Tenda v The Vessel, M. V Uta Princess [2017] SBHC 81; HCSI-CC 113 of 2017 (6 October 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 113 of 2017

BETWEEN: JOHN TENDA - Claimant

AND: THE VESSEL, M. V UTA PRINCESS - First Defendant

AND: HOGRANO PEOPLE’S ASSSOCIATION - Second Defendant

Date of Hearing: 26^th September 2017.
Date of Ruling: 6^th October 2017.

Mr. W. Togamae for the Claimant.
Mr. M. Tagini for the First and Second Defendants.

KENIAPISIA; PJ:

RULING ON APPLICATIONS TO: SET ASIDE DEFAULT JUDGMENT AND REMOVE A PARTY

1. Claimant filed a Category C claim on 31/3/2017. Claim was served on the defendant on 3/4/2017. Defence was due on or around 3/5/2017. No defence filed. Claimant applied for Default Judgment on 1/6/2017. Default Judgment was granted on 10/7/2017, perfected on 26/7/2017. Arrest warrant was issued under Order Number 2 of the perfected orders to prevent M.V Uta Princess from sailing until settlement of the judgment debt or further orders.
   
2. Following arrest or detaining of the vessel, the owner of the vessel, Uta Shipping Company Limited (USCL) applied to set aside arrest and stay the Default Judgment; filed 1/08/2017.
   
3. In the ruling I gave, perfected on 7/8/2017, I released the vessel from arrest with conditions. I stayed the Default Judgment and order appropriate applications to be filed to either set aside Default Judgment, amend claim or remove a party.
   
4. Consolidated applications to set aside Default Judgment and remove a party was filed on behalf of the first and second defendants (“defendants”), on 10/8/2017. Arguments were heard this morning.
   
5. The application to set aside Default Judgment was not properly argued on the relevant principles of law. No reasonable cause for delay in filing a defence was advanced. No arguable defence was argued. So applicants/defendants did not make a case for setting aside of Default Judgment on these two grounds. This will result in cost against them. On the other hand, Respondents did not submit on prejudice caused by setting aside Default Judgment. Application to set aside would normally fail on these considerations/principles.
   
6. Court will set aside Default Judgment and order trial only on the ground that the circumstances of this case warrant a trial rather than early termination. Circumstances are that, this is a claim for negligence and personal injury, at sea. Those issues need to be properly investigated at trial, for seaman is a big industry in Solomon Islands. And safety of seaman is paramount importance to stakeholders including the Courts.
   
7. On the application to remove first defendant, Court is of the view that current parties including the vessel are properly named as parties in an admiralty claim in the Court’s admiralty jurisdiction under Chapter 15.4 of the Rules. The vessel is a separate legal entity against which an action in rem can be maintained, quite apart from its owners. The vessel owner (USCL) can however be made an additional defendant party.
   
8. To facilitate the above, Court will allow amendment to pleadings to reflect USCL as employer of claimant. Amendment will clearly plead claimant working on board and had sustained injuries on board the first defendant vessel. After the amendments are effected, defendants are then granted leave to file defence out of time.
   
9. Accordingly the orders of the Court are:-
   

9.1. Default Judgment against defendants is set aside.

9.2. Cost awarded against the defendants on standard basis.

9.3. Leave to amend pleadings.

9.4. USCL is made an additional defendant party.

9.5. Application to remove first defendant is refused with costs as in 9.2.

9.6. Orders 1 (a) – (c) of my orders perfected on 7/08/2017 remain unaffected.

9.7. Contempt hearing is listed for 8:00am on 9/10/2017.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE