The High Court of Sri Lanka on 2nd November 1984 delivered its judgment in action in rem No. 8 of 1984 which has made a significant impact on the history of Admiralty Law and Practice in Sri Lanka.

On 23rd February 1984 a writ of summons in rem and a warrant of arrest was taken by the plaintiff, one Mohamed Saleh Bawajir, against M.V. Ayesha, then in the harbour of Colombo, alleging a breach of contract for the carriage of goods.

The master of the vessel filed appearance on 1st March 1984 and sought to traverse the jurisdiction of the court with regard to the Admiralty Jurisdiction Act, No. 40 of 1983. His counsel argued that there are currently no rules of procedure in force for the exercise of Admiralty jurisdiction granted under the Judicature Act, No. 2 of 1978, and the Admiralty Jurisdiction Act, No. 40 of 1983, and that therefore the issue of a writ of summons in rem and warrant of arrest on this vessel, in consequence of which the vessel was arrested, was bad in law, and had been made per incuriam.

The High Court of Sri Lanka traced the development of Admiralty jurisdiction in Sri Lanka from its origin in the Charter of Justice of 1833 to the enactment of the Admiralty Jurisdiction Act, No. 40 of 1983, and came to the conclusion that Sri Lanka has a substantive Admiralty law, but does not have rules of procedure or practice by which the Admiralty jurisdiction can be exercised. The High Court therefore held that it could not have lawfully issued the writ of summons in rem and warrant of arrest against the vessel on 23rd February 1984. It held further that the court had acted on that occasion per incuriam, and that the order for writ of summons in rem and warrant of arrest was a nullity. The court held further that it had an inherent jurisdiction to set aside its own order ex debito justitiae.

The Charter of Justice of 1833 made provision for a Vice-Admiralty Court to be established in the Colonies. It is a point of some interest that before 1840, in England, it was common law that governed a suit in Admiralty. In 1840 Admiralty jurisdiction was codified in Great Britain.

In 1863, by the Vice-Admiralty Courts Act of that year, a Vice-Admiralty Court was established in Ceylon (as Sri Lanka then was known). This Act of 1863 had clauses spelling out jurisdiction and providing for the framing of rules of procedure. No rules, however, were framed until the year 1883 when a set of rules for the Vice-Admiralty Courts in Her Majesty’s Possessions abroad was passed by Order in Council of Her Majesty dated 23rd August 1883. These rules were published in Gazette No. 4559 of 7th December 1883 (Sri Lanka).