PDL International Pte Ltd v Cruz Holdings Ltd [2022] FJCA 7; ABU049.2021 (2 March 2022)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO. ABU 049 of 2021
(High Court Civil Appeal HBG: 1 of 2017)

BETWEEN:

PDL INTERNATIONAL PTE LIMITED
Appellant

AND:

CRUZ HOLDINGS LIMITED

First Respondent

AND:

CCB ENVICO PTY LIMITED

Second Respondent

Coram: Almeida Guneratne, JA

Counsel: Appellant (original 2^nd Plaintiff) – Mr P.W.David,Q.C with

Mr N. Prasad and Ms P. Verma.

1^st Respondent (original 1^st Plaintiff) – Mr V. Kapadia

2^nd Respondent (original claimant) – Ms M. Muir

Date of Hearing: 18 February, 2022
Date of Ruling : 2 March, 2022

RULING

[1] This is a renewed leave to appeal application and an application for “a stay”.

Background facts

[2] The 1^st Respondent’s (Plaintiff’s) ship sank resulting in loss of cargo to (inter alia) the 2^nd Respondent. The Appellant was the charterer of the ship who had entered into various contracts for the carriage of cargo on the vessel. The 1^st Respondent instituted proceedings (in the High Court) and paid a limitation fund (fund) into Court.

[3] The Appellant filed proceedings to intervene as a plaintiff relying on the 1^st Respondent’s limitation fund. The High Court declined the Appellant’s said attempt holding that:

“_ _ _ if PDL (the Appellant) seeks the benefit and protection afforded by the Limitation Fund, the PDL must constitute the Limitation Fund itself”

(paragraph [32] of its Ruling)

[4] Subsequently, it is upon the High Court refusing the Appellant’s application seeking leave to appeal the said Ruling that, this renewed application (and an application for a stay) comes-up for consideration and determination.

Submissions of Counsel for the Parties

[5] I have gone through the proposed Notice and Grounds of Appeal, written submissions of both Counsel and noted the oral submissions made by Mr. David and Mr Prasad for the Appellant and Ms Muir for the 2^nd Respondent.

Determination

[6] The Appellant (the charterer of ‘the ship’) is included in the definition of ‘owner’ (Section 2 read with Sections 77(b) and 88(1)(b) of the Maritime Transport Act No.20 of 2013, as amended) (MTA) (Act). “Limitation fund means a guarantee or deposit made by a ship owner to meet any damage or claim, _ _ _” (Section 82 of the Act).

[7] In contrast with Section 2, Section 77(b) and Section 88(1)(b), Section 82 which defines ‘limitation fund’ refers expressly to ‘a ship owner’ only. Consequently, could there be another limitation fund? In other words, a limitation fund of the charterer?

[8] As Craies opines “where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and prima facie restrictive and where an interpretation clause defines a term to include something, the definition is extensive”

(Craies, statute law, seventh ed.p.213 1971).

[9] As Lord Denning MR said in Bramley Moore [1963] 2 Lloyd’s Rep.429 (CA

“The principle underlying limitation of liability is that the wrongdoer should be liable according to the value of his ship and no more _ _ _ _”

[10] Should one pause there, the thinking in that judicial exposition is the focus and the emphasis placed on “the ship owner.” A charterer surely cannot put a value of the ship because it is not the ship owner.

[11] Liability for the occurrence (incident) re: the ship in question has not been admitted by either the ship owner or the Charterer. Thus, as I read the purport of the MTA, while a charterer is included in the definition of “ship owner,” it is excluded in the definition relating to the concept of “the limitation fund” which I have reflected on earlier in this Ruling.

(vide: paragraphs [6] to [8] above).

[12] Consequently and in sum, while I appreciate the effort made by Ms Muir in resisting the present application for leave to appeal of the Appellant what veered me to agree with Mr. David is his submission that, the learned High Court Judge fell into error when he held that any party entitled to limit for claims from a single occurrence had itself to establish a separate fund.

[13] In that submission of Mr. David I found him striking a cord with Lord Denning in the Bramley Moore case (supra) when His Lordship had said:

“_ _ _ I agree that there is not much room for justice in this rule, but for limitation of liability is not a matter of justice. It is a rule of public policy which has its origin in history and its justification in convenience.” (at p.437 supra).

[14] That judicial thinking is what Mr David pursued and I have no hesitation in agreeing with him while acknowledging the resistance offered by Ms Muir in opposing the Appellant’s application for leave to appeal.

[15] In the overall, given the fact that, the present matter is one requiring interpretation of the provisions of the MTA for the reasons I have alluded to above I am inclined to grant leave to appeal against the impugned Ruling of the High Court in as much as there is a definite area for the full Court of Appeal to go into and make a pronouncement thereon.

[16] In view of the approach I have adopted, I did not see the need to comment on the “1976 Convention” which would have led to reflections on the conceptions of “Monism and Dualism.”

[17] Of course, I subscribe to the views that once leave to appeal is granted it opens the key to the room where parties should be able to argue issues touching on the principal matter on which leave has been granted subject however to the exercise of discretion of the full Court and the relevant Rules of Court pertaining to procedure.

In Re: the Stay Order sought by the Appellant

[18] It did transpire at the hearing that, the sum of money ordered by the High Court to pay into a separate limitation fund by the Appellant has not been paid with the High Court not having set a time limit to do that.

[19] When questioned on that aspect, Mr. Prasad submitted that there was nothing to prevent the 2^nd Respondent from seeking the same even now.

[20] On that practical logic and reasoning of that submission of Mr. Prasad, having determined in my Ruling that, leave to appeal against the impugned Ruling of the High Court ought to be granted on the basis that, there was an area of law to be decided upon, namely interpretation of the provisions of the MTA, policy matters in the Marine Law aspects having regard to historical aspects impacting thereon as well, ipso facto and/or proprio vigore, without the need to go into any further in having to consider principles for granting a stay order, I proceed to grant a stay order in the exercise of the power and implied in that power, the discretion conferred on me by Section 20(1)(e) read with Section 20(1)(k) of the Court of Appeal Act.

Some final remarks

[21] Sitting as a single Judge of this Court it is not my task to say that as Mr David for the Appellant contended that, there is “a clear error in the Ruling of the High Court.” To grant leave to appeal against the said Ruling, I only had to determine as to whether there is an arguable case with reasonable prospects of success if leave is to be granted.

[22] For the reasons I have adduced earlier that criterion the Appellant has satisfied.

[23] Accordingly, I proceed to make my orders as follows:-

Orders of Court

1. Leave to Appeal against the Ruling of the High Court is granted.
   
2. Stay order sought by the Appellant in consequence thereof is granted.
   
3. The Hon Chief Registrar is prevailed upon to have this matter listed before the full Court for hearing on a priority basis.
   
4. In all the circumstances of this matter, involving Policy matters and interpretation of statute issues, I make no order as to costs and costs shall be in the ultimate cause of the appeal.
   

___________________________________________
Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL