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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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Hyman, Hugh Clifton, "Enforcement of maritime claims in Jamaica" (1989). World Maritime University Dissertations. 436.
http://commons.wmu.se/all_dissertations/436

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ENFORCEMENT OF MARITIME CLAIMS IN
JAMAICA:

Preliminary Legal Is sues and the International

Dimension.

BY

HUGH CLIFTON HYMAN

PSA-89

Jamaica
 TABLE OF CONTENTS

TITLE:
PREAMBLE:
ACKNOWLEDGEMENTS:
ABSTRACT:
ABBREVIATIONS:

CHAPTER 1: Introduction

A : The raison d’etre (general)

B :TheAim

C : The Preliminary Legal Issues

D : Terminology and Scope

E : The raison d’etre (Jamaica)

F The international dimension

law pratice
G : The preliminary legalissues and

H : The pratical objectives

I: Some premises

J: The perspective of analysis

K: Type of study

L : The Research and its Methodology

 24
CHAPTER 2:

Jamacian Law, Legal System and Maritime Law

A: General Background

B: Sources ofJamaican Law (Legal and Literary)

1. Legal Sources

(a) General

(b) Jamaican Maritime Law Legal Sources

(i) Legislation

(ii) Case Law

(iii) Other Sources

2. Literary Sources

C: Jamaica’s Court System

 D: Stare Decisis Doctrine applied in Jamaica

E: Maritime Claims Adjudication

1. General

2. Adjudication by the Courts

3. Maritime Arbitration

F: Jamaican and International Law

1. General

2. International Law arid its appicability

in Jamaican municipal Law

(a) Customary International Law

(b) Treaties

3. Sucession to Pre-Independance Treaties

by Jamaica

G: Concluding Comments
 54
CHAPTER 3:

Jamaican Admiralty Jurisdiction

A: Introduction

B: Origins and Development

C: Present Scope

D: The International Dimension

E: Concluding Commen

84
CHAPTER 4:

Arrest of Ships

A: Introduction

1. Ship Arrest and the Maritime Claimant

2. The Concept of Arrest

3. The International Dimension

4. Ship Arrest and the Jamaican Admiralty Jurisdiction

5. Function of Arrest

ship arrests
6. Historical Jurisprudential theiries and

Jamaica
B: The law governing Arrest of Ships in

right of arrest
C: Types of claims which may give rise to

1. Maritime Liens

2. “Other Charges”

al Dim ension
3. Maritime Liens and the Internation

4. Statutory Rights in Rem

D: Required Procedures

1. Effecting Arrest

2. Obtaining Release from Arrest

3. Forced Sale of Arrested Ship

E: The International Dimension

s Jamaica
1. The Arrest Convention implication for
-

al stipulations
2. Forced Sale of ship and internation

an alternative to ship arrest?

F: “Postscript”: The Mareva Injunction
-

G: Concluding Comments
 153
CHAPTER 5:

Jurisdiction and its exercise in Maritime Matters -

The International Dimension

A: General Legal Framework

1. Introduction

2. The Public International Law Context

3. Municipal Law Considerations

(a) General

(b) Whether Court has Jurisdiction

(i) General

(ii) In Personam Actions

(iii) In Rem Actions

(c) Whether Court wifi exercise Jurisdiction

(i) General

(ii) Lis Alibi Predens

(iii) Foreign Jurisdiction Clauses

try’s law is to be
(d) If the court exercise’s Jurisdiction which coun
-

applied?

on and
B: International Convention Provisions and Jurisdicti

claimant
choice of Law issues implications for the maritime
-
 C: Concluding Comments

CHAPTER 6
241

Time Limitations of Maritime Actions

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) Extention or Postponment of Limitation Period

(d) The effect of time having run

B: Limitation of Maritime Actions in Jamaica

(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 in respect of Passenger Death, Personal

Injury,

Loss of or Damage to Luggage

(iii) Claims for Oil Pollution Damage

period
(iv) Other Maritime claims applying six year limitation
-

(3) Maritime Liens their extinction by lapse of time

-

(i) General considerations

Law
(ii) International Convention procisions and Jamaican

(4) Maritime Arbitration proceedings and time-bars

(5) Time Limitation in Jamaican Conflict of Laws

C: Concluding Comments

318
CHAPTER 7:

CONCLUSION

BII3LIOGRAPHY:

TABLE OF CASES:

TABLE OF STATUTES:

TABLE OF INTERNATIONAL CONVENTIONS:

APPENDICES (1-20):
 Preamble

area for rese arch had its genesis in the desire

The choice of this particular subject
hopefully
y be of some immediate as well as
to produce work that could possibl

lasting practical utility and relevance.

main factors:
This desire was itself fuelled by two

dge, of any
1. The absence to the writer’s knowle

ilable work on Jamaican

substantial publication or other ava

Maritime Law perse; and

private practice of
2. the writer’s own experiences in the

perceptions regarding the

law in Jamaica and his consequent

ere.
research needs in the maritime law sph
ving
actu al spa n of the thes is is to som e extent a reflection of the writer’s stri
The

tioned desire.
towards fulfillment of the above men
could
int of theoretical analysis, the writer
Thus, admittedly from the standpo

in looking only at one of the major sub

have been kept busy and happy enough

areas spanned by the thesis.

 ance to
However, it was felt that from a practical standpoint, while paying cogniz

r perspective
other relevant considerations, it would be more useful to take a broade

along the lines adopted in the dissertation.

ution to the
This work is therefore a modest attempt to make an initial contrib

virgin area of Jamaican Maritime Jurisprudence.

Admiralty
In so doing an attempt has been made to, inter alia, put Jamaica’s

cal, institutional,
Jurisdiction and its Maritime Law generally in a proper histori

policy, and jurisprudential setting.

n, the pith
This, at least, it is hoped might be of some future value. If, in additio

practical use, then

of the study should ring well and find itself translated into some

the writer would consider his efforts very much rewarded.

writer has used

Finally, on a somewhat flippant note, throughout the thesis, the

g to any given
the masculine gender “he” rather than “he or she”, in say, referrin

maritime claimant.

ts himself
In this time of environment conservation sensitivity, the writer conten

of the several
with the knowledge that by avoiding the two extra words on each

occasions that they could have been used, some paper have been saved.

in, some
While the precise quantitative impact on the tree population is uncerta

clear support for the approach adopted may be gleaned from the law itself.
 y unashamedly provides that:
Section 4 of the Interpretation Act, 1968, apparentl

uwords importing the masculine gender include females..

instead.
Of course, “she “ could (or perhaps should) have been similarly used

But then, may next time.

“semantic chauvinism” and

No doubt, by the foregoing discussion any fears of

oach of convenience have now

the like that maybe have been prompted by this appr

been dispelled.
 Acknowledgements

Like many maritime endeavours this research effort has benefitted from the assistance

of persons and organizations from various countries.

Thanks are due firstly to Professor Patrick Alderton, my course Professor, for his

helpful comments, general guidance and forbearance in the completion of this work.

The dissertation has profited from discussions the writer had with a number of

maritime law experts on different issues examined.

Among these were discussions with Professor Wiliam Tetley, at Mcgill University,

Montreal, Canada; visiting Lecturers, Professors Frank Wiswall and Edgar Gold and

Professor Jerry Mylnarzyck at the W.M.U.; Professor Sjur Braekhus at the Scandinavian

Maritime Law Institute, University of Oslo, Norway and Dr. Thomas Mensah (IMO

Visiting Professor) at the (1989) Law of the Sea Institute Conference, Noordwijk,

Holland.
 the M.W.U.
I wish to specially thank Richard Poisson and Cecelia Lundhall of

my research at
Library for their assistance in procuring materials and generally facilitating

the W.M.U. Library.

Norway, and
Also while at GARD P&I Club (Assuranceföreningen GARD), Arendal,

, Davidson
the Law Firms of Wikborg, Rein & Co. in Oslo, Norway and Brissett, Bishop

various in-house
in Montreal, Canada, I was availed and gained much from the use of the

libraries.

g easier my
I wish to thank the Librarians at the following institutions for makin

, the Norman
research work conducted there: The Jamaican Supreme Court Library

Library, Mona,
Manley Law School Library and the University of the West Indies Main

n: the Public
Jamaica; the Institute of Advanced Legal Studies, Univeristy of Londo

, The Library
Records Office, London, England; Mcgill University Law Faculty Library

Law Faculty
of the Palais de Justice, Montreal, Canada and the University of Lund

te Library,
Library, Lund, Sweden; and THe Scandinavian Maritime Law Institu

University of Oslo, Norway.

or making
Various persons kindly provided assistance by way of furnishing material

arrangements to facilitate my research. Here, I would like to thank Mr. Geoffery Brice

Q.C. and Mr. Donald Davies, Esq. of the English Bar, Messrs, David Colford,
 Robert Cypihot and Trevor Bishop of Brissett, Bishop Davidson, Montreal; Mr.Sven

Henrik Svensen of GARD and Mr. Haakon Stang Lund of Wikborg Rein & Co.,

Norway.

Also very special assistance was obtained from friends in Jamaica (Garcia, Jennifer,

Albert, et al) who sent materials to Sweden.

I wish to thank the European Community whose fellowship award made my

attendance at the W.M.U. possible; Ruby Mcreath, the U.N.D.P. and others in Jamaica

who dealt with the logistics or otherwise facilitated my coming to Sweden.

To my W.M.U. lecturers, from whom I learnt much, fellow students and others in

Sweden who helped to provide a conducive atmosphere for the study, I wish to

acknowledge their contribution with gratitude.

To my friend Stanley Cummings for arrangements for the typing, to Monique Fransen

for kindly initiating the process and to Madubuko Diakité, and Scarlett Warfvinge-Massel

for its completion.

Special thanks are due to Mr. Terje Groth, Mr. Gudmund Rognstad and SHIPDECO

and Mr. Odd Nielsen of Norway, Mr. Joe Carton, Mr. Robert Scott and Alcan Shipping

Services of Montreal, Canada.

Yet thanks are due to others still. However, some space must be left for the thesis

itself.
 specially of all,
nowledgements by thanking most
Hence, I wish to conclude my ack
iration.
an for their unfailing support and insp
my parents Metella and Douglas Hym
mentioned or
thes is might not at all refl ect the imprint of any of the persons
That the
responsibility
ise do thei r assi stan ce suff icie nt justice is but ample reminder that the
otherw

on my shoulders.
for the final product fell and remains
 To my parents:

Metella and Douglas Hyman

 ABSTRACT

Chapter 1 introduces the thesis including its aim,

premises,
scope, raison d’ etre, conceptual framework,

terminology, perspective of analysis, and research

methodology.
in
Chapter 2 outlines the broad legal setting with
ica
which maritime law exists and functions in Jama
rce
and in which the maritime claimant seeks to enfo

his claim.

Chapter 3 traces the development of Admiralty

the legal
Jurisdiction in Jamaica towards establishing

foundations upon which the present Jamaican

Admiralty jurisdiction rests. In so doing, the present

eated.
scope of Jamaican Admiralty Jurisdiction is delin
time
Thus, it is shown what sort of claims the mari

claimant can have entertained in the Jamaican

Admiralty Court.
 Also, the international dimension to the present

admiralty jurisdiction is highlighted and its relevance

to the local judicial process noted.

Chapter 4 looks at the various aspects of the

matter of Arrest of Ships. The Law governing ship

arrest in Jamaica is examined. Relevant international

stipulations are considered especially as these may

have implications for Jamaica and its laws pertaining

to ship arrest. The Mareva Injunction is considered

particularly to the extent that it may, at times, be

viewed as offering an alternative to ship arrest.

Chapter 5 attempts to look at the question of the

exercise of jurisdiction from the perspectives of

Private International Law and to a lesser extent that of

Public International Law. In effect, it emphasizes the

international dimension to Jurisdiction issues in

Jamaica.

An attempt is made to identify and examine

stipulations in International Convention Provisions

 which may ultimately have implications for

Jamaican maritime law and the maritime claimant as

regards the exercise of Jurisdiction and Choice of Law.

This is done against the background of the relevant

applicable Jamaican municipal law principles which

are first examined.

Particular jurisprudential problems pertaining to

Jurisdiction clauses and maritime torts committed

beyond the territorial seas of but affecting Jamaica

are discussed.

Chapter 6 looks at the question of Time Bars as

they relate to and operate in respect of maritime

claims in Jamaica.

International Convention provisions with time bar

stipulations are examined and their relevance to and

possible consequences for or relevance to Jamaican

Maritime Law and Maritime Claimants in Jamaica

highlighted. Particular problems pertaining to ‘Time

and Bar’ Arbitration Clauses and Time Bars in

Jamaican Conflict of Laws are discussed.

 Chapter 7 concludes. The main inferences to be

drawn from the study are highlighted. Suggested

d.
changes and future challenges are summarily note
 ABBREVIATIONS

C.M.I. Comité Maiitime International

I.L.C. International Law Commission

I.L.O. International Labour Organization

I.M.O. International Maritime 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. The preliminary gal Issues

D: Terminology and Scope

E: The raison d’ eWe (Jamaica)

F: The international dimension

G: The Preliminary issues and law practice

H: The practical objectives

I: Some premises

J: The perspective of analysis

K: Type of study

L: The Research and its Methodology

2
 Chapter 1

Introduction

A: The raison d etre general

on observes
A right without a remedy is practically not much of a right. Graves

perfect it must be capable of

that: ‘It is not enough to be that a legal right exists: to be

enforcement in a Court of Law”

have succeeded
It is hardly any consolation to a maritime claimant that he would

on its merits. The fact

on his claim, if only he was given an opportunity of having it heard

by actual settlement of his

is such a claimant is normally interested in and satisfied only

claim.

rt if there is
Likewise, a favourable court judgement in hand is of little comfo

provisionally secured
nothing on which it can bite. In short, where ones claim is not

a foreign shipowner
before a court trial on the merits, “victory obtained against, say,

ise accessible)
where none of his assets are within the courts jurisdiction (or are otherw

hardly warrents any celebration.

practical
This points to the fact that there are preliminary legal issues of much

e claim.
importance that need to be focused on as regards enforcement of any maritim

1 Graveson, R.H.O Conflict of Laws - Private International Law, 7th Edn., Sweet & Maxwell,
London, 1974, p. 590.

3
 B: The Aim

legal issues pertaining to

The purpose of this study is to examine certain preliminary

the enforcement of maritime claims in Jamaica.

cognizance of relevant
In so doing, an attempt is being made to take particular

to such issues.
provisions of international maritime conventions as these relate

backdrop against which

These Conventions it is felt, help to provide an illuminating

the relevant Jamaican Law may be viewed.

an international legal
Thus, an underlying theme of the study is that there is often

particular preliminary issues

dimension worth bearing in mind when looking at these

clothed only in local procedural

which appear in the Jamaican Municipal Law context,

garb.

C: The Preliminary Legal Issues

pertain to: How much time the

The study is concerned with preliminary issues such as

dings so as to preserve his fight

claimant is allowed before he mist commence legal procee

the set of claims that the

and/or remedy?; Whether the claim in question is among

Admiralty Court can entertain?;

particular claim brought

Wether the Court has jurisdiction to hear and determine the

before it:

whether it will
If the Court does have jurisdiction as regards the claim before it,

exercise such jurisdiction:

4
 11 LLIC 4.Uui L , -

s obtaining provisional security for one’s

What are the considerations as regard

arrest?
maritime claim, in particular, by way of ship

2 racter and or in some aspects embrace the

Mainly the issues are procedural in cha

Laws).
of 3
field of Private International Law (Conflict
l
incidentally with certain civil procedura
The study does not concern itself except

may arise in connection with some of these

details such as pertains to pleadings which

preliminary matters.

D: Terminology and Scope

extent indicated, and generally to those

“Preliminary Legal Issues” are limited to the
on
ependent of any hearing (or previous hearing)
basic issues which arise prior to and ind

the merits of the claim.

hurdles the maritime claimant is faced with

They in effect relate to the first set of legal

in his pursuit of legal redress.

ement of foreign judgements and arbitration

Accordingly, matters such as the enforc

ing, fall outside the scope of the study. So too

are
awards which arise after a previous hear

status of a claim of which may arise in respect

all issues as regards the merits standing or
mode of
1) 7 Q.B.D. 329 at 333 that “procedure” is “the
2 Lush, L.J., notes in Poyser v. Minors (188 s or defin es the
rced, as distinguished fro the law which give
preceeding by which a legal right is enfo inery as disti ngui shed
g the court is to administer; the mach
right, and which by means of the proceedin
from the product.” , 4 states
Law, 11th Edn., Butterworths, London, 1987 p.
3 Cheshire and North Private International issue befo re the
part of law which comes into play when the
that: “Private International Law.. .is that with a foreign syste m of law
n that is so closely connected
court affects some fact, event, or transactio
so as to necessitate recourse to that system.”

5
interrogatories, proof of foreign law, other evidentiary questions and the like.

on
The word “claim’ is used simply in the sense of a demand for one’s due or asserti

of ones right.IMaritimeu is used to mean: related to the sea.

to a claim
The term Maritime claim” is used with more forensic significance. It refers
“

within the Admiralty Jurisdiction of the Supreme Court of Jamaica. 4

claims
The expression “Maritime related claim” is used generically to encompass all

constitute
that have some connection to the sea. From this it is clear that “Maritime claims”

a subset, (albeit a very large one), within “Maritime related claims”.

of
The phrase: “Enforcement of maritime claims” is in this thesis used in the sense

prosecution of such claims.

the
This entails instituting legal proceedings towards obtaining legal redress,. Unless

alty
context indicates otherwise,”legal proceedings” refer to proceedings in the Admir

Division of the Jamaican Supreme Court.

5
Jackso n in the major work: “Enforcement of Maritime claims”, notes that:

“There are three aspects of Maritime Claims:

(i) The extent to which security may be obtained by a maritime claimant so as to

ensure that there will be assets available to turn a judgement into a material gain

(the provisional remedy aspect):

(ii) The rules governing the bringing of an action to enforce a maritime claim (the

jurisdictional aspect):

4 See: Chapter 3.
5 Jackson, D.C.: Enforcement of Maritime Claims, Lloyds of London, 1985.
6
 (in) me extent to wnicn a maritime ciaimant oeconies t I.1ULLfl un

security aspect)
6

This study is more concerned with the first two aspects. The third is dealt with

sparingly and only to the extent that it relates to the first two aspects.

It is the writer’s view that despite the importance of “the security aspect”, the subject

of liens around which this third aspect is centered, while meriting some attention in the

context of a discussion of maritime claims, is analytically, quite a distinct subject in its

own right..

This, it is respectfully submitted to be even more the case, in the light of the

conceptual framework so far delineated.

The writer takes some comfort as regards the approach adopted upon noting the title

, in another major work of relevance to the subject area of this thesis.

adopted by Tetley
7

The title is: “Maritime Liens and Claims”. Such a title and the distinction it emphasises

are both apposite and instructive in the present context.

Moreover, under Jamaican Law (following the English Common Law position), only

a small minority of maritime claims have attached to them maritime lien status.

6 Thid,. p. lvii.
7 TeLley, William: Maritime Liens and Claims, Business Law Communications Ltd, London, 1985.

7
 E: The raison cI’etre

Specifically, as regards Jamaica, the study is prompted by a number of

considerations.

There is a definite need for Jamaica to modernize its maritime laws in general.

Typically, when thought is being given in Jamaica to the updating of such laws,

attention is focused only on substantive law matters. Thus, at present, efforts are directed

at finalizing a draft comprehensive maritime code which deals with a variety of

substantive law issues.

No attention is specifically paid to the preliminary legal issues such as those under

focus in this thesis.

Indeed, there has been virtually no change in the relevant Rules of Court provisions

relating to Admiralty procedure and practice in Jamaica since their promulgation almost a

century ago.
8

Yet the substantive law rules dealing with various rights and liabilities or duties and

obligations can only be efficacious to the extent that they are facilitated and come to life

through appropriate procedural and, or conflict of law rules.

For example, it is obvious that any large oil spill within or near Jamaican territorial

waters is potentially catastrophic for the fragile local economy, whose foreign exchange

mainstay is at present, Tourism.

8 Vide: Chapter 4.

8
 oil spill scenario.
which would probably be a major victim in any such

ally recognize such an oil spill,

Yet, although the substantive law rules would norm
9

onal rules now stand, they could

as giving rise to an action in tort, as the jurisdicti

n being taken against a delinquent

significantly fetter and frustrate effective civil actio

shipowner. This is clearly against the national interest.

racts, for example, shippers,

Also, typically, Jamaican parties to maritime cont

racts are faced with adhesion type

seafarers and the assured under marine insurance cont

g Foreign Jurisdiction and Choice of

contracts which they enter with foreigners containin

Law Clauses.

ry effect in that they refer the

These stipulations normally have both a prorogato

dication of a specified country, and

parties, and disputes between them to the law and adju

ing, they preclude suits in all other

partly a derogatory effect, in that by their word

jurisdictions.

rt in a particular case uphold

One question might therefore be: Should a Jamaican Cou

right to bring their cases before

such stipulations so as to effectively deny its citizens the

the courts of their homeland?

parties be sufficient for a

In other words, should such “private ordering” by the

determine the dispute?

Jamaican Court to consider itself not suitable to hear and

policy questions which are

These, it is submitted, raise important jurisprudential and

worth examining.

9 Assuming, for instance, that there was negligence.

9
 Similar questions arise regarding the so called ‘Time and Bar” Arbitration clauses
10

of a
which purport to terminate, absolutely, a party’s right to take action for breach

tion
charterparty after elapse of a contractually stipulated time period, without arbitra

proceedings being instituted.

These questions ultimately have implications for Jamaica’s national interest.

in the
Further, Jamaica aims to strengthen its position as a major maritime centre

Caribbean. Generally it desires acceleration of its maritime development.

Undoubtedly, several factors enhance these prospects.

terminals
Jamaica has in the Port of Kingston, one of the finest container/transhipment

es.
in the Western Hemisphere alongside modern breakbulk roll on /roll off faciliti

built on
The Port of Kingston stands unrivaled among Caribbean ports and is

and almost
Kingston Harbour which is the seventh largest natural harbour in the world

landlocked.

n
Geographically, it lies in a very strategic position. It is positioned mid-way betwee

Orient via the

North and South America and lies on the direct route from Europe to the

Panama Canal.

a major
This makes it a most convenient port for trading vessels and it remains today

transhipment port.

In addition, Jamaica is one of the major cruise shipping destinations of the world.

In the sphere of legal services it has a Bar and Bench of a very high standard.

10 Vide: Chapter 6.

10
 -.-.—,
iaIflalLaIl J1.LLUIIIcy-aL Jaw

large measure to their efforts, Jamaica has been selected as the site of the International

Seabed Authority under the new Montigo Bay Law of the Sea Convention.

This should help to focus attention on Jamaica as a significant maritime centre.

Various Private Sector and Governmental organizations operating within the shipping

sector also enhance the maritime development prospects of Jamaica. Other factors also

augur well for such development.

However Jamaica can only fully realize its maritime development capabilities and

optimize benefits from any such development if there is in place up to date legal services

infrastructure including modem maritime procedural, and Conflict of Laws rules.

For instance: a common concern of maritime claimants and their lawyers in any given

case, is where is the best country to have an offending vessel arrested.

12 has commented:
Thus Hill

the 64,000 dollarquestion which your hypothetical bonafide maritime claimant

will likely pose is “where, how and when can I most advantageously arrest a ship in

claim?”
pursuit of my particular 3

Of much importance here are not only the national substantive law stipulations as these

pertain to the claim in issue, but also the requirements, efficiency and efficacy of the

Arrest procedure in a given country.

In this respect, Jamaica needs to be able to compete in the regional and international

11 Vide:Chapter2.
12 Hill, Christopher et al: Arrest of Ships, Lloyds of London Press Ltd., 1985.
13 Ibid., p.v.

11
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 over”.
14

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.

15 sees the main purpose of international conventions as embodying three

Tetley

principles:

“(1) Uniformity of law

(2) Cerrtainty of law, and

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

16

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

,it ought to ensure that its Conflict of laws stipulations do not

as say, The Hague Rules
17

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
 iviore speciiiaiiy, LILc L1puiaLiJii —--.3

conventions, bearing in mind these three principles.

Where a Convention is silent on a point or allows some latitude for particular national

then it is
construction as in the case of the Hague Rules in respect of Jurisdiction Clauses,

regard
being contended that in addition to bearing in mind these three principles, due

should be had to Jamaica’s national interest.

Also, even where Jamaica is not a party to a maritime Convention, it can help in the

or seeking
realization of the objectives implicit in these three “principles” when applying

to develop its maritime municipal law.

This, it can do for instance by taking due cognizance of relevant international maritime

convention provisions as these relate to particular preliminary legal issues.

This, it is submitted, is particularly relevant to the maritime law sphere which by

nature operates in an international setting.

However, it is to be emphasized that in suggesting that note should be taken of the

international legal dimension as regards the preliminary issue, no derogation from the

normal role of local legal sources is being advocated.

All that is being contended is that the international legal dimension should also be

borne in mind. The case for such an approach is further strengthened in Jamaica’s

particular situation by the dearth of local court decisions and legal weitings as well as the

existence of lacunae in maritime legislation on matters relating to maritime procedural and

private international law.

13
 -

As regarcis 1—rivaLe fl1LC1I1au’..n1L1 i-v,

mind:

.in the fact that

Private international law differs from most other branches of law
.
.

field”
there is comparatively little legislation or case law in this 19

s, this field of
Related to this fact and compounding matters, is the fact that it appear

st and competent best.

the law is not one in which judges are in general at their happie

Cardozo, J, when he
Here it may be borne in mind the words of the American Judge

stated:

ct of Laws, feels
“The average judge, when confronted by a problem in the Confli

2
straw
° .”
almost completely lost, and like a drowning man, will grasp at a

ct of Laws cases
In Jamaica, following the general trend in most countries, Confli
are

me law case dealing with

few and far between.There appears to be no reported Mariti

Conflict of Laws questions.

c area of focus of
Overall, there is a pancity of Jamaican cases infringing on the specifi

this thesis.

seemingly safest
This makes it most likely that judicial clutching to the nearest and

straw will take place.

Authorities.
In practice this often means a virtual mechanical resort to English

, do not always
These authorities, although generally of sound and high quality

18 Morgenstern, Felice: International Conflicts of Labour Law, ho, 1986.

19 Ibid., p. 5. by Bradshaw,
20 Cited in Morris, J.H.C.: “The Conflict of Laws, 2nd Edn., 1980 at p. 9 as quoted J:, Vol. 7, No.
on Law, W.LL:
David: The imputed proper law of the contract: Conflicts in the Comm
2, October 1983, 327, 329.

14
always free from deficiencies.

which are diametrically opposite to

They may at times reflect vested economic interests

those of Jamaica.

d national economic
2
Bra 1
ekh us has for instance described how in effect veste

English and American Courts in

interests gave rise to opposite approaches being taken by

the question of Choice of Law and

the period preceding The Harter Act, 1893 U.S. on

was the contending interests of

Jurisdiction clauses in Bills of Lading. Involved then

2
interest
British Shipowner and American Cargo 2 s.

readily discernible in Protectionist

Such overt expression of national interests are more

questions. However, it appears these

national legislation dealing with Substantive law

areas of the law including that under

interests may also find covert expression in other

“judicial interpretation”
focus in this thesis, perhaps at times by the device of

legislation is being promoted, it

While neither judicial insularity nor chauvanistic

ests may form a covert backdrop to

seems that in a world where perceived national inter

be less than prudent not to bear this

not only legislative but also judicial activity, to would

.
in mind in striving to develop one s own jurisprudence

rent perspectives so as to have a

Such an awareness should prompt a search for diffe

ions.
broader informed basis for making the relevant decis

mon law jurisdictions as well

These different perspectives may be those of other com

Shipping (Recent Developments), Printed

21 Braekhus, Sjur: Choice of Law problems in International
cours, volume 164, Sijthoff & Noordhoff,
for private circulation only. Extract from the Recuel des
The Netherlands (undated).
22 Ibid. chapter 3.
15
as in appropriate cases civil law junscilcuons.

oach would extend the width

This study is not a comparative law study. Such an appr

nsions. Nevertheless, as deemed

and volume of this thesis beyond its proper dime

us countries.
necessary, references are made to the law of vario

nal dimensions should be taken into

At the minimum however, it is felt that internatio

account by the relevant decision makers.

relevant international convention

In so doing, this should not lead only to a look at

for the recorded deliberations of

provisions. Importantly, regard should be had

s Shipping Committee, I.M.O, I.L.O,

international maritime bodies such as UNCTAD

e relevant.
and the C.M.I. as well as those of the U.N., wher

assed by international maritime

In these for a a variety of legal opinions are canv

of thought.
experts representing different interests and schools

ntially fertile source that a country

It seems to the writer that this is one additional pote

ingfully tap.
with an embryonic maritime jurisprudence can mean

oach which expressly incorporates

Hence, the writer is in this thesis adopting an appr

what ate in effect local maritime

an international dimension in striving to look at

preliminary legal issues.

0: The preliminary issues and law practice.

nce in the actual practice of

These preliminary issues also take on a special significa

law in Jamaica.

16
 In many instances, local practitioners have been limited to just addressing preliminary

matters in maritime cases.

This may be as a result of a Jurisdiction Clause which results in the semi/processed

case being shipped to say, London for final determinatio

23 n.

Even where the matter can be heard in Jamaica, the parties especially where they are

all foreigners, may choose to have the matter dealt with in London (or some other

international maritime and financial centre). In this case their legal representatives in

London (or elsewhere) may only seek advice of local legal counsel on preliminary issues

involving Jamaic
24 a.

Otherwise, it may simply be a case where after, say, a vessel is arrested and security

put in place for its release, negotiations between the parties result in adequate

arrangements being made to avoid litigation.

Also from the standpoint of practice, these preliminary issues are not only of interest

in the context of legal proceedings. There is always the old adage that prevention is better

than the cure.

Thus, local counsel may try to avoid future bottlenecks by careful contract formulation

and drafting, advice to clients and in negotiations with foreign parties as pertain to such

issues. However, in light of the thesis topic, this aspect is not developed, but is to be

nevertheless borne in mind.

23 Vide: Hyman, Hugh and Barnett, Courteny: The Admiralty Courts and prospects for Caribbean
Maritime Developáment, Caribbean Shipping Journal, November 1985, p. 30.
see: Appendix 20

17
 H: The practical Objectives

The thesis thus aims to achieve the following practical objectives:

1: To analyse, discuss and make suggestions towards having particular areas of the

relevant law updated and improved.

2: To make a contribution towards clarifying what the law is by stating what the law

appears to be at present.

3: To make a contribution towards the development of an analytical framework for a

Jamaican maritime jurisprudence.

4: To highlight the international dimension and to a lesser extent the policy

considerations which the relevant preliminary issues might entail.

I: Some Premises

Discussion as regards Jamaica’s public policy interests proceeds on the basis of a

number of extra-legal considerations and assumptions.

These include the following:

1: Jamaica is a “cargo interests” rather than a “maritime carrier” country and its

interests are best served at the present time by taking (so-called) pro

cargo-interests positions.

2: Jamaica has a strong vested interest in promoting the economic welfare of its

seafarers.

18
 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
 The study is essentially a legal one. It basically entails an analysis of specified aspects

of the law by the utilization of legal reasoning.

, who in his book, “A

Here, an attempt is made to heed the caution of Bos
25

methodolgy of International Law”, stated:

“No reasoning can purport to be a ‘legal’ one unless it is borne out by one or more

among the rules contained in one or more of these <recognized manifestations >of

law” 26

For Bos, such “recognized manifestations of law” are “...the phenomena which in a

given legal order one is allowed to invoke in order to legitimize a reasoning alledged to be

a legal one”.
27

In the context of Jamaican as well as International Law these manifestations may be

28 An attempt is therefore made to buttress the contentions

referred to as “legal sources”.

advanced or arguments employed in this study by utilization of these sources.

Despite the basic nature of the study, it is recognized that the law does not operate in a

vacuum nor is it to be viewed as self-serving. Accordingly, extra-legal considerations,

such as already indicated ultimately provide a practical context for the legal discussions.

Analysis of the law essentially takes place against the background of:

1. the need to develop the content and efficacy of the law;

25 Bos, Maarten: A Methodology of International Law, North-Holland, 1984.

26 Ibid., p. 49.
27 Ibid., p. 56.
28 Vide: Chapter 2.
20
 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 See also, 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 2

JAMAICAN LAW, LEGAL SYSTEM AND MARITIME LAW

A. General Background

B. Sources ofJamaican Law (Legal and Literary)

1 Legal Sources

a. General

b. Jamaican Maritime Law Legal Sources

i Legislation

ii Case Law

iii Other Sources

2 Literary Sources

25
C. Jamaica’s Court System

D. Stare Decisis Doctrine applied in Jamaica

E. Maritime Claims Adjudication

1 General

2 Adjudication by the Courts

3 Maritime Arbitration

F. Jamaica and International Law

1 General

2 International Law and its applicability in Jamaican Municipal law

a, Customary International Law

b. Treaties

3 Succession to pre-independence treaties by Jamaica.

G. Concluding Comments

26
 Chapter 2

Maritime Law
Jamaican Law, Legal System and

A. General Background

3
Nat ions. The
is an indepe nde nt 2
uni tary state within the Commonwealth of
1
Jam aica

August 6, 1962. It is a
d was an English colo ny from 1655 until it gained independence on
islan

Legislative and Judicial

aration of powers of the Executive,
parliamentary democracy with a sep

monarchy.
al 4
arms of government. The form
of government is that of a constitution

ngly influenced
their genesis in and today remain stro
The island’s law and legal system had

by those of the English.

5
Jam aica.
re has been som e controversy abo ut the reception of English Law into
The

6 was received in 1661.

English Common law
However, it is now well established that

1 See Appendices 1 & 2 for basic data on Jamaica. U.S.A. and Canada.
2 As distinguished from Federal States such as the rning nations whose territories originally formed part of the
3 Association of the United Kingdom and self-gove
British Empire. a Republic: vide: eg.
but plans are afoot to make Jamaica into
4 The British Queen is legally Head of State nce referrable to as one
ica is still today, in English legal parla
Daily Gleaner, August 20, 1989, p. 8A. Jama
’s Laws of England, 4th Edn., Vol 6.4
of “her majesty’s dominions”: vide: Haisbury rison, C. Dennis:
in the West Indies, 1972 J.LJ. 7 and Mor
5 See generally: Patchett, K.W.: Reception of Law , 43; Gran t, V.B. : Jama ican Land Law,
1 L.J., October 1979
The Reception of English Law in Jamaica: W
chapter 2.
6 As distinguished from statute law. Law Reform in the
H Aubrey: Legal Developments and
7 See eg. Patchett, 1972 J.L.J. 7, at p. 22; Fraser, Jama ica: Inter natio nal Encyclopedia for
Dorothy Claire:
West Indies 1972 J.L.J. 67, at p. 70; Gordon,
The Netherlands, 1984.
Labour Law. Kiuwer Law and Taxation Publishers;

27
 ation in the island of
In 1728 statutory conf
8 irmation was given of the continued oper

then
“...
at any time esteemed, introduced, used, accepted
English enactments which were up to

or received as laws... “ Jamaica.

of 9

ish Act passed prior to 1728 was or is part of

Thus, in order to determine whether an Engl

in the
whether such an Act was at any time “used”
Jamaican law it is necessary to ascertain

with enormous evidentiary

island before °
1
the n. Satisfying such a criterion is fraught

1
diff 1
iculties.

ons for ascertaining the law on aspects of any

This ultimately can have adverse implicati

Overall, the question of the reception of English

given subject such as that under consideration.
nt
ideration of Jamaican Maritime Law, a significa
Statutes is of particular relevance to any cons

ed Kingdom Statutory Pro

1 2
visions.
component of which is comprised of Imperial Unit

Patchett 13 notes that:

into the law of the various West Indian

“English statute law has been incorporated

territories in four major ways:

ament of particular statutes, either

1 Express extension by the United Kingdom Parli

8 1 Geo. 2, C. 2. section 22.

9 Ibid. to make user the criterion for
,
10 Morrison, op Cit., 45 st.ates that: “The effect of the 1728 Act however was
reception of English Law”.
11 See generally: Morrison, op cit.; Grant, ibid.
1911 (U.K.).
12 eg. Merchant Shipping Act, 1894 (U.K.); Maritime Conventions Act,
13 SeeF.N.5

28
 generally to all dependent territories or only to named colonies. Such extensions are

usually made by the statutes themselves.

may
2 Adoption through incorporation by reference to colonial legislation. Again this

take two forms — by express incorporation of named statutes or by general

incorporation clauses which do not specify indivicual Acts.

3 Adoption by repetition of the provisions of the English Acts.

tion in
4 Reception under the common law rules relating to statutes of general applica

conquest.”
force in England before a specified date usually that of settlement or 14

ture with
It is to be noted that soon after the English settlement, Jamaica was granted a legisla

new
power to repeal and alter the statute and common law of England and generally to make

law. Jamaican legislation actually dates back to at least 1681.15

By the Colonial Laws Validity Act, 1865, (U.K.), English statute Law was not to be

deemed applicable to any colony unless it had been extended thereto either expressly or by

necessary implication.

Accordingly, no English Statute relating to maritime (or any other matter) enacted since 1655

16
applies to Jamaica unless it has been incorporated in accordnace with the foregoing.

14 Ibid., p. 55.
15 See Vol 19, Laws of Jamaica.
16 See Grant, ibid, p. 5.

29
 the United Kingdom lost its
Most importantly, from the date of Jamaica’s independence ,

ndence Act, 1962, (U.K.),

legislative power over the island. Hence, The Jamaican Indepe

1962), no Act of the United Kingdom

section 1(2), provides that as of that date (August 6,

law thereof.”
“shall extend or be deemed to extend to Jamaica as part of the

a’s independence Thus

However, the pre-existing law continued in force upon Jamaic
.

tution Order in Council 196217

section 4(1) of The second schedule to The Jamaica Consti

provides that:

ted day shall

“All laws in force in Jamaica immediately before the appoin

to amend or
(subject to amendment or repeal by the authority having power

repeal any such law) continue in force on and after that day...”

provides that “subject

In turn, section 4(1) of The Jamaican Constitution Oder in Council,

peace, order and good

to the provisions of this constitution, Parliament may make laws for the

government of Jamiaca”.

17 The Jamaican Constitution is the supreme law of the island, and provides (per section 2) that if
any other law
extent of the consist ency, be void.” Thus, Carneg ie notes
is inconsistent with it such “other law shall, to the
in reference to the English doctrine of parliamentary sovereignty that: “In the Commonwealth Caribeacy an
Constitutions, the doctrine of parliamentary sovereignty is ousted by the superior doctrin e of the suprem
of the constitution: Carnegie, A. Ralph: The Law of the sea in the Commonwealth Caribbean: The
Domestic Law context, Lecture notes on Coastal and Estuarine studies 27, A new Law of the sea for the
Caribbean, Gold, Edgar (ed.), Springer-Verlag, N.Y. 1988, 83 at p. 87.

30
 Where an English statute is in force in Jamiaca under 1 Geo2, cap 1, section 2218, its

19 Similarly where an English

repeal in England does not affect its operation in Jamaica.

Common Law rule has been recognissed in Jamaica its abolotion in England does not render it

inoperative in Jamaica.
°
2

B. Sources ofJamaican Law (Legal and Literary

1 Legal Sources 21

a. General

The primary legal sources are (1) Legislation and (2) Case Law or Judicial Precedent.

Other sources include custom and learned legal writings.

b. Jamaican Maritime Law Legal Sources

(i) Legislation

Old and often outdzted statutory provisions inherited from England constitute the majority of

existing maritime legislation in Jamaica. Mainly these are local pre-independece local enactments

18 See, supra and F.N. 8.

19 Sutton v Thomas etal, Stephen’s R 810; Bernal v Feuriado 1927 Clark’s R, 238 cited by Grant,
ibid, pp. 5-6.
20 Gray v Referee if Titles, 1 JL.R. 97, cited by Grant, ibid., p. 6.

21 The means by which the law comes into existence.

31
which adapted and apadted as necessary U.K. statutory provisions.

Also, as intimated, a very significant part of Jamaican Maritime Law is comprised of

Imperial U.K. Statutory provisions which were extended to Jamaica.

This process of extension at times creates particular difficulties in ascertaining the law on a

given maritime matter, This is as regards both physically finding the relevant law in the first

place as well as generally determining the law on the subject.

Section 9(1) of The Maritime Conventions Act, 1911 (U.K.) provides that: “This Act shall

. .“
extend throughout His Majesty’s dominions and to any territories under his protection.

Similarly, section 91 of The Merchant Shipping Act, 1894 (U:K) in reference to Part 1 of

that Act, provides that : “This Part of this Act shall apply to the whole of Her Majesty’s

dominions, and to all places where Her Majesty has jurisdiction.”

Where there is such express extension in the “parent” U.K. Act itself as just quoted, then

there is relatively little difficulty in ascertaining whether particular U.K. statutory provisions

form part of Jamaican Maritime Law.

However, it appears that since the enactment of The Maritime Conventions Act, 1911,

(U.K.), this practice was discontinued. Instead, the practice has been typically to reserve

power in the British Crown to apply the relevant provisions to British possessions.

32
 Labour Conventions)
For instance, Section 6(1) of The Merchant Shipping (International

Act 1925, (U.K.) provides that:

this Act shall subject to

“His Majesty, may by Order in Council, direct that the provisions of

Order, as appear to His Majesty

such modifications and adaptations, to be specified in the

ships registered in any British

necessary or expedient in the circumstances of the case apply to

possession...”

Conventions) Act,
Similarly section 36(1) of the Merchant Shipping (Safety and Load Line

y may by Order in
1932, (U.K.) provides in reference to Part 1 of that Act, that “His Majest

Council direct that the provisions of this Part of this Act and ... the provisions of any other Act

in force amending or
relating to Merchant Shipping, including any enactments for the time being

Act, shall extend, with

substituted for the provisions of this Part of this Act or any other such

the Order, to
such exceptions, adaptations or modifications (if any) as may be specified in

any colony.”

The
An initial problem is of course that of locating the relevant Order in Council (if any).

not
problem in practice is exacerbated by the fact that extended U.K. statutory provisions are

Contained in any official local publication as is the case with the readily accessible locally

enacted legislation which are contained in printed offical volumes of Laws of Jamaca.

33
 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

22
independence.

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.

this appears to be so as regards use by, for example Government Authorities concerned with ship registration
22
and related matters of Merchant Shipping Acts., enacting in the U.K. after Jamaica’s independence. This has
happened because of traditional reliance on U.K. shipping Forme and Rules in 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 changed in 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
 However, there is at present a number of draft bills, including a comprehensive Modern

Merchant Shipping Bill 23, due to replace The Merchant Shipping Act, 1894 (UK) still

presently relied on. Unfortunately, such bills have tended in the past to remain so

indefinitely 24

The area of Jamaican Maritime Adjectival Law remains essentially untouched by post-

independence legislation. The same is true for Jamaican Private International Law. In effect, the

area under study has not had any particular legislative indigenous input.

Appendix 3 provides a list of Jamaican Maritime Legislation.

(ii) Case Law

There is a dearth of Jamaican or other West Indian judicial decisions on Maritime

matters. Reported cases are scarce.

In practice, reliance is normally placed on English decisions. Often, there is no Jamaican or

25 This contrasts sharply with other areas of Jamaican Law such as

West Indian case on point.

Criminal, Labour, or Landlord and Tenant Law where a fledgling Jamaican or West Indian

flavoured Jurisprudence may be said to be emerging and where there is a relative abundance of

local case law.

23 The Jamaica Shipping Bill, 1989

24 Vide: Hyman, Hugh C. The status of the law in Jamaica relating to Dangerous goods and their carriage by
sea: (IMO) J/3699, Annex 22, pp 8 9.-

25 However, Newton has observed that “...although in some areas of the law a number of important West
Indian cases are summarised in the West Indian Reports, yet legal practicioners seem to prefer citing English
cases in the courts.’ : Newton, Velma. Historical Perspective of Law-Reporting in the English-Speaking
Caribbean, W.I.LJ., October 1978, 37 at p. 38; see also infra re literary sources.

35
 (iii) Other Sources

or West Indian legal writings in the maritime

law
There is at present hardly any Jamaican

field have to do with the broader public international

field. Most Writings that impinge on the
rt
Sea. Thus in the unlikely event of a Jamaican Cou
law issues pertaining to the Law of the

s “learned legal writings” in the field, it would be

feeling the need to seek the aid of indigenou

it appears that its roles as a legal source has so far

accordingly constrained. As regards custom,

been at most, negligible.

26
2. Literary Sources

law reports. Treatises are considered

The primary literary sources encompass legislation and

sents the greater part of published

as secondary source material. “In Jamaica, legislation repre

27
legal material followed by law reports and treaties.”

isions are not included in the

As noted above, applicable Imperial U.K. Statutory prov

s creates problems in locating

official published volumes of statute law in Jamaica. This at time

form might render it

the law especially in the maritime field. The problem in its most acute

necessary to carry out searches in English archives.

as these pertain to Jamaica.

Problems may also arise in respect of international law sources

Where the law is to be found.

tion, The Caribbean Law
27 Lawrence, Yvonne T: The Literature of the Law: Statutes and Subsidiary Legisla
Librarian, Vol,. 2 No. 2, July 1985, p. 23.

36
 Here, Carneigie laments that “. . .not even Jamaica has an official and comprehensive

serial publication of the treaties entered into by the state. ..“

Although this is so, information regarding Jamaica’s treaty undertakings can (albeit,
at times

bodies
belatedly) be obtained from the relevant Government Authorities and international

concerned. Undoubtedly however, such an official publication is needed.

there are
As regards Law Reports, reliance is mainly placed on English Reports. However,

Court and
Jamaican and West Indian Law Reports. Also unreported judgments of the Supreme

decided maritime
Court of Appeal are available. In keeping with the small number of locally

court cases, relatively few of them are to be found in these Reports.

29 pertaining to the field of

Also as noted above, there is a paucity of research work

simple
maritime law. These deficiencies as regards our literary sources raise more than

problems of information documentation, accessibility and retrieval. They ultimately affect a

maritime claimant in his quest to enforce his claim in Jamaica.

These deficiencies also ultimately make a mockery of the maxim: Ignorantia jurus non

excusat. It is also clear that not only is the claimant fettered but so too are those concerned with

advocating or adjudicating his claim.

28 Carneige, A. Ralph: The Law of the Sea in the Commonwealth Caribbean: The Domestic Law Context: A
new Law of the Sea for the Caribbean, Gold, Edgar (Ed.) Springer Verlag, New York, 1988; See also:
-

Buergenthal, Thomas; Maier, Harold G: Public International Law in a Nutshell, West PubI., 1985, p. 235
for a comprehensive list of international law literary sources and F.N. 50 and quotation referred to.
This also reflects a broader problem. As Fenty observes: “Publishing as an industry inthe Commonwealth
Caribbean is not a vibrant enterprise. This can be attributed to several factors including the lack of organised
publishing houses especially in the area of law. Other reasons are an apparent lack of interest in writing by
both the academic and practitioners in their areas of expertise, and the absence of a large market for sales in
the region.”; Fenty, Leslie P.; The Literature of the Law: Law Reports and Treatises, The Caribbean
Librarian, Vol, 2, No. 2, July 1985, 30 at p. 32.

37
 C: Jamaica’s Court System
30

The hierarchy of the Jamaican Courts are in descending order: The Court of Appeal, the

Supreme Court (so called, but which is not supreme), the Resident Magistrates Court and the

Petty Sessions Court. There are also speciaiised courts: the Revenue Court, the Family Court,

the Traffic Court and the Coroners Court, the Gun Court and the Juvenile Court.

The Jamaican Constitution 31 provides for appeals to be made from the Court of Appeal to

the Judicial Committee of the Privy Council in England. This conduit, in part serves to

perpetuate the umbilical nexus between Jamaican and English Law and legal systems.

In reality therefore, at present the apex of the Jamaican Court System is in England.

However, it appears plans are afoot to set up a Caribben Court of Appeal and abolish local

appeals to the English Privy Council. 32

30 See infra, diagram of the Jamaica Court System: Fig. 2.1.

31 rer section 110
32 See eg: The Weekly Gleaner, Tuesday, July 18, 1989, p. 15.

38
 THE JAMAICAN COURT SYSTEM
JUDICIAL COMMITTEE
OF PRIVY COUNCIL
II
I (U1) I
COURT OF APPEAL
RDI[NUE
COURT
GUN
COURT
LzI[I1T FAMIL’r’ CORONERS TRAFFIC JUVENILE
CJRT COURT COURT
WISTRAT
oors COURT
I PETTY
I SESSIONS
LRTS
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

34 Decisions of other present West Indian Courts of Appeal

but of high persuasive authority.

are regarded as persuasive only.

35

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 introduction to Law, 3rd Edn., Wiedenfield and Nicolson, London, 1988, at pp. 182 183;
-

Stott, Vanessa: English Legal System, Anderson Keenan Publishing, London, 1981, Chapter 3.
Burgess, A.D. : Judicial Precedent in the West Indies, W.I:L:J:, May, 1978, p. 27 at p. 29.
Ibid.
Ibid, p. 33.
Ibid, p. 35.

40
 It is submitted that more attention needs to be paid to such decisions and underlying

jurisprudence, in the shaping of Jamaican jurisprudence.

38<
As Burgess notes “. . .those decisions may on occasions provide more guidance for the

development of law than the English equivalents.” 39

E: Maritime Claims Adjudication

(1) General

Most maritime disputes are settled in Jamaica without resort to legal proceedings. Overall,

40
the amount of maritime claims adjudicated are relatively few.

(2) Adjudication by the Courts

Generally, maritime claims are dealt with by the Admiralty Division of the Supreme Court.

However, occasionally particular maritime related claims are filed and heard in the “Common

41 may also be heard

Law “division of that court. Maritime related claims of limited amounts

in the Resident Magistrates Court.

42 in the Admiralty Division of the Supreme Court only a

Of the small number of cases filed

miniscule amount 43 ever reach the stage of final judgment. Understandably, there is no special

mid., p. 35
40 F.N.42 & F.N.43
Vide:
41 Generally up to J.$1O,000: The Judicature (Resident Magistrates) (Amendment) Act, 1987.
Normally not exceeding 20 cases annually on average (This estimate is based on inspection of the Supreme
Court Records by the writer.).
No more than two cases on average.

41
court dealing exclusively with Admiralty matters as such a court would be in practice very much

underemployed.

However, in principle such a specialized court would be desirable. As is noted in Guidelines

for Maritime Legislation: 44 There are a number of reasons which favour the establishment of

specialized courts for the adjudication of maritime disputes such as the specialized character of

maritime law, its international nature, the frequent involvement of technical problems and the

need for quick disposal of maritime disputes. The negative aspect may be the greater cost of

administration of justice, but this disadvantage is outweighed by the advantages previously

mentioned.’ 5

46 should be
In Jamaica’s particular situation, it seems to the writer that a commercial court

set up, and included among its purview should be admiralty matters. Such a Court dealing with a

wide range of commercial matters would certainly have more than enough to deal with while

benefiting from specialisation. Importantly, it would facilitate greater efficacy and efficiency in

dealing with particular features and requirements of maritime related and commercial matters in

general. Specialist judicial expertise could be better harnessed and honed. Jamalca’s Revenue

Court dealing with taxation matters has already manifested the benefits of such specialisation.

However, such a Commercial court would be most effective if certain other changes are

Guide-lines for Maritime Legislation, 2nd Edn. U.N., ST/ESCAP/380.

Ibid., pop 250 251.
-

See: Scrutton on Charter parties, 18th edn. Sweet & Maxwell, 1974, section 23, on the Commercial Court
(of England).

42
implemented.

At present, Appeal Court and Supreme Court Judges become such by progressing through

the ranks of the Judicial Department of the Civil Service.

Typically, most of their initial experience and grooming is in the criminal law sphere.

Whereas this has potentially unsatisfactory consequences for the administration of justice in the

civil law area in general, such potential consequences appear to loom larger in Admiralty

matters. This is so because of the lack of opportunity in practice to delve in such matters.

Moreover, the judge(s) concerned might have had limited academic 7 exposure as well to this

area of the law which in many respects is quite different from other areas of the civil law.

It is submitted that this is so despite the acknowledged very high standards maintained by

the Jamaican Judiciary in general. Hence, it is clear that for development of the process of

maritime adjudication, far reaching changes may be needed not only in terms of restructuring the

Supreme Court and setting up a new specialised court, but also as regards the preparation and

staffing of such a court’s complement.

3. Maritime Arbitration

This takes place rather infrequently, and usually involves the relatively smaller claims. There

are no specially designated Rules for Maritime Arbitration. Like other private Arbitration in

or instance, in the law faculty of the regional university, The University of the West Indies, Admiralty Law
15not part of the curriculum.

43
Jamaica, it is governed by the Arbitration Act, 1900.

Typically, the relevant Arbitration clause stipulates London or some other International

Commercial Arbitration centre as the venue for arbitration hearings. However, where the scale,

cost-benefit analysis or other special circumstances of the claim concerned would render it

inadvisable to deal with the matter outside Jamaica, then resort will normally be had to maritime

arbitration locally.

Overall in Jamaica, it appears there is not sufficient sensitivity to the benefits of arbitration.

This also contributes to the lack of use of this method of maritime adjudication.

F: Jamaica anti International Law

1. General

Jamaica is party to a number of international maritime and other conventions. Appendix 4

provides a list of the conventions to which Jamaica is a party. In the umbrella maritime sphere

of the Law of the Sea, Jamaica it has had a particularly high profile contributing significantly to

the new Montigo Bay 48 Law of the Sea Convention.

Jamaica was chosen as the seat of the proposed International Seabed Authority. Thus article

156 (4) of the new (3rd) United Nations Convention of the Law of the Sea (U.N.C.L.O.S.)

states that: “the seat of the Authority shall be Jamaica”.

TheConvenon Was signed in Mondgo Bay, Jamaica on December 10, 1982.

44
 In general, it seems that Jamaica’s level of successful activity in this broader area of the

a
public international maritime law-making process, has generally not been matched by

commensurate level of effort as regards (1) timely updating or enactment of domestic maritime

party to
rules as required or contemplated by undertaken treaty obligations, or (2) becoming

narrower focused related maritime conventions dealing with, for instance, civil liability and

procedural issues. The particular area of focus of this thesis it appears, is very much a victim of

this incongruity.

2. International Law and its applicability in Jamaican Municipal Law

(a) Customary International Law

The applicable principle is enunciated in R,v, Director of Public Prosecutions and another ex

pane Dafney Schwartz (1976), 15 J.L.R. 33

There, Melville, J. stated that: “Customary rules of international law are deemed to be part

of our municipal law, subject, of course to two important qualifications. Lord Atkoin stated it

thus in Chung Chi Cheuy v. R (1939) A.C. atp. 168:

“The courts acknowledge the existence of a body of rules which nations accept among

themselves. On any judicial issue they seek to ascertain what the relevant rule is, and

having found it, they will treat it as incorporated into the domestic law, so far as it is not

inconsistent with rules enacted by statutes, or finally declared by their tribunals’...”

45
 Importantly, the Jamaican Court will have to be convinced that what is asserted to be

customary international law is in fact so.

In paying cognizance to this requirement, Melville, J. adopted the statement of Lord

McMillan when the latter stated:

“Now it is a recognised prerequisite of the adoption in our municipal law of a doctrine of

public international law that it shall have attained the position of general acceptance by

civilized nations as a rule of international conduct, evidenced by international treaties and

conventions, authoritative text books, practice and judicial decisions. It is manifestly of

the highest importance that the courts of this country before they give the force of law

within this realm to any doctrine of international law should be satisfied that it has the

hallmarks of general assent and reciprocity.” 50

(b) Treaties

A treaty does not become a part of Jamaican law unless it is specifically incorporated as

such by a legislative measure, an enabling Act of Parliament. 51

Ibid., p. 35
50 Compania
Naviera Vascongado v. SS Christina (1938) A.C., 497
See:Barnett, Lloyd G. : The Constitutional Law of Jamaica, Oxford University Press, 1977, at p. 287; Ott,
David H.: Public International Law in the modeern world, Pitman, London, 1987, at pp 38 39; Brownlie,
-

Ian: Principles of Public International Law, 3rd. Edn., Clarendon Press, Oxford, at pp. 49 50; Wallace,
-

Rebecca, M.M.: International Law, A Student Introduction, London, Sweet & Maxwell, 1986, at p. 38.

46
 Jamaica’s approach is in keeping with the statement of the Judicial Committee of the Privy

v. Attorney
Council in England in the appeal case from Canada: Attorney-General for Canada

Generalfor Ontario, 1937, A.C. 326:

“Within the British Empire there is a well established rule that the making of a treaty is an

executive act, while the performance of its obligations, if they entail alteration of the

existing domestic law, requires legislative action. Unlike some countries, the stipulations

of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the

force of law.”

3. Succession to pre-independence Treaties by Jamaica.

In Jhirad v. Ferrandina (1937) 355 F. Supp. 1155, it was stated that:

“As with much of International Law, the question of treaty succession is muddled. Yet it

seems generally agreed that some rights and duties do devolve upon the new country,

particularly those rights and duties locally connected to the area gaining independence.

Particularly in reference to emerging nations the weight of authority supports the view

that new nations inherit the treaty obligation of the former colonies.”

This American case thus applied the principle of continuity. However, shortly after, by

1974, in the discussions of the International Law Commission (I.L.C.) it became clear that in

fact the majority view favoured the “clean slate” approach leaving the successor with a free

Choice: Draft Articles, Y.BJ.L.C., 1974, Vol. 2, pp 222, 214, 23i5, Articles. 15, 16, 23.

47
 Thus in their commentary on Article 15, the I.L.C. stated that:

“The majority of writers take the view supported by State practice, that a newly

independent State begins its life with a clean slate, except in regard to ‘local’ or ‘real

obligations. The clean slate is generally recognized to be the ‘traditional’ view on the

matter. It has been applied to earlier cases of newly independent States emerging either

from former colonies. .or from a process of secession or dismemberment.”

.

However, in the case R. v. Director of Public Prosecutions and Another, ex parte Dafney

Schwartz, 52 the Full Court of the Jamaican Supreme Court, after considering the relevant

ILC statements, held that: “It is . . . a moot point as to whether the clean slate theory has

hardened into a ‘customary rule’ of international law. If it has not, then it ought not to be

adopted in our law.” 53

The matter of Jamaica’s succession to pre-independence treaties was dealt with in the

Exchange of Letters between the newly independent state of Jamaica and the United Kingdom:

(The Jamaica Gazette, April25, 1963).

Overall, the position appears to be that Jamaica succeeded at independence to the pre

independence treaties entered into on behalf of pre-independent Jamaica by the United

Kingdom, subject to its right to denounce or otherwise take such actions in respect of such

52
Op.cit.
53.
iutd., per Melville, J. at p. 35.

48
 te.
treaties as it may deem appropria

law
entions have found their way into Jamaican
Also, provisions of international conv

the case of
these conventions. This happens where, as in
without Jamaica becoming a party to

the Arrest of
the Unification of Certain Rules Relating to
the International Convention For

at the
dom becomes a party to a Convention without
Seagoing Ships, 1952, the United King

the then colony of Jamaica a party as well.

time of so doing or subsequently making

5 provisions of
ant enabling legislation
Subsequently the U.K. would enact concomit

ming a party to the

which are later extended to or adopted in Jamaica without Jamaica beco

Convention.

Administration of Justice Act,

In the case of the 1952 Arrest Convention, the enabling legislation was The
1956 (U.K.)
t, Courtenay FR.: The
Per Order in Council No. 631 of 1962. (re F.N.48) and see Hyman, Hugh; Barnet Sea Convention, and
Jamaican Admiralty Jurisdiction: With References to Territorially and the new Law
of the
views on maritime developments in Jamaica, W.I.L. J., Vol 8, No. 2, Octobe r 1984, 175 at pp. 180 181.
-

49
 G. Concluding Remarks

and Legal
It has been shown that there are some deficiencies in respect of Jamaican Law

e consequences
System, especially in the Maritime Law sphere, which have potentially advers

for a maritime claimant.

Some of these deficiencies are legacies of a recent colonial past. Others reflect a lack of

adequate material means to address certain problems.

Still others yet result from a basic lack of attention or sensitivity to the requirements of the

maritime law area.

The fact that, for instance, Admiralty cases constitute a rather miniscule part of the work of

the Jamaican legal profession (both bench and bar), means that in the profession itself there is

less sensitivity to and advocacy for needed changes as would normally be the case.

Development of Jamaican Maritime jurisprudence is accordingly hampered. There is also the

related problem of lack of expertise, itself related to the perceived need or demand for such

expertise.

Governmental and other authorities concerned with allocating scarce resources between

competing ends may myopically look askance at the maritime law field when choosing priority

areas of focus. However, it appears to the writer that from the standpoint of long term national

50
 nal
development and the potential contribution of legal and related services to the natio
maritime
need for the
fit analysis should readily vindicate the
economy, even a cursory cost-bene
dged
in the system to be built on such as the acknowle
suggested changes. There are strengths

local judiciary and bar.

generally high level of competence of the

claim effectively and efficiently enforced,

However, if a maritime claimant is to have his
d
ed improvements identified ought to be considere
then it is respecifully submitted that the need

.
and hopefully implemented sooner than later

51
 Chapter 3

Jamaican Admiralty Jurisdiction

52
Chapter 3

THE JAMAICAN ADMIRALTY JURISDICTION

A: Introduction

B: Origins and Development

C: Present Scope

D: The International Dimension

F: Concluding Comments

53
 Chapter 3

The Jamaican Ad
1 miralty Jurisdiction

A: Introduction

term
2. In the context of this chapter, the
“Jurisdiction” is a multifaceted legal term

rt has competence.
tially rela tes to the var iou s typ es of subject-matters over which a cou
essen

the entire range

sdiction” is herein used to encompass
The expression “Jamaican Admiralty Juri

reme Court of
s and issues that may be ente rtai ned by the Admiralty Division of the Sup
of claim

Jamaica.

may be
whether his claim is among those which
For, the Maritime claimant, it is crucial

iralty Jurisdiction.
dealt with in the “Admiralty Court” — that is those within The Jamaican Adm

himself turned away from that court on the

This is so, since, he could in a particular case find

c claim
rt in Jamaica” to determine his specifi
basis of that “there was no jurisdiction on the cou

,
1, 3 W.I.R. 515, 516. Most importantly
as happened in the case: De Osca v The Lady D., 196

in England around the end of the thirteenth

century.
1 The term “Admiral” appears to have been first used disci plina ry matt ers. With
their fleets in relation to
Originally the admirals only had jusrisdiction over need for a cour t to adm inist er justice. In
the growth of piracy in the mid fourteenth century there
developed a iral.
piracy or spoil was extended to the Adm
time, jurisdiction to administer such a Court in relation to know n as the
time related issues and became
Later such a jurisdiction grew to encompass other mari
admiralty jurisdiction:’ See generally: Hold swot h, W.S .: A History of English Law, Vol. 1, 544 559; -

Curzon, L. B.: English Legal History, 191 194; Robers,

David N.: The Action in Rem: Is Provincial
rt of
da; Marsden, R.G.: Select Pleas of the Cou
-

Adoption Viable and/or Desirable? (Unpublished) Cana ,

Admu-ality, Vol 1, pp. xiii xiv.-

4th Edn, p. 102; Foukes, David:

2 See: Alcehurst, Michael: A Modern Introduction to International Law, an, Hugh
in the Administrative Law context; Hym
Administrative Law, 6th Edn, 1986, for use of the term s to territorial ity and the New
reference
and Barnett, Courteny;: The Jamaican Admiralty Jurisdiction: With W.I. L.J. Vol. 8, No. 2,
in Jama ica,
Law of the Sea Convention, and views on Maritime Developments
October 1984, 175; and see infra, Chapter 5.

54
onlY a claimant whose claim
is within the Admiralty Jurisdiction can properly institute or have

3 and have it
ing ship
instituted on his behalf civil proceedings directly against an offend

4
arrested.

tion. Its
The Jamaican Admiralty Jurisdiction is derived from imperial U.K. legisla
5

development to date.
present scope can best be appreciated by an examination of its origins and

3
Thatis, “in rem” proceedings, see, infra, chapter 4.
4 See, infra, chapter 4.
5 See: Co1ojal Courts of Admiralty Act, 1890 (U.K.), and infra.
55
 Development
B: Origins and 6

Admiralty Jurisdiction in Jamaica was originally exercised by a Vice-Admiralty Court

7

offshoots” of the then

whose existence in the island date to 16657.8 These courts were natural

High Court of Admiralty of England.

9

The jurisdiction of the Vice-Admiralty courts was much influenced and at times constrained

appeals from
by that exercised by the High Court of Admiralty, which for a long time heard

these courts.’°

p
its
6 To date, there appears to be no published or available account of the historical development in Jamaica of
Admiralty Jurisdiction. In certain studies dealing with the History of the Courts inJamaica (eg. Chambers,
From
Hugh V.T.: Essays on the Jamaican Legal System and.. .A concise History of the Courts in Jamaica
Admiralty Court, yet alone its
1660 to the present time, 1974), no reference is made whatsoever to an
time
jurisdiction. This is paradoxical as in the early days of British Colonialism in Jamaica and for a long
after it appears that the Jamaican Vice-Admiralty Court (see F.N.7) was Jamaica’s most active court or at
accounts and the accompanyin g
least one of its most active and important courts. The dearth of published
paradox is reflected in Craton’s observation that American scholars have in their writing ignored
CaribbeanVice-Admiralty Courts, yet they were “more numerous and far busier than those of the mainland
territories” and “when in fact in the Caribbean Courts Prize Cases seem to have outnumbered all others by
ten to one, and the volume of business in Jamaica alone probably outran that of all the mainland Courts
added together.” .Between 1763 arid 1815, the Jamaican Vice-Admiralty Court handled 3, 700 cases of
“. .

which some 3, 400 were Prize Cases... Craton, Michael: The role of Caribbean Vice Admiralty Courts in
“:

British Imperialism, Caribbean Studies Vol. 11 July 1971, No. 2, 5.

‘

“Courts having Admiralty jurisdiction in British possessions overseas. They acted under commissions from
the Crown Authorising governors of colonies to exercise such powers as in England appertained to the Lord
High Admiral”: Osborns Concise Law Dictionary, 7th Edn., pp 339 340. -

8 See: Crump, Helen J.: Colonial Admiralty Jurisdiction in the seventh century, Longman, London, 1973 at
1657 and 1660,
p. 101 where she observes that in Jamaica: “There was an admiralty Court working between
but it was not established by the sdmirahy commissioners. ..The court rested simply on the authority of the
governor...”; Also see: Doty, Joseph D: The British Admiralty Board as a factor in Colonial Administrati on
20 where he notes that: “The earliest Vice-Admira
1689-1763, Philidelphia, 1930, p. lty Court in the
dcolonies appears to have been in existance in Jamaica by 1658”
9 See: Roscoe, Edmund: Roscoe’s Admiralty Practice, 5th Edn., 1931, p. 5.
10 Ibid., p. 15., See also Wiswall, jr. Fran: The Development of Admiralty Jurisdiction and Practice since
1800, 1970, p. 98; Note: In 1833 by the Act of 3 & 4 Will 4, C. 41, 5.2 The Judicial Commtte Act
-

(U.K.), appeals from Vice-Admiralty Courts to the High Court of Admiralty was discontinued and
subsequently made to the Judicial Committee of the Privy Council in England. Also see generally:
Hollander, Barnett: Colonial Justice, london, 1961.

56

j
 ls from Colonial Vice
Wiswall notes that the High Court of Admiralty heard “appea

y exercised a wider instance jurisdiction than the

AdmiraltY courts” although “these courts actuall

Admiralty
High Court of 1 2 .”

The English Admiralty Court itself had earlier received Mariti

me Law from other

3
countr ies.’ Thus, as has been noted:

is the result of an
“Maritime law is not the product of a single legal system, instead, it

ng nations since time

evolution of codes, customs, and usages of seafarers and seafari

inimem4
1 orial”

Jurisdiction reached
Accordingly, it may likewise be emphasised that although Admiralty

tional and of great

Jamaica through England, this jurisdiction’s ultimate roots are interna

within the Jamaican

antiquity. Indeed, the present list of enumerated claims specified to be

an International
Admiralty Jurisdiction has its more immediate genesis in the provisions of

Maritime Con
1 5
vent ion.

history of the
For the present purposes, it is however only necessary to consider briefly the

alty
English Admiralty Jurisdiction to comprehend the development of Jamaica’s own Admir

Jurisdiction and its present ambit.

11 See: F.N, 10.

12 Op.cit., p. 98.
13 See generally, Roscoe, op.cit., chap. 1., Marsden, R.G., Vol. 1, Gold, Edgar: Maxitime Transport, 1981;
Schoenbaum, Thomas 3.: Admiralty and Maritime Law, 1987, p. 1 e. seq.
14 Intemtionaj Maritime Law Principles (ICOD) Maritime Law Course, World Maritime University May 23 -

27, 1988, Malmö, Sweden, p. 15.

15 The International Convention for the Unilicationof Certain Rules Relating to the Arrest of Seagoing Ships,
1952, and see infra, part D of this Chapter.

57
 The earliest distinct reference to a Court of Admiralty in England appears to be in 1357.16

The earliest statute relating to the English High Court of Admiralty Jurisdiction entitled “An Act

0
n cemng what things the Admiral and his deputy shall meddle” was enacted in 1389.17

From the early part of the fifteenth century there was one Lord Admiral and one High Court

of Admiralty in lieu of the several courts which previously existed. Since then the English Court

of Admiralty had been under two main divisions of Ordinary and Prize Jurisdiction.
18

) Jurisdiction comprised three categories: (1) Civil

This Ordinary (or “Instance
19

Jurisdiction, (2) Criminal Jurisdiction and (3) Admiralty Droits.

°
2

In the Civil Jurisdiction, the law administered was English Maritime Law, which is basically

the law administered today except that it has lost much of its former international character and

has generally otherwise undergone much development.

As regards the criminal jurisdiction, until 1536, the Court of Admiralty had an exclusive

22 this
21 By a number of enactments
jurisdiction over crimes committed on the High Seas.

jurisdiction was transferred from the ambit of the Ordinary Jurisdiction or otherwise whittled

away.

l6See Marsden, R. G., op. cit., vol. 1, XXXV, XXXVI; Holdsworth, W.S. op. cit., p. 545. Fitzgerald,
Richard: Admiralty and Prize Jurisdiction in the British Commonwealth of Nations, 1948,60 Juridical
Review, 106.
17 See Roscoe, op. cit. p. 5.
18 See Fitzgerald, op.cit.,
p. 106.
19 Roscoe, op. cit. notes at 3, that ‘the word “Instance” seems to be used to describe a civil court one of
p.
Suits and processes as distinguished from a Prize Court which is not in fact one in which ordinary litigation
takes place.”
20 See, infra and Wiswall, op. cit., 8 and Fitzgeral, op.cit., p. 107.
p.
21 Fitzgeral op. cit., 108.
p.
22 Eg. 28 Henry VIII, C. 15; 39 Geo III, C. 37; 4 & 5 William IV, C. 36.

58
 23 These
the shore.
Admiralty Droits were rights to property found at sea or stranded upon

abolished) under direct Governmental

have been put (in so far as they have not been

Administraflve Contro
24 l.

governmental
“Prize’ is property of a belligerent captured at sea by a vessel acting under

Admiralty Court giving it

authority. Thus, in times of war a special commission is issued to the

n the captured property as

jurisdiction to adjudicate upon captures made at sea and to condem

prize if lawfully subject to that sentence.

nt until
Accordingly, in more recent times, the Prize jurisdiction normally lies dorma

tion was in
ressurected and invoked by the dictates of war. It appears the last such invoca

respect of the second World War.

25

ncy from around

The High Court of Admiralty itself underwent a prolonged period of dorma

the mid seventeenth century when it operated with a contracted jurisdiction to around the mid

26. Then it was resuscitated and its civil jurisdiction enlarged by a number of
nineteenth century

27
enactm ents.

For the dormant period prior to the revival, that is going as far back as around the mid

matters
seventeenth centwy, the court’s civil jurisdiction was limited to the following 28
:

23 Winswall, op. cit., p. 8; Fitzgerald, op. cit., p. 111.

24 Vestiges of these are contained i the Merchant Shipping Act, 1894 (U.K.), Sections 510 529.
-

25 See Fitzgeral, op. cit., p. 111.

26 See generally, Wiswall , Roscoe op. cit., Marsden, R.G., op. cit., Fitzgerald, op.cit.
27 in particular: The Admiralty Court Act, 1840 (U.K.) 3 & 4 Vict. C. 65; The Admiralty Court Act, 1861,24
Vict. c.10.
28 See eg. Burcher Charles: Admiralty Law in Canada, p. 1.

59
 1. collision on the high seas;

2. towage on the high seas;

3. possession of but not title to ships;

4. bottomry and respondentia;

contract existed;
5. claims for seamen’s wages where no special

6. salvage services on the high seas; and

7. goods of pirates and goods practically taken.

that Jamaica was colonized by

Here, it may be borne in mind that is was during this period

England and English law was received in the Island.

in its own right until November

The High Court of Admiralty continued as a separate court

e Court of Judicature
1, 1875. Then, by the operation of two Acts of Parliament: The Suprem

Act, 1874 (U.K.) it

Act, 1873 (U.K.) and The Supreme Court of Judicature Commencement

uted as one
along with other superior Courts in England were consolidated together and constit

ns having
Supreme Court of Judicature in England. This Court was divided into two divisio

respectively original and appellate jurisdiction.

exercised
The original jurisdiction included all the jurisdiction vested in or capable of being

either by the the High Court of Admiralty as well as that of the other courts with which it was

consolidated

60
 as
High Court of Justice with original jurisdiction
Thus was constituted in England, the

a matter of
of Appeal. The High Court of Justice was as
aforementioned and The Court

divided into five divis ions one of which was called the
adminiStrat1 convenience further

sion.
probate, Divorce and Admiralty Divi

been no separate court system administering

The net result is that from then there has

as a matter of
time law in Engl and. The Engl ish “Admiralty Court” exists today solely
mari
ed
t of the maritime cases and applying the specializ
administrative convenience handling mos

ns.
procedural rules relating to Admiralty actio

subsequent enactments by which it has been

The Judicature Act of 1873 (U.K.) and
1925
Court of Judicature (Consolidation) Act,
amended were consolidated in The Supreme

(U.K.).

rt if Justice has since been extended

The Admiralty Jurisdiction of the High Cou

, The Administration of Justice Act, 1956

significantly, by various enactments, in particular

e effect to the provisions of The

(U.K.). This Act was, inter alia passed to give legislativ

ain Rules relating to the Arrest of Seagoing

International Convention for the Unification of Cert

ication of Certain Rules Concerning

Ships, 1952 arid The International Convention for the Unif

United Kingdom had become a

Civil Jurisdiction in matters of Collision, 1952, to which the

Party.

d in Jamaica consequent upon the

Admiralty Jurisdiction may be said to have been introduce

appointment of the fst English Governor in Jamaica.

61

H
 ny to
Eng lish pra ctic e upo n the app ointment of a Governor to a new colo
It was the then

him ex officio Vice-Admiral of the colony. Such a

;ue to him a commission making
nsive list
in the Governor himself over an exte
rnlnuSSlOfl would vest the Admiralty jurisdiction

C causes.
rt of Nova
been stat ed by Dr. Cro ke, lear ned judge of the Vice-Admiralty Cou
Thus it has

Canada in: The Hir am, 181 3, Ste wart’s Nova Scotia Rep. 92, that:
cotia,
est the
govern ments, it was thought proper to inv
“Upon the establishment of colonial
er
maritime powers..
.“
[that is as were conferred upon form
governors with the same civil and
Lord High Admiral, or the
Vice-Admirals of England] “. . . and therefore it became usual for the

.”
mission of Vice-Admiralty to them
Lord Commissioners, to grant a com
tment of the first
precursor to Jam aica ’s Adm iralty Jurisdiction was thus the appoin
The vital
sion which, inter
to the then new colo ny of Jam aica in February 1661 by a Commis
Governor
be
ttle suc h Jud icatorie s for Civ il affares and for the Admiraltes as may
alia, directed him to “se
righ t and controversy
nd and.. .determine all matters of
proper to keep the peace of the Isla

9
Equit
according to Justice and 2 y.”

tly only temporary

ompanying directives were apparen
Although this appointment and acc
erected
30 eles s by virtue of thes e dire ctiv es to the Governor, “Courts were
measures, neverth

ernor and Co
3 1
unc il.”
and various Orders made by the Gov

29 See Morrison, op. cit., p. 43.

30 Ibid. inions of eminent lawyers on
. 6, citing: Chalmers, G. (Ed.): “Op
31 See Morrison, op.cit., p. 50, and his F.N , fisheries and commerce of Great
ce, chiefly concerning the colonies
various points of English jurispruden
62
 e records date to
s est ab lis he d wa s a Vice-Admiralty Courts whos
Among the early court
sa
to this fir st pro pe rly established Court, there wa
appears that prior
1662.32 However it
isdiction
do ub tfu l leg al 3
au 3
thor ity. In practice, the jur
existance wi th
Vice -AC11aitY Court in
d rather flexible.
Jam aic a as els ew he re was often ambiguous an
courts in
exercised by these
urt of
ce ed ed tha t ex erc ise d by the English High Co
d, this jurisdiction ex
As already intimate
adopted by
ref lec ted in the ac tua l practices and procedures
situation was
Admiralty itself. This

the court.
part of the English Ad
miralty
s ac qu ies ce nc e on the
extent there wa
It appears that to some
t: The
Le Lo uis Fo res t 2 Do dson, 239, it was held tha
us, in the case
Court in all of this. Th
practice of the
k with ten de rne ss on the informalities in the
will loo
High Court of Admiralty

tur
Vice-Admiralty Co tts.
from its
Vice -A dm ira lty Co urt in Jamaica as it stood
ion of the
Nevertheless, the jurisdict
linea ted.
to the mid nin ete en th ce ntury may be roughly de
n
inceptio on
35 vations:
ret ch ap pears to ac co rd with Ubblehode obser
Its sk
local level they
Co urts op era ted on thr ee distinct levels. On the
“The colonial Vice-Admiralty
n. Late in the
of merchants and seame
. . .

ree me nts an d pro ble ms

heard and detemiined disag
: enforcement of
Br iti sh Cr ow n ha d ad ded a second jurisdiction
Seventeenth Century the

Britain”; Vol 1, London 1814, page

207.
32 See RN. 8. s of Vice-Admiralty
bki c Re cor ds Of fic e, London, England, report
The writer has found in the records of
The Pu
es m Jam aic a dat ing to 166 2; Also, see Craton, op. cit. , 1987.
cas fro Devil and the Deep Blue Sea
See generally: Rediker, Marcus: Between the ution, 1960.
ble iojje, rl: Th e Vic e Ad mi ral ty Co urts and the American Revol
35 Ub Ca -

63
 chosen as tribunals
1696 the colonial Vice-Admiralty Courts were
imperial control of trade. In
tion
uting offenders aga inst the trade and navigation statutes. And the court’s jurisdic
for prosec

with authority to
internation al in time s of war, when the crown created them prize courts
beca me

6
3sels
ves .’
condemn captured enemy cargoes and
3 the
the passage of the Imp eria l Vice -Adm iralty Court Acts of 1863 and 1867,
With

English colonies, including that of

jurisdiction of the Vice-Admiralty Courts, then existing in the

Jamaica was clarified and extended.

y
held by the Judicial Committee of the Priv
Prior to the passage of the 1863 Act., it was
Hong
al from the then Vice-Admiralty Court at
Council in England in 1859, in a case on appe
iralty
at 160 that the Jurisdiction of Vice-Adm
Kong, The Australia (1859), 13 Moo. P.C. 132
of
continued to that of the Eng lish high Court of Admiralty before the enactment
Cop urts was

The Admiralty Court Act, Act 1840 (U.K.)

case hearing an appeal from Canada: The

However, as is noted in another Privy Council

Wor on, (1927) 17 Asp. M.L . 322 “The Vice-Admiralty Courts Acts of 1863
Yuri Maru, The

rseas, not by reference to the powers of

and 1867 extended the powers of Admiralty Courts ove

of the causes of action in respect of

the High Court in England, but by scheduled statement

other amendments.” 38
which jurisdiction was newly conferred and specification of

36 Ibid., p. 12.
iralty Courts Act Amendment Act, 1867,
37 Vice Admiralty Courts Act, 1863, 26 Vict., Cap. 24; Vice Adm
-
-

30 & 31 Vict., Cap. 45.

38 Ibid., p. 325.

64
 ction of the
Section 10 of the Vice-Adiniralty Courts Act, 1863 defmed the civil jurisdi

Vice-AdmaltY Courts.

It provided as follows:

ction are as
‘The matters in respect of which the Vice-Admiralty Courts shall have jurisdi

follows:

(1) Claims for seamen’s wages

(2) Claims for Master’s wages, and for his disbursements on account of ship

(3) Claims in respect of pilotage

(4) Claims in respect of salvage of any ship or of life or goods therefrom

(5) Claims in respect of tonnage

(6) Claims for damage done by any ship

(7) Claims in respect of bottomry or respondentia bonds

(8) Claims in respect of any mortgage where the ship has been sold by a decree of the Vice-

Admiralty Court, and the proceeds are under its control

(9) Claims between the owners of any ship registered in the possession in which the Court

is established touching the ownership, possession, employment, or earnings of such

ship

(10) Claims for necessaries supplied in which the Court is established, to any ship of which

no owner or part owner is domiciled within the possession at the time of the necessaries

being supplied

65
 British possession
ims in res pect of the buildin g, equipping, or repairing within any
(11) Cla
n at the
whi ch no ow ner or par t own er is domiciled within the possessio
of any ship of

time of the work being done.”

ious
tur e (sup rem e Cou rt) Act was passed in Jamaica. By this Act var
In 1880, the Judica
e
Jam aica exe rcis ing jurisdic tion over different subject-matters wer
superior Courts in

of Jamaica.”
together and constituted into “the Supreme Court of Judicature
consolidated

Section 4 of the Act provides:

tioned,
ncement of this Act , the sev eral Courts of this Island hereinafter men
“On the comme

that is to say —

The Supreme Court of Judicature,

The High court of Chancery,

The Encumbered Estates’ Court

al Causes,
The Court for Divorce and Matrimoni

The Chief Court of Bankruptcy, and

The Circuit Courts,

icature.
constitute one Supreme Court of Jud
. .“

Shall be consolidated together, and shall

this new
clmiraf ty Cou rt was ther eby om itte d from the list of courts constituting
The Vice-A
the analogous
ission is not readily apparent. In
Supreme Court. The logic (if any) behind this om
m’s
, 1873 (U.K.), the United Kingdo
U.K. enactment, The Supreme Court of Judicature Act

66
 consolidation of the Superior
Cou rt of Adm iralty was as shown above, included in the
High

Courts of England.
Court an
effec t of this omis sion was more than to render the then Vice-Admiralty
The
the most culpable
as regards the new cour t schema. The omission, it seems, constitutes
outcast
shown, the
s situation today, where as will be shortly
precursor to the existing anamolou
out of
nt Supreme Court resides on a footing quite
Admiralty Jurisdiction of the prese

jurisdiction.
consonance with the rest of the Court’s
this
Admiralty Act, 1890, (U.K.) was enacted. By
A decade later, the Colonial Courts of
ished
Jamaican Supr eme Cou rt was mad e a “Colonial Court of Admiralty.” The Act abol
Act the

rt.
the then existing Jamaican Vice-Admiralty Cou

Supreme Court qua a colonial Court of

As regards the jurisdiction to be exercised by the

Admiralty, Section 2(2) of the Act provides that:

shall, subject to the provisions of this

“The jurisdiction of a Colonial Court of Admiralty

Admiralty jurisdiction of the

Act, be over the like place, persons, matters and things, as the

te or otherwise, and the Colonial

High Court in England, whether existing by virtue of any statu

and to as full an extent as the

Court of Admiralty may exercise such jurisdiction in like manner

international law and the

High Court in England, and shall have the same regard as that Court to

COfliity of nations”.

67
 this provision
n that was prompted by this provision was whether by virtue of
One questio
Kingdom. Thus, for
Admiralty Jurisdiction was coe xtensive with that of the United
the local
iction by
n aro se as to whether enlargement of the U.K. Admiralty Jurisd
instance, the questio
e certain claims
Court of Judica tur e (Conso lidation) Act, 1925 (U.K.) to includ
The Supreme

tion so as to include those clai

ms.
also enlarged the local jurisdic
in 1961, had
in De Os ca v The Lad y D, whe re the Jamaican Supreme Court
The issue arose
rtga ge of a ship.
iction to determine a claim in respect of the mo
to decide whether it had jurisd
y Council in the Yuri
Cou rt in arri vin g at its dec isio n adopted the holding of the Priv
The
0, (U.K.),
n in reference to The Co lon ial Courts of Admiralty Act, 189
Maru, The Woron, whe
to have been to
the who le, the true inte nt of the Act appears to their Lordships
it was held: “On
thereunder, the
a maximum of jurisd icti onal authority for the courts to be set up
define as
e when the Act
rt in England as it existed at the tim
admiralty jurisdiction of the High Cou

passed.” 9

m in respect of a mortgage of a ship was not within

The Jamaican Court found that the clai
sed and that further
rt at the time the 1890 Act was pas
the jurisdiction of the English High Cou
5 in England
h the holdin g in The Yur i Maru, The Woron, that “the Act of 192
in accordance wit

apply to the Admiralty Court in

giving power to hear mortgage actions does not

Jamaica “40

39 Ibid.
40 op. cit., p. 518.
68
 iralty in Jamaica was
“the jurisdiction of a court of Adm
The Court therefore held that
it conferred on the court in
by the Co lon ial Co urts of Admiralty Act, 1890, that
established
there
ilar to that pos sess ed by the Supreme Court in England, and that
janaica jurisdiction sim
mortgage of a
on on the cou rt in Jam aica to determine a claim in respect of the
was not jurisdicti

1
4ip.
sh ”
er maritime
ards the com pete nce of a Cou rt to hear ship mortgage and oth
The position as reg
n Admiralty Jurisdiction by the
h the enlargement of the Jamaica
claims has since changed wit
nt to
Jurisd icti on (Ja ma ica ) Or der in Council, 1962, (U.K.) pursua
passage of the Admiralty

n of Justice Act, 1956 (U.K.)

Section 56 of the Administratio

C: Present Scope:

Cou ncil pro vid es that “Th e Co lonial Courts of Admiralty Act,
Section 2 of the Order in
erence in
to the Sup rem e Cou rt of Jam aica, have effect as if for the ref
1890, shall in relation
the Admiralty
of Sec tion Tw o thereof ther e were substituted a reference to
subsection (2)
of Justice Act,
tion of that cou rt as def med by Section One of the Administration
juri sdic
One.”
ain spe cified “ad apta tion s and modifications of the said Section
1956...” subject to cert
ur, Six, Seven
the ord er pro vid es that “T he provisions of Sections Three, Fo
Section 3 of
a with
Justice Act, 1956, shall extend to Jamaic
and Eight of Part 1 of the Administration of

tions.”
certain specified ‘adaptations and modifica

41 Seethid.,p 516

69
 at present the
ordingly, the Adm iral ty Juri sdic tion of the Supreme Court encompasses
Acc

following questions or claims:

share
clai m to the possession or ownership of a ship or to the ownership of any
(a) any

therein;
employment or
co-owners of a ship as to possession,
(b) any question arising between the

earnings of that ship;

any claim in resp ect of a mo rtga ge of or charge on a ship or any share therein;
(c)

;
(d) any claim for damage done by a ship

a ship;
(e) any claim for damage received by
in a
m for loss of life or per son al inju ry sustained in consequence of any defect
(t) any clai
of the
of the wrongful act, neglect or default
ship or in her apparel or equipment, or
or
ion or control of a ship or of the master
owners, charterers or persons in possess
s the
whose wrongful acts, neglects or default
crew thereof or of any other person for
, being
ers, charterers or per sons in pos sess ion or control of a ship are responsible
own
,
neg lect or def ault in the nav igation or management of the ship, in the loading
an act,
carriage
or from the ship or in the embarkation,
carriage or discharge of goods on, in

the ship;
or disembarkation of person on, in or from

ds carried in a ship;
(g) any claim for loss of or damage to goo
or to
ting to the carriage of goods in a ship
(h) any claim arising out of any agreement rela

the use or hire of a ship;

70
I (j) any claim in the nature of salvage (including
any claim arising by virtue of the

the Civil Aviation Act, 1949, of the law

application, by or under section fifty-one of

rel and cargo);

relating to salvage to aircraft and their appa

respect of a ship or an aircraft;

(k) any claim in the nature of towage in

of a ship or an aircraft;
(1) any claim in the nature of pilotage in respect

rials supplied to a ship for her operation or

(m) any claim in respect of goods or mate

maintenance.

repair or equipment of a ship or dock charges

(n) any claim in respect of the construction,

or dues;

of a ship for wages and any claim by or in

(o) any claim by a master or member the crew

a ship for any money or property which,

respect of a master or member of the crew of

ping Acts, 1894 to 1954, is

under any of the provisions of the Merchant Ship

ner in which wages may be

recoverable as wages or in the court and in the man

recovered;

in respect of disbursements made on

(p) any claim by a master, shipper, charterer or agent

account of a ship;

a general average act;

(q) any claim arising out of an act which is or is claimed to be

(r) any claim arising out of bottomry;

71
 which are being
(s) any claim for the forfeiture or condemnation of a ship or of goods

for the
or have been carried, or have been attempted to be carried, in a ship, or

Admiralty.
restoration of a ship or any such goods after seizure, or for droits of

Court of
Together with any other jurisdiction which either was vested in the High

e Court of
Admiralty immediately before the date of the commencement of the Suprem

n hundred and
Judicature Act, 1873 (that is to say, the first day of November, eightee

on on or after
seventy five) or is conferred by or under an Act which came into operati

that date on the High Court as being a Court with Admiralty Jurisdiction.”

ragraphs defines the

The latter part of the quoted provision, that is the portion after sub-pa

h Courts had at
Jamaican Admiralty jurisdiction in terms of what jurisdiction particular Englis

exercised by
certain times. In addition, certain qualifications are given to the Jurisdiction to be

reference to particular U.K. legislation.

present
Thus, although the list of claims is quite extensive and would normally cover most

day maritime related claims, where a claim is not enumerated, then in Jamaica, again resort will

ultimately have to be made to “what the law was in England” at a given time.

This circuitous journey to ascertain the law is ipso facto undesirable. It is not in keeping

with Jamaica’s sovereign independent status for a claimant to be compelled by statutory

anachronisms to resort to a foreign legal system to find out whether his particular maritime

72
 alty Jurisdiction.
related claim is within our Admir

well as others involved in the

practically, it creates uncertainty for the maritime claimant as

admini5t1at10n of justice.

ms which arise in relation to

In addition, the observations made earlier about proble

•42 It seems to the writer that this state of affairs ought to

extended legislation are here apposite

is manifestly undesirable that Jamaica’s

be remedied by appropriate local legislation as it

Imperial Legislation. In this respect it

Admiralty Jurisdiction is now only to be found in foreign

ction exercised by the Jamaican

remains an anamolous eye sore within the present overall jurisdi

ry provisions.
Supreme Court, all other of which are founded on local statuto

be said to be
Moreover, the list of maritime claims although quite extensive cannot

ry provisions. The
exhaustive. Thus, in another West Indian jurisdiction, with similar statuto

e (owners,
Barbadian High Court found in Cooper Stevedoring Co Inc v MV Passat Bonair

on the
Master and Crew) 1977 WJ.R., 36 that “As the matter stands the endorsement of claim

do
writ for stevedoring services does not come within any specified head of jurisdiction laid

claim
statute” and that in Barbados “A claim for remuneration for stevedoring is not a
by 43

known to the admiralty jurisdiction.”

Likewise claims for stevedoring services rendered are not within the Jamaican Admiralty

jutisthctjo Also excluded are others which will be considered in the following section.

42 See Chapter 2.
43 Ibid., p. 40.
44 Ibid.,p.4i.

73
 D: The International Dimension

International
The list of claims set out are essentially derived from Article 1(1) of the

1952.
onvention for the Unification of Certain Rules Relating to the Arrest of Ships,

Such claims
The Convention specifies claims in respect of which a vessel may be arrested.

re defined by the Convention as “Maritime Claims”.

Article 1 (1) provides as follows:

“Maritime Claim” means a claim arising out of one or more of the following:

(a) damage caused by any ship either in collision or otherwise;

ing in
(b) loss of life or personal injury caused by any ship either in collision or occurr

connection with the operation of any ship;

(c) salvage;

(d) agreement relating to the use or hire of any ship whether by charterparty or

other’’ise;

(e) agreement relating to the carriage of goods in any ship whether by charterparty or

otherwise;

(0 loss of or damage to goods including baggage carried in any ship;

(g) general average;

74
 (h) bottomry;

(i) towage;

(j) piotage;
aintenance;
r su pp lie d to a sh ip for her operation or m
(k) goods or materials whereve
and dues;
equipm ent of any ship or docks charges
ir of
(1) construction, repa

r, officers, or crew;
(m) wages of Maste
rs or
e by shippers, chartere
ursem en ts, including disbursements mad
(n) Master’s disb

ship or her owner;

agents on behalf of a
ip;
es as to th e tit le to or ownership of any sh
(o) disput
sion
rs of any sh ip as to the ownership, posses
-owne
(p) disputes between co

gs of that ship;
employment or earnin

pothec ation of any ship.”

(q) the mortgage or hy

art in Part 1 of The

be see n th at in its much lengthier counterp
From this list it can
assimilate the
56 (U.K.) ad ap ta tio ns have been made to
Act, 19
Administration of Justice

glish law.
Article 1 (1) provisions into En
in detail thei r respective
te ns iv e and it is not necessary to compare
Both lists are ex
idered.
ion s. ow ev er , on e im po rtant example will be cons
Stipulat H
n or otherwise”,
ag e ca us ed by an y ship either in collisio
For claim (a) in &rjcle 1 (1),
“dam

75
 mage
d to co ve r all th os e situations where da
construed in Englan
w ords “or otherwise” were
te
negligent
w ith ou t ph ys ic al Co ntact, by wash or by a
one ship to another
is caused by
age done by
th e w or ding us ed is “any claim for dam
.),
in the 1956 Act (U.K
manoeuver. Thus

5
ship
a4 .”
976)2
in En gl an d he ld in The Eschersheim (1
Lords
ovision the House of
As regards this pr
the
m us t be th e ac tu al instrument by which
itsel f
that although the ship
Lloyd’s Report 1,
s the damage
ee n th e sh ip an d w hatever object sustain
“physical contact betw
damage was done,

is not essential”.
which
he ld th at w he re an y provision of the Act
me judgment it was
Significantly, in the sa
t may look at
rre st Co nv en tio n, is ambiguous, the Cour
ve effect to The A
appears to intend to gi
prefer
ng is to be 4 7red.
de ci di ng w hi ch m ea ni
to gain assistance in
the Convention in order
portant parts
to th e A rre st Co nv ention. However, im
ca is not a party
As already noted, Jamai
of extended
in to na tio na l la w through the backdoor
und their w ay
of this Convention have fo

described.
Imperial Legislation earlier
resort to
se en w he th er a Ja maican Court would
ains to be
In the circumstances, it rem
ambiguous
ai ca is no t a pa rty upon finding such an
which Ja m
Scrutiny of a Convention to
)
by Th e A dm ira lty Jurisdiction (Jamaica
tended to Jamai ca
provisi on in the list of claims ex

Order in Council, 1962 (U.K.).

45 See claim (d), supra.

46 Per Lord Diplock at p. 8.
47 Thid.

76
 tutory
iple, it wo uld be de sir ab le purely as a matter of sta
writer, that in princ
Jt seems to the
nvention as
urt in an ap pro pri ate ca se to seeks the aid of the Co
a Jamaican Co
construction, for
lations extended
pro vis ion s to int erp ret ambiguous statutory stipu
urce of these
the original so
.
by the Order in Council
into Jamaican Law
ing given to
O an d UN CT AD , ac tiv e consideration is now be
s of IM
Under the joint auspice
the Article 1 (1)
n. On e of the ma in are as targeted for change is
Conven tio
amending the Arrest

ms.
clai8
list of maritime 4
ergovernmental Group of Experts on
(IMO/UNCTAD) Joint Int
As regards this list the
fmding:
s an d Re lat ed Su bje cts has made the following
gage
Maritime Liens and Mort
me claims
inc om ple te, ou tda ted and the description of so
“The list appears to
...
be

ritime nature, such as claims

ex clu de s ce rta in cla im s which are clearly of a ma
unsatisfactory. It
es. It has been
id ins ura nc e pre mium s, and stevedoring charg
for agency fees and for unpa
n-exhaustive, list of
s appro ac h of pro viding as extensive, albeit no
questioned whether thi
er maritime
wh eth er the lis t sh ou ld be extended to cover oth
or
maritime claims is satisfactory,
to allow arrest
me ge ne ral wo rdi ng sh ould be devised in order
claims, alternatively whether so

for all claims relating to the ship.”

ly compreh ensive list of so
ted he re tha t the ap pro ac h of setting out a hopeful
It may be no
ed between English
lec ts att empts to rec on cil e differences which exist
Called “maritime claims” ref
ritime claims raised
ip co uld on ly be arr est ed in respect of particular ma
law under which a sh
Convention
nsi der atio n of the sco pe of the Revision of the International
48 See: (IMO) LEG/MJM 22: Co y, 1952.
Relating to the Arrest of Seagoing
Ships signed at Brussels on 10 Ma
77
 law countries which permit the claimant to arrest any ship in
against it and the law of most civil

49.
regardless of the nature of such claims
resPect of claims against the owner

ms. If the present list is

Both the “extended list” or “general clause” options have their proble

ed, whereas a general clause

extended to include new claims, with time such a list will get outdat

nt countries.
would be more susceptible to varying interpretations by differe

both. By doing so,

It therefore seems to the writer that the best solution might be to combine

ive list of claims

certainty in international approach would be ensured in respect of an extens

e related claims
while allowing to national law a limited degree of flexibility as regards maritim

the interest of
not enumerated in the list. If the limited area of flexibility cannot be agreed then in

certainty, the list method seems best.

° Practically, liens do not come into issue without

A further issue relates to Maritime Liens.
5

claims, but not vice versa. Thus it seems essential that all claims that are granted maritime lien

status under any International Convention should be designated as “Maritime Claims”.

However, some of the claims giving rise to maritime liens under the International

Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages,

Convention.
1926 are not fully covered under the “maritime claims” listed in the Arrest 51

Those claims not fully covered or not covered at all include the following:

(i) Law costs due to the State;

49 Ibid., p. 5.
50
51 International Convention For the Unification of Certain Rules Relating to Maritime Liens and Mortgages,
1967.

78
 of the creditors in order to preserve the
(ii) Expenses incurred in the common interest

on of the proceeds of the sale;

vessel or to procure its sale and the distributi

time of the entry of the vessel into the

(iii) Costs of watching and preservation from the

last port; and

or acts done by the Master, acting

(iv) Claims resulting from contracts entered into

home port, when such contracts

within the scope of his authority, away from the

vessel or the continuation of the

or acts are necessary for the preservation of the

voyage.

nor its 1967 5

,
cou 2
nter part neither of which
Jamaica is not a party to the 1926 Convention

attracted much international acceptance.

3
5icle
preparation of Draft Art s for a new
Work has now reached an advanced stage on the

Convention on Maritime liens and Mortgages.

Draft Jamaica Shipping Bill, 1989.

These Draft Article have been incorporated in the

Rule Re1ang to Mariümc Liens and Mortgages,

Intemationai Convention For the Unififacaon of Certain
1967. On Maritime Liens and
53 See: (IMO) LEG/1vjM,21: Final Reading Of The Draft Articles For A Convention
Mortgages.
79
 ch lists the claims giving
tion 68 of the Bif i par alle ls Article 4 of the Draft Articles whi
Sec

Section 68 provides as follows:

ise to Maritime Liens.
ured by
Act the following claims may be sec
“(1) Subject to the provisions of this

maritime liens —

s of the
the master, officer and other member
(a) wages and other sums due to

their emp loyment on the ship;

ship’s complement, in respect of

dues and pilotage dues;

(b) port canal and other waterway

respect of loss of life or personal injury occurring,

(c) claims against the owner in
:
on land or wat er, in dire ct con nection with the operation of the ship
whether
tract, in
claims aga inst the own er, bas ed on a wrongful act and not on con
(d)
on
perty occurring whether on land or
respect of loss of or damage to pro

operation of the ship;

water, in direct connection with the
rage.
oval and contribution in general ave
(e) claims for salvage, wreck rem
ager or
In sub sec tion (1) owner incl ude s in relation to a ship, the charterer, man
(2)

operator of such ship”

the
between the section 68 provision in
However, there are significant differences
visions
n and tho se of Art icle 4 in thei r pre sen t state. It appears the Jamaican pro
Jamaica Bill
ons are
ft Articles. In any event both provisi
may have been based on an earlier version of the Dra

Draft provisions and subject to change.

80
 to ensure that like
fice it to say that effo rts are being made by the Joint Committee
Suf
ling separately
itime claims in future Conventions dea
1
rtr
0 ii11o is used in reference to mar
gY
ventions
and Maritim e Lie ns resp ecti vely and generally to ensure that such Con
with A1Test

operate in consort.
those
urin g full com pati bili ty betw een enumerated “Maritime Claims” and
The aim of ens

time find expression in

whi ch are designated as giv ing rise to Maritime Liens should in
claims

provisions of local legislation.

out those
m to the writer des irab le to hav e in one enactment provisions setting
It would see
ritime Liens.
falling wit hin the Adm iral ty Juri sdiction and the ones giving rise to Ma
claims
particu lar Maritime
case is much influenced by whether a
Local Admiralty practice in any given

not.M
claim gives rise to a maritime lien or

venient facility for legal practitioners.

Thus such an enactment would be a con

Vide:infra, chapter 4.
’5
81
 REMARKS
E: CONCLUDING

aican Adrnirality
ex am ining the ori gin s and development of the Jam
By tracing and
risdiction in
on s and pre sen t sco pe ha s been established. The Ju
foundati
Jurisdiction, its legal
ed for
pe ria l leg isl ati ve fou nd ations. There is urgent ne
t uneasily on its Im
significant respects res

of this situation.
legislative ratification
ime related claim
is pro ba ble tha t a cla im ant will find that his marit
it
As the law now stands,
hin the Jamaican
red by the ex ten siv e list of enumerated claims wit
is among those cove
bear in mind
en fac ed wit h the rel ev ant statutory provisions to
urt wh
Admiralty Jurisdiction Co
ions.
ec t in co ns tru ing or oth erwise applying these provis
this ultimate international asp
time
be tw ee n sep ara te list s of Maritime Claims and Mari
bility
The need to ensure compati
ould not miss
ern ati on al ma rit im e law making sphere. Jamaica sh
int
Liens is being tackled in the
ence benefit from
ou ld in tim e ens ure tha t its legislation and jurisprud
out on this process and sh

this process.

82
 E: Concluding Remarks

Admiralty
ins and development of the Jamaican
By tracing and examining the orig

l fou nda tion and present scope has been established. The Jurisdiction in
Jurisdiction, its lega
ent need for
respects rest une asil y in its Imp erial statutory foundations. There is urg
significant

n.
legislative rectifications of this situatio

that a claimant wil l fmd that his maritime related

As the law now stands, it is probable
n
nsive list of enumerated claims within the Jamaica
claim is among those covered by the exte
h the relevant
le for a Jamaican Court when faced wit
Admiralty Jurisdiction. It seems advisab
erwise
ons to bea r in min d this ulti mat e international aspect in construing or oth
statutory provisi

applying these provisions.

Maritime
separate lists of Maritime Claims and
The need to ensure compatibility between

in the inte rna tion al mar itim e law making sphere. Jamaica should not miss
Liens is being tackj ecj

slation and jurisprudence benefit from

Out in this process and should in time ensure that its legi

this process.

83
 Chapter 4

Arrest of Ships

84
 CHAPTER 4

Arrest of Ships

A: Introduction

me Claimant
1. Ship Arrest and the Mariti

2. The Concept of Arrest

ion
3. The International Dimens

an Admiralty Jurisdiction
4. Ship Arrest and the Jamaic

5. Functions of Arrest

al theories and ship arrest

6. Historical Jurisprudenti
-

t of shi ps in Jamaica
B: The law governing Arres

giv e rise to right of arrest

C: Types of claims which may

1. Maritime Liens

2. “Other Charges”

ernational Dimens ion

3. Maritime Liens and the Int

4. Statutory Rights in Rem

85
D: Required Procedures

1. Effecting Arrest

2. Obtaining Release from Arrest

3. Forced Sale of Arrested ship

E: The InternationalDimension

1. The Arrest Convention implications for Jamaica

-

2. Forced Sale of arrested ship and international stipulations

F: “Postscript”: The Mareva Injunction -

an alternative to ship arrest?

G: Concluding Comments

86
 Chapter 4:

Arrest of Shi
ps

n
A: Introductio
t.
t an d th e M aritime Claiman
Ship Arr es
1.

nal
portant to obtain provisio
iti m e C la im an t, it is particularly im
For the Mar
e
it s. A ls o of vi ta l importance is th
ing on the mer
rit y fo r his claim prior to its hear
secu
, its
it m ay ex er ci se and effectively so
n where
e court in a positio
basic need to put th
claim.
rds his particular
jurisdiction as rega
tentacles of the
an d ca n ea si ly move beyond the
e mobile
Overall, as ships ar
ry of the
is an im po rta nt device in the armou
arrest
the facility of ship
court’s jurisdiction,
his claim.
es of hi s qu es t for enforcement of
ag
the preliminary st
maritime claimant at

Arrest.
2. The Concept of
rtant to
stances, it is impo
a variety of circum
Since ships may be detained in
ed.
be sa id th at a sh ip has been arrest
n should it
clarify at the outset whe
ntion for
in ed fr om th e International Conve
t may be obta
Guidance on this poin
52.
to th e A rr es t of Seagoing Ships, 19
Rules Relatin g
the Unification of Certain

87
 provides as follows:
Article 1(2) of this Convention

of a ship by judicial process to

“Arrest” means the detention

include the seizure of a ship

a maritime claim, but does not
secure
dgement’ .
execution or satisfaction of aju
in

Authority
e 4 pro vid es tha t a shi p “m ay only be arrested under the
Further, Articl
in which the
the app rop ria te judicial aut hority of the contracting state
of a Court or of

arrest is made”.
/ n” of a
is cle ar tha t “A rre st” is not simply equivalent to “detentio
From this it
arily a judicial
ved and reg ulated by the Convention, “Arrest” is necess
ship. As concei

remedy.
re of a
also to be dis tin guishe d fro m attachment, that is the “seizu
“Arrest”, is

a judgement”.
ship in execution or satisfaction of
This
Co nve nti on, “A rre st” is als o a security obtaining device.
As defined in the

ect in civil law countries.

accords with the emphasis on this asp
ited to the claims
we ver , the power to sec ure claims by way of arrest is lim
Ho

1 These claims, as already shown, are

listed in Article 1(1) of the Convention.

merated as falling within the Jamaican Admiralty

encompassed in the list of claims enu

1
S ee: Chapter 3, part D.
88
Jurisdiction.

3. The International Dimension

although
As previously noted, Jamaica is not a party to the Arrest Convention,

an Law by way of extended U.K.

some of its provisions have found their way into Jamaic

legislation.

n reference to the Convention has observed that:

Hill i2

“One distinct and basic feature of the Convention is the absence from it

of an international law of arrest. The law and procedural rules applicable is/are

those of the forum within which any particular arrest takes place” 3

Nevertheless, it is the writers contention that particular provisions of the

an law pertaining
Convention are worthwhile considering in an examination of the Jamaic

to ship arrest.

