The Port Authority of Jamaica v Kinetic Shipping Pte Ltd
| Jurisdiction | Jamaica |
| Judge | Batts, J |
| Judgment Date | 06 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. SU2022AD00003 |
[2023] JMCC Comm 49
CLAIM NO. SU2022AD00003
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE ADMIRALTY DIVISION
Admiralty — Pilotage Act — Ancillary proceedings — Whether claim in rem — Vessel under tow — Collision with pier — Whether pilot of tug can be liable — Whether tugs lawfully arrested — Whether application to arrest ought to have been served — Whether duty to give full disclosure — Whether ex-parte order for arrest to be set aside — Whether and how much security for costs to be paid.
Krishna Desai and Amanda Montague instructed by Myers Fletcher & Gordon for the Claimant (Port Authority of Jamaica).
Emile Leiba, Chantal Bennett and Alison Mitchell instructed by Dunn Cox for the Defendant/Ancillary Claimant (Kinetic Shipping PTE Limited owner of MV Maritime Gracious)
Aon Stewart instructed by Knight Junor Samuels for the Ancillary Defendant (Portside Towing Limited owner of M/T “Alfred Linton” and M/T “Harvey Long”)
The orders outlined at paragraph 26 of this judgment were made on the 6 th October 2023. I promised then to give reasons in writing at a later date. I now do so.
By way of an Amended Notice of Application, filed on the 1 st June 2023, the Ancillary Defendant Portside Towing Limited (which I will hereafter refer to as Portside) seeks to have an order for the arrest of their tugs set aside. Portside in the same application seeks to have security for costs ordered against the Ancillary Claimant, Kinetic Shipping PTE Limited (hereafter referred to as Kinetic). The vessels are no longer under arrest having been released by an order of the court made on the 21 st February 2023. This application relates to the initial arrest made in the absence of Portside which also wants damages for the period of that arrest.
The circumstances under which the vessels belonging to Portside were arrested can be shortly stated and are not in dispute. On the 29 th July 2022, a vessel owned by Kinetic (being the “M/V Maritime Gracious”), collided with a pier owned by the Port Authority of Jamaica (hereafter referred to as the Port Authority). The collision occurred at a time when Kinetic's vessel was being towed by two tugs owned by Portside. On the 30 th July 2022, the Port Authority commenced an admiralty claim in rem against Kinetic and obtained an Order for their vessel's arrest. On the 1 st April 2022 the court released Kinetic's vessel after an acceptable letter of undertaking was issued. A Defence was filed by Kinetic and a Reply to Defence filed by the Port Authority. On the 11 th November 2022, Kinetic filed an Ancillary Claim Form in Rem against Portside which was superseded on the 2 nd February 2023 by an Amended Ancillary Claim Form in Rem. On that date Kinetic applied for an order to arrest two vessels owned by Portside being the M/T Alfred Linton and the M/T Harvey Long. Portside had already filed its Amended Defence to the Ancillary Claim on the 29 th December 2022.
On the 3 rd February 2023 on an ex-parte application by Kinetic, an order was made for the arrest of the two tugs owned by Portside. On the 6 th February 2023 the Order was varied to permit the two vessels to sail and carry out tugging operations within Jamaican waters. On the 21 st February 2023, a consent Order was made releasing Portside's two vessels from arrest because an acceptable undertaking was provided. On the 13 th March 2023, Portside filed a Defence to the Amended Ancillary Claim Form in Rem and Particulars of Claim. Portside in its defence among other things, denies that the Ancillary Claim is a claim in Rem. Liability in personam is also denied.
The Notice of Application filed on 1 st June 2023, and mentioned in Para. 1 above, was thereafter filed. The orders applied for were as follows:
It is alleged in the grounds of the Notice of Application that the court had no jurisdiction to arrest the vessels as the Ancillary Claim was not an admirably claim in rem. It is further contended that the arrest was obtained mala fides or crassa negligentia and also that there was a failure to give full disclosure. The application for security for costs is grounded in the fact that Kinetic resides outside of Jamaica and has no assets in Jamaica. On the 8 th June and again on the 17 th July, the application was adjourned for the filing of affidavits and written submissions.
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a) “ The Warrant of arrest dated 3 rd February 2023 is hereby set aside and discharged;
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b) Orders numbered (1) and (2) made [by] (sic) the Honourable Mrs. Justice C. Brown Beckford on the 21 st February 2023 are set aside.
