Court allows Hayleys and McLarens to enter as intervenient petitioners

By S.S.Selvanayagam

The Appeal Court last week allowed Hayleys Advantis Ltd and McLarens Investments (Pvt) Ltd to enter as intervenient petitioners to the writ petition filed by Parliamentarian Vasudeva Nanayakkara challenging the alleged failure to prevent restrictive practices in the shipping industry.

 The bench comprised of Justices P. Padman Surasena and Arjuna Obeysekera.

President’s Counsel Sanjeeva Jayawardena appearing for the Hayleys Advants Ltd brought to the cognisance of the court that there is a substantial question of law. 
He submitted that although the intervenient petitioners had been mentioned in the petition, they were not cited as respondents and have been kept outside from enlightening their position.

In reply, Akiel Dean appearing for the petitioner told the court that they were not cited as respondents as the relief was not sought from them but from the Ports and Shipping Minister.

The court noted that there was a reference to them (the intervenient).

Petitioner Vasudeva Nanayakkara in his petition alleges that the Ports and Shipping Minister is in breach of his legal duty by failure to make regulations in terms of the Merchant Shipping Act against the restrictive Practices and/or monopolization being carried out within the Sri Lankan shipping industry.

He cited the Minister, the Ministry Secretary, Director General of Merchant Shipping and Sri Lanka Ports Authority (SLPA) Chairman as respondents. Petitioner says restrictive practices are openly and deliberately being carried out in relation to the carriage of goods by sea in Sri Lanka.

He also pleads that the largest shipping entities are monopolizing and/or combining and/or conspiring with others to monopolise the carriage of goods by sea to and from Sri Lanka.

He is seeking the court to issue an order directing the Minister to act in terms of the Merchant Shipping Act and declare it as an offence for any person either as principal or agent to enter into contract or to be or continue to be a member of or engage in any combination in relation to the carriage of goods by sea to and from Sri Lanka.

Intervenient petitioner Hayleys stated despite not being named as a party respondent in the Writ petition, allegations of openly engaging in restrictive practices carried out in Sri Lanka in relation to carriage of goods by sea are based on its recent acquisition.

It said the allegations are baseless and unfounded which requires it to demonstrate to the court from material which are only privy to it and no one else and that such assertions are false and have been distorted by the petitioner.

It said it had been deliberately kept away from being made a party to avert it from bringing the actual facts in respect of the acquisition, which forms the substratum/the primary basis upon which the whole case had been presented.

Hayleys told the court that the notion that it with McLarens Investments controls over 70 percent of Sri Lanka’s shipping and maritime services market is grossly inaccurate and misleading.

Hayleys contended that the total port throughput handled by them is only approximately 13.7 percent and that the acquisition of Sri Lanka Shipping Company Ltd was effected to enable it being a local firm to gain access to the international shipping market as a ship owner and operator, thereby allowing it to acquire a fleet of vessels and expand its transportation sector into international chartering services, salvage and towing services.

Hayleys said the acquisition enabled to prevent 10 of Sri Lanka Shipping Company’s  sea-going assets from being acquired by a foreign/alien entity.

Hayleys maintained the acquisition was effected in the best interest of Sri Lanka and in particular, the local shipping industry, to help develop the nation as a leading shipping hub in the region. 

Faiz Musthapha PC with Faiza Markar, Akiel Dean and Rajika Aluvihara instructed by B.S.U.Fernando appeared for the petitioner.  Sanjeeva Jayawardena PC appeared for Hayleys Advantis Ltd, M.U.M.Ali Sabry PC appeared for McLarens Investments (Pvt) Ltd.

The case will be taken up for argument on December 04.