| The "Fierbinti" [1994] 3 SLR 864; [1994] SGCA 74 |
| CA 71/1993 | |
| 19 May 1994 | |
| Court of Appeal | |
| Karthigesu JA, L P Thean JA | |
| Loo Dip Seng (Ang & Pnrs) for the appellants, Suresh Surenthiraraj and Andrew Chan (Allen & Gledhill) for the respondents |
Judgment
[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.] LP Thean JA (delivering the judgment of the court): 1 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. 2 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 3 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 4 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. 5 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 6 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. 7 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 contention, counsel pointed out that it is an established rule that, for the in rem jurisdiction to be invoked, the res in question must be present within the jurisdiction. It is therefore wholly untenable that the in rem jurisdiction was invoked against the Fierbinti as it had not come within the jurisdiction since the writ was issued. 8 So far as the contention relating to material non-disclosure is concerned, counsel for the respondents submitted that those matters which the appellants alleged that the respondents had failed to disclose were really not relevant to the question of arrest. The appeal 9 It is common ground that the respondents’ claim falls squarely within s 3(1)(g) and (h) of the High Court (Admiralty Jurisdiction) Act (Cap 123). It is also common ground that at the date when the cause of action arose and at the date when the writ was issued, the defendants were owners of all the 19 ships named in the writ, and in particular the Fierbinti, the offending ship, and its then sister ship, the Mehedinti. The two conditions for invoking the admiralty jurisdiction in rem under s 4(4) of the Act have therefore been satisfied. As the learned judicial commissioner has held, and it is not in issue before us, the statutory right of action in rem, which the respondents had on the 19 ships upon the issue of the writ, was not affected by the subsequent change of ownership of the Mehedinti: see The Monica S. The main issues in the appeal are essentially the following: (i) whether the admiralty jurisdiction in rem has been invoked against the Fierbinti, and (ii) if the answer to the first issue is in the negative, whether it could be invoked and had been invoked by the arrest of the Mehedinti. Lastly, if the two issues are decided in favour of the respondents, there arises a third issue, namely, whether there was any failure or omission on the part of the respondents to make full and frank disclosure of material facts in the affidavit leading to the issue of the warrant of arrest of the Mehedinti. In rem jurisdiction against Fierbinti 10 On the first issue, two questions arise for consideration. The first concerns the effect of the service of the writ on the defendant owners’ solicitors on 12 November 1990. The relevant rules governing such service are O 10 r 1(2) and (3) and O 70 r 7(2) of the Rules of the Supreme Court. Order 10 r 1(2) and (3) are as follows: (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. (3) Where a writ is not duly served on a defendant but he enters an appearance in the action begun by the writ, the writ shall be deemed to have been duly served on him and to have been so served on the date on which he entered the appearance. 11 Under O 70 r 7(1) a writ by which an action in rem is begun must be served on the res. This, however, is subject to r 7(2) which provides that such writ need not be so served, if it is deemed to have been served on the defendant by virtue of O 10 r 1(2) or (3). It is helpful to set out r 7(1) and (2) which, in so far as relevant, are as follows: (1) Subject to paragraph (2), a writ by which an action in rem is begun must be served on the property against which the action is brought except — … (2) A writ need not be served on the property or Registrar mentioned in paragraph (1) if the writ is deemed to have been duly served on the defendant by virtue of Order 10, Rule 1(2) or (3). 12 It is important to note that para (2) of r 7 does not say that where a writ is deemed to have been duly served on the defendant by virtue of O 10 r 1(2) or (3) such “deemed” service amounts to or is deemed to be service of the writ on the property under para (1) of r 7. Rule 7(2) does not equate a “deemed” service of the writ on the defendant under O 10 r 1(2) or (3) with the actual service of the writ on the property under O 70 r 7(1). Effectively, r 7(2) operates to dispense with service of the writ on the property under r 7(1), where the writ is deemed to have been duly served on the defendant by virtue of O 10 r 1(2) or (3). In this case, the writ was served on the solicitors acting for the defendants, ie owners of the 19 ships, and the solicitors presumably had endorsed on the writ a statement that they accepted service thereof on behalf of the defendants. Therefore, by virtue of O 10 r 1(2), the writ was deemed to have been duly served on the defendants and by virtue of O 70 r 7(2), there was no need to serve the writ on any of the 19 ships. On our analysis of the rules, there was no actual service of the writ on the res, ie any of the 19 ships; such service had been dispensed with by the operation of O 70 r 7(2). 