The "Daien Maru No 18"

JudgeL P Thean J
Judgment Date19 December 1984
Neutral Citation[1984] SGHC 43
Citation[1984] SGHC 43
Date19 December 1984
Subject MatterAction in rem,Admiralty and Shipping,Maritime lien attaching to or travelling with ship,Arrest of vessel by plaintiffs,Whether right of arrest lost because of judgment,Application to discharge warrant of arrest,Maritime lien of plaintiffs on vessel,Admiralty jurisdiction and arrest,Claim for wages, subsistence and expenses by crew,Judgment obtained by crew as plaintiffs
Docket NumberAdmiralty in Rem No 199 of 1984
Defendant CounselL Pereira (L Pereira & Netto),VKS Narayanan (VKS Naruyanan)
CourtHigh Court (Singapore)
Published date19 September 2003

This is an application by the defendants by way of notice of motion to discharge a warrant of arrest executed on the vessel, `Daien Maru No 18` (the vessel) on 25 July 1984 at the instance of the plaintiffs, who initiated this action in rem. The circumstances leading to the arrest of the vessel were rather unusual and arose in this way. On 20 March 1984, the defendants, who are the owners of the vessel, commenced an action in remin Admiralty Suit No 174 of 1984 (the Owners` Suit) against the charterers of the vessel claiming, inter alia ,

possession of the vessel and arrested the vessel on 20 March 1984.
On 26 March 1984 the plaintiffs who were members of the crew on board the vessel filed a caveat against release of the vessel and on 30 March 1984 commenced this action in remagainst the defendants claiming for wages earned by them, subsistence money and for expenses for their return home. The defendants entered an unconditional appearance and the plaintiffs on 10 May 1984 applied under O 14 r 3 of the Rules of the Supreme Court for leave to enter judgment against the defendants. The application was heard and allowed by the learned deputy registrar, and judgment for the amount claimed was entered against the defendants on 25 May 1984. On 29 May 1984 the defendants as the plaintiffs in the owner`s suit filed an instrument of release for the release of the vessel, but the caveators in that suit (including the plaintiffs) refused to withdraw their caveats. Thereupon the defendants as the owners applied by notice of motion in the owner`s suit for an order for release of the vessel. The application was heard by Abdul Wahab Ghows J on 15 June 1984 and he made an order, inter alia ,

for the release of the vessel.
After the release the plaintiffs arrested the vessel in this suit on 15 July 1984.

In the application before me Mr Pereira for the defendants contended that the plaintiffs having obtained final judgment against the defendants for the full amount claimed had lost the right of arrest, as the plaintiffs` cause of action had merged in the judgment, and in support relied on the decision of Mocatta J in The Alletta [1974] 1 Lloyd`s Rep R 40.
That decision is the mainstay of his argument.

In The Alletta the vessel, `Alletta`, belonging to the first defendant collided with the plaintiffs vessel, `England`, in the Thames on 20 December 1963.
On 21 April 1964 the plaintiff took out a writ in remagainst the first defendant, who were then the owners of the `Alletta` and the writ was served on their solicitors who undertook to accept service and entered an appearance. The action was tried before Hewson J who gave judgment on 21 October 1965, holding the plaintiff one-fifth to blame and the first defendants four-fifths to blame. An appeal against that judgment by the plaintiff was dismissed by the Court of Appeal. On 20 June 1973 (about ten years after the collision and nine years after the issue of the writ in rem) the `Alletta` was sold by the first defendants to the second defendants, who at that time had no knowledge of any actual or potential claim by the plaintiff against the owners of the `Alletta`. On 9 July 1973 on an ex parte application Mocatta J made an order that a war rant of arrest be issued against the `Alletta`, who by then had changed her name to `Tarmac I`. The warrant, however, was not executed on the `Alletta` upon certain undertakings or security procured by underwriters of the first defendants, who were under an obligation to indemnity the second defendants. The second defendants as the then owners applied for, inter alia , an order that the warrant of arrest be discharged and/or a declaration that plaintiffs were not at the date of the issue of the warrant entitled to arrest the vessel.

Mocatta J on the basis of the decision of Bateson J in The Point Breeze [1928] P 135 held that the `Alletta` could not be arrested after judgment had been pronounced.
He said at p 48:

Although The Point Breezediffers from the present case in that the giving of bail was there involved, Mr Bateson J clearly thought that a warrant of arrest could not be properly served on a vessel after liability had been determined. The very slightly critical comment on what was said by Mr Bateson J by Mr Roche J as they then was, in Westminster Bank v West of England England Association(1933) 46 Ll L Rep pp 104-105 in no way touches on this point. That the time for arrest is before and not after a pronouncement on liability appears from two recent cases. Thus in The Zafiro[1959] 1 Lloyd`s Rep 359 at p 367; [1960] P 1 at p 15, Mr Hewson J, after holding that the arrest of a vessel pursuant to a writ in rem issued by necessaries men was not an `execution` within the meaning of s 325 of the Companies Act 1948, said:

`... Execution, in my view, succeeds and does not precede judgment, whereas in arrest there is no existing judgment upon which to execute.`

See also, per Mr Brandon J in The Monica S 1968 P at p 773; [1967] 2 Lloyd`s Rep at p 132.

Apart from The Point Breeze (supra), none of the cases referred to by Mocatta J in his judgment have any real bearing on the point in issue before him.
In arriving at the conclusion that the `Alletta` could not be arrested after judgment, Mocatta J said he was following and adopting the reasoning of Bateson J in The Point Breeze (supra).

He said, at p 50:

I have now commented on nearly all the authorities cited to me; the few I have omitted do not seem to me to assist either party. So far as the cases go the balance of authority in my judgment strongly favours the second defendants and I am content to follow and apply the reasoning in The Point Breezewith which I respectfully agree, based as that decision was on the principles laid down by Dr Lushington in The Kalamazoo, The Wild Rangerand The Hero.

In The Point Breeze there was a collision between `Flamand`, a French ship, and the `Point Breeze`, an American ship.
The owners of the former issued a writ in remagainst the `Point Breeze` and the defendants` solicitors accepted service and gave an undertaking to put in bail. In due course a bail bond in the sum demanded by the plaintiff...

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