Sanchez v Lascelles De Mercado & Company Ltd
| Jurisdiction | St Lucia |
| Judge | Lewis, J.A.,Gordon, J.A. |
| Judgment Date | 26 March 1969 |
| Neutral Citation | LC 1969 CA 2 |
| Date | 26 March 1969 |
| Court | Court of Appeal (Saint Lucia) |
| Docket Number | 1 of 1969 |
West Indies Associated States Supreme Court. (Court of Appeal)
Judge(s): Lewis, C.J.; Lewis, J.A.; Gordon, J.A.
1 of 1969
V.A. Cooper with St. George Murray for the Appellant.
D.A. McNamara Q.C. with M.B. Gordon for the Respondent.
Contract
Breach — This was an appeal against judgment in an action for breach of contract. The respondent company registered and stripped a quantity of cement, but the vessel never arrived at her destination with the cargo which was slipping according to the Bills of Lading. On the question whether the court had jurisdiction to entertain the respondent company's claim — The court had jurisdiction to entertain the claim by virtue of the Administration of Justice Act 1956 and the Admiralty Jurisdiction (St. Lucia) Order 1965. The Act of 1956 section 1 conferred jurisdiction in respect of a right which was in essence the same right which the respondent company enjoyed under section 6 of the Act of 1965 except that the latter Act removed restrictions on the jurisdiction of the court to entertain the respondent's claim and therefore made it easier for the respondent company to prove its claim.
This is an appeal from a judgment of Bishop, J. in which he entered judgment for the respondent against the appellant and two others, in an action for breach of contract, in the following terms:
(a) the sum of $13,727.50 being the Invoice value of seven shipments of cement from Jamaica to Dominica and two shipments from Jamaica to St. Lucia;
(b) the sum of $1,487.50 being 25% mark up on the Invoice value of two shipments of cement to St. Lucia;
(c) interest at 6% per annum on $13,727.50 from the 26th May 1962 to the 16th December, 1968;
(d) the costs of the action such costs to be taxed.
The appellant has appealed against this judgment on several grounds to which reference will be made later.
The brief Mots of the case are that on the 27th May 1961 the respondent, a company registered in Jamaica, and acting locally through a duly appointed attorney, shipped quantity of cement (8,075 bags) from Jamaica to Dominica and St. Lucia by the vessel M.V. “Josephine Mark” registered in St. Lucia and owned by the appellant and two other persons. The vessel sailed from Jamaica on the 17th June, 1961 but never arrived at her destination with her cargo which was shipped under and by virtue of nine Bills of Lading dated the 27th May, 1961. According to the tenor of the Bills of Lading on which the contract for carriage was based, the goods were consigned “To order” and seven business houses in Dominica and two in St. Lucia were to be notified.
A writ dated 29th May 1962 filed by J.N. Harriman & Co. Ltd. as plaintiff and for whom the present plaintiff was by an order of court substituted on the 19th August, 1966, was issued against the appellant and two others-co-owners. The statement of claim was amended by Order of the Court on the 16th June, 1962 and the amended statement of claim was as follows:-
“(1) The Plaintiff's claim against the Defendants as owners of the M.V. Josephine Mark for damages for breach of contract and/or duty in and about the loading handling custody and care of the Plaintiffs' cargoes of Carib Brand Portland Cement and the carriage thereof on board the said “Josephine Mark” from Jamaica to Dominica and St. Lucia under Bills of Lading dated 27th May, 1961”.
The action was heard on the 1st and 3rd July, and 18th and 19th November, 1968 and judgment delivered on the 16th December, 1968. The devious and protracted course which the proceedings took are evident from the pleadings and the actual dates on the record.
An appeal by the other co-owners against the judgment in this case was also filed in this Court but on the 20th March, 1969 when this appeal came on for hearing Counsel or the co-owners withdrew their appeal thus leaving Wallace Sanchez the sole appellant in these proceedings.
