“If creditors enter into a binding agreement not to sue a debtor for a certain time,

the agreement can be pleaded as a defence to an action by the creditors and no

statute of limitation will run while the agreement is in force.”

iii. Where there is a promise not to plead the statutory provisions

Such a promise accompanied by acknowledgement of debt may set time running

afresh. Even, without such an express promise, it appears, a defendant may be

stopped from pleading the statutory limitation provisions where he represents to

the Plaintiff that he wishes him to delay proceedings without prejudice to the

Plaintiff who in good faith does so based on this representation. In general, an

express or implied agreement not to plead a time-bar is valid if supported by

consideration and will be given effect to by the court.

c. Extension or Postponement of Limitation Period

In general, limitation periods may be extended in case of disability (e.g. where an infant

Halisbury’s Laws, op. cit., para643- Ibid., para 644; Pineus, Kaj(ed), op. cit., at p. 72; The doctrine of promissory estoppel is started in Central London Property Trust Ltd v High Trees House Ltd (1947) K.B. 130. Pineus,Kaj(ed),OP. cit., at p. 72.

251 or person of unsound mind is involved). They may be postponed where there has been certain written acknowledgement of obligation or part payment appropriate to the right of action, or in cases of fraudulent concealment or mistake.

Haisbury’sLaws,op.cit.,para864 et seq.

252 a

of

the

of

three time- these

to

is

cause

the

effect

right

Authorities, claim, on

the

the

the

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that

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accrual

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from

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six action

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relating

traditional

is

2.

on means 253

(by

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1942,

contract

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time-bar claim barred

action the years. time periods would, in general, apply to the claim.

2. Particular stipulations

a. Carriage of Goods by Sea Claims

Article HI, paragraph 6 of the SCHEDULE to the Jamaican Carriage of Goods Act,

1889, (enacting the Hague Rules) provides that:

“Unless notice of loss or damage and the general nature of such loss or

damage be given in writing to the carrier or his agent at the port of discharge

before or at the time of the removal of the goods into custody of the person

entitled to delivery therest under the contract of carriage, or if the loss or

damage be not apparent within three days, such removal shall be prima facie

evidence of the delivery by the carrier of the goods as described in the bill of

loading.

The notice in writing need not be given if the state of the goods has at the

time of their receipt been the subject of joint surrey or inspection.

The InternationalConventionfor the unificationof certainrulesof law relatingto billsof lading,1924. Note:Thissection of thethesisfocusesoncarriageof goodsclaimscoveredby theHagueRules.Forother carriageofgoods claims,otherconsiderationswillapply,vide:infra.

254 In any event the carrier and the ship shall be discharged from all liability

in respect of loss or damage unless suit is brought within one year after

delivery of the goods or the date when the goods should have been

delivered.

Notice by certain time

From this it follows that the consignee or person taking delivery on his behalf is normally required to upon taking custody of the goods to indicate then, at the latest, that they are not in the same order and condition described in the Bill of Loading, if that is the case. Except that where the loss or damage is not apparent such written notice has to be given within three days.

The penalty for failing to give notice within the time stipulated is to provide the carrier with prima facie evidence of delivery of the goods in the same order and condition as described in the bill of loading.

Thus, it appears that essentially the legal implication is that a tardy consignee in such a case would (by failing to give timely written notice) have the onus of proving loss of or damage to the goods definitely thrust upon him.

However, in Scrutton on charterparties it is asserted in reference to the relevant sub

Except where the goodswere subject to a joint survey or inspection.

255 is

by

be

strict

proof

initial

claim.

effect.

giving

appear person

“legal”

if

in

logically it

practical

Goods

his

any

not

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upon

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claimant,

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paragraph 1978,

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analysis

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Hamburg of

it

legal

loss

discussion,

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need

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discharge

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no

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to

significance.

256

shift

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of

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for

Leyden/Boston

is

in

writer, surely - consignee

have

furnish

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it

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88

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shipper.”

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6

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Samir:

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Mankabady,

definite

paragraph asserting significance. Whether shifts legal of that Hence, from from timely presumption provide prima facie evidence against the carrier of the existence of loss or damage at the time of delivery. This then places the onus of furnishing rebuttal evidence on the carrier. In a situation where a prima facie case has been made out and there is difficulty on procuring rebuttal evidence then this may well be decisive in favour of the consignee.

Conversely, the giving of a clean receipt to the carrier upon taking delivery of the goods or otherwise failing to give timely written notice of loss or damage to the goods will, as Astle notes, place upon the consignee “the onus of retuting the prima facie evidence of the clean receipt...

Two final observations may be made regarding the Notice stipulations. Firstly, as is noted in

Scrutton on Chapter parties:

‘if by the time the goods have been removed into the custody of the person

entitled to delivery the ship has sailed and has no agent at the port of

discharge, it is a little difficult to see how this provision will be complied

with.”

Serutton suggests that possibly the agent employed for the ship will be held to continue to be agent for the purpose of receiving notice. Thankfully, the problem does not seem to present

Vide: Astle, W.E.: Shipping and the Law, at p. 53. Ibid. Ibid.

257 itself in practice as conceivably, difficult problems would arise concerning any ungratified assumed authority of such a former agent of the carrier.

Moreover, in the first place, the person who was employed as agent for the ship may be held to be within his rights not to accept any such notice after the ship has left and his agency contract with the ca-trierhas ended on the basis that he has no actual or implied authority to do so.

The second observation concerns the words: “... before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof. .“ Normally, the consignee does not receive the goods directly from the ship. Typically, cargo after discharge in Jamaica, will at least pass through the hands of the reminal Operator and Customs Authorities before it reaches the consignee. These “intermediaries” ought therefore to take care of timely quality in writing their receipt of the goods as appropriate.

“Suit” to be brought within one year

An initial question to be determined is the meaning and scope of the term “suit” in this

context. Importantly, does it include arbitration proceedings?

Ibid. Astle, Ibid..

258 Normally the term “suit” means civil court proceedings. The English Osborn’s concise Law

Dictionary states that suit is “any legal proceeding of a civil kind brought by one person against another.” The American Black’s Law Dictionary in its definition unequivocally indicates that suit necessarily means court proceedings.

It states that “suit” is “A generic term, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right... “Kohl v U.S., 91 U.S. 367,375, 23 L. Ed. 449;

Weston v Charleston, 27 U.S. (2Pet.) 449, 464, 7 L. ED 481; Syracruse Plaster Co v Agostini

Bros, Bldg Corporation, 169 Misc. 564, 7 N.Y.S. 2d 897.

Black’s Dictionary goes on to point out that the term “is, however, seldom applied to a criminal prosecution” and has, “generally been replaced by the term ‘action’...”

Section 2 of the Jamaican Civil Procedure Code which deals with the interpretation to be given to various terms used in the code, tersely states that “suit” “shall include action”. This

“definition” by itself hardly takes us any further. However the code then states that “action”

“shall mean a civil proceeding commenced by writ, and shall not include a criminal proceeding

aLp.315. Black’s Law Dictionary, 5thEdit, 1979, at p. 1286. Ibid. The Consolidated Judicature (Civil Procedure Code) Law, Chapter 177, 1889.

259 ..“ by the crown.

It therefore appear that at the very least, as a matter of legal semantics, the term “suit” implies civil court proceedings. The question therefore arises as to whether “suit to be brought within one year under Article 3(6) should be confmed to civil court proceedings

The issue of whether commencement of arbitration proceedings was “suit brought” within the meaning of Article 3(6), came up for decision in the English case of The Merak.

In that case, cargo owned by the plaintiffs was discharged on 21st November 1961, in a damaged condition. The bill of lading contained a clause requiring any dispute to be referred to arbitration within 12 months of final discharge. The plaintiffs issued a writ on 15th November

1962, and the case came on trail on 28th July 1964, when the trail Judge stayed the action on the ground that the parties had agreed to refer the dispute to arbitration. By then, the time limit under the arbitration clause had long since passed. The plaintiffs appealed and claimed that the arbitration clause was void in that it conflicted with Article 3, paragraph 6 and 8, of the Hague

Rules, and that they were still entitled to bring an action within one year of final discharge as they had done in fact.

The English Court of Appeal held that the action must be stayed. The arbitration clause was

(1965) p 223 (1965) I All E.R. 230, CA; It appears American Courtshave taken an opposite view to that in the Merak, vide: Murray D.E.: The Hamburg Rules: A comparative analysis. Lawyer of the Americas; at p. 80. Vide: Shipping Marine Insurance and the Law — Backgroundplots (34). Time Limitation — Place of Settlement. Definition of Suit, Fairplay, May 1967.

260 effective, and since the matter had not been referred to arbitration within 12 month, the plaintiffs were without a remedy. The word t“suit’ in Article 3(6) was held to include Arbitration proceedings.

The ultimate consequences for the consignee were clearly severe. Prima facie, it seems to be a case where the right thing was not done at the right time by the plaintiff. However, further

exploration of the facts reveals that the Arbitration Clause and its time stipulation was not

apparent on the face of the Bill of Lading. Rather, these stipulations were incorporated into the

Bill of Lading by reference.

It is respectfully submitted that whenever the bill of lading is issued under a charterparty containing an arbitration clause a different approach ought to be taken by the courts. Here, the consignee will typically be ignorant of the details of the charterparty provisions, and often cannot without much inconvenience and costs to himself procure such information.

Otherwise, it seems in principle desirable to construe “suit” as including arbitration. Thus where for instance, a Bill of Lading clearly on the face of it requires disputes to be settled by arbitration, them arbitration proceedings timely commenced should be sufficient to satisfy the provisions of Article 3(6). However, if an arbitration clause stipulates a time limit shorter than thatin Article 3(6) it should be held to be at least void to this extent.

Videinfra.

261 This is do since this would clearly violate Article 3(8) of the schedule of the Jamaican carriage of Goods Act (which enacts the same provision of the Hague Rules) and provides as follows:

“Any clause, covenant or agreement in a contract of carriage relieving the

carrier or the ship from liability for loss or damage to or in connection with

goods arising from negligence, fault or failure in the duties and obligations

provided in this Article or lessening such liability otherwise than as provided

in these Rules, shall be null and void and of no effect...”

When time starts to run

Firstly, time starts to run from the date of delivery of the goods. Secondly, it starts to run from when the goods should have been delivered. Thus it is important to consider what constitutes “delivery” and whether, for instance, it has the dame meaning as “discharge”.

Different courts in different countries have attributed differing interpretations to “delivery” vis-avis “discharge” in their interpretation of Article 3(6) of the Hague Rules.

