Elarca S. A. of Monrovia, Liberia & Another v. Oilborne Shippi

044-SLLR-SLLR-1978-79-V2-Elarca-S.-A.-of-Monrovia-Liberia–Another-v.-Oilborne-Shippi.pdf


CAElarca S. A. v. Oilborne Shipping Co. Inc.293
Elarca S. A. of Monrovia, Liberia & Another
v.Oilborne Shipping Co. Inc. of Liberia *
■COURT OF APPEAL.
COUN-THOME, J., RODRIGO, J. AND TAMBIAH, J.
C.A. APPLICATIONS 1401—14G2/78—H.C. COLOMBO (ADMIRALTY JURISDICTION)—ACTION-IN-REM NO. 18 OF 1977.
FEBRUARY 20, 1979.
Admiralty Courts—Jurisdiction vested in High Court—Notice oj appealfrom judgment of High Court rejected—Application to revise suchorder—Does right of appeal lie—History of Admiralty Court jurisdictionin Sri Lanka—Ceylon Courts of Admiralty Ordinance (Cap. 9)—ViceAdmiralty Rules—Courts Ordinance (Cap. 6)—Administration of JusticeLaw, No. 44 of 1973, sections 3, 11, 23, 317 (1)—Civil Courts Procedure(Special Provisions) Law, No. 19 of 1977—Civil Procedure Code, as■amended by Law No. 20 of 1977, section 754 (1).
The petitioners who were added defendants in an action in rem filedin the High Court of Colombo in its Admiralty jurisdiction filed thisapplication in revision in the Court of Appeal to set aside the order•of the learned trial judge rejecting notices of appeal filed by them andfor an order directing that such notices of appeal be accepted. Thequestion that was argued before the Court of Appeal was whether anappeal lay from the judgment of the High Court in the exercise of itaAdmiralty jurisdiction.
It was submitted on behalf of the plaintiff-respondent, inter alia, thatthe Administration of Justice Law, No. 44 of 1973, when it came intooperation, repealed the Ceylon Courts of Admiralty Ordinance (Cap. 9)which provided for the Supreme Court to be a Colonial Court ofAdmiralty, and for the District Court to have a limited Admiraltyjurisdiction if appointed for this purpose by the Governor. ThisOrdinance also provided for an appeal to the Judicial Committee of thePrivy Council. Section 23 of Law No. 44 of 1973 conferred suchAdmiralty jurisdiction on the High Courts established by such Law.
It was submitted that although this Law provided for appeals incriminal and civil cases it made no provision for appeals in Admiraltyeases. It was submitted therefore that a right of appeal not being givenexpressly by the 'statute it cannot be implied and it was the intentionof this Law No. 44 of 1973 to make the judgment of the High Court inthe exercise of its Admiralty jurisdiction final and conclusive and onefrom which no appeal lay.
Reliance was placed on behalf of the defendants-petitioners on section317 (1) of Law No. 44 1973 which conferred a right of appeal from“ any judgment pronounced by any original Court in any civil action,proceeding or matter ” and it was submitted that these words weresufficient to constitute “ express provision ” within the meaning ofthe law, conferring a right of appeal; reliance was also placed onsection 11 which gave a wide appellate jurisdiction to the SupremeCourt. Chapter IV of the Administration of Justice Law which contain-ed section 317 was repealed by the Civil Courts Procedure (SpecialProvisions) Law, No. 19 of 1977, and this Law came into operation on29th November, 1977, while the judgment in this action in rem was■dated 4th September, 1978. Section 754 (1) of the Civil ProcedureCode which was brought into operation by Law No. 20 of 1977 whichalso came into operation on the same date as Law No. 19 of 1977 re-enacted the provisions of the repealed section 317 (1) of the Adminis-tration of Justice Law. The question that arose for determinationtherefore was whether section 754 (1) gave such a right of appeal fromthe jud'gment of the High Court in its Admiralty Jurisdiction in thiscase.
* Affirmed by S.C —see (1978-79) 1 Sri L. R. 55.
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Held
There is no right of appeal from the judgment of the High Court in theexercise of its Admiralty jurisdiction under section 754 (1) of the CivilProcedure Code. Admiralty proceedings do not fall within the schemeenvisaged by the Civil Procedure Code and the judgment from whichan appeal may be preferred in terms of section 754 (1) is the judgmentwhich is pronounced by a trial judge at the end of a trial of anaction under section 184 (1) of the Civil Procedure Code.
