4.1 An Admiralty claim in rem must be commenced by a claim form1 in the prescribed form.2 The same fee is payable on issue as in the case of any other claim form. Such a claim form may only be issued where jurisdiction can properly be invoked in rem under the Senior Courts Act 1981. Where an in rem claim form has been wrongly issued the court may strike it out and have service of it set aside. However, where the issue depends upon disputed questions of fact, the claimants ought not to be forced to have the question of fact tried on an application to set aside the claim form and arrest, but it may be convenient after pleadings are closed to try the point as a preliminary issue.3
4.2 In the case of a claim within paragraphs (e) to (r) of section 20(2) of the Senior Courts Act 1981, it is only permissible to serve one in rem claim form (and serve one ship) in respect of a claim,4 even though more than one in rem claim form (against different ships) may be issued in respect of the same claim, or a claim form naming more than one ship. Thus an election has to be made at the time of service. Where a claim form has been issued naming more than one ship, immediately after service the claim form should be amended by striking out the name of all ships save for the one served.5 However where a claimant has a number of separate causes of action, for example in the case of separate deliveries of bunkers or supplies to one or more sister ships, it is permissible to split up the claim and bring separate claims against different ships in respect of each claim.6
4.3 Although section 21(8) of the Senior Courts Act 1981 prevents the service of an in rem claim form and arrest of more than one ship in respect of the same claim, where a ship is served with an in rem claim form and arrested in the mistaken belief that it was a ship against which a claim in rem can be brought, this will not bar a subsequent claim against and arrest of ship against which a claim can properly be brought.7 However, the affidavit to lead warrant of arrest should deal fully with the first arrest, the circumstances leading to it and explaining why it is no bar to the arrest now sought.
4.4 It has long been the practice in the Admiralty Court for parties to be described rather than named, and this practice continues so that it is permissible to describe the claimants without naming them e.g. “The owners of the ship ‘X’” or “The Owners of the cargo lately laden on board the ship ‘Y’”.8 It is then open to the defendant to seek particulars as to the real identity of the claimants.9
4.5 The defendants to an in rem claim must be described.10 They will normally be described as “the owners or demise charterers of the ship ‘Y’”, unless it is known that the ship either is, or is not, under demise charter in which case the claim form can be issued simply against “the owners of the ship ‘Y’” or “the demise charterers of the ship ‘Y’” as the case may be.
4.6 In ownership claims, it is usual to describe the defendants as “all other persons claiming to be interested in the ship ‘Y’” and in claims between co-owners the defendants are described as “the remaining owners of the ship ‘Y’”.11 In Limitation claims, the claimant and at least one defendant must be named in the claim form. All other defendants may be described.12
4.7 If particulars of claim are not contained in or served with the claim form, they must be served within 75 days of service of the in rem claim form.13 If, as is almost always the case in practice, the claim form is served without full particulars of claim, it should contain a concise statement of the nature of the claim and specify the remedy which the claimant seeks.14 Special rules apply to statements of case in collision claims15 and limitation claims.16 Under the former practice, in The “Tuyuti”17 Sheen J criticised the typically vague general endorsement that is often found on claim forms in respect of cargo claims. He said18:
“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.
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. The relevant part of that rule requires that the writ must be indorsed 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 practice of a 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.”
4.8 In The “Jangmi”19 Sheen J observed that despite his comments in The “Tuyuti” endorsements in the form he criticised continued to be used. He affirmed the views he had previously expressed and said20:
“I accept the submission made by Mr Malins that the rules do not require a general endorsement to be a précis of the statement of claim. In Sterman v E. W. & W. J. Moore Ltd21 Lord Justice Salmon said22: ‘ . . . I would emphasise that it is highly desirable that the endorsement to the writ should plainly set out the cause of action on which the plaintiff relies.’ That was said in relation to a claim for damages for negligence causing personal injuries. The name of the plaintiff appeared on the writ and also the name of the company alleged to be liable. But the instant action is an action in rem in which a ship might have been arrested. In accordance with established practice it is unnecessary to name the plaintiffs. Before the writ could be served the ship against which the action was commenced had been sold by the owners who were allegedly liable in personam. It is not unreal to contemplate the possibility that a ship could be sold more than once between the issue and service of a writ. It seems to me that the endorsement of the writ should give sufficient information to enable the recipient to identify the occasion when the breach of contract is alleged to have occurred. The plaintiffs’ solicitors should have no difficulty in identifying the voyage on which the ship was engaged when the cargo was damaged and the approximate date of that voyage. They should give these elementary particulars.”
4.9 The prompt issue of an in rem claim form is of utmost importance in a case where the claimant’s claim is liable to be defeated by a change of ownership23 as once the in rem claim form has been issued the claimant’s statutory right to claim in rem is crystallised and cannot be defeated by a subsequent change in ownership, even if the claim form has not been served.24
4.10 The Court permits a claim form to be issued even when the Registry is closed. This is done by faxing a suitably endorsed claim form to the Court on a dedicated fax line.25
4.11 Although the in rem claim form is only valid for service for an initial period of 12 months from and including the date of issue,26 the court will readily renew the claim form where there has been no opportunity for service within the initial 12 months period of validity. The principles which are applicable upon an application for renewal were set out by Brandon J in The “Berny“27 where he said28:
“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 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.
There are, as will be apparent, three main points about this approach to the matter. First, the approach involves dealing with renewal on an overall basis, rather than a ship by ship basis. In my view, since there is only one claim against one defendant, although a number of ships owned by the latter are proceeded against in respect of it, an overall basis, and not a ship by ship basis, is the right one to use. Secondly, the approach involves considering not merely whether a ship has been, or will be, present at a place within the jurisdiction during the currency of the writ, but also whether the length or other circumstances of her visit to or stay at such place were or will be such as to afford a reasonable opportunity for effecting service on her and arresting her. Consideration of the latter matter, as well as the former, is, in my view, necessary in order to do justice to the plaintiff. Thirdly, the approach takes account of the plaintiff’s right to obtain full security, or as full security as possible, for his claim. Allowance for that right is also, in my view, necessary in order to do justice to the plaintiff.
There is one other point to which I would draw attention. In referring, in the three alternative matters to be established which I have set out above, to the presence of a ship within the jurisdiction during the currency of the writ, I have used the expression ‘at a place within the jurisdiction’ rather than ‘at a port within the jurisdiction’. This is because it seems to me that the essential question is not whether the ship has been, or will be, at a port or some other place, but whether, whatever the nature of the place, there is a reasonable opportunity to effect service on her and arrest her there.”
4.12 Apart from the usual powers in relation to the amendment of claim forms, the court has jurisdiction to add a defendant in a claim in rem,29 and power to grant leave to amend a claim form even after judgment.30
4.13 If after issue of the claim form the defendants’ ship is sold, the claim form should be amended so as to describe claim in rem as “against the ship ‘Z’ formerly ‘Y’” and to describe the defendants as “the owners of the ship ‘Y’ now named ‘Z’”.31
4.14 Where an in rem claim form is amended under CPR Part 17 after service it must be served on any defendant who has acknowledged issue or service and on any intervener, unless the court otherwise directs on an application made ex parte, and if no defendant has acknowledged service it must be re-served in the same manner as the original claim form.32 A claim form amended so as to introduce a new claim must be served in the same way as if it were an original claim form.33
4.15 Service of a claim form in rem is achieved by any of the following means:
- (i) actual service upon the property against which the claim is brought (by fixing a copy of the claim on the outside of the property in a position which may reasonably be expected to be seen)34;
- (ii) if the property to be served is in the custody of a person who will not permit access to it, by leaving a copy of the in rem claim form with that person35;
- (iii) where the property has been sold by the Marshal, by filing the in rem claim form at Court36;
- (iv) where there is a notice against arrest, on the person named in the notice as being authorised to accept service37;
- (v) on any solicitor authorised to accept service38;
- (vi) in accordance with any agreement providing for service of the proceedings39;
- (vii) in any other manner as the court may direct under CPR Part 6.15 provided that the property against which the claim is brought or part of it is within the jurisdiction of the court40;
or by the defendant acknowledging the issue of the claim form.41
4.16 An in rem claim form may not be served out of the jurisdiction, nor may an order for substituted service of an in rem claim form be made.42
4.17 An in rem claim form may be served by anyone provided service is effected in the correct manner. It does not need to be served by the Admiralty Marshal.43 Under the CPR it must be served by the claimant unless where the property is also to be arrested, or is already under arrest in another claim, the claimant requests that the Admiralty Marshal or his substitute serve the in rem claim form.44
4.18 The original claim form or a copy of it has to be fixed on the outside of the property proceeded against in a position which may reasonably be expected to be seen.45 It is not valid service to purport to serve the claim form on the master on board the ship.46 Where, however, there is some minor irregularity in service, such as affixing the original claim form on the wheel in the wheelhouse of a motor yacht instead of the outside of the superstructure, and leaving a copy there, this might not be fatal,47 but possibly not where the copy of the claim form was affixed to the hull of a vessel in drydock which may then sail with the claim form below the waterline.48 Furthermore, it is possible for subsequent conduct on the part of the defendant to amount to a waiver of any irregularity in service.49
4.19 The original claim form or a copy of it has to be fixed on the outside of the property proceeded against in a position which may reasonably be expected to be seen.50 Where the cargo against which the claim is brought51 remains on board a ship, this may not be possible in which case service on the master would probably be appropriate.52 Where the cargo has been landed or transshipped, service may be effected by fixing the original claim form or a copy of it on the cargo,53 or if the person in whose custody the cargo is will not permit access, leaving a copy of the claim form with that person.54
4.20 Service on freight is effected by service on the cargo in respect of which the freight is payable, or on the ship in which that cargo was carried.55 Freight cannot be served separate from the ship or cargo and service on a clerk in the employment of the shipowners in respect of freight already paid is not good service.56
4.21 Where the property proceeded against has been sold by the Admiralty Marshal, the in rem claim form is filed in the Admiralty and Commercial Registry and it is deemed to have been duly served on the date of filing.57 Proceedings can however only be brought against the proceeds of property which has been sold when they are in the hands of the court,58 and so a claim in rem cannot be brought against a sum paid as compensation for the loss of a ship during requisition.59
4.22 Where there is a notice against arrest in force in respect of the property proceeded against, the in rem claim form may be served on the person named in the notice as being authorised to accept service.60
4.23 Although the normal provisions of CPR Part 12 apply to an Admiralty claim in personam, so that the claimant may simply enter judgment against a defendant in default of acknowledgment of service or defence, this procedure is not available in an Admiralty claim in rem.61 In an Admiralty claim in rem, judgment in default may only be obtained upon an application for judgment in Admiralty form ADM 13 accompanied by a certificate proving proper service of the claim form and evidence proving the claim to the satisfaction of the court.62 Thus judgment will not be given unless the claimant is able to satisfy the court that the claim is well founded and that he is therefore entitled to judgment.