The Supreme Court of Australia has held that “delivery” was made for the purpose of

InAutomaticTubeCoPty Ltd. and Email Ltd. - BalfourBuzacottDivisionv AdelaideSS(Operations)Ltd., Adelaide SSCoLtd.and Adelaide SSCoPty Ltd., TheBelirane(1967)i Lloyd’sRep531.

262 Article 3(6), either when the goods were landed on the wharf and freed from the ship’s tackle, or at the latest, when they were placed in a warehouse and immediately became available to the consignee.

In an American Case, it was held that the time-bar period started running after discharge plus notice to the consignee plus a reasonable opportunity to receive the goods. In another

American case it was held that “delivery” was not synonymous with discharge and denoted a two-party transaction in which the consignee would have an opportunity to observe defects.

There appears to be no Jamaican or other West Indian or English cases directly on point.

However, it appears, to the writer that mere discharge of the goods should not be sufficient to start time running against the consignee. At least he needs to have been notified and given a reasonable opportunity of receiving and inspecting the goods to at least ascertain apparent defects before time should start running against him.

Enactment of the Hague Rules

Article 3(6) of the Schedule to the Jamaican Carriage of Goods Act in its enactment of the corresponding provision of the Hague Rules omitted the second sub-paragraph of the latter’s

NationalPackagingCorp.v NipponYusenKaiska(NYK Line)1973 I Lloyd’sRep46. American HoeschInc.and RibletProducts Inc.v SSAubadeand Maritime CommercialCorp. Inc.(1971)2 LloydsRep423.

263 provisiOnS.

This sub-paragraph provides that:

“If the loss or damage is not apparent, the notice must be given within three

days of the delivery of the goods”.

This extra wording which was perhaps put in the Hague Rules to aid its translation into other languages was apparently omitted from the Jamaican Act by the draughtsmen to avoid tautology.

This appears to be so as the requirements of the deleted sub-paragraph are contained in the first sub-paragraph of paragraph 6.

Nevertheless, it appears to the writer that its inclusion, although seemingly repetitions would have enhanced the clarity of paragraph’s 6 stipulations,

This submission is based on the fact that the first sub-paragraph is cumbrously drafted. It requires rather careful reading to extract the meaning readily conveyed by the deleted sub paragraph.

The Jamaican Carriage of Goods Act is actually divided into two parts. Part 1 deals with the carriage of goods by land. Part 2 deals with the carriage of goods by sea and incorporates the

Hague Rules.

It seems to the writer that it would have been better to have had a separate Act dealing

264 exclusively with the carriage of goods by sea rather than have those provisions in effect, attached to a largely unrelated and dated 1889 Act dealing with carriage of goods by land.

Part 2 of the Act is essentially a duplication of the 1924 United Kingdom Carriage of Goods by Sea Act, which enacted the Hague Rules into English Law. Part 2 was enacted by Act 10 of

1927.

The Hague Rules Amendments

The provisions of Article 3(6) of the Hague Rules have been amended by Article 1, paragraph 2 of the Brussels Protocol, 1968.

The amendment is firstly by way of deleting sub-paragraph 4 of paragraph 6, which provides that:

“In any event the carrier and the ship shall be discharged from all liability in

respect of loss or damage unless suit is brought within one year after

delivery of the goods or the date when the goods should have been

delivered.”

This deleted sub-paragraph is replaced by the following in the Hague—VisbyRules:

Likeits Jamaicancounterpartdoesnow,it appliedonlyto “outward”BillsofLading.

265 “Subject to paragraph 6bis the carrier and the ship shall in any event be

discharged from all liability whatsoever in respect of the goods unless suit is

brought within one year of their delivery or of the date when they should

have been delivered. This period may however be extended if the parties so

agree after the cause of action has arisen.”

The effect of this amendment, it appears, is to now apply the one year time limit to all claims in respect of loss or damage, inclusive of claims such as those for wrongful delivery.

In addition the amendment makes it clear that the parties may by agreement extend the limitation period after the cause of action has accrued. This, in any event, can normally be done under the general law pertaining to limitation of actions.

By virtue of Article, paragraph 3 of the Brussels Protocol, an additional paragraph b bis has been added. It immediately follows the now amended paragraph 6 of Article 3 of the Hague

Rules and provides as follows:

“An action for indemnity against a third person may be brought even after

the expiration of the year provided for in the preceding paragraph if brought

within the time allowed by the law of the Court seized of the case. However,

the time allowed shall not be less than three months commencing from the

Astle,op. cit.,p. 52. Videsupra.

266 day when the person bringing such action for indemnity has settled the claim

or has been served with process in the action himself’.

By virtue of this amendment, the carrier is not discharged from liability within the one year time limit provided by Article 3(6), in the case of claims for indemnity by, for instance, another carrier who had to pay a claim for loss or damage to cargo which occurred while the cargo was in the custody of the carrier against whom the right of indemnity exists.

The carrier who has paid the claim has at least three months from the time of (1) the settlement of the claim or (2) when proceedings were instituted against him, to Commence proceedings against the other carrier for an indemnity.

The Hamburg Rules Amendments

These have effected very significant changes in both substance and form to the Hague Rules

Article 3(6) provisions. Under the Hamburg Rules, only its Article 20 is captioned “Limitation of Actions”. However, the matter of limitation of actions and intimately related issues are dealt with by 4 articles: 19—22,comprising part 5 of those rules under the caption: “Claims and

Astie, Ibid..

267 F

ActionS”.

The subject matter of Article 19 is “Notice of loss, damage or delay”. Accordingly, Article

19 deals with those matters within the purview of the first three and fifth sub-paragraphs of

Article 3, paragraph 6 of the Hague Rules. Here, significant amendments have been made.

However, it appears that, by far the most significant amendments have been made in respect

of sub-paragraph 4 of Article 3, paragraph 6 which requires “suite to be “... brought within one

year...”. These amendments have largely been instituted by the cumulative effect of Articles

20—22.

Articles 21 and 22, which deal with “Jurisdiction” and “Arbitration”, respectively, have no

counterparts in neither the Hague nor Hague-Visby Rules. They were introduced in the

Hamburg Rules to deal with particular deficiencies arising from certain lancunae in both the

Hague and Hague-Visby Rules.

Article 19 provides as follows:

“1 Unless notice of loss or damage, specifying the general nature of such

loss or damage, is given in writing by the consignee to the carrier not later

than the working day after when the goods were handed over to the

consignee, such handing over is prima facie evidence of the delivery by

268 the carrier of the goods as described in the document of transport or, if no

such document has been issued, in good condition.

2 Where the loss or damage is not apparent, the provisions of paragraph 1

of this article apply correspondingly if notice in writing is not given

within 15 consecutive days after the day when the goods were handed

over to the consignee.

3 If the state of the goods at the time they were handed over to the

consignee has been the subject of a point surrey or inspection by the

parties, notice in writing need not be given of loss or damage ascertained

during such survey or inspection.

4 In the case of any actual or apprehended loss or damage the carrier and

the consignee must give all reasonable facilities to each other for

inspecting and tallying the goods.

5 No compensation shall be payable for loss resulting from delay in

delivery unless a notice has been given in writing to the carrier within 60

consecutive days after the day when the goods were handed over to the

consignee.

269 6 If the goods have been delivered by an actual carrier, any notice given

under this article to him shall have the same effect as if it had been given

to the carrier, and any notice given to the carrier shall have effect as if

given to such actual carrier.

7 Unless notice of loss or damage, specifying the general nature of the loss

or damage is given in writing by the carrier or actual carrier to the shipper

not later than 90 consecutive days after the occurrence of such loss or

damage or after the delivery of the goods in accordance with paragraph 2

of Article 4, whichever is later, the failure to give such notice is prima

facie evidence that the carrier or actual carrier has sustained no loss or

damage due to the fault or neglect of the shipper, his servants or agents.

8 For the purpose of this Article, notice given to a person acting on the

carrier’s or the actual carrier’s behalf, including the master or the officer

in charge of the ship, or to a person acting on the shipper’s behalf is

deemed to have been given to the carrier, to the actual carrier or the

“any person by whom or in whose name a contract of carriage of goods by sea has been concludedwitha shipper” (per Article 1) “any person to whom the performance of the carriage of the goods, or of part of the carriage has been entrusted by the carrier; and includes any other person to whom such performancehas been entrusted.’ (per Article 1) Article 4(2) provides that the carrier is deemed to be in charge (and accordinglyresponsible, per Article 4(1)) for the goods from the time he has taken them over until when he has delivered them.

270 shipper, respectively.”

The main amendments effected by Article 19 therefore appears to be the following:

1 Time starts to run against the consignee for giving notice from when the

goods are handed over to the consignee.

2 In the case of apparent loss or damage to the goods, the consignee now

has until the working day after the goods were handed to him to give

notice. Under the Hague Rules he is required to give notice immediately.

3 Where the loss or damage is not apparent, the time allowed is now 25

days as compared to only 3 days under the Hague Rules.

4 Whereas under the Hague Rules, a joint inspection or survey of the

goods eliminates the need to give written notice by the consignee, under

the Hamburg Rules such notice requirement is only precluded in respect

of “... loss or damage ascertained during such survey of inspection.”

Thus if the consignee discovers damage after say, a joint inspection, he

will be required to give timely written notice.

5 Losses arising from delay in delivery are treated separately. Claims in

271 respect of such losses must now be given within 60 days of the goods

handing over to the consignee. Otherwise no compensation is payable.

This severe consequence contrasts markedly with the “evidentiary”

sanctions for untimely notice in respect of loss or damage to goods under

the Hague, Hague-Visby and Hamburg Rules themselves.

6 The consignee may give the relevant notice to either the actual carrier or

the carrier in whose name the contract of affreightment was entered.

7 A limitation period of 90 days is introduced for the “carrier” or “actual

carrier” to give written notice to the shipper of any loss of damage due to

the fault of the shipper. Failure to give timely notice is prima facie

evidence that no such loss or damage was sustained.

8 Notice for the actual carrier, carrier or shipper may respectively be given

to anyone acting on each behalf.

Article 20 of the Hamburg Rules provide that:

“1 Any action relating to carriage of goods under this Convention is time

barred if judicial or arbitral proceedings have not been instituted within a

period of two years.

272 2 The limitation period commences on the day on which the carrier has

delivered the goods or part thereof or, in cases where no goods have been

delivered, on the last day on which the goods should have been delivered.

3 The day on which the limitation period commences is not included in the

period.

4 The person against whom a claim is made may at any time during the

running of the limitation period extend that period by a declaration in

writing to the claimant. This period may be further extended by another

declaration or declarations.

5 An action for indemnity by a person held liable may be instituted even

after the expiration of the limitation period provided for in the preceding

paragraphs if instituted within the time allowed by the law of the State

where proceedings are instituted. However, the time allowed shall not be

less than 90 days commencing from the day when the person instituting

such action for the indemnity has settled the claim or has been served

with process in the action against himself.”

273 a 1

This Article along with Articles 21 and 22 have virtually effected a transmutation of the

provisions of sub-paragraph 4 of Article 3, Paragraph 6 of the Hague Rules. These latter

provisions with their requirements for “suite to be be “brought within one year” with time

revealed a number of deficiencies and have been subject to a variety of judical interpretations.

Often, it seemed that this provision in conjunction with others was weighted against cargo

interests.

This served to exacerbate the unease with which a number of developing countries viewed

the Hague Rules and its amendments. Most of these countries were colonies when the Hague

Rules were promulgated under the yoke of the dominant ship owning perspectives of a number

of developed countries.

The unease and agitation of the developing countries culminated in UNCTAD, in 1970

mandating UNCITRAL to review in detail the Hague Rules and their amendments. Among the

areas singled out for special attention were those pertaining to limitation periods and related

issues of jurisdiction.

The UNCTAD committee in its review of Article 3, paragraph 6 was particularly concerned

with sub-paragraph 4.

The Committee sought to have clarified the following five questions:

See generally: Bills of Lading, Report by the Secretariat TD/B/C.4/ISL/6/rev. 1 United Nations, New York, 1971; Astle W.E.: The Hamburg Rules. Fairplay, 1981; Mankabady, Samir (Ed): The Hamburg Rules on the Carriage of Goods by Sea, 1978. As noted in Astle, W.E.: The Hamburg Rules, pp. 48—51, 137—138.

274 V

(a)what constitutes “delivery’ in order to start the one year period running? Here, the

view was taken that “delivery” would normally mean the moment when the consignee

receives the goods from the person competent to deliver them. Accordingly, it was

proposed by the Committee that the Article 3, paragraph 6 provisions be changed to

indicate that the moment from which time begins to run is from when the consignee

received the goods or on the 1st day when he should have received them. This

proposal is reflected in Article 20 (2) (as well as Article 19 (2) and (3).

(b) Does “brought within one year” mean brought anywhere within one year, or

brought before a particular court within that time?

In the English case, Compania Colombia de Seguros v Pacific Steam Navigation Co (1932)

2 Lloyds Rep 479, it was held that a suit was time-barred because it was not brought in England

within one year, although they were previously brought within one year in another country — the

United States.

The decision in this case was very much criticized. The UNCTAD Committee opined that “if

the object of the time limit is to make cargo owners give prompt notice of claims to carriers, this

could be accomplished suitable by permitting commencement of an action in any jurisdiction

having a reasonable close connection with the contract of carriage”

Thid., p. 50.

275 is

of

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277

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(d) What is the significance of the phrase “in any event”?

Here, Astle notes that “Thee was also a conflict among the Common Law Countries as to the effect of the words ‘in any event’.” Under English Law an unjustifiable deviation could

conceivably (via the fundamental breach doctrine) result in the six year common law limitation period being applied instead of that of the Hague Rules.

In the United States the one year time limit continues to apply even in cases of unjustifiable

deviation, because of the words “in any event”.

UNCTAD sought to have this potential conflict in interpretation clarified by appropriate

amendment. However, it appears that in the final analysis the Rules have not by express

provision resolved this problem.

Although, inductive reasoning would seem to suggest that under the Hamburg Rules, the

latter American view regarding the Hague Rules “in any event” stipulation is the one adopted.

To begin with, Mankabady notes in reference to the time limit under section 20 of the Hamburg

Astle, Ibid., p. 50. See e.g. 1-lainSteamshipCo Ltd v Late & Lyle,(1936)2 All ER 597, in whichLord Atkin stated that: “... thedeparturefromthevoyagecontractedto be madeis a breachby theshipownerof hiscontract,a breachof sucha seriouscharacterthat,howeverslightthedeviation, the otherparty to the contractis entitled to treat it as going to the root of the contract, and to declare himself as no longer bound by any of the contract terms...” Astle, Ibid..

278 Rules that “the time limit will still be applicable in case the loss damage of delay resulted from an intentional or a reckless act. It is clear from Article 8 that the only sanction is that the carrier loses benefit of the limitation of liability.”

This inference appears to be based on reasoning which may be analogised with that underlying the law maxim: “what is not prohibited is permitted”.

Thus, it is noted that sanctions are stipulated for when the carrier or actual carrier does or fails to do certain things. This is the case, for example, under Article 8, where the right to limit liability is lost upon certain happenings.

No such stipulations are made with respect to the carrier losing the benefit of the limitation period stipulations. Hence, one can infer that none was intended.

It therefore appears that, prima facie, the limitation period stipulations under the Hamburg

Rules will always apply regardless of what the carrier or actual carrier does or fails to do.

(e) May the parties extend the time limit by agreement?

While extension by the parties is permitted in Jamaica and in most countries, it was not allowed in certain Eastern European countries. Such extension accords with the provisions of

Article 5 of the Hague Rules which permits the carrier to surrender wholly or partly his rights

Op.cit.,p. 96 Mankabady,op.cit.,p. 97

279 and immunities or to increase any of his responsibilities and liabilities under the Rules.

Whatever existing doubts that persisted should be put to rest by paragraph 4 of Article 20 which expressly permits such extension by a declaration in writing to the claimant. As alluded to, this does not affect the position in Jamaica where, in any event, such extension is permitted under the general principles relating to limitation of actions.

Finally, as regards Article 20, it has quite importantly, increased the one year period of limitation to two years. Also, this Hamburg Rules provision unlike its Hague Rules counterpart is formulated as a time-bar rather than as a discharge from liability. It therefore seems open to be construed as only barring the claimants remedy and not his right to claim. For recourse actions for indemnity claims, the relevant limitation period is not less than 90 days instead of (not less

than) 30 days (under paragraph 6bis of Article 3, Hague-Visby Rules).

(b) Claims for Collision Damage and Salvage Remuneration

The Maritime Conventions Act, 1911 (U.K.) applies to Jamaica by virtue of its section 9(1)

which provides that:

“This Act shall extend throughout His Majesty’s Dominions and to any territories under

Thisaccordswithcertainestablishedpractice.For instance,undertheexisting“GoldClauseAgreement”, Britishshipownersagreeto,in effect,allowup to twoyearsforcargointereststo startactionagainstthem providedspecifiedtimelynoticeisgivenoftheclaim. Vide: supra

280 his protection.. .

Section 8 of the said Act is captioned ‘Limitation of Actions” and provides as follows:

“No action shall be maintable to enforce any claim or lien against a vessel or her owners in respect of any damage or loss to another vessel, her cargo or freight, or any property on board her, or damages for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel be wholly or partly in fault, or in respect of any salvage services unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused or the salvage services were rendered, and an action shall not be maintainable under this Act to enforce any contribution on respect of an overpaid proportion of any damage for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment:

Provided that any Court having jurisdiction to deal with an action to which

this section relates may, in accordance with the rules of court, extend any

such period, to such extent and on such conditions as it thinks fit, and shall

if satisfied that there has not during such period been any reasonable

opportunity of arresting the defendant vessel in the territorial waters of the

country to which the plaintiffs ship belongs or in which the plaintiff resides

281 or have his principal place of business extend any such period to an extent

sufficient to give such reasonable opportunity.”

The Maritime Conventions Act, 1911 (U.K.) was enacted to give legislative effect to two

Brussels COnventions on Collision and Salvage to which the United Kingdom and with her

Jamaica acceded on February 1, 1913.

The two conventions are The International Convention for The Unification of Certain Rules of Law with respect to Collision between vessels, 1910 and The Convention for the Unification of Certain Rules of Law relating to assistance and salvage at sea, 1910.

Section 8 of The Maritime Conventions Act, 1911 (U.K.), was enacted to cumulatively give legislative effect to Article 7 of the Collision Convention and Article 10 of the Salvage

Convention. These Articles respectively prescribe a limitation period of two years for collision / and salvage claims.

Both Articles permit State Parties to the Conventions to provide in their legislation for the extension of the limitation periods where it has not been possible to arrest the defendant vessel in the territorial waters of the state in which the plaintiff has his domicile or principal place of business.

282 Article 7 also stipulates a one year period of limitation for enforcement of rights to obtain contribution for excess damages paid to third parties in respect of death or personal injuries.

As under English law claims for salvage and for damage done by a ship in collision with another ship or vessel are among the claims recognised as giving rise to maritime liens, section

8 of the Act specifies that the enforcement in each case of both the claim and the lien to which it gives rise to will be barred after two years. This provision thus provides one of the exceptions to the general rule that liens are only extinguished in accordance with the doctrine of laches.

“Temperley’s Merchant Shipping Acts, emphasises that section 8 by its wording, only

applies “... to claims in respect of damage or loss to cargo or property or loss of life or

personal injury which lie against the other vessel.”

It states further that “claims of this nature which lie against the vessel carrying the persons, cargo or property in question are not affected by this period of limitation: cf. The Nice to de

Larrinaga (1966) P. 80; The Ainwick (1965) 1 Lloyd’s Rep. 69 (reversed ibid. 320 on another point). Jackson notes that they “are subject only to the general pattern of time-bar rules.”

As an action in rem commences when the writ is issued, the lack of reasonable opportunity to arrest does not prevent a prospective plaintiff fro ensuring that the time limit is complied with

Vide: Thomas, P.R.: Maritime Liens, 1980, para 504;Mankabady, S. The Law of collision at sea, 1987, p. 544. Ibid., para Temperly, R.: The Merchant Shipping Acts, Britgish Shipping Laws, Vol. II, London, 1976. Ibid., para 844 Ibid. Op.cit. p. 93; Vide: The Niceto de Larrinaga (1966) p. 80

283 in the first place.

However, having had the writ issued, he might not have an opportunity to serve it before the writ expires.

Here, section 30 of the Jamaica Civil Procedure Code provides that:

“No original writ of summons shall be in force for more than twelve months from the

day of the date thereof, including the day of such date; but if any defendant therein

named shall not have been served therewith, the plaintiff may, before the expiration of

the twelve months, apply to the court or Judge for leave to renew the writ; and the Court

or Judge if satisfied that reasonable efforts have been made to serve such defendant, or

for other good reason, may order that the original or concurrent writ of summons be

renewed for six months from the date of such removal inclusive, and so from time to

time during the currency of the renewed writ.”

Even if application is not made within the prescribed time, the court can extend the time for renewing the writ, despite the general rule of practice that the court will not by the renewal of the writ revive a statue-barred debt: Doyle v Kaufman (1878) 3Q.B.Q. 1, 340; Hewett v Barr

(1891) 1 Q.B. 98.

In the case of The Espanoleto, 36 T.L.R. 554; (1920) p. 223. the facts were that a collision

Vide: F.N. 40

284 having taken place in February 1917, a writ in rem was issued in December 1918. By that time the defendant vessel had left the jurisdiction. Application for renewal of the writ was made in

March 1920. Then, the vessel was arrested upon her first return to a port within jurisdiction.

Upon a motion to set aside the writ and the renewal and the warrant of arrest, and to discharge the undertaking to put in bail, Hill I. held that in as much as the period of limitation provided by section 8 was not absolute, the court should consider the applicant on its merits and inquire whether the circumstances were such that the court would have given leave to issue the writ notwithstanding that the time had expired, on the ground that the plaintiff exercised due diligence in prosecuting his claim. If leave to issue the writ would have been granted, a fortiori, a renewal of a writ taken out within the prescribed time should be granted.

Section 8, refers to the court extending the time period in accordance with rules of court”.

Although no rules of court have yet been made under the section, the court may exercise its discretion as to extending time: H.M.S. Archer (1919) p. 1.

The principles upon which the court will grant such extension under section 8 are the same applicable for renewing the writ.

The 1965 Annual Practice states that:

“In considering whether to grant a renewal or further renewal of a writ, the court will

Temperly, op.cit. para 845, Jackson, op.cit., p. 93; The Owenbawn(1973) I Lloyds Rep. 56 The Annual Practice 1965, Vols. I, London,Sweet&Maxwell, 1965, p. 68

285 have regard to all the circumstances of the case.”

In the Owenbaum, (1973) 1 Lloyds Rep. 56, Brandon J. envisaged three situations in which it was just to renew the writ:

(1) where there is an express agreement deferring service

(2) where there is an implied agreement to the same effect; and

(3) where there has been conduct leading the plaintiff to suppose that it would be all right

to defer service.

This list is not exhaustive. It appears that once the court is convinced that there is “good reason” to renew the writ or likewise extend the two years limitation, it will normally do so.

However, mere negotiation between the parties do not constitute “good reason” to renew.

Thus, Lord Denning M.R. in Easy v Universal Anchorage Co Ltd (1974) 1 W.L.R. 899 at p.

902 states that: “Negotiations for a settlement do not afford any excuse for failing to serve a writ in time or to renew it.”

Finally, as regards section 8, it should be noted that despite the reference to arrest in its proviso, the discretion to extend time applies to actions in personal as well as to action in rem:

The Arraiz (1924) Ll.L Rep 235.

“The only principle is that a writis nottoberenewedexceptforgoodreason...” per Lord Denning. M.R.in Easy v. Universal Anchorage Co. Ltd. (1974) 1W.L.R. 899 at p. 902; Vide: Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice (22nd Edn.), London, Stevens & Sons,1981.

286 New Salvage Convention

There is now a new Salvage Convention: The International Convention on Salvage, 1989. Its Article 23 under the caption t‘Limitation of Actions provides as follows:

1 Any action relating to payment under this Convention shall be time-barred if judicial

or arbitral proceedings have not been instituted within a period of two years. The

limitation period commences on the day on which the salvage operations are

terminated.

2 The person against whom a claim is made may at any time during the running of the

limitation period extend that period by a declaration to the claimant. This period may

in the like manner be further extended.

3 An action for indemnity by a person liable may be instituted even after the expiration

of the limitation period provided for in the preceding paragraphs, if brought within the

time allowed by the law of the State where proceedings are instituted.”

Thus, the limitation period remains at two years, before it runs fro the day on which the

287 to

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state

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288

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1910

have salvage indicative as stop indemnity. Convention where limitation

1 i General

In Jamaica, these are, in general, governed by the broadly applicable 6 year period of limitation. On exception is in respect of maritime fatal accident claims, involving for example ship passengers or crew. Here, as noted, the relevant period under The Fatal Accidents Act is three years. Also, where the Government or other Public Authority is being sued the applicable limitation period for commencing suit is one year (Public Authorities Protection Act, section 2).

ii Claims against carrier by sea in respect of Passengers Death, Personal Injury, Loss

of or Damage to Luggage.

Article 16 of the 1974 Athens Convention Relating to The Carriage of Passengers and Their

Luggage by Sea, which is captioned “Time-bar for actions” provides that:

“1 Any action for damages arising out of the death or personal injury to a passenger or

for the loss of or damage to luggage shall be time-barred after a period of two years.

2 The limitation period shall be calculated as follows:

(a) in the case of personal injury, from the date of disembarkation of the passenger,

(b) in the case of death occurring during carriage, from the date when the

passenger after disembarkation, from the date of death, provided that this period

Supra

289 shall not exceed three year from the date of disembarkation;

(c) in the case of loss or damage to luggage, from the date of disembarkation or

from the date when disembarkation should have taken place which ever is later.

3 The law of the court seized of the case shall govern the grounds of suspension and

interruption of limitation periods, but in no case shall an action be brought after the

expiration of three years from the date of disembarkation of the passenger or from the

date when disembarkation should have taken place, whichever is later.

4 Notwithstanding paragraph 1,2 and 3 of this Article, the period of limitation may be

extended by a declaration of the carrier or by agreement of the parties after the cause

of action has arisen. The declaration or agreement shall be in writing.”

In determining when time begins to rum paragraph (b) makes a distinction between when death occurs during carriage and when it occurs after carriage of the passenger. Under the

Jamaican Fatal Accident Act, the primary concern is the date of death.

Jamaica os not a party to the Athens Convention. However, in an appropriate case, a

Jamaican court could pay cognizance to the distinction.

The distinction seems well advised as whoever is bringing suit might mot be made aware of the death of the deceased until after the time he should have disembarked.

290 Clearly, if the distinction is followed the result wifi be to increase the period of limitation that would be available to the claimant for death occurring during the voyage.

The absolute ceiling of three years for fatal accident claims, except for the distinction noted, generally accords with present Jamaican law. However as regards personal injury and damage to luggage claims, the 6 year period of limitation is available to the claimant.

Article 17 of the convention which deals with “competentjurisdiction “permits a claimant to choose from a variety of courts to bring his action. If he chooses a Jamaican Court, one benefit he will clearly have vis-a-vis the controls of State Parities to the Convention is a longer time within which to bring his action in respect of personal injury and loss or damage to luggage.

On the other hand, if it is a fatal accident claim arising from the death of the passenger during the voyage he may well find himself with less time to commence proceedings in the

Jamaican court as against that permitted by the courts of the State parties to the Convention.

It appears anyway that a “limitation period” Forum Shipping claimant might be very much constrained in exercising his Article 17 options by the relatively few number of State Parties to the Convention. At June 1, 1989, this amount stood at a mer 12 countries.

(iii) Claims for Oil Pollution Damage

Vide: IMO News, No. 2, 1989, p. 2.

291 Article 8 of the International Convention on Civil Liability For Oil Pollution Damage (1969)

provides that:

‘Rights of compensation under this convention shall be extinguished unless

an action is brought thereunder within three years from the date when the

damage occurred. However, in no case shall an action be brought after six

years from the date of the incident which caused the damage. Where this

incident consists of a series of occurrences, the six years’ period shall run

from the date of the first such occurrence.”

Similarly, Article 6 of the International Convention on the Establishment of An International

Fund For Compensation For Oil Pollution Damage provides as follows:

“1. Rights to compensation under Article 4 or indemnification under Article 5 shall be

extinguished unless an action is brought thereunder or a notification has been made pursuant to

Article 7, paragraph 6 within three years from the date when the damage occurred. However, in

no case shall an action be brought after six years from the date of the incident which caused the

damage.

2. Notwithstanding paragraph 1, the right of the owner or his guarantor to seek

indemnification from the Fund pursuant to Article 5, paragraph 1 shall in no case be

extinguished before the expiry of a period of six month as from the date on which the owner or

292 p his guarantor acquired knowledge of the bringing of an action against him under the Liability

Convention.”

In considering these provisions, it is worth bearing in mind that the main aim of the

“Liability Convention” is to facilitate the recovery of compensation for oil pollution damage against the responsible vessel.

The “Fund” Convention broadly aims to provide additional compensation in appropriate cases where damage claims are not covered by the Liability Convention. Article 4 of this convention provides for the obtaining of such compensation. Article 5 facilitates indemnification of the owner and his guarantor in certain circumstances. Article 7 (6) requires notice to be given to the Fund in respect of any proceedings for oil pollution damage brought in a contracting state’s court under the Liability Convention.

For both Conventions, the basic limitation period is three year from the date when damage occurred. Claimant in respect of latent or deterred oil pollution damage stand to benefit from the longer but absolute 6 years ceiling for bringing claims. Although, this need not always be so as in this case time runs from the incident and not the damage. Often, the full effects of oil pollution damage take a long time to manifest themselves. The potential claimant may thus be

Vide: Gold,Edgar: Handbook on Marine Pollution, Gard, 1985,p. 114 - 115;Bates,John H.: United KingdomPollutionLaw, 1985,chap.4; Abecassis, D.W., Tarashow, R.L.:OilPollutionfromShips,(2nd Edn), 1985, Chap. 10. Ibid.

293 prejudiced accordingly.

Jamaica is a party to neither the Liability nor the Fund Convention. The general six year

limitation period thus applies to oil pollution damage claims. However, Jamaica may wish to

benefit from certain Voluntary Compensation Schemes provided by the Oil Tndustry. For both

TAVOLOP and CRISTAL, a claimant is required to give notification within two years of the

incident.

(iv) Other Maritime Claims - applying six year limitation period.

These broadly include all other claims such as those for demurrage, freight under a

charterparty, loss or damage under a marine insurance policy and contribution to general

average. For these claims, there appears to be no International Convention provisions

specifying particular limitation periods.

3. Maritime Liens - their extinction by lapse of time

i. General consideration

Maritime liens, with limited exceptions, are not subject to any specific time for enforcement

Vide: Gold,op.cit.,pp 47 - 48, 115 - 118. TankerOwnersVoluntaryAgreementConcerningLiabilityFor OilPollution. ContractRegardingA SupplementTo TankerLiabilityFor OilPollution. Vide:TOVALOP& CRISTAL:A guideto oil SpillCompensation,pp. 4, 8.

