Admiralty Procedure

Faculty of Law
ADMIRALTY LAW AND PRACTICE 2003-2004

(LLA4021 / LMA4021 / LDA4021 / LSA4021)
ADMIRALTY PROCEDURE
(1) ESSENTIAL READING
A. Statutory material
High Court (Admiralty Jurisdiction) Act (rev. ed. 2001), cap. 123
· Rules of Court, r. 5, Order 701 (Admiralty Proceedings)2
B. Cases
You are expected to have read all the cases marked *
C. Secondary material
C.1. Singapore
· Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1543-1615 (RBR collection)3
OR
G.P. Selvam (ed.), Singapore Civil Procedure 2003 (Sweet & Maxwell Asia, 2003), 1028-
1063 (RBR collection)
AND
Toh Kian Sing, Admiralty Law & Practice (1998), Chapter 4 (“Procedure leading up to
Arrest”) + Chapter 5 (“Procedural Matters arising after Arrest”)(RBR collection)
1 Made pursuant to the Supreme Court of Judicature Act (1999 rev. ed.), cap. 322, s. 80. O.
70 was originally based on the U.K. RSC, O. 75. For the text of O. 75, see Meeson 1st ed.
(1993), 482-495 (RBR collection).
2 For the U.K. position today, see The Civil Procedure Rules (CPR): Part 61 – Admiralty
Claims, available in full from www.lcd.gov.uk.

3 The text to O. 70 was written by Vivian Ang of Drew & Napier.
2
C.2. United Kingdom
· Nigel Meeson, Admiralty Jurisdiction and Practice 1st ed. (1993), Chapter 4 (“Procedure in
an Admiralty action in rem”) + Appendix I (“Admiralty pleadings”)(RBR collection)4
OR
David Jackson, Enforcement of Maritime Claims 3rd ed. (2000), Chapter 10 (“Enforcement
of Maritime Claims by an Action ‘in rem’”)(RBR collection)
(2) FURTHER READING

Halsbury’s Laws of England 4th ed. (2001 Reissue), vol. 1(1) (“Admiralty”), 471-539
The Right Hon. Lord Justice May (ed.), Civil Procedure 2002 (“The White Book”)(2002),
Vol. II, 147-185
Michael Tsimplis & Nicholas Gaskell, “Admiralty claims and the new CPR Part 61” [2002]
Lloyd’s Maritime & Commercial L.Q. 520-527
4 Note that the third edition of Meeson’s book describes the position as it currently is in the
U.K. (i.e. as implemented by the CPR Part 61).

3
(1) Definitions
Reading
Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1544-1546
· O. 70, r. 1(2)
“caveat”
→ The 4 stages: issue of the writ, service of the writ, issue of warrant of arrest, service and
execution of warrant of arrest.
(2) Issue of a writ5
Reading
· Toh Kian Sing, Admiralty Law & Practice (1998), 139-142
2.1. The prescribed form
Ord. 70, r. 2(1): Form 155 (claims in rem)6

“An action in rem must be begun by writ; and the writ must be in Form 155.”
A writ in rem in the AJ must be filed according to the E-filing system since mid-2002.
· accepted practice to name the offending ship and sister ships in one writ OR the
offending ship in one writ and the sister ships in another7
The Bolbina [1994] 1 S.L.R. 554:
In this admiralty action in rem the plaintiffs claim to be owners of cargo

carried on board the mv Fierbinti from the European port of Constanza to
Singapore. The writ was against 19 ships.
The title of the action described the defendants as “The owners and other
persons interested” in the 19 ships. This description is wrong and not in
accordance with the form of admiralty action in rem (Form 155) in the
Appendix to the Rules of the Supreme Court 1970 (“the RSC”). Persons against
whom no claim is made ought not be described as defendants. “Persons
interested in the ship” should form part of the citation and not be described as
or included as defendants. A defendant enters an appearance as of right
whereas persons interested in the ship must obtain leave to intervene and after
obtaining leave appear as interveners. This minor error was not an issue before
me and I make this observation so that it can be avoided in future. (per Selvam
J.C. at 556)8
5 i.e. a written order or warrant issued in the name of the sovereign (in the U.K.) and by the
State in Singapore.
6 For in personam claims, the relevant form is Form 2 and the words “admiralty action in
personam” have to be inserted above the space for the number of the writ: O. 70, r. 2(2).
7 i.e. in the case of proceedings under HC(AJ)A, s. 4(4).
8 Subsequently taken on appeal and reported as The Fierbinti [1994] 3 S.L.R. 864 (C.A.) –
see previous references – and dismissed.

4
· not necessary to name the parties to an action in rem

can just say “owners of the ship Benjamin”…etc
The Assunta [1902] P. 150:
There is undoubtedly an old practice in the Admiralty Court of great value

which enables the owners of a ship or cargo in any Admiralty action to sue as
such – a proceeding which would have been regarded by the Courts of Common
Law with professional horror; but the Court of Admiralty allowed it for a very
good reason, because what they were really dealing with was one ship against
another, and so long as you had the names of the vessels you had really all that
was material. You could ascertain the names of the owners from the register, or
otherwise.
The result is that we have an antecedent practice of a very peculiar kind in the
Admiralty Court, and I do not think it is too much to say that it is improbable
that this rule [of the Supreme Court], in its general terms, was intended to
abrogate so old and valuable a practice as that which obtained in the Admiralty
Court … Therefore I feel no difficulty in saying that this rule does not apply to
abrogate the former practice of the Admiralty Court, of allowing the owners of a
ship to sue as such … (per Sir Francis Jeune at 154)
· requirement to state the registration number of the ship, as assigned by the port of
registry, in the writ
· cannot conjoin an action in personam and an action in rem in a single writ (a hybrid
writ)9
2.2. The claim
the writ must be indorsed with a statement of claim or a concise statement to that
effect: O. 6, r. 2(1)(a)10
Endorsement on writ (O. 6, r. 2)
2. —(1) Before a writ is issued, it must be endorsed —

(a) with a statement of claim or, if the statement of claim is not endorsed on the
writ, with a concise statement of the nature of the claim made or the relief or
remedy required in the action begun thereby;
The Tuyuti [1984] 2 Lloyd’s Rep. 51; [1984] Q.B. 838; [1984] 3
W.L.R. 231:
The plaintiffs are described as “The owners of the cargo lately laden on board
the ship Tuyuti”. The endorsement of the writ was in these terms:
The plaintiffs’ claim is for damages for breach of contract and/or duty in
or about the loading, handling, custody, care and discharge of the
plaintiffs’ cargo and the carriage thereof on board the defendants’ ship
Tuyuti in the year 1982.
9 See The Nagasaki Spirit (No. 2) [1994] 1 S.L.R. 445, 447 (per Selvam J.C.). Such hybrid
writs were expressly disapproved of in a U.K. Practice Direction of 6 March 1979 (see [1979]
W.L.R. 426).
10 For the U.K., see CPR 61.3(3). If not served with the claim form the particulars of claim are
required to be served by the claimant within 75 days after service of the claim form: CPR
61.3(3)(b).
5
There then follows a list of 19 addresses of plaintiffs without any indication as

to their identity or as to what cargo was owned by any of them. The recipient of
that writ is not told whether the cargo has been lost, damaged or delayed. Nor is
he told on what voyage during 1982 some unspecified breach of contract
occurred or what cargo was involved. I do not regard the endorsement of
the writ as an endorsement which complies with RSC, O. 6, r. 2.11 The
relevant part of the rule requires that the writ must be endorsed with a concise
statement of the nature of the claim made. On being served with a writ a
defendant is entitled to know from the writ itself on whose behalf the writ has
been issued and in respect of what claim. There is a practice of long standing in
the Admiralty Court which enables the owners of a ship or cargo in an
Admiralty action in rem to sue by that description, rather than in their name or
names. There are good reasons why this useful practice should be maintained,
but if solicitors are to continue to enjoy that benefit they must take the trouble
to identify in the writ the incident which has given rise to the claim. The writ in
this action could relate to any cargo owned by anyone living or working at any
one of 19 addresses and carried in Tuyuti on any voyage in the year 1982. (per
Sheen J. at 52-53)
2.3. Period of validity
Ord. 70, r. 2(4): 12 months, beginning with the date of issue
Ord. 6, r. 4(2): renewal, in the court’s discretion, for good reason,12 but not usually
when a time bar has already accrued13 (Not unique to admiralty proceedings)
Duration and renewal of writ (O. 6, r. 4)
(2) Subject to paragraph (2A), where a writ has not been served on a defendant,
the Court may by order extend the validity of the writ from time to time for
such period, not exceeding 6 months at any one time, beginning with the day
next following that on which it would otherwise expire, as may be specified in
the order, if an application for extension is made to the Court before that day or
such later day (if any), as the Court may allow.
(2A) Where the Court is satisfied on an application under paragraph (2) that,
despite the making of reasonable efforts, it may not be possible to serve a writ
within 6 months, the Court may, if it thinks fit, extend the validity of the writ
for such period, not exceeding 12 months at any one time, as the Court may
specify.
The Berny [1979] Q.B. 80; [1977] 2 Lloyd’s Rep. 533; [1978] 2
W.L.R. 387:
In my opinion, when the ground for renewal is, broadly, that it has not been
possible to effect service, a plaintiff must, in order to show good and sufficient
cause for renewal, establish one or other of three matters as follows: (1) that
none of the ships proceeded against in respect of the same claim, whether in
one action or more than one action, have been, or will be, present at a place
within the jurisdiction during the currency of the writ; alternatively (2) that, if
any of the ships have been, or will be, present at a place within the jurisdiction
during the currency of the writ, the length or other circumstances of her visit to
11 This is in substantially the same terms as O. 70, r. 6(2) in Singapore.

12 e.g. such as the value of the ship compared with the size of the claim.
13 See Kleinwort Benson v. Barbrak Ltd. (The Myrto)(No. 3) [1987] A.C. 597.
6
or stay at such place were not, or will not be, such as to afford reasonable
opportunity for effecting service on her and arresting her; alternatively (3) that,
if any of the ships have been, or will be, present at a place within the
jurisdiction during the currency of the writ, the value of such ship was not or
will not be, great enough to provide adequate security for the claim, whereas
the value of all or some or one of the other ships proceeded against would be
sufficient, or anyhow more nearly sufficient, to do so. (per Brandon J. at 103)
*The Antares V [2002] 1 S.L.R. 443

► Limitation of 1 year according to H Rules, the parties agreed to extend the time period
which was allowed. Plaintiffs were allowed to get renewal for 12 months. Def applied to get it
set aside. On appeal, question of fact whether court should exercise of discretion to renew or
not. Always a question of achieving justice b/w parties. Applying that to the facts, the P had a
good reason for not serving the writ so should be allowed to renew the writ.
2.4. Amendments of writs
· changes of ownership/name: O. 20, r. 5(3)-(5)
Amendment of writ or pleading with leave (O. 20, r. 5)
5. —(1) Subject to Order 15, Rules 6, 6A, 7 and 8, and this Rule, the Court may
at any stage of the proceedings allow the plaintiff to amend his writ, or any
party to amend his pleading, on such terms as to costs or otherwise as may be
just and in such manner (if any) as it may direct.
(2) Where an application to the Court for leave to make the amendment
mentioned in paragraph (3), (4) or (5) is made after any relevant period of
limitation current at the date of issue of the writ has expired, the Court may
nevertheless grant such leave in the circumstances mentioned in that
paragraph if it thinks it just to do so.
(3) An amendment to correct the name of a party may be allowed under
paragraph (2) notwithstanding that it is alleged that the effect of the
amendment will be to substitute a new party if the Court is satisfied that the
mistake sought to be corrected was a genuine mistake and was not misleading
or such as to cause any reasonable doubt as to the identity of the person
intending to sue or, as the case may be, intended to be sued.
(4) An amendment to alter the capacity in which a party sues (whether as
plaintiff or as defendant by counterclaim) may be allowed under paragraph (2)
if the capacity in which, if the amendment is made, the party will sue is one in
which at the date of issue of the writ or the making of the counterclaim, as the
case may be, he might have sued.
(5) An amendment may be allowed under paragraph (2) notwithstanding that
the effect of the amendment will be to add or substitute a new cause of action if
the new cause of action arises out of the same facts or substantially the same
facts as a cause of action in respect of which relief has already been claimed in
the action by the party applying for leave to make the amendment.
*The Pacific Wisdom [1998] 3 S.L.R. 705 (C.A.)

► Collision case. The Court suggested that the writ will be amended only in special
circumstances. Ct concluded that if they allowed the amendment of the writ, they would be
infringing the statutory time bar.
7
(3) Service of a writ in rem14
Reading
3.1. Generally
Ord. 70, r. 7(1): service on the property against which the property is brought (actual
service)15
· if more than one ship and/or sister ship is named in the writ, then the names of the
other ships should be deleted
3.2. Deemed service
Ord. 70, r. 7(2) + Ord. 10, r. 1(2)
General provisions (O. 10, r. 1)
1. —(1) Subject to the provisions of any written law and these Rules, a writ must
be served personally on each defendant.
(2) Where a defendant’s solicitor endorses on the writ a statement that he
accepts service of the writ on behalf of that defendant, the writ shall be deemed
to have been duly served on that defendant and to have been so served on the
date on which the endorsement was made.
*The Fierbinti [1994] 3 S.L.R. 864 (C.A.):

→ Deemed service does not invoke the AJ of the ship. Only means that now you have a
defendant and there are now actions in rem and in personam.
It seems to us that the distinction between service of the writ on the res and
deemed service of the writ on the defendant is inevitable in an admiralty action
in rem. An action in rem once commenced against the ship is an action against
the ship itself and continues as such even though it may also be an action in
personam against the owner thereof. If the owner does not enter an appearance
and the judgment is obtained, the judgment is enforceable only against the ship
and to the extent of the value of the ship. If, however, the owner enters an
appearance the action will continue as an action in rem against the ship and an
action in personam against the owner, and if judgment is obtained it is
enforceable against the ship and also against the owner to the full extent of the
judgment: see The Gemma [1899] P. 285 at pp. 291-292; The August 8, [1899]
P. 285 at p. 456, and The Kusu Island [1989] 3 M.L.J. 257 at pp. 260-261. It
has been held in The Kusu Island that although an action in rem is one against
the res, the defendant to the action is the owner of the res and not the res itself:
see pp. 261-262.
Such a construction of O 70 r 7(1) and (2), which is based on the express
wordings thereof, is wholly consistent with the established rule that in order to
14 Remember that this (or arrest) is technically the point in admiralty jurisdiction where the
court’s jurisdiction is “invoked” (per the HC(AJ)A, s. 4): see The Fierbinti [1994] 3 S.L.R.
864 (C.A.), 877-878 (per Karthigesu J.A.).
15 There are exceptions where the property is freight or has been sold and the proceeds paid
into court: O. 70, r. 7(1)(a)(b).

8
invoke the in rem jurisdiction against a res the res in question must be within
the jurisdiction. (per LP Thean J.A. at 870)
3.3. Service within the jurisdiction

→ Cannot serve outside of jurisdiction.
The Freccia del Nord [1989] 1 Lloyd’s Rep. 388:
… I must add that the Court cannot have jurisdiction over a ship which does not
come within its jurisdiction. Many a writ in rem has been issued in the hope or
expectation that the ship against which the plaintiff has brought his action will
come within the jurisdiction. Frequently that hope or expectation has been
frustrated or thwarted by a change of orders to the master of the ship.
If it were held that this Court is seized of jurisdiction as soon as a writ in rem
is issued, the Courts of other Contracting States might be required to decline
jurisdiction in favour of this Court by virtue of art. 21, even though this Court
could not exercise its jurisdiction because the ship has not been arrested or
served with the writ. Indeed the ship might never come within the jurisdiction.
(per Sheen J. at 392-393)
· may be (and often is) served at the same time as warrant of arrest
3.4. Service: on any property
O. 70, r. 7(3)-(5) 16 + Form 159
3.5. Service: on a ship
Ord. 70, r. 10(1)
· on the master?
The Prins Bernhard [1964] P. 117; [1963] 2 Lloyd’s Rep. 236; [1963]
3 W.L.R. 1043:
There is no doubt that the mode of service of this writ was not in accordance
with R.S.C., Ord. 9, r. 12, which, as [counsel] pressed upon me, is mandatory. …
I have been referred to the case of The Marie Constance (1877) 3 Asp. M.L.C.
505… It appears that the writ was served on the master on board the ship and
the warrant of arrest was duly nailed on the mast by a proper officer of the
court. Be it noted that the writ was not affixed to the mast.
Sir Robert Phillimore, in his short judgment, said (at 506): “It is necessary
that the rules should be strictly obeyed, and that has not been done in this case.
Under the former practice of this court the warrant of arrest was in its form
16See The Owners of the Ship or Vessel “Mt Rowan” v. The Owners of the Ship or Vessel
“Singapura Timur” [2003] 2 M.L.J. 441 (High Court, Malacca) where a writ was served by a
diver appointed by the sheriff by attaching a laminated waterproof plastic copy thereof on
the starboard gangway and midship railing of the Singapura Timur while she laid on the
seabed. The court held that: “… The maxim qui facit per alium facit per se (he who does an
act through another is deemed in law to do it himself) applies here. When the court-
appointed diver effected service of this writ, it was in practice done at the instance of the
sheriff and so the act of effecting such service is to be attributed to the sheriff who is deemed
in law to do it himself, under O 70 rr 7(3) and 10 of the RHC” (per Low Hop Bing J.).
9
citatory, and therefore the nailing of it to the mast was a sufficient notice to all
the world of the suit. That is no longer the case; the warrant of arrest contains
no citation itself, that part of it is supplied by the writ of summons, which
therefore is directed to be nailed to the mast in addition to the warrant of
arrest. Service on the captain, even on board the ship, is not an alternative
allowed by the rules of practice, nor sufficient notice to all parties who may
have an interest in the ship; as, for example, mortgagors and others, between
whom and the captain there is no privity, either real or implied. I shall not
allow judgment to be entered until I am satisfied that the writ of summons has
been served in the proper manner, and the proper times have elapsed for
appearance and other proceedings subsequent to such service...”
This method of service prescribed by R.S.C., Ord. 9, r. 12, for giving notice to
all interested parties is a rule of the court. It has been firmly established by
many years of usage. It may not be a perfect way of informing all interested
parties that an action in rem is laid against the ship; but no other method has
yet been suggested or devised. This method is well-known throughout the
maritime countries of the world. It is based upon experience for the protection
of all interested parties.
… [T]he courts must be vigilant towards the rights and interests of third
parties who might conceivably be affected by the writ or the consequences of its
service. I must do what I can to safeguard the interests of those who have had
no proper notice of the existence of this writ, and, after seriously considering
[counsel’s] powerful and persuasive argument, I am not disposed to save the
service of this writ. The degree of irregularity in the service of the writ in rem
was not such that I can feel disposed to overlook it. (per Hewson J. at 130-132)
· O. 2, r. 1: court discretion to cure minor irregularities
Non-compliance with Rules (O. 2, r. 1)
1. —(1) Where, in beginning or purporting to begin any proceedings or at any

stage in the course of or in connection with any proceedings, there has, by
reason of anything done or left undone, been a failure to comply with the
requirements of these Rules, whether in respect of time, place, manner, form or
content or in any other respect, the failure shall be treated as an irregularity
and shall not nullify the proceedings, any step taken in the proceedings, or any
document, judgment or order therein.
(2) Subject to paragraph (3), the Court may, on the ground that there has been
such a failure as is mentioned in paragraph (1), and on such terms as to costs or
otherwise as it thinks just, set aside either wholly or in part the proceedings in
which the failure occurred, any step taken in those proceedings or any
document, judgment or order therein or exercise its powers under these Rules
to allow such amendments (if any) to be made and to make such order (if any)
dealing with the proceedings generally as it thinks fit.
(3) The Court shall not wholly set aside any proceedings or the writ or other
originating process by which they were begun on the ground that the
proceedings were required by any of these Rules to be begun by an originating
process other than the one employed.
3.6. Service: on cargo and freight
3.6.1. WHERE THE CARGO IS ON THE SHIP
· O. 70, r. 10(1)
10
3.6.2. WHERE THE CARGO HAS BEEN LANDED OR TRANSSHIPPED
· O. 70, r. 10(2) + O. 70, r. 7(1)(a)
3.7. Service: property already sold by the Sheriff
· O. 70, r. 7(1)(b)
The Montrosa [1917] P. 1:
Where the proceeds are in Court they represent the res, the ship itself, and the
action can be brought against the proceeds: see … The Optima (1905) 10 Asp.
M.L.C. 147. It makes no difference, in my view, that the proceeds were in the
custody of the High Court when the action was entered in the City of London
Court. The essential circumstance is that they should be in Court, to be held
and distributed among all persons legally interested.
It has been held that a county court can arrest a vessel already under arrest in
the High Court: see The Rio Lima (1873) L. R. 4 A. & E. 157; although the usual
practice is for the process in the county court action to be served on the ship if
she is already under arrest in the High Court. I think service on the proceeds
was also good service and in accordance with admiralty practice. Moreover, if
there had been an irregularity in the service in the county court action, that
would have been waived by the unconditional appearance in this Court after the
transfer. (per Sir Samuel Evans at 7)
· but not where the res has been privately sold17
3.8. Service: caveat against arrest?
· O. 70, r. 7(5) + O. 70, r. 1(2)
3.9. Service: after amendments
O. 70, r. 7(6)
3.10. Effect of actual service
· admiralty jurisdiction is “invoked” and the names of the other ships (where more
than one ship is listed) must be deleted18
· O. 10, r. 1(4) + O. 70, r. 2(5): memorandum of service
General provisions (O. 10, r. 1)
(4) Where a writ is duly served on a defendant otherwise than by virtue of

paragraph (3), then, subject to Order 11, Rule 3, unless within 8 days after
service the plaintiff files a memorandum of service in Form 11 containing the
following particulars, that is to say, the day of the week and date on which it
was served, where it was served, the person on whom it was served, and, where
he is not the defendant, the capacity in which he was served, the plaintiff in the
action begun by the writ shall not be entitled to enter final or interlocutory
17 See The Optima (1905) 10 Asp. M.L.C. 147.

18 See the earlier seminar materials on this.
11
judgment against that defendant in default of appearance or in default of

defence, unless the Court otherwise orders.
(4) Arrest
Reading
Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1553-1560; 1564-1565
4.1. Generally
· pre-judgment security
The Volant 1 W. Rob. 383 [166 E.R. 616]:
An arrest offers the greatest security for obtaining substantial justice, in

furnishing a security for prompt and immediate payment. (per Dr Lushington
at 387 [166 E.R. 618])
The Rena K [1979] Q.B. 377; [1978] 1 Lloyd’s Rep. 545; [1978] 3
W.L.R. 431:
My decision [in The Cap Bon [1967] 1 Lloyd’s Rep. 543] was based on two
propositions of law, one positive and one negative, which I considered flowed
from the nature and form of the provisions in the Administration of Justice Act
1956, by which jurisdiction in rem is conferred on the Admiralty Court. The
first and positive proposition is that the purpose of arresting a ship in an action
in rem is to provide the plaintiff with security for the payment of any judgment
which he may obtain in such action, or of any sum which may become payable
to him under a settlement of such action. The second and negative proposition
is that it is not the purpose of arresting a ship in an action in rem to provide the
plaintiff with security for payment of an award which he may obtain in an
arbitration of the same claim as that raised in the action, and the court
therefore has no jurisdiction to arrest a ship, or keep her under arrest, for such
other purpose. (per Brandon J. at 396)
The Cella (1888) 13 P.D. 82:
Now the jurisdiction given to the Admiralty Division by the Act in question can,
as I have said, be exercised by an action in rem, that is to say, upon the
production of a proper affidavit, a warrant of arrest is issued and under it the
marshal may seize the ship, and the Court will adjudicate upon it. Possession is
taken by the marshal in order that the ship may be sold, and that the rights of
the plaintiff may be satisfied out of the ship. These rights must exist before the
ship is seized, for the Court adjudicates upon the ship on the ground that it had
jurisdiction to seize it and realise it for the plaintiff, on account of something
which happened before the seizure, which in this case was repairing her. Even
without the cases cited for the plaintiff, it would seem to me to be clear that
whatever may be the judgment of the Court it must take effect from the time of
the writ. The judge is to enforce the writ, and to determine the rights of the
parties at the time the writ is served. That is so, as it seems to me, in every
action. But in every action we may have bankruptcy and I know not what
intervening, so that when judgment is given it cannot be effectually carried out.
12
But if the money be in court, or the Court has possession of the res, it can give
effect to its judgment as if it had been delivered the moment after it took
possession of the res. It is contrary to the principle of these cases and to justice
that the rights of the parties should depend not upon any act of theirs but upon
the amount of business which the Court has to do. Therefore the judgment in
regard to a thing or to money which is in the hands of the Court, must be taken
to have been delivered the moment the thing or the money came into the
possession of the Court. (per Esher M.R. at 86-87)
From the moment of the arrest the ship is held by the Court to abide the result
of the action, and the rights of parties must be determined by the state of things
at the time of the institution of the action, and cannot be altered by anything
which takes place subsequently. (per Lopes L.J. at 88)
4.2. Procedure: obtaining a warrant of arrest
O. 70, r. 4(1) + Form 156
application to obtain an arrest warrant is permitted even when the ship is not within
territorial waters
Ex parte the Government of the United States of America 1950 (1)

S.A. 880 (C):19
Although it is only when both the writ of summons and the warrant of arrest
have been properly serviced in terms of the Admiralty procedure that this
action in rem can be heard by this Court, I cannot see any logical reason why a
warrant of arrest in terms of the Admiralty procedure, which warrant stands
valid apparently for one year, should only be issued after the ship has arrived…
[A warrant of arrest] can only be served when the ship comes into the Court’s
jurisdiction, and in the absence of any sound reason or authority to the
contrary, I am prepared to hold that the issue of the warrant of arrest is on the
same footing as the issue of the writ of summons, and, therefore, this Court can
grant the order sought before the vessel arrives within its jurisdiction. (per
Searle J. at 885-886)
4.2.1. WHERE A CAVEAT AGAINST ARREST HAS BEEN FILED
O. 70, r. 4(2)(b)
4.2.2. PARTICULARS
O. 70, r. 4(2)(a) + O. 70, r. 4(3)(6)(7) + Form 157

Particulars furnished such as satisfaction of the conditions under s4(4) if claim under that...
The Hoe Lee [1969-1971] S.L.R. 286; [1970] 1 M.L.J. 45:
On 25 July 1969 at the instance of the plaintiffs the registrar issued a warrant
for the arrest of the vessel Hoe Lee. In support of the application for a warrant
of arrest, an affidavit by a partner of the firm of solicitors acting as solicitors for
the plaintiffs was filed stating the names and descriptions of the parties at
whose instance the warrant was to be issued and that their claims had not been
19This is a decision of the Cape Provincial Division of what was then the Supreme Court of
South Africa. See, generally, John Hare, Shipping Law and Admiralty Jurisdiction in South
Africa (1999)(RBR).
13
satisfied. The affidavit did not state the nature of their claims. The writ of
summons and the warrant were duly served on the same day, i.e. 25 July 1969
and thereupon the vessel was under arrest.
In the present case it is an all-important and essential requirement of the
issue of the warrant of arrest that the plaintiffs or their agent has filed an
affidavit which states, inter alia, the nature of the plaintiffs’ claim in the action.
There has thus been a fundamental failure to comply with the requirements of
[O. 70, r. 4(6)] relating to the issue of the warrant of arrest and this
fundamental failure makes the warrant of arrest much more than an
irregularity and makes it a nullity.
Accordingly, I must make an order setting aside the warrant of arrest … (per
Wee Chong Jin C.J. at 288; 291)
· full and frank disclosure required?

Singapore law is that you must give full and frank disclosure. The Rainbow Spring.
4.2.3. ISSUE OF A WARRANT
O. 70, r. 4(5)
4.2.4. VALIDITY PERIOD OF THE WARRANT
O. 70, r. 9(1)
→ 12 months
4.3. Caveat against arrest
O. 70, r. 1(2) + O.70, r. 5 + Form 158
4.3.1. DURATION
O. 70, r. 14 + Form 163
4.3.2. CONSEQUENCES
· O. 70, r. 5(2): caveat does not prevent the arrest of the ship or other property
· O. 70, r. 4(2)(b): requirement for a plaintiff applying for the issue of a warrant of
arrest to procure a search of the caveat book
· O. 70, r. 7(5): if such a caveat is found to exist, the writ must be served on the person
at whose instance the caveat has been entered
· O. 70, r. 6: if the arrest nevertheless proceeds, notwithstanding the caveat, the

plaintiff may have to pay damages to the caveator unless the court is satisfied that he
had a good and sufficient reason for arresting
The Crimdon [1900] P. 171:
The question is whether the plaintiffs are liable, in the circumstances, to be

condemned in costs and damages … for proceeding to arrest the Crimdon after
a caveat warrant had been filed by the solicitors for the defendants.
Now, the “good and sufficient reason” … which the plaintiffs have to show to
my satisfaction, is stated by them to be that they were not bound to accept a
solicitor’s undertaking, and were entitled to arrest the ship. I think that that is
an erroneous position to take up, having regard to the rules and practice of this
14
Court. It seems to me that the position arrived at by these rules is analogous to

that of bail being tendered. In the case of bail being tendered names have to be
given, and the other party has twenty-four hours to consider whether he will
object to the bail or not, and if he objects to the bail he can do so; but I think he
objects more or less at his peril, for in the case of The Corner (1863) Br. & L.
161, after objection had been taken and found to be unfounded, the party
objecting was held liable in damages. It seems to me that a similar class of
considerations comes in in this case. There is an undertaking, and the object of
it is to prevent a ship being arrested by providing other adequate security.
If the undertaking is given, it appears to me that the opposite party is to have
a reasonable opportunity of seeing whether he ought to accept or not; and if he
does not accept and shows to the satisfaction of the Court good and sufficient
reason for objecting, then he will not be condemned in the costs and damages.
I think in this case if the plaintiffs had said, “We have not time to act”, or “We
are not satisfied on some grounds that there is adequate security”, the point
would have been a perfectly good one to take; but neither of those points were
raised. (per Gorell Barnes J. at 175-177)
4.4. Service and execution of the warrant of arrest
4.4.1. SERVICE
· as for service of the writ (O. 70, r. 9(6)), except for freight (O. 70, r. 9(5))
· usually effected by solicitors or their clerks20
4.4.2. EFFECT OF SERVICE
· the ship is detained
· O. 70, r. 10(2): where freight or cargo has been landed or transhipped
· O. 70, r. 9(7): warrant to be filed with the Sheriff after service
4.4.3. EXECUTION OF THE WARRANT
· O. 70, r. 9(2): only by the Sheriff or his officer21
· O. 70, r. 9(3): sheriff’s fees and expenses
4.5. Consequences of arrest
· the property arrested is security for the claim and is forthwith in the custody of the
Sheriff
The Arantzazu Mendi [1939] A.C. 256; (1939) 63 Ll. L.R. 89:
The ship arrested does not by the mere fact of arrest pass from the possession
of its then possessors to a new possession of the Marshal. His right is not
possession but custody. Any interference with his custody will be properly
punished as a contempt of the Court which ordered arrest, but, subject to his
20See s. 65A of the Supreme Court of Judicature Act (1999 rev. ed.), cap. 322.
21For a description of the process in the U.K., see The Johnny Two [1992] 2 Lloyd’s Rep.
257, 260 (per Sheen J.).
15
complete control of the custody, all the possessory rights which previously
existed continue to exist, including all the remedies which are based on
possession. There may be some doubt even whether the sheriff's officer, who
has levied under a fieri facias, is in fact in possession. But his case is quite
different, for he acts under a direction of the Court to make of the goods of the
defendant so much money: he has the right to sell and therefore to hand over
possession to the purchaser. His case therefore need not be discussed here.
But a bare arrest appears to me clearly to give custody and not possession. (per
Lord Atkin at 266)
· interference with custody of the property under arrest constitutes a contempt of

court
4.6. Wrongful arrest
4.6.1. GENERALLY – TORT

→ Tort of abuse of process, tort of wrongful damage.
The Walter D. Wallet [1893] P. 202:
No precedent, as far as I know, can be found in the books of an action at

common law for the malicious arrest of a ship by means of Admiralty process.
But it appears to me that the onus lies on those who dispute the right to bring
such an action of producing authority against it. As Lord Campbell said in
Churchill v. Siggers (1854) 3 E. & B. 929, 937: “To put into force the process of
law maliciously and without any reasonable or probable cause is wrongful; and,
if thereby another is prejudiced in property or person, there is that conjunction
of injury and loss which is the foundation of an action on the case.”
But it was further contended before me that, assuming the action at common
law to lie, special or actual damage must be alleged and proved. No doubt in an
action on the case for commencing or prosecuting an action, civil or criminal,
maliciously and without reasonable or probable cause, damage must be shown:
Cotterell v. Jones (21 L.J. (C.P.) (N.S.) 2). But when a malicious action
terminates in an arrest of a person, that wrongful detention must of necessity
cause some damage to the person who loses for the time his complete liberty.
In the present case, I think that actual damage there was none. I doubt if, as
was urged before me, the ship could have been arrested, when she was, by any
proper process, though perhaps an injunction to prevent leaving port until the
stipulated policies were given, and the stipulated sums paid, could have been
obtained. But she was not detained in port by the arrest, nor was her loading
interfered with. Still, the action of the defendants was, I think, clearly, in
common law phrase, without reasonable or probable cause; or, in equivalent
Admiralty language, the result of crassa negligentia, and in a sufficient sense
mala fides, and the plaintiffs’ ship was in fact seized. Therefore, I think the
plaintiffs must be supposed to have suffered some damage … (per Sir Francis
Jeune at 205-208)
4.6.2. DAMAGES: MALICIOUS ARREST/GROSS NEGLIGENCE

→ would have to show apart from an action in rem which has been disposed of, mala
fides/crassa negligentia and that the action caused you loss.
Xenos v. Aldersley (The Evangelismos) (1858) 12 Moo P.C. 352 [14
E.R. 945]:
Their Lordships think there is no reason for distinguishing this case, or giving
damages. Undoubtedly there may be cases in which there, is either mala fides,
or that crassa negligentia, which implies malice, which would justify a Court of
16
Admiralty giving damages, as in an action brought at Common law damages

may be obtained. In the Court of Admiralty the proceedings are, however, more
convenient, because in the action in which the main question is disposed of,
damages may be awarded.
The real question in this case, following the principles laid down with regard
to actions of this description, comes to this: is there or is there not, reason
to say, that the action was so unwarrantably brought, or brought
with so little colour, or so little foundation, that it rather implies
malice on the part of the Plaintiff, or that gross negligence which is
equivalent to it? Their Lordships are of opinion, that there is nothing
whatever to establish the Appellant’s proposition. (per The Right Hon. T.
Pemberton Leigh at 359-360; 14 E.R. 948)22
The Maule [1995] 2 H.K.C. 769 (C.A.):
As I see it, it comes to this. If a plaintiff wrongfully arrested a ship which he

knew he could not legitimately arrest, then he would be acting in bad faith.
And, short of that, if he wrongfully arrested a ship without applying his mind to
whether that was a legitimate course: proceeding in that cavalier fashion
because he was bent on harming the shipowner or putting pressure on him to
accede to a demand, then his conduct could … be described as malicious
negligence. And in either case, damages for wrongful arrest would be a proper
remedy to grant the shipowner against him. (per Bokhary J.A. at 773)
Centro Latino Americano de Commercio Exterior S.A. v. Owners

of the Kommunar (The Kommunar) (No. 3) [1997] 1 Lloyd’s Rep.
22:
Two types of cases are thus envisaged. Firstly, there are cases of mala fides,
which must be taken to mean those cases where on the primary evidence the
arresting party has no honest belief in his entitlement to arrest the vessel.
Secondly, there are those cases in which objectively there is so little basis for
the arrest that it may be inferred that the arresting party did not believe in his
entitlement to arrest the vessel or acted without any serious regard to whether
there were adequate grounds for the arrest of the vessel. It is, as I understand
the judgment, in the latter sense that such phrases as “crassa negligentia” and
“gross negligence” are used and are described as implying malice or being
equivalent to it. (per Colman J. at 30)
4.6.3. SINGAPORE AUTHORITIES
The Euroexpress [1988] S.L.R. 67 (C.A.); [1988] 3 M.L.J. 367:

→ Approved the reasoning in The Evengelismos.
In argument before us, as before the learned judge, a suggestion was advanced
by counsel that the appellants might have acted in “bad faith” in arresting the
vessel. The basis of the suggestion was that the two bills of lading, on which
the appellants’ claim was based, were allegedly fraudulent as they were either
issued or negotiated long before the cargo was loaded on board the vessel. No
suggestion was, however, made that the appellants, as cargo-owners, were
privy to the alleged fraud and on this premise, we are of the view that the
22Cited with approval by Sir Robert Phillimore in The Margaret Jane (1869) L.R. 2 A. & E.
345, 346. In The Strathnaverd (1875) 1 App. Cas. 58 (P.C.) it was held that damages were not
recoverable in respect of a mere error of judgment in arresting the vessel where there was no
mala fides.
17
suggestion, standing by itself – even if true – can in no way imply any “bad
faith” on the part of the appellants in arresting the vessel. It may well be that
ultimately the appellants’ claim may fail but that is not the test of whether they
had acted in “bad faith”. Claimants are entitled to arrest a vessel or other such
property as is permitted to obtain security for the claim. It cannot be argued
that the arrest is made in “bad faith” merely because there is good defence to
the claim. In our opinion, for an arrest to be in “bad faith”, there must be some
element in the arrester’s conduct, for example, where the arrest is in relation
to a malicious claim, or is of itself malicious, apart from the proper
enforcement of his claim. In our judgment, no such suggestion had or could
have been advanced. (per Wee Chong Jin C.J. at 74-75)
*The Kiku Pacific [1999] 2 S.L.R. 595 (C.A.):

► Arrest after letter of undertaking. S/o argued that wrongful arrest, that even though the
test was for malice, that malice is always inferred when there is no reasonable or probable
cause. Court did not accept that.
We were … of the opinion that the term “reasonable or probable cause”23 is not
appropriate in the context of the wrongful arrest of a vessel, as it would cause
confusion, and more importantly dilute the threshold required for an action in
wrongful arrest to succeed.
In light of [this] …, we were of the view that the test to be proved by the
owners was not whether there was reasonable or probably cause in bringing the
action or in rejecting the security offered in March 1996. Instead the test is that
laid down in … The Evangelismos of mala fides or gross negligence implying
malice. (per Karthigesu J.A. at 605)
*The Trade Resolve [1999] 4 S.L.R. 424

► Arrest attempted when ship was outside of Singapore’s territorial waters. Ct found that it
amounted to wrongful arrest. Chan Seng Onn JC: Despite being fully aware of conditions of
sheriff and that the ship was outside jurisdiction, the solicitors had acted outside of their
authority knowingly and so malicious.
*The AA V [2001] 1 S.L.R. 207

► Judith Prakash J: Action for wrongful arrest succeeded.
*The Rainbow Spring [2003] 3 S.L.R. 362 (CA)

► Weak case. Would not amount to malice or crassa negligentia.
→ Did go on appeal but not on the wrongful arrest point. So look at 2002 3 SLR 117. Appeal
was on full and frank disclosure. O 70 r ?.
Further reading
· David Chong, “Wrongful Arrest in Actions in Rem” [1990] 1 Malayan L.J. lxxiii-
lxxix24
Shane Nossal, “Damages for the wrongful arrest of a vessel” [1996] Lloyd’s Maritime
& Commercial L.Q. 368-378
23 See The Evmar [1989] S.L.R. 474, 484 (per Chao Hick Tin J.C.).
24 This article is downloadable from LAWNET.
18
4.7. Entry of appearance
4.7.1. GENERALLY
The Gemma [1899] P. 286:
Now, apart from authority, it appears to me that when persons, whose ship has
been arrested by the marshal of the Admiralty Court, think fit to appear and
fight out their liability before the Court, the form of the proceedings in the
Admiralty Court show – and it is not disputed that the forms I have referred to
are those which have been in use, according to the practice of the Court, from
olden times – that the persons so appearing, as the defendants have done in
the present case, become parties to the action, and thereby become personally
liable to pay whatever in the result may be decreed against them; and the
action, though originally commenced in rem, becomes a personal action
against the defendants upon appearance. For what purpose does a party
appear to an action in rem? There are, as it seems to me, three reasons for the
appearance: first, to release the ship, so that it may go on trading for the
owner; secondly, to contest the plaintiffs’ allegations that the ship had been in
default; and, thirdly, in order to prevent its being sold. (per A.L. Smith L.J. at
291-292)
4.7.2. PROCEDURE
· O. 70, r. 2(3) + O. 12
· O. 12, r. 1(3): memorandum of appearance
Mode of entering appearance (O. 12, r. 1)
(3) An appearance is entered by properly completing a memorandum of

appearance, as defined by Rule 2, and a copy thereof, and handing them in at
the Registry.
· O. 12, r. 4(a): time limit of eight days after service of the writ
Time limited for appearing (O. 12, r. 4)
4. References in these Rules to the time limited for appearing are references –
(a) in the case of a writ served within the jurisdiction, to 8 days after service of
the writ or, where that time has been extended by or by virtue of these Rules, to
that time as so extended; and
(b) in the case of a writ served out of the jurisdiction, to 21 days after service of
the writ as provided for in Order 11, Rule 2, or Order 10, Rule 2 or to such
extended time as the Court may otherwise allow.
· O. 12, r. 5: late appearance?
Late appearance (O. 12, r. 5)
5. —(1) A defendant may not enter an appearance in an action after judgment has
been entered therein except with the leave of the Court.
(2) Except as provided by paragraph (1), nothing in these Rules or any writ or
order thereunder shall be construed as precluding a defendant from entering an
appearance in an action after the time limited for appearing, but if a defendant
19
enters an appearance after that time, he shall not, unless the Court otherwise
orders, be entitled to serve a defence or do any other thing later than if he had
appeared within that time.
4.7.3. EFFECT OF APPEARANCE BY THE SHIPOWNER

→ become liable in personam if the claim is not satisfied.
· submission to the jurisdiction of the court and, if judgment is obtained, this can be
executed against him personally if it is not fully satisfied from the proceeds of sale or
from the security furnished
4.7.4. CHALLENGING A WRIT OR THE JURISDICTION OF THE COURT

→ if you make application to stay proceedings or to set aside the proceedings, must make
appearance.
· O. 12, r. 7(1)-(3)
Dispute as to jurisdiction (O. 12, r. 7)
7. —(1) A defendant who wishes to dispute the jurisdiction of the Court in the
proceedings by reason of any such irregularity as is mentioned in Rule 6 or on
any other ground shall enter an appearance and within the time limited for
serving a defence apply to the Court for —
(a) an order setting aside the writ or service of the writ on him;
(b) an order declaring that the writ has not been duly served on him;
(c) the discharge of any order giving leave to serve the writ on him out of the
jurisdiction;
(d) the discharge of any order extending the validity of the writ for the purpose
of service;
(e) the protection or release of any property of the defendant seized or
threatened with seizure in the proceedings;
(f) the discharge of any order made to prevent any dealing with any property of
the defendant;
(g) a declaration that in the circumstances of the case the Court has no
jurisdiction over the defendant in respect of the subject-matter of the claim or
the relief or remedy sought in the action; or
(h) such other relief as may be appropriate.
(2) An application under paragraph (1) must be made by summons which must
state the grounds of the application.
(3) An application under paragraph (1) must be supported by an affidavit
verifying the facts on which the application is based and a copy of the affidavit
must be served with the summons.
(5) Provision of security and release from arrest
Reading
5.1. Introduction
· payment into court
· bail
20
· letters of undertaking (from P & I Clubs) – most commonly used, but many
disadvantages; for example, not recognized in all jurisdictions.
· bank guarantees
Esso Singapore Pte. Ltd. v. Arcadia Spirit [1988] S.L.R. 244;

[1988] 3 M.L.J. 262:
There is admittedly a wrinkle, a very important wrinkle, in this case in that here
we are dealing with a proposed letter of guarantee to be furnished by a Club
which has no presence or assets here, and which resides in a non-
Commonwealth and non-common law jurisdiction. Therefore, theoretically,
there could be an enforcement problem. However, it seems to me that to allow
that possibility to affect my mind would be to adopt a wholly negative approach.
I prefer to proceed upon the assumption that the Japan Club – whose
guarantees (as the evidence shows) are acceptable to a number of governments,
including our own – that such a club which would stand to lose its international
reputation were it to default on a guarantee – would fulfil its obligations with
honour. Accordingly, I am inclined to order the release of the vessel in
consideration of the provision of a letter of guarantee of the Japan Club in
terms to be agreed. (per Grimberg J.C. at 245)
· P & I Club letter of undertaking has the advantage of not requiring the shipowner to
appear in the action and make himself personally liable25
· the court can intervene where the plaintiff demands terms from the defendant
which are oppressive26 or merely to scrutinise the parties’ security arrangements
*The Arktis Fighter [2001] 3 S.L.R. 394
· the amount of security should cover the plaintiff’s “reasonably best arguable case”
together with interest and costs27
5.2. Payment into court

→ Your security is tied up in court. Will have to follow court procedures even if you want to
challenge… etc.
· O. 70, r. 24
5.3. Bail
5.3.1. GENERALLY
→ Disadvantage is that you must submit to jurisdiction of the court and thus be potentially
liable in personam.
→ If bail given by a foreign P & I club without any assets in the jurisdiction, then it will not
be accepted.
→ Cannot be more than the sum claimed?
“Bail is an Admiralty process by which a res is either protected against arrest or

released from arrest by the substitution of a covenant to discharge the
obligation of a defendant to pay a sum of money for the corpus of the res. Bail,
25 See The Prinsengracht [1993] 1 Lloyd’s Rep. 41, 51 (per Sheen J.).
26 The Benja Bhum [1994] 1 S.L.R. 88 (C.A.), 91 (per L.P. Thean J.A.).
27 See The Moschanthy [1971] 1 Lloyd’s Rep. 37, 44 (per Brandon J.).
21
although not compulsory, is resorted to in practice for it has the double

advantage of permitting the res owner to continue to enjoy the benefit and use
of his property while at the same time the plaintiff continues to enjoy the
benefit of a pre-judgment security, albeit in a different form.”28
Example of a letter confirming bail:
Prinsengracht
With regard to the threatened arrest of the aforementioned vessel, we herewith

notify you that a Bail Bond has been provided by the London Steamship Owners
Mutual Insurance Association Limited whose registered address is at 52
Leadenhall Street, London EC3A 2BJ. This Bail Bond is provided on behalf of
the defendants in the action commenced by yourselves under 1991 Folio No.
826. The Bail Bond was given before Ms Clare Wise of Ince & Co., Knollys
House, 11 Bywood Street, London EC3 a solicitor exercising the powers of a
Commissioner for Oaths under section 81 of the Solicitors Act 1974.29
5.3.2. PROCEDURE
· O. 70, r. 15 + Form 164
· given after the defendant shipowner has entered appearance and results in
submission to in personam jurisdiction
The Prinsengracht [1993] 1 Lloyd’s Rep. 41:
Contractual security may be given without submitting, or agreeing to submit, to

the jurisdiction of this Court …, but bail cannot be given without submitting to
the jurisdiction … Under the old procedure relating to appearance bail could
only be given after appearance (see Williams and Bruce 3rd Edition p. 291) but
a defendant who appeared under protest could put in bail (see The City of
Mecca (1879) 5 P.D. 8). Under the current procedure a person who desires to
prevent the arrest of his property must acknowledge the issue or service of the
writ, as the defendants have done. There are no grounds for suggesting that
there is any irregularity in the writ. Its issue has been voluntarily acknowledged.
Before the arrest, about which complaint is made, the defendants had
submitted to the jurisdiction.
It would be absurd, and it would bring the law into disrepute, if a defendant
could procure a bail bond in which there is a solemn undertaking to satisfy a
judgment of the Court and then say to the plaintiff “Of course you cannot obtain
a judgment against me because you cannot arrest my ship and I have not
submitted to the jurisdiction of the Court”. (per Sheen J. at 45-46)
· action continues in rem and in personam
The Christiansborg (1885) P.D. 141 (C.A.):
What is the effect of giving bail? It seems to me that bail is the equivalent of the
res, and that whilst the bail has been given for the thing, it is, if not impossible,
highly improper that another action should be allowed to go on against the res
in any other place. I cannot but observe that it appears to me that where the
28 D.R. Thomas, Maritime Liens (1980), 287.

29 See The Prinsengracht [1993] 1 Lloyd’s Rep. 41, 44.
22
matter in controversy is a ship, the business of which carries it from jurisdiction

to jurisdiction, very different considerations may apply to the existence of suits
in two jurisdictions to those which apply to ordinary actions in personam. I
think, therefore, that when bail has been given, the plaintiff in the foreign
action, the first action, has obtained that which is equivalent to the arrest of the
res. The same conclusion, it appears to me, may be arrived at in another way.
The result of the giving of bail is the release of the ship. Now, what is the
meaning of releasing a ship under the circumstances? It appears to me that the
meaning of it is, that she is released from all rights and claims against her in
respect of the collision, which is the cause for which her owners have been
compelled to give the bail. Therefore, without saying it is impossible that a
second action should be allowed where such a release has been obtained, I think
that the existence of such a release is the most cogent circumstance against
allowing the prosecution of a second action. (per Fry L.J. at 155-156)
· bail put up by a foreign-based P & I Club, with no assets in the jurisdiction, is
unacceptable
The Piya Bhum [1994] 1 S.L.R. 564:
The singular advantage of a bail bond over a letter of undertaking or guarantee

is that the plaintiffs who have obtained a judgment or settlement which has
been filed in court may proceed to levy execution and need not bring a separate
action against the sureties. This is made clear abundantly by the wording of the
bail bond: “Execution may issue against us”. Thus the judgment against the
owners of the ship is also binding against the bailors even though they are not
parties to the action. If this essential character is removed from the bail bond it
utterly fails its purpose.
A judgment of this court, however, has no extra territorial force in that it
cannot be enforced in a foreign country by direct execution. It, therefore,
follows that a bail bond by a person without assets within the jurisdiction is
worthless from the plaintiffs’ point of view. (per Selvam J.C. at 565-566)
· insolvency of the surety?
Westminster Bank Ltd. v. West of England S.S. Owners Protection

& Indemnity Association Ltd. (1933) 46 Ll. L. Rep. 101:
It is sufficient for me to say that there is certainly high authority for the view
that in proper cases, where there has been a mistake as to the amount for which
bail has been asked, or in cases where there are questions of the solvency of the
security, the bail question may be reopened and there may be a requirement of
further bail and a re-arrest or an arrest if such further bail is not furnished. It is
further to be observed that, as far as I know, there is no authority, where the
security given is not bail but on the contrary consists of a personal undertaking
such as a guarantee, that an arrest cannot follow upon such guarantee where
proper reasons for it are shown. (per Roche J. at 105)
· bail even if given for the full amount of the claim is limited by the value of the
property against which the action is brought
The Duchesse de Brabant (1857) Swab 264 [166 E.R. 1129]:
The action was commenced, and bail seems to have been given, perhaps
without much consideration, for the whole amount of the action, and without,
perhaps, taking pains to enquire what was the value of the ship and freight
23
proceeded against, or what was the amount of the damage that had actually
been done.
I decide this case on the common ground that the bail ought, in justice and
equity, and according to the practice of this Court, to be considered as bail, not
for the amount of damage done, but for the value of the ship and freight
proceeded against … (per Dr Lushington at 265-266; 166 E.R. 1129-1130)
5.4. P & I Club Letter(s) of Undertaking

→ Don’t have to rely on the bank. All the major P & I club have correspondences in the
major ports – convenience. Don’t have to put in appearance. No need to follow court
procedures.
→ China, Taiwan, Korea, Malaysia, Spain, Sweden do not accept P & I letters of undertaking.
e.g., Gard P & I Club:
Rule 88 Payments and undertakings to third parties
1. The Association shall be under no obligation to provide any guarantee,

certificate, bail or other security or undertaking (“security”) for or on behalf
of a Member, or to pay the costs of such provisions.
2. The Association may at its discretion provide security or pay the cost of such
provision in relation to liabilities within the scope of a Member’s cover, and
may recover any costs incurred thereby from the Member.
Galaxy Energy International Ltd. v. Assuranceforeningen Skuld

(The Oakwell) [1999] 1 Lloyd’s Rep. 249; [1999] C.L.C. 216:
The advantages for all parties of the time honoured practice of club
undertakings are obvious; included are speedy security in a negotiated amount,
no need for actual payment of money or provision of a bank guarantee, a
negotiated choice of jurisdiction, avoidance of the delay, cost and inconvenience
which an arrest inevitably causes, and continuing security for the claimant
without risk. One of the primary purposes is to avoid the machinery of the
Court being invoked until the time comes (which in a number of cases it never
does) that it is necessary for the cargo-claimants to issue proceedings because
the claim has not been settled. Further, it is inherent in the claimant's
agreement not to invoke the process of the Court that the security should place
the claimants in no less favourable a position than if they had begun their action
in rem and arrested the ship. Objectively, this was part of the commercial
purpose. (per Timothy Walker J. at 253)
C. Itoh & Co. Ltd. v. Companhia de Navegaçao Lloyd Brasileiro &

Steamship Mutual Underwriting Association (Bermuda) Ltd. (The
Rio Assu) (No. 2) [1999] 1 Lloyd’s Rep. 115 (C.A.):30
In consideration of the owners of and other persons interested in the cargo

referred to above (herein together referred to as the “Cargo Owners”)
consenting to the release from arrest of (a) the MV “RIO APA” (presently under
arrest in Durban) (b) the MV “RIO PURUS” (presently under arrest in
Singapore) and (c) the MV “RIO COARI” (presently under arrest in Hong Kong)
and/or refraining from taking action resulting in the arrest or re-arrest of any
ship, property or assets in the same ownership, associated ownership or
management for the purpose of founding jurisdiction and/or obtaining security
30 Noted Menzies [1999] International J. of Shipping Law 246-248.

24
in respect of the claims of the cargo owners concerning the cargo mentioned
above and of the cargo owners refraining from commencing and/or prosecuting
legal or arbitration proceedings in respect of the above claims (otherwise than
before the Court referred to below) against COMPANHIA DE NAVEGACAO
LLOYDS BRASILEIRO (hereinafter referred to as “Lloyd Brasileiro”), the
demise chartered owners of the MV “RIO ASSU” we hereby undertake to pay to
you on behalf of the cargo owners on demand such sums as may be adjudged by
the English High Court of Justice or on final appeal therefrom or as may be
agreed between the parties hereto to be recoverable from Lloyd Brasileiro in
respect of the said claims, interest and costs of the cargo owners provided that
the total of our liability shall not exceed the sum of two million four hundred
thousand U.S. dollars (U.S.$2,400,000) plus interest and costs.
Provided that the cargo owners shall be free to take action resulting in the
arrest or re-arrest of any ship, property or other asset in the same ownership,
associated ownership or management in respect of any claims of the cargo
owners concerning the cargoes mentioned above in the event that the “RIO
ASSU” fails to discharge its final cargo in Nigata on or before 31st December
1992.
And for the consideration aforesaid:
(1) We hereby warrant that the MV “RIO ASSU” was not demise chartered at
any material time other than to Lloyd Brasileiro.
(2) We further undertake that we will, within 14 days of the receipt from you of
a request so to do, instruct Solicitors to accept on behalf of Lloyd Brasileiro
service at your option of in personam or in rem proceedings brought by the
cargo owners in the English High Court of Justice and to file acknowledgement
of service thereof.
(3) We confirm that Lloyd Brasileiro agree that the above mentioned claims
shall be subject to the exclusive jurisdiction of the English High Court of
Justice.
(4) We confirm that Lloyd Brasileiro have undertaken forthwith to instruct the
“RIO ASSU” to proceed without delay with the contractual voyage to the
remaining discharge ports and there to discharge its remaining cargo in
accordance with the relevant contracts of carriage.
(5) We warrant that we have received irrevocable authority from Lloyd
Brasileiro to instruct Solicitors as aforesaid and to give this letter of
undertaking in these terms.
This undertaking shall also be governed by and construed in accordance with
English Law and we agree to submit to the exclusive jurisdiction of the English
High Court of Justice for the purpose of any process for the enforcement
thereof.31
*The Juntha Rajpruek [2003] 2 Lloyd’s Rep. 107 (C.A.)
Further reading
· Steven J. Hazelwood, P & I Clubs: Law and Practice 3rd ed. (2000), Chapter 11
(“Club Letters of Security”)
K.X. Li, “Acceptability of P & I club letters as security” [2000] International J. of

Shipping Law 76-86
31For other examples of such undertakings, see The Vasso [1984] 1 Lloyd’s Rep. 235, 238;
Galaxy Energy International Ltd. v. Assuranceforeningen Skuld (The Oakwell) [1999] 1
Lloyd’s Rep. 249, 252.
25
Simon Poland & Tony Rooth, Gard Handbook on P & I Insurance 4th ed. (1996)
602-605
5.5. Bank guarantees

→ Disadvantage of having to pay high rates of bank charges.
Sea Melody Enterprises S.A. v. Bulktrans (Europe) Corporation
(The Merak S) [2002] 2 Lloyd’s Rep. 287 (S.C.A. of South Africa):
Counsel were agreed that arrested vessels were almost invariably released in
South African maritime practice in 1983 on the furnishing of P & I Club letters
or bank guarantees. Bail bonds and undertakings to give bail bonds were never
encountered in practice although provided for in the rules in operation until the
end of November, 1986. Similarly, cash deposits and the giving of guarantees to
the Court were also seldom, if ever, encountered. From a practical point of view,
guarantees of the kind in question constituted security as effectual as cash
deposits and bail bonds, and there was no compelling reason which could have
induced Parliament to restrict the ordinary meaning of the word security so as
to exclude them. Section 3(8) provides, for example, that “property shall not be
arrested and security therefor shall not be given more than once in respect of
the same maritime claim by the same claimant”. Bearing in mind the prevailing
practice at the time of the passing of the 1983 Act it can hardly be suggested
that the intention was to authorize the arrest or re-arrest of a property after a
club letter of undertaking or a guarantee had been provided. Nor can it be
suggested that the lawgiver would have intended in 1983 to take away the power
of the Court to reduce the amount of a guarantee provided instead of bail,
especially where with us, as in England, the giving of contractual security was
“the almost universal practice”. (per Farlam J.A. at 291)
(6) Caveat against release
Reading

→ Filed by a prospective plaintiff. To prevent the release of the ship from arrest. As the
caveator, you will be served with anything with regards to the ship. Valid for 6 months.
6.1. Procedure
· O. 70, r. 13(1) + Form 162
· must be lodged while the warrant of arrest is still in force32
*Elinoil-Hellenic Petroleum Co. S.A. v. Wee Ramayah [1999] 4

S.L.R. 513:
It is … clear that in law the mere filing of a caveat is not adequate to secure a
maritime claim which is not a maritime lien, eg a bunker claim. The caveat is a
substitute for a second arrest but not for a writ in rem. This is where WRP have
gone wrong. The object of instituting an action in rem was explained by
Brightman LJ in Re Aro Co Ltd [1980] Ch 196 at 207-208; [1980] 1 All ER 1067
at 1074 in these terms:
32 See Shanti Kant Jianghan v. The Indera Pertama (No. 2) [1989] 3 M.L.J. 57.
26
The usual object of suing in rem is to obtain security. The plaintiff

becomes entitled upon the institution of his suit to the arrest and
detention of the subject matter in the custody of an officer of the court
pending adjudication, and on adjudication in his favour to a sale and
satisfaction of his judgment out of the net proceeds thereof, subject to
other claims ranking in priority to or pari passu with his own. So stated,
the rights of a plaintiff suing in rem have points of similarity with the
rights of a legal or equitable mortgagee or chargee; such persons are also
entitled in appropriate circumstances to have the subject matter of the
charge preserved for their benefit, and if the account is in their favour to
have it sold in order to satisfy the debt. The similarity is carried a stage
further by the decision in The Monica S [1968] P 741, where it was held
that the burden of the statutory right of action in rem in a case under s
3(4) of the Administration of Justice Act 1956 ran with the ship so as to
enable the plaintiff to serve the writ on the ship notwithstanding a
transfer of ownership since the writ was issued. It must follow from that
decision that the plaintiff in rem is entitled to have the ship arrested
despite change in ownership, and notwithstanding that the writ has not
been served. (per Chao Hick Tin J. at 522)
6.2. Validity period
· O. 70, r. 14(1)(2)
6.3. Caveat and release
· O. 70, r. 12(4) + Form 161
6.4. Withdrawal of a caveat
· O. 70, r. 14(1) + Form 163
Hong Lee v. Golden Dragon Shipping (Singapore) Pte Ltd. [1975-

1977] S.L.R. 149 (C.A.); [1976] 1 M.L.J. 159:
In our view when the respondents undertook to pay the court charges the
caveat which the appellants had filed against the release of the ship was in force
though the warrant of arrest had been set aside. The respondents on behalf of
the owners of the vessel obtained the release of the vessel by the appellants
withdrawing their caveat on the undertaking given by the respondents to pay
the court charges.
In our view the learned district judge was right in holding in the first instance
that there was a binding agreement between the appellants and the respondents
and giving judgment in favour of the appellants. (per T. Kulasekaram J. at 152)
6.5. Damages
O. 70, r. 13(2)
The Don Ricardo (1880) 5 P.D. 121:

27
I am satisfied that I ought in the special circumstances of the case, and bearing
in mind the decision of Dr. Lushington in the case of The Corner,33 to condemn
the plaintiff in damages for the detention of the Don Ricardo and in the costs
occasioned by the entry of the caveat and the objection to the bail. I direct the
amount of the damages to be assessed by the registrar. (per Sir Robert
Phillimore at 122)
(7) Release
Reading

→ If there is arbitration clause, then the court’s jurisdiction may be challenged and the court
may be prepared to consider release of the ship. But will not do so if the rights of the parties
may be affected.
7.1. Procedure
O. 70, r. 12 + Form 160
7.2. Court’s discretion
O. 70, r. 12(4)
The Rena K [1979] 1 Q.B. 377; [1978] 1 Lloyd’s Rep. 545; [1978] 3
W.L.R. 431:
The process by which property, which has been lawfully arrested in an action in
rem, can be released at the instance of the party interested in it, is the making
by the court of an order for the issue of a release under R.S.C., Ord. 75, r. 13 (4).
That rule provides, so far as material: “A release may be issued at the instance
of a party interested in the property under arrest if the court so orders, ...” That
rule, as I understand it, gives the court a discretion, when an application for an
order for the issue of a release is made, whether to make such order or not. The
discretion so given is, so far as the terms of the rule go unfettered, but it must,
like any other discretion, be exercised judicially.
There is nothing in section 1 (1) of the Arbitration Act 1975 which obliges the
court, whenever it grants a stay of an action in rem in which security has been
obtained, to make an order for the unconditional release of such security. Nor
did section 4 (2) of the Arbitration Act 1950, now repealed, impose any such
obligation. That being so, I think that it is a matter for the discretion of the
court, acting under the rule referred to above, what order it should make with
regard to such security, and that the way in which it exercises that discretion
must depend on the circumstances of each particular case. (per Brandon J. at
404)
arbitration clauses
The Bazias 3; The Bazias 4 [1993] Q.B. 673 (C.A.); [1993] 1 Lloyd’s
Rep. 101; [1993] 2 W.L.R. 854:
33 (1863) Br. & L. 161 [167 E.R. 324].

28
[Counsel] further argues that it is quite simply impossible for the defendants to
find liquid resources in time to enable them to put up security. In that
connection he relies on paragraph 16 of an affidavit … and on a further affidavit,
which we allowed to be put before us, in which he explains in greater detail the
financial position of the defendant company. I regret that the difficulties which
the defendants say they have in finding the necessary liquid resources, and the
inconvenience to the freighters and their passengers, are not grounds which
persuade me to depart in this case from making the usual order. (per Lloyd L.J.
at 682)
stays to commence proceedings elsewhere?
The ICL Raja Mahendra [1999] 1 S.L.R. 329:
Generally, when a party invokes a court’s jurisdiction to arrest a vessel it is for

the purpose of securing it to satisfy a judgment or award which it may obtain
in that jurisdiction. Sometimes, having invoked the jurisdiction the party
concerned or the opposing party may, on good grounds, apply to stay the
proceedings in favour of commencing or continuing proceedings elsewhere.
In such circumstances, the court has the discretion whether to release the
arrested vessel, and it follows, also a discretion whether to impose conditions
if the vessel is to be released.
The purpose of invoking the court's jurisdiction in the first instance and the
reason for the application for stay are relevant considerations to the court in
the exercise of its discretion to release the arrested vessel. I agree that the
court’s jurisdiction to arrest a ship in an action in rem should not be exercised
for the purpose of providing security for an award or judgment elsewhere. An
exception is where a party applies under s. 6 of the International Arbitration
Act. (per Choo Han Teck J.C. at 334)
power of release to be used in extreme cases?
The Opal 3 [1992] 2 S.L.R. 585:
The inferior power conferred by the rule can never be used to release a ship if
the release would defeat the legitimate rights of a litigant for that action would
negate the superior rights of the plaintiffs under the Act. A ship will not be
released from arrest on the ground that the ship is subject to a mortgage for an
amount which will not leave anything for an unsecured creditor … In this case
the plaintiffs, by reason of their possessory lien, are placed on a higher pedestal
than a mortgagee … The power created by O. 70, r. 12 should be used only in
extreme cases: see The Myrto [1977] 2 Lloyd’s Rep. 243 and East Asia Supply
Co. Pte Ltd. v. The San 003 [1979] 2 MLJ 8. (per Selvam J.C. at 592)
(8) Re-arrest of a Ship
Reading

→ If a ship is released when sufficient security has been given. Usually won’t allow re-arrest
of the ship. Even if the ship has been arrested in another jurisdiction.
8.1. After earlier release
The Wild Ranger (1863) Br. & L. 84 [167 E.R. 310]:

29
Now bail given for a ship in any action is a substitute for the ship; and whenever
bail is given, the ship is wholly released from the cause of action and cannot be
arrested again for that cause of action. (per Dr Lushington at 87 [167 E.R.
312])34
The Point Breeze [1928] P. 135; (1928) 30 Ll. L.R. 229
In this case what the plaintiffs have been trying to do is to arrest the ship after
they have got bail for their claim and have released the ship, and have got
judgment, but before the amount of their claim is ascertained …. If the plaintiffs
are right in their contention that they are entitled to arrest this ship, it seems to
me that it will open the door to the re-arrest of vessels, or arrest after getting
bail, whenever a party thinks that his claim may be more than he originally
thought it was. No immunity from arrest will be obtained by giving bail, and the
result of that, on the question of maritime liens, might be very serious … The
position of people who have ships that have been released on bail – if I were to
allow this arrest to stand – might be very unfortunate. (per Bateson J. at 142)
8.2. After earlier release in another jurisdiction
The Christiansborg (1885) 10 P.D. 141
I think, therefore, that when bail has been given, the plaintiff in the foreign
action, the first action, has obtained that which is equivalent to the arrest of the
res. The same conclusion, it appears to me, may be arrived at in another way.
The result of the giving of bail is the release of the ship. Now, what is the
meaning of releasing a ship under the circumstances? It appears to me that the
meaning of it is, that she is released from all rights and claims against her in
respect of the collision, which is the cause for which her owners have been
compelled to give the bail. Therefore, without saying it is impossible that a
second action should be allowed where such a release has been obtained, I think
that the existence of such a release is the most cogent circumstance against
allowing the prosecution of a second action. That is the view of Sir James
Hannen, because he says: “Now what is the meaning of the release? It plainly
must mean, everybody would understand it to mean, that the vessel was to go
on her course and be useful to her owners, and earn freight, and not merely that
she was to sail about in the Dutch waters”. If that be, as I think it is, the true
meaning of a release obtained by the giving of bail, it seems to me that the
subsequent institution of this suit is against good faith. In my judgment, also,
extreme inconvenience would follow if the practice were allowed of instituting
proceedings in rem in whatever port the ship might happen to arrive: the result
would, or might, be that in the case of a collision a vessel might be arrested
afresh in every jurisdiction which she might enter, and that even though bail
might have been given in the courts of foreign jurisdiction, so that she would be
harassed from port to port by successive actions of the kind which we have now
before us, and the plaintiff might be allowed to elect which of the antecedent
actions he would prosecute. (per Fry L.J. at 155-156)
34 See too The Kalamazoo 15 Jur. 885, 886 where Dr Lushington said that: “It is perfectly
competent to take bail to the full value, but the effect of taking bail is to release the ship in
that action altogether. It would be perfectly absurd to contend that you could arrest a ship,
take bail to any amount, and afterwards arrest her again for the same cause of action. The
bail represents the ship, and when a ship is once released upon bail she is altogether released
from that action.”
30
The Tjaskemolen (No. 2) [1997] 2 Lloyd’s Rep. 476:
I do not think that the mere fact that a plaintiff has arrested a vessel which has
previously been released by order of this Court or another Court of competent
jurisdiction will amount to an abuse of the process of the Court. All will depend
upon the circumstances. So, for example if a plaintiff were to seek to arrest a
vessel in respect of the same claim in one jurisdiction after another it might
well be an abuse of process to permit an arrest here on the ground that to do so
would be oppressive and vexatious and thus an abuse of the process.
I have reached the conclusion that it would not be oppressive to permit the
plaintiffs to retain the security provided that they in turn provide security for
any loss which the owners prove that they have suffered as a result of arresting
the vessel in England if their claim fails before the arbitrators. I recognize that
such counter-security is not required in the ordinary case of an arrest, but this
case is unusual. As I understand it, if the arrest had been maintained in Holland
and the plaintiffs’ claim in the arbitration failed, the owners would be entitled
to recover from the plaintiffs any loss caused by the arrest without having to
prove mala fides or crassa negligentia (to use the old expressions). They would
also have been able to obtain security for that claim. In my judgment the
plaintiffs must bear their share of the responsibility for the fact that the arrest
was not maintained in Holland. In these circumstances it appears to me that on
the facts of this case the position here should be the same as it would have been
in Holland if the arrest had been maintained and that it would be oppressive to
permit the plaintiffs to retain the security for their claim if to do so would put
them in a better position than they would have been in Holland. On the other
hand, the maintenance of the security will not be oppressive if appropriate
counter-security is given. (per Clarke J. at 481; 484)
8.2.1. COURT’S DISCRETION TO PERMIT RE-ARREST
The Hero (1865) Br. & L. 447 [167 E.R. 436]:
[The earlier cases] would indicate that I have no power to grant a rearrest for
the same cause of action after the property has been released on bail: but those
expressions must be read subject to the fact which formed the ground of the
decision in each of those cases, that the cause of action had passed into res
judicata. I am of opinion that where application to increase the amount of the
action is made before has been pronounced, the Court has power to direct
measures to be taken to do full justice to the plaintiff. I am of opinion,
therefore, that the Court has power to grant this motion, and that under the
circumstances it is just and proper that the plaintiffs should be relieved from
the mistake committed. I allow the rearrest, but the plaintiffs must pay all the
expenses arising from their mistake. (per Dr Lushington at 447; [167 E.R. 436])
Naval Consulte Assitencia A Maquinas Maritimas LDA v. The

Arctic Star, The Times, 5 February 1985 (C.A.):
[Counsel] referred us to a number of cases which establish the general rule that,
once a vessel has been arrested and released on bail (whether in this
jurisdiction or in any other jurisdiction) this court will not normally permit a
second arrest, the reason being, as stated by my Lord, that the bail is said to
represent the ship. But that rule is not without exceptions. The justification for
the rule is, and always has been, the need to avoid oppression and unfairness.
For myself, I can see nothing in the least oppressive or unfair in allowing the
31
plaintiffs to arrest this vessel within this jurisdiction to top up their security in
the circumstances which my Lord has mentioned. (per Lloyd L.J.)35
Det Norske Veritas AS v. The Clarabelle [2002] 3 N.Z.L.R. 52

(C.A.); [2002] 2 Lloyd’s Rep. 479:
… [I]n our view the principles relevant to the determination of the present
application to re-arrest are clear and well settled. First, following arrest a
plaintiff is entitled to security assessed on a reasonably arguable best case basis
... Departure from that approach may be appropriate, in which case strict terms
designed to provide adequate alternative security, for example of the kind
described in Meeson’s Admiralty Jurisdiction and Practice at par. 4-066 … are
to be expected. But the present was not a case in that category.
Second, we do not accept the argument that re-arrest for the purpose of
provision of increased security is only appropriate in exceptional circumstances.
On the one hand there is a rule, or immunity, against re-arrest. Its expression is
ordinarily couched in terms of the need to avoid oppression or unfairness to a
ship’s owner who has already provided security and thereby secured the release
of the ship in the first place. But, on the other hand, there are clear exceptions
to that rule, including in the situation where security was fixed at an inadequate
amount initially, or where the actions of the owner have rendered originally
adequate security inadequate. In such cases, an application to re-arrest may be
granted in fairness to the plaintiff. (per Panckhurst J. at 59-60)
8.2.2. RE-ARREST FOR THE COSTS OF THE ACTION
The Freedom (1871) L.R. 3 A. & E. 495:
… [T]his Court can always issue a monition in personam for the payment of
costs which have exceeded the amount in which the suit was instituted;
moreover, if the vessel had not been bailed and were still under arrest, there can
be no doubt that she would not be released without payment of costs, and the
fact of bail having been given in no way affects the liability of the owner of the
ship for costs as well as damages, and I think that even under the old law, if
necessary, the Court would have ordered the re-arrest of the ship for the
payment of costs. (per Sir Robert Phillimore at 498-499)
8.3. Arrest after release of a sister ship
· “one claim, one ship” principle
The Marinero [1955] P. 68; [1955] 1 Lloyd’s Rep. 230; [1955] 2

W.L.R. 607:
The question then arises whether I am to extend what I may call the principle of
The Christiansborg to a case in which it is not the offending ship, but another
ship belonging to the same owners, which has been the subject of arrest in the
foreign proceedings. It seems to me that the effect of what was done in Holland
in the present case was to purchase the future immunity from arrest of the
Marinero. It seems to me that the giving of the guarantee in the Dutch
proceedings had that effect, just as much as if it had been the Marinero herself
that had been arrested. I apprehend that if the Marinero were to proceed to
35 Also available on Lexis.

32
Holland the Dutch court would refuse to sanction her arrest in respect of the
same collision.
It seems to me that to continue to harass the defendants by arresting their
ship in this country, notwithstanding the provision of security in the Dutch
proceedings, is in all the circumstances vexatious and contrary to good faith,
just as much as was the action that was taken in The Christiansborg. (per
Willmer J. at 74-75)
8.4. Arrest after security
The Point Breeze [1928] P. 135; (1928) 30 Ll. L.R. 229:
In this case what the plaintiffs have been trying to do is to arrest the ship after
they have got bail for their claim and have released the ship, and have got
judgment, but before the amount of their claim is ascertained. Under the
judgment the assessment of the damages was referred to the registrar, but he
has not ascertained what amount is due, and it may well be that it will be some
time before he does ascertain it. If the plaintiffs are right in their contention
that they are entitled to arrest this ship, it seems to me that it will open the door
to the re-arrest of vessels, or arrest after getting bail, whenever a party thinks
that his claim may be more than he originally thought it was. No immunity from
arrest will be obtained by giving bail, and the result of that, on the question of
maritime liens, might be very serious. The only right to arrest in a damage case
is that which the party claiming has got by a maritime lien, and a maritime lien
follows the ship into other people’s hands. The position of people who have
ships that have been released on bail – if I were to allow this arrest to stand –
might be very unfortunate. (per Bateson J. at 142)
8.5. Arrest after another ship is mistakenly arrested
· not an infringement of the “one claim, one ship” principle
(9) Arrest after judgment
Reading
9.1. Enforcement of the judgment of a foreign court
The City of Mecca (1879) 5 P.D. 28:
The question to be decided is whether this Court can and ought to enforce the
sentence of a foreign admiralty court by a proceeding in rem. It appears to be
expedient to make two preliminary observations. First, I express my opinion
that whatever authority upon this subject was incident to the Court of
Admiralty before the Judicature Act belongs to this Court now. Secondly, that
this Court has always exercised a jurisdiction founded upon international
comity with respect to the execution of the sentences of foreign admiralty
courts. I proceed to consider the authorities on this subject in their
chronological order, as it is important to shew that the duty of the Admiralty
Court in England to enforce the decree of a foreign admiralty court has been
steadily recognized for a great number of years. (per Sir Robert Phillimore at
30)
33
9.2. Enforcement of a domestic judgment in rem
9.2.1. THE ENGLISH VIEW
The Alletta [1974] 1 Lloyd’s Rep. 40:
If a ship may be arrested after judgment on liability has been obtained against
her and she is by the date of the arrest the property of a third party who had
bought her without knowledge of the maritime lien, grave injustice may be
done. The third party may have no right of indemnity or, which is less unlikely
supposition, his indemnity may be worthless. His vendor may, through lack of
adequate funds, incompetent legal advice or other reason, not properly and
fully have contested the issue of liability. Despite [counsel’s] efforts to answer
these supposed circumstances by saying that the Court would find some method
of reopening the issue of liability so as to enable the third party to contest it
properly and anew, I cannot see how such an end could be achieved. The
position would be quite different from that obtaining when an arrest is effected
after transfer of the res to such a third party, but before there had been
judgment on liability. The third party can then intervene; see O. 75, r. 17.
Similar circumstances, mutatis mutandis, can readily and perhaps more
realistically be envisaged in relation to the rights of a mortgagee, who can
intervene to protect his interest, if this be possible on the facts, against the
claim of a holder of an alleged maritime lien provided the vessel mortgaged be
arrested before judgment on liability; aliter, if the arrest be subsequent to such
judgment. (per Mocatta J. at 50)
· Cf. CPR 61.5(1)36
9.2.2. THE VIEW IN SINGAPORE
*The Daien Maru No. 18 [1984-1985] S.L.R. 536; [1985] 2 M.L.J.

90; [1986] 1 Lloyd’s Rep. 387:
→ Can always do so.
It is necessary to consider on principle whether in an action in rem against a
vessel the right to arrest that vessel is lost after judgment in that action has
been obtained on the ground that the cause of action has merged in the
judgment. In the consideration of this point it is helpful to start with the
following basic propositions, which, on authorities, are incontrovertible. First,
an admiralty suit in rem is an action against the res …
Secondly, following from the first proposition …, if no appearance is entered
by the defendant to such an action, judgment when entered is enforceable only
against the res, quoad res and no more, and the defendant in such an action
will not suffer any personal liability. Thirdly, once the defendant to an action in
rem has entered an unconditional appearance he submits to the jurisdiction of
the court personally and from then onwards the action continues as an action in
rem and in personam …
In consequence, if the judgment is not fully satisfied by enforcement thereof
against the res, execution proceedings can be initiated against the defendant ...
It must follow that in such a case the judgment when obtained is a judgment in
rem against the res as well as in personam against the defendant personally,
and it must further follow that the judgment can be enforced against the res by,
36And see the obiter comments by David Steele J. in The Ruta [2000] 1 Lloyd’s Rep. 359,
365.
34
a remedy in rem – the procedure of arrest. If it is correct that in an action in

rem against a res, in which no bail has been put up for the res, the plaintiff after
judgment cannot arrest the res, then it must follow logically that the judgment
is not one operating in rem against the res and no recourse can be had against
the res, except by way of a writ of seizure and sale which is an execution
proceeding for enforcing a monetary judgment in personam. Such a conclusion
is extremely strange and, in my view, untenable. (per L.P. Thean J. at 540-541)
(10) Applications relating to the property under arrest
Reading
Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1566-1567; 1595-1597

→ What happens after arrest? Most of the time, the s/o will provide security to obtain the
ship’s release. If not, the ship is sitting there while the action proceeds to the merits. In the
meantime, the ship is in the custody of the sheriff. If any interference with custody, will be in
contempt of court. The sheriff or other parties can make an application to the Court for
various orders. One of them is the Omnibus order – allows the sheriff to take appropriate
measures to desert the ship, provision of fuel, water, food, to allow sheriff to move the
ship…etc.
10.1. Generally
O. 70, r. 11
10.2. “omnibus” orders
C. Clausen Dampskibs-Rederi A/S v. The Om Alqora (No. 2) (1985)

38 S.A.S.R. 494:
… [T]he Marshal asked for an “omnibus order” in the following terms:

That the Marshal be at liberty in his discretion at any time–
(a) to take measures to preserve the ship Om Alqora her machinery and
equipment;
(b) to move the Om Alqora within the limits of the port where she is lying under
arrest, either for her safety or to comply with the requirements of the Port
Authority;
(c) to supply the minimum victuals, domestic fuel and water necessary to avoid
hardship to the Master, officers and crew. (per Bollen J. at 501)
sheriff is the agent of the court and not the parties

The sheriff will not execute a warrant of arrest unless he gets a satisfactory undertaking
that he will be reimbursed for his costs. O70 r9(3).
The Mari Chandris [1942] P. 94; (1942) 71 Ll. L.R. 225:
It is clear that the Admiralty authorities had the actual control of the ship when
she was brought into St. Mawes Harbour. In law it appears to me at least
probable that the Admiralty Marshal had, strictly speaking, the control, and it is
suggested by Mr. Porges that the Marshal was in control as agent for the
plaintiffs because he had been put in possession at their instance for their
benefit. This contention raises the interesting and rather considerable point
whether the Admiralty Marshal could ever be properly regarded as the agent of
35
any private individual. Without attempting to determine it I will only say that
the first inclination of my mind is towards the belief that the Admiralty Marshal
is the agent of the Admiralty Court, and acts for and on behalf of the court and
is not in law the agent of anybody else. (per Langton J. at 96)
10.3. Applications by owners of bunkers
The Pan Oak [1992] 2 Lloyd’s Rep. 26:
… [T]he bunkers in a ship may belong to charterers, as frequently they do.

Nevertheless in an action against the shipowners (in which there is no
suggestion of any liability upon charterers) oil which is acknowledged to be the
property of the charterers is sold by the Court. It is always accounted for
separately. If it is agreed or proved that charterers were the owners of the oil
when it was sold, the proceeds of the sale will be paid out to the charterers. If
the oil is the property of the shipowners the proceeds of sale are available for
distribution to creditors who establish a claim against the shipowners. In
default of agreement between all caveators those claimants must be judgment
creditors. But a great saving in costs can be effected by agreement between
claimants. (per Sheen J. at 39)
10.4. Applications by owners of goods on board the vessel
request to the Sheriff to take appropriate measures
O. 70, r. 11(3)
10.5. Applications for inspection of the ship or other property
O. 70, r. 28
The Mare del Nord [1990] 1 Lloyd’s Rep. 40:
…. [It] may be helpful to practitioners if I set out what seem to me to be the

principal matters to which the Court should have regard when exercising its
discretion whether or not to order that samples be taken for the purpose of
analysis. There is, of course, an infinite variety of circumstances which may
arise. The Court should take into account all the circumstances of the particular
case. The following matters appear to me to be important.
The evidence on affidavit in support of the plaintiffs’ application must show
that the plaintiffs have a good arguable case on the merits.
Next, the plaintiffs must show that the taking of samples and analysis of, or any
other experiment on, those samples may assist the Judge at the trial …
Obviously there will be many borderline cases in which the decision will not be
an easy one. It is in the interest of justice that, when in doubt, it is better to
preserve evidence than to let pass an opportunity of obtaining evidence.
Shipowners must be protected from unnecessary interference with the running
of their ships. But, provided that shipowners are fully protected against any
damage which they may suffer, the provision of a sample of oil which may be
relevant to the issues in the action is no more burdensome than is discovery of
many documents, the disclosure of which puts the shipowners to a great deal of
trouble and inconvenience. Both processes help the Court to ascertain the true
facts, and thus to reach a decision which is fair and correct.
An order that shipowners must allow an inspection to be made of parts of
their ship and samples to be taken of the oil in bunker tanks will probably cause
36
some inconvenience to the owners or charterers of the ship and possibly to

others. Accordingly the plaintiffs should be required to give an undertaking in
damages should it appear subsequently that the defendants have suffered loss
as a result of the order obtained by the plaintiffs. The plaintiffs should also be
required to give an undertaking to indemnify any third party adversely affected
by the order. (per Sheen J. at 44-45)37
an order as to inspection cannot be exercised in respect of a ship or property outside

jurisdiction not to be exercised where these are not in the ownership, possession,
custody or power of a person over whom the court has jurisdiction
Unicargo v. Flotec Maritime S. de R.L (The Cienvik) [1996] 2

Lloyd’s Rep. 395; [1996] C.L.C. 434:
In my judgment, there is no reason to give the words of O. 75, r. 28 other than

their ordinary and natural meaning, save that it does seem to me that the rule
cannot have been intended to give the Court power to make an order for the
inspection of a ship or other property out of the jurisdiction which was not in
the ownership, possession, custody or power of a person over whom the Court
had jurisdiction, either because he was personally within the jurisdiction or
because leave to serve an originating summons upon him out of the jurisdiction
could be granted under O. 11, r. 1, or O. 73, r. 7.
If the ship or other property were within the jurisdiction, I see no reason why
the Court should not make an order for the inspection of the property even if it
was not in the ownership, possession, custody or power of a person over whom
the Court had jurisdiction. In fact such a situation is very improbable because in
practice it would be likely to be in the ownership, possession, custody or power
of a person who was in fact within the jurisdiction and thus of a person over
whom the Court had jurisdiction. (per Clarke J. at 406)
(11) Intervention
Reading

→ MORTGAGEE’S, SHIP’S REPAIRERS..ETC ALL ALLOWED TO INTERVENE
11.1. Procedure
· O. 70, r. 16
The Dowthorpe (1843) 2 W. Rob. 73 [166 E.R. 682]:
Now an interest to establish a persona standi in judicio is not an absolute right

to a given sum of money: but if a person may be injured by a decree in a suit, he
has a right to be heard as against the decree although it may eventually turn out
that he can derive no pecuniary benefit from the result of the suit itself. (per Dr
Lushington at 77; 166 E.R. 684])
37 Noted Dockray [1990] Lloyd’s Maritime & Commercial L.Q. 319-323.

37
11.2. Intervener’s defence to the action

→ He does not actually prosecute his claim but rather protecting his interest in the arrested
property. He can set up defences. The only limitation is that if you are intervening, you have
no locus standi to raise issues which are not directly related to his interest.
*The Soeraya Emas [1992] 1 S.L.R. 33:
The right to intervene as provided by this rule is consonant with the nature of
admiralty proceedings in rem since a judgment entered in rem binds not only
the defendant but all other persons who have an interest in the res. The
significant words in O 70 r 16(1) are, “a person who has an interest in that
property”. Such interest need not and generally does not have anything to do
with the original subject matter of the action, or the matter in dispute which are
essential requirements in non-admiralty or ordinary civil actions.
A person who has been given leave to intervene in an admiralty action in rem
does not prosecute his claim in that action. He protects his interest in the
property by defending the action in rem. In doing so he will be permitted to set
up such defences which the owners of the ship could have set up had they
defended the action. (per Karthigesu J. at 43)
The Lord Strathcona [1925] P. 143:38
As to the first contention I asked and received no satisfactory answer to the

question: What right have the interveners to raise this contention at all in this
action? The interveners have a contractual right and nothing more. I cannot see
what locus standi they have to dispute the validity of the plaintiffs’ mortgages.
But I need not further consider this, for the interveners took the benefit of the
performance of the charterparty by the Lord Strathcona Steamship Co. (No. 2)
as owners for several seasons and cannot now be heard to say that the
Strathcona Co. never were owners. As to the second contention, while it is clear
that the interveners cannot, as against the plaintiffs, dispute the judgment
which pronounced for the validity of the mortgages and condemned the ship,
they are entitled to be heard when they allege that, by reason of their
contractual right, the plaintiffs ought to be restrained from exercising their own
rights as mortgagees in such a way as to interfere with the contractual right of
the interveners; and the question is whether the interveners are entitled at all,
or on the facts of this case, to limit the plaintiffs’ right to procure a sale by the
Court. They cannot question the judgment in rem. Can they interfere with the
plaintiffs’ right to obtain execution of that judgment by appraisement and sale?
A similar question would be involved if, instead of proceeding in rem, the
plaintiffs had taken possession and proposed to sell or to use the ship without
regard to the charterparty. (per Hill J. at 150)
11.3. No direct interest, but adversely affected?

→ Generally allowed them to intervene. The Courts do so not because of a rule of law, but
rather as part of their inherent jurisdiction recognized in the following case.
The Mardina Merchant [1974] 2 Lloyd’s Rep. 424; [1975] 1 W.L.R.
147:
This is an application by the British Railways Board (“the Board”) as

interveners in an Admiralty action in rem for a direction to the Admiralty
marshal to move a ship from the place where she is at present under arrest to
another place.
38 See too The m.v. Brihope [1995] 1 M.L.J. 676.

38
The Board are interested in this way. They are port authority at Newhaven
and they are the owners of the berth at which the ship is lying and the presence
of the ship under arrest at that berth is causing serious interference to the
working of the port. The interference is such as to cause financial loss to the
Board, and to persons who have rights of use of the jetties and berth in the
harbour, and it is also resulting in ships being turned away from the port which
would otherwise discharge there, and, because of this, causing harm to the
reputation of the port
I am of the opinion that there must be an inherent jurisdiction in the Court to
allow a party to intervene if the effect of an arrest is to cause that party serious
hardship or difficulty or danger. One can visualize cases where the presence of a
ship in a particular place might cause not merely financial loss or commercial
difficulty but even danger to persons or property. In all such cases it seems to
me that the Court must have power to allow the party who is affected by the
working of the system of law used in Admiralty actions in rem, to apply to the
Court for some mitigation of the hardship or the difficulty or the danger. (per
Brandon J. at 424-425)
The Nagasaki Spirit [1994] 2 S.L.R. 621:
I respectfully agreed with Brandon J. [in The Mardina Merchant] which in my

view applied to the position Hitachi was in this case. Accordingly at the
conclusion of the hearing before me on 29 September 1993 I gave leave to
Hitachi to intervene in these proceedings and reserved for mature
consideration whether the expenses incurred by Hitachi, as claimed, could in
law, be considered to be part of the Sheriff’s expenses.
In this case when the Nagasaki Spirit was arrested she was in a disabled state,
badly damaged and burnt. She was then in relative safety at Hitachi’s shipyard.
There was a duty on the Sheriff into whose custody she came when the warrant
of arrest was executed to see that the Nagasaki Spirit was preserved and
maintained in the state in which she was when arrested. If she was moved she
would have to be moved to another shipyard for it was plainly evident that she
could not have been laid up anywhere else except in the safety of a shipyard.
She could not have been towed out to an anchorage in the condition in which
she was, as without motive power she would have been a hazard to other
shipping and exposed to the elements, she would deteriorate to a worthless
hulk. Had the Sheriff been appraised of the condition in which the Nagasaki
Spirit was in at the time of her arrest, which, in my view, the plaintiffs, the
arresting party, should have done but which they failed to do, the Sheriff would
have come to some arrangements with Hitachi for her to remain alongside at its
shipyard and for the necessary care to be accorded to her to preserve and
maintain her to prevent her from depreciating in value. Of this I have no doubt.
What should have been done by the Sheriff was done by Hitachi and although it
was done, partially in its own interest, that is money was expended to prevent
the Nagasaki Spirit from becoming a wreck in its own shipyard, it benefitted all
those who have claims on the Nagasaki Spirit. That it was done without the
prior sanction of the Sheriff begs the question in the particular circumstances
and exigencies of this case. (per Karthigesu J.A. at 626; 631-632)
(12) Preliminary acts
Reading

39

→ Relates to section 3(1) of the HC(AJ)A.
12.1. Procedure: purpose
· O. 70, r. 17
The Vortigern (1859) Swa. 518 [166 E.R. 1242]:
Preliminary acts were instituted for two reasons,-to get a statement from the
parties of the circumstances recenti facto, and to prevent the defendant from
shaping his case to meet the case put forward by the plaintiff. In practice they
have been found very useful; and neither party is allowed to depart from the
case he has set up in his preliminary act. Some of the facts stated in the
preliminary act are facts absolutely within the knowledge of the party making
the statement, some are matters of opinion only. The Court will expect
correctness where correctness is in the power of the party. (per Dr Lushington
at 518 [166 E.R. 1243])39
12.2. Effect of filing a preliminary act
The Nagasaki Spirit (No. 1) [1994] 1 S.L.R. 434:
By O. 70, r. 17 of the RSC, in an action to enforce a claim for damage, loss of life
or personal injury arising out of a collision between two ships, unless the court
otherwise orders each party is required to file a document in a closed and sealed
envelope giving certain specified information about the circumstances of the
collision. It is called a preliminary act. The purpose is to require each party to
state its version without knowing the version of the other. Except where the
court grants dispensation one party cannot demand of the other information on
the cause of the collision. The defendants are therefore precluded from
revealing their case before preliminary acts have been filed by both parties. The
plaintiffs could apply to dispense with preliminary acts but they had not done
so. Nonetheless I was prepared to assume for the purpose of this interlocutory
matter that a collision where both ships are in motion at open sea is a sufficient
circumstance from which to infer some negligence on the part of both vessels.
(per Selvam J.C. at 440)
The Seacombe; The Devonshire [1912] P. 21:
In my opinion, the learned judge took a wrong view of the nature and status of
the statements in the preliminary act. They are not mere pleading allegations.
They are statements of fact made under such circumstances that they rank as
formal admissions of fact binding the party making them perhaps as strongly as
any admissions of fact can do. An admission of fact, as such, does not constitute
an estoppel. It may be shewn that it was made under mistake, and the Court
may be satisfied that such was the case; but it is evidence against the party
making it, its strength varying according to the conditions under which it is
made. An admission, under circumstances which necessitate that it must have
been made after full consideration, has an evidential value far higher than a
casual admission made without any opportunity of reflection or verification.
The statements of fact in a preliminary act are statements which must be
39See also The Frankland (1872) L.R. 3 A. & E. 511: “The object of the preliminary act is to
obtain from the parties statements of the facts at a time when they are fresh in their
recollection …” (per Sir Robert Phillimore at 511).
40
presumed to be made after the most careful examination and consideration. To

my mind they carry such weight, from the nature of a preliminary act and from
the circumstances under which it is made, that I should doubt whether
otherwise than under the most special circumstances, and with the special leave
of the Court, a party would be allowed to depart from the admissions in the
preliminary act, at all events as far as evidence-in-chief is concerned. The judge
was, therefore, in my opinion, wrong in refusing to take the statements in the
defendants’ preliminary act into consideration in arriving at his decision. (per
Fletcher-Moulton L.J. at 59)40
12.3. Failure to lodge a preliminary act
· O. 70, r. 18
Further reading
Nigel Meeson, Admiralty Jurisdiction and Practice 1st ed. (1993), Chapter 7
(“Collision Actions”)41
(13) Judgment by default
Reading
13.1. Grounds
· failure of a party at whose instance a caveat against arrest was issued to fulfil the
undertaking given by him to procure the caveat within 14 days after service of the
writ
· failure of the defendant to enter an appearance within the prescribed time

· failure by the defendant to serve a defence within the prescribed time
· failure of a defendant to a counterclaim to serve a defence to the counterclaim in the

prescribed time
13.2. Procedure
· O. 70, r. 20
(14) Summary judgment
Reading
· Toh Kian Sing, Admiralty Law & Practice (1998), 200

→ Judgment in default is when the other party fails to comply with procedure in some way.
40 See also The Channel Queen [1928] P. 157, 160-161 (per Bateson J.); The Semiramis
[1952] 2 Lloyd’s Rep. 86, 93 (per Willmer J.).
41 See the 3rd ed. (2003) – the same chapter – in relation to such claims under the CPR.
41
→ A summary judgment is an instant judgment. When one party has a hopeless case, has
not entered a defence…etc. Not often in admiralty proceedings.
14.1. The pre-1999 United Kingdom position
· RSC, O. 14(1)(2)(c) – no summary judgment in an action in rem42
14.2. Position in Singapore
The August 8 [1983] 2 A.C. 450 (P.C.); [1983] 2 W.L.R. 419; [1983] 1
Lloyd’s Rep. 351:
In their Lordships’ opinion, the situation in this respect as it now exists under
the present Rules of the Supreme Court in England cannot have any bearing
whatever on the situation which exists under the differently worded Rules of the
Supreme Court of Singapore 1970. So far as the situation which existed in
England before 1975 is concerned, there are historical reasons, derived from the
organisation of the High Court in England in a number of separate divisions,
which explain the fact that Admiralty actions, whether in rem or in personam,
were formerly excluded from the scope of Order 14. As to the continued
exclusion, even after the amendment of the relevant rules in 1975, of Admiralty
actions in rem from the scope of Order 14, there may or may not be sensible
reasons for it. But, whether there be sensible reasons or not for such exception,
so far as English procedure is concerned, their Lordships can see no
justification whatever for importing it into paragraph (2) of Order 14, rule 1 of
the Rules of the Supreme Court of Singapore 1970, which do not, and it must be
presumed intentionally do not, contain any such exception. (per Lord Brandon
at 455)
(15) Appraisement and Sale
Reading

→ This is what happens after judgment. Assuming the ship is still under arrest.
15.1. Procedure
· O. 70, r. 22 + Forms 165 + 166
15.2. Appraisement
· necessity in order to ensure that a ship is not sold below its true worth
The Halcyon The Great (No. 2) [1975] 1 Lloyd’s Rep. 525:
I was not satisfied on the evidence that there would necessarily be a better bid if
the ship were re-offered. It seemed to me at least possible that there might not
even be such a good bid. There was, therefore, to my mind a risk involved in
doing what the parties interested wished me to do. In order to get over that risk
I asked Counsel for the plaintiffs whether his clients and their parent company
42 See Meeson 1st ed. (1993) 117.

42
would be willing to give an undertaking to the Court, which would have the
effect of indemnifying the Court against any loss which might be sustained as
the result of refusing the Marshal leave to accept the highest bid at present
available and directing him to re-offer the ship for sale. An undertaking has
been offered, and approved by the Court, and has now been reduced to writing
and signed on behalf of the plaintiffs and their parent company.
I shall order that the Admiralty Marshal be not at liberty to sell the ship for
less than the appraised value without further order of the Court, but that he do
re-offer the ship for sale, again in such currency as he thinks fit. (per Brandon J.
at 526-527)
15.3. Sale pendente lite43
15.3.1. BACKGROUND
The Myrto [1977] 2 Lloyd’s Rep. 243:
So far as the sources of the power are concerned it appears to be derived, in the
first place at least, from the inherent jurisdiction of the Court, exercised before
the Judicature Acts by the High Court of Admiralty, and inherited by the unified
High Court created by those Acts.
Referring to the power of a Court to sell property under arrest, Mr. Justice
Blackburn, giving the opinion of himself and four other Judges on a question
put to them by the House of Lords in Castrique v. Imrie, (1869) L.R. 4 H.L. 414,
said at p. 428:
It is not essential that there should be an actual adjudication on the
status of the thing Our Courts of Admiralty, when property is attached
and in their hands, on a proper case being shown that it is perishable,
order that it shall be sold and the proceeds paid into Court to abide the
result of the litigation. It is almost essential to justice that such a power
should exist in every case where property, at all events perishable
property, is detained.
The figure (1) appears as a suffix to the word “order” in this passage, and there
is a footnote which reads: “(1) For the benefit of all parties concerned”.
The power of the Court in this respect derived from its inherent jurisdiction
appears to be supplemented, and/or its exercise regulated, by R.S.C., O. 29, r. 4.
(per Brandon J. at 259)
15.3.2. PROCEDURE
· O. 29, r. 4
Sale of perishable property, etc. (O. 29, r. 4)
4. —(1) The Court may, on the application of any party to a cause or matter,
make an order for the sale by such person, in such manner and on such terms
(if any) as may be specified in the order of any movable property which is the
subject-matter of the cause or matter or as to which any question arises therein
and which is of a perishable nature or likely to deteriorate if kept or which for
any other good reason it is desirable to sell forthwith.
(2) Rule 2 (5) and (6) shall apply in relation to an application for an order under
this Rule as they apply in relation to an application for an order under that
Rule.
43 “pending litigation”.
43
15.3.3. GROUNDS
· good reason
The Myrto [1977] 2 Lloyd’s Rep. 243:

→ Many factors such as the amount of time between arrest and judgment. The Court must
also take in account the interests of all the parties. So if the s/o doesn’t want the ship sold,
the court will consider this. But this is not irregular.
I accept that the Court should not make an order for the appraisement and sale
of a ship pendente lite except for good reason, and this whether the action is
defended or not, I accept further that, where the action is defended and the
defendants oppose the making of such an order, the Court should examine
more critically than it would normally do in a default action the question
whether good reason for the making of an order exists or not. I do not accept,
however, the contention put forward for the owners, that the circumstance
that, unless a sale is ordered, heavy and continuing costs of maintaining the
arrest will be incurred over a long period, with consequent substantial
diminution in the value of the plaintiffs’ security for their claim, cannot, as a
matter of law, constitute a good reason for ordering a sale. On the
contrary, I am of opinion that it can and often will do so. (per Brandon J. at
260)
Further reading
· D. Rhidian Thomas, “Admiralty Sales Pendente Lite” (1998) 17 Civil Justice Q. 409-
420.
15.4. Preparatory steps
court to act in the interest of all the parties whenever possible
The Honshu Gloria [1986] 2 Lloyd’s Rep. 63:
The Court must do its best to safeguard the interests of all parties, but that is
not the same as saying that the Court has no power to order expenditure unless
it is for the benefit of all parties. Money may be expended if the likely result of
that expenditure will be to increase the price which will be obtained for the ship
by more than the amount of that expenditure. Nevertheless, if the price realized
on sale is less than the amount due on a mortgage that expenditure will not
have been of any benefit to claimants who rank after the mortgagees. If
[counsel] is right that an application to the Court should be made before the
ship is sold there is no way of knowing whether the expenditure will have been a
benefit to anyone. If the ship is sold for scrap no one will benefit. If the sum
realized is very small it may do no more than satisfy the claims for wages of the
master and crew. There are many other possibilities. (per Sheen J. at 66)
15.4.1. MASTER AND CREW
Hobbs, Savill & Co. Ltd. v. The Vasilia [1972] 1 Lloyd’s Rep. 51:
In this motion in default of appearance by the defendants, the plaintiffs, Hobbs,

Savill & Co. Ltd., sought leave, as mortgagees of the Panamanian motor vessel
44
Vasilia, to make payments through the Admiralty Marshal to the master and
crew to enable them to be signed off and repatriated.
The sum advanced was to be £4500, the balance of which, after repatriation
expenses, was to be shared among the crew in proportion to their wages claims.
[Brandon J.] granted leave and also gave the plaintiffs leave to be subrogated
to the rights of the master and crew in respect of their claims for wage arrears.
Members of the Vasilia’s crew had continued to live on board since the vessel
was arrested at Fleetwood on Aug. 20.
On Dec. 16, [Brandon J.] made an order for the Vasilia’s appraisement and
sale, but directed that it should lie in the office until the Greek crew were
repatriated.
Mr. J. C. B. Gilman (instructed by Messrs. Holman, Fenwick & Willan) for the
plaintiffs; Mr. A. P. Clarke (instructed by Messrs. Charles Ingham, Clegg,
Crowther & Laytons) for the master and crew.
Mr. GILMAN said that in the previous motion he and Counsel then appearing
for the master and crew discussed the prospect of an agreement which would
enable the crew to leave the ship and the vessel to be sold. Agreement had now
been reached subject to approval.
The Vasilia had been valued at about £40,000. Claims by the master and crew
had been put at about £17,000, but no writ had yet been issued on their behalf.
Other caveators had been given notice of today’s motion.
Mr. CLARKE said that his side had accepted the agreement because it was
considered to be the only basis on which the mortgagees could be persuaded to
put up the money. Unless the vessel was sold nobody would be in a position to
recover anything.
[Brandon J.] approved the agreement in principle, subject to further
consideration of the form of the order.
15.4.2. PROPER MAINTENANCE OF THE SHIP
The Westport (No. 2) [1965] 1 Lloyd’s Rep. 549:
This motion asks that an order be made for the Admiralty Marshal to put in
hand repairs to the feed-water pump of the Westport. This ship is under the
arrest of this Court, which has already ordered her appraisement and sale
pendente lite, which order was made, strangely enough, on the defendants’
application on Mar. 23, 1965. I am informed by the Admiralty Marshal that
about the time the crew left the ship on Mar. 19, 1965, cement box repairs to
one of the feed pumps were found to have failed to such an extent that it was,
and is, impossible to maintain working pressure in the boilers. Without
dismantling the pump the full extent of the damage to it cannot be ascertained.
I am informed that the ship was built in Canada in 1945. The Admiralty
Marshal is advised that any spare parts which may be required are unlikely to
be available in this country and might well have to be made; the casting of one
of the parts may well be necessary. The delay caused by the fabrication of these
parts, should it be necessary, may well amount to two or three weeks. The
brokers have advised that it would be sound commercial practice to repair the
ship forthwith so that the ship, the sale of which has been advertised, may be
sold as a going concern. In their view the price this vessel may realize could be
adversely affected if the pump was unfit for its work as the ship would have to
remain idle after purchase until it was repaired. The owners of the ship, who
have not appeared in this motion, have informed the Admiralty Marshal that
there is no substance in the brokers’ opinion and that the probable cost of
repairs and survey, estimated to be between £200 and £300, is put too high.
The Court must do its best to safeguard the interests of all claimants as well as
45
the owners of the ship and, accepting the opinion of the brokers, as I do, I
accede to these plaintiffs’ prayers that the Admiralty Marshal do arrange for
repairs to the feed pump and necessary survey forthwith. (per Hewson J. at
549-550)
15.5. Judicial sale

→ Any judicial sale of the court must be effected by the Court.
no interference by private parties
The Ruth Kayser (1925) 23 Ll. L.R. 95:
…[W]hen an order for sale had been made in that Court, and the owner chose to
carry out some private negotiations of his own, he would land himself into
difficulty, while anyone dealing with him would know he could not give a good
title. If an owner in such circumstances got private information, his duty was to
bring it to the attention of the Marshal so that everyone might benefit by it. He
was not going to have private owners interfering with the orders of the Court
when it gave an order that there was to be a sale. If anyone did interfere, he
would have to consider whether it was contempt of Court or not. If there were
any private offers, let them be brought to the notice of the Marshal. The sale
must go on by the Marshal without interference. (per Hill J. at 95-96)
The A.P.J. Shalin [1991] 2 Lloyd’s Rep. 62:
While a ship is under arrest, that ship is in the custody of the [Admiralty]
Marshal. It is immaterial who are the owners. If the owners can find someone
willing to purchase a ship under arrest, they can sell the ship, but it will remain
under arrest. But when an order for sale by the court has been made, there
cannot be a private sale because that would be open to abuse. All offers to
purchase the ship must be made to the Admiralty Marshal who must realise the
highest price obtainable. Private negotiations could adversely affect the market,
because they could have the result that potential bids would be withheld. If all
parties with a claim against the ship agree to a sale, they can seek the approval
of the Court. (per Sheen J. at 67)
*Elinoil-Hellenic Petroleum Co. S.A. v. Wee Ramayah [1999] 4

S.L.R. 513
highest price
Usually still not sufficient to satisfy the claim.
The Silia [1981] 2 Lloyd’s Rep. 534:
When this Court orders that a ship is to be sold it is the duty of the Admiralty
Marshal to realise the highest price, and it is his practice to sell the ship and her
contents, other than those articles which are the personal property of someone
other than the owner of that ship. He permits the removal of the personal
effects of the crew and equipment which is on hire; he destroys perishable food
or other food which might attract vermin. In order to realise the highest price it
was the practice in the past for the Marshall to sell separately from the ship
such things as tinned food, stores, barometers and chronometers. The manner
in which such items are sold is left to the discretion of the Marshal. Barometers
and chronometers and stores are now sold with the ship. Unbroached drums of
oil are usually sold separately. But the oil in the ships tanks must, for practical
reasons, be sold with the ship. Those reasons are as follows. In some parts of
this country the removal of fuel oil is prohibited because of the hazards
46
involved. But even where that operation is permitted the oil would have to be
pumped out of the tanks. In the case of a ship under arrest the need to remove
oil would be likely to occur at a time when pumps are not in operation and
when no engine-room personnel are available. The oil would have to be
pumped into a barge or land tanker, and the cost of the operation would have to
be paid for. The quantity of oil might be too small to justify the cost of removing
it. Furthermore, if the oil were removed from the ship it would be likely to
attract import duty. On the other hand, that oil will realise the current market
price if it is sold in the ship ... It is the practice of the Admiralty Marshal to
account separately for the proceeds of fuel and lubricating oil sold with the ship
because the brokers are entitled to commission on the price of the ship, but not
on the price of the oil. (per Sheen J. at 535)
15.6. Effect of a judicial sale
purchaser obtains a clean title, free of all liens44
all claims to be brought against the proceeds of the sale and not the res
The Acrux [1962] 1 Lloyd’s Rep. 405:
The title given by such process [a sale by the Admiralty Marshal] is a valid title
and must not be disturbed by those who have knowledge or who may receive
knowledge of the proceedings in this Court. So far as all the claimants against
this ship before her arrest are concerned, their claims are now against the fund
in this Court and not against the ship properly sold to an innocent purchaser
free of encumbrances. Were such a clean title as given by this Court to be
challenged or disturbed, the innocent purchaser would be gravely prejudiced.
Not only that, but as a general proposition the maritime interests of the world
would suffer. Were it to become established, contrary to general maritime law,
that a proper sale of a ship by a competent Court did not give a clean title, those
whose business it is to make advances of money in their various ways to enable
ships to pursue their lawful occasions would be prejudiced in all cases where it
became necessary to sell the ship under proper process of any competent Court.
It would be prejudiced for this reason, that no innocent purchaser would be
prepared to pay the full market price for the ship, and the resultant fund, if the
ship were sold, would be minimised and not represent her true value. (per
Hewson J. at 409)
© Associate Professor Dr Stephen Girvin

3 February 2004.
44 See The Cerro Colorado [1993] 1 Lloyd’s Rep. 58, followed by the Federal Court of
Australia in Readhead v. Admiralty Marshal 87 F.C.R. 229 (per Ryan J.).

Admiralty Procedure

Enviado por

Dados do documento

Descrição original:

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Admiralty Procedure

Enviado por

Direitos autorais:

Formatos disponíveis

Faculty of Law

ADMIRALTY LAW AND PRACTICE 2003-2004

· Rules of Court, r. 5, Order 701 (Admiralty Proceedings)2

You are expected to have read all the cases marked *

Claims, available in full from www.lcd.gov.uk.

C.2. United Kingdom

(2) FURTHER READING

U.K. (i.e. as implemented by the CPR Part 61).

 Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1544-1546

(2) Issue of a writ5

 Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1546-1551

· Toh Kian Sing, Admiralty Law & Practice (1998), 139-142

2.1. The prescribed form

 Ord. 70, r. 2(1): Form 155 (claims in rem)6

The Bolbina [1994] 1 S.L.R. 554:

In this admiralty action in rem the plaintiffs claim to be owners of cargo

see previous references – and dismissed.

· not necessary to name the parties to an action in rem

There is undoubtedly an old practice in the Admiralty Court of great value

2.2. The claim

Endorsement on writ (O. 6, r. 2)

2. —(1) Before a writ is issued, it must be endorsed —

There then follows a list of 19 addresses of plaintiffs without any indication as

2.3. Period of validity

 Ord. 70, r. 2(4): 12 months, beginning with the date of issue

Duration and renewal of writ (O. 6, r. 4)

11 This is in substantially the same terms as O. 70, r. 6(2) in Singapore.

*The Antares V [2002] 1 S.L.R. 443

2.4. Amendments of writs

· changes of ownership/name: O. 20, r. 5(3)-(5)

Amendment of writ or pleading with leave (O. 20, r. 5)

*The Pacific Wisdom [1998] 3 S.L.R. 705 (C.A.)

(3) Service of a writ in rem14

 Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1561-1563

· Toh Kian Sing, Admiralty Law & Practice (1998), 143-146

3.2. Deemed service

 Ord. 70, r. 7(2) + Ord. 10, r. 1(2)

General provisions (O. 10, r. 1)

*The Fierbinti [1994] 3 S.L.R. 864 (C.A.):

into court: O. 70, r. 7(1)(a)(b).

3.3. Service within the jurisdiction

3.4. Service: on any property

 O. 70, r. 7(3)-(5) 16 + Form 159

3.5. Service: on a ship

 Ord. 70, r. 10(1)

· O. 2, r. 1: court discretion to cure minor irregularities

Non-compliance with Rules (O. 2, r. 1)

1. —(1) Where, in beginning or purporting to begin any proceedings or at any

3.6. Service: on cargo and freight

3.6.1. WHERE THE CARGO IS ON THE SHIP

3.6.2. WHERE THE CARGO HAS BEEN LANDED OR TRANSSHIPPED

· O. 70, r. 10(2) + O. 70, r. 7(1)(a)

3.7. Service: property already sold by the Sheriff

The Montrosa [1917] P. 1:

· but not where the res has been privately sold17

3.8. Service: caveat against arrest?

· O. 70, r. 7(5) + O. 70, r. 1(2)

3.9. Service: after amendments

3.10. Effect of actual service

· O. 10, r. 1(4) + O. 70, r. 2(5): memorandum of service

General provisions (O. 10, r. 1)

(4) Where a writ is duly served on a defendant otherwise than by virtue of

17 See The Optima (1905) 10 Asp. M.L.C. 147.

Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1544-1546

Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1546-1551

Ord. 70, r. 2(1): Form 155 (claims in rem)6

Ord. 70, r. 2(4): 12 months, beginning with the date of issue

Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1561-1563

Ord. 70, r. 7(2) + Ord. 10, r. 1(2)

O. 70, r. 7(3)-(5) 16 + Form 159

Ord. 70, r. 10(1)

O. 70, r. 4(1) + Form 156

O. 70, r. 4(2)(a) + O. 70, r. 4(3)(6)(7) + Form 157

O. 70, r. 1(2) + O.70, r. 5 + Form 158

O. 70, r. 14 + Form 163

Jeffrey Pinsler (ed.), Singapore Court Practice 2003 (2003), 1571-1572

Example of a letter confirming bail: