The "Bolbina"

• Jurisdiction: Singapore
• Judgment Date: 31 December 1993
• Date: 31 December 1993
• Docket Number: Admiralty in Rem No 618 of 1989
• Court: High Court (Singapore)

The “Bolbina”

[1993] SGHC 322

G P Selvam JC

Admiralty in Rem No 618 of 1989

High Court

Admiralty and Shipping– Admiralty jurisdiction and arrest–Action in rem–Sister-ship action–Statutory lien–Effect of entry of appearance for one of the vessels named in writ–Whether another vessel named in writ may be arrested where no security given for claim–Effect of change of ownership of arrested vessel on statutory lien–Section 4 (4) High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed)

The plaintiffs, alleged owners of cargo shipped on board the Fierbinti,issued a writ against 19 ships but did not serve it. The defendants' insurers (“the UK P & I Club”) appointed solicitors to accept service of the writ. The writ was duly served and appearance was entered “for the owners of the ship or vessel Fierbinti”. As the UK P & I Club initially assured the plaintiffs that it would provide a letter of undertaking, no arrest was effected. However, none was forthcoming, so the plaintiffs arrested the Mehedinti, one of the 19 ships named in the writ. The intervener, Romline, obtained leave of court to intervene on the ground that they were the owners of the Mehedinti at the time the writ was served. Romline entered an appearance and applied to set aside the warrant of arrest and certain other ancillary reliefs on the grounds that: (a) the court's admiralty jurisdiction could not be invoked against the Mehedinti when admiralty jurisdiction had already been invoked against the Fierbinti;and (b) there was no valid in rem writ nor action against the Mehedinti at the time of her arrest.

Held, dismissing the intervener's application:

(1) When the writ in rem was served and the owner provided security and entered an appearance, the proceedings at all times remained in personam. When the writ in rem was served on the ship and the warrant was executed and there was no appearance, the plaintiff proceeded in default to sell off the ship to satisfy claims and this was the true action in rem.When the writ in rem was served on the ship and the ship was arrested and the owners entered an appearance but did not provide bail or other personam security, this resulted in a mixed action in rem and in personam: at [13].

(2) Under s 4 (4) of the High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed), the issue of the writ created a statutory lien and protected it from any change of ownership thereafter even though the writ had not been served. In contrast, invocation of the jurisdiction in rem was accomplished by the arrest of the ship. Service alone without arrest kept the matter in limbo. Once a statutory lien was created it was not extinguished as long as the instrument of its creation, the writ in rem, was in force. Service of the writ or an appearance gratis could not extinguish it because the right of arrest remained alive: at [14], [15] and [18].

(3) The principle that a statutory lien was created when a writ in rem was issued when applied to a plural writ or sister-ship action meant that the lien attached to each and every ship named in the writ subject to the qualification that once the plaintiff arrested one ship he must, if called upon, strike out the names of all the other ships. The plaintiffs had the right of choice of the ship to be proceeded against. If the defendants provided security, he had the choice of the ship whose name remained in the writ. The defendants who did not provide security could not decide, by entering an appearance or otherwise, which ship the plaintiffs must proceed to arrest: at [21].

(4) The plaintiffs acquired a statutory lien against the 19 ships named in the writ on the date of issue of the writ, provided they were all owned by the defendants on that date. The Mehidinti was owned by the defendants when the writ was issued, and the statutory lien created was not lost or extinguished by her change of ownership. When the vessel was arrested, the service became deemed service on her. The appearance, an in personam act, had no effect on the in rem right of arrest of a ship of the plaintiffs' choice. The defendants had no right of choice unless they provided security: at [22] to [25].

Aro Co Ltd, In re [1979] Ch 613 (folld)

August Eighth, The [1983-1984] SLR (R) 1; [1982-1983] SLR 32 (refd)

Banco, The [1971] P 137 (folld)

Berny, The [1979] QB 80 (folld)

Burns, The [1907] P 137 (refd)

Lloydiana, The [1983] 2 Lloyd's Rep 313 (refd)

Longford, The (1889) 14 PD 34 (refd)

Maciej Rataj, The [1992] 2 Lloyd's Rep 552 (refd)

Monica S, The [1968] P 741 (folld)

Pacific Bear, The [1979] HKLR 125 (refd)

High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed) s 4 (4) (consd);s 4 (3)

Rules of the Supreme Court 1970, The O 10 rr 1 (2), 1 (3), 2;O 70 r 7

Administration of Justice Act 1956 (c 46) (UK)

S Suresh and Andrew Chan (Allen & Gledhill) for the plaintiff

Loo Dip Seng (Ang & Partners) for the intervener.

Judgment reserved.

G P Selvam JC

The facts

1 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.

2 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...