MASTER DIVERS (PVT.) LTD., VS. ANUSHA KARUNARATNE AND OTHERS

MASTER DIVERS (PVT.) LTD., VS. ANUSHA KARUNARATNE
AND OTHERS

COURT OF APPEAL
RANJIT SILVA. J.
SALAM . J.
CA 162/04
HC COLOMBO 7/2000
(ADMIRALITY)

Admiralty jurisdiction - Death of employee - Crew agreement, contractual and delictual claims - Misjoinder of causes of action - Objection taken for the first time in appeal - Lex acquilia - Dependants - Legal heirs - Difference? - Claim for compensation independent of contractual obligations - Civil Procedure Code Section 18, Section 35 - Merchant Shipping Act No. 52 of 71 - Section 127

Plaintiff-respondent (legal heirs of one K) sued the defendant-appellant (owner of vessel) to recover damages arising from a breach of agreement and in addition compensation on account of negligence of the defendant-appellant. The High Court (admiralty) granted the reliefs prayed for by the plaintiff-respondent.

In appeal it was contended by the defendant-appellant that

(1) The High Court could not have entered judgment for compensation both in delict and under contractual obligation.

(2) That in any event the damages could not have exceeded the amount quantified in the crew agreement.

Held

(1) The crew agreement (X5) binds only the legal heirs of K and not the dependents who should be treated on a different footing as far as the claim under lex acquilia is concerned. Even if the legal heirs are estopped from claiming an amount greater than that is

stipulated under Clause 2 (n) 1 of the crew agreement, yet it cannot adversely affect them as the concept of legal heirs'and 'dependants' in law are totally different from each other and governed entirely by diverse considerations.

Per Abdus Salam. J.

"What is required in an acquilian action is to prove 'dependency' or the state of relying on the deceased for matrimonial support unlike in the case of legal heirs' who inherit the estate of the deceased as of right under the law, in my opinion the fact that the respondents have succeeded as the legal heirs' of the deceased in no way can prevent them from complaining of loss of support".

Held further:

(2) The stand taken up that there is a misjoinder of causes of action or misjoinder of plaintiff is untenable in law as these objections have not been raised before the commencement of the trial or at least before judgment. Such a failure would render the procedural defects - if any - as being waived or relinquished.

(3) The right to sue in delict is not taken away by contract although the contract by limiting the scope of the delictual duty or waiving the right to sue in delict may limit or negate the delictual liability where a wrong prima facie support an action in contract and in tort - the party may sue on either or both except where the contract indicates that the parties intended to limit or negative the right to sue in tort. This limitation of concurrency arises because it is always open to the party to limit or waive the duties which the common law would impose on them for negligence.

Per Abdus Salam, J.

"Careful scrutiny of the relevant clause 2 (n) in X5 reveals that the lump sum promised by the appellant is not arrived at compromising with any delictual claims capable of having been preferred by the dependents, in any event the dependents were not parties or signatories to X5 - nowhere in X5 has it been stated that the amount paid should be treated as final and final settlement of all the claims arising from the death of the employee and that it is a bar to any delictual claims being made by the dependents, in the absence of such an exclusionary clause, it is quite uen safe and

absolutely irrational to shut the dependents out from pursuing a legitimate claim in delict".

(4) A delictual action for compensation includes damage and satisfaction for non patrimonial loss, whereas satisfaction and compensation for non contractual damages cannot be claimed ex contractu.

Per Abdus Sala

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