History of Admiralty Jurisdiction in Sri Lanka discussed.
Per Tambiah, J.
“ I am fortified in the view I have taken in that the legislature has nowstepped in and supplied the omission and has passed the JudicatureAct, No. 2 of 1978, which was certified on 2nd November, 1978. Section13 (1) enacts that Admiralty jurisdiction is hereby vested in the HighCourt and shall ordinarily be exercised by a Judge of the High Courtsitting in the judicial zone of Colombo ; section 13 (3) (a) declares thatany person who is dissatisfied with any final judgment given in theexercise of Admiralty jurisdiction may prefer an appeal to the Courtof Appeal against such judgment for an error in fact or in law. The Acthowever is not in operation, even as at date. ”
Cases referred to
Application re Appeal in P.C. Hambantota 4342, (1920) 22 N.L.R.137.
Motor Trawler Meegamuwa v. Thilagaratnam, (1972) 75 N.L.R. 448.
Tennekoon v. Duraisamv, (1958) 59 N.L.R. 481 ; (1958) A.C. 354 ;(1958) 2 All E.R. 479 ; (1958) 2 W.L.R. 994.
In re Wijesinghe, (1913) 16 N.L.R. 312.
(51 Tillekewardene v. Obeysekera, (1931) 33 N.L.R. 193.
(6) Shanmugam v. Commissioner for Registration of Indian & PakistaniResidents, (1962) 64 N.L.R. 29 ; (1962) A.C. 515 ; (1962) All E.R. 609 ;(1962) 3 W.L.R. 200.
APPLICATIONS to revise an order of the High Court, Colombo.
V. S. A. Pullenayagam, with M. I. Mohamed and Mrs. S. Gnanakaran, forthe added defendants-petitioners.
S. J. Kadirgamar, Q.C., with H. L. de Silva and C. Chakradaran, for thepla intiff-respondent.
Cur. adv. vult.
March 30, 1979.
TAMBIAH, J.It is necessary to state as briefly as possible the facts which ledto the present application for the revision of an order dated
of the High Court of Colombo, in the exercise of itsAdmiralty Jurisdiction.
The 1st added defendant-petitioner (hereinafter calledElarca), a Company duly incorporated in Liberia, is the ownerof the defendant vessel “ Trefalcon Logic ”, The said vessel wasmortgaged by Elarca to the 2nd added defendant-petitioner(hereinafter called Trefalcon) on the 1st preferred shipmortgage on January 20, 1975, for a sum of Rs. 2.500,000 U.S.dollars. The said 1st preferred ship mortgage was duly assignedon 14th July, 1975, by Trefalcon to the plaintiff-respondent(hereinafter called Oilbome).
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OHborne commenced an Action-in-rem, No. 18 of 1977, in theHigh Court of Colombo (Admiralty Jurisdiction) to enforce theassignment of the said 1st preferred ship mortgage and the saidvessel was arrested on a warrant issued by the said Court on17th November, 1977.
On 6th December, 1977, one Leonard Gruber, purporting to acton behalf of Elarca and Trefalcon, through Messrs Abrahams &De Alwis, attorneys-at-law, entered appearances for the saidvessel and also for Elarca and Trefalcon. On March 2, 1973, thesaid Leonard Gruber, purporting to act on behalf cf Oilborne,filed letters of authority addressed to Mr. M. Kanagasunderam,attorney-at-law, and moved Court to withdraw the actioninstituted by Oilborne.
In pursuance of an order by Court for the parties to filepleadings, Elarca filed answer on 8th March, 1978, and prayed,inter alia, for a dismissal of Oilbome’s action, for a release ofthe said vessel and for grant of possession thereof, for loss ofearnings and damages.
Trefalcon in its answer dated 8th March, 1973, stated, interalia, that Oilborne had on 7.11.77 assigned the Mortgage Bondto it and that since that date, Trefalcon is the mortgagee underthe 1st preferred ship mortgage ; the prayer was for judgment ina sum of Rs. 2.500,000 U.S. dollars with interest and costs andfor an order directing the appraisement and sale of the vesseland for damages.
