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King v. Owners of "La Lavia" [1996] IEHC 20 (14th October, 1996)
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[1996] IEHC 20
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King v. Owners of "La Lavia" [1996] IEHC 20 (14th October, 1996)
THE
HIGH COURT
ADMIRALTY
1986
No. 11076p
IN
THE MATTER OF SAILING VESSEL "LA LAVIA"
BETWEEN
ALAN KING AND HARRY CHAPMAN
PLAINTIFFS
AND
THE
OWNERS AND ALL PERSONS CLAIMING AN INTEREST IN THE SAILING VESSEL "LA LAVIA",
HER MACHINERY, APPURTENANCES, APPAREL, TACKLE, ORDINANCE, CONTENTS AND CARGO
DEFENDANTS
AND
CONSOLIDATED BY ORDER DATED THE 4TH DAY OF MAY 1994
1986
No. 11077p
IN
THE MATTER OF THE SAILING VESSEL "JULIANA"
BETWEEN
ALAN
KING AND HARRY CHAPMAN
PLAINTIFFS
AND
THE
OWNERS AND ALL PERSONS CLAIMING AN INTEREST IN THE SAILING VESSEL "JULIANA, HER
MACHINERY, APPURTENANCES, APPAREL, TACKLE, ORDINANCE, CONTENTS AND CARGO
DEFENDANTS
AND
CONSOLIDATED BY ORDER DATED THE 4TH DAY OF MAY 1994
1986
No 11078p
IN
THE MATTER OF THE SAILING VESSEL "SANTA MARIA DE LA VISION"
BETWEEN
ALAN
KING AND HARRY CHAPMAN
PLAINTIFFS
AND
THE
OWNERS AND ALL PERSONS CLAIMING AN INTEREST IN THE SAILING VESSEL "SANTA MARIA
DE LA VISION", HER MACHINERY, APPURTENANCES, APPAREL, TACKLE, ORDINANCE,
CONTENTS
AND
CARGO
DEFENDANTS
JUDGMENT
of Mr. Justice Barr delivered the 14th day of October, 1996
1. The
Supreme Court, on appeal by the appellants against that part of the judgment of
this Court which deals with the respondents' right to a licence from the
Commissioners of public works in Ireland (the Commissioners) to carry out a
non-excavation survey of the site of the Armada wrecks at Streedagh and the
evaluation of their claim against the State for a reward and recoupment of
expenses relating to their discovery, has held:-
(i) that
the respondents were not entitled to a licence to excavate at Streedagh, but
that the Commissioners, in accordance with their undertaking to the Supreme
Court should consider with due expedition a new application from the
respondents to carry out a pre-excavation survey for the purpose of
ascertaining, inter alia, the nature, extent, content and value of the find; and
(ii) that
the respondents are entitled to recoupment of expenses and also a fair and
reasonable reward for discovery of the Armada wrecks taking all relevant
factors into account, including the information which emerges from the proposed
survey. I am informed by counsel that since the judgment of the Supreme Court
the Commissioners have granted the respondents a licence to survey the site and
that such work is presently in progress. In its order dated 27th July, 1995
the Supreme Court also directed that the question of the costs of the
proceedings in the High Court be remitted to this Court for determination.
2. The
judgment of O'Flaherty J. contains the following passages:
“.....the
choice that presents itself to the Court is to declare that there is a legal
entitlement to an award, aside from the doctrine of legitimate expectation, in
the strict sense, in which case it will be for the High Court judge to assess
what is a fair and just reward in the circumstances; the alternative is that
the court should hold that the matter of a reward is for the State but that its
assessment should be reasonable having regard to some - it may be most - of the
matters set forth by Barr J. and that that decision, like every other
administrative
decision would have to be reached in a reasonable fashion........I would hold
that the matter of a reward is for the decision of the Commissioners in this
case. In so holding, I hope that it will not be thought inappropriate if I
adopt the opinion proffered by O'Dalaigh C. J. in a different context - he was
talking about the compensation that should be paid for the compulsory
acquisition of land at Tara - when he said that a niggardly spirit should not
attend any disbursement that the Commissioners might agree to make:
Tormey
-v- Commissioners of Public Works
now belatedly reported at [1993] I.L.R.M. 703 at 711”.
3. The
judgment of Denham J. (which was the only other judgment of the Court)
concludes with the following passage:-
“The
only issue between the parties is as to the amount of the reward. The
plaintiffs/respondents claim their expenses and reasonable compensation
relating to the value of the find. The Commissioners, while not denying that a
reward be given, submit that the sum be ex gratia and modest. The
Commissioners have not yet quantified the sum they will offer as a reward.
Thus, a submission that the sum is incorrect for any reason is premature.
The
parties have now accepted that the plaintiffs/respondents will apply for a
licence to undertake a preliminary survey of the site. Since the value of the
find is as yet unascertained, it is also premature to determine the level of a
reasonable reward.
I
agree with O'Flaherty J. that the amount of the reward is for the Commissioners
and that it must be reasonable in all the circumstances. Their decision is
judicially reviewable in view of the nature of the decision and its place
within the public domain”
4. In
the light of the judgments of O'Flaherty and Denham JJ and findings by this
Court which have not been challenged, the following conclusions emerge:-
1. A
survey should be carried out at the Streedagh site to ascertain sufficient
information for a valuation of the nature, extent and importance of the find
and also to enable informed recommendations to be made as to the future of the
project, including, if appropriate, the need to retrieve or protect important
artefacts which may be at significant risk of loss or damage. [As already
stated, this matter has been put in train].
2. In
the light of the foregoing survey, the Commissioners shall assess, subject to
judicial review, a fair and reasonable reward to be paid to the respondents for
their discovery of the Armada wrecks at Streedagh having regard to their
nature, extent, historical significance and value - such an award to include
also the expenses of the respondents in that connection.
5. Having
regard to these conclusions it follows that, stripped of its complex legal
trappings, at the end of a very long day the respondents' claim in this
litigation has been essentially successful and, therefore, justice requires
that they should be awarded their costs in the High Court. However, there are
two subsidiary questions for consideration in that regard. First, whether such
an order should include all costs of the proceedings. The respondents' claim
was based on two alternate grounds; first, in Admiralty law as salvors in
possession and, secondly, as finders of valuable historical artefacts which in
law are the property of the State. It was patently reasonable to present their
claim on that dual basis. In the event, they failed on the first ground, the
legal arguments in relation to which having taken up several days at the trial.
The finding of this Court has not been appealed. However, it is proper to take
into account that as maritime archaeology is still in its early adolescence and
has been significantly developed only in quite recent times in the wake of
modern electronic technology, there is a dearth of judicial precedents in the
common law world, and on that particular issue the action proceeded in largely
uncharted waters. It is hoped that the cartography which has now emerged will
be regarded as an acceptable development of maritime law in that area.
6. There
have been many instances over the years where the courts have granted costs to
unsuccessful litigants - particularly against the State - where important new
issues of law of general interest have arisen and have given rise to definitive
judgments. [See, for example, the judgments of the Supreme Court and a
divisional court of the High Court in
Hanafin
-v- The Minister for the Environment and Others
delivered on 7th February, 1996 and 1st March, 1996 respectively (unreported)
in which both courts unanimously dismissed the plaintiff's claim that the
result of the recent constitutional referendum on divorce was unlawful and
should be set aside, but, nonetheless, awarded him his costs in both courts
having regard to the novelty and importance of the issue raised]. In the
present case the respondents were not defeated and have been substantially
successful in their claim. The issue of maritime law which they raised has
given rise, it seems for the first time in the common law world, to an
assessment of the status of archaeology in Admiralty law. That is a question
of obvious importance and I am satisfied that in all the circumstances there
should be no deduction in the respondents' costs arising out of the judgment of
the Court on that issue.
7. The
final question for consideration as to costs relates to the effect (if any) of
the lodgments, since consolidated, made by the appellants with their defences.
8. Mr.
McGovern contends that I cannot assume that the ultimate award when made by the
Commissioners will exceed the total lodgment. However, he is not prepared to
disclose the amount in question and, therefore, he has precluded me from taking
it into account in the matter of awarding costs. There is no information to
establish, or even suggest, that the combined lodgments might exceed the
assessment of the respondents' claim for expenses (which I have already
measured at £72,660, including interest pursuant to the Courts Act, 1981
of £28,655 but excluding the cost of the present survey) together with a
fair and reasonable reward for an archaeological discovery of major historical
importance not merely for Ireland, Spain and England, but also for Europe and
the world at large. It is reasonable that the question of the respondents'
costs ought not to be delayed any longer. The lodgments could have relevance
only if I had been informed of their collective amount and it transpired to be
such that it could reasonably exceed the ultimate award to the respondents,
including expenses, if properly assessed by the Commissioners.
9. I
am satisfied that the respondents are entitled to their costs of the action in
the High Court against the appellants on a party and party basis, including
reserved costs.
© 1996 Irish High Court