4.24 It is not a condition precedent to the obtaining of judgment in default in a claim in rem for the property proceeded against to be under arrest provided the in rem claim form has been validly served. In The “Nautik”63 Bruce J said64:
“Service of a writ in rem upon property within the jurisdiction of the Court, is notice to all persons interested in the property of the claim indorsed upon the writ. . . all that is necessary to found jurisdiction is to give formal notice to the persons interested that a claim is made against them or against their property in a court of competent jurisdiction, and that, if they do not appear to vindicate their rights, judgment may be given in their absence. . . to confer jurisdiction it is not, I think, necessary that the property, the subject-matter of a suit, should be actually in the possession of the Court or under the arrest of the Court; it is enough that it should, according to the words of Lord Chelmsford, in the case of Castrique v Imrie (LR 4 HL 414, 448), ‘be within the lawful control of the State under the authority of which the Court sits’.”
However, an application for judgment cannot be made before the time required by the Rules has elapsed.65 It should be noted that the claimants are obliged to satisfy the court on an application for judgment in default of acknowledgment of service that the court has jurisdiction in rem.66
4.25 The usual form of the judgment given on an application for judgment in default where the property against which the claim is brought is under arrest is that it be appraised and sold and the proceeds of sale be brought into court pending the determination of priorities. However, where at the time the application for judgment in default is heard there are no caveats against release entered, and no other claims pending against the property, the court may order that if at the time when the proceeds of sale are brought into court there remain no caveats or other claims, the claimant’s claim (if ascertained) be paid out of the proceeds of sale after deduction of the costs of sale and the Admiralty Marshal’s costs and expenses in connection with the arrest.
4.26 Where property is not under arrest, the form of the judgment will be the same as a default judgment in a claim in personam.
4.27 Prior to the Judicature Acts 1873 to 1875 in rem proceedings were begun by the filing of a praecipe to institute and obtaining a warrant to arrest. The praecipe was not served. It was merely filed, which led to the action being formally entered in the Court’s “cause book”. The claimant then filed a praecipe for a warrant of arrest and an affidavit in support of the claim. This usually67 led to the issue by the Court of a warrant of arrest.68 Today, although the proceedings are commenced by issue of an Admiralty in rem claim form, the in rem jurisdiction of the court is not invoked until service of that claim form upon the res69 or arrest if that takes place before formal service.70 Where the in rem claim form is not served under PD 61.3.6, but there has simply been a voluntary acknowledgment of service under CPR Part 61.3(6), then arguably the court’s jurisdiction has been invoked in personam, but not in rem.71 However, it may be that the better view is that once a claim has been brought in rem it remains in rem so that even where there has been a voluntary acknowledgment of service, the court’s jurisdiction has been invoked in rem and the claimant will be entitled to arrest and any judgment in the claim may thereafter be enforced by arrest.
4.28 The primary purpose of arrest is to obtain satisfaction of a judgment in a claim in rem. If arrest takes place prior to judgment then the property arrested stands as security for any subsequent judgment to be enforced against. If arrest takes place after judgment72 then the judgment is enforced against the property arrested. In practice, the mere threat of an arrest will often provoke the owners of the property threatened with arrest into providing voluntary security, for example, by way of a bank or insurance company guarantee, or a P&I Club letter of undertaking. However, in a case where the shipowners are domiciled in a state to which the Brussels or Lugano Conventions or Council Regulation 44/2001 applies it will be necessary actually to arrest the ship in order to establish jurisdiction, even if security is offered voluntarily, unless the shipowners also agree to English jurisdiction.73 It has also been held that shipowners submitted to the jurisdiction where they have acknowledged the issue of the claim form and put up a bail bond,74 but it is doubtful whether this was correct75 and the position is now governed by PD 61.3.11 which expressly provides that ” a defendant who files an acknowledgment of service to an in rem claim does not lose any right that he may have to dispute the jurisdiction of the court” .
4.29 Article 7 of the Arrest Convention 1952 expressly envisages a vessel being subject to arrest in a signatory state even though the parties have agreed to the exclusive jurisdiction of another court:
“(2) If the court within whose jurisdiction the ship was arrested has not jurisdiction to decide upon the merits, the bail or other security given in accordance with Article 5 to procure the release of the ship shall specifically provide that it is given in as security for the satisfaction of any judgment which may eventually be pronounced by a Court having jurisdiction so to decide [. . . ]
(3) If the parties have agreed to submit the dispute to the jurisdiction of a particular court other than that within whose jurisdiction the arrest was made or to arbitration, the court or other appropriate judicial authority within whose jurisdiction the arrest was made may fix the time within which the claimant shall bring proceedings.”
Article 7 is reflected in section 26 of the Civil Jurisdiction and Judgments Act 1982 which provides:
“(1) Where in England and Wales or Northern Ireland a court stays or dismisses Admiralty proceedings on the ground that the dispute in question should be submitted to the determination of the courts of another part of the United Kingdom or of an overseas country, the court may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest—
- (a) order that the property arrested be retained as security for the satisfaction of any award or judgment which—
- (i) is given in respect of the dispute in the legal proceedings in favour of which those proceedings are stayed or dismissed; and
- (ii) is enforceable in England and Wales or, as the case may be, in Northern Ireland; or
- (i) is given in respect of the dispute in the legal proceedings in favour of which those proceedings are stayed or dismissed; and
- (b) order that the stay or dismissal of those proceedings be conditional on the provision of equivalent security for the satisfaction of any such award or judgment.
(2) Where a court makes an order under subsection (1), it may attach such conditions to the order as it thinks fit, in particular conditions with respect to the institution or prosecution of the relevant . . . ] legal proceedings.”
On the basis of section 26 (inter alia), Hobhouse J in The “Nordglimt”76 held that under the Brussels Convention:
“it is permissible and proper that there should be an arrest of a vessel in one jurisdiction in support of a determination of the merits of a dispute by a court of competent jurisdiction in another contracting state and to provide security for the satisfaction of the judgment given by that court.”77
The “Nordglimt” remains good law under the Brussels I Regulation.78 Accordingly, it seems that where there is an existing claim pending in the courts of another Member State, a ship may be arrested in England. The English in rem proceedings will in virtually all cases be stayed. However, when ordering the stay, the Court can, under section 26 of the 1982 Act, make an order that the security be retained. Even in the absence of the Arrest Convention 1952 (in combination with Article 71 of the Regulation) there would seem to be no reason in principle why an arrest under CPR Part 61 in support of proceedings in another Member State should not be permitted under Article 31 of the Brussels I Regulation. The fact that under English domestic law an arrest under CPR Part 61.5 is not considered an interim remedy79 should not preclude it being considered to be a “protective” or “provisional” remedy within the meaning of Article 31 of the Brussels I Regulation.80
4.30 CPR Part 61.5 may also be used to arrest a vessel in circumstances where the Admiralty Court will not have jurisdiction over the substance of the claim because of the existence of an arbitration agreement.81 Article 7(3) of the Arrest Convention 1952 provides:
“If the parties have agreed to submit the dispute to the jurisdiction of a particular Court other than that within whose jurisdiction the arrest was made or to arbitration, the Court or other appropriate judicial authority within whose jurisdiction the arrest was made may fix the time within which the claimant shall bring proceedings.”
If a valid arbitration agreement exists, the in rem proceedings pursuant to which the arrest was made will be stayed under section 9 of the Arbitration Act 1996. Section 11 of the same Act provides that in the event that a stay is granted the court may order that the property arrested be retained or order that the stay be conditional upon the provision of security.82
4.31 The arrest constitutes the ship or other property as security in the hands of the court for the claim and this security cannot be defeated by the subsequent insolvency of the owner of the arrested property. In The “Cella”83 a ship was arrested in respect of a claim for repairs which did not carry a maritime lien. Subsequently the shipowners were ordered to be wound up and the liquidator claimed the proceeds of sale of the ship in the hands of the court as against the claimant. It was held by the Court of Appeal that the liquidator could not oppose payment out to the claimant. Lord Esher MR said84: “the moment that the arrest takes place, the ship is held by the Court as a security for whatever may be adjudged by it to be due to the claimant”; and Fry LJ said85: “The arrest enables the Court to keep the property as security to answer the judgment, and unaffected by chance events which may happen between the arrest and the judgment”; and Lopes LJ said86: “From the moment of the arrest the ship is held by the Court to abide the result in 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.”
4.32 Where a ship is arrested when it ought not to have been the shipowners may suffer substantial loss. The question therefore arises whether they may recover that loss from the arresting party who has improperly detained their ship. The answer to that question is that they may only do so where the arresting party is guilty of mala fides or crassa negligentia. In The “Evangelismos”87 Mr Pemberton Leigh giving the judgment of the Privy Council said88:
“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 Admiralty giving damages, as in an action brought at common law damages may be obtained. . . . The real question in this case. . . comes to this: is there or is there not, reason to say, that the action was so unwarrantably 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?”
4.33 On the facts of the case damages were not awarded because the claimant had acted bona fide with probable cause, and without crassa negligentia, having had reason to suspect that the defendant’s vessel was one which had run his own vessel down, and got away in the night. Six years after the decision in The “Evangelismos”, Dr Lushington said:
“It is a well-established rule in this Court that damages for arresting a ship are not given, except in cases where arrest has been made in bad faith, or with crass negligence.”89
The rule as stated in The “Evangelismos” and The “Volant” was affirmed subsequently by the Privy Council in The “Strathnaver”90 where no damages were payable because there was “simply an error in judgment in bringing the suit”91 and “though the case was certainly a very strong one, inasmuch as the wrong vessel had been seized, that in the absence of proof of mala fides or malicious negligence, they ought not to give damages against the parties arresting the ship”.92 More recently, although there have been suggestions that the rule ought to be changed,93 the test of mala fides or crassa negligentia continues to be regarded by English Courts and arbitral tribunals as the applicable test.94 In The “Kommunar” (No. 3), Colman J said the following:
“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. The reference at the end of the passage from the judgment just cited to there being circumstances which afforded grounds for believing that the arrested ship was the one that had been in collision suggests that if on the evidence there is a genuine but understandable mistake as to the identity of the vessel, that will not amount to crassa negligentia. Taking the judgment as a whole, it would not appear that mere absence of reasonable care to ascertain entitlement to arrest the vessel would necessarily amount to crassa negligentia in the sense there used.”
4.34 However, there are some cases which do not easily fit within either of The “Evangelismos” categories. In The “Cathcart”95 damages were awarded where a claim was brought by the transferee of a mortgage before the debt was due. Dr Lushington said96:
“the plaintiffs had full knowledge of the facts, and must be held to the legal effect of their own engagements. If they had regarded the terms of those engagements, they would have known they had no right to arrest the vessel. Add to this, the arrest of the vessel by the plaintiffs was made on the eve of commencing a profitable voyage, and after a decision of the magistrate adverse to their claim, and the plaintiffs have attempted to support the proceeding by making charges of fraud against the defendant, which they have quite failed to prove.”
4.35 Where the claim is made out then nominal damages will be awarded without actual proof of loss. In The “Walter D. Wallet”97 the President, Sir Francis Jeune, said98: “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. .. “
4.36 The bare fact of the proceedings being discontinued does not entitle the defendant to damages. It is still necessary in such circumstances for him to show that the arrest of the ship was malicious, or the result of gross negligence.99 Although in The “Cheshire Witch”100 Dr Lushington held the claimant liable in damages where, his substantive claim in proceedings in rem having been dismissed, he applied for the arrest to continue for 12 days to give him time to consider an appeal, but on the 13th day he released the vessel from arrest.
4.37 In The “Margaret Jane”101 Sir Robert Phillimore held that, where a receiver of wreck had valued a salved vessel at £746 and salvors thereafter commenced proceedings in the Admiralty Court for £2,500, applying for an appraisement of the vessel but subsequently abandoning the claim, they would be held liable in damages. He said102:
“In this case there is certainly no mala fides, and the salvage of the derelict vessel (for such it was) appears to have been one of considerable merit, and it has happened that the officer of the Court has appraised vessels at a higher value than the Receiver of wreck. I think it would be harsh, therefore, to say that when the commission for the appraisement in this case was taken out on the 18th of December that the salvors were guilty of crassa negligentia; but I think they must have been aware within a short period after the time of taking out that appraisement that the value fixed by the Receiver of wreck was substantially correct, and I shall condemn them in costs altogether, and in damages from the 22nd of December to the time when this vessel might have been released, namely, the 14th of January.”
4.39 The same rule applies to a defendant seeking to arrest in support of a counterclaim. In The “Gniezno”105 Brandon J held that a counterclaim could only be raised by a proceeding recognised or directed by rules of court, which normally required a counterclaim to be raised by service of a defence and counterclaim after service of the statement of claim. However he recognised106 that one exceptional case where a counterclaim was raised at an earlier stage in the claim was where the defendant sought to obtain security by arrest of the claimant’s ship. On the previous wording of RSC Order 75 rule 5 it seemed clear that both the claimant and the defendant may arrest once the claim form has been issued and it was not necessary for the defendant to wait until after he had served a defence and counterclaim.107 However, on the wording of CPR Part 61.5(1), it would appear that a counterclaiming defendant now needs to issue his own claim in rem claim form in order to be entitled to apply for a warrant of arrest.
4.40 Arrest is now possible after judgment has been given in a claim in rem.108 In The “Despina GK“109 an arrest in support of a foreign judgment in rem was permitted. The wording of CPR 61.5(1) does not restrict the provision to in rem judgment creditors. It would thus appear to allow arrest as a means of satisfying in personam judgment creditors as well as in rem judgment creditors.110 If there has been an acknowledgment of service in the action giving rise to the judgment which is sought to be enforced then the claim is also in personam and a judgment may of course also be enforced by writ of fi. fa.111
4.41 Where there is a treaty or convention in force by which the United Kingdom has undertaken to minimise the possibility of arrest of ships of another state a notice in prescribed form112 must be served on a consular officer at the consular office of that state in London or at the port at which it is intended to cause the ship to be arrested and a copy of that notice is exhibited to the declaration filed to obtain the arrest warrant.113
4.42 A person who wishes to prevent the arrest of property may have a caution against arrest114 entered in a register115 maintained by the Admiralty and Commercial Registry in London. To obtain the entry of a caution against arrest, the person must file a notice in the prescribed form,116 together with an undertaking to file an acknowledgement of service and give sufficient security to satisfy the claim with interest and costs.117 Such an undertaking ought not to be given without proper consideration of the consequences because it is an undertaking to the court punishable for breach as any other undertaking to the court i.e. by contempt proceedings. The filing of a caution against arrest is not treated as a submission to the jurisdiction of the court.118
4.43 A caution against arrest is valid for 12 months from the date on which it is entered in the register but it may be renewed for a further 12 months by filing a further request.119 The undertaking to give bail contained in the caution cannot be withdrawn by subsequently offering the ship for arrest.120 Thus where an undertaking had been given by solicitors, but their clients had subsequently been unable to arrange bail they were personally liable to give bail. In fact, upon the refusal of the defendant to provide bail, the vessel had been arrested by the claimant reserving all rights, but the appraised value was less than the amount of the bail for which the undertaking had been given, the vessel’s value having fallen. An undertaking to give bail is not affected by subsequent sale of the ship,121 nor will a solicitor be discharged from his personal undertaking where his client subsequently repudiates his authority.122 The old rules provided that a caveat could be withdrawn at any time prior to the commencement of an in rem claim against the property referred to in the caveat. The procedure for withdrawal was by application to a judge on “special grounds”.123 Neither CPR 6.1 nor the practice direction makes provision for such an application. It is however submitted that the Court would nevertheless entertain such an application under its inherent jurisdiction if a good reason were shown justifying the request to withdraw the caution.124
4.44 Prior to the issue of an arrest warrant a search has to be made in the Register kept in the Admiralty and Commercial Registry in London in order to see if there are any cautions against arrest in force with respect to the property intended to be arrested.125 Although the existence of a caution against arrest does not prevent the arrest of the property,126 the court may, if it considers it appropriate to do so, order that the arrest be discharged and that the party procuring the arrest notwithstanding the caution against arrest pay compensation to the owner of or other persons interested in the property arrested.127 This is a wide discretion given to the court to order compensation to be paid. It does not require the Court to make a finding that the party arresting in the face of a caution acted mala fides or crassa negligentia.
4.45 In order to obtain the issue of an arrest warrant, the party making the application must file two documents at Court: (i) an ADM4 form which contains an undertaking to pay all expenses and fees incurred by the Admiralty Marshal in relation to the arrest128; and (ii) a declaration in the prescribed form containing the particulars required by PD 18.104.22.168
4.46 The most important part of the ADM4 form is an undertaking to pay on demand the fees of the Admiralty Marshal and all expenses incurred by him in respect of the arrest and subsequent care of the property whilst under arrest. This must be given in writing and to the satisfaction of the Admiralty Marshal, or in accordance with such other arrangements as he may require.130 Where a party is dissatisfied with the conditions imposed by the Admiralty Marshal, he may apply to the Admiralty Registrar for a ruling.131
4.47 The ADM5 must be verified by a statement of truth in standard form.132 The ADM4 replaced the praecipe or notice for a warrant under the RSC; the ADM5 form replaces the previous requirement to file an affidavit in support of the application for an arrest warrant.133 A strict interpretation of the language used in the practice direction would suggest that it is no longer permissible to lodge an affidavit instead of an ADM5 declaration.134 However, an interpretation of the rule in accordance with the overriding objective, as required by CPR 1.2(b), would suggest that an affidavit (or witness statement) containing all the information required by ADM5 and containing a statement of truth ought to be acceptable. The current practice of the Admiralty Registry is to encourage the use of the ADM5 but it will not reject an affidavit in lieu of an ADM5 if it contains all the required information. In cases where on grounds of complexity the spaces provided on the ADM5 form are too small, the proper course to follow is to fill in as many of the basic details on the ADM5 form itself as possible and insert “see attached affidavit” where amplification or further explanation is necessary.
4.48 The ADM5 and any affidavit filed may contain statements of information and belief provided full and precise particulars of the grounds and sources thereof are also stated. Thus where information has been received from the claimant that the claim is not satisfied, the person within the claimant’s organisation from whom that information was received should be identified. The grounds for believing that a ship is owned by a particular party at any material time is normally an entry in the relevant volume of Lloyd’s Register of Ships and supplements together with an appropriate inquiry of Lloyd’s Intelligence as to whether they are aware of any changes. Although an ex parte application and the declaration and/or affidavit need only comply with the requirements of the PD 61.
