This was an application for leave to appeal from the decision of the Court of Appeal in Spamat SRL v The Owners and All Persons Claiming an Interest in the MV Alimirante Storni [2020] IECA 58 (CMI729), dismissing the appeal against the decision of the High Court that the applicant, Spamat SRL, was not entitled to enforce a debt for services rendered at port against the owners, NSC Atlantic Trading GmbH & Cie KG, and all persons claiming an interest in the MV Almirante Storni (the respondents).

The vessel was arrested under the Jurisdiction of the Courts (Maritime Conventions) Act 1989 (the Act) as the claim was formulated as a 'maritime claim' under the Arrest Convention 1952. In a judgment delivered ex tempore on 24 May 2019, McDonald J dismissed the claim on the grounds that the services had been ordered by GK Shipping, that the applicant was aware of the legal difference between GK Shipping and the owners of the vessel, and that it had not been established that the owners had a personal liability in respect of the services provided. On the question of whether the applicant was entitled to pursue its claim in rem and have recourse to the vessel to satisfy its claim, the trial Judge held that there was no such entitlement as the existence of such a right would require personal liability on behalf of the owner.

In the Court of Appeal the applicant argued that the claim was one on account of 'disbursements made by … agents on behalf of a ship' and therefore within art 1.1.n of the Arrest Convention 1952. Consequently, the claim was argued to be treated as a claim in rem against the ship, independent of any personal liability on the part of the owner. In his judgment delivered on 9 March 2020, McGovern J, with whom the other members of the Court agreed, upheld the decision of the trial Judge and considered that his finding that the services had been ordered by GK Shipping was supported by the evidence, and that there was no evidence to suggest that the contract had been ratified by the owners or that GK Shipping were agents for the owners. The judgment of the Court of Appeal noted that the claim that there existed a right in rem derived from the performance of services for the benefit of a ship or its owner could not arise on the facts as the services were expressly made for the benefit of the time charterer. The questions that remained therefore were whether a lien could be said to arise by reason of the Arrest Convention 1952 or the Act, whether a ship owner could derogate from the statutory duty in rem, whether knowledge of the agent that he was contracting with a party other than the owner could deprive him of the statutory right, and whether for that purpose a distinction was to be drawn between a demise charterer and a time charterer. The Court of Appeal held that as a matter of law there could be no maritime lien in the absence of personal liability of the owner and that on the facts the trial Judge had found that no personal liability could arise. The weight of the evidence was against the existence of an agency relationship between the time charterer and the owners. No evidence of actual or ostensible authority was established, nor were there any operative representations. There was no doubt on the facts that the disbursements were not made on behalf of the ship or its owners. The Court held therefore that on the facts none of the indicia of a maritime claim within the meaning of the Arrest Convention 1952 existed that might give rise to a right to enforce against the ship. The trial Judge was correct that the onus of proof was on the applicant to establish that the owners of the vessel had a personal liability in respect of the services provided and it had failed to do so.

Held: Application for leave to appeal refused.

The first matter of general public importance asserted by the applicant concerns the nature of the statutory right in rem provided by the Admiralty Court (Ireland) Act 1867 to a ship's port agent who has made disbursements on behalf of a ship. The applicant contends that the statute creates personal liability on behalf of the owner and that an owner is entitled to derogate from this right only where it had parted with possession of the ship under a demise charter. If the ship is under a time charter, the shipowner can derogate from the right only where the terms and conditions of the charter have been made known to the ship's agent by actual notice.

The second matter of general public importance concerns whether the Arrest Convention 1952 and ss 4 and 5 of the Act extend the law on this matter.

The third matter of general public importance concerns whether the principles of liability for debts incurred on behalf of a ship which arise in the case of a demise charter, expressly applied by Finnegan P in the High Court in Campus Oil Ltd v Owners of MF/v Avro Hunter [2004] 4 JIC 2701, ought to be extended to a time charter, as was done by McGovern J in the High Court in Atlas Baltic OÜ v The Owners and all Persons Claiming an Interest in the Lady Magda [2018] IEHC 426 (CMI471).

The respondents oppose the application for leave on the basis that the Court of Appeal applied well-established principles of law in determining the proceedings. They deny that there is any uncertainty in the law requiring resolution by the Supreme Court.

The Court does not rule out the possibility that the principles to be applied in considering whether rights in rem exist by operation of law to enable a claim to be enforced against the owner of a ship, whether under the Arrest Convention 1952 or the Act may, in a suitable case, meet the constitutional threshold, but considers that the present application fails to meet that test on account of the findings of fact made by the High Court which the Court of Appeal held were supported by the evidence and which led to the conclusion that the owners could not be personally liable and that no action in rem could lie.

The High Court, having found that the applicant was aware of the identity of the owner of the vessel and that of the demise charter, that the time charter was not the agent of the owner, that the circumstances did not point to ratification of the acts of the time charterer by the owner, that the applicant had sought payment from the time charterer before leaving port, and had left port in the mistaken belief that the payment had been transmitted, this Court considers that these legal questions could not fall to be considered in an appeal. No issue of general public importance can therefore be said to arise for consideration.

The interests of justice for which the applicant contends are the interest of the applicant to have recourse to the ship where that owner has taken the benefit of services to the ship. On the facts that question cannot now arise.