Saldanha v Fulton Navigation Inc  EWHC 1118 (Admlty)
The Respondent, an Indian national, was injured whilst working on board the Applicant Owner’s vessel, which was registered in the Marshall Islands. The injury was sustained while the vessel was at anchor off the coast of Wales: the vessel had begun to drag its anchor, and the Respondent was injured whilst trying to resolve the problem. He was hospitalised in England before undergoing further medical treatment in India.
The Respondent commenced proceedings against the Applicant for negligence, and obtained permission to serve the claim form out of the jurisdiction. No acknowledgment of serve challenging the jurisdiction was filed, and default judgment was obtained.
The Applicant subsequently applied for declarations that the English court did not have jurisdiction to decide the claim, and that the default judgment should be set aside.
The application was refused. The Court found that s.11 of the Private International Law (Miscellaneous Provisions) Act 1995 applied, and as a result CPR PD 6B para 3.1(9) required a consideration of the physical location of the vessel when the act which gave rise to the damage in question took place. The context did not require the law of the jurisdiction of the flag state to be applied, indeed the circumstances supported the opposite conclusion. This provision of the CPR also allowed for consideration of the place where the damage was suffered. A large proportion of the pain and suffering on the Respondent’s part occurred when he was in hospital in England, and that was sufficient to found jurisdiction.
To the extent that Indian law might be relevant to the claim, this could be proved by expert evidence. Apart from the Master, who was Indian, it was unlikely that any further witnesses would be required. The incident occurred in bad weather conditions off the Welsh coast, and the steps which the Applicant should have taken to avoid the incident needed to be considered against that background. Further, the necessary medical evidence was largely available in England. All of these factors pointed to England being the proper forum for the dispute.
As regards setting aside the default judgment, the Court held that the Applicant had failed to show that it had a real prospect of successfully defending the claim. It had also failed to address the issue of whether its servants were causally negligent in allowing the situation to develop. The fact that the vessel dragged its anchor placed the burden of explaining how that came about without negligence on the Applicant, who had failed to satisfy this burden.