Jurisdiction in ship accident decided by territorial waters location

Saldanha v Fulton Navigation

(Queen's Bench Division — 10 May 2011)

The claimant, an Indian national, was the first engineer on a ship The Omega King, which was registered in the Marshall Islands. On 6 January 2008, the ship was anchored off the coast of Wales, in UK territorial waters, when a storm hit. The claimant was called to look at the anchor's mechanism, which was jammed. While inspecting the locking pin, a large wave broke over the deck, knocking the claimant against a bollard. His injuries were treated in England, then he was repatriated to India.

A claim form, issued by an English court, was served in the Marshall Islands in June 2010. Default judgment was entered in August 2010. On 8 December 2010 the defendants' protection & indemnity insurers became aware of the judgment. On 29 December 2010, the defendants applied for the judgment to be set aside and indicated their intention to dispute the English court's jurisdiction.

On the jurisdiction point, the Admiralty Registrar (Jervis Kay QC) noted that European regulations (Brussels 1) did not apply to this case.

Although there was some conflict among the authorities, he preferred the Scottish Court of Session's approach in MacKinnon v Iberia Shipping Co (1954), which held that the country holding the territorial waters had jurisdiction over delicts (torts), even if events were wholly internal to the vessel. He found that this view was supported by section 11 of the Private International Law (Miscellaneous Provisions) Act 1995.

The Registrar also held that the English court was the most appropriate forum for the trial, given the fact that the claimant's medical treatment took place in England. Finally, refusing the application to set aside default judgment — for which he extended time — he found that the defendants had failed to put forward a positive explanation which rebutted the inference of negligence which arose in the circumstances.

Comment

This case is admirably clear in rejecting the idea that ships are ‘floating islands' answerable in law only to the country of their flag. It lends considerable authority to the proposition that the UK courts have jurisdiction over any torts that occur in UK territorial waters. Gareth Davies, BLM London

The following law report contributed by specialist insurance practice Berrymans Lace Mawer (www.blm-law.com) first appeared in Post Magazine on7 July 2011

Disclaimer: The law report contains information of general interest about current legal issues, it does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. Specialist legal advice should always be sought in any particular case.