Partnerselskabet Parsifal v Attorney General
| Jurisdiction | British Virgin Islands |
| Judge | Ellis J. |
| Judgment Date | 12 January 2018 |
| Neutral Citation | VG 2018 HC 2 |
| Docket Number | Claim No. BVIHCV 2014/0151 |
| Court | High Court (British Virgin Islands) |
| Date | 12 January 2018 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Ellis, J.
Claim No. BVIHCV 2014/0151
In the Matter of the Constitution of the British Virgin Islands
and
In the Matter of an Application by Partnerselskabet Parsifal Alleging the Initial Breach of the Constitution of the British Virgin Islands, 1976 and the Continued Breach of the Constitution of the British Virgin Islands, 2007 (Hereinafter “The Said Constitution”) Under the Provisions of the Said Constitution Protecting its Fundamental Rights and Freedoms Enshrined Therein and in Particular Sections 16 and 25 have been and are being and are Likely to be Contravened in Relation to it for Redress in Accordance with Section 31 of the Said Constitution of Sections 16 and 25 of the Said Constitution Sections and/or the Inherent Jurisdiction of the Court
Mr. Gilbert Peterson and Mrs. Hazel-Ann Hannaway-Boreland, Counsel for the Claimants
Mr. Baba Aziz and Ms. Maya Barry and Ms. Vareen Vanterpool, Counsel for the Respondent
Constitutional Law - Presumption of constitutionality — Whether section 464 of the Merchant Shipping Act and/or the 2005 Order was in breach of the constitution — Separation of powers — Henry VIII clauses — Delegated legislation — Limitations to the delegation of legislative functions — Breach of constitutional right — Protection against the unlawful deprivation of property — Compulsory acquisition.
On or about 2 nd January 2013, the Claimant's vessel, Parsifal III ran aground at Carrot Shoal, near Peter Island, in the Territory of the Virgin Islands. As a result, the keel was damaged and approximately 30 tons of lead shot spilled onto and around the reef at Carrot Shoal.
The local authorities became aware of the spill in late February of the same year and commenced investigations. These investigations eventually revealed that the yacht, Parsifal III was the source of the spill. The captain of that vessel eventually reported the incident to the authorities in the Virgin Islands on 28 th February 2013.
On 31 st July 2013, the Applicant filed a limitation claim seeking to limit its liability of all claims arising out of the grounding to the equivalent of 167,000 special drawing rights i.e. US$250,000.00 prescribed by section 396 (b) (ii) of the Merchant Shipping Act 2001 which prescribes that:
“396. The limits of liability for claims other than those provided for in section 401, arising on any distinct occasion shall be calculated as follows:
(a) in respect of claims for loss of life or personal injury,
(i) 166,667 special drawing rights for a ship with a tonnage not exceeding 300 tons;
(ii) 333,000 special drawing rights for a ship with a tonnage from 301 tons to 500 tons; or
(iii) for a ship with a tonnage in excess of 500 tons, the following amount in addition to that mentioned in sub paragraph (ii):
(aa) for each ton from 501 to 3,000 tons, 500 special drawing rights;
(bb) for each ton from 3,001 to 30,000 tons, 333 special drawing rights;
(cc) for each ton from 30,001 to 70,000 tons, 250 special drawing rights; and
(dd) for each ton in excess of 70,000 tons, 167 special drawing rights.,
(b) in respect of any other claims,
(i) 83,333 special drawing rights for a ship with a tonnage not exceeding 300 tons;
(ii) 167,000 special drawing rights for a ship with a tonnage from 301 tons to 500 tons;
(iii) for a ship with a tonnage in excess of 500 tons, the following amount in addition to that mentioned in sub-paragraph (ii):
(aa) for each ton from 501 to 30,000 tons, 167 special drawing rights;
(bb) for each ton from 30,001 to 70,000 tons, 125 special drawing rights; and
(cc) for each ton in excess of 70,000 tons, 83 special drawing rights.” Emphasis mine
The Respondent opposed this limitation claim and submitted that in any event the amount of special drawing rights was no longer applicable based on the United Kingdom Merchant Shipping (Convention on Limitation of Liability for Maritime Claims) (Amendment) Order 1998 1 ( the “ 1998 Order”) which increased the amount from 167,000 to 1,000,000 special drawing rights. This Order was purportedly incorporated into law of this Territory by the BVI Merchant Shipping (Adoption of United Kingdom) Enactments Order 2005 ( the “2005 Order”).
The relevant legislative history is therefore critical to the determination of this Claim. The framework commences with section 464 of the Merchant Shipping Act 2001 which provides as follows:
“464. (1) The Governor in Council may, after consultation with the Secretary of State for Transport of the United Kingdom, by Order apply to the Virgin Islands as part of the law of the Virgin Islands, subject to such exceptions, adaptations and modifications as may be specified in the Order, any enactment of the United Kingdom to which this section applies.
(2) An Order under subsection (1) may include provisions repealing or amending any provision of any enactment, other than this section, including an enactment which applies or enables the application of any enactment of the United Kingdom relating to merchant shipping, which is inconsistent with, or is unnecessary or requires modification in consequence of this section, the Order or any enactment of the United Kingdom applied to the Virgin Islands by the Order.
(3) The Minister shall, as soon as is practicable after the coming into operation of an Order under subsection (1), cause a text to be prepared of the enactment of the United Kingdom applied by the Order incorporating the exceptions, adaptations and modifications specified in the Order.”
By the 2005 Order, the Governor purported to exercise this delegated power to incorporate the named United Kingdom enactments into the Virgin Islands pursuant to section 464. The 2005
Order was executed by the Clerk of the Executive Council and is subsidiary legislation designed to complement the Merchant Shipping Act, 2001. This statutory instrument came into operation on 26 May 2005 and the effect was to adopt United Kingdom legislation which included 5 United Kingdom Acts, 189 pieces of subordinate legislation and 3 statutory codes of practice. For the purpose of this action, the relevant enactments incorporated by the 2005 Order include the 1998 Order and the Merchant Shipping (Accident Reporting and Investigation) Regulations 1999 2 ( the “1999 Regulations”)Section 1 of the 1998 Order provides that it will come into force on the date on which the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims 1976 ( the Convention) enters into force in respect of the United Kingdom. It effectively increased the limitation provisions prescribed by the Convention and which had been applied in section 396 (b) (ii) of the Merchant Shipping Act 2001. Section 4 of the 1998 Order provides as follows:
“ Limits of Liability
4. In the text of the Convention as set out in Part I of Schedule 7 to the Act, in
Chapter II —
(a) for paragraph 1 of Article 6 there shall be substituted —
“1. The limits of liability for claims other than those mentioned in Article 7, arising on any distinct occasion, shall be calculated as follows:
(a) in respect of claims for loss of life or personal injury,
(i) 2 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,
(ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):
for each ton from 2,001 to 30,000 tons, 800 Units of Account;
for each ton from 30,001 to 70,000 tons, 600 Units of Account; and
for each ton in excess of 70,000 tons, 400 Units of Account,
(b) in respect of any other claims,
(i) 1 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,
(ii) for a ship with a tonnage in excess thereof the following amount in addition to that mentioned in (i):
for each ton from 2,001 to 30,000 tons, 400 Units of
Account;
for each ton from 30,001 to 70,000 tons, 300 Units of
Account; and
for each ton in excess of 70,000 tons, 200 Units of Account…” Emphasis mine
The 1999 Regulations on the other hand are not intended to apportion or limit liability. Instead, the Regulations are intended to prescribe procedures for the investigation of marine accidents. The fundamental purpose of investigating an accident under these Regulations is to determine its circumstances and the causes with the aim of improving the safety of life at sea and the avoidance of accidents in the future.
By this Constitutional Motion filed on 23 rd May 2014, the Claimant contends that the adoption of the 1998 Order is unconstitutional on the basis that the increase in the special drawing rights had been effected by delegation of legislative power which is contrary to the principle of separation of powers. In an Amended Motion filed on 2 nd October 2014, the Claimant also contends that (1999 Regulations) are also unconstitutional, null and void.
The basis of the Claimant's claims of unconstitutionality is that section 464 of the Merchant Shipping Act 2001, purports to grant the Governor legislative power in breach of the Constitution and the doctrine of separation of powers and is therefore null and void.
Alternatively, the Claimant argues that even if section 464 of the Merchant Shipping Act 2001 is itself constitutional, the method chosen by the Governor to implement its usage by the 2005 Order was unconstitutional, void and of no effect being an executive rather than legislative act.
By way of further alternative, the Claimant contends that section 464 entitles only the application of “any enactment of the United Kingdom” to the Territory. The Claimant contends that the 1998 Order and the 1999 Regulations are not enactments and so any purported incorporation...
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