The Berny

JurisdictionEngland & Wales
Date1977
Year1977
CourtQueen's Bench Division (Admiralty)
[QUEEN'S BENCH DIVISION] THE BERNY [1974 Folio 737] 1977 April 25, 27, 28, 29; May 23, 24; July 12 Brandon J.

Admiralty - Jurisdiction - Action in rem - Writs issued against ship and sister ships in respect of same claim - Writs not served - Whether Admiralty jurisdiction “invoked” - Whether practice of issuing writs or writ against several ships improper - Administration of Justice Act 1956 (4 & 5 Eliz. 2, c. 46), s. 3 (4) - Admiralty - Practice - Writ - Renewal - Matters to be established in showing good and sufficient cause for renewal - Practice of striking out names of ships from writ which could have been served - Writs not to be renewed if one named ship could have been served - R.S.C., Ord. 6, r. 8 - Ships Names - Berny

Cargo owners issued first a writ against 18 sister ships of the Berny and then a writ against the Berny and the shipowners in respect of a claim for short delivery of sugar carried in the Berny from Dunkirk to Dares-Salaam. Neither writ was served within 12 months of it being issued and, during that period, the Berny had not been at a place within the jurisdiction but service of the sister ship writ could have been effected on any one of five named sister ships if the cargo owners had taken reasonable steps to ascertain that those sister ships were within the jurisdiction. The cargo owners applied to have both writs renewed at a time when the limitation period for the cause of action and the writs had not expired. The registrar renewed the Berny writ and the sister ships writ, which had been amended by the deletion of some of the named ships. Service of the renewed Berny writ was accepted on behalf of the shipowners and they entered a conditional appearance.

On the shipowners' motion to dismiss the Berny action on the ground that when that action was begun the cargo owners had already “invoked” the court's jurisdiction within the meaning of section 3 (4) of the Administration of Justice Act 1956F1 by issuing the sister ship writ and also to set aside the renewal of the Berny writ on the ground that the renewal had been wrongly allowed: —

Held, (1) that the cargo owners, having a claim within section 3 (4) of the Administration of Justice Act 1956, could invoke the Admiralty jurisdiction by an action in rem against either the Berny or a sister ship; that that jurisdiction was not invoked until a writ had been issued and served and, therefore, although the cargo owners could not under section 3 (4) invoke the jurisdiction by serving both writs, there was nothing improper in their following the practice of issuing more than one writ against several ships and then electing to serve a writ on either the Berny or a sister ship conveniently at a place within the jurisdiction (post, p. 402B–D, G, H).

Dicta of Pearson J. in Societe Generale de Paris v. Dreyfus Brothers (1885) 29 Ch.D. 239, 242–243, Farwell L.J. in The Hagen [1908] P. 189, 201, C.A. and Lord Denning M.R. and Megaw L.J. in The Banco [1971] P. 137, 153, 158–159, C.A. applied.

(2) That on an application for the renewal of a writ when neither the period of limitation for bringing the action nor the writ had expired and the ground for renewal was in effect that it had been impossible to serve the ships named in the writ then, a plaintiff, in showing good and sufficient cause for renewal, had to establish (a) that none of the ships had been or were likely to be present at a place within the jurisdiction during the currency of the writ; alternatively, that if any of the ships had been or would be present at a place within the jurisdiction during the currency of the writ (b) the length or other circumstances of her visit to or stay at such a place were not or would not afford reasonable opportunity for effecting service on the vessel or (c) the value of such ship was not or would not be sufficient to provide adequate security for the claim (post, p. 406F–H).

(3) That the established practice of renewing a writ or writs only when ground (a) was established and in respect of all named ships which came within that ground was erroneous (post, p. 405C, D) that once it had been shown that service could have been effected on one of the named ships, the writ or writs should not be renewed; that the cargo owners, having failed to establish grounds (a), (b) or (c) in respect of five named ships, had failed to show good and sufficient cause for the renewal of either the Berny writ or the sister ship writ but, since they had relied on the long established but erroneous practice of renewing writs against all ships which could not have been served and, if the court now set aside the Berny writ, the cargo owners could not issue a new writ because their claim would be defeated by the limitation period, there were special circumstances for upholding the order renewing the Berny writ and, accordingly, the shipowners' motion would be dismissed (post, pp. 409B–H, 410C).

The following cases are referred to in the judgment:

Baker v. Bowketts Cakes Ltd. [1966] 1 W.L.R. 861; [1966] 2 All E.R. 290, C.A.

Banco, The [1971] P. 137; [1971] 2 W.L.R. 335; [1971] 1 All E.R. 524, C.A.

Battersby v. Anglo-American Oil Co. Ltd. [1945] K.B. 23; [1944] 2 All E.R. 387, C.A.

Beldis, The [1936] P. 51, C.A.

Birkett v. James [1977] 3 W.L.R. 38, [1977] 2 All E.R. 801, C.A. and H.L.(E.).

Busfield, In re (1886) 32 Ch.D. 123, C.A.

Easy v. Universal Anchorage [1974] 1 W.L.R. 899; [1974] 2 All E.R. 1105, C.A.

Hagen, The [1908] P. 189, C.A.

Heaven v. Road and Rail Wagons Ltd. [1965] 2 Q.B. 355; [1965] 2 W.L.R. 1249; [1965] 2 All E.R. 409.

Jones v. Jones [1970] 2 Q.B. 576; [1970] 3 W.L.R. 20; [1970] 3 All E.R. Largo Law, The (1920) 123 L.T. 560; 5 Asp.M.L.C. 104.

Russell (John) & Co. Ltd. v. Cayzer Irvine & Co. Ltd. [1916] 2 A.C. 298 H.L.(E.)

Sheldon v. Brown Bayley's Steel Works Ltd. and Dawnays Ltd. [1953] 2 Q.B. 393; [1953] 3 W.L.R. 542; [1953] 2 All E.R. 894, C.A.

Societe Generale de Paris v. Dreyfus Brothers (1885) 29 Ch.D. 239.

The following additional cases were cited in argument:

Aries Tanker Corporation v. Total Transport Ltd. [1977] 1 W.L.R. 185; [1977] 1 All E.R. 398, H.L.(E.).

Esplanoleto, The [1920] P. 223.

Metropolitan Bank Ltd. v. Pooley (1884) 10 App.Cas. 210, H.L.(E.).

Monica S., The [1968] P. 741; [1968] 2 W.L.R. 431; [1967] 3 All E.R. 740.

Preveze, The [1973] 1 Lloyd's Rep. 202.

MOTIONS

The cargo owners claimed under a bill of lading dated May 18, 1973, for the loss of 325 bags of french white crystal sugar valued at £3,409. The cargo consisting of 65,813 bags of sugar had been lately laden on board the Berny at Dunkirk and transported to Dares-Salaam during May/June 1973. On December 13, 1974, the cargo owners' solicitors issued a writ in an action in rem against 18 named sister ships of the Berny (1974 Folio 736) claiming damages for the shortage of sugar on delivery. Some minutes later on the same day December 13, 1974, the plaintiffs' solicitors issued a writ in an action in rem against the Berny (1974 Folio 737) and in personam against the shipowners, Rederei Sally A.B., relating to the same claim.

On December 10, 1975, the cargo owners' solicitors applied ex parte to renew both the writs. Both writs were renewed to December 12, 1976, by the Admiralty Registrar. On October 4, 1976, the shipowners' solicitors accepted service of the renewed Berny writ by post and entered a conditional appearance. On November 23, 1976, they asked by notice of motion the court to set aside the renewal of the Berny writ and the subsequent service of the writ on the ground that the renewal had been wrongly allowed. On December 18, 1976, the registrar renewed the sister ship writ for a further 12 months until December 12, 1977, subject to the re-amendment of the writ by striking out the ships Yiva, Valny, and Gunny and leave was given for the writ to be re-amended further by the striking out of the ships Lenny, Renny, Signy and Solny, and inserting after the name Dafny the words in brackets “since the commencement of the action renamed Marlin II.” By an amended notice of motion the shipowners sought an order that the Berny action be stayed or dismissed on the ground that, when it was begun, the cargo owners had already invoked the jurisdiction of the court in rem in respect of the claim by bringing the sister ship action and that the court had no jurisdiction to entertain the Berny action or the bringing of the Berny action was an abuse of the process of the court. The cargo owners by notice of motion sought a mandatory interim injunction requiring the shipowners to comply with an agreement between the cargo owners' solicitors and the United Kingdom Mutual Steamship Assurance Association (Bermuda) Ltd. (“the Club”) acting on behalf of the shipowners to accept on behalf of the shipowners service of the Berny writ.

The facts are stated in the judgment.

Stephen Tomlinson for the shipowners.

Bruce Reynolds for the cargo owners.

Cur. adv. vult.

July 12. BRANDON J. read the following judgment. The court has before it two motions in an action in rem for short delivery of cargo. They raise difficult problems with regard to the right of a plaintiff to institute proceedings in rem against more than one ship in respect of the same cause of action, to the principles applicable to the renewal of the writ or writs issued by him when he does so; and to the effect of an undertaking by the insurers of a defendant to instruct solicitors to accept service of proceedings on his behalf and to enter an appearance to them.

The cargo with which the action is concerned consisted of 65,813 bags of sugar carried from Dunkirk to Dares-Salaam in the Finnish ship Berny in May and June 1973. The shortage claimed is 325 bags valued at £3,409.

The plaintiffs are the owners of the cargo, claiming under a bill of lading dated May 18, 1973. The defendants are the owners of the Berny. They are a Finnish company named Rederei Sally A.B. I shall refer to the parties as “the cargo owners” and “the...

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