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RECENT IRISH CASES
The High Court by virtue of its wide constitutional
jurisdiction can grant relief in an action in rem
brought by the foreign owner of an unregistered
mortgage in an Admiralty action.
The case refers to the motor vessel, "Fritz Raabe"
which was German owned and German registered. In
1969, the first co-plaintiff undertook repairs and
supplied materials to the ship which would be deemed
"necessaries". The plaintiffs did not retain any lien on
the ship, but, as they were unpaid, they instituted
proceedings in August, 1969, and in January, 1970,
they obtained judgment in default of appearance for
£1053 and costs, without prejudice to any subsequent
claims; a lien was also granted on the vessel. Later
the Waterford Harbour Gommissioners obtained judg-
ment against the ship for harbour dues, as the ship had
been abandoned in Waterford Harbour. Subsequently
the ship, as a result of a High Court Order of February,
1970, was sold, and the proceeds, £10,500, were lodged
in Court. As the ship was not an Irish registered ship,
the various mortgages could not be entered in the
Irish Registry, and would not therefore rank as regis-
tered mortgages in Ireland.
In February, 1970, two German Banks, who are co-
plaintiffs in this action, issued admiralty proceedings
in rem
against the owners of the vessel, as they had
mortgages subsisting against them, which had been
registered in Germany in 1957. When the German
Banks eventually brought an application for judgment
in default of appearance, it was contended by the Irish
plaintiff, that, as their mortgages wwe unregistered,
they could not institute such proceedings. But O'Keeffe
P., in July, 1971 held that they were entitled to do so
and allowed the claims of the German Banks. It was
thereupon agreed that the priorities of the parties
would be determined by the parties upon the following
basis: (1) The costs of the Irish plaintiff; (2) claims
for wages; (3) claims of the German Bank mortgagees
and (4) claims for necessaries.
The Waterford Harbour Gommissioners appealed to
set aside so much of the President's judgment as de-
clared the German banks as unregistered mortagees
to be entitled to receive payment of their debt in
priority to the Commissioner's claim. It was contended
that the German banks were not mortagees for the
purpose of the distribution of the proceeds of sale. The
net question is whether the High Court can grant relief
in an action
in rem
brought by the owner of an un-
registered mortgage in an admiralty action.
The following matters have to be considered :
(1) The German mortgages created valid charges
upon the ship long before the claims of the first plain-
tiff or of the Gommissioners.
(2) The claims of the first plaintiff and of the
Gommissioners, inasmuch as they constitute a lien, were
subsequent in time to the mortgages.
(3) The High Court has jurisdiction to entertain
suits in respect of foreign mortgages of moveable pro-
perty within their jurisdiction and to order the sale of
that property.
(4) The Maritime lien did not require possession of
the ship, but rested oil the basis that the lien travelled
with the ship, into whoever's possession it came, and
could be realised by proceedings
in rem.
(5) The Admiralty Court (Ireland) Act 1867 set out
in detail the Maritime jurisdiction of the Court.
(6) The High Court established by Art. 34 of the
Constitution is vested with original jurisdiction in all
matters of fact or law, in addition to any transferred
jurisdiction. This original jurisdiction embraces
inter
alia
all justiciable controversies relating to shipping.
The present High Court is consequently not the old
Court of Admiralty amended or extended but a com-
pletely new Court.
(7) The fact that particular procedures were or were
not available in former Courts is irrelevant. The fact
that Section 34 of the 1867 Act excluded from the
Courts jurisdiction claims in respect of mortgages of
ships registered under the Merchant Shipping Act is
inapplicable to the new Court.
(8) Order 64, Rule 1, of the Rules of the Superior
Courts, 1962, defined an "admiralty action" as,
inter
alia
"a claim in respect of a mortgage or charge on a
ship".
Consequently the President was correct in his view
that the claims of the German banks should be ordered
to be paid out of the proceeds of the sale of the ship-
The appeal is consequently dismissed.
Per Henchy J. (dissenting) : The present jurisdiction
of the High Court to hear admiralty actions
in rem
in
respect of mortgages of ships is confined to mortgages
registered under the Mercantile Marine Act 1955, as
Section 3 of the Admiralty Court Act 1840, which
conferred a wider jurisdiction, was never extended to
Ireland. Since the mortgages in respect of which the
banks were sued were not registered under the 1955
Act, the banks had no standing to bring an admiralty
action
in rem
in respect of them in an Irish Court,
because, if such an action is to be extended, such
extension must be made by Statute.
[R. D. Cox Ltd., Staatliche Kreditanstalt Oldenburg-
Bremen and Deutsche Schiff-fahts-Bank Aktien-Gesell-
schaft v. Owners of M.V. "Fritz Raabe"—Supreme
Court. (Walsh, Henchy and Griffin JJ.—majority judg-
ment by Walsh J., separate dissenting judgment by
Henchy J.)—unreported—1st August 1974.]
A person who has no legal estate or interest is not
entitled to apply for permission to develop the
property.
The plaintiffs are the owners in fee simple of Frescati,
Blackrock, Go. Dublin. As they were refused permission
to develop it, they claimed compensation of £1,309,000.
Subsequently in October, 1973, the plaintiffs were to
be granted development permission subject to certain
conditions. At this stage the defendant, who had no
legal estate or interest in the property, applied for
outline planning permission to develop the property in
a manner quite inconsistent with that of the plaintiffs.
On 28 November 1973 the planning authority notified
the defendant that she had obtained the outline plann-
ing permission sought, notwithstanding the fact that
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