Jurisdiction of Courts (Maritime Conventions) Bill, 1988: Second Stage.

Minister of State at the Department of the Marine (Mr. P. Gallagher)

I move: "That the Bill be now read a Second Time."

The purpose of this Bill is to enable Ireland to accede to two maritime conventions. Both conventions are related and were drawn up at the same diplomatic conference and both have implications for the civil jurisdiction of the Irish courts in relation to maritime matters.

The more important convention is the 1952 International Convention relating to the arrest of seagoing ships. The intention behind this convention was to produce uniform international rules in relation to the arrest of a ship to secure a civil claim. Irish maritime interests have for some time advocated that Ireland accede to this convention. While the convention itself in Article 2 purports to limit the circumstances under which a ship may be arrested to secure a claim, our existing admiralty law is such that accession to the convention will in fact lead to an increase in our admiralty jurisdiction.

Accession to the Arrest Convention will have a double benefit for Ireland. Firstly, it will strengthen the position of parties in Ireland dealing with foreign ships and at the same time it will ensure that ships flying the Irish flag will be protected from arbitrary arrest in respect of civil claims in other contracting states.

A more immediate reason for our accession to the Arrest Convention arises from our recent ratification of the EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. This convention was given effect in Ireland by the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988. During the negotiations leading to our accession to that convention it was agreed that jurisdiction in maritime matters would best be left to be dealt with by the Arrest Convention. As Ireland and Denmark were not parties to the Arrest Convention, transitional provisions, based on the Arrest Convention, were included in the accession arrangements to allow time for Ireland and Denmark to accede to that convention. In the case of Ireland these transitional provisions will last until 1 June 1991. If we did not accede to the Arrest Convention before the date our maritime jurisdiction in EC related cases would be governed by the general jurisdictional rules of the judgments convention and we would suffer a significant loss of admiralty jurisdiction as a result. As the Arrest Convention will not come into effect until six months after the date of our accession to it, it is essential that we accede to the Arrest Convention sometime before the end of 1990. With the co-operation of the House I am sure we will have no problem meeting that deadline.

Before I discuss the provisions of the Arrest Convention I should make some reference to the existing admiralty jurisdiction of the Irish courts. The distinguishing feature about admiralty actions is that it is possible to take an action in rem, usually against a ship or cargo. In such an action you may arrest the res which is the object of the action. For example, if an Irish company supply goods or services to a foreign ship while it is in an Irish port and the owner of the ship refuses to pay, the Irish supplier may initiate an admiralty action in rem against the foreign ship and have it arrested. If the owner does not enter an appearance the ship can be sold and the proceeds of the ship may be used to satisfy the claim. Normally, however, the ship's owner will enter an appearance, and the ship will be released on the payment of sufficient bail or security. Bail would be the amount claimed in the action together with a sum for costs. The action on the claim will then proceed in the normal way.

The action in rem is an extremely valuable procedure for persons dealing with foreign ships as it would usually be the case that the person liable, i.e. the owner, will be outside the jurisdiction and will have no assets within the jurisdiction to satisfy a claim other than the ship, which, of course, can disappear overnight.

Turning now to the provisions of the Arrest Convention, Article 2 provides that a ship flying the flag of a contracting state may be arrested in respect of a maritime claim as defined in Article 1 and in respect of no other claim. The list of maritime claims in Article 1 corresponds generally with the claims which can give rise to an admiralty action under existing Irish law and in some instances is wider. For example, existing Irish law makes no specific provision for an admiralty action in respect of disbursements made by shippers, charterers or agents. The convention does make such provision in Article 1 (1) (n) and because of this particular benefit the Irish Ship Agents Association and the Institute of Chartered Shipbrokers have strongly advocated that we accede to the convention. Also if a person suffers personal injuries in connection with the operation of a ship but the injuries are not directly caused by the ship, there is a doubt whether he can take an admiralty action in rem. The position is clear under the convention. Article 1 (1) (b) defines a maritime claim as including loss of life or personal injury caused by any ship or occurring in connection with the operation of any ship and in such cases the in rem action will be available.

There are other benefits in our acceding to the convention. Under existing admiralty law only the ship in respect of which the claim arose can be arrested. However the Arrest Convention provides in Article 3 that a ship in the same ownership as the particular ship in respect of which the claim arose may also be subject to arrest. The right to arrest a sister ship will not apply however if the claim relates to a dispute as to ownership or between co-owners or a mortgage of a ship. In these cases only the particular ship in respect of which the claim arose may be arrested. The power to arrest a sister ship will greatly extend the admiralty jurisdiction of the Irish courts and should be of considerable advantage to Irish plaintiffs.

When the Arrest Convention has entered into force for Ireland, ships flying the flag of contracting states will be liable for arrest only in respect of those maritime claims set out in the convention. However, ships flying the flag of non-contracting states will be subject to arrest either under the provisions of the convention or under existing admiralty law.

Before leaving the Arrest Convention I should point out that it deals only with the arrest of a ship in connection with a civil claim. The convention itself makes this clear in Article 2 where it states that nothing in the convention shall be deemed to extend or restrict any right or powers vested in Governments, their Departments, public authorities or dock or harbour authorities to arrest, detain or otherwise prevent the sailing of vessels within their jurisdiction.

I will turn now to the other convention dealt with in the Bill, the 1952 international convention on certain rules concerning civil jurisdiction in matters of collision. The purpose of this, the Collisions Convention, is to prescribe uniform rules relating to civil jurisdiction arising out of collisions involving a ship or ships. The Collisions Convention affects both admiralty and non-admiralty jurisdiction and therefore has implications for the jurisdiction of the District and Circuit Courts as well as for the High Court.

Article 1 of the convention limits jurisdiction in cases of collision to: (a) the courts where the defendant has his habitual residence or place of business; (b) the courts where the defendant ship or sister ship has been arrested or bail furnished and (c) the courts for the place where the collision occurred provided it occurred in a port or in inland waters. The convention, however, does allow the parties to agree to confer jurisdiction on some other court and has provisions relating to counterclaims, cases where there are several claimants and cases involving related claims. The circumstances where the Irish courts would normally assume jurisdiction at present in cases of collision correspond more or less with those prescribed in the convention.

While the convention limits to some extent the existing jurisdiction of the courts I am satisfied that it does not do so in a way that is of material disadvantage to this country. For example, under existing law the Irish courts may exercise jurisdiction if the defendant has been served with the proceedings while temporarily present in the State. This jurisdiction is of a type regarded internationally as exorbitant — this means that few, if any, countries would enforce a foreign court order based on such a jurisdiction. This jurisdiction is no longer exercisable in our relationships with contracting states to the EC Judgments Convention and the Collisions Convention would restrict its exercise further in convention cases of a non-EC nature. This should not put Irish plaintiffs at any major disadvantage, however, as such jurisdiction is of limited value in any event because of the difficulties associated with enforcing a judgment obtained in such circumstances.

The major advantages of acceding to the Collisions Convention are that it will bring our law in this area into line with that of most other maritime countries as well as ensuring that ships flying the Irish flag will be protected from courts in other contracting states exercising exorbitant jurisdiction over them.

Having given an outline of the two conventions there is little left to say about the Bill itself which is relatively straightforward.

Sections 4 and 11 give the force of law to the Arrest Convention and the Collisions Convention respectively. Section 14 abolishes the Cork Local Admiralty Court. This is essentially a tidying up operation. The Cork Circuit Court when sitting as the Cork Local Admiralty Court is the only court in Ireland other than the High Court which has admiralty jurisdiction. However its admiralty jurisdiction, which is limited to claims not exceeding £2,000, is no longer availed of in practice. I understand that the Incorporated Law Society and the Southern Law Association have no objection to the abolition of the Cork Local Admiralty Court.

Section 6 of the Bill deals with the arrest of State ships. It is a recognised principle of international law that warships and ships in the service of a state, not being used for trading purposes, are entitled to claim sovereign immunity. This principle was specifically provided for in Article 5 of the Collisions Convention but there is no such provision in the Arrest Convention. Section 6 of the Bill is necessary, therefore, to avoid any danger that the Irish Courts would interpret the Arrest Convention as changing the law on the arrest of State ships. Since the matter has not been provided for in the Arrest Convention a formal reservation will be required to deal with the question when we deposit our instrument of accession. Many other countries have made a similar reservation.

The other provisions of the Bill deal with procedural matters and questions of interpretation.

I commend the Bill to the House.

Mrs. Taylor-Quinn

I am pleased this Bill has at last come before the House because, as the Minister of State has said, the purpose of the Jurisdiction of Courts (Maritime Conventions) Bill is to allow Ireland to accede to the International Convention relating to the arrest of seagoing ships and the International Convention on certain rulings concerning civil jurisdiction of courts in matters of collision. The Bill affects the civil jurisdiction of courts in respect of certain international matters. To avoid loss of admiralty jurisdiction arising from Ireland's accession to the EC Convention on Jurisdiction and the enforcement of judgments in civil and commercial matters, it is necessary for us as a country to join. I welcome this Bill because it will extend the admiralty jurisdiction of Irish courts and repeal the limited admiralty jurisiction of Cork Circuit Court which is no longer in use.

The Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 gave effect to the EC Judgments Convention allowing Ireland to ratify the 1978 Convention of Accession. The other transitional provisions, which expire on 1 June 1991, were inserted in the 1978 Accession Convention. The provisions of the Arrest Convention will supersede those of the Judgments Convention.

The 1952 Arrest Convention unifies law relating to the arrest of seagoing vessels. A ship belonging to one of the contracting states may be arrested in any of the contracting states in respect of maritime claims. The convention does not extend or restrict any right or powers vested in any Government's or their Departments' public authorities or dock or harbour authorities under existing domestic law or regulations to arrest, detain or prevent sailing of vessels within their jurisdiction. A claimant may arrest either a ship in respect of the claim or another ship owned by the same owner. This excludes disputes between co-owners of ships as to ownership and the mortgages of any ship. A ship cannot be arrested more than once in respect of the same claim by the same claimant. In the case of a charter, the charterer, not the owner, is liable.

Under that convention also a ship can be arrested only under the authority of a court. The court within whose jurisdiction the ship has been arrested shall permit the release of the ship upon the furnishing of proper bail or security. As the Minister said, this gives additional power to us as well as additional protection. The request to release a ship under such a security shall not be construed as an acknowledgment of liability. The rules of procedure relating to the arrest of a ship shall be governed by the law of the country in which the arrest was applied for. The courts in the country in which the arrest was made have jurisdiction to determine the case upon merits if the domestic law of the country in which the arrest was made gives jurisdiction to such courts. The Arrest Convention of 1952 also applies to all contracting states. Any ship of a non-contracting state may be arrested in the jurisdiction of any contracting state. The non-contracting party, however, may be excluded from the benefits of the contract. The convention does not modify the rules of law in regard to a person who has habitual residence or place of business within the states.

The Collision Convention establishes rule relating to the civil jurisdiction in matters of collision. Irish ships will benefit from the protection afforded by the convention in other contracting states. This is important. The convention is a force of law, so the convention will not alter law of immunity from arrest of warships or ships owned or in the service of the state, except commercial ships.

Under the Collision Convention an action for collision occurring between seagoing vessels or a seagoing vessel and an inland navigational craft can only be introduced before the court where the defendant has residence or business, or before the court of the place of collision when the collision has occurred within the limits of a port or in inland waters, or before the court of the place where the arrest has been effected. The plaintiff can decide which court can be instituted. A claimant cannot bring further action against the same defendant on the same claim in another jurisdiction without discontinuing action already instituted.

Counterclaims arising out of the same collision can be brought before the court having jurisdiction over the principal action. If there are several claimants, any claimant may bring his action before the court previously seized of an action against the same party.

The convention applies to an action for damage caused by one ship to another or the property or persons on board through ommission to carry out manoeuvres or non-compliance with regulations. The convention does not apply to collisions involving warships or state-owned vessels, contracts of carriage or cases covered by the Rhine Navigation Convention.

The provisions of the 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. In regard to persons interested who belong to a non-contracting state, the provisions may be made by each of the contracting states conditional upon reciprocity. Where all persons interested belong to the same state, national law is applicable. Disputes are submitted to the International Court of Justice.

The Collisions Regulations (Ships and Water Craft on the Water) Order, 1984, applies to all vessels upon the high seas and in all waters therewith. I understand it shall not interfere with the operation of rules made by the appropriate authority for roadsteads, harbours, rivers, lakes or inland waterways connected with the high seas and navigable by seagoing vessels. It does not exonerate any vessels, owners, masters or crew from the consequence of any neglect to comply with the rule or of neglect of any precautions which may be required by ordinary practice of seamanship or special circumstances of the case. The Minister in his reply might explain how the 1984 regulations fall in within this proposed legislation.

As I said at the outset. I welcome the Bill. I hope it will be enacted and put into force and that we in this country do not just pay lip service to Bills going through this House. In 1974 we signed an International Convention for the safety of persons within our jurisdiction on the seas and to date we have not complied with the real spirit of that convention. I hope we will make a more positive approach in relation to this and that we will be seen as a Government to act upon legislation that goes through this House.

Mr. McDowell

I welcome the Bill. It cannot really be objected to and therefore I will not waste the time of the House. I want to ask the Minister a question arising out of the operation of the Bill. Article 8 (2) of the Arrest Convention provides that a ship flying the flag of a non-contracting state may be arrested in the jurisdiction of any contracting state in respect of the maritime claims enumerated in Article 1 or of any other claim for which the law of the contracting State permits arrest. It seems to allow for the extention of the category of claims in Article 1 to the ships of non-contracting states. Does that mean that the law in respect of non-contracting states' ships is now uniform as regards the kind of actions that can be the subject matter of an arrest? If a ship of a non-contracting state comes into Dublin, is the series of claims set out in Article 1, paragraph 1, applicable to such a ship?

It seems that if section 4 (1) of the Bill becomes law, the whole convention has the force of law in the State and, if I am right, then by a back door method, even though this is an international agreement which is being brought into law, it is also legislation in respect of people who are not party to the agreement and we are widening the ground of arrest to cover the ships of such states. If that is the case, I am quite happy. I would be worried if it were not the case. I would not like a two-tier right of arrest which would put ships of contracting states at a disadvantage compared with ships of non-contracting states. That is my only question.

