Sanchez v Attorney General of Montserrat

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: P. Cecil Lewis, J.A.,Lewis, C.J.
• Judgment Date: 15 May 1969
• Neutral Citation: MS 1969 CA 4
• Docket Number: Civil Appeal No. 1 of 1969
• Date: 15 May 1969

Sanchez

and

Attorney General of Montserrat

Lewis, C.J. Gordon, J.A. Lewis, J.A.

Civil Appeal No. 1 of 1969

West Indies Associated States Supreme Court. Court of Appeal

Admiralty Law - Destruction of vessel — Claim for damage

Held: The trial judge was correct in dismissing the counterclaim. The Harbour Authority was under a definite duty at common law to keep the gateway of the harbour open and free from obstructions which might constitute a hazard to navigation and in acting as it did the authority was merely performing its duty and therefore the act of destroying the vessel in the circumstances could not be regarded as an act of negligence. Judgment entered for the defendant. Counter claim dismissed.

Held: Section 45 of the Magistrate's Code of Procedure Act prescribed the conditions under which a person charged with the indictable offence created by section 4 of the Larceny Act may be tried summarily. Unless those conditions are observed, a summary trial and conviction for that offence is a nullity and the conviction must be quashed on appeal. Appeal allowed. Conviction quashed and sentence set aside. Case remitted to the Magistrate with directions to commence de novo.

Facts: The appellant's ship was destroyed when it was being moved under the orders of the Harbour Authority. The issues were whether the trial judge was correct in dismissing the counterclaim of the appellant and whether the Harbour Authority was negligent in destroying the vessel.

P. Cecil Lewis, J.A.

1 On the 23 ^rd of November, 1965 the appellant's vessel the M.V. Swanson while on a voyage from St. Kitts to St. Lucia with a cargo of molasses developed a leak and had to put into Plymouth Roadstead in Montserrat. She was seen by the Harbour Master in the Roadstead around 11.30 p.m. that night at a distance of about 500 yards from the pier. At 5 a.m. next morning the Harbour Master, Alwyn Jacobs was called by the police and on going to the pier he found the vessel “lying east and west at the head of the pier”, and on inquiring from the captain why his vessel was in that position, the captain informed him that he had been “told to come alongside to be pumped out because he had sprung a leak”. The vessel was then some 50 feet from the pier and lying on the bed of the sea in about 9 feet of water. The Harbour blaster informed the Receiver of Wrecks Thomas Perkins who went to the pier where he found the vessel in the position above mentioned. He noticed that “most of the hull was still out of the water”. The Receiver of Wrecks asked the captain and crew to give him statements on oath after which the cargo on the vessel was removed and attempts were made to pump the water out of the vessel. These efforts to refloat the vessel were however unsuccessful.

2 The appellant arrived in Montserrat on the evening of the 24 ^th November. He told the Receiver of Wrecks that he would arrange to salvage the vessel himself. It i s not quite clear from the evidence whether salvage operations were started right then by the appellant but he left the island in December and returned with a barge which he obtained in Antigua. It also seems from the evidence (and again this is not clear) that he made some effort to obtain the services of a tug from Trinidad but whether it ever arrived in Montserrat is by no means certain from the record. In any event the appellant spent five days in emptying the molasses tanks on the vessel, he had the engine unbolted and attempts were again made to refloat the vessel by pumping out the water. Unfortunately, however the crane, which was available, was unable to lift the engine from its bed and a11 efforts to refloat the vessel again proved abortive. The appellant went from Montserrat to several other places in an effort to obtain the necessary assistance to refloat his vessel. He sent back five floating bags capable of lifting 16 tons each, which he obtained in Florida. These bags were apparently never used.

3 During the appellant's absence from Montserrat certain correspondence was sent to him by the Receiver of Wrecks and the Port Authority in connection with the vessel. I might comment that this correspondence (consisting of a letter and a few telegram,) although admitted as exhibits in the lower court did not form part of the appeal record. Counsel for the respondent however read to the court some of the documents on which he relied.

4 A letter of December 6 ^th, 1965 (Exhibit B) called upon the appellant to remove his vessel by 28 ^th December and warned him that on his failing to do so the harbour authority would proceed to remove the obstruction and charge him with the expenses of removal. A telegram from the Port Authority dated 10 ^th January, 1966 (Exhibit C) also requested the appellant to clear the port of the obstructing vessel by the 20 ^th January. The appellant sent no reply either to the letter or the telegram although he does not deny having received them, nor did he carry out the instructions to remove the vessel. Accordingly, the harbour authority in performance of the duty, which lay on it at common law to keep the fairway of the harbour open for navigation, arranged to have the fairway cleared and this was done by dynamiting the vessel and removing the wreckage. The appellant was then informed by telegram dated 15 ^th March, 1966 (Exhibit G) that the removal of the vessel had been completed and what material had bean recovered would be sold on the 25 ^th March.

5 The appellant had deposited $1000.00, which was treated as part of the expenses for the vessel. The total expenditure involved was $5500.36 and after deducting from this sum the $1000 which the appellant had deposited and the value of certain articles which had been recovered from...