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, at pp 291–292; The August 8, at p 456, and The Kusu Island, 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. 13 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 invoke the in rem jurisdiction against a res the res in question must be within the jurisdiction. In The Freccia del Nord at p 392, Sheen J said: … 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. 14 In The Good Herald, an order giving leave to serve the writ on the ship by substituted service upon the defendants’ solicitors was set aside. In accepting the defendants’ submission that the court could not order substituted service of the res in an action in rem, Sheen J said at p 238: 15 The concept of an action in rem is that the writ is issued against a ship. The action is commenced by service of the writ on that ship and is enforced by the arrest of the ship. … If the owner acknowledges service of the proceedings and thereby submits to the jurisdiction, an action in personam is grafted on to the action in rem against the ship. 16 Later, the learned judge said, at p 238: Unless a solicitor acting on behalf of the owner of a ship endorses on the writ a statement that he accepts service of the writ in accordance with O 10 r 1(4), or a defendant acknowledges service of a writ in accordance with O 10 r 1(5), despite the fact that the writ has not been duly served, a writ in rem must be served on the property against which the action is brought in accordance with O 75 r 11. An order for substituted service is inappropriate to a writ in rem. There are two main reasons for that. First, unless the property, against which the writ has been issued, is within the jurisdiction and can be served with the writ, that property cannot be arrested. The process in rem would be frustrated. Secondly, O 65 r 4, which deals with orders for substituted service, applies only to a document which is required to be served personally. It does not apply to a writ in rem. 17 The next question is the effect of the entry of appearance by the solicitors for the defendants as owners of the Fierbinti. It was the contention of the appellants that by reason of the following, namely, (i) that the writ was deemed to have been duly served on the defendant owners, and (ii) that their solicitors had entered an appearance for the owners of the Fierbinti, the in rem jurisdiction had been invoked against that ship. We find the contention untenable. Such a contention, if accepted, would effectively give to the defendants a choice of determining the ship against which the respondents would be treated as having invoked the in rem jurisdiction. This is contrary to the provision of s 4(4) of the High Court (Admiralty Jurisdiction) Act. That provision gives to the respondents a choice to invoke the in rem jurisdiction against either the offending ship or any other ship in the same ownership. The weakness of the appellants’ contention is even more vividly demonstrated by the operation of O 10 r 1(3). Under that rule, a defendant to an action in rem may enter an appearance gratis, ie without the writ having been served on him, and upon entering such appearance the writ is deemed to have been duly served on him on the date he entered the appearance. It follows that if the arguments of the appellants were to prevail, then in a case where a writ in rem has been taken out against a number of ships, as in this case, the defendant by entering an appearance as the owner of one ship gratis under O 10 r 1(3) would be able to foist upon the plaintiff a ship against which the in rem jurisdiction would then be treated as having been invoked and thereafter the defendant may or would take steps to keep that ship away from the jurisdiction. On this point, it is helpful to refer to the observation made by Cons J [as he then was] in Mobil Sales and Supply Corp v Owners of the Ship or Vessel “Pacific Bear”. He said, at p 129: I should notice here an argument put forward by the plaintiffs. A writ is deemed to be served if appearance is entered before service is actually effected; in the present instance the defendants entered conditional appearances before any move was made against any ship except in A17/978; therefore all the other writs are deemed to have been served and the plaintiffs may continue against all or any ship as they choose. This argument is in principle at variance with the ‘one ship’ doctrine laid down in The Banco. For that reason alone I think it cannot have any validity. Furthermore, by judicious choice of ships, a defendant might be able to emasculate the new found remedy of the plaintiffs. Only one ship may be arrested. The defendant would enter appearance for that one of his ships least likely to call within the jurisdiction, and the others could then continue to call with impunity. To my mind that cannot be right. The Act gives the choice to the plaintiff. It must be the fact of arrest, or similar action, and not the fact of service, which demonstrates the exercise of that choice. 18 In that case, the defendants were a company incorporated in the United States of America and owned four ships. They ran into financial difficulties. Their ships, however, continued to call at Hong Kong. Eight creditors including the plaintiff commenced proceedings against the defendants and issued a writ in rem against one or two or all four ships. Conditional appearances were entered to all the writs. The defendants then applied to set aside the writs on the ground that the court lacked jurisdiction or, alternatively, they sought a stay in view of the American proceedings. The Hong Kong High Court rejected the arguments that the court had no jurisdiction but granted a stay in view of the concurrent proceedings in the United States of America. 19 Reverting to the facts in this case, we do not think that the appearance so entered by the defendants’ solicitors has any effect or significance at all on the issue whether or not the in rem jurisdiction has been invoked against the Fierbinti. The effect of the entry of appearance was that thenceforth the action, which started as an in rem action, would proceed and continue as an action in personam against the owners of the Fierbinti, but as the writ has not been served on the ship the in rem character of that action remained. In this connection, we find of assistance the case of The Lloydiana. There, the plaintiffs took out a writ in rem against the defendants in respect of the wet damage and short delivery of their cargo of sugar laden on board the Fair Liza. The bills of lading for the carriage of the cargo were issued by the defendants and they were described as carriers. But the Fair Liza was chartered to another company, Nigerian National Shipping Line. The defendants’ vessel Lloydiana was expected to arrive in London and the plaintiffs’ solicitors threatened to arrest her. To avoid the arrest, the defendants through P and I Club provided a guarantee. But Fair Liza was not a sister ship of Lloydiana and the plaintiffs could not have an action in rem against the latter. The writ was served on the solicitors for the defendants. Subsequently, the defendants applied to court for an order that the writ be struck out and the service of the writ be set aside. The application was dismissed as the court held that it had jurisdiction to hear and determine any claim for loss or damage to goods in a ship. This was grounded on the fact that the solicitors for the defendants had accepted service and it was therefore unnecessary to proceed in rem, and the action thenceforth proceeded as one in personam, although it was commenced as an action in rem. Sheen J said, at p 318: In this case, the defendants instructed solicitors to accept service of the writ. It was unnecessary to serve the ship and arrest her. Put in another way, it was unnecessary to proceed in rem. The action has proceeded as an action in personam against Lloyd Triestino, whose solicitors agreed to accept service. They have done so and they have acknowledged service. 20 For the reasons we have given, we cannot subscribe to the view that, where an action in rem is commenced, the in rem jurisdiction is invoked when there is a “deemed” service of the writ on the defendants. In our judgment, in this case, the in rem jurisdiction has not been invoked against the Fierbinti. Expiry of the writ 21 We now turn to the first part of the second issue: whether the in rem jurisdiction could, in the circumstances, be invoked against the Mehedinti. The appellants have placed at the forefront of this issue their argument that the in rem jurisdiction could not be invoked on the date of arrest of the Mehedinti on the ground that the writ, as a writ in rem, was not served on her or, for that matter, on any of the 19 ships within the period of one year and the writ had therefore expired at the date of arrest. We find this argument misconceived. The validity of the writ for the period of 12 months is only for the purpose of service. Order 6 r 4, in so far as relevant, provides: (a) For the purpose of service, a writ is valid in the first instance for 12 months beginning with the date of its issue. (b) Where a writ has not been served on a Defendant, the Court may, by order extend the validity of the writ … . 22 The service of the writ is governed by O 10 r 1 and O 70 r 7(1) and (2). Under r 7(1), the writ must be served on res, ie one of the ships named in the writ. However, the writ was served on the owners’ solicitors who had acknowledged that they accepted service of the writ on behalf of the defendants, and under O 10 r 1(2) the writ was deemed to have been duly served on the defendants, and in consequence the service of the writ on any of those ships had been dispensed with under O 70 r 7(2). As the writ has been properly served in accordance with the rules, the expiry of the writ under O 6 r 4 has been spent. No question of invalidity of the writ on that ground therefore arises. In rem jurisdiction against the Mehedinti 23 The remaining issue is whether the in rem jurisdiction has been invoked against the Mehedinti upon arrest. Connected with this issue is the all important question as to the precise moment when the admiralty jurisdiction in rem is invoked; there are three points of time which are relevant: (i) when the writ is issued, (ii) when the writ is served on the ship, or (iii) when the ship is arrested. The leading case on this question is of course the English Court of Appeal decision in The Banco.9 In that case, the plaintiffs’ vessel, the Monte Ulia, collided with a jetty in the Thames whilst taking emergency action to avoid the defendants’ vessel, the Banco, owing to alleged negligent navigation of the latter. The collision caused damage to the plaintiffs’ vessel and to many other parties who then claimed against the plaintiffs. The plaintiffs brought an admiralty action in rem against the defendants and the writ was served on the Banco and six other ships and they were arrested. The defendants applied to set aside the service of the writ on the six sister ships and to discharge the warrant of arrest of those ships. The first instance decision allowing the application was affirmed on appeal. The members of the Court of Appeal, however, were unable to agree as to the precise moment when the in rem jurisdiction was invoked. First, Lord Denning MR was of the opinion that the in rem jurisdiction was invoked when the writ was served on the ship and the warrant of arrest executed. He said, at p 153: … Mr Sheen said that if under s 3(4) the jurisdiction in rem can only be invoked against one ship, it means that the action can only be brought against one ship, and the writ can only be issued against one ship : and that, once it is invoked against one ship, it cannot be invoked against any other ship. Mr Sheen said that this would put the plaintiff in an intolerable difficulty: for he would have to wait until one of the ships came within the jurisdiction (the offending ship if she was still afloat, or a sister ship) and then issue a writ against her. … I can see the force of this point, but I think that Mr Willmer gave the right answer. When a plaintiff brings an action in rem, the jurisdiction is invoked, not when the writ is issued, but when it is served on the ship and the warrant of arrest executed. The reason is because it is an action in rem against the very thing itself: and does not take effect until the thing is arrested. This means that the practice is right. The plaintiff is entitled, as soon as his cause of action arises, to issue his writ in rem against the offending ship and all other ships which at that time, that is, at the date of issue of the writ, belong to the same owner. That saves his time. Then he can wait until he finds the one ship which he thinks most suitable to arrest. Then he will serve her and execute a warrant of arrest against her. That having been done, he cannot go against the other ships and should strike them out of the writ. 24 Next, we come to the opinion of Megaw LJ, and his opinion was that the in rem jurisdiction was invoked when the writ was served or was deemed to have been served. He said, at pp 158–159: I do not accept that the admiralty jurisdiction is invoked by an action in rem against a vessel merely by the issue of a writ which contains, inter alia, the name of that ship. I agree with counsel for the defendants that, for the purposes of this subsection, the jurisdiction is not invoked merely by the issue of the writ. That may be the start of the invocation, but the invocation is not complete until the writ is served, or, it may be, deemed to have been served as a result of the entry of appearance by the defendant before service is effected. … In my view, whatever might be the technicalities otherwise, the jurisdiction cannot properly be said to be invoked ‘against the ship’ (or, equally, of course, ‘against … any other ship) merely because a writ has been issued which names that ship amongst others, but which cannot lawfully be served upon that ship until something further is done to the writ itself, namely, its amendment. 25 Lastly, Cairns LJ expressed yet another opinion on the same question, and his opinion was that the in rem jurisdiction was invoked when the writ was issued. Speaking on the practice whereby the plaintiff issues a writ naming more than one ship, his Lordship said, at p 161: The practice which has been adopted in the registry since the Act of 1956 was passed may have much to recommend it. Mr Willmer suggested that it might still be used, on the narrower construction of the subsection, on the basis that the jurisdiction of the court is only invoked on service. I find great difficulty in accepting this argument, though it has found favour with my Lord. I think any litigant who issues a writ is thereby invoking the jurisdiction. But if this is so the practice that has prevailed cannot in any view be justified by the Act. Either the plaintiff is entitled to name only one ship in his writ or else he is entitled to name several and to serve and arrest several. 26 In fact, the only common ground that the members of the Court of Appeal had was this, that, in respect of an in rem claim, only against one ship may the in rem jurisdiction be invoked. There were divergent views on when the in rem jurisdiction was invoked. 27 The invocation of the in rem jurisdiction was also discussed in The Berny. In that case, the cargo owners issued first a writ against 18 sister ships of the Berny and then a writ against the Berny in respect of a claim for short delivery of sugar carried on board the Berny from Dunkirk to Dar-es-Salaam. The writs were not served and were later renewed. Subsequently, service of the renewed writ in the action against the Berny was accepted on behalf of the shipowners who entered a conditional appearance. The shipowners applied to dismiss the Berny action on the ground that when the action was begun the cargo owners had already invoked the court’s jurisdiction in rem within the meaning of s 3(4) of the Administration of Justice Act 1956 by issuing the writ in the Berny action. Brandon J held, inter alia, that the cargo owners could invoke the admiralty jurisdiction by an action in rem against either the Berny or a sister ship, that the jurisdiction was not invoked until the writ was served, and that following the existing practice where more than