I welcome the Bill and indicate that my party support its passage.

Minister of State at the Department of the Marine (Mr. P. Gallagher)

Ba mhaith liom mo bhuíochas a chur in iúl don Teachta Taylor-Quinn agus an Teachta McDowell, agus a rá leo gur cúis áthais dom gur chuir siad fáilte roimh an Bille seo.

I thank Deputies Taylor-Quinn and McDowell for the welcome they have extended to this Bill. Before dealing with some of the points raised during the debate I should like to make some general comments.

When this Bill was being prepared consultations were held with a number of bodies, including in particular the Irish Maritime Law Association. The international parent body of that association, the Comité Maritime Internationale, were very actively involved in the original drafting of both the Arrest Convention and the Collisions Convention and the Irish branch have always played an active role in encouraging the adoption of these two conventions. I should like to put on record the Minister's appreciation of the co-operation, expertise and assistance provided by the Irish Maritime Law Association when this Bill was being prepared.

In my introductory speech I pointed out that it is essential that we accede to the Arrest Convention if we are to preserve our admiralty jurisdiction in respect of defendants domiciled in states party to the EC Judgments Convention. Prior to the coming into effect of the Judgments Convention the High Court always had jurisdiction to hear a case but the exercise of that jurisdiction was subject to procedural limitations. For example, the leave of the court was required to serve a summons on a person outside the State and that would only be granted in certain circumstances.

In the case of certain types of maritime claims, the court could exercise its jurisdiction by means of a special procedure known as the admiralty action in rem. In such cases the court had an inherent power to order the arrest of a ship.

The Judgments Convention sets out rules governing which courts have jurisdiction and cases which come within the scope of the courts of contracting states are obliged to follow these rules. These rules, except for the transitional provisions to which I have already referred in my opening speech, make no special provision for admiralty actions and taken on their own would have greatly restricted the availability of the admiralty action in rem where the defendant is domiciled in a contracting state. However the Judgments Convention does provide an escape clause in Article 57, which provides that it does not affect any convention which in relation to particular matters governs jurisdiction.

By virtue of Article 57, therefore, when we accede to the Arrest Convention its jurisdictional provisions will take precedence over the rules of the Judgments Convention. As the Arrest Convention in Article 7 gives jurisdiction to the courts of the country in which the ship was arrested, it can be seen then that by means of our accession to the Arrest Convention we will retain that valuable right to take an admiralty action in rem.

Leaving aside the relationship between the Judgments Convention and the Arrest Convention, what effect will accession to the Arrest Convention have on the arrest of ships in admiralty actions? In practice as far as plantiffs and defendants are concerned, accession to the Arrest Convention will mean little or no change except in so far as it will now be possible to arrest sister ships in this jurisdiction.

As I explained briefly in my speech, ships flying the flags of states party to the Arrest Convention can only be arrested in accordance with the provisions of the Arrest Convention. However, in the case of non-contracting states, their ships may be arrested either under the provisions of the convention or under any existing provision of domestic law. I have already said that there is very little difference between the provisions of the convention and existing law, except in respect of the power to arrest a sister ship and in some other minor areas. I have already drawn attention in my opening speech to two cases, personal injuries and disbursements by ship agents, where the Arrest Convention provides more extensive jurisdiction than under existing admiralty law. It would not be feasible for me in the time available to list the other differences between claims which give rise to an admiralty action in rem under existing law and the maritime claims set out in Article 1 of the convention but I can assure Deputies that they are of a very minor nature.

I hope I have answered the question raised by Deputy McDowell. I said in my opening speech that when the Arrest Convention is in force ships flying the flags of contracting states will be liable to arrest only in respect of those maritime claims set out in the convention. However, ships flying the flags of non-contracting states will be subject to arrest either under the provisions of the convention or under existing admiralty law. That should satisfy the point raised by Deputy McDowell and allay any fears he may have in regard to that.

Deputy Taylor-Quinn asked me to explain the relationship between the 1984 collision regulations and the Collisions Convention. The Collisions Convention deals only with the question of jurisdiction, that is the convention determines which country's courts will have jurisdiction. Whichever country's courts have jurisdiction will then decide which law should be applied. If there is a collision and the Irish courts have jurisdiction then the 1984 collision regulations apply. I hope that answers the Deputy's question. However, it is important, in view of the fact that we are now operating the transition provisions which will last until 1 June 1991, that we get the co-operation of the House in regard to the Bill. Like the Minister for Justice, I appreciate the co-operation I have received from the House.

Question put and agreed to.

Bill put through Committee, reported without amendment and passed.

Dáil Éireann debate -
Thursday, 2 Mar 1989