The Owners of the vessel "Stolt Kestral" v The Owners of the vessel "Niyazi S"
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hamblen |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] EWHC 1731 (Admlty),[2014] EWHC 1731 (Admiralty) |
| Docket Number | Case No: 2012-1328 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 23 May 2014 |
[2014] EWHC 1731 (Admiralty)
Mr Justice Hamblen
Case No: 2012-1328
2013-1622
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Miss V Selvaratnam QC (instructed by MFB Solicitors)) for the Claimant
Mr Richard Sarll (instructed by Holman Fenwick Willan) for the Defendant
Hearing dates: 9 May 2014
Introduction
The present applications arise out of a collision between the Claimants' vessel "STOLT KESTREL" and the vessel "NIYAZI S" ("the vessel") on 10 October 2010 at Stanlow, near the Port of Liverpool, England. At the time of the collision the vessel was owned by Sener Petrol Deniscilik Ticaret AS ("the Defendant").
The Claimant issued an in rem Claim Form on 9 October 2012.
By an application (Application 1) dated 3 October 2013 the Claimant made an application on papers for an order extending the validity of the Claim Form by 8 months and an order for permission to serve the Claim Form out of the jurisdiction. An Order to this effect was made by Eder J on 8 October 2013.
By a further application (Application 2) dated 10 December 2013 the Claimant applied on papers for permission to amend the Claim Form to add four sister ship defendants and an 8 month extension of time for service of the amended Claim Form. An Order to this effect was made by Flaux J on 23 January 2014.
On 11 December 2013 the Claimant issued an in personam Claim Form.
By an application (Application 3) dated 13 December 2013 the Claimant applied for an order for an extension of time for commencing the in personam proceedings and for permission to serve the Claim Form out of the jurisdiction.
By a cross application (Application 4) dated 4 March 2014 the Defendant applied for (1) orders setting aside (i) each of the Orders extending the validity of the in rem Claim Form previously granted to the Claimants by Eder J and Flaux J (ii) that part of the Order of Flaux J giving permission to add the sister ships, and (2) a stay of the in personam claim on the grounds that it is time barred.
The present hearing involves the determination of Applications 3 and 4.
Factual background
On 10 October 2010 the "STOLT KESTREL" was moored port side to alongside at Stanlow.
At 03:32 on 10 October the "STOLT KESTREL" was struck by the vessel and sustained structural damage to the starboard side between frames 33 to 105.
On 30 October 2010 an LOU was issued by the Defendant's P&I Club, The Standard Club, in favour of the Claimant in the sum of US$300,000 inclusive of interest and costs. The LOU 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 the Defendant to Delmar Petroleum Co. Ltd. ("Delmar") and the vessel was renamed "FAVOUR".
On 8–9 October 2012 Mr Doe of The Standard Club agreed a verbal 1 year time extension with Mr Chard of Gard and indicated a willingness to agree to an indefinite time extension.
On 9 October 2012 the Admiralty Claim Form in rem was issued.
On 18 September 2013 the Claimant's solicitors, More Fisher Brown ("MFB"), provided a quantum schedule and supporting documents to The Standard Club. There followed a number of requests by MFB to The Standard Club regarding authority to accept service of the Claim Form and whether solicitors had been authorised to accept service. The Defendant's solicitors, Holman Fenwick & Willan ("HFW"), responded on 30 September 2013 stating that they would be in contact once they have had an opportunity to consider the papers. On 1 October 2013 HFW advised MFB that they had recommended that their clients concede liability "at 100/0 in favour of your client. We expect instructions overnight".
On 3 October 2013 the Claimant made Application 1 referring to the fact that the vessel had traded exclusively in West Africa since the issue of the Claim Form. On 7 October 2013 Eder J gave permission to amend the description of the Defendant on the Claim Form; to extend the time to serve the Claim Form by 8 months up to 9 June 2014 and to serve the Claim Form on Sener and Delmar out of the jurisdiction.
On 11 October 2013 HFW advised MFB that as the 12 month period for serving the Claim Form has expired, the claim was now time barred. On 15 October 2013 MFB served on HFW a copy of Application 1 and associated documents, including the Claim Form and a sealed copy of Eder J's Order. HFW replied on 13 November 2013 expressing their view that the in rem claim was time barred and referring to MFB's error of procedure in failing to issue an in rem and an in personam claim at the same time.
On 10 December 2013 Application 2 was issued with supporting evidence referring to the fact that the vessel and her sister ships have not been within the jurisdiction since the in rem Claim Form was issued and to the provisions of the Merchant Shipping Act 1995 ("the MSA") justifying a mandatory extension of time for service (s.190(6)) and/or a discretionary extension of time for service under s.190(5) MSA, CPR 7.6 and/or CPR 3.10.
On 11 December 2013 the in personam Claim Form was issued.
On 13 December 2013 Application 3 was issued.
On 23 January 2014 Flaux J granted permission to amend the in rem Claim Form to add the following sister—ship defendants, the Owners and/or Bareboat Charterers of the vessels MV "MIRAGE-S", MV "SELAY-S", MV "SELIN-S" and MV "SUDE-S". The undisputed evidence is that the "MIRAGE-S" is no longer owned by the Defendant.
On 4 March 2014 Application 4 was issued.
It is now common ground that the collision claim gave rise to a maritime lien against the vessel which survives any changes of ownership.
The Claimant accordingly says that the fact that the vessel was sold by the Defendant to new owners Delmar on 8 June 2012 and re-named "FAVOUR" does not prevent service of the in rem Claim Form upon (a) "FAVOUR" or (b) any sister ships of the vessel which remain in the ownership of the Defendant, as and when any of those vessels calls within the jurisdiction.
It is common ground that the Defendant continues to own 3 sister ships of "NIYAZI S", namely "SELAY S", "SUDE S" and "SELIN S".
It is also common ground that the vessel and her sister ships, have at all material times remained out of the jurisdiction since the in rem Claim Form was issued on 9 October 2012 and there is no evidence that any of the vessels have at any time called within the jurisdiction since the date of the collision. Following the collision the vessel remained in UK territorial waters until 2259 on 14 October 2010.
The Issues
The principal issues to be determined may be stated as follows:
(1) Whether there should be (i) a mandatory extension of time or (ii) a discretionary extension of time for the bringing of the in rem proceedings.
(2) Whether there needs to be and, if so, whether there should be (i) a mandatory extension or (ii) a discretionary extension of time for the bringing of the in personam proceedings.
(3) Whether there needs to be and, if so, whether there should be (i) a mandatory extension or (ii) a discretionary extension of time for the joinder of the sister ships to in rem proceedings.
The relevant legal background
The statutory provision which is in issue in these applications is s. 190 of the MSA. It provides as follows:
"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."
A two year time limit for the bringing of proceedings is imposed by s.190(3). The two year period reflects the time limit internationally agreed since the Brussels Convention of 1910.
S.190 allows for that time limit to be extended. A mandatory extension may be granted where the requirements of s.190(6) are satisfied. A discretionary extension may also be granted under s.190(5).
Whether a mandatory extension is to be granted depends on whether there has been "any reasonable opportunity of arresting...
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