The Government Of United States Of America V. The Ship

 [IN THE COLONIAL COURT OF ADMIRALTY OF CEYLON]

1961 Present : H. N. G. Fernando, J.

THE GOVERNMENT OF THE UNITED STATES OF AMERICA v.
THE SHIP " VALIANT ENTERPRISE "

Application No. 12 of 1960

An Action in rem for Repatriation

Colonial Court of Admiralty of Ceylon-Limits of its jurisdiction-Applicability of English, law-Maritime lien attaching to a ship-Action in rem-Right of a foreign State to make a claim based on maritime lien or some other right or lien- Subrogation in relation to maritime lien-Ceylon Courts of Admiralty Ordinance, No. 2 of 1891 (Cap. 7), s. 2-Civil Law Ordinance (Cap. 66), s. 2-Merchant Shipping Acts (English) of 1889, s. 1, of 1894, s. 167, and of 1906 ss. 40, 41, 42-Admiralty Court Acts (English) of 1840, s. 3, and of 1861, s. 11- Administration of Justice Act (English) of 1956, s. 1-United States (of America) Code, Title 46, s. 678.

When an action in rem is brought by a foreign claimant in the Colonial Court of Admiralty of Ceylon under the Ceylon Courts of Admiralty Ordinance of 1891 (Cap. 7) in respect of a ship, the Court, in determining whether there exists a maritime lien attaching to the ship, will apply the lex for , the English law, and will give effect to the lien only on the basis that the admiralty jurisdiction of the Supreme Court of Ceylon is restricted to the jurisdiction which the High Court of Admiralty exercised in England at the time when the English Colonial Courts of Admiralty Act of 1890 came into operation. On the other hand, if the claim is, not that the claimant has such a maritime lien, but that he enjoys some other right or lien conferred by some other relevant law of a foreign State, the Court would refer to that foreign law and would decide whether or not to grant a remedy, only after ascertaining whether the right is indeed conferred by the foreign law and if so whether a remedy is available in English law to enforce rights of the same nature.

The plaintiff (The Government of the United States of America), claiming a sum of Rs. 76,222 as expenses incurred in the repatriation of the crew of a ship of United States Registry abandoned by the owners at the port of Colombo, moved the Colonial Court of Admiralty of Ceylon in an action in rem by writ of summons which was served on the ship together with the warrant of arrest. The action was for the sale of the ship and for recovery of the sum of Rs. 76,222 out of the proceeds of sale. The plaintiff averred that the arrangements for repatriation of the crew of the ship were made by the plaintiff through the United States Embassy at Colombo in accordance with the provisions of the United States Code., section 678 of which provides as follows :-

" It shall be the duty of the consul and vice-consuls, from time to time, to provide for the seamen of the United States who may be found within their districts, respectively sufficient subsistence and passages to some port in the United States, in the most reasonable manner, at the expense of the United States, subject to such instructions as the Secretary of State shall give . . . ." 

Held (i) that, prior to the passing of the Colonial Courts of Admiralty Act of 18!)0, the general maritime law as administered in the High Court in its Admiralty jurisdiction in England , which is the lex fort to be administered in Ceylon, Hid not recognize any maritime lien attaching to a ship in respect of a claim of the nature preferred by the plaintiff in the present nrtion tor the recovery of the expenses of repatriation. Accordingly, the plaintill's claim must fail.

(ii) that it could not be contended that the plaintiff stood in the shoes of the seamen themselves or that English law, bernuse it recognizes maritime lien for expenses of repatriation. will enforce the same lien upon the principle of subrogation in an action brought, by a person who in fart has incurred the expenses of rep

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