It would appear therefore that Leonard Gruber made hisappearance in Court in a three fold capacity; purporting to speakfor Oilborne he moved for the dismissal of the action with costs ;purporting to speak for Elarca, he wanted the claim on themortgage rejected and possession of the vessel; purporting tospeak for Trefalcon, he wanted judgment with costs on themortgage and the vessel appraised and sold.
On 2nd June, 1978, Oilborne filed motion and moved, interalia, that the answers of Elarca and Trefalcon be struck out in asmuch as Leonard Gruber did not in law and in fact representElarca or Trefalcon.
After a lengthy trial, judgment was entered on 4th September,1978, in favour of Oilborne as prayed for with costs, and thecounter claims of Elarca and Trefalcon were dismissed withcosts. The learned trial Judge arrived at the finding thatTrefalcon was not entitled to participate in the proceedings andthat Leonard Gruber was not entitled to appear for Trefalcon
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and made order striking out the answer of Trefalcon. Thelearned trial Judge also arrived at the finding that LeonardGruber had no right to represent Elarea and made order strikingout the answer of Elarea.
On 21st September, 1978, Elarea and Trefalcon, through theirattomeys-at-law, filed separate notices of appeal, against thejudgment of the learned trial Judge, in the High Court ofColombo (Admiralty Jurisdiction). The notices of appeal wereaccepted by the High Court Judge and he made order to forwardthe record to the Court of Appeal in due course. On 4th October,1978, Oilborne filed a motion to have the said notices of appealrejected on the grounds, inter 'alia, that there is no provision inlaw for appealing against the judgment and order delivered bythe High Court in the exercise of its Admiralty Jurisdiction;that the notices of appeal are in fact and in law not the actsand deeds of Elarea and Trefalcon and that Leonard Gruber hadno authority in law and in fact to instruct or authorise anyattomeys-at-law to act for and in any other manner participatein these proceedings, for and on behalf of Elarea and Trefalcon.After inquiry, the learned High Court Judge, by his order dated19th October, 1978, rejected the notices of appeal on the groundthat there is no provision for an appeal from the decision of theHigh Court, acting in its Admiralty Jurisdiction, and that, inaddition the notices of appeal filed are unauthorised and not theacts and deeds of Elarea and Trefalcon in view of the finding of'the learned trial Judge that Leonard Gruber had no status toact for them. The learned trial Judge stated that his earlierorder accepting the notices cf appeal was made per incuriam.
The present application before us, is by way of revision, tohave the order of the learned trial Judge, rejecting the noticesof appeal, set aside and to make order directing the High Courtto accept the notices of appeal that have been filed.
Learned counsel for Elarea and Trefalcon submitted to us thathowever frivolous and vexatious the appeal is, the learned HighCourt Judge has no right to reject the notices of appeal, on theground that no appeal lay ; it is for the Court of Appeal to decidewhether an appeal lies to it or not. He relied on the case ofApplication re Appeal in P.C., Hambantota 4342 (1).
Both learned counsel, for Elarea and Trefalcon, as well as forOilborne, addressed us at length on the question whether anappeal lay or not from the judgment of the High Court in theexercise of its Admiralty Jurisdiction. It therefore seems to methat it is unnecessary to decide the question whether the High
ESarca S. A. v. Oilborne Shipping Co. Inc,
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Court of Colombo (Admiralty Jurisdiction) has or has not, theright to reject the notices of appeal that were filed. I thereforeproceed to determine the question, whether an appeal lay fromthe judgment of the High Court in the exercise of its Admiralty.Jurisdiction.
ft is necessary in order to determine this question, to trace outthe history of the legislation relating to the establishment ofCeylon Courts of Admiralty. The Vice-Admiralty Court wasset up by the Charter of 1801. The Charter of 1833 vestedAdmiralty Jurisdiction in the Supreme Court. By section 4 itwas enacted that the Supreme Court shall have exclusive juris-diction over all matters, civil and criminal, and the rights of theCourts of the Vice-Admiralty and Piracy Commission weresecured. By the Colonial Courts of Admiralty Act, 18.90, thelegislature of a British Colony was given the power to createColonial Courts of Admiralty and such Courts were to havejurisdiction similar to that of the High Court in England andalso to confer on subordinate courts, a limited admiralty juris-diction (section 3). This Act, by section 17, abolished existingVice-Admiralty Courts in the British possessions. In pursuanceof this power, our legislature enacted the Courts of AdmiraltyOrdinance, No. 2 of 1891, which declared the Supreme Court as aColonial Court of Admiralty (section 2). Power was given tothe Governor, if he deemed it expedient, to appoint any DistrictCourt to have Admiralty Jurisdiction (s. 3), and the DistrictCourt has received a limited admiralty jurisdiction (s. 4). Anappeal to the Ceylon Court of Admiralty, i.e., the Supreme Court,from the judgment or order of the District Court. was given(s. 21). By section 6 of the Colonial Courts of Admiralty Act,1890, an appeal was given from the judgment of the Court of.Admiralty, i.e., the Supreme Court, to the Judicial Committeeof the Privy Council.
The rules governing procedure in prize matters are governedby Prize Court Rules of 1939. The Rules applicable in Admiraltymatters are the rules which were framed under section 23 ofthe Ceylon (Courts of Admiralty) Ordinance (SubsidiaryLegislation, Vol. 1. Ch. 9). The procedure to be adopted inappeals is laid down in Rules 150 to 155 of the Vice-AdmiraltyRules.
It is also relevant to trace out the history of appeals to thePrivy Council from judgments of the Supreme Court. Bysection 52 of the Charter of Justice of 1833, the parties to anycivil suit or action pending in the Supreme Court had a right ofappeal to the Privy Council from any final judgment, decree or
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sentence, or against any rule or order made in such civil suit oraction, and having the effect of a final or definite sentence. TheCourts Ordinance, No. 1 of 1889, revoked the Charter of 1833 butsection 41 retained the provisions of the Charter governingappeals to the Privy Council. The Civil Procedure Code of 1889(Ch. LXIII, sections 779 to 789) also contained provisions forappeals to the Privy Council by parties to a civil suit or actionagainst any final judgment, decree or sentence or order andprescribed the procedure to be followed in bringing a judgmentin review before the Collective Court prior to obtaining leave toappeal to the Privy Council. Section 41 of the Courts Ordinanceand sections 779-791 of the Civil Procedure Code were repealedby the Appeals (Privy Council) Ordinance, No. 31 of 1909.
The Courts Ordinance, No. 1 of 1889, declared in section 4,“ The Courts for the ordinary administration of justice, civil andcriminal, within this colony shall continue as heretofore to beas follows: (1) The Supreme Court, (2) District Courts, (3)Courts of Requests, (4) Police Courts ”. The proviso to section3 declared “ nothing herein contained shall be held to affect thejurisdiction vested in, and exercised by, any court or courtsunder or by virtue of the provisions of any statute of the UnitedKingdom or of any enactment or enactments now in force, exceptin so far as any such provisions shall be by this Ordinanceexpressly repealed or modified ; or the jurisdiction of any Courtwhich may be holden within Ceylon, under or in pursuance ofany statute in that case made and provided for the trial ofoffences committed on the seas, or within the jurisdiction of theAdmiralty, or under any Commission issued or to be issued bythe Lord High Admiral of England or the Commissioners forexecuting his office ; or the jurisdiction of Rural Courts, or of anyMunicipal Magistrate, or of any special officer or tribunal legallyconstituted for any special purpose or to try any special case orclass of cases ”. It would seem therefore that the proviso wasdealing with what were not considered to be ordinary types ofjurisdiction.
From a consideration of the legislative history of the CeylonCourts of Admiralty and of appeals to the Privy Council fromjudgments of the Supreme Court and of the provisions of section3 of the Courts Ordinance which set out the judicial structure, itseems to me that the Admiralty Courts were exercising a specialjurisdiction and admiralty proceedings had a special procedure ofits own ; though in the year 1883, the Courts Ordinance and theCivil Procedure Code made provisions for appeals to the PrivyCouncil from the judgments of the Supreme Court, a right of
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appeal from the judgment of the Supreme Court in the exerciseof its Admiralty Jurisdiction was expressly granted by section 6of the Colonial Courts of Admiralty Act of 1890.