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c) The M/T Alfred Linton and M/T Harvey Long owned by Portside Towing limited being presently under arrest at the Port Rhoades (Discovery Bay) and Montego Bay Cruise and Cargo Terminal pursuant to a Warrant of Arrest dated 3 rd February 2023 be released unconditionally.
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d) The Ancillary Claimant is ordered to provide security for costs to the Ancillary Defendant in the amount of $8,900,000.00 or such amount as the Court deems just.
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e) Costs to the Ancillary Defendant
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f) Such further and or other Orders as the Court deems fit.”
When the matter came on for hearing on the 29 th September 2023 written submissions on behalf of all parties were before the court. The Claimant filed submissions, at the invitation of the Court, on the question whether or not there is a claim in rem disclosed on the Ancillary Claim. Each party was also afforded time to make oral submissions. I am indeed grateful for the industry displayed by all counsel in this matter. In this judgment I will not reproduce these arguments in full. It suffices to summarise and, wHere necessary, adopt or distinguish authorities relied upon in order to explain my decision. In this regard, I formed the view in the course of submissions that the question whether or not the arrest of the tugs was properly made is an issue best resolved after trial. Having reviewed the authorities, I remain of the same persuasion. As regards the matter of security for costs there was no real contest save as to the amount.
Mr. Stewart, for Portside, submitted that the arrest was mala fides or crassa negligentia because:
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a) The warrant was issued although there was no real risk of the tugs leaving Jamaican waters.
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b) The warrant of arrest was applied for 7 months after the claim was filed and 3 months after the Ancillary Claim was filed.
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c) Evidence that the vessels “ may traverse outside of Jamaican waters” was insufficient.
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d) The tugs are an essential service
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e) The failure to give notice of the application to arrest was unreasonable and not in keeping with the overriding objective.
Portside complains also that there was a failure, at the ex parte application, to make full and frank disclosure of:
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a) The fact that the tugs have been performing tugging services for the last 10 years exclusively within Jamaican waters.
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b) The tugs have never left Jamaican waters since their date of purchase.
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c) There was never a risk the tug would leave Jamaican waters and their position is monitored by Automatic Identification Systems transponders.
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d) The tugs required custom clearance.
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e) It is not usual for tugboats to sail out of this jurisdiction.
On the question whether the Ancillary Claim constitutes an admiralty claim in rem Portside was satisfied to rely on the submission filed by counsel for the Port Authority. On the question of security for costs, counsel relied upon Matcam Marine Limited v Michael Matalon (the registered owner of the Orion Warrior (formally Matcam 1) Claim No. A 0002/2011 ( unreported judgment dated 6th October 2011) in support of a submission that security for costs can be ordered in Admiralty claims.
Mr. Leiba, for Kinetic, submitted that a claim in rem may be brought where there is damage done by a ship, damage received by a ship, claims for towage, and where there is a maritime lien or charge against a ship. Further, since Kinetic's vessel was being towed by Portside's tugs while under compulsory pilotage within the port the case is one concerning damage done by a ship. In other words, but for the negligent operation of the tugs there would have been no collision between Kinetic's vessel and the pier. Therefore, the damage was caused by the tugs. Furthermore, damage was done to Kinetic's vessel as a result of the negligent operation of the tugs and Mr. Leiba submitted that this was a claim for towage since his client's vessel was being towed. On the matter of security for costs Mr. Leiba submitted that in the circumstances of this case it was not just to make the order having regard to the strength of his client's case. He also submitted that the amount of security claimed was exorbitant. Mr. Leiba further urged that an error did not amount to mala fides sufficient to result in the setting aside of an arrest. He submitted that neither malice nor gross negligence was to be implied. He denied that there was material non-disclosure of any fact known by his client. Finally, he submitted that, as the issue had not yet been tried, the question at this stage was whether the facts alleged, if proven, amounted to a claim in rem. It was he said, the act of negligence of Portside's tugs which caused the collision.
Mr. Desai for the Port Authority submitted that as section 29 of the Pilotage Act makes the master of a vessel under pilotage “ answerable for any loss or damage” it is the master of the vessel, not the pilot, who remains answerable for the navigation and management of the ship. This applies even when it is being towed as the master gives instructions to the tugs. This he...
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