Ltd., 1985.
2 Hill, Christopher et al: Arrest of Ships, Lloyds of London Press

Ibid., p.v.

89
 mation, such examination is rooted in,
However, in accordance with Hill’s inti

s applicable in Jamaica.
necessitates foc usin g on the relevant municipal law stipulation
and

Admiralty Jurisdiction.
4. Ship Arrest and the Jamaican

the
ilable under Jamaican law pursuant to
The facility of ship arrest is only ava

institution of in rem proceedings.

a
instituted against a particular res, such as
In rem proceedings are proceedings

ship, its cargo or freight.

ch
ed from in personam proceedings whi
These proceedings are to be distinguish

are directed against a particular person.

y be instituted under the Supreme

In Jamaica, in rem proceedings may onl

jurisdiction to entertain in personam

Court’s Admiralty Jurisdiction, which also has

proceedings.

5. Functions of Arrest.

90
 Here, Jackson has noted as follows:

ctions. First and most

“The arrest of ships has three possible fun

l edy a “saisse
a form of interim relief or provisiona rem
-

obviously, it is
itor may
conservatoire” (and in this context it should be noted that a cred

a caveat against release).

obtain some protection through

sdiction over the merits. Thirdly, it

Secondly, it may operate as a ground of juri

merits.
the 4
may provide ‘security’ for the claim on

and ship arrests.

6. Historical-jurisprudential theories

s have been advanced in common law

Over the years, various conflicting view

s of arresting a vessel.
jurisdictions as to the legal implication

personification and procedural

The two main theories are the so-called

comprehension of the historical

5
the
T o
ori es. a large extent they entail a tracing and

of the arrest device in England.

development of maritime liens and the use

4
on Stevens & Sons, 1980, para 8 et seq.
See: Thomas, D.R.: Maritime Liens, Lond
ted to the historical conflict between the
A third theory, “the conflict theory” is rela
of Admiralty in England; Also see generally:
common law courts and the High Court
Price, Wiswall and Marsden, op. cit.
91
 icial entity,
n the ory , the sh ip is viewed as a distinct jud
Under the personificatio
e ship is both
and ca pa cit y to co ntr act and commit torts,. Th
endowe d with a personality

of liability.
the source and limit

, an action
rec og niz es the pe rso nification theory. There
American jurisprudence

property. 6
y against the maritime
in rem is directed solel
an interest
property ap pe ar, the y do so as claimants of
Where the owners of the
.
nts (un les s joi ned as defendants in personam)
not as defenda
limited to the value
of an Am eri ca n Co urt in an action in rem is
The jurisdiction
give the Court
pe ara nc e by the ow ne r does not, without more,
of the property: an ap

jurisdiction in personam.
cedural theory
inc tio n, En gli sh jur isp rudence accedes to the pro
]n contradist
procedural to
the res by an ac tio n in rem, is held to be merely
whereby the seizure of

before the court.

compel the owner to appear
jec t of
in the pro ce du ral the ory , is that historically the ob
The premise inherent
vision of bail.
ure the ap pe ara nc e of the defendant and the pro
arrest, was to sec

ted:
However, Tnomas has no
x Ltd.
, V: Th e sec uri ty of a Maritime Lien, Tribo
6 See: Harley, SJ. and Batra

92
 r of
tor ica l pla nks on wh ich the theory is based are howeve
“The his

the modern law which it is

validity and there is much in
disputable
ory”
tenets of the procedural the
‘

impossible to relate to the

oa
s, the wr iter doe s not pro pose to here, delve here int
Nevertheles

ect and roots of ship arrest

search to unearth the true obj
historical
d.
which it has been associate
and the maritime lien with

divergent results in this regard. Although,

Various studies have yielded
e consensus on the
there has now em erged in English jurisprudence som
admittedly

matter.
ts or idiosyncrasies,
it to say tha t des pit e any historical English anteceden
Suffice

best.
can fas hio n its own ma ritime jurisprudence as it deems
Jamaica
ss or
sug ges t how ever tha t as a matter of law, the correctne
This is not to
particular situatio ns.
dif fer ent on establish ing what the law on arrest is in
otherwise of the

es of English
ear lier intim ated any suc h voyage into the inner recess
However, as

liens and ship arrest is dec

idedly beyond the
the se per tai n to ma riti me
legal history as

scope of this study.

‘
ibid.

93
 on that although discussion of the
The writer contents himself with the observati

that at
found in any reported Jamaican case it appears
different theories are no where to be

the procedural theory.

least implicitly Jamaica ascribes to

the basis that this is indeed the

Thus the analysis in this chapter proceeds on

on of inheritance of the dubious features of

case. Simultaneously, there is the implicati

this theory from English law.

B. The law governing Arrest of Ships in

Jamaica.

d in the Rules of the Supreme

The main procedural provisions are to be foun

sion. (hereinafter referred to as “the

Court of Judicature of Jamaica in the Admiralty Divi

Admiralty Rules”,).

of the Colonial Courts of

These Rules were made pursuant to Section 7

e manner prescribed by
Admiralty Act, 1890 (U.K.) and in keeping with “...th

amended by Section 1 of
Section 36 of the Judicature Law (Law 24 of 1979) as

31 of 1885) for
the Judicature Law, 1879, Amendment Law 1885. (Law

94
 Supreme Court
to reg ula te the Pro ced ure and Practice of the said
framing Rules of Court

inary civil jurisdiction”.

in the exercise of its ord
es that:
onial Co urt s of Ad mi ral ty Act 1890 (U.K.) provid
Section 7 of the col
ctice (including
Ru les of cou rt for reg ula ting the procedure and pra
(1)

possession in the exercise of

costs) in a court in a British
fees and
te, may be
ion con fer red by thi s Ac t, whether original or appella
the jurisdict

same manner as rules touching

the same authority and in the
made by
of
the said court in the exercise
procedure, fees and costs in
the practice,
made:
jurisdiction respectively are
its ordinary civil
r this section shall not (save
Provided that the rules unde
. .

come into operation until they

provided for by this Section)
as
ty in Council, but on coming
been approved by Her Majes
have
ect as if enacted in this Act; and
operation shall have full eff
into
ith shall, so far as it is so
enactment inconsistent therew
any

insonsistant, be repealed...”

uired.
in Council” is no longer req
The approval of “Her Majesty
nce Act, 1962
(5) of the Fi rst Sc he du le to the Jamaica Independe
Section

provides that:
0 ich
Courts of Admiralty Act, 189 (wh
section four of the Colonial
ty’s pleasure
tain laws to be res erv ed for the signification of Her Majes
requires cer

95
 n of that Act as
or to contain a suspending clause), and so much of section seve

rules of court for

requires the approval of Her Majesty in Council to any

rt of Admiralty,
regulation the practice and procedure of a Colonial Cou

shall cease to have effect in Jamaica”.

that on the coming into

Of special significance is the stipulation in Section 7

t inconsistent therewith shall so for as it

operation of the Admiralty Rules “any enactmen

is so inconsistent, be repealed”.

existing would continue to

This implies that any applicable Rules of Court then

Rules of Court but which are covered

apply in those areas (if any) not covered by the new

with the Admiralty Rules

by the existing Rules provided they are not inconsistent

provisions.

previously existing
Here it may be noted that the Act, despite abolishing the

e the Vice-Admiralty
Vice- Admiralty Courts, nevertheless saved the Rules applicabl to

was provided for by

Courts in then British “possessions”, including Jamaica. This

Sections 16(3) and 18 of the Act.

Section 16 provides that:

n, Rules of
“If on the Commencement of this Act in any British possessio

Act, the
Court have not been approved by Her Majesty in pursuance of this

Rules in force at such commencement under the Vice-Admiralty Act

96
1863... shall so far as applicable, have effect in the Colonial Courts of

Admiralty of such possession... as Rules of Court under this Act, and may be

revoked and varied accordingly...”

Section 18 provides that:

ng the
“All enactments and rules at the passing of this Act in force touchi

practice, procedure.. .in Vice-/Admiralty Courts shall have effect as

rules made in pursuance of this Act... and shall apply to the Colonial

Courts of Admiralty, and may be altered and revoked accordingly...”

alty Act had come into

Here it is to be noted that the Colonial Courts of Admir

came into force later in 1893.

force in Jamaica by July 1, 1891. The Admiralty Rules

any Rules of Court

Accordingly when the Act came into force there were not yet

for operation in Jamaica.

“approved by her Majesty” in pursuance of the Act

an dmiralty Court
Hence the Rules of Court of the abolished Jamaic Vice-A

in Jamaica.
continued in operation in Jamaica when the Act took effect

Her Majesty’s
These Rules are the “Rules for the Vice-Admiralty Courts in

a on January 1,
Possessions Abroad”. They had earlier come into operation in Jamaic

1884.

ance
The Admiralty Rules do not expressly repeal these rules. Thus in accord

with the Section 7 stipulation, it appears they were on the coming into operation of the

97
 e Rules.
Rul es rep eale d onl y to the extent that they were inconsistent with thes
Admiralty
iralty
direction of thinking that where the Adm
So far the examination leads in the
decessor Rules of
fail to cover a par ticular matter, then resort may be had to its pre
Rules

dmiralty Court.
the abolished Jamaican Vice-A
e
e Vice-Admiralty Court Rules provid
Here, it should be noted, that in turn, thes

practice.
for resort to English High Court

provided for” stipulates as follows:

Rule 207 under the caption “Cases not

s, the practice of the High

“In all cases not provided for by these rule

followed”.
Court of Justice of England shall be

es, provides as follows:

However, Rules 79 of the Admiralty Rul

the foregoing rules, the

“Subject to the provisions contained in

Rules of
provisions of the “Civil Procedure Code 1888”. and the

far as they
Court regulating the general practice of the Supreme Court, shall so

”.
are applicable, apply to procedure and practice in Admiralty actions

other local civil procedural Rules

Thus, by its terms, Rule 79 requires resort to

Rules.
and Rules of Court to supplement the provisions of the Admiralty

98
 Supreme Court Rules
This means resort to the Civil Procedure Code and the

of Court.

ides that:
However, section 686 of the Civil Procedure Code prov

by Rules of
“Where no other provision is expressly made by Law or

eme
Court, the procedure and practice for the Time being of the Supr

Court of Judicature in England shall, so far as applicable, be followed,

and the forms prescribed shall with such variations as circumstances may

require, be used”.

iralty Practice and

This means that ultimately resort may be had to English Adm

Procedural rules via this mechanism.

provides for continued

However there is some doubt as to whether Section 676

ish Rules were at a

reception of U.K. Rules or they only relate to (again!) what the Engl

particular time.

stipulation.
A similar question may also be raised as regards to Rule 207

itted to the latest

However, in practice as regards section 676, resort is perm

Court) in
edition of the U.K. “White Book” (“The Annual Practice of the U.K. Supreme

various civil matters.

j
are divided
However, the position is not without its doubts as local legal counsel

99
on the true legal import of section 676.

Cases need to at least take

Any application of the section as regards Admiralty

Admiralty Jurisdiction is based on the 1956

into account the fact that whereas Jamaican

ressive changes to the 1956

U.K. Act, the U.K. have made a number of prog

rt. Act, 1981, (U.K.) 8

stipulations, in particular by the Supreme Cou

on in Jamaica and the relevant

Moreover, strictly speaking, Admiralty Jurisdicti

tory foun
9 dations.
Rules of Court have always had different statu

ica may be said to be governed

Overall, the law pertaining to ship anest in Jama

by or based on the following:

1. The Admiralty Rules.

2. The Civil Procedure Code

3. The Supreme Court Rules of Court.

ncil,
4. The Admiralty Jurisdiction (Jamaica) Order in Cou

1962.

.)
5. The Colonial Courts of Admiralty Act, 1890 (U.K

6. The Administration of Justice Act, 1956 (U.K.)

8
C annot find on man:
See: Chapter 3
9

100
 e.
7. Applicable English Rules of Practice and Procedur

8. Jamaican Case Law.

st any) issued by the

Also, Practice Directions pertaining to Ship Arre (if

. However, it appears to date, none had been

Supreme Court would also be of assistance

issued.

C. Types of claims which may give rise to

right of arrest.

are all those claims for

The types of claims for which ship arrests may take place

of the Supreme
which in rem proceedings may be instituted in the Admiralty division

Court.

and others which may

These encompass claims which give rise to maritime liens

be teed “stamto rights in rem’.

101
 It is important to distinguish the two concepts.

to be
Indeed, Goffey notes that: “when arrest is contemplated the first thing

or merely a right in
considered is whether the cause of action confers a maritime lien

rem”. 11

1. Maritime Liens.

ish law by Sir

The expression “marjtjnie lien” was probably first coined in Engl

John Jervis in the Bold Buccleugh, (1852) 7 Moo P.C, 267.12

ish law.
There is to date no statutory definition of the term in Jamaican or Engl

Maritime
Also there is no international law definition. The 1926 and 1967 Convention on

Liens and Mortgages as well as the present Draft Articles for a new Convention on

Maritime Liens and Mortgages have all avoided any attempt at a distinct and

10 See: Goffey, WWiam: Arrest of Ships, 1975 L.M.C.L.Q., 34

Ibid.
12 See
Thomas, ibid., para 1.

102
r
comprehe1i’e definition of the term.

proferred by Sir John

However, in the Bold Buccleugh itself, a defmition was

JerviS.

There, he stated that:

be carried into
“...a maritime lien is ..a claim or privilege upon a thing to
.

.this claim or
effect by legal process... that process to be a proceeding in rem..

privilege travels with the thing into whosoever possession it may

come. It is inchoate from the moment the claim or privilege attaches,

and when carried into effect by legal process by a proceeding in rem, related

back to the period when it first attached”. 13

In The Tolten, Scott L.J. noted:

Continental or
“The essence of the ‘privilege’ was and still is, whether in

dent
English law, that it comes into existence automatically without any antece

formality, and simultaneously with the cause of action, and confers a

true charge on the ship and freight of a proprietary kind in favor of the

privileged creditor. The charge goes with the ship everywhere, even in the

hands of a purchaser for value without notice, and has a certain ranking with

other maritime liens, all of which mortgages”.’

take precedence over 4

13 (1851)
7 Moo. P.C. 267, 284
14(1 946) P. 135,150, cited by Thomas, ibid., para 10, who notes that the word

103

-
 ars to have attracted some
Tetly has put forward a defmition which appe

international app
1 5
rov al.

He defines a maritime lien as ..a privilege against property (a ship) which

16
any court action or any deed or any registration”.
attaches and gains priority without

the major English work on the

Thomas 17, in what appears to be, at present,

subject, describes a lien as:

“(1) a privileged claim or charge,

(2) upon maritime property,

by it,
(3) for service rendered to it or damage done

of which the cause of

(4) accruing from the moment of the events out

action arises,

unconditionally, and
(5) Travelling with the property secretively and

rem.
(6) enforced by an action in 18

concept of a maritime
Under Jamaican law following the English position, the

lien is limited to a relatively small number of claims.

.
“privilage’ as used here is synonymous with “maritime lien”
see Chapter 6, F.N. 93
15
Ibid.
16
0p cit.
17
lbid., para 12
18

104
 ognized as giving rise to maritime liens are:
The claims currently rec

ip.
1. damage done by a sh

2. Salvage.

r’s wages.
3. Seamen’s and maste

, and
4. Master’s disbursements

•19
ndentia
5. Bottomry and respo
e
se rep res en t the ‘pr inc ipal’ or ‘genuine’ maritim
t: “The
Here, Thomas notes tha

ca tion from statutory 2 enactments”.

°
ma y arise by im pli
liens although others
ted and
mi nistra tio n of Ju sti ce Act, 1956 (U.K.) as adap
Section 3(3) of the Ad

s:
extended to Ja
2 aica provides as follow
m1
other charge on any
an y ca se in wh ich the re is a maritime lien or
“In
miralty
oth er pro pe rty for the amount claimed, the Ad
or
ship, aircraft
a may be invoked by an
Supreme Court of Jamaic
Jurisdiction of the

aircraft or property”.
action in rem against that ship,

an y of the aforementioned
be anested in Jamaica for
Accordingly, a vessel may

9 eg. Thomas, ibid., para 6

See
1
, 1962, Section 3.
mi ral ty Ju ris dic tio n (Jamaica) Order in Council
1 The Ad
2er
p

105
 to maritime lien.
claims giving rise

maritime lien, a change of ownership of

In keeping with the basic nature of the

t the right to have it arrested in respect of such claims.

the vessel, does not affec

2. “Other charges”

is as regards the import of the

One question raised by the wording of section 3(3)

s suggest that there are situations where

words “or other charge’. Prima facie, the word

h the Admiralty jurisdiction may be

there are charges other than maritime liens for whic

invoked.

r charge” in section
Thomas suggests that the expression “maritime lien or othe

on from statutory
3(3) points to instances where maritime liens arise by implicati

enactment.

Here, he states that:

h were, in
“It may be that it is these implied statutory maritime liens whic

the contemplation of the legislature when enacting the Adm

inistration of
part in

“maritime
Justice Act, 1956 Section 3(3), and wherein reference is made to a

lien or char2
other 2 ge”.

possibly be
He cites certain occasions when under U.K. law maritime liens may

2
Thom
2 as, op. cit., para 20

106
 igations that may be
by stat ute. The se gen eral ly encompass certain unfulfilled obl
iniplied
ck
t auth orities suc h as unp aid fees and expenses of the Receiver of wre
due to governmen

ices rendered by coa

2 uards.
stg3
and due remuneration for serv

“rights in
slative rights” which he describes as
Tetley has referred to special legi

the ship and

(and sometimes individuals) against
favor of governmental authorities
s. 24
ally ranking aheai of maritime lien
sometimes against her cargo, usu
k and
to matters such as the recovery of doc
These rights, Tetley indicates, relates

5
wrec
2 k.
harbour charges and the removal of

exact
es, that there is doubt as regards the
Overall, it appears as Thomas intimat

possibly fall within this categor y of “other

label to be placed on such claims which may

charges”.

er charges” have apparently not been

The character or description of such “oth
the
ject to any jud icial disc uss ion . At leas t ther e appears to be no reported cases on
sub

para 20 et seq.
0p cit., p.42
24
d., p43
Ibi5
2

107
matter.

In the final analysis, it suffices for immediate purposes to emphasize that any

of arrest.
such “other charge” falling within Section 3(3) will give rise to a right

3. Maritime Liens and the International Dimension

for there
The problem of construing Section 3(3), inter alia, highlights the need

have a
to be a clear definition of a maritime lien. More importantly, there is a need to

there
statutorily enumerated exclusive list of maritime liens. Not only does it appear that

is no such definition to be found in Jamaican law, but there is no such list of liens.

26 This is
Section 68 of the draft Jamaica Shipping Bill now has such a list.

to be welcomed as this will bring more certainty as to which claims defmitely give rise to

maritime liens.

Importantly, Jamaica can use this mechanism of statutory enactment to ensure

see chapter 3
26

108
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

28
ships.

Statutory rights in rem

See also chapters 3 and 6

27
See: chapter 3
28

109
 Basically, these are the claims within the Jamaican Admiralty jurisdiction which

do not have attached to them the status of maritime liens.

A statutory right in rem exists independently of a maritime lien. Although where

rem, it is not the case

a maritime lien exists there is concomitantly an available action in
29 This
that where an action fri rem is made available a maritime lien is thereby inferred.

points to the existence of statutory rights in rem.

Unlike the maritime lien which is a substantive right, the statutory right in rem, is

in essence, a procedural remedy. It accrues at the issue of the writ and is defeated by a

sale to a

bona fide purchaser.

Required Procedures

1. Effecting Arrest.

Firstly, in rem proceedings have to be commenced by the filing of a Writ of

Summons in the prescribed form.

A Praecipe for warrant to arrest the vessel along with a supporting Affidavit, are

to be filed.

29 eg. Karthingesu, M: Actions in rem in the Far East, in Carriage of Goods by

See:
Sea Peter-Koh Soon Kwang, Ed Singapore, Butterworths, 1986, 25,31

110
 ssel arrested
on behalf of the pa rty seeking to have the ve
filed
The Affidavit to be

rtain particulars.
should contain ce

Rules prov ide as follows:

Rule 3 of The Admiralty

..may be issued
re m, a w ar ra nt fo r the arrest of property
“Jn actions in
en
an y tim e af te r th e w rit of summons has be
iff at
instance of the plaint

r
at the
ce, but no warrant of
arrest
pearan
the defendant after ap
filed or of
filed
or his agent has been
affidavit by the party
shall be issued until an

ons complied with.

and the following provisi
tion of the
e af fid av it sh all sta te the name and descrip
(a) Th
the nature of the
arrant is to be issued,
whose instance the w
party at
to be
cl ai m , th e na m e an d nature of the property
or counte r
claim
aim or counter claim has not been
arrested and that the cl

satisfied.
avit
ac tio n of w ag es , or of possession, the affid
(b) In an

of the vessel proceeded

the national character
shall State

111
 and if against a foreign vessel, that notice of the
against:

action has been given to the Consul of the

commeflcemel1t of the
.
State to which the
vessel belongs if there be one resident in

Jamaica and a copy of the notice shall be annexed to the affidavit.

(c) In an action of bottomry, the bottomry bond, and if in a

foreign language also a translation thereof, shall be produced for

the inspection and perusal of the Registrar and a copy of the

bond or of the translation thereof, certified to be correct, shall be

annexed to the ’
1
affidav it.

However the Court or Judge may as deemed fit, allow the warrant to issue,

30
although the affidavit may not contain all the aforementioned particulars.

In an action for wages the court or Judge may also waive the service of the notice

and in an action of bottoniiy, the production of the bond. 31

Once the warrant of Arrest is issued, the writ of summons, along with the

Warrant to Arrest, are then served on the vessel in a particular manner.

This is the normal practice although, strictly speaking in terms of sequence of

activity, service of the writ of sunons is what is first required since this is what gives

3
O per Rule 4

lbid.
31
112
 to “perfect
court juris dicti on over the vessel. The arresting of the vessel is then said
the

vessel.
the court’s jurisdiction over the

warrant of arrest shall be served by

Rule 6 provides that: “In actions in rem the

the bailiff of the court...”

Warrant as well as that of the Writ of

However, in actions in rem, service of the

cular manner.
Summons must be carried out in a parti

against the ship, needs to be effected

Service of the writ of summons or warrant

mast
or warrant on the mainmast or on the single
by nailing or affixing a copy of the writ

or affixed. 32
of the vessel and leaving it there, nailed

ant as described may be dispensed

However, actual service of the writ or warr

lawyer agrees to accept service and put in

with where, say the owner of the vessel or his

3
bail or pay money into Court in lieu of bail.

served on the vessel as aforesaid,

However, once the documents have been duly

then it becomes effectively under arrest.

vessel and seeks to ensure that no

In practice, the Bailiff takes possession on the

court’s jurisdiction.
one gains access to the vessel so as to move it out of the

2. Release from Arrest

32: Rule 8.
See
5ee: Rule 5
33

113
 Rule 25 provides that: ‘property arrested by warrant shall only be released under

the authority of an instrument issued from the office of the Registrar, to be called a

Release”

Normally, once a vessel has been arrested, its owner or other interested party,

will take steps to procure its release.

Bail may be put up or money paid into Court in lieu of bail.

Such ball or payment is to provide alternative security for the Plaintiffs claim and

to obtain release of the vessel.

The plaintiff is entitled to sufficient security to cover the amount of his claim,

together with interests and costs. Security is usually provided in the form of a bank

guarantee or letter of undertaking from a P&I Club.M

Bail or payment into court takes the place of the ship in the action and if after

judgment it appears inadequate, nevertheless the ship cannot be arrested or rearrested

for

this reason.

A person desirous of preventing the release of the vessel under arrest, is required

to file a praecipe for a caveat against

release.

Once this is done, no order of the court affecting the vessel or money mentioned

5ee eg appendix 17
34

114
 5
3ifie
ss the caveator is not d.
in the caveat, may be issued unle

Forced Sale of Arrested Ship

sold either on giving judgement at trial

The court may order an arrested ship to be

ent lite.
or by default, or prior to judgement pend

may authorize the pendente the sale,

The circumstances under which the court
/
/ el, mounting daily expenses, the ships
include high maintenance costs of the vess

s.
deteriorating condition and unpaid crew wage

nd whether the interests of the

Overall, the considerations would centre arou

e sale prior to judgment. Also of particular

creditors would be best served by the immediat

ndants themselves.
importance here is the residual interest of the defe

rgan v. M.V. Vacuna and

Parnell,J, in the Jamaican Supreme Court case of Mo

that:
Others, 1968, 15 W.LR.280, 296 emphasized

for the appraisement and

“Every sale must be preceded by a commission

35
Se e eg Georghadjis

115
 executed by him
sale and the commission must be addressed to the bailiff and

unless the court directs to the contrary”.

of a valuable property, as a
The object of the appraisement is to prevent the sale

ship, at an unreasonably low price.

having been duly
The sale is usually carried out by public auction, after

court directs.
advertised in such local and foreign newspapers as the

As regards sale by private treaty Parnell J. points out:

, the name of the

“Before a sale by private treaty can properly take place

and the terms of the

person purchasing; the sum to be paid and in what manner,

approval. And the

agreement for sale must be submitted to the court for

rwise directs”.
sale must be effected by the bailiff unless the court othe

in contravention of the relevant

Thus in the said case, a purported sale of a vessel

rules was treated as a nullity.

deposit the gross proceeds

Where there is a sale of a ship the bailiff is required to

doctrine of
in court for eventual payment out to the various claimants subject to the

priorities.

116
F: The International Dimension.

International Convention
Here, the convention that is of primary relevance is The

to the Arrest of seagoing Ships, 1952. Also,

for the Unification of Certain Rules Relating

pertaining to Maritime Liens, that is,

of relevance are those International Conventions

dy noted preparation of a new draft

those of 1926 and 1967. Importantly, as alrea

now at an advancec stage. /‘

Convention on Maritime Liens and Mortgages is

to protect the interests of

The main objective of the 1952 Arrest Convention was

els and by prohibiting arrest for

both ship and cargo by securing free movement of vess

r most national legal systems, arrest

claims not relates to the operation of the ships as unde

ever here, it may be noted that

was permitted for any claim regardless of its nature. How

could only be arrested with

this was not the case under the Common Law where a vessel

a view to enforcing claims against the ship.

vention is to specify a list

The resulting compromise position adopted by the Con
/
arres ted. 36
of maritime claims in respect of which a ship may be

possibility of having
It provides the claimant having a “maritime claim” with the

s
the vessel arrested. At the same time, it restricts the power of arrest to the claim

See also: chapter 3

117
specified in it.

ises the Jamaican

As earlier noted, it is this list of claims which essentially compr

Admiralty Jurisdiction.

particular ship in
The Convention provides that a claimant may arrest either the

ownership, except in
respect of which a claim is made, or any other ship in the same

le in the case of a ship under

cases where the owner is not personally liable (for examp

the person liable may be

bareboat charter). In the latter case, another ship owned by

37
arres ted.

ownership when all

Under the Conventiorships are deemed to be in the same

s.
the shares therein are owned by the same person or person

Article 3 (3) provides that:

y be given
“A ship shall not be arrested, nor shall bail or other securit

more than once in any one or more of the jurisdictions of any of the

Contracting States m respect of the same maritime claim by the came

claimant: and, if a ship has been arrested in any one of such jurisdictions, or

bail or other security has been given in such jurisdiction either to release the ship or

in particular, sub-paras 1&4 of Article 3

118
 ship in
arrest, any subsequent arrest of the ship or of any
to avoid a threatened
ship
the same claimant shall be set aside, and the
the same ownership by

er appropriate judicial authority of that state unless

released by the Court or oth
the
Court or other appropriate judicial authority that
the claimant can satisfy the
st or that
n fmally released before the subsequent arre
bail or other security had bee

maintaining that arrest”,

there is other good cause for

to each
ity to arrest to one ship in relation
The convention thus restricts the abil

claim.