The Court of Appeal Act, No. 44 of 1971, which came intooperation on 26th October, 1971, abolished the right of appeal toHer Majesty in Council, from any judgment or order of theSupreme Court or from any other Court or Tribunal in Ceylon.Section 8 which sets out the jurisdiction of the Appellate Courtmade no provision for appeals from the Colonial Court ofAdmiralty.
In the case of Motor Trawler “ Meegamuwa ” v. Thilagaratnam
, the defendant sought leave to appeal to the Court of Appealfrom a judgment dated 23rd November, 1971, delivered by theColonial Court of Admiralty of Ceylon. It was held that section8 (1) of the Court of Appeal Act, No. 44 of 1971, enabled a personaggrieved, to apply for leave to appeal, from any judgment ofthe Supreme Court given in the exercise of its appellate juris-diction ; the judgment sought to be appealed from was given bythe Colonial Court of Admiralty in the exercise of its originaland not appellate jurisdiction. The application was refused.
The Administration of Justice Law, No. 44 of 1973, came intooperation on 14th November, 1973. Section 3 repealed the CeylonCourts of Admiralty Ordinance; by section 23 (1) admiraltyjurisdiction was conferred on the High Court; the admiraltyjurisdiction of the High Court is to be exercised in accordancewith the Vice-Admiralty Rules which were kept alive by section3 (2). Section 54 defined Admiralty Jurisdiction—“ ‘ Admiraltyjurisdiction ’ means, until otherwise provided for by written law,the admiralty jurisdiction for the time being of the High Courtof England ”.
The appellate jurisdiction of the Supreme Court was set outin section 11 of the Administration of Justice Law, No. 44 of1973,—“ The Supreme Court shall be the only superior court ofrecord and shall have, subject to the provisions of this law,jurisdiction for the correction of all errors in fact or in law
committed by any subordinate court,.-… ”. “Subordinate
Court ” in section 54 has been defined to mean any High Court,District Court or Magistrate’s Court. The right of appeal incriminal cases was given by section 316 and in civil cases bysection 317, and is in the following terms—
“ Section 317 (1) : Any person who shall be dissatisfiedwith any judgment pronounced by any original court in anycivil action, proceeding or matter to which he is a party
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may prefer an appeal to the Supreme Court against such-judgment for any error in law or in fact
Section 358 defines an original court—“ ‘ Original Court ’ means,a High Court, District Court or Magistrate’s Court
Learned counsel for the 1st and 2nd added defendants-petitioners submitted that section 11 of the Administration ofJustice Law, No. 44 of 1973, gave a wide appellate jurisdiction tothe Supreme Court to correct all errors in fact or in law, com-mitted by any subordinate Court; in terms of section 54, theHigh Court is a subordinte Court; there is a right of appealavailable from the judgment of the High Court in the exerciseof its admiralty jurisdiction under section 317 (1) ; he laid stresson the words any judgment ”, “ any original Court ”, and“ any civil action, proceeding or matter ” ; relying on the defini-tion of “ original Court ” and the decision in the case reportedin (2), he contended that the High Court in the exercise of itsadmiralty jurisdiction is an original Court ; reliance wasplaced by him on a passage in the Privy Council judgment in thecase of Tennekoon v. Duraisamy (3) at 492,—“ It was argued,before the Supreme Court and their Lordships that a civil suitor action means a proceeding in which one party sues for orclaims something from another. No doubt the words are properlyapplicable to such cases and they are the cases to which thewords are most frequently applied”:—it was never the inten-tion of the Administration of Justice Law, No. 44 of 1973, hesubmitted, when it conferred admiralty jurisdiction on the HighCourt that its judgment was to be considered sacrosanct and freefrom review by the Supreme Court.
Leanied counsel for the plaintiff-respondent on the otherhand submitted that the Court of Appeal Act, No. 44of 1971, by section 18 abolished all appeals to Her Majesty inCouncil; the Administration of Justice Law, No. 44 of 1973, bysection 3 repealed the Ceylon Courts of Admiralty Ordinanceand by section 23 conferred Admiralty Jurisdiction on the HighCourt; by section 316 and 317, Law No. 44 of 1973, provided forappeals in criminal cases and civil cases but made no provisionfor appeals in admiralty cases ; he relied on the observationsmade by Perera, J. in the case of In re Wijesinghe (4) and byGarvin, J. in TilleJce war dene v. Obeysekera (5) at 196, that aright of appeal must be expressly given by Statute and cannotbe implied : it was the intention of the Administration of JusticeLaw, No. 44 of 1973, to make the judgment of the High Court inthe exercise of its admiralty jurisdiction final and conclusivefrom which no appeal lay.
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To this learned counsel for the 1st and 2nd added defendants-petitioners countered that the right of appeal arises directly fromthe language used in section 317 (1)—“ Any judgment pronouncedby any original court in any civil action, proceeding or matter”.He relied on the observation made by Lord Radcliff in the PrivyCouncil case of Shanmugam v. Commissioner for Registration ofIndian & Pakistani Residents (6) at 337,—“ To be ‘ express provi-sion ’ with regard to something it is not necessary that that thingshould specially mentioned; it is sufficient that it is directlycovered by the language however broad the language may bewhich covers it so long as the applicability arises directly fromthe language used and not by inference therefrom ”.
Chapter IV of the Administration of Justice Law, No. 44 of1973, which contains section 317 was repealed by the Civil CourtsProcedure (Special Provisions) Law, No. 19 of 1977, which bysection 3 declared that the provisions of Chapter IV shall ceaseto regulate the right of, and procedure in, appeals to the SupremeCourt. Law No. 19 of 1977 came into operation on 29th November,1977. The repealed section 317 (1) of the Administration ofJustice Law, No. 44 of 1973, was re-enacted in section 754(1) ofthe Civil Procedure Code (Amendment) Law, No. 20 of 1977,which also came into operation on 29th November, 1977.
“Section 754 (1) : Any person who shall be dissatisfiedwith any judgment pronounced by any original Court in anycivil action, proceeding or matter to which he is a party mayprefer an appeal to the Supreme Court against such judgmentfor any error in fact or in law ”,
The judgment in action in rem No. 18 of 1977 is dated the 4thSeptember, 1978. The question we now have to decide is whetherthere is a right of appeal from the judgment of the High Court(Admiralty Jurisdiction) under section 754 (1) of the CivilProcedure Code (Amendment) Law, No. 20 of 1977. The questionhas to be determined according to the law in its existing form ;a discussion as to whether section 317 (1) of the Administrationof Justice Law, No. 44 of 1973, granted a right of appeal from thejudgment of the High Court (Admiralty Jurisdiction) thereforebecomes purely academic.
“ Judgment ” has been defined to mean any judgment or orderhaving the effect of a final judgment made by any Civil Court(s. 754 (5).) “ Civil Court ” means a Court in which civil actionsmay be brought (s- 5).
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The Civil Procedure Code regulates the procedure to be adoptedby a person who wants to suomit his dispute to a civil court foradjudication. Every action, whether of regular or summaryprocedure, commences with the filing of pleadings (s. 39 & s.373). Every action whether the proceedings be regular orsummary is an action between plaintiffs and defendants orpetitioners and respondents by name (s. 40 (b) & (c) ; s. 374 (b)& (c). ). A party need not in every case appear in person ; hecan act by his recognised agent or proctor (s. 24). The appoint-ment of a Proctor must be in writing and filed in Court (s. 27).Plaint having been filed, the next step in a civil proceeding is forthe issue of summons on the defendant requiring him to appearand answer on a day specified (s- 55). Services of summons shallbe made on the defendant in person and if personal service isimpossible, there is provision for substituted service (s. 60). Thenext stage is the filing of answer by the defendant and of repli-cation, if any, by the plaintiff (Chapters IX & X). The Courtthou fixes a date for trial and gives notice of such date to theparties (s. 80). Chapter XIX regulates the procedure to be follow-ed at the trial of the action. After both parties have closed then-cases, the judgment is pronounced in open Court either at onceor on a day of which notice must be given to the parties or theirproctors, at the termination of the trial (s. 184 (1) ). The judg-ment is followed by a formal decree (s. 188) and the decreeholder then proceeds to execution under Chapter XXII of theCode. The judgment, therefore, from which, a dissatisfied personmay prefer an appeal in terms of section 754 (1). is thejudgment which is pronounced by the trial Judge at the end cftrial of an action under section 184 (1), which action commencedwith the filing of pleadings and went through the process of pre-trial and trial proceedings set out in the Civil Procedure Code.
It would seem from a perusal of the Vice-Admiralty Rules,that admiralty proceedings do not fall within the schemeenvisaged by the Civil Procedure Code. “ Court ” has beendefined to mean any Vice-Admiralty Court now existingwhich shall hereafter be established in any Possession (Rule 1,Vice-Admiralty Rules.) Action shall be of two kinds, actions inrem and actions in personam (Rule 2). The Form of the title ofan action in rem, as set out in Appendix No. 1 indicates that theaction is between a named person as plaintiff and a named shipor vessel as defendant. The title of action in personam (Appen-dix No. 2) shows that the contest is between the plaintiff anddefendant by name. An admiralty action whether in rem or inpersonam is commenced by a writ of summons (Rule 5). Accord-
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ing to the form of writ of summons in rem set out in AppendixNo. 4, the writ is directed not to any defendant by name but tothe owners and all others interested in the ship. The writ ofsummons to be used in actions in personam is directed to adefendant by name (Appendix No. 5). In an action in rem themanner of service of the writ of summons is set out in Rule 10—.e.g-, if the property to be arrested is a ship, freight or cargo onboard, by affixing the writ on the main mast or the single mastor to some conspicuous part of the ship. In an action in personam,service is effected by showing it to the defendant and leaving acopy of the writ with him (Rule 12). Even before the serviceof the writ of summons, the plaintiff may apply for the arrestof the property against which the action has been brought. Thearrest is effected by having the warrant served in the samemanner as the service of a writ of summons (Rules 29 to 35).The Rules also provide for the prevention of the arrest ofproperty by filing a notice for Caveat Warrant and undertakingto give bail in such action in a sum not exceeding an amountstated in the notice or to pay such sum into Court (Rule 159)and for obtaining the release of the property under arrest (Rules47 to 53). Rule 55 states that any action shall be heard withoutpleadings unless the Judge shall otherwise order.
The Vice-Admiralty Rules are comprehensive and embracesuch matters, inter alia, as form, content and amendment ofpleading (Rules 56 to 61) ; discovery by means of interrogataries,,(Rules 62 & 63) or by means of the discovery of documents(Rules 64 to 67) ; admission of documents or facts (Rules 68 &69) ; the filing of motions in the course of proceedings (Rules 74to 78) ; how evidence is to be taken (Rules 82 to 86) ; the adminis-tering of oaths (Rules 87 & 86) ; the form of affidavits and theirreception as evidence (Rules 94 & 95) ; examination of witnessesbefore trial (Rules 96 to 102) ; the hearing and trial of the action(Rules 108 to 117) ; the ordering and taxation of costs (Rules 126to 132) ; the appraisement and sale of the property under arrest(Rules 138 to 147) and execution of decree (Rule 174). It wouldseem that none of the provisions of the Civil Procedure Codeare made applicable to admiralty proceedings in the High Court(Admiralty Jurisdiction). In an admiralty case in the DistrictCourt, however, section 9 and section 11 of the Ceylon Courts ofAdmiralty Ordinance declare that the case is heard and deter-mined in like manner as a civil case and that decrees of theDistrict Court in an admiralty case are to have the same effectas the decrees of a District Court in its ordinary civil jurisdiction.
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I am of the view that there is no right of appeal from thejudgment of the High Court in the exercise of its AdmiraltyJurisdiction under section 754 (1) of the Civil Procedure Code.I am fortified in the view I have taken, in that, the legislaturehas now stepped in and supplied the omission and has passed theJudicature Act, No. 2 of 1978, which was certified on 2ndNovember, 1978- Section 13 (1) enacts that admiralty jurisdic-tion is hereby vested in the High Court and shall ordinarily beexercised by a Judge of the High Court sitting in the judicialzone of Colombo ; section 13 (3) (a) declares that any person whois dissatisfied with any final judgment given in the exercise ofadmiralty jurisdiction may prefer as appeal to the Court ofAppeal against such judgment for an error in fact or in law.The Act however is not in operation even as at date.
The application is rejected. The plaintiff-respondent will beentitled to costs.
COLIN-THOME, JT.—I agree.
RODRIGO, J.—I agree.
Application rejected.