IN COURT THIS WEEK
COURT DISMISSES CASE OF SEYCHELLOIS SEAMEN
The Supreme Court presided over by Justice Karunakaran has dismissed an action in rem against the vessel “IZARO” brought by a group of Seychellois seamen on the grounds that the action was not maintainable in law since it falls outside the scope of the Admiralty Jurisdiction of the Supreme Court. The Court also held that an admiralty action in rem against a ship may only be invoked if, the person who is liable in personam at the time the writ is issued, is the beneficial owner or charterer of the ship. The defendant, Nick L. Marinkovic has not been alleged by the Plaintiffs to be the owner or charterer thereof or to have any interest whatsoever in “Izaro”. The Court thus dismissed the Plaintiffs’ case.
The fishing vessel “Izaro” is registered in the City of Belize, New Zealand with parallel registration in Seychelles. The vessel was at all material times owned by a foreign company registered in Iran namely, Zardhaleh Industrial Tuna Fishing Company. The 6 Seychellois crew who brought the action were all employed by another foreign company called “Spirit Wind New Zealand Limited” under a contract of employment dated 13th February 2004. The claim allegedly arose out of the said contract of employment. The Plaintiffs alleged that in breach of the terms of the said contract, the employer had terminated the employment of the Plaintiffs, causing them to suffer loss and damages in the sum of US$ 42,600. Hence the Plaintiffs claim this sum from the Defendant which included US$ 12,600 for loss of earnings for 6 months at US$ 2100 per month, US$ 30,000 for tonnage fees calculated on the basis of 5000 tons of tuna per month for 6 months at US$ 1 per ton.
The Supreme Court had granted an interlocutory order in February 2004 directing the Defendant to furnish security for costs and damages in the sum of Rs.238,000 and ordered the arrest of the vessel “IZARO” which was then lying within the territorial waters of Seychelles. Consequent upon the arrest of the vessel, the owner and the Charterer applied jointly to the Court to have it released from arrest. Having a obtained a bank guarantee from the Applicants to secure the payment of the said sum, the Court on the 27th February 2004 released the vessel from arrest, pending further proceedings and the outcome of the main case.
In the meantime the Applicants, namely the owner and the Charterer, had by application dated 2nd March 2004, applied to the Supreme Court for an order dismissing the Plaintiffs’ action with costs. According to the affidavit filed by Mr. Ali Sarafzade, the representative of the Applicants, the vessel “IZARO” belongs to a foreign company incorporated in Iran, namely “Zardhaleh Industrial Tuna Fishing Company”. Whereas “Zitco International Inc” had chartered the bare boat “IZARO”. The Defendant Nick N. Marinkovic has no share or part or any interest whatsoever in the vessel. The Defendant, Mr. Marinkovic is the Chief Executive Officer and representative of the company “Spirit Wind New Zealand Ltd. The Defendant has otherwise no interest or share in IZARO or the Charter. Thus IZARO is owned entirely by its owner “Zardhaleh Industrial Tuna Fishing Company” and the only other registered interest in the vessel is that of “Zitco International INC”, the Charterer. Hence, the recruitment and the employment of the crew is and was made by “Spirit Wind New Zealand Ltd” which had entered into an employment contract with the Plaintiffs. Mr. Francis Chang-Sam, attorney for the Defendant, argued that the claim of the Plaintiffs fall outside the scope of admiralty jurisdiction. He submitted that the proper forum to entertain such a claim is the Ministry of Employment, as the employment disputes fall within the Ministry’s exclusive jurisdiction by virtue of Section 4 of the Employment Act. The Court held that since this was an employment dispute and relates directly to the breach of a contract of employment the proper forum is therefore the Ministry of Employment and not the Supreme Court. For these reasons the Court dismissed the action against the vessel IZARO and order the cancellation of the Bank Guarantee dated 27th February 2004.