Hifi has cited the case:

yd’s Rep 555, as one in

The Despina G.K. (1982’) 2 Llo

came up for
sible to arrest the same ship twice,
which the issue of whether it is pos
a
in En
3 8
gla nd. In that case, the English Admiralty Court decided that
decision
er pursuant to
a fmal judgment against a shipown
judgement creditor who has obtained
on
in a fore ign Adm iral ty Cou rt, is permitted to bring a subsequent acti
proceedings in rem

cution of the jud gement provided that the

in England if necessary to complete the exe
9
re-arr
3 est.
judgment debtor at the time of the
vessel is still in the same ownership of the
arrest can
er English Law where a previous
This holding apparently applies und

either und er the law of the country where the

Correctly be defined as a maritime attachment

Se
3 e HHI, op cit., pp 19-21
8
d., p. 21
1b19
3
119
 English Law. Once this is the case then according to Hill, the
arrest took place or under

arrest as being merely to enforce the foreign

English Court will permit the second

judgment.

He emphasizes however, that:

“What cannot happen under any circumstances is for the same vessel to

be arrested twice, both times being the putting into effect of an in rem right

against the vessel whether or not the arrest is in the enforcement of a maritime

lien on the vessel’. 40

In Cyprus, another common law jurisdiction, the issue of whether a second or

subsequent warrant of arrest may be taken out against the same vessel has come up for

4
decisio
’ n. There, it was held that the circumstances are such that the plaintiffs in the

first case were not yet ready to proceed to judgement and execution and the plaintiffs in

the second case were ready to proceed to judgment, it would be necessary and right for a

second warrant of arrest to be granted.

In determining the mater, it appears the important consideration is as regards the

prejudice the second plaintiff would suffer by the first plaintiffs inability to take immediate

40 Georghadjis,Andreas et al: Arrest of Ships-7, Cyprus. Egypt. Pakistan.

5ee:
Poland, Lloyds of London Press Ltd 1988 at p. 21 where he cites in support:
Comm ercial Bank of the Near East Ltd v the Ship “Peg asos 111” now lying at
Limassoi Port (1978) i C.L.R.l; Haissan Bahlawan V. The Motor Yacht ‘sand’,
unreported Admiralty Action 29/88.
41
Georghadjis opcit, p.21

120
4
ac 2
tion.
e 3(3), since
ping with the provisions of Articl
The position in Cyprus is in kee
same
re inv olv ed. Wh at the con ven tion is basically against, is the
different claimants we
e. Such a
ing the sam e shi p in res pec t of the same claim more than onc
person arrest
e flow of maritime
ility wo uld pri ma fac ie, be ini mical to the interests of the fre
possib

ives of the Convention.

commerce and the overall object
of in
al situ atio n ref err ed to as reg ards England, although spoken
The exception

chment.
p appears to be more skin to atta
terms of a second arrest of a shi
p in execution or
ear lier ind ica ted , “arr est” doe s not include the seizure of a shi
As
se is not ipso facto
ctio n of a jud gem ent . Th us, it appears The Despina G.K. Ca
satisfa
Convention.
e ship twice in the sense of the
concerned with arresting the sam
n, based on a
ervation in thi s context is, in the writers respectful opinio
Hill’s obs

Convention is concerned.
false notion, at least as far as the

same ship
er posing the que stio n as to whether it is possible to arrest the
Hill, aft
simple as that”.
‘

tes tha t: “T he tem pting answer is no. But it is not quite so

twice, sta
r came up for
case as one in which the matte
He then cites The Despina G.K

zed (arrested) twice”.

decision since: “This ship was sei
t” of a ship. It is
ly, equates “seizure” with “arres
He thus, it appears erroneous

42 cit., p. 19
4ct.
lbi 3, p.19
4.
1b1d
4
121
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 Tetley

45 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

See chapter 1, part F

45

122
 st any chattel belonging
Eur ope an app roa ch which enabled the claimant to arre
Continental

shipowner concerned.
to the defendant
in Jamaican law
ions may be said to be reflected
The relevant Convention stipulat

Justice Act. 1956 (U.K.)

the form of the exte nde d Section 3 of Administration of
in

d to Jamaica provides as follows:

Section 3 as adapted and extende

the Supreme Court of Jamaica may

“...(l) The Admiralty jurisdiction of

(c) and (s) of subsection (1) of

in the case mentioned in paragraphs (a) to
in rem against the ship
section one of this Act be invokes by an action

or property in question.

maritime lien or other property for the

(2) In any case in which there is a

of the Supreme Court of Jamaica may

amount claimed, the Admiralty jurisdiction

that ship, aircraft of property.

be invoked by an action in rem against

is mentioned in paragraphs (d) to (r)

(3) In the case of any such claim as

Act, being a claim arising in

of subsection (1) of section one of this
n the cause of action
connection with a ship, where the person was, whe
control of, the
arose, the owner or charterers of, or in possession or in

123
ship, the Admiralty jurisdiction of the Supreme Court of Jamaica may

(whether the claim gives rise to a maritime lien on the ship or not) be invoked

by an action in rem against-

(a) that ship, if at the time when the action is brought, it is

beneficially owned as respects all the shares therein by that

person; or

(b) any other ship which, at the time when the action is

brought, is beneficially owned as aforesaid.

(4) In the case of a claim in the nature of towage or piotage in respect of

an aircraft, the Admiralty jurisdiction of the Supreme Court of Jamaica may

be invoked by an action in rem against that aircraft if at the time when the

action is brought it is beneficially owned by the person who would

be liable on the claim in an action in personam.

(5) Notwithstanding anything in the preceding provisions of this section,

the Admiralty jurisdiction of the Supreme Court of Jamaica shall not be

invoked by an action in rem in the case on any such claim as is

mentioned in paragraph (D) of subsection (1) of section one of this Act unless

the claim relates wholly or partly to wages (including any sum allotted out of

wages or adjudged by a superintendent to be due by way of wages).

124
 Admiralty jurisdiction, the Supreme
(6) Where, in the exercise of its

er property to be
Jamaica orders any ship, aircraft or oth
Court of
question
e jurisdiction to hear and determine any
sold, the court shall hav
proceeds of sale.
arising as to the title to the

es of subsections (4) and (5) of this

(7) In determining for the purpos

in an action in personam it shall be

section whether a person would be liable

place of business
assumed that he has his habitual residence or a

within Jamaica”.

) permits the arrest of a ship other than

From this it can be seen that section 3(4

the one in respect of which the claim arose.

.
ever the pro visions of sec tion 3(4 ) lends itself to different interpretations
How

ons of the sub-section has

Thus, Ha
4 6
zzlewood has observed that the interpretati

which paragraph (b) is governed by

presented a dilemjia in the form of the extent to

Paragraph (a).

He notes that:

L.M.C.L.Q 422
Hazzelwo
4 6 od, Steven J: Gaps in the action in rem- p’ugged?

125
 graphs operate
“-the more liberal construction is that the two para

owned by
independently with the effect that “any other ship” beneficially

arrested, notwithstanding that the defendant was

the defendants may be

vessel. The restrictive interpretation is that

not the owner of the offending

be arrested only if it is in the same ownership

“any other ship’ in paragraph (b) may

ships must be “sis

4 hips”...
ters7
as the offending ship; ie the two

ificance. Its resolution will

The issue involved here is of much practical sign

nity, charter excess tonnage and commit

determine whether a shipowner can with impu

out having his own vessels arrested.

wrongs in respect of the chartered vessels with

ters his ship S to B, another

It often happens that a shipowner A time char

A may now wish to arrest a ship

shipowner, who commits a breach of charterparty.

fore whether section 3 (4) sanctions such

beneficially owned by B. The question is there

an arrest.

225 were essentially those

The facts of The Span Treza 181982)1 Lloyd’s Rep

basically whether section 3

Outlined in the preceding paragraph. The issue involved was

al) ownership of
(4 could be successfully used to arrest a vessel under the (benefici

Someone not the owner of the involved (or offending) ship.

construction of section 3
The English Court of Appeal favored the more liberal

p.423

126
 is not under the same
The decisio n thu s sanctioned the arrest of a vessel which
(4).

offending ship.
ownership of the involved or
which had formerly held sway in English
This did away with the restrictive view

Admiralty jurisprudence.
Courts had required a common
Prior to the Span Terza case, the english
selected
ip link betw een the offe nding or involved vessel and the alternative ship
ownersh
the same
be in effect “sister-ships”, that is, under
for arrest. The two vessels had to

their shares.
beneficial ownership as regards all

arrest” has been in vogue in English

As a result the expression “sister-ship
ion.
6 Act based on the section 3 (4) stipulat
Admiralty jurisprudence since the 195
ear to be
eve r, as sho wn in The Spa n Terza case, such an expression would now app
How
in
lead ing. A better exp ress ion , it app ears , is alternative ship arrest”, which is wider
mis

scope.

of section 3(4) has its roots in the

The doubts surrounding the construction

to the relevant provisions of the Arrest

United Kingdoms bungled attempt at giving effect

Convention.

4 of Article 3 of the Convention

Here it should be noted that paragraphs 1 and

provide, in so far as relevant, as follows:

(4) of this Article.., a

“(1) Subject to the provisions of paragraph

which the
elalznaflt may arrest either the particular ship in respect of

127
maritime claim arose, or any other ship which is owned by the person who

was, at the time when the maritime claim arose, the owner of the particular

ship...

charterer and
(4) When in the case of a charter by demise of a ship the

relating to that
not the registered owner is liable in respect of a maritime claim

ship, the claimant may arrest such ship or any other ship in the

ownership of the charterer by demise, subject to the provisions of this

convention, but no other ship in the ownership of the registered owner shall be

liable to arrest in respect of such maritime claims.

in which a
The provisions of this paragraph shall apply to any case

time
person other than the registered owner is liable in respect of a mari

claim relating to that ship”.

is to be read as being
The opening words of paragraph 1 clearly indicate that it

ext it will be the provisions

subject to paragraph 4. Clearly therefore in the present cont

of paragraph 4 which will be one of overriding significance.

offending ship and the

Paragraph 1 taken by itself requires both the involved or

Ship to be arrested to be in the same ownership.

128
 It does not require either of them to be owned by the person liable for the claim.

Thus a literal reading ofparagraph 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’s registered 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
 The English draughtsmen in draughting the 1956 legislative provisions

in the enabling
purporting to give effect to Article 3, failed to include Article 3 (4)

restrictive judicial
legislation. As a consequence English law went off course with a

interpretation as to what alternative ship could be arrested.

Happily, The Span Treza case as well as subsequent amendments to the 1956

provisions have helped to provide a rudder for a path more in keeping with the

Convention stipulations.

The matter of the interpretation of Section 3(4) has also come up for decision

in other common law jurisdictions.

In a 1973 Cyprus case, Elias Rigas v The Ship “Baalbeck” now lying

ch
at Larnaca Harbor (1973) 11 J.S.C. 1519 the then restrictive English approa

was followed. 48

However, in 1978, the Singapore Court of Appeal in The Permian, (1978)

I Lloyd’s Rep. 308. embraced the liberal approach and held that there was no

requirement for the offending and arrestable ships to be sisterships and allowed the arrest

of the defendant’s vessel where the defendant was merely a charterer of the vessel in

respect to which the claim had arisen.

The Singapore Court of appeal declined following the then restrictive approach

adopted by the U.K. Rather this Singapore case in turn provided an important precedent

See Georghadjis, op cit, p.11

48

130
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 <the offending

ship > 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

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

49

131
purpose is served by any special relationship between <the offending ship>

and <the ship to be arrested >..

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

51 When the case went up to the English Court of Appeal,

definition...”

Ibid., p. 587
50
51
Ibid
132
 me, 3 was approved.
the approach and holding of La

stated as follows:
There, Lord Denning, M.R.,

ent is passed so
that when an Act of Parliam
“It is now fully established

nvention, we can look at the

effect to an international Co
as to give
Salomon v.
us to construe the Act, see
Convention so as to help
116;
ms and Excise, (1967) 2 Q.B.
Commissioners of Custo

0; Post Office
(1966)2 Lloyds Rep. 46
Lloyd’s Rep.
ry Ra dio Lt d., (19 68 ) 2Q.B. 740; (1967) 2
v Estua
s not mention
, and this is to eve n tho ugh the Act of Parliament doe
299

the 5
Co tion”.
nven2

ng, it matters not

mu st be em phasized tha t in the words of Lord Denni
Here, it
6
is mentione d in the sta tute as is the case with the 195
whether or not the Convention

. and Jamaica.
Act, (U.K.) in respect of both U.K
the intent
stion is the int ent of the legislature. Where
Ultimately the important que
seems to
dly to giv e leg isla tiv e eff ect to a Convention, then it
of the enactment was decide
seek the aid
ht to be ove rrid ing con sid eration as regards whether to
the writer that this oug

p. 52

133
of the Convention Provisions in statutory interpretation.

Thus, whether the Country is or not a party to the Convention,is but one of the

factors that should enter into the matrix of Considerations. Hence it seems to the writer

that like the English Courts did in the case of The Banco, a Jamaican court may in an

appropriate case pray in aid the Convention provisions for purposes of construing

stipulations of the 1956 Act (U.K.) such as those of Section 3(4).

Also as earlier shown, support for The Banco approach may be found in The

Eschersheim (1976) 2 Lloyd’s Rep .1. 53

The phrase “beneficially owned” is used in both paragraphs (a) and (b) of

Section 3(4). In The I Congress del Partido (1977) I Lloyd’s Rep. 536,

atp. 561, Robert Goff, J., at first instance stated that the phrase was introduced to take

account of trust law and that it refers to equitable ownership.

To determine who truly in the beneficial owner of a vessel it must be investigated

not only who is the legal owner of its shares but also who has an equitable interest. It is

only by taking into account both legal and equitable ownership that the beneficial

ownership can be determined,

Thus, whereas the Convention simply refers to ownership without any

see chapter 3, part D

53
see: Hill, op cit., p. 15
54

134
qualificati0n the 1956 Act by virtue of the English trust notion has added some

complexitY to the matter which has been extended to Jamaica as well via the applicable

Section 3(4)) provisions.

Under the Convention ,all questions relating to liability for wrongful arrest and

for the costs of providing security as well as all procedural matters are referred to the law

of the state where the arrest takes place. 55

The basic procedural requirements in Jamaica for ship arrest have already been

noted, As regards wrongful arrest it appears damages will only be available for gross

56 The prevision of security for costs by the

negligence and where malafides are proven:

arrester of the vessel in not mandatory and application for this has to be made to the

Court.

/
The Convention contains provisions regarding jurisdiction based on arrest

for hearing claims on the merits which are elaborated upon in the next chapter dealing

with Jurisdiction.

Here it may be briefly noted, that the Convention requires that where the court in

whose jurisdiction the ship was arrested has no jurisdiction to decide upon the merits, the

see: Article 6, and Chapter 5

55
see eg, Jackson, op cit, p. 178
56
see Article 7, and
Chapter 5

135
 is to be held as security for the satisfaction
security given to procure the release of the ship

ction to decide, and the Court of the State in

of and judgment by a Court having jurisdi

which the arrest is made must fix a time within

which an action must be brought. The

d if the proceedings aie not

Convention further provides that the ship may be release

brought within the time so specifi

58 ed.

(or
Accordingly, the Convention, by necessary implication, provides for arrest

y for proceedings in
bail or other security in lien) in one Contracting State as securit

the prohibition of arrest

another or for arbitration. 59 This also operates in tandem with

the contracting states.

of more than one ship for one more claim in any one or more of

uent to the
The law of the United Kingdom has traditionally linked, and subseq

to
United Kingdom’s ratification of the Convention have continued to link arrest

proceedings on the merits.

of
Such linking of arrest to proceedings on the merits contravened the provision

the Convention. Thus there has been judicial criticism of the failure of the United

Conve0
Kingdom to implement this aspect of the 6 ntion.

It appears that Jamaican law follows the English traditional approach. It is very

doubul, whether at present a Jamaican Court would hold on to property over which it

58 Ibid.
see Jackson, op cit, p.
170; Articles 3(3), 5, 7(2) and (3)
60
see Jackson, ibid; The AndreaUrsula (1973) 1 Q.B.265; The Maritime Trader
(1981) 2 Lloyd’s Rep. 153 (Sheen. J.)

136
has no jurisdiction on the merits.

Jurisdiction
This appears to follow from the basic principles concerning

what it is necessary for the would be ship

examined in the next Chapter as well as from

t for the arrest of the ship may be

arrest the show, (by way of affidavit) before a warran

procured.

of ships
Significantly, as regards Jamaica, the Conventions permits the arrest

any Contracting State, in

flying the flag of non-contracting states, in the jurisdiction of

and for any other claim

respect of maritime claims specified within the Convention

61
permitted by the law of the Contracting State.

e claims
Thus the restriction of the right of arrest to the enumerated maritim

Thus, if as is the case

applies only to ships having the nationality of a Contracting state,

to secure any
in must civil law countries, the arrest of a vessel is generally permissible

ng states such as
claim, whether maritime or not, vessels flying the flag of non-contracti

the lex fori

that of Jamaica may be so arrested, provided, however, the requirements of

are met.

Also, Article 8(3) provides that:

e
..any Contracting state shall be entitled wholly or partly to exclud

from the benefits of this Convention any Government of a non

61
see: Article 8

137
 person who has not, at the time of his arrest, his
ntracting state or any

ipal place of business in one of the contracting

habitual residence or princ

states”.

is rather miniscule.
The size of the fleet flying Jamaican flags

exists, the ships concerned stand to be

However, to the extent that such a fleet

affected as aforesaid.

ship arrest is also linked to

While, in the Jamaican municipal law context,

ipso facto affect the existing law pertaining to

maritime liens, the Convention itself did not

maritime liens.

Indeed, Article 9 provides:

as creating a right of
“Nothing in this Convention shall be construed

n, would not arise

action, which apart from the provisions of this conventio

the case nor

under the law applied by the Court which had seisin of

law or under
os creating any maritime liens which do not exist under such

the Convention on Maritime Mortgages and Liens, if the latter is

applicable”

138
 t to provisions of the Convention did not
Thus, the 1956 Act in giving effec

in respect of the
any new mari time liens, rather it allowed for arrest of a vessel
create
was
in the Convention. Jamaican Admiralty Jurisdiction
“waritime claims” set out

e the previously existing list of maritime liens

accordinglY expanded as a result whil

remained unaffected.

nt attempts are being made

However, a point worth reiterating here is that at prese

national -con ventions dealing respectively

to ensure the fullest compatibility between Inter

ld Jamaica become party to both of such

with Ship Arrest and Maritime Liens. Then, shou

ony between the operative principles

Conventions, this should bring not only greater harm

ensure greater harmony

pertaining to ship arrest and maritime liens interse, but also

ting such conventions.

between Jamaican law and that of other countries implemen

Stipulations.
2. Forced Sale of arrested Ship and International

by arrest and forced

Enforcement of a security interest in a vessel is carried out

pertaining to a
sale of the vessel. Earlier in this chapter the relevant local procedural rules

, there are also some

forced sale of an arrested ship were generally considered. However

international stipulations pertaining to forced sale of ships.

139
 These will be noted only briefly here since although they may be related to ship

arrest, on the whole they are more concerned with the actual enforcement of security

interests. As such they do not necessarily fall within the framework of the preliminary

issues being examined in the thesis.

However, to the extent that they may affect procedures pertaining to ship arrest

they deserve to be mentioned here.

Such stipulations are contained in the 1967 Convention on Maritime Liens and

Mortgages. Importantly as regards Jamaica, the Draft Articles for a new Convention on

Maritime Liens and Mortgages contain such provisions.

The relevant provisions of these Draft Articles have been incorporated into the

new Draft Jamaica Merchant Shipping Bill, 1989. Sections 75-78.

Section 75 requires 30 days notice to be given by the executing officer to

various holders of security interests in the vessel as regards the time and place of its sale.

This is based on Article 10 of the Draft of Articles.

The objective here is to provide protection to creditors, enabling them to

participate in the distribution of the proceeds of sale in accordance with their respective

priorities.

There is no such 30 day notice requirement at present. Hence, Section 75, if it

becomes law would bring about a significant change to this aspect of the procedural rules

140
pertaining to ship arrest and sale.

The other Sections 76-78 are basically concerned with ensuring a transfer of a

There
clean title in the vessel to the purchase and the issuing of a certificate to that effect.

a new
is provision as to the actual disposition of the proceeds of sale. However, until

ry
Maritime Liens and Mortgage Convention finally comes into being these draft statuto

provisions are likely to remain such and subject to change with changes in the Draft

Articles’ provisions.

F. “Postscript”: The Mareva Injunction an alternative to ship arrest?

-

In The Span Terza case, considered earlier, Donaldson L.J. in the course of

of
argument suggested to counsel that his cause, which he sought to protect by means

now
ship arrest, would be equally well served by employing instead the device which

bears the sobriquet of “The Mareva Injunction”.

as
The Law Lord suggested that in the particular case such a device would be just

and
effective in preventing the respondents from removing the vessel from the jurisdiction

giving rise to the provision of security “...in exactly the same way as security will, no

doubt, be provided in respect of this arrest... “62

This firstly raises the question as to what exactly is the Mareva Injunction? A

62 (1981) I Lloyd’s Rep. 225, at p. 229; Also: see: Powles, David G: The Mareva
Injunction and Associated Orders, Professional Books Limited, 1985, at p. 119;
O’Neill, Terry 0 :Mareva Injunctions, Lecture 22nd June 1982, Mareva Injunctions,
The Tower Hill London One day Conference, Lloyds of London Press, 1982, at p.9.
141
second question is whether such a device is available under Jamaican law? Thirdly, there

is the question as to how in fact does it compare to the facility of ship arrest? In the latter

case, the suggestions of Donaldson, L.J. makes such an inquiry particularly pertinent.

The Mareva Injunction is essentially a Court Order restraining a defendant from

63 It is a species of interlocutory injunction. As

removing assets from the jurisdiction.

such, it continues until final disposition of the action or until a further order is made.M

65 It was actually
The Mareva Injunction took its name from an English case.

developed in 1975 in England largely through the judicial initiative of Lord Denning.

Prior to the development of the Mareva doctrine in 1975, it was a fundamental

principle of the law of interlocutory injunctions, that no injunctions would be granted

prior to trial to restrain the defendant from disposing of or dealing with his assets. This

appears throughout the literature of the Common Law as the rule that there shall be no

judgment. In Robinson v Pickering (1881)16 Ch. D. 660, it was

execution before 66

bluntly stated that :“ you cannot get an injunction to restrain a man from parting with his

property”.

The Mareva Doctrine developed out of the increasing need for swift judicial

63 See Appendix 18
64 See eg: Mc Allister, Debra M.: Mareva Injunctions, Carswell, Canada, p.9
65 Mareva
Companie Naviera SA v. International Bulcarriers S.A. The Mareva,
(1975) 2 Lloyd’s Rep. 509; However, the Injunction was earlier granted in
Nippon Yusen Kaisha v. Karageoris (1975) 2 Lloyd’s Rep. 137
66 See eg: Mc AHister, op cit. p. 18; Lister & Co. v. Stubbs 1890, 45 Ch. D.!.

142
 moving his assets out of the jurisdiction so as to render
action to prevent a person

ineffectual any judgment given against him.

67

Such assets may be anything that has a pecuniary value such as a ship. Indeed,

the Mareva injunction has for some time now been applied to ships.
68

The conditions for the grant of the Mareva Injunction are basically the following:

69

1. The Plaintiff must have a substantive cause of action within the

jurisdiction;

2. The Plaintiff must show he has a good arguable case.

3. The defendant must have assets in the jurisdiction;

4. There must be a real danger that the defendant will remove the assets

from, or dissipate them within the jurisdiction; and

5. it must be just and convenient to grant the injunction.

As regards the jurisdiction for its grant, it may be noted that it developed in the

67 See:
Harvey, Brian: Judicial Interpretation in Commercial Law- The Proper
Limits of Judicial Inventiveness, Paper 11A2(b), 8th Commonwealth Law
Conference, Ocho Rios, Jamaica, September 7-13, 1986, at p.3
8
See eg. Clipper Maritime Co. Ltd of Monrovia v. Mineralimport export, Tje
Marie Lernhardt (1981) 3 All E.R. 307, (1981) 2 Lloyd’s Rep. 458.; The Rena
K (1979) I All E.R. 397; (1979) 3 W.L.R. 431
See: generally, Powles, op.cit, chapter 2

143
 the wide discretionary power granted by Section 45 of the Supreme
U K. based on

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

Court of Judicature

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, 70 writing in an Article published in 1985, after reviewing the

various English decisions on the Mareva Injunction observed in reference to the section

45 provision 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

learning on Mareva injunctions in the United Kingdom may, in a proper case, be given

effect in Jamaica”.
71

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 the law of Jamaica and now is an important facility in the practice of law in

Jamaica. 72

The basis for the grant is as Morrison contemplated, Section 49 (h) of the

Judicature Supreme Court Act 1880. The Section 49(h) provisions are originally based

on Section 25(8) of the Judicature Act, 1873 (U.K.) which was Section 45 of the

Supreme Court ofJudicature

the Mareva Junctio

73 n.
(Consolidation) Act 1925 (U.K.). the basis of the first grants of

The essential similarity between ship arrest and the Mareva Injunction is that they

and
both operate to restrain the movement Out of the jurisdiction of the ship concerned

thereby to prompt the provision of security for the claim.

However, there are clear distinctions between them, which, inter alia, will affect

the advantages one may have over the other in any given situatio
74 n.

Firstly, an injunction can only operate in personam. It does not operate to give

the plaintiff any proprietary interest in the assets of the defendant.

Hence, such assets are accordingly available to satisfy the claims of other

claim.
creditors. The plaintiff caunot treat such assets as security for his yet undetermined

72 Although todate, there are no reported cases

But now see : Section 37 (1) of The Supreme Court Act, 1981 (U.K.)
See Powles, op. cit., pp 7-10

145
 operates in
On the other hand, Arrest of the vessel by the plaintiff necessarily

Lord Justice
rem and gives a priority and a security which the Mareva does not.

inevitably have led to

Donaldson said in The Span Terza that a Mareva Injunction must

the provision of security, presumably by some guarantee..

before security
However, it would not have assisted the arrester in that case if

d to give, another creditor

was provided, which of course the vessel owners are not oblige

had come along and arrested the vessel.

he would not
This, no doubt operated strongly on the mind of counsel when

attempts to entice him with

allow himself to be persuaded by Lord Justice Donaldson’s

the Mareva option.

as an actual
A second important distinction in that whereas Arrest operates

which merely orders the

seizure of assets this is clearly not the effect of the injunction

an order, being
Defendant not to do certain things with his assets, breach of such

Contempt of Court with its attendant consequences.

Mareva Injunction
Thirdly, an arrest must fasten is to a particular asset whereas a

ant, that is those

may only relate to pai-ticularised but unspecified assets of the defend

the injunction applies to

assets within the jurisdiction.However, this is not the case where

as a ship. In
the defendant’s arrest in the toto and a fortiori, to a particular asset such

these instances, the practical effect is more akin to ship arrest.

ion may be
An application for an interlocutory order such as a Mareva injunct

146
 made at any time before or after trial. “Arrest” as defined in the 1952 Arrest Convention
I
is not a post trial device although it may be said cynically that “arrest” in the non-forensic

sense of “detention”, merely goes by a different name when it takes place after trial,
that

is, “attachment”.

Generally, applications for the Mareva may not be made before a writ
is issued

but in cases of urgency, this may be done. For an arrest to take place, as earlier
shown, a

writ in rem is required. Thus in this respect a Mareva may lend itself
to greater dispatch.

Usually, application is like arrest, made ex pane in case of urgency,

although as

a general rule, application for interim relief should be made by motion

or summons.

A supporting affidavit is required and should contain certain particu

lars in

keeping with the conditions for the grant of the injunction, mentioned
earlier. But, it

appears even this requirement may be dispensed with temporarily in

order to ensure

speedy action.

Here it may be emphasized that:

75 “The whole point of the Mareva jurisdiction is that the

plaintiff proceeds by stealth so as to pre.empt any action by the

defendant to remove his assets from the 7

jurisdiction”.
6

See Powes, op. cit., pp 7.10

76 Mustil
l, J in Third Chandris Shipping Corporation v. Unimarine S.A.
(1979)
Q.B. 645, at p. 653.

147
 Overall, the advantages of the Mareva injunction as applied to ships when

compared to ship arrest include the following: ‘

1. It prevents whatever assets are covered in the injunction and not only

the ship from being removed from the jurisdiction. Thus it can

prohibit the movement of more than one ship. Arrest is of a particular ship

and no more. (To the extent that the Mareva Injunction can prohibit the

movement of more than one ship, it is contrary to the provisions of the 1952 Arrest

Convention

2. In a Mareva Injunction, the property remains in the possession of the

defendant and, consequently, the attendant costs and expenses incurred

in its exercise are not high. Where the ship is arrested, the custody of the ship

is with the Bailiff of the Supreme Court and the overall costs inclusive of

maintenance and security while the ship is in such custody may be very

high.

3. The plaintiff applying for a Mareva Injunction need only make an

undertaking to issue proceedings and to file an affidavit. Arresting a

ship requires the plaintiff to actually take out a writ in rem and file an

The list of ‘advantages” are based on a list set out by Tetly : See Tetly, William
Attatchment, the Mareva Injunction and saisse conservatoire, L.M.C.L.Q., February
1985, 59 at pp 79-80

148
affidavit.

vis-a-vis the Mareva Inj unction include the

The advantages of ship arrest

following:
court and
p arr est , the shi p is phy sically put into the custody of the
1. By shi
r is in effect
unction, the owner or maste
placed with the Bailiff. With a Mareva inj
tempt of
his shi p, the onl y rem edy for breach of this order is con
ordered not to move

court

creditor
p is arr est ed, the cla im ant arrestor becomes a secured
2. Where a shi
t
the wr it in rem and his cla im will receive priority as of tha
from the date of the issue of
st in the
inj unc tio n doe s not giv e the plaintiff any security intere
date. The Mareva

s
ship or any priority over other claimant

r and the person

offending ship is under charte
3. As earlier shown, when the
may arrest
cla im is the cha rte rer , the claimant in an action in rem
who is liable on the
reva Injunction
ned by the charterer. The Ma
either the offending ship or a ship ow

the defendant, that is, in this

can only be taken out against the property of

case, the charterer.

149
 Mareva
that the arr est or of a ship is subject to damages, whereas a
4. It is seldom
ified or
tio n wil l enta il a dam age s suit if it is shown to have been unjust
Injunc

abusive.

to be
of respective “advtages” that care has
It is clear from the foregoing list
ticular situatio n.
ensure that the mo re app rop riate device is employed for the par
taken to
weapon.
practice seems to be a more potent
On the whole the Arrest device in

sed the view that:

As early as 1980, Bland expres

Mareva may prove a

“...the time may come when the

n Courts...”
procedural device in the Caribbea
powerful
what extent the
at tim e has alre ady in Jam aica . It remains to see how and to
Th

ere ship arrest is also available.

Mareva device will be used wh

TS
F: CONCLUDING COMMEN

ice for the

am ina tio n of the arre st dev ice has shown that it is a useful dev
Ex

150
maritime claimant. However, certain procedural requirements need to be adhered to in

seeking to make use of the facility.

The relevant procedural and other rules pertaining to ship arrest are largely

extended or sanctioned by the U.K. Rules of Court promulgated a century ago remain

basically unchanged.

There is doubt surrounding the applicability of present U.K. Rules where there

is lacunae in the local stipulations. Also, with extended legislation has come certain

tive
deficiencies inherent in U.K. law such as relate to that country’s attempt to give legisla

effect to the 1952 Arrest Convention.

Jamaica, it seems, may have to resort to this Convention to deal with some of

these deficiencies especially as regards the relevant statutory interpretation.

Also, it has been shown that there are possibly adverse consequences for

Jamaica not becoming a party to this Convention.

In the case of Maritime Liens, the incorporation of a list of maritime liens as well

as certain rules pertaining to forced sale of an arrested ship is a positive development

ntion
which had its roots in the provisions of Draft Articles for a new International Conve

on Maritime Liens and Mortgages.

This again highlights the international dimension to some of these preliminary

and related issues such as ship arrest. The need to take note of the relevant Convention

provisions therefore can hardly be overemphasized. Also it seems that in the case of the

151
 e amendments seem advisable.
extended provisions of the 1956 U.K. Act, legislativ

s of the initial source, that is, the

Such amendments should take note of the provision

Arrest Convention.

the presently ambiguous

This should not only give rise to greater clarity in

inty and justice internationally in

provisions but aid in the quest for uniformity, certa

maritime matters.

becoming a party to the Arrest

Serious thought should also be given to Jamaica

bears reiterating, Jamaica should also

Convention. As elsewhere mentioned, but here

new international rules pertaining to ship

seek to involve itself fully in the making of any

have important consequences in the

arrest and Maritime Liens as clearly these rules

domestic context of Jamaica.

n that there are basic similarities

Consideration of the Mareva Injunction has show

that of ship arrest.

in the practical purposes served by this device and

l in restraining the movement of

Although, like the Arrest device, it is quite usefu

rity, overall, it appears, arrest is likely to be

a ship and in prompting the furnishing of secu

preferred in the majority of cases.

st is also a jurisdiction obtaining

Finally and importantly, it was noted that Arre

of the next chapter.

device. The matter of Jurisdiction is the subject

152
 CHAPTER 5

Jurisdiction and it’s exercise in Maritime Matters

The International Dimension

153
 CHAPTER 5

Jurisdiction and it’s exercise in Maritime Matters-

The International Dimension

A: General Legal Framework

1. Introduction

2. The Public International Law Context

3. Municipal Law Considerations

(a) General

(b) Whether Court has Jurisdiction

(i) General

(ii) In personam Actions

(iii) In Rem Actions

(c) Whether court will exercise jurisdiction

(i) General

(ii) Lis Alibi Pendens

(iii) Jurisdiction Clauses

(d) If the court exercise’s jurisdiction which country’s law is to be

-

applied?

154
 B: International Maritime Convention Provisions and Jurisdiction and Choice If

Law issues implications for Jamaican law and the maritime claimant.
-

C: Concluding Remarks

155
 CHAPTER 5

Jurisdiction and its exercise in Maritime Matters —

the international dimension

A: General Legal Framework

1. Introduction

It is axiomatic that maritime claims by nature tend to have an international dimension.

They may for instance relate to any one of the vast number of maritime contracts entered into

daily by parties from different countries.

In Jamaica, such contractual claims may be those of shippers or seafarers against foreign

shipowners or a local assured against a foreign marine underwriter. Also the maritime claimant

may be a foreign shipowner clainring against a Jamaican charterer.

156
 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’

t refers to the competence

of the state to affect legal interests.

1 In effect, it refers to the authority of a state to govern

persons and property by its municipal law (civil and criminal).

2

This competence embraces jurisdiction to prescribe and proscribe, to adjudicate and enforce

the law.
3

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 concerned.
4

Jurisdiction is an attribute of state sovereignty.

5 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 be.

7

1 See eg: Ott, David H.: Public International Law if the Modem World Pitrnan, London, 1987 at p 135
2 See eg: 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 London press Ltd; 1985 at p. 9.
ie the nationality principle, see Ott, op. cit, p138; Bates, ibid.

158
 3. Municipal Law Considerations

(a) General

Jurisdiction from the municipal law perspective basically refers to the competence of a

state court to hear and determine a matter brought before it.

Here the initial concern of the maritime claimant wifi be whether the selected court will

hear and determine his case.

Accordingly, an initial question for any party to potential litigation in Jamaican Court has

jurisdiction over the dispute.

If yes, the next question is whether the court will agree to exercise its jurisdiction.

Thirdly, there is the related question of whether the Jamaican Court will apply Jamaican

Law or the law of some other country.

(b) Whether the Court has jurisdiction

(in) General

The relevant common law rules are purely proclaimed in character.

8 The court’s

jurisdiction in respect of any maritime claim is based on service of a writ of summons (or other

originating process) on the defendant.

9 For purposes of founding jurisdiction in a maritime

matter the Court is not concerned with the connection the parties have with Jamaica.
° Such
1

8 See eg: Cheshire and North: Private International Law, London, Butterworths, 1987, Chapter 11.
Ibid, also see generally Dicey and Morris on the Conflict of Laws, 10th Edn, London, Steven & Sons Ltd,
Chapter
9&10.
10 Vide: ibid.

159
considerations may only be relevant to whether the court will exercise jurisdiction.

Thus, the mere service of the writ on the defendant will give the Jamaican Court power

to try an action which may have no factual connection with Jamaica or is otherwise

inappropriate for trial in Jamaica.

In Jamaica, Maritime claims may be brought against the person liable on the claim,

through an t
‘
a ction in personam” or against property (ship, cargo or freight) with which the

claim is concerned through an ‘action in rem”.

11

See also: Chapter 4

160
 (ii) Actions in Personam

The Jamaican Supreme Court has jurisdiction

12 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) submits

13 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 Civil Procedure 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 See also infra, for special stipulations re exercise of this jurisdiction

in Collision cases, and generally Dicey
and Morris, and Cheshire and North, ibid.
Such submission may take place in various ways eg; by instituting court proceedings in a particular matter,
a Plaintiff in effect submits to the court’s jurisdiction to entertain a counterclaim against him in some related
matter; see Dicey and Morris, op ciL p. I et seg.
19

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 defendant.
14

(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: chapter 4 and The Rules of the Supreme Court of Judicature of Jamaica in the Admiralty Jurisdiction,
Rules 1 and 5.

162
 Lord Diplock stated the applicable considerations thus:

In order to justify a stay, two conditions must be satisfied...

(a) the defendant must satisfy the court that there is another forum to whose jurisdiction

he is amenable in which justice can be done between the parties at substantially less

inconvenience or expense, and

(b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage

which would be available to him if he invoked the jurisdiction of the ... 15

court.’

(ii) Lis alibi pendens

16

One ground on which the court may be asked to interfere by staying Jamaican

proceedings is that simultaneous actions are pending in Jamaica and in a foreign country

between the same parties and involving the same or similar issues.

The court may be asked to stay an action in Jamaica in two distinct situations:

(a) where the same plaintiff sues the same defendant in Jamaica and abroad: or

(b) where the plaintiff in Jamaica is defendant abroad, or vice versa. 17

In Mac Shannon v Rockware Glass Lid (1978) A.C. 795 at 812.

16 Literally means
“a Suit pending elsewhere” per Osbom’s Concise Law Dictionary, 7th Edn, 1983, London,
Sweet&
Maxwell, p.207
17 See also, infra, re collision cases.

163
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 continue.’

8

(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 fori.
19 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: Forum non conveniens in Canada: The Common Law position, The Federal Court of
Canada,
suggested Reform, Meredith Memorial Lectures, Richard de Boo Publishers, 1987; Dicey and 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

°
2
connection.

(iii) Maritime Torts

Cheshire and North

21 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 seas”.
22

see eg. Scott, A:W:: Private International Law, (Conflict of Laws), 1979 at p. 208 quoting Dicey.
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 rule,
23 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 commissi)
24

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’s flag 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
The exceptional circumstances relate to where resort may also be had to the law of another country if this has
the most
significant relationship with the occurrence and the parties; see Dicey and Morris, p 927.
the law of the place where a tort has been committed, see Scott, 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 law.

25

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

26
basis.”

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

See generally Cheshire and North, op cit. p. 545 et seq.

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 28 and 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
Jamaica acceed October 8, 1965
Jamaica acceed October 8, 1965

168
 (2) Law of the Sea Conventions

with the
Only one of the very extensive Montego Bay Convention deals exclusively

question of civil jurisdiction, that is Article 28.

provides as
This Article is captioned ‘Civil Jurisdiction in relation to foreign ships. It

follows:

h the
1. The coastal state should not stop or divert a foreign ship passing throug

person on board the

territorial sea for the purpose of exercising civil jurisdiction in relation to a

ship.

purpose of
2. The coastal state may not levy execution against or arrest the ship for the

or incurred by
any civil proceedings, save only in respect of obligations or liabilities assumed

of the coastal
the ship itself in the course or for the purpose of its voyage through the waters

state.

execution
3. Paragraph 2 is without prejudice to the right of the coastal state to levy

in the territorial
against or to arrest for the purpose of civil proceedings, a foreign ship lying

sea, or passing through the territorial sea after leaving international waters.”

person is
Accordingly, where a writ has been issued against a particular person, of that

stopping or
known to be on board a ship passing through the Jamaican Territorial Waters, the

169
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’s jurisdiction.

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’s civil 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 “stationary in 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
 “Passage shall be continuous and expeditious. However, passage includes stopping and

anchoring, but only in so far as the same are incidental to ordinary by force majeure or distress

or for the purpose of rendering assistance to persons, ships or aircraft in danger of distress”

Hence, if a vessel has stopped and is thus stationary, in the territorial sea solely for the

purposes of rendering assistance to another vessel in distress, presumably it should not be

deemed as “lying” in the territorial sea so as to render it amenable to arrest, if it was not so

amenable before stopping. This appears to be so, since the good Samaritan vessel would be still

in “passage” through the territorial sea.

Although, clearly, it would be literally lying in the sense of being stationary in the

territorial sea.

It should be noted that except for a minor cosmetic change the third paragraph, Article

28 is identical in wording to that of its predecessor, Article 20 of the 1958 Convention on The

Territorial Sea and Contiguous Zone.

Further, Article 20 is already enacted into Jamaican Statute Law: Schedule to The

Territorial Sea Act, 1971. This Act was passed to give effect to the provisions of the said

Geneva Convention, to which Jamaica became a party on October 8, 1965.

As regards Article 20, SectionS of The Territorial Sea Act under the caption,”

Restriction of execution of civil process”, provides as follows:

“Nothing shall be lawful to any extent to which it is inconsistent with any provisions of

the convention in so far as they are restrictive of the taking, pursuant to Jamaica’s sovereignty

171
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 30 notes that “For the purpose of territorial jurisdiction, besides actual territory, it

has been customary to assimi (the territorial sea)... to state territory.

31

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.: An Introduction to International Law, London, Butterworths, 1977.

31 Ibid., 264, See also: Menon, P.K.: The Commonwealth Caribbean and the Development of the Law of the
p
Sea, Commonwealth Caribbean Legal Essays, Faculty of Law, 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’s Territorial 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’s prerogative 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’s independent 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 Parliament”.
33

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 “the jurisdiction”, 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’s assumed or extra-territorial jurisdiction and Choice of

Law as regards maritime torts.

Henriques notes that:

Henriques, R.N.A.: The Jurisdiction of the Courts in 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”.

35
interference

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

36
jurisdiction.

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’s jurisdictional rights,

Ibid., p 50
Opcit, at p. 265
O’Connel, D.P.: The International Law of the Sea, Clarendon Press, 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

38 One possible exception regarding the

used in measuring the breadth of the territorial sea

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 vessels”.
39

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: Article 8, Montigo Bay Convention; Churchill, R:R and Lowe, A.V.: The Law of the Sea,
Manchester University Press, 1st edn, 1983, at p. 45; Akehurst op cit., at p. 26<; Shaw, Malcom:
International Law, 1977, London, at pp 239-240
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 law.

°
4

It is being contended by the writer that this new concept may ultimately have significant

See generally: Attard, David: The Exclusive Economic Zone in International Law, Claredon Press Oxford,
1987, chap. 8;
Lupinacci, Julio Cesar: The Legal States of the Exclusive Economic Zone in the 1982 Convention on the
Law of the
Sea and Schreiber, Alfonso Arias: The Exclusive Economic Zone: Its Legal Nature and the Problem of
Military Uses,
Chapters 6&7 respectively of: Vienna Francisco Ouuego: The Exclusive Economic Zone: 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 “specific legal 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
 However, states are required to .. . ‘comply with the laws and regulations adopted by the

coastal state in accordance with the provisions of this Convention and other rules of

international law in so far as they are not incompatible with this part”

Article 86 in reference to Part 7 of the Convention which deals with the High Seas states

that:

The provisions of this Part apply to all parts of the sea that are not included in the

exclusive zone, in the territorial sea, or in the internal waters of a state, or in the archipelagic

state. This article does not entail any abridgement of the freedoms enjoyed by all states on the

exclusive economic zone in accordance with article 58”.

Accordingly, the E.E.Z. is an area beyond and adjacent to the territorial sea, constituted

by a part of the sea not included in the high seas and subject to a specific legal regime

embracing:

(1) sovereign rights of the coastal state for economic purposes;

(2) other rights and duties contemplated in the convention as appertaining to the coastal

state;

(3) jurisdiction of the coastal state as regards specified matters such as protection and

preservation of the marine environment; and

(4) other state’s freedoms of communication such as those of navigation, overflight

and laying of submarine cables.

180
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

41
E.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 Church hill and Lowe, op cit, at p. 129 for instance indicates that if the E.E.Z. is deemed To have a residual
territorial
sea character, then a presumption would arise: ‘that nay activity not falling within the clearly defined rights
of non-
coastal states would come under the jurisdiction of the coastal state”.

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 come
) in
42

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 generis.

43 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 Inorder to arrive at a compromise position, see Luppinacci and Schreiber, ibid

See eg. Churchill and Lowe, 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 moulds.
44

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
adjacent seas 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

sector of 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

state would 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

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

space on the basis of sovereignty.

He asserts:

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

dangerous and 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

a viable regime to regulate uses of the sea beyond the territorial sea
46

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

47
Sea”.

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

interpretation”.
serious difficulties of 48

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 enactments
49 on the E.E.Z.

did not reveal any specific reference to the exercise of state civil jurisdiction in the zone.

, Indonesia 51,
Typically, in the various enactments such as those of the U.S.S.R.
50

Equatorial Guinea 52 and the U.S.A.

. there are only stipulations as to the particular state’s
53

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

54
underway.

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 reproduced in. The Law of the Sea: Notional Legislation on the Exclusive Economic Zone and the
Exclusive fishery Zone, U.N.. New York, 1986; See also: Moore, Gerald: Coastal State requirements for
foreign fishing, FAO Legislative Study 21 Rev. 3. Rome, 1988
50 Decree of the Union of Soviet Socialist Republics on the Economic Zone of 28 February 1984
51
52 act No 15/1984 of 12 November 1984 on the Territorial Sea and Exclusive Economic Zone.
Proclamation 5030, 10 March 1983 by the President of the United States of America.
See eg. daily Gleaner Report, January 13, 1989 at p.2 The Bill appears to be at its very formative and
“confidential” stage and thus attempts by the writer to procure a copy of what has been done so for was
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 place.

55

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. The effect of the Existing Law of the Sea on the Caribbean
Region and the Gulf of Mexico, in Pacem in Maribus: Caribbean Study and Dialogue 256-257 (Borgese, E.
(Ed) 1974); Lewis, Vaughan A: 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
Common Heritage of Mankind, 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 great”.
57

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, David William: The Law and Practice relating to Oil Pollution from Ships, London, Butterworths,
1978.
Thid., p. 152.

188
 Here, the most relevant basis for seeking to obtain the court’s necessary blessing for

service outside the jurisdiction, is likely to be That “the action is founded on a tort committed

within the jurisdiction.. “58

But, with the law in its present state, such a spill would be deemed to have been

committed (on the High Seas) beyond national jurisdiction.

Thus, the court could not assume jurisdiction.

Thus it is being submitted that changes in the relevant procedural and private

international law rules should ultimately be effected so as to ensure the efficacy of the court’s

exercise of its civil jurisdiction in respect of the E.E.Z. and specifically the Article 56 (1)(b)

matters:

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

(2) marine scientific research; and

(3) the protection and preservation of the marine environment.

Of these matters (3) appears to be of most immediate relevance to Jamaica.

This is because of the grave danger that would be posed to the island’s tourist industry,

economy and general well being if there was a large oil spill affecting in particular the island’s

beautiful beaches.

Vide: supra
To Date, Jamaican beaches have been largely free of oil pollution. A Study conducted between 1980-1983
has confirmed this: vide: Wade, Barry A., Provan, Maura and Gillet, Vincent Oil Pollution of Jamaican
Coastal Waters and Beaches: Results of the IOCARIBE/CARIPOL Monitoring Programme (Jamaica), 1980-
1983, Carib. J. Sci 23(1): 93-104 (1987)

189
 Thus, Ratiray, in reference to the Caribbean, has alluded to the potential for oil spill

aid pollution... .thereby threatening the lifeline of the economies of many of the states,

particularly those heavily dependant on Tourism”.

61

In such circumstances, it would be absolutely vital that the island’s own laws do not

fetter maximum compensation recovery as in fact they could possibly do now.

Since the adoption of the Montego Bay Convention, two international treaties have

provisions pertaining to the E.E.Z.. which lend support to the writer’s foregoing
incorporated

submissions.

These Conventions are,

The International Convention on Civil Liability for Oil Pollution Damage, 1969 as

amended by its 1984 Protocol and the International Convention on the Establishment of an

International Fund for Compensation for Oil Pollution Damage, 1971 as amended by its 1984

Protocol.

Article 2 of the 1969 Liability Convention (as amended by Article 3 of its 1984 Protocol)

provides that:

“This Convention shall apply exclusively:

(a) to pollution damage caused:

(i) in the territory, including the territorial sea, of a Contracting State, and

Ranray, K.O.: Law of the Sea and its implications for the Caribbean, Port News, 1983, p.6.
61 Ibid.

190
r

(ii) in the exclusive economic zone of a Contracting State, established in

has not established

accordance with international law, or if a Contracting State

sea of that state in

such a zone, in an area beyond and adjacent to the territorial

than 200 nautical

accordance with international law and not extending more

territorial sea is measured;

miles from the baselines from which the breadth of its

ent or minimize such damag&’.

(b) to preventitive measures, wherever taken, to prev

ssbehind the development of this

Abecassis and Jarashow 62 indicate that the protagoni

s the jurisdiction to
provision “... felt that recent developments in international law gave state

zone. They clearly had in mind not only

protect the environment within the exclusive economic

but the existing assumption by many

the provisions of the Law of the Sea Convention 1982,

63
states of jurisdiction over areas beyond the territorial sea”.

ides for civil liability

This Convention, it must be borne in mind, basically prov

64
compensation for oil pollution damage.

s parallel those of the Liability

The Fund Convention jurisdictional and related provision

ions operate in tandem.

Convention and, in this and other respects the two Convent

a party to these Conventions

Enactment of enabling legislation pursuant to becoming

is to say that oil pollution committed

could take the form of creating a new cause of action, that
,

Ships, 2 nd, London, Stevens & Sons,

Abecassis, David W and Jarashow, Richard L: Oil Pollution from
1985
Ibid.,p.235
See: chapter 6

191
in the E.E.Z. or its equivalent, is actionable locally and/or the form of extending the court’s civil

jurisdiction to include specified torts, committed within the E.E.Z. affecting the preservation of

the marine environment.

Whichever option is utilized, the effect would be to ensure that not only the court would

have jurisdiction over the matter, but that Jamaican law would be applied.

Another aspect of the Montigo Bay Convention that is of particular relevance to the

issues under discussion in this chapter, is its provisions in respect of the nationality of ships.

Article 91(1) provides as follows:

“Every state shall fix the conditions for the grant of its nationality to ships, for the

registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of

the state whose flag they are entitled to fly. There must exist a genuine link between the state

and the ship”.

Article 92 (1) provides that: “Ships sail under the flag of one state only and, save in

exceptional Cases.. .shall be subject to its exclusive jurisdiction on the high seas”.

Article 94 deals with the duties of the flag state and provides.

“1. Every state shall effectively exercise its jurisdiction and control in administrative,

technical and social matters over ships flying its flag.

2. In particular every state shall:

192
 (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.

67 have made a mockery of the “genuine link”

The phenomena of flags of convenience

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: International Maritime Law Conventions, (Vol 1-4), 1983

Ibid., Vol.4., p. 2638
67 Alderton defmes a flag of convenience countty as one whose laws “allow and in fact make it easy for ships
owned by foreign nationals to fly their flag”,:See: Alderton, Patrick M.: Sea Transport Operation and
Economics, 3rd Edn, Thomas Reed Publications Ltd, London & Sunderland, 1984 at 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 nature”.

69

This can lead to unsavory consequences in the application of Jamaica’s maritime 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 Sea requires a “genuine link”, “...in practice simply entry into
a register may be enough Nye, Daniel A: Jurisdiction and Choice of Law, Lecture: The Norwegian
“:

Shipping Academy, 28 March 1984 (unpiublished).

194
r

the law of the flag then this may discreetly brings into play the relevant provisions of the

Convention dealing with ship registration and nationality.

Subsequent attempts to give more substance to the “genuine link” requirement have on

the whole had the effect of giving legal blessing to open registries and flags of convenience.

The United Nations Convention on Conditions for Registration of Ships, 1986 seem to

generally have had just such an effect.

71 is not a flag of Convenience

Jamaica, unlike a number of its Caribbean counterparts,

country. Its ship registration requirements are governed by Part 1 of the Merchant Shipping

Act,1894, (U.K.)

Vide: Hyman, Hugh: Legal Insight Column, Caribbean Shipping Journal, November 1987, pp. 31)32.

195
 (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’s employment contract with the shipowner.

This national law means in effect that of the country of the ship’s flag 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’s Articles 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’s Articles 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.

See also mfra for further discussion

197
 Article 3, however goes on to provide as follows:

‘Nevertheless, claimants shall have the right to proceed before the appropriate Courts of

the State which owns or operates the ships in the following cases:

(i) Claims in respect of collision or other accidents of navigation;

(ii) Claims in respect of salvage or in the nature of salvage and in respect of general

average;

(iii) Claims in respect of repairs, supplies or other contracts relating to the ship:

and the State shall not be entitled to rely upon any immunity as a defense...”