Counsel for the appellant argued the following grounds of appeal before this Court, having abandoned other grounds originally filed:
“(1) That the Court has no jurisdiction to hear the instant case in Admiralty;
(2) That the proceedings ought to have been heard and determined in the ordinary original Civil Jurisdiction of the Court;
(3) That the proper parties to have sued for goods consigned to Dominica were the owners or consignees in Dominica and the proper place to have sued was Dominica;
(4) That the learned Judge misdirected himself in awarding a mark-up of 25% by way of damage to the Plaintiff/Respondent;
(5) That undue delays in the determination of this case ought not be a ground for penalizing the Defendant/Appellant by awarding the Plaintiff/ Respondent interest at the rate of 6% from the date of the filing of the proceedings to date of payment and that the award of such a penalty is inequitable unjust and unfair in spite of the admission of the Plaintiff/Defendant that his claim was fully satisfied”.
In support of his argument that the Court had no jurisdiction to hear the matter, Counsel for the appellant urged on the Court that by virtue of section 9 of the Supreme Court Act (Cap. 1) of the Laws of St. Lucia, the relevant law applicable to St. Lucia at the time the contract was entered into (1961) was the Colonial Courts Admiralty Act of 1890 which clothed the local Supreme Court with the same jurisdiction in Admiralty as the High Court of England. This jurisdiction in relation to damage to goods carried sea was to be found in section 6 of the Admiralty Courts Act, 1861.
Section 6 is as follows:-
“As to claims for damage to cargo imported.
6. The High Court of Admiralty shall have Jurisdiction over any Claim by the Owner or Consignee or Assignee of any Bill of Lading of any Goods carried into any Port in England or Wales in any Ship, for Damage done to the Goods or any Part thereof by the Negligence or Misconduct of or for any breach of Duty or Breach of Contract on the Part of the Owner, Master, or Crew of the Ship, unless it is shown to the Satisfaction of the Court that at the Time of the Institution of the Cause any Owner or Part Owner of the Ship is domiciled in England or Wales:
Provided always, that if in any such Cause the Plaintiff do not recover Twenty pounds he shall not be entitled to any Costs, Charges, or Expenses incurred by him therein, unless the Judge shall certify that the Cause was a fit one to be tried in the said Court”.
Since this section limited the jurisdiction of the Court in such matters, to cases where the goods were actually brought into a port in St. Lucia, and since the record discloses that the ship never came into port after it was loaded and sailed, the Court had no jurisdiction to hear the matter. He cited in support “The Ironsides” reported in 167 E.R. 205.
By virtue of Statutory Instrument No. 129 The Admiralty Jurisdiction (St. Lucia) Order, 1965, section 2 of which is as follows:-
“2. The Colonial Courts of Admiralty Act, 1890(b) shall, in relation to the Supreme Court of the Windward Islands and Leeward Islands, have effect as if for the reference in subsection (2) of section 2 thereof to the Admiralty jurisdiction of the High Court in England there were substituted a reference to the Admiralty jurisdiction of that court as defined by section 1 of the Administration of Justice Act, 1956 subject to the adaptations and modifications of the said section 1 that are specified in the First Schedule to this Order”.
the jurisdiction of the High Court of St. Lucia was extended, in that the limitations provided for by section 6 of the Admiralty Courts Act, 1861 were removed and by section (1)(1)(h) of the Administration of Justice Act, 1956, the Admiralty jurisdiction of the High Court was extended to embrace “any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship”.
It was not until 1965 by Statutory Instrument No. 129 —the Admiralty Jurisdiction (St. Lucia) Order, 1965 that the Administration of Justice Act, 1956 became applicable in St. Lucia. It was accordingly argued on behalf of the appellants that when the writ was filed on 29th May, 1962 in relation to the vessel “Josephine Mark”, all matters concerning the carriage of goods relating to that vessel had to be decided in accordance with section 6 of the Admiralty Courts Act, 1861. In the instant case although proceedings were initiated in 1962 the matter was only heard in 1968, after material changes in the law relative to procedure, had taken place in the intervening years.
Counsel for the appellant submitted that the application of the procedure provided for in 1965 as the learned trial judge had done, to an incident which had taken place in 1961, before the new procedure had been promulgated, was tantamount to depriving the appellant of a vested right —freedom so to speak from the likelihood of being sued.
In Maxwell on Interpretation of Statutes, Eleventh Edition at p. 216 it is there stated:-
“No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without, or with only, a defective remedy”.
In “The Ironsides” (supra) at p. 209, Dr. Lushington in discussing the general presumption that a statute is not retrospective in its effect, expressed the view that in such cases a circumstance entitled to much weight is the consideration of whether the statute is remedial or not. He in fact, held that the statute which was...
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