The Gazette 1974

RECENT IRISH CASES The High Court by virtue of its wide constitutional jurisdiction can grant relief in an action in rem brought by the foreign owner of an unregistered mortgage in an Admiralty action. The case refers to the motor vessel, "Fritz Raabe" which was German owned and German registered. In 1969, the first co-plaintiff undertook repairs and supplied materials to the ship which would be deemed "necessaries". The plaintiffs did not retain any lien on the ship, but, as they were unpaid, they instituted proceedings in August, 1969, and in January, 1970, they obtained judgment in default of appearance for £1053 and costs, without prejudice to any subsequent claims; a lien was also granted on the vessel. Later the Waterford Harbour Gommissioners obtained judg- ment against the ship for harbour dues, as the ship had been abandoned in Waterford Harbour. Subsequently the ship, as a result of a High Court Order of February, 1970, was sold, and the proceeds, £10,500, were lodged in Court. As the ship was not an Irish registered ship, the various mortgages could not be entered in the Irish Registry, and would not therefore rank as regis- tered mortgages in Ireland. In February, 1970, two German Banks, who are co- plaintiffs in this action, issued admiralty proceedings in rem against the owners of the vessel, as they had mortgages subsisting against them, which had been registered in Germany in 1957. When the German Banks eventually brought an application for judgment in default of appearance, it was contended by the Irish plaintiff, that, as their mortgages wwe unregistered, they could not institute such proceedings. But O'Keeffe P., in July, 1971 held that they were entitled to do so and allowed the claims of the German Banks. It was thereupon agreed that the priorities of the parties would be determined by the parties upon the following basis: (1) The costs of the Irish plaintiff; (2) claims for wages; (3) claims of the German Bank mortgagees and (4) claims for necessaries. The Waterford Harbour Gommissioners appealed to set aside so much of the President's judgment as de- clared the German banks as unregistered mortagees to be entitled to receive payment of their debt in priority to the Commissioner's claim. It was contended that the German banks were not mortagees for the purpose of the distribution of the proceeds of sale. The net question is whether the High Court can grant relief in an action in rem brought by the owner of an un- registered mortgage in an admiralty action. The following matters have to be considered : (1) The German mortgages created valid charges upon the ship long before the claims of the first plain- tiff or of the Gommissioners. (2) The claims of the first plaintiff and of the Gommissioners, inasmuch as they constitute a lien, were subsequent in time to the mortgages. (3) The High Court has jurisdiction to entertain suits in respect of foreign mortgages of moveable pro- perty within their jurisdiction and to order the sale of that property. (4) The Maritime lien did not require possession of

the ship, but rested oil the basis that the lien travelled with the ship, into whoever's possession it came, and could be realised by proceedings in rem. (5) The Admiralty Court (Ireland) Act 1867 set out in detail the Maritime jurisdiction of the Court. (6) The High Court established by Art. 34 of the Constitution is vested with original jurisdiction in all matters of fact or law, in addition to any transferred jurisdiction. This original jurisdiction embraces inter alia all justiciable controversies relating to shipping. The present High Court is consequently not the old Court of Admiralty amended or extended but a com- pletely new Court. (7) The fact that particular procedures were or were not available in former Courts is irrelevant. The fact that Section 34 of the 1867 Act excluded from the Courts jurisdiction claims in respect of mortgages of ships registered under the Merchant Shipping Act is inapplicable to the new Court. (8) Order 64, Rule 1, of the Rules of the Superior Courts, 1962, defined an "admiralty action" as, inter alia "a claim in respect of a mortgage or charge on a ship". Consequently the President was correct in his view that the claims of the German banks should be ordered to be paid out of the proceeds of the sale of the ship- The appeal is consequently dismissed. Per Henchy J. (dissenting) : The present jurisdiction of the High Court to hear admiralty actions in rem in respect of mortgages of ships is confined to mortgages registered under the Mercantile Marine Act 1955, as Section 3 of the Admiralty Court Act 1840, which conferred a wider jurisdiction, was never extended to Ireland. Since the mortgages in respect of which the banks were sued were not registered under the 1955 Act, the banks had no standing to bring an admiralty action in rem in respect of them in an Irish Court, because, if such an action is to be extended, such extension must be made by Statute. [R. D. Cox Ltd., Staatliche Kreditanstalt Oldenburg- Bremen and Deutsche Schiff-fahts-Bank Aktien-Gesell- schaft v. Owners of M.V. "Fritz Raabe"—Supreme Court. (Walsh, Henchy and Griffin JJ.—majority judg- ment by Walsh J., separate dissenting judgment by Henchy J.)—unreported—1st August 1974.] A person who has no legal estate or interest is not entitled to apply for permission to develop the property. The plaintiffs are the owners in fee simple of Frescati, Blackrock, Go. Dublin. As they were refused permission to develop it, they claimed compensation of £1,309,000. Subsequently in October, 1973, the plaintiffs were to be granted development permission subject to certain conditions. At this stage the defendant, who had no legal estate or interest in the property, applied for outline planning permission to develop the property in a manner quite inconsistent with that of the plaintiffs. On 28 November 1973 the planning authority notified the defendant that she had obtained the outline plann- ing permission sought, notwithstanding the fact that 264