Nautilus International et Al v The Owner of the Ship My Alfa Nero et Al
| Jurisdiction | Antigua and Barbuda |
| Judge | Byer J. |
| Judgment Date | 12 December 2023 |
| Neutral Citation | AG 2023 HC 89 |
| Court | High Court (Antigua) |
| Year | 2023 |
| Docket Number | CLAIM NO. ANUHAD2023/0001 |
Consolidated with
CLAIM NO. ANUHAD2023/0001
CLAIM NO. ANUHAD2003/0002
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Mr. Craig L. Jacas with him Ms. Talia N. Dacosta for the Claimants in 2023/0001
Mr. Sylvester Carrott with him Mr. Anthony Greer for the Claimants in 2023/0002
Mrs. Carla Brookes-Harris with her Ms. Alicia Aska and Ms. Joy Dublin for the Intervenor
This was a case that dealt with the cause célébre yacht known as the “MV Alfa Nero” (“the super yacht”).
After a much-publicized arrival and subsequent abandonment by the owner of the yacht under international sanctions, the super yacht was left in the waters off Antigua and Barbuda. Its crew had been terminated in large part and the yacht was manned by a skeleton crew until the same was officially acquired by the Antigua and Barbuda Port Authority.
This case solely concerns the monies due and owing to those crew members who were originally employed on the super yacht before its abandonment and those who remained on board and/or hired as part of the skeleton crew from March 2022 to April 2023.
On the 11 th March, 2022 the superyacht was docked at the Antigua Yacht Club Marina, Falmouth Antigua. This vessel was registered to Flying Dutchman Overseas Ltd, a company incorporated in the Territory of the Virgin Islands (“the Flying Dutchman”). Via notification dated August 2 nd 2022, the Office of Foreign Assets Control (“OFAC”) of the US Department of the Treasury declared the vessel a sanctioned vessel.
By correspondence dated 10 th March, 2022 the services of the crew members, inclusive of the Claimants in ANUHAD2023/0001, were terminated by Burgess Crew Services, (“Burgess”) a management company whose services had been engaged by Flying Dutchman to staff the vessel.
By a declaration dated 21 st day of March 2023 pursuant to the Port Authority ( Amendment) Act 2023, the superyacht was declared abandoned and was subsequently seized on the 11 th day of April 2023. Following the seizure and registration of the vessel, the Government of Antigua and Barbuda (“the Government”) was able to successfully de-list the vessel as a sanctioned vessel for the sole purpose of facilitating the sale of same by the Government. Since the Government's seizure of the vessel, the services of a new management company were engaged to staff the vessel.
However between the period 17 th March 2022 to 11 th April 2023, that is to say, after the termination of the crew by Burgess but prior to the Government's seizure of the vessel, the previous owners, Flying Dutchman had made no arrangements or given any instructions for the maintenance and or staffing of the vessel.
On 17 th March, 2023 Claim No. ANUHAD2023/0001 (“the Nautilus Claim”) was filed seeking inter alia an order of arrest in rem against the superyacht and the enforcement of a Maritime Lien held by the crew members pursuant to section 49(1) of the Merchant Shipping Act No. 1 of 2006 and sought an order to facilitate the seizure and sale of the vessel to facilitate the payment of outstanding wages payable to the former crew members of the superyacht. This claim was filed by Nautilus International, a Trade Union and professional organization registered in the United Kingdom and Christopher Malcom Lewis on behalf of crew members identified in Annex 1, Annex 2 and Annex 3 to the Amended Statement of Claim. 1 The Claimants in this claim were seeking payment of the sum of €2,242,991.62 and interest at the rate of 4%.
On the 26 th day of April 2023 the application by the Attorney General of Antigua and Barbuda as an Intervenor was granted.
On 14 th October, 2023 a second Admiralty Claim No. ANUHAD2023/0002 (“Non-union claim”) was filed wherein the Claimants who were the non-unionized crew members inter alia, also sought payment for the amount of €439,494.40.00 plus costs and interest. 2
By Order of the Court dated 27 th June, 2023 both claims were consolidated.
On 27 th July, 2023 judgment was entered on admission on the issue of liability to pay salaries and the trial on the sole issue of quantum was set for 25 th October, 2023.
The Claimant's Joint Affidavit for the said trial of the matter was filed on the 18 th of September 2023 and the Intervenor's/Defendant's Affidavit in Reply was filed on the 16 th of October, 2023.
Before this court considers the issues that arose in this case, there are several preliminary issues which this court is mandated to consider and determine.
This suit being a consolidation of two suits, namely Claim No. ANUHAD2023/0001 and Claim No. ANUHAD2023/0002 clearly dealt with monies dues and owing by way of an action in rem by the superyacht to its crew members, hence the order for consolidation having been made. However, both suits dealt with different considerations as to the manner in which the monies due and owing were to be calculated and at some point during this judgment the differences will be addressed.
On the claims as filed, the Claimants sought a declaration that the claim must amount to a maritime lien pursuant to the provisions of the Merchant Act 2006. 3 However in light of the admissions made by the Intervenor and the order that this court made on the issue of liability, the court will no longer be considering this prayer for the declaration although the Claimants did not expressly resile from this relief in their submissions or at trial of the matter.
In this court's view having determined that the Claimants are owed sums and that the Intervenor who is responsible for the sale of the superyacht and the payment of its outgoings for which it is liable, must mean by necessity that the claim is in fact a lien to be met. Making the declaration in this court's mind would at this point be superfluous and unnecessary.
The final preliminary issue that this court must consider was the issue that arose at trial where both counsels for the Claimants made it clear that they objected to the Intervenor by way of evidence as through their sole witness Darwin Telemaque, as opposed through their pleadings purportedly seeking to raise as a ground of defence on quantum, the issue of the authority of the Claimant in the Nautilus claim, Captain Lewis to hire personnel to man the superyacht.
The contention of the Intervenor was that since the Claimant in the Nautilus claim had his employment terminated and there was no entity to re-employ him or who did in fact re-employ him, any acts that he purported to do thereafter were null and void and could not attract liability on the part of the superyacht in the sums claimedIt was the contention by the Claimants that the Intervenor must be bound by the pleadings they filed and in particular the Defence on Quantum filed on the 21 st July 2023. The Claimants further submitted that the Intervenor not having raised this issue in the pleadings could not now do so on evidence and effectively change their defence to the claim. By doing this, it meant that the Claimants were not able to respond to the same having seen that contention for the first time in the affidavit of the Intervenor's witness at trial.
In response the Intervenor's position was two-fold as contained in their closing submissions. Firstly, that pleadings, since the advent of the Civil Procedure Rules, were no longer required to be extensive but merely were to define the parameters of the case that the other party had to meet. Secondly that in any event the fact that they had pleaded that they questioned the validity of the Claimant's claim for double pay in both the Nautilus and the Non-union claims, was sufficient to put the Claimants on notice that not only did the Claimants have to prove their claim but that they could not accept the contention of the Claimants that the Captain was authorized to re-hire persons as crew.
In order for this court to decide this point it is therefore critical to assess not only the pleading referred to but also the statements contained in the affidavit of Darwin Telemaque.
The Defence on Quantum filed on the 21 st July 2023 at paragraphs 5, 7 and 9 stated the following:
“(5) Further by letters dated the 12 th of July 2023, counsel for the Defendants wrote requesting documentation and/or information in relation to the following among other concerns and issues:
(a) The validity of double-pay claims
(b) The inclusion of travel expenses
(c) The effect of funds held by the Burgess Company for crew services;
(d) The need for the provision of a breakdown of the expenses claimed
(e) The claiming tips
(f) Account of petty cash on board
(g) The change in designation of the ship and how that would affect salaries
(h) Clarity on the details of the timesheets
(i) Accurate explanation of the Flying Dutchman Overseas Limited
… (7) The information in this matter concerning the amounts claimed for salaries and entitlements of the crew, are matters peculiarly within their knowledge, therefore, there is an obligation on them to provide the information requested by the Defendants/Intervener as section 38A (8) places the burden on them to prove that salaries and entitlements are in fact payable by the Defendant. No obligation is placed on the Defendants unless and until it is proved that the salaries and...
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