294

-a under Jamaican Law. However, they may be lost through lack of reasonable diligence in enforcing them.

Thomas notes that “with regard to the operation of the doctrine of laches in the Admiralty

Court, it would appear that a claim will rarely founder on the ground of mere delay. “Thus in the Chieftan (1863) B&L. 212,a lapse of 10 months before a master instituted a suit for wages was held to be no bar. In The Europa (1863) B& L 80, a delay of over three years ion prosecuting a damage lien arising out of collision did not bar enforcement.

The case of The Wing Magnus, 1891 p. 223 affords a remarkable example. In that English case a delay of eleven days before instituting proceedings in rem was held insufficient to extinguish the claim, although during that period the offending ship had made frequent visits to port in the United Kingdom.

The applicable principle appears to be that where there is undue delay in presenting a claim the Court looks not only to the period of time which has elapsed, but to the total circumstances as they touch upon the interests of justice or of the parties involved, the ultimate consideration being “... the balance of justice or injustice in affording or refusing relief.”

Relevant circumstances include the loss of witnesses or evidence and the rights of third parties. Thus in the Europa, it is noted that “A maritime lien follows the ship into whosoever

Thomas, Maritime Liens, op.cit., para 502; Pineus, op.cit. p. 70. Thomas, op.cit., para 502. thid, para 502 Re Sharpe (1892) I Ch. 154, perLindley 3. at p. 168.

295 hands she may pass, and may be enforced after a considerable lapse of time; but to effect the rights of third persons, reasonable diligence in its enforcement must be used, otherwise the lien may be lost.”

In the same case it is stated that “Reasonable diligence means not the doing of everything possible but that which, having regard to all the circumstances, including consideration of expense and difficulty, can be reasonably required.”

The doctrine of laches prevail except in cases where there are specified limitation periods as in respect of salvage and collision damage liens. Thomas opines that where there exists a statutory time limitation, there can be no successful challenge for delay within the specified period, for the statutory period of time represents “... the period during which the law permits him to delay, without losing his right.”

If this is so then it seems to the writer that this rules out the possibility of a situation occurring where a claim secured by a maritime lien survives the loss of that lien. However, such a possibility, although considered “unlikely” has been put forward in Pineus: Time-Barred

Actions.

The example given is where a lien has been lost through lach of reasonable diligence ‘as

(1863)B &L89. Ibid. Ibid. Ibid.

296 may be the case if the vessel is allowed to change ownership to the plaintiffs knowledge

without the plaintiff attempting to exercise the lien, the plaintiff would still have his claim until

the expiry of the limitation period.

It is respectfully submitted that this latter view ought to be preferred to that of Thomas. The

fact is that maritime claims can and do exist without accompanying maritime liens.

A maritime lien is a privilege against particular maritime property. Its retention is subject to

certain rules. These rules are quite distinguishable from those relating to preservation of the

right of action on the claim by instituting proceedings within a specified limitation period.

While application of one set of rules may bring into consideration the other set, each set is

not inextricably bound up with the other. Thus, it seems to the writer, that if a court in applying

the rules relating to the extinction of maritime liens resulting from lapse of time to a particular

case, fmd that it is an appropriate case for extinction of the lien, then it may well determine that

the “other rules” are only part of the matrix of factors relevant to arriving at such a finding.

Hence, it is the writers respectful submission that it seems possible for an underlying

maritime lien to be extinguished within the limitation period leaving the claim it accompanied

otherwise intact.

Op.cit., at p. 72. Vide: Tetley, William: Maritime Liens and Claims,InternationalShippingPublications,Montreal,1985, at p. 40 where he defines a maritime lien as “a privilege against property (a ship) which attaches and gains priority without any court action or any deed or any registration “, cited in IMO and UNCTAD consultations: vide; LEG 55/4/1, IMO, consideration of work in respect of Maritime Liens and Mortages and Related Subjects; Also vide supra.

297 p ii International Convention Provisions

Both existing conventions on Maritime Liens and Mortgages have failed to gain broad international acceptance. Preparatory work on a new convention on the subject under the auspices of IMO and UNCTAD is now at a very advanced stage.

Both of the existing Conventions contain provisions relating to the extinction of Maritime

Liens. Article 9 of the 1926 Convention has very detailed stipulations but like its much briefer,

1967 Counterpart, per Article 8, it prescribes a period of one year for the extinction of specified liens subject to certain qualifications.

Article 8 of the new draft Convention on Maritime Liens and Mortgages also generally prescribes a one year period for the extinction of the lien.

Section 74 of the Jamaica Shipping Bill, 1989 is based on and worded similar to that of

Article 8 of the draft Convention in its present form.

Section 74 provides (with the marginal note: ‘Limitation Period”), as follows:

1 The maritime liens relating to a ship set out in section 68 shall be

extinguished after a period of one year from the time when the claims

The International Convention for the Unification of Certain Rules of Law Relating to Maritime Liensand Mortgages 1926. The International Convetion for the Unification of Certain Rules Relating to Maritime Liens and Mortgages, 1967. The Joint Intergovernmental Group of Experts on Maritime Liens and Mortgages ad Related Subjects had its fifth session 11-20, December 1988 and are finalizing work on Draft Articles for a new Convention on Maritime Liens and Mortgages, vide: LEG/MLM/19 (IMO Report). Vide LEGIMLMJ19(IMO Report).

298 secured thereby arose unless, prior to the expiry of such period, the ship has

been arrested and the arrest has led to a forced sale pursuant to the

provisions of the rules of court or any other law for the time being in force

relating to the sale of property in admiralty proceedings.

2 The one year period referred to in subsection (1) shall not be subject to

interruption or suspension except that time shall not run during the period the

lien holder is legally prevented from arresting the vessel.”

This provision was apparently put into the Jamaican Bill in anticipation of Jamaican eventually becoming a party to the fmalized convention.

However at the present time there are a number of doubts and misgivings surrounding the present draft Article 8.

Chief among these is the concern about the period of one year was too short and that it should be extended to two years. Alternatively, a compromise proposal between the latter and the present draft proposal could be to allow maritime liens recorded at the end of one year to continue their validity for another year.

These various positions have been canvassed at the Sessional Group meetings of the Joint

Inter Governmental Group of Experts on Maritime Liens on December 20, 1988. Jamaica was

299 not represented at this meeting.

The majority view is that “... the one-year period was sufficient since maritime liens were hidden charges and should not remain valid for a period longer than one year”

However special problems may arise in respect of crew wages. Here the International

Confederation of Free Trade Unions have proposed that special consideration be given to extending the period of validity of maritime liens to two years, at least, in case of crew wages

since the crew members often stayed on board ship for a period longer that one year during which time they were not paid.”

Similarly, the International Labour Organization, supporting the proposal has noted that in

the case of social insurance contributions, the problem was even more serious, as “. . .often the crew members discovered much later that social insurance contributions had not been paid.”

It seems that the best solution could be to have a generally applicable period of one year but with exceptions for crew claims in which case the period would be two years. Such a compromise solution would be in Jamaica’s best interest where more and more seafarers are being produced. While ignorance of the law is no excuse, seafarers are likely to be quite susceptible to the harsher consequences of this maxim as regards limitation periods.

Ibid., p 24. Ibid. Ibid., p 25.

300 Thus, bearing in mind this fact as it relates to Jamaica and the observations of the

International Labour Representatives, special consideration should be given to giving seafarers ample opportunity to pursue their legal claims. Except for this qualification, the present majority view should be supported. As regards the drafting of Section 74 itself, it seems the marginal note: “limitation of Action “is inappropriate. The note should be “extinction of maritime liens by lapse of time”. Such a note would not only be identical to the present caption of the relevant

Article 8 of the draft convention, but would more accurately indicate the intent and contents of that Article as contained in Section 74. Moreover, as discussed above, the issue of extinction of maritime liens by lapse of time although related is quite distinguishable from considerations relating to limitation factions, stricto senso.

Maritime Arbitration Proceedings and Time-Bars

Maritime Arbitrations are founded on agreement between the parties as to how disputes between them are to be resolved. Accordingly

Thomas notes that it is not open to the court to “...dismiss a claim in arbitration or grant an

Thomas,D. Rhiclian:The legalremediesfor dilatorinessin the pre-hearingarbitralprocedure,1983,

301 injunction to restrain an arbitral proceeding that had it been an action at law the court would have dismissed the claim for want of prosecution.”

He notes further that “...a respondent in an arbitration enjoys no right as against the claimant expeditiously advanced or that prejudicial delay would be avoided. ..“

The arbitrator himself has at common law no inherent power to dismiss a claim for want of prosecution (Crawford v. A.E.A. Prowting Ltd.,1973, 1Q.B.1; Bremer Vulkan Schiffinban und Machine fabriko v. South India Shipping Corp, 1981 A.C. 909).

It thus appears that a very advisable stipulation in any Agreement to submit to Arbitration is one specifying the time within which Arbitration proceedings are to be brought and the attendant consequences for failure to do so.

hence, Arbitration Agreements often specify that a particular step must be started within a prescribed period of time with failure to do so operating as a bar to subsequent prosecution of the claim concerned.

The Centrocon arbitration clause provides a typical example.It states in part:

“Any claim must be made in writing and claimant’s Arbitrator appointed within twelve months of final discharge and where this provision is not complied with, the claim shall be

L.M.C.Q. 315. Ibid., at p 321. Ibid.

302 deemed to be waived and absolutely barred.”

Such “time and bar’ arbitration agreements operate independently of statutory time limits.

Thomas notes that “In effect, by substituting an alternative period of time to that specified by statute, such agreements operate as a contractual displacement of the otherwise operative time limits.”

These “time and bar” clauses are valid and not deemed to be contrary to public policy.

(Atlantic v. Drefus, 1922, 2A.C. 250). However they can give rise to harshly inequitable consequences for a potential claimant particularly where the time period stipulated is rather short. A default extinguishes the claim (in respect of both right and remedy), leaving nothing capable of being pursued either in arbitration or a court of law.

Maritime Arbitrations in Jamaica are governed by The Arbitration Act, 1900. This Act does not contain any special provision empowering the court to take ameliorative action when faced with an unconscionable but valid “time and bar” clause. It is probable that the court may well consider itself unhappily fettered by the manacles of the position at common law. This permissive common law approach is itself clearly buttressed by the sanctity of contract principle.

