The "Fierbinti"

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 19 May 1994
• Neutral Citation: [1994] SGCA 74
• Date: 15 October 1994
• Docket Number: Civil Appeal No 71 of 1993
• Published date: 19 September 2003
• Year: 1994
• Plaintiff Counsel: Loo Dip Seng (Ang & Pnrs)
• Citation: [1994] SGCA 74
• Defendant Counsel: Suresh Surenthiraraj and Andrew Chan (Allen & Gledhill)
• Court: Court of Appeal (Singapore)
• Subject Matter: When in rem jurisdiction of court is invoked,O 10 r 1 & O 70 r 7 Rules of the Supreme Court,Arrest of ship after 12 months,Action in rem,Admiralty jurisdiction and arrest,Expiry,Service deemed to have been effected under O 10 r 1 Rules of the Supreme Court,Failure to actually serve writ within 12 months,Whether in rem jurisdiction of court invoked by deemed service,Writ in rem,Admiralty and Shipping,Whether court still had jurisdiction in rem in the circumstances O 6 r 4, O 10 r 1 & O 70 r 7 Rules of the Supreme Court,Deemed service

The respondents, who are the plaintiffs in this action, were owners of a cargo of raisin lately laden on board the ship Fierbinti. On 2 December 1989, they took out an admiralty writ in rem against the owners of or other persons interested in 19 ships or vessels named therein, including the ship Fierbinti. The claim endorsed on the writ was for loss and damage to the cargo carried on board the Fierbinti under bills of lading dated September/October 1988. After the writ was issued, it was not served on any of the 19 ships. During the period between December 1989 and August 1990, discussions took place between the respondents and the defendants` insurers, United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Ltd (the club) as to the appointment of solicitors for the defendants to accept service of process and provision of security for the claim so as to avoid an arrest of any of the ships named in the writ. On 4 September 1990, the club informed the respondents` solicitors that the club would provide security for the claim. Following that, negotiations between the respondents and the appellants` solicitors as to the wording and quantum of the security took place. On 10 November 1990, the appellants` solicitors confirmed that security would be provided and asked the respondents` solicitors not to proceed with any arrest. On 12 November 1990, the writ was served on the defendants` solicitors with the names of all the 19 ships thereon remaining intact. On 7 December 1990, the defendants` solicitors entered an appearance for `the owners of the ship or vessel Fierbinti`. The club and the respondents then entered into prolonged and active negotiations which lasted for a period of more than two years. Unfortunately, these negotiations were brought to an abrupt end on 1 March 1993 or thereabouts when the respondents` solicitors were informed by the club`s solicitors that no security would, after all, be provided. The respondents` solicitors thereupon made known to the solicitors for the club that they would proceed to arrest any of the ships named in the writ which happened first to come within the jurisdiction. On 5 May 1993, the respondents caused to be issued a warrant of arrest, and on the same day the Mehedinti, one of the ships named in the writ, was arrested.

In the meanwhile, since the issue of the writ, there had been a change in the ownership of the Mehedinti. In May or June 1990, Romline SA Shipping Co, the appellants, became the owners of that ship. Accordingly, soon after the arrest, on 26 May 1993, they obtained leave to intervene in the action on the ground that they were at the time of service of the writ the owners of the Mehedinti, although they were not the owners at the time the writ was issued. Leave was accordingly given and they entered an appearance. Thereafter, an application was made for an order to set aside the warrant of arrest and for consequential reliefs. On 5 June 1993, the application was heard before the assistant registrar, and at the conclusion of the hearing he set aside the arrest. The respondents appealed to a judge in chambers and the appeal was heard before GP Selvam JC (as he then was). The learned judicial commissioner in a reserved judgment, reported in [1994] 1 SLR 554 , allowed the appeal and set aside the order of the assistant registrar.

Judgment below

The decision of the learned judicial commissioner may be summarized as follows. The issue of a writ in rem under s 4(4) of the High Court (Admiralty Jurisdiction) Act (Cap 123) creates a statutory lien on all the ships named in the writ. However, the creation of a statutory lien is conceptually different from the invocation of the admiralty jurisdiction in rem. In order to invoke the jurisdiction in rem, the writ must either be served on the res or be deemed to be served under O 10 r 1(2) read with O 70 r 7(2) of the Rules of the Supreme Court 1990 (the RSC) and the warrant of arrest of the res must have been executed. In other words, invocation of the jurisdiction in rem is accomplished by the arrest of the ship, service alone being only a step, albeit an important one, towards it. Although one writ may be issued against more than one ship, it is settled law that only one ship may be arrested in respect of the claim. Once the plaintiff arrests one ship he must strike out the names of all the other ships named in the writ. The choice of the ship is with the plaintiff. The defendant cannot, by entering an appearance as an owner of a particular ship, decide the choice of the ship against which the plaintiff is treated as having invoked the in rem jurisdiction; otherwise, the defendant may choose to enter appearance as owner of a particular ship and then keep her out of the jurisdiction indefinitely. The learned judicial commissioner concluded thus, at p 561:

The plaintiff acquired a statutory lien against the 19 ships named in the writ provided they were all under the ownership of the defendants on the date of the issue of the writ. It is admitted that the Mehedinti was owned by the defendants when the writ was issued. The statutory lien was not lost or extinguished by the alleged change of ownership of the Mehedinti.

The deemed service of the writ acquired the nature of service on the defendants but the question as to which service was deemed service remained open as long as the right of arrest was not exhausted. When the Mehedinti was arrested the service became deemed service on the Mehedinti.

The appearance, being an act in personam, had no effect on the in rem right of arrest of a ship of the plaintiffs` choice which they rightly invoked against the Mehedinti.

In any event as the defendants had no right of choice unless they provided security the purported choice of the Fierbinti was ineffective and should be disregarded.

There is no question of the writ expiring when the warrant was applied for as it was deemed served under O 10 r 2.

The appellants` case

Against the decision of the learned judicial commissioner, this appeal has been brought. Counsel for the appellants contended that the in rem admiralty jurisdiction is invoked either when the writ is served on the vessel or when the warrant of arrest is executed on the vessel. He argued that, by virtue of O 70 r 7(2), the writ was deemed to have been served and such service had the same effect and consequence as service on the res. Further, if a writ names more than one vessel, the writ is deemed to have been served on the vessel for which the solicitors accepted service and entered an appearance. Once the writ is deemed to have been so served, the in rem jurisdiction is invoked against that particular vessel. Reverting to the case at hand, he argued that the solicitors accepted service of the writ and entered an appearance on behalf of the owners of the Fierbinti, and at that point in time the in rem jurisdiction was invoked against the Fierbinti. That being so, only the Fierbinti could be arrested, and the arrest of Mehedinti was wrongful. Alternatively, counsel for the appellants contended that if entering an appearance only had an effect in personam, the in rem writ had already expired as it was not served on the res within 12 months; the writ was not served at any time on any of the 19 ships. Accordingly, at the time of the arrest, the writ had already expired. Consequently, the arrest was wrongful, as there had been no timely invocation of the in rem jurisdiction before the expiry of the writ.

Further and in the alternative, counsel lastly contended that the arrest ought to be set aside because the respondents failed to disclose several material facts in the affidavit leading to the issue of the warrant of arrest. In particular, the respondents ought to have mentioned, which they did not, that the writ had already been served on the solicitors for the defendant owners, that they had entered an appearance for the owners of the Fierbinti, and that some 31/2 years had elapsed since the writ was issued and there was no renewal of the writ.

The respondents` case

Counsel for the respondents contended that a clear distinction should be drawn between service on the defendants as owners of the vessel and service on the res itself. The former is an in personam step which has no consequence on the in rem aspect of the admiralty proceedings. That was supported by the form in which the appellants entered their appearance: the appearance was entered on behalf of `the owners of the Fierbinti`, and not on behalf of the res itself. The respondents ought not to have been straitjacketed by the defendants` solicitors entering an appearance for the owners of a particular ship. The choice was with the respondents and they were entitled to arrest a ship, which they did, other than that the owners of which had entered an appearance. Counsel further submitted that once the writ is deemed to have been served under O 70 r 7(2), the requirement of service on the res is dispensed with. In other words, O 70 r 7(2) operates to dispense with service of the writ on the res, and accordingly, it is not necessary to serve the writ on the res. Furthermore, once the writ is served within the validity period, whether by way of actual service on the res or deemed service on the defendants, the question of expiry of the writ becomes spent. In the premises, the respondents were not prevented from arresting the offending ship or any of the sister ships merely because 12 months had elapsed since the issuance of the writ.

Counsel for the respondents further contended that in rem jurisdiction was invoked only when the warrant of arrest was executed. It was, however, conceded that service on the res itself would also invoke the in rem jurisdiction. In other words, the respondents have the choice of the ship for the purpose of an in rem security until they have made an unequivocal selection by either serving the writ on one particular ship or arresting it. In support of his...