Stolt Kestrel BV v Sener Petrol Denizcilik Ticaret as
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Christopher Clarke,Sir Brian Leveson |
| Judgment Date | 15 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1035 |
| Docket Number | Case No: A3/2014/1832 & A3/2014/1829 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 October 2015 |
[2015] EWCA Civ 1035
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEENS BENCH DIVISION, ADMIRALTY COURT
MR JUSTICE HAMBLEN
2013 FOLIO 1622
And
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEENS
BENCH DIVISION, ADMIRALTY COURT
ADMIRALTY REGISTRAR JERVIS KAY QC
2014 FOLIO 68
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEENS BENCH DIVISION
Sir Brian Leveson
Lord Justice Tomlinson
and
Lord Justice Christopher Clarke
Case No: A3/2014/1832 & A3/2014/1829
Case No: A3/2015/1427
Vasanti Selvaratnam QC and Neil Henderson (instructed by MFB Solicitors) for the Appellant
Robert Bright QC and Richard Sarll (instructed by Holman Fenwick Willan LLP) for the Respondent
And
John Kimbell QC (instructed by Weightmans LLP) for the Claimant
Chirag Karia QC (instructed by Holman Fenwick Willan LLP) for the Defendant
Hearing dates: 30 June & 1 July 2015
Introduction
We have heard together an interlocutory appeal against a decision of Hamblen J sitting in the Admiralty Court and an application for permission to appeal against a decision of the Admiralty Registrar, in three collision actions in the Admiralty Court. Two of the actions, one in rem and one in personam, relate to the same collision, that between the Niyazi S and the Stolt Kestrel at Stanlow near the Port of Liverpool on 10 October 2010. The third action, brought in personam, relates to the collision between the SB Seaguard and the Odyssée in Ramsgate Harbour on 17 April 201The claims in question are of relatively low value by the standards of the Admiralty Court, but raise important questions of Admiralty practice and procedure. I shall deal first with the appeal in the Stolt Kestrel and then with the application for permission to appeal in the Odyssée. As it happens the latter application serves to illuminate the approach to one issue which arises in the appeal, the principles governing applications made under section 190(5) of the Merchant Shipping Act 1995 ("the MSA") for an extension of time for bringing proceedings.
Stolt Kestrel — the facts and the action in rem
On 10 October 2010 Stolt Kestrel was berthed port side to at Stanlow.
At 03.32 on 10 October Stolt Kestrel was struck by Niyazi S, to which I shall refer hereafter as "the Vessel", and sustained structural damage to the starboard side between frames 33–105. At the time of the collision the Vessel was owned by Sener Petrol Denizcilik Ticaret AS to which I shall refer hereafter as "Sener".
On 30 October 2010 a letter of undertaking was issued by Sener's P&I Club, The Standard Club, in favour of the owners of Stolt Kestrel to whom I shall refer hereafter as "the Claimant". The letter of undertaking was in the sum of $300,000 inclusive of interest and costs. The letter of undertaking did not address the issue of jurisdiction.
On 11 January 2011 quantum documents were provided to The Standard Club by the Claimant's P&I Club, Gard.
On 5 June 2012 the Vessel was sold by Sener to Delmar Petroleum Co Limited ("Delmar") and was renamed Favour. It is not suggested that the sale of the Vessel, valued at approximately US$7.5 million, was in any way motivated by the exposure to the outstanding modest claim, in respect of which Sener in any event enjoys insurance cover afforded by its Club. Delmar is a Nigerian company. In her new ownership Favour has apparently traded exclusively offshore West Africa.
On 8–9 October 2012 Mr Doe of the Standard Club agreed a verbal one year time extension with Mr Chard of Gard and indicated a willingness to agree to an indefinite time extension. The latter indication was never followed up and no-one suggests that it was a binding commitment. It is unclear to me whether any reliance was at the time or is now placed on the verbal one year extension of time and as it happens the point is academic. The critical proceedings were not issued until 11 December 2013, two months beyond the one year extension, if such it was.
On 9 October 2012 the Claimant issued an in rem claim form in respect of the collision damage. The action was said to be an Admiralty claim in rem against
" Niyazi S of the Port of Istanbul."
It identified the Claimant, correctly, as
"The Owners and/or Bareboat Charterers of the Vessel 'STOLT KESTREL'
Stolt Kestrel BV
Westerlan 5
3016CK Rotterdam."
However the Defendant was identified not just as "The Owners and/or Bareboat Charterers of the Vessel ' Niyazi S'" but also as
"SENER PETROL DENIZCILIK TICARET AS
MURSEL PASA CADDESI 243
BALTKARABAS MAH
FATIH
34087 ISTANBUL, TURKEY."
It was irregular to give in the claim form the name of the Owners or Bareboat Charterers of the Defendant vessel — see below. As it happens of course Sener were no longer the owners of the vessel. It is not suggested that the Claimant's solicitors were at fault in not having ascertained the change of ownership, although I should be surprised if the information was not in fact readily available. However nothing turns on that. Because collision damage attracts a maritime lien the Claimant was entitled to bring proceedings against the Vessel as defendant irrespective of the change of ownership. The Claimant was also entitled to bring proceedings in personam against Sener as the owner of the colliding vessel at the time when the cause of action arose, because the cause of action arose within inland waters of England or Wales or within the limits of a port in England or Wales — Senior Courts Act 1981 section 22(1) and 22(2)(b).
Whether the claim was brought in rem or in personam, proceedings brought in respect thereof were subject to a time limit. Section 190 of the MSA provides:-
"Time limit for proceedings against owners or ship
190.
(1) This section applies to any proceedings to enforce any claim or lien against a ship or her owners —
(a) in respect of damage or loss caused by the fault of that ship to another ship, its cargo or freight or any property on board it; or
(b) for damages for loss of life or personal injury caused by the fault of that ship to any person on board another ship.
(2) The extent of the fault is immaterial for the purposes of this section.
(3) Subject to subsections (5) and (6) below, no proceedings to which this section applies shall be brought after the period of two years from the date when-
(a) the damage or loss was caused; or
(b) the loss of life or injury was suffered
(4) Subject to subsections (5) and (6) below, no proceedings under any of sections 187 to 189 to enforce any contribution in respect of any overpaid proportion of any damages for loss of life or personal injury shall be brought after the period of one year from the date of payment.
(5) Any court having jurisdiction in such proceedings may, in accordance with rules of court, extend the period allowed for bringing proceedings to such extent and on such conditions as it thinks fit.
(6) Any such court, if satisfied that there has not been during any period allowed for bringing proceedings any reasonable opportunity of arresting the defendant ship within-
(a) the jurisdiction of the court, or
(b) the territorial sea of the country to which the plaintiff's ship belongs or in which the plaintiff resides or has his principal place of business,
shall extend the period allowed for bringing proceedings to an extent sufficient to give a reasonable opportunity of so arresting the ship."
No rules of court have been made pursuant to section 190(5).
Issue of the claim form just described was effective to bring proceedings in rem against the Vessel within time. However including Sener's name on this in rem claim form did not amount to the issue or bringing of proceedings in personam against Sener. This conclusion has nothing to do with the fact that Sener was no longer correctly described as the owner of the Vessel. In personam proceedings must be brought separately by an in personam claim form — see below. Inclusion of Delmar's name, had that been done, would have been equally ineffective to institute proceedings in personam against that company.
The case handler at the Claimant's solicitors was aware of the time limit. The reason why she did not issue an in personam claim form is because she wrongly believed that the claim form in rem which she had caused to be issued was a hybrid claim form which included an in personam claim against Sener since Sener was named in the claim form.
Admiralty jurisdiction and procedure
It is convenient at this point to set out some of the provisions which govern the bringing of proceedings in the Admiralty Court. The action in rem is distinctive in that it enables a ship to be arrested to compel the provision of security and, if security is not forthcoming, to enable the Admiralty Court to sell the vessel free of all encumbrances to satisfy the claims against the ship. Furthermore, it is a vehicle which provides the Court with jurisdiction to deal with the res upon arrest or, following an acknowledgment of service, a vehicle which enables the court to exercise jurisdiction in personam over the person who has acknowledged service.
The starting point as regards procedure is CPR Part 61 — Admiralty claims. CPR 61.1 defines "claim in rem" as meaning "a claim in an admiralty action in rem". No definition is given of a "claim in personam", which the draftsmen of the CPR prefer to describe as "Other claims" — see paragraph 12.1 of PD 61.
Paragraph 3 of PD 61...
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