The purpose of this Bill is to enable Ireland to ratify two maritime conventions — the 1952 Brussels Convention on the Arrest of Sea-going Ships and the 1952 Brussels Convention concerning Civil Jurisdiction in matters of Collision — both of which have implications for the civil Jurisdiction of the Irish courts in maritime matters.
The conventions are to some degree related — they were drawn up at the same diplomatic conference. However, the convention relating to the arrest of sea-going ships, otherwise known as the Arrest Convention, is by far the more important of the two.
While the term "arrest" is normally associated with the criminal law, I would emphasise at the outset that the Bill relates to civil matters only. It has no implications for the criminal jurisdiction of our courts.
The intention behind the Arrest Convention was to produce uniform international rules in relation to the arrest of a ship in order to secure a civil claim. In particular, the convention sets out in Article 2 to limit the circumstances under which a ship may be arrested. Our existing admiralty law is actually more restrictive than that envisaged by the convention so that accession to the convention will lead to an increase in our admiralty jurisdiction.
Accession will have a double benefit for Ireland. First, 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 arbitary arrest in respect of civil claims in other contracting states. It is not surprising, therefore, that Irish maritime interests have for some time advocated that Ireland accede to the Arrest Convention.
The need to accede to the Arrest Convention has become more urgent because of the coming into force of the EC Judgments Convention on 1 June 1988. 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 were included in the accession arrangements to allow time for Ireland and Denmark to accede to that convention. These transitional provisions, which are modelled on the provisions of the Arrest Convention, will expire for Ireland on 1 June 1991 or on our accession to the Arrest Convention, whichever is the earlier. If we did not accede to the Arrest Convention before 1991 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.
The provisions of the Arrest Convention cannot be easily understood unless one is familiar with existing admiralty law. I, therefore, propose to outline briefly the existing law before discussing the detailed provisions of the Arrest Convention.
The distinguishing feature about admiralty actions is that it is possible to take an action in rem, the res being the ship or its cargo. This can be contrasted with an action in personam or, in other words, an action against a person, which is the normal type of civil action taken in our courts. In an action in rem the res, which is the object of the action, is arrested. For example, if an Irish company supplies 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, that is, 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.
It is in the context of admiralty actions in rem that the question of the arrest of a ship arises. It is only these types of actions which are affected by the Arrest Convention.
Having set out the existing legal background I will now turn to the Arrest Convention itself. 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. As a result the convention does not impose any new restrictions on the circumstances in which a ship may be arrested in this jurisdiction. Indeed, it significantly extends the existing circumstances by providing in Article 3 for the arrest of sister ships which up to now has not been possible under Irish law. A sister ship is a ship which is in the same ownership as the ship which gave rise to the maritime claim.
It should be noted that the right to arrest a sister ship will not apply if the claim relates to a dispute as to ownership or between co-owners or as respects a mortgage of a ship. In these cases only the particular ship in respect of which the claim arose may be arrested and this is quite understandable.
This new 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.
Before leaving the Arrest Convention I should again point out that it deals only with the arrest of a ship in connection with a civil claim and does not affect the arrest of ships in any other connection. 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, otherwise known as the Collisions Convention. The purpose of this convention is to prescribe uniform rules relating to civil jurisdiction arising out of collisions involving a ship or ships. In the case of a collision at sea, the rules of the Collision Convention determine which country's courts have jurisdiction to deal with any civil claim arising therefrom.
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 involved to agree to confer jurisdiction on some other court. There are also jurisdictional 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.
The Bill itself is short and 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 have been informed that the 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.
Before concluding I would like to thank the Irish Maritime Law Association for their co-operation in the preparation of this Bill. The international parent body of that association was actively involved in the drafting of both the Arrest and Collisions Conventions.
I commend the Bill to the House.