Thomas, D. Rhidian: Commercial Arbitration: Powerof court to extendtime forcommencingarbitration proceedings, 1981, L.M.C.L.Q.529. Ibid. Term used by Thomas, Ibid. to indicate that default bars the claim absolutuley, as compared with a “time stipulation simpliciter” which ‘leaves open the possibility of legal proceedings subject to the court’s discretion to stay”: Ibid., p 530.

303 is is

by

for

any

any

term time

would

of

applies

remove

that time

the

otherwise such

to

legislation

Kingdom’s

arbitrator

the

provided

on

Act

proceedings

an

hardship

extend

would

provide

agreement

provisions

to

may,

United Legislation.

extend

hardship

the

the

the

undue

Arbitration

appoint

to

of

arbitration to

and

applicant

Arbitration

expired,

case

arbitration

which

27

the

Arbitration

jurisdiction

to

to

has

the

proceedings

notice

Jamaican

of

prejudice

injustice

in

where

Jamaican

fixed

Section

arises

commence

for

unless so

the

Jamaican of

disputes

to

in

to

arbitration

without

discretionary

step time

dispute

of a

provision

304

barred a

future

but

potential

the

circumstances

be

provision

circumstances

other

and

refer given

that

the

in equivalent

the

similar

amendment

is

to

shall

in

require, no

some

A

pregnant

is

or

that

Court

the noting may

agreement,

commencement law.

applies

there

proceeding

the

agreement for

case

appropriate

injustice.

worth

opinion

by

notwithstanding

an English

appointed

the

is

which

that: that

proper.

of time and

common

correcting

of

is

it

of

of the

and

is

agreement

at

in

fixed

the

arbitration

it

the thinks

an

if

terms

Here,

1950,

appears

way

it time

provides

justice

hardship

caused,

a

arbitrator

the as

position

far

27

Act

provision

limiting

the

be

a

which

Court,

an

as

to

this

go

undue

or

shackles. within

therefore

period

High

“Where

Section

existing

It

By

commencing

any,

given suffer these taken such Arbitration claims the if would the otherwise enactment for Salmon L.J., in the case Liberian Shipping Corp. v. A. King & Sons, Ltd: the Pegasus

(1967) 1 Lloyd’s Rep. 302,309, commented on the state of English law as regard “time and bar” clauses, prior to the enactment of Section 27. These comments which point appositely to the present state of Jamaican law were as follows:

“Prior to this enactment.. .the commercial community.. .and. . .those who practiced and

administered commercial law.. .were shackled by. . .this type of arbitration clause. It put it out of the power of the Court to grant any relief to a claimant who had allowed perhaps a day or two to

run beyond the period. . . specified in the clause, even although the delay could have caused no

conceivable harm to the other side.. . .The other party, who had not been guilty of a deliberate breach of contract, was relieved from liability to pay compensation for the heavy loss which he had caused... .It was no doubt to remedy this hardship and injustice that the legislature intervened to alter the law.”

It seems all the more desirable to legislatively empower the courts to intervene when it is remembered as noted in the United Kingdom’s 1927 Machinnon Report on the Law of

ARbitration that ...“ the vast majority of submissions to arbitration are contained in the printed arbitration clause in printed form of contract, which cannot be carefully examined in the transaction of business, and alteration of which it would be difficult for most people to

Cmd.2817, quotedin Thomas,op.cit.,p 532.

305 secure. .

In introducing an amendment to the Jamaican Act, it would be helpful to enact guidelines as

to how the court’s discretion to extend time or not should be exercised. Such guidelines are

absent from the United Kingdom’s 1950 Act. However, English Case Law provide some

pointers.

In the Jocelyne, (1977) 2 Lloyds Rep. Ri at p. 129, Brandon, J. (as he then was)

sunimarised some of the relevant criteria to be applied in relation to Section 27 of the United

Kingdom Act. He stated as follows:

“In deciding whether to extend time or not the Court should look at all the relevant

circumstances of the particular case. In particular the following matters should be considered:

(a) the length of the delay;”

(b) the amount at stake;

(c) whether the delay was due to the fault of the claimant or to circumstances outside his

control;

(d) if it was due to the fault of the claimant, the degree of such fault;

(e) whether the claimant was misled by the other party;

(f) whether the other party has been prejudiced by the delay, and if so, the degree of

Paragrafip33ofTheReport, asquoted,Ibid.

306 a such prejudice.’

Other criteria have been identified in other English cases. These include the following considerations:

(g) the strength of the claim of the applicant. (Sanko Steamship Co., Ltd v. Tradax

Export S.A. (1979) 2 Lloyds Rep. 273)

(h) whether apart from Section 27, there is a criteria structured into the arbitration

process by which the time stipulation may be extended: (Ets Soules & Cie v.

International Trade Development Co. Lt.(1979), 2 Lloyd’s Rep. 122, Timmerman’s

Graan - En Maalhandel En Maalderij B.V. v. Sachs (1980) 1 Lloyd’s Rep. 194.)

(i) would the applicant suffer personal liability if and so far as the claim is not allowed to

proceed: (Timmerman’s Graan - En Maalhandel En Maalderij B.V. v. Sachs (1980) 1

Lloyd’s Re. 194)

(j) was the time stipulation part of an international code for promoting uniformity: (Nea

Agrex S.A. v. Baltic Shippin Co. Ltd. and Intershipping Charter Co. The Agios

Lazaras (1976) 2 Lloyd’s Rep. 47 (CA.) ; and

(k) considerations emanating from and prevailing within the particular trade in which the

Noted in Thomas, Ibid, p 539.

307 it

to

be

the

than case

to

which

Goods

Sachs

the

of

v.

because

seemingly

be

shorter

1889

between

a

to

is cognizance

properly B.V.

Rules

not

with

Act,

Carriage

contract

clause

ought

paying

the

Hague

ought

the

in

Goods

Maalderij

the

this

of

clause

effectively

En

of

arbitration

govern

(8)

bar

deal

contained

3 clause,

amendments

to

they

Carriage

and

Maalhandel the

Article

time

where

of

En

a

charter-party

necessary

provisions arbitration -

308

powerless

the

the

bar

violate

Rules

such

ambit

feel

in

Rules

and

Coraan

the

make

Laws

may

would

limit

Hague

Hence

time

Hague

a

the

194).

time

limit

within

Court

the

should in

in

Conflict

to

the

time

liability. for

Rep.

case

if

a

(Timmerman’s

Jamaica

Jamaican

arise

Jamaican

stipulation

a

shorter

with

Lloyd’s

repugnant

carrier’s

Rules. that

a

in

provided arises:

1

may

of

and

the

period

limit general

dealing

Hague

in

(1980) dispute void

is time

submitted

the

problem

Limitation year

as

lessen

it

is

guidelines.

short

one

Application

It The The

While

treated Act. would the enacted parties.

these where too Under Jamaican Law, following the traditional English position, statutory rules on limitation of action are classified as procedural rather than substantive, on the ground that they only bar the remedy and do not extinguish the right.

Accordingly for purposes of Jamaican private international law, time limitation is governed by the lex fori. No foreign time bat will therefore be recognized even if that is labelled as substantive by the foreign law.

As a consequence, if an action is brought in a Jamaican Court to enforce an obligation arising from a contract governed by foreign la, a Jamaican Court following the English common law position, is obliged to apply the Jamaican Statute of Limitation and not that of the proper law of the contract.

Thus, if the Jamaican Limitation period has expired, it may be obliged to dismiss the action, even if the foreign period had not expired. Conversely the court would be obliged to permit the action if brought within the Jamaican period but after expiry of the foreign period.

This approach stands in sharp contrast to that taken by continental European, which characterize time bars as substantive. Further, the traditional English approach has now been abrogated with the enactment in England of The Foreign Limitation Periods Act, 1984 (U.K.),

Vide: Stone, P.A.: Time Limitation in the English Conflict of Laws, 1980 L.M.C.L.Q., 497. Theinternal lawofthecountry wherethe courtissituated. Jackson, op. cit., p 101. Stone, op. cit., p 497.

309 a

it

of

the

in

even

there

is

forum that

causae,

question

question

is

matter

the

legitimate

case;

lex

a

rights.

the causae,

as position

the

the laws

the

conducted

lex

and

of enable

of

by be

has

to

the

substantive

to

a

rule; English

substantive

fori

as

barred

under

conflict

outcome them

lex

characterized

designed

time the

the

parties

the be

treated

is

to

limitation

timely

not

dispute. traditional

for

the is

it

by

is as

is

enabling

if

the of

the

it

It

if

of

and

foreign

from

a justifiable

decisive

parties.

limitation

aspects

governed

England,

upheld

310

be

justification

the

proceedings.”

is

in

outcome

time

be

cannot

other

of

comfortable.

the

applying

departure

often

proceedings

main

that

will

law.

in

and

is

for

the

will

and

1985.

governs

“The

dismissed

procedure

of

appropriate limitation

now

1,

rule

be

expectation

internal

law,

conducting that

familiar

that

reasons

the

difficulty

rule

which

time

is

of

will

to

conduct case.

rule

as

October

law “...

basic English

internal

cogent

the

court

limitation the

observe

on

claim

the

reasonable

“the to

the

manner a

that

the

particular

very

views, by

under

the

the

force

that that

is English its

any

Morris

to

relevant

is

to

these

further

which

by

into

be applicable

England, 500. barred

simplifying

the

to

and

notes p

not

in governed

relate

of law

with result

effect question

notes

came

time

not The Thid., Ibid.

seldom

thus

id

Thus Stone Dicey

Added The

He

give

it

and

although which if manner crucial does purpose to will

procedure: implements of reasonable and legitimate expectations to a transaction or an occurrence.”

Thus where for instance, parties enter into a maritime contract for which the proper law is that of country X which provides for a limitation period of say three years, then it is reasonable to expect that if no action is commenced in accordance with the three year stipulation, that is the end of matter or at least no subsequentation will be entertained.

However, if the matter ends up in a Jamaican Court where the applicable limitation period is, say six years, then the Jamaican Court, following the traditional English position, would be obliged to entertain the suit. It would then go on to apply the “substantive” law of country X to the case.

Such a scenario manifestly wreaks injustice. Consideration should therefore be given to reforming the law along the lines long taken in Continental European law and now belatedly followed by England.

Dicey and Morris on The Conflict of Laws, 10th Ed., 1980. Ibid., p 5.

311 CONCLUDING COMMENTS

Undoubtedly, a crucial preliminary consideration for any maritime claimant (and indeed for all concerned, whether in negotiations or otherwise about a claim) is how much time the claimant has left to initiate court or arbitration proceedings.

Exploration of the relevant Jamaican Law reveals an absence of Jamaican or West Indian cases or limitation of Maritime Actions. It is therefore likely that Jamaican Courts will resort to

English case authorities.

However, these authorities are not without their problems. Indeed, some have been much criticized by UNCTAD, an organization in which Jamaica is represented. Such criticisms should not escape the attention of Jamaican Courts.

Here, it is worth bearing in mind that the perspectives of analysis adopted by UNCTAD are likely to more favourable to “cargo interests” countries like Jamaica, than those which gave rise to conventions such as the Hague Rules adopted when Jamaica was a British colony by a few mainly ship owning countries who naturally sought to legislate in accordance with their rested interests.

Overall, in the development of Jamaican jurisprudence and legislation in this area of the law,

312 due regard should thus be had to the deliberations of international organizations such as

UNCTAD and IMO on subjects such as the Carriage of Goods by Sea and Maritime Liens.

This should be done not only to gain a different and wider perspective than that of the

English but to be exposed to the direction of international thinking, an appreciation of which is vital in the international maritime law sphere. These deliberations offer readily accessible, inexpensive and comprehensive information in a relative non-voluminous form by an array of international experts.

Similarly, cases from other common law jurisdictions reveal different approaches which should aid judical analysis.

Also, the approaches of civil law counties in this area can be very instructive. For instance, the treatment of Continental European law of limitation of actions as a “substantive” rather than

“procedural” matter commends itself.

Here it has been shown that the United Kingdom itself has now albeit belatedly taken steps to rid itself of what, in the writer’s humble view, was a blot on its jurisprudence.

Sadly, Jamaican law is left with this legacy. A new approach is therefore strongly urged.

A new Limitation of Actions Act is required to break new ground and consolidate certain existing laws. There should be clear enumeration of maritime and other claims, specifying their limitation periods as well as the overall applicable principles. Provision should be made in this

313 regards for Jamaican courts to deal with unconscionable time stipulations in Arbitration “time and bar” clauses.

The present incorporation of the draft Article on extinction of maritime lien by lapse of time points to an attempt to keep Jamaica’s law abreast of the latest developments. While this is commendable, steps should be taken to ensure, as far as possible, Jamaica’s participation in the decision making process as regards the draft Article itself and others. Otherwise, Jamaica might be “modernizing” but not in line with its best interests. For instance, as shown, our seafarers may be unduly prejudiced by a blanket one year period for the extinction of maritime liens.

As Jamaica is only a party to the Hague Rules which it has enacted, its limitation of action provisions in this area, suffer from a number of the deficiencies of these Rules. It is unable to benefit from the improvements afforded by the Hague-Visby amendments.

The Limitation of Actions and related provisions of the Hamburg Rules, which although not yet in force, are very instructive as they arguably point in the direction in which the international maritime community is moving. They provide a useful part jurisprudential policy framework for judicial analysis and legislative activity. Further, to the extent that in some respects they purport to only clarify certain ambiguous provisions of the Hague Rules they are to some extent indicative of agreement on preferred interpretations existing Hague Rules provisions.

314 I

These Hamburg Rules Limitation of Actions and related provisions appear to offer a more

just and equitable balancing of the risks between cargo and carrier interests as compared to the

Hague or Hague-Visby Rules. Cargo Interests are provided with more reasonable time to

negotiate with carriers before commencing proceedings to protect their claim. This itself accords

with certain established commercial shipping practice.

As regards collision claims, it appears that Jamaica should consider establishing Rules of

Court as required by the existing convention, along the lines of its established principles for writ

renewal.

The Maritime Conventions Act (U.K.) 1911, does not appear in the Volumes of Laws of

Jamaica. This means that resort has to be had to English literature to locate the Act. Jamaica is a

party to the existing Collision and Salvage Conventions, in its own right. It should reenact these

conventions into Jamaican law so that the relevant legislation appears in our statute books.

In the case of salvage claims, the new Salvage Convention has done away with the need for

special Rules of Court as regards extension of time. This convention with its emphasis on

encouraging operations to stem oil pollution, should prima facie, be favourably viewed by

Jamaica.

Overall, there is a need to carefully look at International Conventions, en toto, to determine

their desirability. However even if there is a decision not to become a party to a convention, it is

315 apparent that guidance for judicial and legislative purposes can be obtained from an examination of its limitation of action and related provisions. Moreover, uniformity as regards such provision are very desirable.

The modernization of Jamaican law relating to the limitation of maritime actions in

accordance with widely accepted international provisions would enhance not only the contents

of its law provisions but also Jamaica’s appeal as a forum.

No analysis has been attempted of provisions of conventions other than those impinging on

the subject of this chapter, hence no inferences are offered about these Conventions on a whole.

Nevertheless, it is clear that in the case of the Carriage of Goods by Sea, the limitation of

actions provisions of the Hague Rules especially as they have been interpreted by the English

Courts to be revised.

Here, one caveat worth emphasising is that time limitation provisions of maritime

conventions constitute a relatively small albeit very important component of these conventions.

Hence, consideration of a Convention, especially if seen as a package of compromises require

meticulous cost-benefit analysis.

It has been shown that analysis of these convention provisions additionally serve the useful purpose of seeing where Jamaican law stands as regards certain internationally agreed time

316 1

limitation stipulations.

Further, even where there are no International Conventions as is the case with TOVALOP

and CRISTAL, it is important to know the time constraints within which a Jamaican maritime

claimant operates. It therefore seems safe to conclude, that in any event from the perspective of

practice, time will ultimately be of the essence.

317 Chapter 7

CONCLUSION

A Variety of subject matters falling under the broad umbrella of preliminary legal issues have been examined. In each of the preceding chapters dealing with the various preliminary legal issues an attempt has been made in each case to indicate the main inferences to be drawn from the analysis. It is not the writer’sintention to simply regurgitate them here.

Certain conclusions may be advanced from the study as a whole. The primary conclusion is that preliminary legal issues pertaining to maritime claims enforcement in Jamaica definitely have an international dimension worth considering when such issues are being dealt with.

Examination of all of the major sub-areas spanned by the thesis support such an

inference.

This is manifestly the case as regards issues pertaining to ship arrest and the scope of the

Jamaican Admiralty Jurisdiction where essential local rules clearly have their roots in

international Convention stipulations.

The study supports the basic inference that muncipal maritime Jurisdiction and Choice of

319 Law issues ultimately operate within international legal parameters and its useful to see them in this light, in the case of Time Limitation of Maritime Actions, where, prime facie, it seems less probable that international rules may have an influence, the study shows that as regards a number of particular Maritime claims the influence is direct and very significant.

The basic reason for this recurring international and local legal nexus, appears to be simply the international character of maritime matters. As a consequence, there is increasingly the striving for international uniformity, certainty and justice in maritime matters generally.

Thus, more and more, international maritime rules are extending their frontiers into the domain of what was traditionally perceived as the preserve of municipal law rules.

For instance, IMO has traditionally been preoccupied with safety and anti-marine pollution substantive safety regulations. However, in recent years, it has been increasingly concerned with civil liability and related jurisdictional issues as these pertain to, for example, oil pollution.

UNCTA1) which has been traditionally preoccupied in the legal sphere with broad issues of economic regulation of shipping, is now with IMO jointly focusing on issues of maritime liens and ship arrest.

Also UNCTAD by way of its more recent conventions on the carriage of goods by sea

320 and multimodal transport has been paying special attention in these Conventions to preliminary legal issues. This, the study shows reflects a growing trend in international maritime stipulatuions. Indeed, this development has been prompted by the failure of many of the past conventions to include peovisions on these preliminary legal issues and to make them mandatory for the municipal law of Contracting State parties. Such a failure it has been shown has at times to frustrated the objectives of the substantive Rules of the relevant Conventions. The net result of this new trend is more direct consequences for state tparties domestic procedural and private international law rules.

In the case of Jamaica, this is exemplified by the incorporation of provisions of the Draft

Articles for a new Convention on Maritime Liens and Mortgages in its new Shipping Bill.

Whenever both sets of previsions move beyond the draft stage into being respectively, international and Jamaican law, then the nexus will entail clearer consequences for law practice in Jamaica. The international dimension, to such issues will then be more readily discernible.

However, on the whole, the trend is yet to have full impact on Jamaican law.

More directly responsible for the link between the preliminary issues and international stipulations in the Jamaican Context is the mechanism of extended U.K. legislation.

This is what has been largely responsible for the appearance in Jamaica of international stipulations seemingly clothed only in local procedural garb.

321 The process of extended legislation has brought with it international convention stipulations which have helped to keep Jamaican maritime procedural and private international law rules in keeping with existing international stipulations. However, they have also brought with them particular problems of statutory interpretation and various deficiencies. Where they have required or contemplated further enactment, these have not been promnigated.

Overall, it is safe to conclude that the area of the law examined by this study has been ignored by the legislators. The reasons for this include the apparent low priority accorded the development of rules embracing these preliminary issues and a lack of expertise for both identifying and effecting needed changes.

Many areas of Jamaican law have been identified as needing changes or particular approaches in seeking solutions to problems. At times, important national interests are hampered by the local maritime and private international law rules. Thus, a basic conclusion is that significant changes are needed to improve the efficacy and efficiency of the relevant local laws.

The manifest international dimension to these preliminary issues have highlighted the need for Jamaica to strive to participate fully in the shaping of the narrower circumscribed maritime conventions dealing with such issues.

322 The study supports the inference that International Maritime Convention provisions provide valuable aids to judicial and legislative activity.

Attempts to ascertain what the law is on particular issues is at times made more difficult by the very limited amount of Jamaican cases impinging on the subject area. Also compounding this difficulty is the process of extended legislation, and various colonial legacies.

On the whole however, the legal position in Jamaica on the various issues can generally be stated with a significant degree of certainty.

Also, it may well be that the study, mainly, by its express incorporation of the

International dimension as well as its emphasis on the protection of national interests will provide at least an additional lens with which to view the preliminary issues discussed.

The importance of the preliminary legal issues can hardly be doubted. Part of the future challenge is to ensure that the relevant rules are updated and improved to make certain their relevance to national interests as well as their overall efficacy and efficiency. A further and vital challenge is to simultaneously pay due cognizance to the international dimension involved.

323 TABLE OF INTERNATIONAL CONVENTIONS

(A) Brussels International Maritime Law Conventions

1 International Convention for the Unification of Certain Rules of Law Relating to Collision Between Vessels.

2 International Convention for the Unification of certain Rules of Law

Relating to Assistance and Salvage at Sea.

3 International Convention for the Unification of Certain Rules of Law

Relating to Bills

of Lading.

4 Protocol to amend the International Convention for the Unification of

Certain Rules

of Law Relating to Bills of Lading.

.5 International Convention for the Unification of Certain Rules If Law

Relating to Maritime Liens and Mortgages.

6 International Convention for the Unification of Certain Rules of Law

Relating to Immunity of State-owned Ships. 7 International Convention for the Unification of Certain Rules of Law

Relating to Arrest of Sea-going Ships.

8 International Convention forthe Unification of Certain Rules of Law

Relation to Civil Jurisdiction in Matters of Collision.

9 International Convention Relatiing to the Limitation of the Liability of

Owners of Sea-going Ships.

10 International Convention Relation to the Liability lf Operators of Necular

Ships.

11 International Conventin for the Unification of Certain Rules of Law

Relating to Maritime Liens and Mortgages.

(B) ILO Maritime Conventions

12 Convention fixing the Minimum Age forAdmission of Children to

Employment at

Sea (Convention 7 of 1920)

13 Convention concerning Unemployment Indemnity in case of Loss or

Foundering of

the Ship (Convention 8 of 1920)

14 Comvention for Establishing Facilities for Finding Employment for

Seaman (Convention 9 of 1920)

15 Comvention fixing the Minimum Age for the Admission of Young Persons to Employmeent as Trimmers or Stokers (Convention 15 of 1921)

16 Convention concerning the Compulsory Medical Examination fof Children and Young Persons Emplooyed at Sea (Convention 6of 1921)

17 Convention concerning Seamen’sArticles of Agreement (Convention 22 of

1926)

18 Convention fixing the Minimum Age for the Admission of Children to

Employment

at Sea (Convention 58 of 1936)

(C) IMO Conventions

1 International Convention on Civil Liability for Pollution Damage, 1969

2 Protocol on the International Convention on Civil Liability for Oil Pollution

Damage, 1969.

3 Protocol of 1984 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969

4 International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage 1971

5 1976 Protocol to the International Convention of the Establishment of an

International Fund for Compensation for Oil Pollution Damage 1971

6 Protocol of 1984 to amend the International Convention on the

Establishment of an

International Fund for Compensation for Oil Pollution Damage, 1971

7 Athens Convention Relating to the Carriage of Passengers and their

Luggage by Sea 1

1974

8 Protocol to the Athens Convention Relating to the Carriage of Passengers

and their Luggage by Sea 1974

9 Convention on Limitations of Liability for Maritime Claims 1976

(D) UNCTADConventions related to Maritime Matters

1 Convention on a Code of Conduct for Liner Conferences, 1974

2 United Nations Convention in the carriage of Goods by Sea, Hamburg,

1978

3 United Nations Convention on International Multimodal Transport of

Goods, 1980

4 United Notions Convention on Conditions for the Registration of Ships,

1986

(E) U.N. Conventions on the Law of the Sea.

Geneva Convention on Territorial Sea and Contiguous Zone, 1958 Geneva Convention on the High Seas, 1958

United Nations Convention on the Law of the Sea, 1982 APPENDIX 1

JAMAICA - A skeletal profile

Part A: General

Name etymon: XAYMACA (glandof wood and water)

Caribbean Sea 18’N, 77 W (See appendix)

Population: 2.4 million

*Jea. 4,243.6 . mIs (10,990.98 sq km)

Language: English

Government: Civil-parliamentary democracy

Climate: Tropical

Capital: Kingston

Recorded History : Original Inhabitants - Arawaks (650-1492), Columbus/Spanish arrival: 1492; English Colony: 1655-1962

Independance: August 6, 1962

*Economy: Tourism, Bauxite (main foreign exchange earners). Also, Agriculture, Light Manufacturing, Unemployment Rate (1986) :22.3%; Inflation Rate (1986) :14.7%; Growth Rate

(1986) : 2.1% ; G.D.P. (1986) : U.S. 2.5 Billion.

Organization Membership: Caribbean Common Market (CARICOM), Organization of American States (O.A.S.), African, Caribbean and Pacific Group (A.C.P.); The Common wealth: The United Nations (U.N.).

*Source: Statistical Yearbookof Jamaica. 1987, Statistical Institute of Jamaica.

Part B: Maritime Supplementary Data

1. Jamaica. Coastal, Shelf and EEZ Characteristics:

(a) Coastal length: 280 nautical miles

(b) shelf area to 200 meters depth: 11,700 square nautical miles

(c) EEZ area to 200 nautical miles: 86,800 square nautical miles

Source: Attard, David: The Exclusive Economic Zone in International Law,

Clarendon Press, thford, 1987, p. xxxii.

(Attard indicates that this data is itself based on “information supplied by the U.S.

Geographer, see eg., Limits no.36 (4th Rev.). The EEZ figures are generally based on the equidistant boundary and a normal baseline”.

He also notes in reference to the data that limitations may prevent states from claiming a full 200 mile EEZ. Overall, it appears that the figure given in respect of the

EEZ indicated the area the zone would have if Jamaica was able to claim all areas adjacent to it to a distance of 200 miles from the relevant baselines. However, as

Jamaica is a Carib-locked country, the figure stated for the EEZ is larger than it will be eventually when Jamaica actuaily declares an EEZ.

2. Registered

Tonnage: 7,473 GRT (as at July 1, 1985 per Annex 3, U.N. C

Convention on Conditions for Registration

of Ships)

3. Maritime

Training: Jamaica Maritime Training Institute (Facility for

training Caribbean Master Mariners, Chief Engineers

and other sea going personnel, established, 1980)

4. Maritime

Administration: centered in work of Marine Division of

Ministry of Public Utilities but involving

a number of other Government Ministries

and Departments. (see Appendix 2)

5. Maritime Sector APPENDIX 3

JAMAICAN MARITIME LEGISLATION (By subject matter)*

Carriage of Goods By Sea

Carriage of Goods Act, 1889

Bills of Lading Act, 1872

Economic Regulations

Cargo Preferences Act, 1979

Shipping (Incentives) Act 1979

West Indies Shipping Corporation Act HARBOUR / PORTS

Harbour Fees Act 1927

Harbour Lights and Lighthouse Act

Harbours Act, 1874

Leyland Wharf Pier Law

Montigo Bay Pier (Enabling) Law

Pilotage Act,1975

Port Authority Act, 1972

Port -authority Declaration of Ports (Validation) Act

Port Authority (Superannuation Scheme)(Validation) Act

Port Workers (Superannuation Fund) Act

Shipping Master’s Fee’s Law

Wharfage Act, 1895

MARINE RESOURCES

Beach Control Act, 1956

Fishing Industry Act, 1976

Rio Cobre Canal Law

River Rafting Act, 1970 MARITIME ADMINISTRATION

Marine Board Act, 1903

MARITIME COMMUNICATIONS

Merchant Shipping (Wireless Telegraphy) Act, 1926

International Ocean Telegraph Company’sLaw

MARThE INSURANCE

Marine Insurance Act, 1973

PRIZE GOODS

Prize Goods Law

SEAFARERS

Seafarers (Certification) Act, 1986

Seamen (Repatriation)Act

Seamen’sWages (Recovery of) Law

TERRITORIAL JURISDICTION Morant and Pedro Cays Act, 1907

Territorial Sea Act, 1971

WRECK AND SALVAGE

Wrack and Salvage Law, 1875

*OpyJamaican enactments dealing essentially or at least substantially with maritime related matters are included. 1972

1979)

Party.

a

and

is

Sea,

at

Watchkeeping

1975

Jamaica

and

1971,

Collisions

in

1979

which

to

1974

Certification

Rescue,

Sea,

amended

Preventing

at

1972

and (as

for

Life

Conventions

Training, Organization

1966

of

of

Search

Containers,

Safety

Regulations

Maritime

Maritime

Safe

the

Loadlines,

Standards

Maritime

on

for for

on on

4

International

International

International

of

the

the

Convention

Convention Convention

Convention Convention

on

on

List

1978

APPENDIX

CONVENTIONS

Convention Convention

International International

International Seafarers, International International

A:IMO

1.

3.

2.

6. 5.

4. for 7.

I B: 1LO CONVENTIONS

8. Convention fixing the minimum age for admission of Children to employment at sea, 1920 (1LO Convention #7)

9. Convention fixing the minimum age for the admission of young persons to employment as trimmers or stokers, 1920 (ILO CONVENTION #15)

10. Convention fixing the minimum age for the admission of children to employment at sea (revised 1936) (ILO Convention #58)

11. Convention concerning unemployment indemnity in case of loss or foundering of the ship, 1920 (1LO Convention #8)

12. Convention concerning the compulsory medical examination of children and young persons at sea, 1921 (ILO Convention #16)

UN CONVENTIONS

13. Geneva Convention on Territorial Sea and Contiguous Zone, 1958

14. Geneva Convention on the High Seas, 1958

15. Convention on Fishing and Conservation of the Living Resources of the High

Seas, 1958 16. Convention on the Continental Shelf, 1958

17. United Nations Convention on the Law of the Sea, 1982

18. Convention on a Code of Conduct for Liner Conferences,

C: CMI-BRUSSELS CONVENTIONS

19. International Convention for the Unification of Certain Rules of Law Relating to

Collision between Vessels, 1910

20. International Convention for the Unification of Certain Rules of Law Relating to

Assistance and Salvage at Sea, 1910 21.

21. International Convention for the Unification of Certain Rules of Law Relation to

Bills of Lading, 1924. APPENDIX 5

Regional Maritime Convention to which Jamaica is a party.

1. Convention for the Protection and Development of the Marine Environment of the

Wider Caribbean Region, 1983. APPENDIX 6

Bilateral Maritime Agreements to which Jamaica is party:

1. Jamaica I Colombia Fishing Agreement 1982

2. Jamaica / Colombia Fishing Agreement 1984

3. Jamaica I Colombia Fishing Agreement to initiate negotiations for delimitation of all marine and submarine areas, corresponding to regions mentioned in the Jamaica /

Colombia Fishing Agreement, 1984.

4. Jamaica / Guyana Fishing Agreement, 1984

5. Jamaica / Mexico Maritime Transportation Agreement, 1975

6. Jamaica / Norway Protocol on Maritime Cooperation, 1980

7. Jamaica / USSR Agreement on merchant navigation, 1978