The Gazette 1983

GAZETTE

JULY/AUGUST

1983

1. Counsel for Total submitted that the

Irish Courts had no jurisdiction to

try any of the thirty seven cases

because all the victims were

Nationals employed under French

Contracts of Service, the ship was

French registered and that in most, if

not all, cases the victims lost their

lives as a result of happenings on

board a French ship on French

national territory governed by

French national law. In rejecting this

submission the Court held that the

disaster took place in Irish waters

and within the Court's jurisdiction.

In reaching this conclusion the

Court adopted the reasoning of Lord .

Atkin in

Chung Chi Cheung

[ 1938] 4 All ER 786 in prefFering the

jurisdictional theory in International

Law "that a public ship in foreign

water is not and is not treated as

territory of her own Nation." Whilst

the present case dealt with a private

ship and the law oftort, the argument

in favour of subjecting a private ship

to the Civil Law of the littoral state

appeared equally strong, even if the

occurrence was confined to the

Betelgeuse entirely.

2. Immediately prior to the accident

the Betelgeuse was berthed at a jetty

owned by the first-named Defendant

it seems reasonable to assume that

the first and third-named Defend-

ants while denying liability would

blame each other and it would be

strange if the Plaintiff were

prevented from suing both Defend-

ants in the jurisdiction where the tort

was alleged to have been committed.

3. It was urged on behalf of Total

relying upon the Statement of Haugh

J. in

Freedman

Opdeheyde

[1945] I.J.R. page 22 that save in

exceptional

circumstances

the

Plaintiff must seek out the

Defendant in the Defendant's

jurisdiction and the Court held that

one of those exceptional circum-

stances was when the action is

founded on a tort alleged to have

been committed by a foreign resident

within the Irish jurisdiction.

On the second question the Court Held:

1. It was argued that issues of French

law best interpreted by a French

Court were raised. In particular the

fact that the Plaintiffs in these

actions who were suing as

Representatives or as dependants of

deceased members of the crew, had

received, and were receiving

substantial compensation under the

French Social Security system.

2. The Plaintiffs contended that the

comparative costs and convenience

of the Irish Courts as compared to

the Courts in England (where the

first defendant was registered) *

Pennsylvania (where the second

defendant was registered) and

France (where Total was registered)

respectively favoured having the

case tried in Ireland more especially

since 79 potential witnesses were

permanently resident in Ireland.

3. If the Plaintiffs had not joined Total

in the proceedings the first-named

Defendant would have applied to

issue third party proceedings against

them, because, in the event of the

Plaintiff succeeding against the first-

named Defendants, the first-named

defendants would be seeking

contribution or indemnity from

Total.

4. These factors favoured having the

Action tried in Ireland the deciding

factor being whether the Defendants

were liable to the Plaintiffs under the

law of tort in Ireland.

The application was refused and this

decision governed the position in all

thirty seven motions.

Laurence O'Daly and Marie Claude

Reverte

Gulf Oil Terminals (Ireland)

Limited, Gulf Oil Corporation and

Total

Compagnie

Francaise

Navigation

—

High Court (per

Barrington J.) (unreported) 7 July

1982.

Kenneth Morris

PRACTICE — certiorari — natural

justice —Absolute order of Certiorari

granted in respect of decision of

Governor of detention Institution

revoking a grant of temporary release

as the principles of natural justice had

not been applied.

The prosecutor had been serving a

sentence of twelve months detention in

St. Patrick's Institution. On 19 May

1981 subject to certain conditions, he

was granted full temporary release to

the expiration of his sentence on 22

October 1981.

On 15 June 1981, while on

temporary release, the prosecutor was

arrested under Section 30 of the

offences against the State Act 1939. He

was charged, with others, with

attempted murder and possession of a

fire-arm with intent to endanger life.

The prosecutor was then remanded in

custody to St. Patrick's Institution and

given clothing appropriate to a person

who had been sentenced. The

prosecutor was told he was beingkept in

custody because of the seriousness of

the offences alleged against him.

On 23 September 1981, the

prosecutor obtained a conditional order

of certiQrari in respect ofthe order ofthe

Governor of St. Patrick's Institution in

revoking the grant of temporary release.

The order was granted upon the ground

that the decision of the Governor to

terminate the temporary release was

reached otherwise than in accordance

with natural justice.

The argument put forward by the

prosecutor was that the Governor did

not hold a hearing before revoking his

temporary release. The Governor

denied this claim and argued that the

principles of natural justice had not

been broken.

The only evidence available to the

Governor was that the prosecutor had

been charged with serious offences. The

Governor was not in possession of any

evidence which related to a breach of

any condition to which the prosecutor's

temporary release was made subject

The Court stated that it followed that

there could not have been a hearing and,

accordingly, not a hearing which

followed fair procedures.

The Governor also argued that there

had been excessive delay on the part of

the prosecutor in obtaining relief.

Reference was made to

State (Cussen)

Brennan

[1981] IR 181.

The Court held in making absolute the

conditional order that;

1. A hearing is required in any case

where the rights of an individual are

seriously threatened and such

individual would not otherwise have

any means either of seeking to

vindicate himself or to alleviate the

hardship which he might suffer.

2. In view of the potential loss of liberty

ofthe prosecutor some hearing ofthe

allegation against the prosecutor

that he was in breach of a condition

to which his release was made

subject was required.

3. In die circumstances of this case the

essentials of a valid hearing

required:

(a) Evidence from which it would

have been fair to hold in favour ofthe

allegation;

(b) Notification to the Prosecutor of

the nature of such evidence

sufficient to enable him to prepare a

defence;

(c) Time for the prosecutor to prepare

a defence;

(d) An opportunity to make that

defence. The hearing, however did

not have to be of a very formal nature

provided that the atove minimum

requirements were met.

4. On the question of delay, there was