one writ against several ships had been issued, they could elect to serve the writ on either the Berny or a sister ship. Commenting on the practice of issuing “plural” writs, that is a writ naming more than one ship, the learned judge said, at p 94: The practice is based on convenience. When a plaintiff institutes proceedings, which he will often have to do by a certain date in order to preserve a time limit, he may well not know which of the various ships that he has an option to proceed against will be coming to a place within the jurisdiction, so as to afford an opportunity for service and arrest, or when. By instituting proceedings concurrently in this way against all the ships concerned, he creates a situation in which, as soon as he learns that a suitable ship (by which I mean a ship whose value is sufficient to provide adequate security for the claim) is coming or has come to a place within the jurisdiction, he can immediately amend the writ by striking out all the other ships, and then serve the amended writ on, and at the same time take steps to arrest, or threaten to arrest, the particular ship concerned. 28 Brandon J then referred to the majority views of Lord Denning MR and Megaw LJ in The Banco that the practice was a proper one. As the views expressed were merely obiter dicta, the learned judge was not bound by them. In the event, however, Brandon J adopted their views on the point. At p 96, he said: The question which has to be determined is what is meant by the expression ‘the jurisdiction may be invoked by an action in rem’ as used in s 3(4). Is the invocation of jurisdiction there referred to effected (a) by the mere issue of the writ or (b) only when the writ is served or deemed to be served? If the former is the case, then the practice of issuing one or more writs against more than one ship cannot in view of the actual decision in The Banco, be upheld. If the latter is the case, it can. … While I consider, as I indicated earlier, that I am not bound by the majority view of the Court of Appeal in The Banco 29 From the passage just quoted, Brandon J was unequivocal in his view that the practice of issuing a “plural” writ was a proper one. It is also clear that his Lordship found support for his conclusion from the majority opinions in The Banco. The learned judge did not, however, concern himself with the precise point of time at which the in rem jurisdiction was invoked. Like Lord Denning MR and Megaw LJ in The Banco, Brandon J was certain that it was not at the time of the issue of the writ. His Lordship did not however delve into the differences between the views expressed by Lord Denning MR and Megaw LJ. He was not concerned with the question whether arrest or execution of the warrant of arrest was necessary before the in rem jurisdiction could be said to be invoked. Strictly speaking, therefore, Brandon J made those observations only in the context of affirming the practice of issuing a writ which names both the offending and her sister ships. 30 In so far as judicial authorities are concerned, the position in England seems to us to have been settled on one point: they do not support the view that the in rem jurisdiction is invoked upon the issuance of the writ. The matter, however, appears to us to have been substantially resolved by s 21(8) of the Supreme Court Act 1981, which provides as follows: Where, as regards any such claim as is mentioned in section 20(2)(e) to (r), a ship has been served with a writ or arrested in an action in rem brought to enforce that claim, no other ship may be served with a writ or arrested in that or any other action in rem brought to enforce that claim; but this subsection does not prevent the issue, in respect of any one such claim, of a writ naming more than one ship or of two or more writs each naming a different ship. 31 In Singapore, it has not been held that the in rem jurisdiction is invoked upon the issuance of the writ. The authorities do not support the view that the in rem jurisdiction is invoked when the writ is issued. Nor is this the view urged upon us by counsel for the appellants. We therefore need not consider this further. Suffice it to say that on the authorities (which we shall discuss in a moment), this is not the view to which we are disposed to subscribe. 32 In The Brunei 602, the cargo consisting of 390 pieces of coated pipes was loaded on board a dumb barge Brunei 602 towed by the tug Hai Hin 28 for carriage from Singapore to Indonesia. On the way, the cargo fell into the sea off the coast of Kalimantan and was totally lost. The plaintiffs took out a writ against the first defendant as the owner of the tug Hai Hin 28 and the second defendant as owner of the barge Brunei 602. The defendants entered a conditional appearance and applied to set aside the writ and the arrest. The application was allowed by the deputy registrar and on appeal the decision of the deputy registrar was affirmed. The plaintiffs further appealed, and the appeal was dismissed by this court. AP Rajah J, delivering the judgment of the court said, at pp 229–230: In our judgment, it is now settled law that when a plaintiff brings an action in rem against more than one ship owned by a defendant, the jurisdiction of the court is invoked when the writ is served on one of the named ships and the warrant of arrest is executed. That having been done, the plaintiff cannot go against the other named sister ships and should strike them out of the writ. If he does not do so, the court, on the application of the defendant, will strike the other named sister ships out of the writ and set aside service of the writ and the warrant of arrest on the other named sister ships. 33 This, in fact, is the position taken by Lord Denning MR in The Banco, namely, that the in rem jurisdiction is invoked when both the writ is served and the warrant of arrest is executed. 34 The above passage was quoted with approval in The Damavand, a decision of this court. In that case, the respondents had several claims against the appellants in respect of various contracts for goods and materials supplied to the appellants’ vessels. Initially, one writ only was issued. The ship Minab was served with the writ and was arrested. After that, the respondents amended the writ and deleted part of the claim and issued another writ in respect of that part. The second writ was served on the ship Damavand which was also arrested. The appellants applied to set aside the second writ and the warrant of arrest on the ground that it was an abuse of the process of the court. They argued that the admiralty jurisdiction had already been invoked by the issue of the first writ which included that part of the claim subsequently deleted. The application was dismissed by the senior assistant registrar. On appeal before a judge in chambers, the senior assistant registrar’s decision was upheld. There was then a further appeal to this court and the appeal was dismissed. Speaking of a situation where a claimant had an option to proceed by an action in rem either against the offending ship or against a sister ship in respect of one and the same claim, this court said, at p 723: In such a situation, once the claimant had served the writ on the offending ship or the sister ship, as the case may be, he had elected ‘irrevocably’ to invoke the jurisdiction in rem against that ship and he cannot concurrently pursue the same claim by another action in rem against the sister ship. 35 It has not been decided in either of the two cases whether arrest or the execution of the warrant of arrest is necessary to invoke the in rem jurisdiction of the court. In both of them, it was not essential for the court to decide the question. In the present case, however, the arguments advanced by counsel have put it on a rather different basis and it is necessary to deal with the issue directly. We first turn to consider whether the in rem jurisdiction is invoked when the writ is served on the res. The issue and service of the writ are a process of the court. By issuing the writ in rem against a ship the court asserts its jurisdiction to determine the plaintiff’s claim against the ship, and by serving it on the ship, the plaintiff “notifies” the ship and its owner and also all persons interested therein of his claim against the ship. He has by that process invoked the court’s jurisdiction to determine his claim against the ship. In our opinion, upon service of the writ on the vessel, the plaintiff has invoked the jurisdiction of the court. Arrest is not an essential or necessary step in the invocation of the court’s jurisdiction. The arrest is the means given by law whereby security is obtained for the claim against the ship: see The Zafiro, at p 15, per Hewson J. A situation may well arise where a writ in rem is served on the ship but the arrest is withheld for some reasons, eg ongoing discussion as regards the provision of security. In such a case, as we have held, the in rem jurisdiction has been invoked. 36 We are fortified in our opinion by The Nautik, where it was held that the in rem jurisdiction had been invoked even though the ship had not been arrested. There, a writ in rem was duly served on the ship within the jurisdiction and a warrant for her arrest was issued, but, before it could be served, the master clandestinely put the ship to sea. Judgment in rem against the ship was given for the plaintiffs. Delivering his reserved judgment, Bruce J said at p 124: The question arises whether, the property not having been under the arrest of the court, the court has jurisdiction to pronounce judgment by default. I am of the opinion that it has. 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. … [A]ll 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 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; … . 37 In practice, in most cases, the warrant of arrest is executed at the same time when the writ in rem is served on the ship. Again, a situation may well arise where at the point of time when the ship is arrested, the service of the writ on her has not been effected. The question is whether in such a case, the in rem jurisdiction has been invoked. The answer, in our opinion, is clearly in the affirmative. The issue and execution of the warrant of arrest are also a process of the court. In taking out the warrant and executing it on a ship, the plaintiff is invoking the court’s power to detain the ship as security to meet the claim. There can be hardly any doubt that in such an event the in rem jurisdiction has been invoked. 38 It is helpful to refer to the recent case of The Freccia del Nord. In that case, the plaintiffs’ vessel Nord Sea collided with the defendants’ vessel Freccia del Nord in the Bay of Biscay on 19 June 1987. Soon after the collision, the plaintiffs issued a writ in rem against Freccia del Nord and three other ships in the same ownership. On the same day, but after the issue of the writ, the defendants arrested the Nord Sea in Rotterdam. On 9 July, the plaintiffs’ writ was served on the defendants’ solicitors who acknowledged service on behalf of the defendants. The defendants moved the court for an order or declaration that, for the purposes of arts 21 and 22 of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968, the court was seized of the action in rem on 9 July. The only question before the court was at what moment of time was the court in England seized of the jurisdiction in an action in rem. Sheen J held that the court was seized of an action in rem from the moment, whichever is the earlier, of the service of the writ or the arrest of the ship. In the course of his judgment, the learned judge said, at pp 391–392: In respect of any claim within the admiralty jurisdiction of the High Court, an action in rem may be brought against only one ship. Nevertheless, it is permissible in respect of any one such claim to issue a writ naming more than one ship. … It seems to me that the court cannot be seized of an action in rem until the plaintiff has not only made up his mind as to which ship he will arrest, but also has either served the writ upon the ship or arrested the ship. When it is necessary to arrest a ship, it will be found that in the vast majority of cases the ship is arrested before the writ is served. The reason for this is that, when a warrant for the arrest of a ship is issued, the Admiralty Marshal speaks to an officer of Her Majesty’s Customs by telephone and instructs him to arrest the ship. After that has been done, the documents, including the writ, are usually sent by post to the customs officer for service. Although it is rarely done, because a plaintiff is anxious to obtain security for his claim, an action may be brought against a ship by service of the writ and without arrest. If after service of the writ a ship leaves the jurisdiction, this court can nevertheless give judgment against the ship. (See The Nautik [1895] P 121.) In my judgment, the court is seized of an action in rem from the moment, whichever is the earlier, of service of the writ or of arrest of a ship. 39 We hasten to point out that, in that case, Sheen J was concerned with the question whether the English court had jurisdiction over the matter in dispute under the Convention. As the Convention aims primarily to achieve a proper distribution of the jurisdiction on civil and commercial matters among member states, the concept of “seizure” of an action may well be decided on a different consideration from those underlying the concept of invocation of the in rem jurisdiction. Nevertheless, the observations of Sheen J are of some assistance in resolution of the issue before us. 40 In our opinion, the in rem jurisdiction is invoked when the writ is served on the ship or when the ship is arrested, whichever first occurs. There are times where the writ is served on the ship, but the arrest of the ship is withheld; in such a case, the in rem jurisdiction of the court has been invoked. At other times, service of the writ on the ship is not effected or is delayed but the ship is arrested; in such case, the in rem jurisdiction of the court has also been invoked. Returning to the facts in this case, the writ was never served on any of the ships named in the writ; hence, the question of service did not really arise. But when the Mehedinti was arrested, the in rem jurisdiction was at that moment of time invoked. Presumably immediately before or after the arrest, the writ was amended by striking out the names of the other ships. However, whether that was done or not is not in issue before us, and we need not be concerned with that question. Disclosure 41 We now come to the last issue, namely, whether the respondents in applying ex parte for the warrant of arrest of the Mehedinti had made full and frank disclosure of all the material facts. It was submitted on behalf of the appellants that in the affidavit dated 5 May 1993 sworn on behalf of the respondents which led to the issue of the warrant of arrest, the following matters were not disclosed: (i) the service of the writ on the solicitors for the defendants; (ii) the appearance entered by the solicitors for the owners of the Fierbinti, and (iii) the fact that the writ had been issued for some 31/2 years and the absence of any renewal of the writ for the purpose of service on any of the ships. 42 It seems to us that the materiality of these matters was premised on the success of the appellants’ contentions before us. As we have decided against the appellants, it follows that none of these matters have any merit or relevance in relation to the issue of the warrant of arrest. However, assuming that these matters are material and ought to have been disclosed, the court would still have a discretion whether or not to set aside the warrant of arrest on that ground. The court below did not consider this issue and therefore had not really exercised its discretion. We, in exercise of our discretion, would not have been disposed to set aside the warrant of arrest purely on the basis that the respondents had failed to disclose these matters in obtaining the warrant of arrest. 43 In the result, this appeal fails and is dismissed with costs. The deposit in court as security for costs is to be paid to the respondents or their solicitors to account of costs. Appeal dismissed. Reported by James Chee-Hau Tan