Saldanha v Fulton Navigation Inc

For the purpose of jurisdiction under CPR Practice Direction 6B paragraph 3.1(9), a tort occurring on a foreign-flagged vessel in United Kingdom territorial waters is treated as occurring within the territorial jurisdiction. The law of the flag does not displace the law of the littoral state merely because the events were internal to the vessel. Continuing pain and suffering within the jurisdiction may independently constitute damage sustained there. The court must separately consider forum non conveniens, applying the Spiliada Maritime Corp v Cansulex Ltd principles. A defendant seeking discretionary relief from a regular default judgment must show a real prospect of successfully defending the claim; an merely arguable or non-fanciful defence is insufficient. Where a vessel has dragged its anchor, a strong inference of negligence arises and the owners must provide a rational explanation showing how the situation occurred without negligence.

The claimant, a ship’s first engineer, was injured on board a Marshall Islands-registered vessel anchored in Welsh territorial waters. The vessel dragged its anchor during severe weather, and the claimant was injured while inspecting a jammed chain-stopper pin. He received substantial medical treatment in England.

After service out of the jurisdiction, default judgment was entered. The defendant applied for declarations that the court lacked jurisdiction, that England was an inappropriate forum, an extension of time to challenge jurisdiction, and discretionary relief setting aside the judgment. The central questions were whether the tort and resulting damage fell within CPR Practice Direction 6B paragraph 3.1(9), whether England was the appropriate forum, and whether the defendant had a real prospect of successfully defending the claim.

1. Jurisdiction. The court had jurisdiction under CPR Practice Direction 6B paragraph 3.1(9). The physical location of the vessel when the act causing the damage occurred was material. The vessel was in Welsh territorial waters. The argument that the flag-state jurisdiction should govern because the events were wholly internal to the vessel was rejected. The relevant English and Commonwealth authorities, particularly MacKinnon v Iberia Shipping Co Ltd and Union Shipping New Zealand v Morgan, supported application of the law of the littoral state in territorial waters. The claimant also sustained continuing pain and suffering during hospitalisation in England, which provided an alternative jurisdictional basis following Booth v Phillips.
2. Forum non conveniens. Applying Spiliada Maritime Corp v Cansulex Ltd, England was the proper forum. The incident occurred off the Welsh coast, English law was applicable to the tort, significant medical treatment and expert evidence were located in England, and the seamanship issues could conveniently be determined by the Admiralty Court. Possible questions of Indian law could be addressed by expert evidence.
3. Extension of time. Although the defendant had failed to file an acknowledgment of service in time, the court would have exercised its discretion to permit the jurisdiction challenge. The defendant acted reasonably promptly after learning of the judgment, and the application was timeous for the purposes of CPR Part 13.3(2).
4. Default judgment. The judgment was regularly obtained, so CPR Part 13.2 did not apply. Under CPR Part 13.3(1), the defendant had to show a real prospect of successfully defending the claim. Saying that a defence was far from fanciful amounted only to asserting an arguable defence and did not satisfy that test. The defendant had not addressed the causative negligence involved in allowing the vessel to reach the dangerous situation. A vessel dragging its anchor gives rise to a strong inference of negligence, requiring the owners to provide a rational explanation of how the situation arose without negligence. No such explanation was provided. The default judgment was therefore not set aside.