Oceaneering International Ag+oceaneering International Services Limited For An Order Under Section 27 Of The Civil Jurisdiction And Judgments Act 1982
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Neutral Citation | [2010] CSOH 161 |
| Court | Court of Session |
| Year | 2010 |
| Published date | 07 December 2010 |
| Date | 01 December 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 161 | |
| OPINION OF LORD EMSLIE in the petition of (FIRST) OCEANEERING INTERNATIONAL AG and (SECOND) OCEANEERING INTERNATIONAL SERVICES LIMITED Petitioners for an order under section 27 of the Civil Jurisdiction and Judgments Act 1982 ___________ |
Petitioners: MacColl; HBJ Gateley Wareing (Scotland) for MacKinnons, Solicitors, Aberdeen
Respondents: Lake, QC; Cameron McKenna, Solicitors, Edinburgh
1 December 2010
Introduction
[1] The petitioners are respectively Swiss and English companies. The compearing respondents, a company organised under the laws of Cyprus, own the offshore intervention vessel "Sarah". In an action now pending in the High Court of Justice in England, the petitioners seek payment from the respondents of more than $2 million said to be overdue on invoices relative to an Agreement between the parties dated 1 April 2009 and a related Assignation dated 9 August 2010. That Agreement concerned the provision by the petitioners, to the order of the respondents, of remotely operated vehicle ("ROV") equipment, systems, services and personnel, and it is not in dispute that the vessel "Sarah" was the location at which the contract came to be performed.
[2] Section 27 of the Civil Jurisdiction and Judgments Act 1982 provides inter alia as follows:
"Provisional and protective measures in Scotland in the absence of substantive proceedings
27(1) The Court of Session may, in any case to which this subsection applies -
(a) subject to subsection (2)(c), grant a warrant for the arrestment of any assets situated in Scotland; ....
(2) Subsection (1) applies to any case in which -
(a) proceedings have been commenced but not concluded ... in England and Wales or Northern Ireland;
(b) the subject-matter of the proceedings is within the scope of ... [Article 1 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters]; and
(c) in relation to [paragraph (a)] ... of subsection (1), such a warrant could competently have been granted in equivalent proceedings before a Scottish Court; ..."
[3] Relying on these provisions, the petitioners now claim entitlement to arrest the "Sarah" on the dependence of their English action. At an ex parte hearing on 19 November 2010, Lord Glennie granted warrant for arrestment in terms of the prayer of the petition, and on the same day the "Sarah" was duly arrested by messengers-at-arms within Montrose Harbour where she then lay.
[4] For their part, the respondents have enrolled a motion for recall of the arrestment and its underlying warrant, contending (by reference to section 27(2)(c) of the 1982 Act) that in equivalent Scottish proceedings arrestment of the "Sarah" could not competently have been sought or granted. The requirements of subsection (2)(a) and (b) were admittedly met, and the same could be said of the general requirements for interim diligence under section 15K of the Debtors (Scotland) Act 1986, as amended. But where arrestment on the dependence of an equivalent Scottish action would have been incompetent, then on that ground alone the respondents' motion for recall must succeed.
[5] In this connection, it was common ground between the parties that a ship could only be arrested on the dependence of Scottish proceedings if the claim fell within the scope of one or more of the subparagraphs of section 47(2) of the Administration of Justice Act 1956. The Part of the Act containing section 47 applied to Scotland only, although equivalent provisions for England and Wales and Northern Ireland had been re-enacted elsewhere, and section 47 itself provided inter alia as follows:
"Arrest of ships on the dependence of an action...
47(1) Subject to the provisions of this section ..., no warrant issued after the commencement of this Part of this Act for the arrest of property on the dependence of an action ... shall have effect as authority for the detention of a ship unless the conclusion in respect of which it is issued is appropriate for the enforcement of a claim to which this section applies, and, in the case of a warrant to arrest on the dependence of an action, unless -
(a) the ship is the ship with which the action is concerned, or
(b) all the shares in the ship are owned by the defender against whom that conclusion is directed.
(2) This section applies to any claim arising out of one or more of the following, that is to say -
....
(k) the supply of goods or materials to a ship for her operation or maintenance;
(l) the construction, repair or equipment of any ship;
...."
According to the petitioners, their claims fell within the scope of both subparagraphs (k) and (l) of section 47(2), but if (as the respondents maintained) they did not, then it was a matter of concession that the arrestment in this case would have to be recalled.
The respondents' position
[6] The principal argument for the respondents was to the effect that the parties' Agreement concerned the provision of services and materials to them, rather than to the vessel itself, and thus clearly fell outwith the scope of subparagraph (k) of the subsection. In The "River Rima" 1988 2 Ll 193, the House of Lords had authoritatively construed the equivalent English provision in section 20(2)(m) of the Supreme Court Act 1981. In order to qualify, such a claim must broadly relate to what used to be termed "necessaries", that is, "... whatever is fit and proper for the service on which a vessel is engaged". This mirrored the test later voiced by a single judge in The...
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