The same rules apply to State-owned cargoes carried on board the State-owned ships

granted immunity as aforesaid.

The other non-immune State-owned ships, generally those operated for commercial

purposes, are as regards its liabilities and obligations, subject to the same rules relating to the

jurisdiction of the courts and procedure as their privately owned counterparts.

The Montego Bay Convention to which Jamaica is a party similarly recognises a

distinction between commercially and non-commercially operated government owned vessels

for purposes of granting immunity. 73

Overall, the approach of national courts internationally seem to be inclined towards

immunity along the lines reflected in the provisions referred to. It is not clear what precise

approach the Jamaican Courts will take, although one may surmise that they will probably

See eg. Articles 29-32

198
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: Sovereign Immunity: 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.’niralty Jurisdiction (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 ofJustice 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 1 presumably

‘ See: Cloumn2, Second Schedule, The Admiralty Jurisdiction (Jamaica) Order in Council, 1962
76 per marginal note, see also section 4(7); “other cases” presumably includes Allision cases.

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

77
judicata,

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

78 involving two or more ships where:

out of a collision or like navigational incident

(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 clicey and 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 Civil Procedure

, would be brought into play in a given collision case requiring service out of the
79
Code

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.

See Chapter 4

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

(Article 8)

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’s licensing 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, Fund Convention, 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 effective’
.
t

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
 The provisions of the Hamburg Rules relating to Jurisdiction are of particular

importance. They have a special significance for Jamaica and its shippers who often

today find themselves with Bills of Lading with exclusive foreign jurisdiction clauses.

’ and Hague-Visby
The Hamburg Rules were developed to replace the Hague
8

82
Rules.

Jamaica is a party to and applies the Hague Rules. These Rules are enacted into

Jamaican Law by way of incorporation into the Carriage of Goods Act, 1900. They are

actually contained with limited modifications in the Schedule to that Act.

The Hague Rules did not at all assess the question of jurisdiction. This matter

was therefore left to be dealt with by the national law of the various contracting states:

In time, various countries including Jamaica have been faced with the use of

exclusive jurisdiction clauses in Bills of Lading.

Carriers usually attempt to avoid dealing with courts and jurisprudence that may

operate against their interests by inserting jurisdiction clauses in their Bills of Lading

specifying that a particular Countrys Courts should exclusively determine any dispute

that may arise under the Bifi of Lading.

Typically also, such clauses would contain a choice of applicable law stating that

the law of a particular country, is to govern.

In practice, such jurisdiction clauses in Bills of Lading usually take one of two

81
Inmati onal Convention for the Unification of Certain Rules of Law relating to Bills of Lading,
1924; See also chapter 6.
meHague Rules as amended by its 1968 Brussels Protocol; see also chapter 6.
82

216
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 jurisdictions.
83

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 homeland”.
84

However, internationally there has been different approaches to this important

See: Braekhus, op. cit., p 300.

83
pp 300-301

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 merits.

85

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 2 1(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

S also: chapter 6
86

220
 It is to be noted that the places of jurisdiction are, except as just noted, exclusive

and apart from the places of arrest, are not contained to contracting states.

This has the effect of giving the claimant a wide variety of options.

It is clear that the aim of the jurisdictional provisions was to achieve a balance

between the carrier and cargo interests.

As the law now stands internationally this balance tilts very much in favor of the

87
carrier.

However, the Convention does not at all deal with the second limb of the

jurisdiction issue that arises in practice.

This as noted above, embraces the question as to whether the court will exercise

the jurisdictions permitted under the Convention to refuse to hear a case on the grounds of

say forum non conveniens.

Article 21(4) essentially prohibits the bringing of more than one action between

the same parties on the same ground where the normal principles pertaining to us alibi

pendens and res judicata apply.

As regards the Jurisdiction and Choice of Law clauses it may be noted that

although they are being focused on in the present context in relation to the carriage of

goods by sea they also operate elsewhere in the Jamaican Maritime context.

Thus there may arise in relation to contracts of marine insurance where a

S also: chapter 6.
87

221
Jamaican assured, often has his contract of insurance 88 with a foreign insurer. Also,

they may be in issue in a contract of employment 89 between 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

See: Legal and documentary aspects of Marine insurance, INCTAD, TD/B/C.4/lLS27/Rev.1, at

88
p.25
89 fenerally, Morgenstern, op. cit
Sec
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 here”.
91

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 Texas...”

92 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,

Ibid.,p 471
91

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

93 character of Bills of Lading.

eroded by the present adhesion

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

An adhesion contract is based on standard form, used to supply mass demands for goods and/or
93
services, drafted for an indefinite number of persons, rather than a single individual and whose use
entails the superior bargaining power of the stipulator vis-a-vis the individual customer/consumer
whoihad no bargining power, must either adhere to the contract ar refuse to contract altogther See eg.
Burgess, Andrew: Adhesion Contracts and Unfair Terms.., 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 jurisdiction”
94

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 clauses.

95

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

94 Wiid & Salik Inc. v. Companie Generale Transatlantique, 43 F. 2d. 941, 942. (2d Cir. 1930)
See:
0p cit., p. 304
95

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

. It is for the Plaintiff to prove

jurisdiction to foreign courts if they were “reasonable”
98

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.

thid.
97
See: Manbabady, Samir (ed): Comments on the Hamburg Rules, The Hamburg Rules on the
98
Carriage of goods by sea, 1978, p. 101 citing Kranger v Pennsylvania Rail Co., 2 Cir. 1949, 174F.
2d. 2556.
See: Bills of Lading, Report by the Secretariat of UNCTAD: TD/BC.4JILS/6/ Rev. 1; U.N., N.Y.,
99
1971, at p. 50; See also: Oland, A. Barry: Forum Non Coveniens in Canada: The Common Law
Position, The Federal Court of Canada, Suggested Reform, 1986 Meredith Memorial Lectures, Mcgill
University, Richard de Boo, Ontario, at pp. 323, 334.

227
 Thus its Carriage of Goods by Sea Act provides:

“Any stipulation or agreement, whether made in the Commonwealth or

elsewhere, purporting to oust or lessen the jurisdiction of the courts of the

Commonwealth or of a state in respect of any bill of lading or document relating to the

carriage of goods from any place outside Australia to any place in Australia shall be

illegal, null and void and of no effect. The basic English Common law position has

already been summarily indicated above.

In the Eleftheria (1969= 1 Lloyd’s Rep. 237, Justice Brandon elaborated on the

position thus:

“(1) Where plaintiffs sue in England in breach of an

agreement to refer disputes to a foreign court, and the defenthnts apply for a stay, the

English Court, assuming the claim to be otherwise within the jurisdiction, is not bound to

grant a stay but has discretion whether to do so or not.

(2) The discretion should be exercised by granting a stay

unless strong cause for not doing so is shown.

(3) The burden of proving such strong cause is on the

plaintiffs.

(4) In exercising its discretion the Court should take into

account all the circumstances of the particular case.

228
T (5) In particular, but without prejudice to (4), the following

matters, where they arise may be properly regarded:

(a) In what country the evidence on the issues of

fact is situated, or more readily available, and the effect of that on the relative convenience

and expense of trial as between the English and foreign courts;

(b) Whether the law of the foreign court applies

and, if so, whether it differs from English law in any material respects;

(d) Whether the defendants genuinely desire trial in

the foreign country, or are only seeking procedural advantages, whether there would be

very great delay relative to English proceedings and whether remedies available in

England would not be available in the foreign forum.

(e) Whether the plaintiff would be prejudiced by

having to sue in the foreign court because they would: (i) be deprived of security for that

claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time bar not

applicable in England; or (iv) for political, racial, religious or other reasons be unlikely to

get afair trial.” 100

It is to be noted that Justice Brandon’s first three principles place very strong

emphasis on the sanctity of contract notion.

Thud.,
1 p. 242

229
 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.

101 writing about the situation in Canada where the Eleftheria’s principles
Oland,

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 clause...”
02

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

1bjd.,
102 p. 318
1bjd.,
103 p. 319
1bid.
104

230
 If the Jamaican Admiralty Court and Jamaican maritime jurisprudence 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’s jurisdiction

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 105

contemplated.

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

See g. Chapter 2.
105

231
with that country’s position 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
as they had a regards the Hamburg Rules.

As is to be expected, the result of this was that the Hague Rules largely reflected

the interests of the club of shipowning countries who enacted them in accordance with

their vested maritime interests.

No provision as regards Jurisdiction or Jurisdiction clauses effectively meant

that carriers who in reality unilaterally draw up the terms of the Bill of Lading, have

sought to take advantage of the opening in the Hague Rules by way of self serving

Jurisdiction and Choice of Law Stipulations.

The Hamburg Rules Article 21 and 22 provisions after a solution to the

problems which flow from this situation.

Jamaica,as a “shippers” country, ought to bear this in mind and have the reality

of this fact reflected in its laws.

Indeed, Oland has strongly argued for the immediate enactment into Canadian

legislation of the provision of Articles 21 and 22 of the Hamburg Rules.

106

Canada is hardly to be compared with Jamaica as a “shippers country”.

Hence, it seems that a fortiori, the enactment of the Hamburg Jurisdiction

provisions is also highly advisable in Jamaicas case where it is saddled with the aging

Hague Rules and a common law approach to Jurisdiction and Choice of Law clauses

which, if not creatively applied, stand to exacerbate an inequitable situation and generally

106 Ibid., p. 321

233
operate contrary to Jarnaicas best interest in the present context.

Articles 21 and 22 may be given local legislative effect, with or without Jamaica

becoming a party to the Hamburg Rules.

Indeed, there are already instances in Jamaican law where International Maritime

the
Convention provisions are given legislative effect without Jamaica being a party to

particular convention.

Thus such enactment as suggested need not await appraisal of the Rules in toto

and their ratification.

Until such enactment (if any) due cognizance may also be paid to the

be
considerations embodied in The Eleftheria’s fifth principle. However these should

ing
done from the perspective indicated. The Australian approach in statutorily outlaw

such clauses recommends itself as a secondary option.

Finally, it should be emphasized that no blanket judicial insularity or

chauvinistic legislation promulgation is being promoted.

However, it appears to the writer that in a world where perceived “national

tive or
interests” often provide the ratio d’étre whether overtly or covertly for legisla

national
judicial activity, it would be less than prudent not to have regard for one’s own

udence.
interests in attempting to shape an indigenous and relevant maritime jurispr

United Nations Convention

234
 on International Multimodal Transport of Goods, 1980

(Articles 26 and 27)

The Jurisdiction stipulations of this Convention broadly parallel those of its

UNCTAD counterpart, the Hamburg Rules.

Article 26 provides that in judicial proceedings relating to international

multimodal transport under the Convention, the Plaintiff at his option may institute an

action in a court which, according to the law of the state where the court is situated, it is

competent and within the jurisdiction of which is situated one of the following places:

(a) the principle place of business, or in the absence

thereof, the habitual residence of the defendant; or

(b) the place where the multimoclal contract was made,

provided that the defendant has there a place of business, branch of agency through which

the contract was made; or

(c) the place os taking the goods in charge for international

multimodal transport or the place of delivery; or

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

multimodal transport document.

Likewise, where provided for, arbitration proceedings may be instituted in any

of the said places. Agreements between the Parties after the claim has arisen as regards

235
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’s jurisdiction.

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’s tribunals 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 appropriate jurisdiction 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
question of the law of the flag state is brought into issue.

Similar considerations obtain in respect of the Choice of Law provisions in the

seamen’s Articles of Agreement Convention.

Overall, it had been shown that as regards the Conventions to which Jamaica is

a party, the provisions relating to the considered preliminary issues may ultimately have

consequences for Jamaican maritime procedural and private international law.

This will be even more so the case when Jamaica fully exercises its rights under

such Conventions. An important case in point, is the establishment of an EEZ as

provided for by the Montigo Bay Convention.

In the case of the 1952 Collision Convention, where Jamaica has given

legislative effect to its provisions without becoming a party to the convention, the relevant

legislation contemplates the enactment of certain Rules of Court.

These are yet to be promulgated. There is thus a gap in the local law which has

its roots in the provisions of an international convention to which Jamaica is not even a

party.

This situation ought to be rectified along the lines already suggested.

As Jamaica is not a party to the Conventions whose considered provisions fall

within the second category their stipulations have not up to now had any direct

consequences for Jamaican law.

However, indirectly they may affect Jamaican Jurisprudence to the extent that

239
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., Enforcement of Maritime Claims, 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. (as he then was) in Allen v Sir Alfred McAlpine and Sons Ltd. et al (1968), 2QB 229 at
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 Maritime Law, Time-Barred Actions, 1984 at p.v. (Introduction).
Danielson, David and Smith, Craig: The presentation of the claimant’s cargo case, 1981.
Archbold v Scully (1861) 9 H.L. Case 360 per Lord Wensleydale at p. 383 cited 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 Within their 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 such proceedings were set on foot after the lapse of a definite period of time, reckoned as a
rule from the date of the violation of the right”.
Ibid., p. 90.

247
by the courts. These include:

1. that long dormant claims have more cruelty than justice in them

(RB Policies at Lloyds v Butter 2 ALL E.R. 226 at 229, 230 per

Streatfield J.);

2. that a defendant might have lost the evidence to disprove a stale claim

(Jones v Beligrove Properties Ltd. (1949) 2 K.B. 700 at 704, C.A.

per Lord Goddars C.J.); and

3. that persons with good causes of actions should pursue them with

reasonable diligence (Board of Trade v Cayzer, Irvine and Co (1927)

AC 610 at 628, HL, per Lord Atkinson).

The Ontario Law Reform Commission of Canada in its Report on Limitation of

Actions succinctly sets out the raison detre of limitation periods as follows:

“Lawsuits should be brought within a reasonable time. This is the policy

behind limitation statutes. These laws are designed to prevent persons

from beginning actions once that reasonable time has passed. Underlying

See Haisbury’s Laws (4th edition) Vol 28, para 605.

Ontario Law Reform Commission, Report on Limitation of Actions, 1969.

248
 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: Dismissal for want of prosecution: 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..
See generally: Haisbury’s Laws (4th edition) Vol 28, para 601 et seq.
“The fact or combination of facts which give rise to a cause of action” (per Osbom’s Concise 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. ‘Where there 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., para 643-

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’s Laws, op. cit., para 864 et seq.

252
 d. The effect of time having run

The general rule, in Jamaica (following the traditional English view) is that the effect of a

time-bar is to take away the claimant’s remedies (by action or by set-off) It leaves the right to the

claim otherwise intact. Thus, claimant, may by means other than action or set-off on the time-

barred claim still recover his due.

Part B — Limitation of Maritime Actions in Jamaica

1. General Stipulations

In Jamaica, the general period of limitation is six years from the accrual of the cause of

action where it is founded on simple contract or on tort. For actions against Public Authorities,

the limitation period is one year. In cases of fatal accident, the relevant time period is three

years. Thus, where there are no special provisions relating to a particular maritime claim, these

Ibid.., paras 645, 646.

See generally: The Limitation of Actions Act, 1881.
The Public Authorities Protection Act, 1942, section 2.
The Fatal Accidents Act, section 3.

253
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 International Convention for the unification of certain rules of law relating to bills of lading, 1924.
Note: This section of the thesis focuses on carriage of goods claims covered by the Hague Rules. For other
carriage of goods claims, other considerations will apply, 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 goods were subject to a joint survey or inspection.

255
paragraph of paragraph 6 dealing with notice, that it “... appears to have no legal effect.

Whether notice is given or not, the onus of proving loss or damage will lie upon the person

asserting it”.

However, with respect, it appears to the writer, that this assertion fails to distinguish “legal”

from “practical” consequences. Mankabady, for instance states that the sanction for not giving

timely notice in accordance with the provisions under discussion, “... is that the burden if proof

shifts from the carrier to the shipper.” This surely is a legal consequence and follows logically

from the evidential presumption against the consignee where he fails to give notice.

It is true that in practice it is likely that in the final analysis a claimant, despite any initial

presumption in his favour will ultimately have to discharge the burden of proving his claim.

Hence, it may be said that the first sub-paragraph of paragraph 6 is of limited practical

significance. Nevertheless, the view that it is of no legal effect seems unsupportable in strict

legal terms, since the mere shifting of the burden of proof however short lived that might be is

of definite legal consequence. Moreover, such shift need not be temporary nor does it appear

that the first sub-paragraph is devoid of practical significance.

For instance, where a consignee can furnish a qualified receipt, this will automatically

18th edition.
Ibid.., at p. 428.
Mankabady, Samir: Comments on the Hamburg Rules, the Hamburg Rules on the Carriage of Goods by
Sea, Samir Mankabady, Editor, A.W. Sitho 88 Leyden/Boston 1978, at p. 93.
-

256
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-trier has 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, 5th Edit, 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 Courts have 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 Background plots (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 “suit’

t 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

that in Article 3(6) it should be held to be at least void to this extent.

Vide infra.

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

In Automatic Tube Co Pty Ltd. and Email Ltd. Balfour Buzacott Division v Adelaide SS (Operations) Ltd.,
-

Adelaide SS Co Ltd. and Adelaide SS Co Pty Ltd., The Belirane (1967) i Lloyd’s Rep 531.

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

National Packaging Corp. v Nippon Yusen Kaiska (NYK Line) 1973 I Lloyd’s Rep 46.
American Hoesch Inc. and Riblet Products Inc. v SS Aubade and Maritime Commercial Corp. Inc. (1971) 2
Lloyds Rep 423.

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—Visby Rules:

Like its Jamaican counterpart does now, it applied only to “outward” Bills of Lading.

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.

Vide supra.

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 concluded with a
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 performance has been entrusted.’ (per
Article 1)
Article 4(2) provides that the carrier is deemed to be in charge (and accordingly responsible, 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.

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 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—5 1, 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
 The Committee felt that there should be amendments stating that it would be sufficient for

suit to be brought in any jurisdiction having reasonable close connection with the contract of

carriage, and as the country of shipment or destination, and that the cargo claimant would not be

restricted to bringing suit in a particular jurisdiction.

Accordingly, Article 21 gives a claimant a wide choice of jurisdiction. Further, even where

the contract of carriage stipulates jurisdiction in a particular country or courts, the claimant is

not, by the Hamburg Rules precluded from seeking alternative jurisdiction.

(c) Does the word “suit” include arbitration?

As afready noted, the English case, The Mearak, held that “suit” includes arbitration. The

UNCTAD Committee was concerned that where ‘suit” is held to include arbitration, the

consequences could be very prejudicial to consignees when the Bill of Lading has been issued

under a charterparty containing an arbitration clause.

Here, the charterparty is usually incorporated into the Bill of Lading by reference and the

consignee does not know of its contents. The result is that the consignee might start court

proceedings within one year. Belatedly, he discovers that his legal suit will not be entertained

because he did not in the first place arbitrate. His application for arbitration then fails because he

(1965) p. 223, (1965) 1 All E.R. 230, C.A.

276
did not appoint an arbitrator within the one year period. The end result is that he is without a

remedy.

However, if tt
suit” is taken to exclude arbitration and the parties in fact submit to arbitration,

there is the question of whether this means that they have thereby waived the requirement that

suit must be brought within one year.

In the final analysis the word “suit” was abandoned and Article 20 (1) expressly indicates

that either judicial and arbitral proceedings may be commenced to satisfy the time limitation

requirement.

Nevertheless, it appears, a claimant is still required to ensure that he starts the right

proceedings at the right time. This is so as the Rules expressly provides for the settlement of

disputes by arbitration per Article 22 (1).

Further, Article 22 (2) provides that:

“When a charter-party contains a provision that disputes arising thereunder shall be

referred to arbitration and a bill of lading issued pursuant to the charter-party does not contain a

special annotation providing that such provision shall be binding upon the holder of the bill of

lading, the carrier may not invoke such provision as against a holder having acquired the will of

lading in good faith”.

Hence the problem of due notice to the bill of lading holder as to what proceedings to

277
commence should not normally arise.

(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-lain Steamship Co Ltd v Late & Lyle, (1936) 2 All ER 597, in which Lord Atkin stated that: “...

the departure from the voyage contracted to be made is a breach by the ship owner of his contract, a breach of
such a serious character that, however slight the deviation, the other party to the contract is 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

This accords with certain established practice. For instance, under the existing “Gold Clause Agreement”,
British ship owners agree to, in effect, allow up to two years for cargo interests to start action against them
provided specified timely notice is given of the claim.
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 writ is not to be renewed except for good reason...” per Lord Denning. M.R. in
Easy v. Universal Anchorage Co. Ltd. (1974) 1 W.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 ‘

Limitation of Actions provides as follows:
t

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
1

salvage services terminate.

It is now expressly provided that the person against whom a claim is made can during the

limitation period allow more time to the claimant for commencing his action against him. This,

as already noted, would in any event be normally allowed under Jamaican Law.

Article 23 expressly indicates that commencing arbitration proceedings will be sufficient to

stop time from running against the claimant. No reference was made to arbitration under the

1910 convention.

The new stipulation parallels the Hamburg Rules Article 20 (1) provisions and appears to be

indicative of a new trend in International Maritime Convention provisions.

Under the new provisions, a court would no longer, at least, by virtue of the Convention,

have any power to extend the time for bringing action except in respect of recourse actions for

indemnity.

For indemnity actions, no maximum period is stipulated. This is left to the law of the state

where proceedings are instimtecl.

(c) Maritime Claims in Jamaica — without claim specific limitation periods (and International

Convention provisions)

Supra.
Discussed, supra

288
 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 “competent jurisdiction “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
-

Kingdom Pollution Law, 1985, chap. 4; Abecassis, D.W., Tarashow, R.L.: Oil Pollution from Ships, (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.

- -

Tanker Owners Voluntary Agreement Concerning Liability For Oil Pollution.

Contract Regarding A Supplement To Tanker Liability For Oil Pollution.
Vide: TOVALOP & CRISTAL: A guide to oil Spill Compensation, 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, per Lindley 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, International Shipping Publications, 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 Liens and
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 <jamaican law does not ipso facto prescribe any

specific time period for commencing arbitration proceedings. Any such requirement is provided

by the arbitration agreement.

Thomas notes that it is not open to the court to “...dismiss a claim in arbitration or grant an

Thomas, D. Rhiclian: The legal remedies for dilatoriness in the pre-hearing arbitral procedure, 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: Power of court to extend time for commencing arbitration
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
 It therefore appears that appropriate amendment to the Jamaican Arbitration Act to remove

these shackles. Here, it is worth noting the provision of Section 27 of the United Kingdom’s

Arbitration Act 1950, of which there is no equivalent in Jamaican Arbitration Legislation.

Section 27 provides that:

“Where the terms of an agreement to refer future disputes to arbitration provide that any

claims to which the agreement applies shall be barred unless notice to appoint an arbitrator is

given or an arbitrator is appointed or some other step to commence arbitration proceedings is

taken within a time fixed by the agreement, and a dispute arises to which the agreement applies

the High Court, if it is of opinion that in the circumstances of the case undue hardship would

otherwise be caused, and notwithstanding that the time so fixed has expired, may, on such term

if any, as the justice of the case may require, but without prejudice to the provisions of any

enactment limiting the time for commencement of arbitration proceedings extend the time for

such period as it thinks proper.

By this provision the English Court is given a discretionary jurisdiction to extend the time

for commencing an arbitration proceeding in circumstances where the applicant would otherwise

suffer undue hardship and injustice. A similar provision in Jamaican Arbitration legislation

would go a far way in correcting the pregnant potential for injustice and hardship provided by

the existing position at common law.

304
 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, quoted in 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

Paragrafip 33 of The Report, as quoted, 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
 dispute arises: (Timmerman’s Coraan En Maalhandel En Maalderij B.V. v. Sachs
-

(1980) 1 Lloyd’s Rep. 194).

It is submitted that Jamaica should make the necessary amendments paying cognizance to

these guidelines.

While in general a Jamaican Court may feel powerless to deal effectively with a seemingly

too short time period stipulation in a time and bar arbitration clause, this ought not to be the case

where it is dealing with a case within the ambit of the Carriage of Goods Act, 1889 which

enacted the Hague Rules.

The problem may arise if the time limit in the charter-party arbitration clause is shorter than

the one year limit provided for in the Hague Rules where they govern the contract between the

parties.

Application of a shorter time limit would violate Article 3 (8) of the Hague Rules because it

would lessen the carrier’s liability. Hence such a time and bar clause ought properly to be

treated as void and repugnant to the Hague Rules provisions contained in the Carriage of Goods

Act.

The Limitation in Jamaican Conflict Laws

308
 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.
The internal law of the country where the court is situated.
Jackson, op. cit., p 101.
Stone, op. cit., p 497.

309
which came into force on October 1, 1985.

Thus in England, the basic rule now is that time limitation is treated as a substantive question

and thus governed by the law which governs other aspects of the parties substantive rights.

The result is that a claim will be dismissed in England, if it is time barred by the lex causae,

although not by English internal law, and will be upheld if it is timely under the lex causae, even

if it id time barred under English internal law.

Stone notes that “the rule that procedure is governed by the lex fori has the legitimate

purpose of simplifying the conduct of the proceedings and enabling them to be conducted in a

manner with which the court is familiar and comfortable. It is not designed to enable the forum

to give effect to its views, as to the appropriate outcome of the dispute.

He notes further that “... time limitation cannot justifiable be characterized as a matter of

procedure: the relevant limitation rule will often be decisive as to the outcome of the case; there

will seldom be any particular difficulty in applying a foreign limitation rule; and the question

does not relate to the manner of conducting the proceedings.”

Added to these very cogent reasons for departure from the traditional English position is the

crucial question is the reasonable expectation of the parties.

Dicey and Morris observe that “The main justification for the conflict of laws is that it

The law applicable to the case.

Thid., p 500.
Ibid.

310
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’s intention 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 parties
t 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 for the 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 for Admission 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’s Articles 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) UNCTAD Conventions 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 (gland of 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 Yearbook ofJamaica. 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’s Law

MARThE INSURANCE

Marine Insurance Act, 1973

PRIZE GOODS

Prize Goods Law

SEAFARERS

Seafarers (Certification) Act, 1986

Seamen (Repatriation) Act

Seamen’s Wages (Recovery of) Law

TERRITORIAL JURISDICTION
 Morant and Pedro Cays Act, 1907

Territorial Sea Act, 1971

WRECK AND SALVAGE

Wrack and Salvage Law, 1875

*Opy Jamaican enactments dealing essentially or at least substantially with maritime

related matters are included.

 APPENDIX 4

List of International Maritime Conventions to which Jamaica is a Party.

A:IMO CONVENTIONS

1. Convention on the International Maritime Organization

2. International Convention for the Safety of Life at Sea, 1974

3. Convention on the International Regulations for Preventing Collisions at Sea, 1972

4. International Convention on Loadlines, 1966 (as amended in 1971, 1975 and 1979)

5. International Convention for Safe Containers, 1972

6. International Convention on Standards of Training, Certification and Watchkeeping

for Seafarers, 1978

7. International Convention on Maritime Search and Rescue, 1979

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