4.49 The applicant does not need to make full and frank disclosure of all material facts as would be required e.g. in the context of a without notice (ex parte) application for a freezing injunction under CPR Rule 25.1(1)(f).135 However, it is the duty of the applicant/deponent to correct any false or inaccurate statements in such declarations promptly and frankly even if they have simply been made by mistake.136
4.50 The ADM5 declaration has to state the following particulars137:
- (i) the nature of the claim or counterclaim138;
- (ii) that it has not been satisfied;
- (iii) if the claim arises in connection with a ship, her name;
- (iv) the nature of the property to be arrested, including the name and port of registry if a ship;
- (v) the amount of security sought, if any139;
- (vi) that any relevant notices to consul have been given140;
- (vii) that in the case of liability for oil pollution under section 153 of the Merchant Shipping Act 1995 the facts relied upon as establishing that the court is not prevented from entertaining the claim by reason of section 166(2) of that Act.141
4.51 In addition, if the claim is brought by virtue of section 21(4) of the Senior Courts Act 1981 (i.e. if it is a claim giving rise to a statutory right to claim in rem) the following must also be stated142:
- (viii) the name of the person who would be liable on the claim if it were commenced in personam;
- (ix) that this person was, when the cause of action arose. the owner or charterer or in possession or control of the ship in connection with which the claim arose, specifying which; and
- (x) that at the time the claim form was issued this person was the beneficial owner of all the shares in the ship to be arrested, or if the ship to be arrested is the ship in connection with which the claim arose, the demise charterer of the ship.
4.52 An application which complies with CPR Part 61.5 and the relevant parts of the Practice Direction to Part 61 will lead to the issue of an arrest warrant. There is no residual discretion in the Court to decline to issue a warrant.143
4.53 Under the predecessors of the CPR, it was clear that there was a discretion exercisable by the Registrar (or Judge) to permit a warrant to be issued notwithstanding a failure to supply all the required information.144 It is unclear whether this discretion has survived the introduction of the CPR.145
4.54 A claimant in an in rem action who makes an application for a warrant of arrest is not required to give a cross-undertaking in damages or to provide counter-security in any form. An application for counter-security was made in The “D.H. Peri”146 it was dismissed in the following terms by Dr Lushington:
“To order security for damages as for a wrongful arrest would be an innovation on the practice of the Court, and would form a serious bar to foreigners suing in this Court.”
Since The “D.H. Peri” there is no record of any further attempt to obtain an order for counter-security and the rules make no provision for it. It is also not the practice of the Admiralty Court to require arresting claimants to give a cross-undertaking as to damages even where the in rem claim and arrest was brought solely as a means of obtaining security for proceedings in another forum.147 However, in Profer AG v The Owners of the Ship Tjaskemolen now named VISVLIET (No. 2), which was a case involving a re-arrest of a vessel already arrested in Holland and released by Court order, the English Admiralty Court did impose a condition that counter-security be provided by the re-arresting claimants.148
4.55 As long as the claim falls within the category of maritime claim under the Arrest Convention 1952 and falls within one of the jurisdictional heads of the SCA 1981, there is no further requirement to show that the arrest is necessary in the interests of justice. It is not for example necessary to show that the arrest is required because otherwise an in personam judgment would remain unsatisfied.149
4.56 A warrant of arrest is valid for 12 months but will only be executed if the claim form has been served or remains valid at the date of execution.150
4.57 Only the Admiralty Marshal or his substitute may execute a warrant of arrest,151 which is done in the same manner as service of an in rem claim form on the property.152 Where it is not reasonably practicable to serve the warrant, arrest is effected by service of a notice of issue of the warrant in the same way or by giving notice of the arrest to those in charge of the property.153 If there is a risk that the vessel may sail before the warrant can be served, the Admiralty Marshal will usually cause the vessel to be detained by his substitute in the relevant area, usually an officer of the UK Border Agency or a County Court bailiff.
4.58 The Admiralty Marshal or his substitute may execute a warrant of arrest notwithstanding that the ship or other property to be arrested has been seized by the Sheriff under a writ of fi. fa. on behalf of execution creditors.154
4.59 Freight cannot be arrested separate from the ship or cargo, and so freight which has already been paid to the shipowners by the consignees cannot be arrested.155 Where, however, a claim is brought against ship and freight, the court may order that the Admiralty Marshal should sell the cargo under arrest and pay the freight from the proceeds of sale.156
4.60 In The “Johnny Two”157 Sheen J included, for the benefit of practitioners, the following note on current procedures for the arrest of a ship:
“Upon issue of the warrant the Admiralty Marshal telephones the relevant officer of HM Customs & Excise158 and instructs him to arrest the ship. He tells the Customs Officer his requirements for ensuring the security of the arrest. That is followed up by sending a ‘Note of Action’ by fax confirming his instructions to arrest the ship and giving the folio number of the action, the name of the plaintiff and the name of the plaintiff’s solicitors. An officer of HM Customs then arrests the ship by attaching the Note of Action to the ship. He then carries out the Marshal’s instructions for keeping the ship safely under arrest. This can be carried out within a very short space of time.
The warrant of arrest and the writ are then sent by post to HM Customs for execution and service respectively. But frequently, of course, security will have been provided and service of the writ accepted by solicitors so that the ship will have been released before these documents are received by HM Customs.
If a ship is expected to arrive at a known port a warrant of arrest should be issued. A ‘Note of Action’ instructing a Customs Officer to ‘Arrest on arrival’ will then be sent to the relevant Customs Office. The ship will then be arrested on arrival by the ‘Note of Action’ or by execution of the warrant if it has arrived at the Customs Office. In this way a ship may be arrested on a day when the Court Offices are closed.
Arrests in London are effected by the personal attendance of the Marshal’s Officer who executes the warrant.
If a caveat against arrest is entered after a warrant is issued but before arrest is effected, the plaintiff’s solicitors will be informed. They will be asked if they still wish to arrest.
If a warrant of arrest is issued in respect of a ship when the port of arrival is not known, the warrant can be left with the Marshal with instructions, endorsed on the undertaking to pay his expenses, to arrest ‘at a port to be advised during normal working hours’.
These procedures enable solicitors to arrest a ship at very short notice, particularly when they have taken the precaution of issuing a warrant in advance.”
Save that today the communications described above are more likely to take place by e-mail than by fax and that the functions referred to as being carried out by HM Customs & Excise are today performed by the UK Border Agency, the text above remains an accurate account of what occurs in practice. The Admiralty Marshal strongly encourages parties contemplating arresting a vessel to contact him by telephone as early as possible so that appropriate contingency arrangements can be put in place in the event of the arrest proceeding. The Admiralty Marshal is prepared to discuss procedure and practicalities in advance of any arrest and may be contacted via the Admiralty & Commercial Court office.
4.61 Once the warrant for arrest has been executed, the property is arrested and is in the custody of the Admiralty Marshal on behalf of the court. Interference by any party with the arrest process such as removing the property to be arrested with knowledge that an arrest has been issued159 is a contempt of court160 punishable by committal, as is any interference with the custody of the property after arrest such as moving the property within the jurisdiction without authority, or removing it from the jurisdiction.161
4.62 A warrant of arrest on a ship covers everything belonging to it as part of its equipment, even items which are physically detached from it,162 but not items which do not belong to the shipowner such as the personal property of the master and crew or the luggage of a passenger.163
4.63 When property is arrested the Admiralty Marshal thereby obtains custody of the property, but not possession, and any pre-arrest rights and remedies based upon possession are not affected by the arrest.164 Such possessory rights and remedies may therefore be exercised notwithstanding that the property has been arrested, provided that there is no interference with the custody of the Admiralty Marshal.165
4.64 Upon arrest automatic directions are issued by the Admiralty Registrar.166 The Admiralty Marshal and other interested persons may apply to the court for further or alternative directions with respect to any property under arrest.
4.65 A situation that commonly occurs is that the owners of property not under arrest are adversely affected by the arrest. For example, a ship may be arrested but the cargo on board her is not under arrest, or cargo is arrested but the ship in which it is laden is not, or a ship may be arrested at the only berth in a particular port so that the port operations are effectively halted.
4.66 If a ship is sought to be arrested while she is in the course of discharging her cargo, the Admiralty Marshal will not stop the discharge operations except when the claim form is in respect of a claim for salvage and the cargo is to be arrested. If the ship is in the course of loading, the Admiralty Marshal will warn the ship’s agent not to continue loading if the claim form has been issued by mortgagees because of the high probability that in such claims the ship will be ordered to be sold, but he will not do so in other cases in the anticipation that security will probably be given to enable the ship to be released.167
4.67 If however a ship is arrested with cargo on board at a port other than her intended port of discharge, then, in this case, unless the shipowners intend to put up security to enable the ship to be released and continue on her voyage, the cargo owners will probably wish to have their cargo discharged from the ship. This may be done without intervening in the claim in which the ship has been arrested by requesting the Admiralty Marshal to take the appropriate steps to enable the ship to be discharged. If the Marshal considers the request to be reasonable and the cargo owners give an undertaking to pay the Marshal’s costs and expenses he will apply to the court for an appropriate order.168 Alternatively, the cargo owners can intervene in the claim in which the ship has been arrested169 and apply to the court for an appropriate order.170
4.68 As far as the costs of discharging the cargo are concerned, these are the ultimate responsibility of the cargo owners. The practice in the English Admiralty Court is that where a shipowner is unable to perform a contract of carriage, the owner of cargo laden in his ship is entitled to take his cargo out of the ship at his own expense or abandon the cargo.171 If the expenses of discharge to the cargo owners are paid by or on behalf of the Admiralty Marshal, he (or the person advancing the necessary funds) is entitled to recover those expenses rateably from the owners of the cargo according to their interests. If, however, the cargo owners abandon the cargo, the Admiralty Marshal can sell the cargo and recover his expenses from the proceeds of sale.172
4.69 Without intervening in the claim in which the cargo has been arrested the shipowners can request the Admiralty Marshal to take the appropriate steps to enable the ship to be discharged. If the Marshal considers the request to be reasonable and the shipowners give an undertaking to pay the Marshal’s costs and expenses, the Marshal will apply to the court for an appropriate order.173 Alternatively, the shipowners can intervene in the claim in which the cargo has been arrested174 and apply to the court for an appropriate order.175