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Wahono v The Ship MV Yung Yu No 606 [2001] SBHC 102; HC-CC 009 & 010 of 2001 (23 March 2001)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NUMBERS 9 OF 2001 AND 10 OF 2001

TEGUH WAHONO & OTRS, SUHARTO ISMAIL & OTRS,
NUR FAIZAL & OTRS, ASEP KURNIA & OTRS

-V-

THE SHIP MV "YUNG YU NO. 606"

NUR SUBEKHI & OTRS, MUCHAMAD ROCHMAN & OTRS,
MANGSUR & OTRS, AGUS WIJIANTO & OTRS

-V-

THE SHIP MV "YUNG YU 203"

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 16th March 2001
JUDGEMENT: 23rd March 2001

Sol-Law for the Applicants/Plaintiffs
F.Waleanisia for the Attorney-General
C.Hapa for the Defendants

PALMER J. These are two separate claims by numerous Plaintiffs which are virtually identical in nature in that they relate to claims for wages against their employer, SANWA TRADING CO., LTD ("Sanwa"), whose registered office is in Tokyo, Japan. Both cases therefore are being dealt with together and references to the Plaintiffs should be references to the Plaintiffs in both cases and the Defendants likewise. The Defendants in both cases however, are the sister ships in which the Plaintiffs previously worked; it being not denied, both ships are also owned by Sanwa.

The claim of the Plaintiffs is based on the Admiralty jurisdiction of this Court contained in Order 31 of the High Court (Civil Procedure) Rules 1964 ("the Rules"). Order 31 reads:

"The jurisdiction of the High Court in relation to Admiralty matters shall be exercised in accordance with the procedure practice and forms for the time being in use in the High Court of Justice in England in Admiralty matters with such adaptation as local circumstances render necessary."

Halsbury's Laws of England 4th edition at paragraph 307, sets out in turn what the jurisdiction of the High Court of Justice in England in Admiralty matters are:

"The Admiralty jurisdiction of the High Court of Justice is derived partly from statute and partly from the inherent jurisdiction of the High Court of Admiralty (see the Administration of Justice Act 1956, s.I(I)). The Administration of Justice Act 1956 lists the areas of jurisdiction of the High Court under eighteen paragraphs (see s.I(I)(a) - (s).). In addition the High Court has any other jurisdiction which either was vested in the High Court of Admiralty before 1st November 1875 or is conferred on the High Court as being a court with Admiralty jurisdiction by or under any Act which came into operation on or after that date, and also any other jurisdiction connected with ships or aircraft vested in the High Court which is for the time being assigned by the rules of court to the Queen's Bench Division and directed by the rules to be exercised by the Admiralty Court."

Section I(I)(o) of The Administration of Justice Act 1956 (UK) confers jurisdiction on the High Court of Justice to hear and determine any claim in respect of wages of a ships crew. That jurisdiction may be invoked by proceedings in rem against the ship in question, or against what is generally referred to as a "sister" ship (the case in point here) (see para. 311 Halsbury's Laws of England 4th edition). That jurisdiction also extends to all ships whether British or not and whether registered or not and wherever the residence or domicile of their owners may be, and to all claims wheresoever arising - Halsbury's Laws of England 4th edn. para. 313. Specific mention is made in Halsbury's Laws of England 4th edn., at para. 339 regarding the position of foreign ships:

"The High Court has jurisdiction in actions for wages by the master or a member of the crew of a foreign ship, but may in its discretion refuse to entertain such an action."

It is clear therefore this Court has jurisdiction to deal with the claim of the Plaintiffs. By Writ of Summons and Statement of Claim filed on 26th January 2001 in Civil Case 9/2001 and Civil Case 10/2001, the Plaintiffs claim outstanding wages dating as far back as December 1998 in some instances. The claims are more fully set out in the respective Statements of Claims. Substantial amounts of money were claimed owed by Sanwa to the seamen (see both affidavits of Rachman Syah filed in support in both cases on 26th January 2001).

On 29th January 2001, an ex parte summons filed on 26th January 2001 in respect of both claims was heard by me for orders inter alia, that warrants of arrest of both ships and their catch be issued. This was granted. Following issue of warrants of arrest, the warrants were executed on 12th February 2001 (see para. 3 affidavit of John G. Katahanas filed 13th March 2001). By letter dated 14th February 2001, the Under Secretary on behalf of the Government, under section 52 of the Fisheries Act 1998 asserted claims over the catch in both vessels as well. When this came to the attention of Counsel for the Plaintiffs, a reply was immediately sent under letter dated 15th February 2001 (see "Exhibit RS 14" annexed to the affidavit of Rachman Syah filed 23rd February 2001). At paragraph 3 of that letter Mr McQuire pointed out:

"We note your competing claim but respectfully advise you that the order made by the Court take precedence over your claim at the present time. Accordingly, any sale of the catch must be carried out under the supervision of the Admiralty Marshall. We would suggest that until our competing claims are resolved that the monies recovered be paid into court."

In the last paragraph, page 2, Mr. McQuire further stated:

"Accordingly, on behalf of our clients, we give you formal notice of our clients' continuing interest in those 15 tonnes removed form "Yung Yu 203" and "Yung Yu 606" pending further orders of the Court. Would you therefore kindly confirm in writing by return mail today that you acknowledge the precedence of the High Court order over your claim and that the Ministry will co-operate with us in regard to the orderly sale and disposal of the catch and retention of the funds thereby raised. . . . Alternatively, you may, of course bring your own application in the High Court if you wish to deal with the matter in any other fashion, in which case, we place you on notice that we will wish to be heard on any such application."

On 15th February 2001, an order for the sale of the catch was obtained and on 16th February 2001, the catch on both vessels was sold, totalling $82,014-00. This amount has been paid into Court. On 23rd February 2001, Plaintiff filed Notice of Motion for Judgement in both claims. This was heard on 28th February 2001 and granted on same day. The Plaintiff now come to Court seeking orders to have the amount held in Court released to the Plaintiffs in partial satisfaction of the judgment debt. Mr Waleanisia Counsel for the Ministry of Fisheries and Marine Resources ("the Ministry") has appeared and opposes the application. Also in attendance is Mr Hapa, Counsel representing the Defendants. He informed Court he had been instructed by his clients to abide any decision of the Court.

THE PLAINTIFFS APPLICATION.

The Plaintiffs' maritime lien was for unpaid seaman's wages and extended over the vessels and their catch. Plaintiffs submit that their lien takes precedence over any claims that the Ministry may have over the proceeds of the catch; the matter in dispute in this application. As to priority of lien over the vessels, they rely on the common law and section 201(3) and (4) of the Shipping Act 1998. Subsection 201(3) provides that claims for wages by seamen in respect of their employment on the vessels can be secured by a maritime lien on the vessel (Article 4 of the International Convention of Maritime Liens and Mortgages, 1993 ["the Convention"] ). Subsection 201(4) gives priority of such liens over other claims (see Article 5 of the Convention). It follows whatever claims the Ministry may have will have to give first priority to the lien of the Plaintiffs over the vessels.

To the extent the vessels do not include the catch, they concede section 201 nor the Convention would apply. They rely however on section 209(2)(g) of the Shipping Act as conferring general admiralty jurisdiction in rem with respect to wages. They submit, because the Shipping Act is silent on priorities of maritime liens over the catch, this question would have to be determined in accordance with the common law and to some extent the Administration Act 1956 (UK).

In common law, a lien may attach to freight/cargo (which would include the catch) provided it is enforced in conjunction with the enforcement of the lien against the vessel, for the same debt. See the case of Morgan v. The S.S. Castlegate [1892] UKLawRpAC 52; [1893] AC 38 (HL), 48 per Lord Herschell LC:

"But besides that, no authority has been cited in which the Court of Admiralty has ever granted process against freight for the purpose of enforcing a maritime lien upon it except as consequential upon and in connection with process against the ship".;

At pages 54 - 55 Lord Watson also states:

"The difficulty which the appellant has to encounter, in this branch of his claim, is to be found in the fact that the Admiralty Court has never recognised the possibility of there being a proper maritime lien upon freight which is not associated with or founded upon a right to proceed in rem against the ship. No process having for its sole object the attachment of cargo in order to enforce a maritime lien for freight can issue from that Court. The warrant to arrest cargo must apparently be accompanied by a warrant to arrest the corpus of the ship; an attachment of the ship being an essential preliminary to the Courts exercising jurisdiction to enforce a proper lien on freight. These circumstances appear to me to necessitate the inference that no claim which cannot be enforced either against the ship or her owners can, according to the practice of the Courts of Admiralty, be attended with a maritime lien upon freight.

The absolute dependence of a lien on freight upon the liability of the ship to attachment for the same debt appears to me to have recognised by the Court of Queen's Bench in Smith v. Plummer, where the captain of a vessel claimed a lien for wages upon freight. There being no lien upon ship, the claim was rejected for the reasons thus stated by Lord Ellenborough C.J.: "Then if he has no lien on the ship, as appears from these cases he can have none upon the freight, as the lien on the freight is consequential to the lien upon the ship."

In the present case, I am satisfied the catch had been subjected to the same lien as against the vessels for the same debt.

CLAIM OF THE MINISTRY.

Any claims put forward by the Ministry at this stage remain vague and uncertain. Reference was made to the Fisheries Act 1998, by learned Counsel Waleanisia for the Ministry, and by this I gather he was referring to sections 38, 46 and 52(1). Unfortunately nothing concrete had been raised as to their application. Under section 38 of the said Act for instance, there is no evidence of any seizure of the vessel and its catch. But even if any such seizure had been made (possible dates could be 8th January 2001 or 14th February 2001) I am not satisfied on the materials before me, such seizure takes priority over the Plaintiffs' maritime lien. At common law, a maritime lien attaches at date of arrest and has retrospective effect from date the right to the lien accrues; in this instance at the earliest, as far back as December 1998 (see The James W. Elwell [1920] P. 351, 356-357 (Hill J.); The Ile de Ceylan [1921] P. 256, 258 (Hill J.); The Tervaete [1921] P. 259 (CA) 270 - 271 (Scrutton LJ.)). The objection raised by the Ministry therefore, to the payment of the proceeds of the catch, to the solicitor of the Plaintiffs in partial satisfaction of the debt in these two cases, is dismissed.

ORDERS OF THE COURT:

1. The sum of SBD44,630-00 held by the Court in respect of Civil Case No. 009 of 2001 (after poundage and expenses of sale) be paid into the trust account of the Solicitors for the Plaintiffs in partial satisfaction of the judgment debt herein.
   
2. The sum of SBD37,380-00 held by the Court in respect of Civil Case No. 10 of 2001 (after poundage and expenses of sale) be paid into the trust account of the Solicitors for the Plaintiffs in partial satisfaction of the judgment debt herein.
   
3. The Defendant pay the Plaintiffs' costs of and in connection with this application.
   

THE COURT